12–18–03 Thursday Vol. 68 No. 243 Dec. 18, 2003

Pages 70421–70688

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1 II Federal Register / Vol. 68, No. 243 / Thursday, December 18, 2003

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2 III

Contents Federal Register Vol. 68, No. 243

Thursday, December 18, 2003

Agriculture Department Education Department See Animal and Plant Health Inspection Service NOTICES See Forest Service Agency information collection activities; proposals, submissions, and approvals, 70496–70497 Air Force Department Grantback arrangements; award of funds: NOTICES Massachusetts Department of Education, 70497–70500 Agency information collection activities; proposals, submissions, and approvals, 70496 Energy Department See Federal Energy Regulatory Commission Animal and Plant Health Inspection Service RULES Plant-related quarantine, foreign: Environmental Protection Agency Ports of entry— RULES Atlanta, GA and Agana, GU; designated as plant Air quality implementation plans; approval and inspection stations, 70421–70423 promulgation; various States: PROPOSED RULES Connecticut, 70437–70444 Plant-related quarantine, foreign: PROPOSED RULES Fruits and vegetables importation; conditions governing Air quality implementation plans; approval and entry, 70448–70463 promulgation; various States: Connecticut, 70484 Centers for Disease Control and Prevention NOTICES NOTICES Grants and cooperative agreement availability: Agency information collection activities; proposals, Water Quality Allocation Program, 70502–70504 submissions, and approvals, 70510–70511 Grants and cooperative agreements; availability, etc.: Equal Employment and Opportunity Commission Human immunodeficiency virus (HIV)— RULES Topical microbicides use to reduce sexual transmission Age Discrimination in Employment Act: of HIV infection; evaluation, 70511–70512 Processing of age discrimination charges [Editorial Note: The page number for this document, published at 68 Chemical Safety and Hazard Investigation Board FR 70150 in the Federal Register of December 17, NOTICES 2003, was inadvertently omitted in that issue’s table Meetings; Sunshine Act, 70487–70488 of contents.]

Commerce Department Federal Aviation Administration See International Trade Administration RULES See National Oceanic and Atmospheric Administration Airworthiness directives: See Patent and Trademark Office Airbus, 70429–70432 Boeing, 70432–70434 Committee for the Implementation of Textile Agreements Bombardier, 70428–70429, 70434–70435 NOTICES PROPOSED RULES Cotton, wool, and man-made textiles: Airworthiness directives: Belarus, 70494 Airbus, 70464–70468, 70473–70475, 70479–70482 Boeing, 70477–70479 Commodity Futures Trading Commission Bombardier, 70469–70473 NOTICES Empresa Brasileira de Aeronautica S.A. (EMBRAER), Derivatives clearing organizations; designation, registration, 70475–70477 etc.: Intermarket Clearing Corp., 70494–70496 Federal Communications Commission Customs and Border Protection Bureau NOTICES NOTICES Agency information collection activities; proposals, Custom broker and national permits; user fees, 70520 submissions, and approvals, 70504–70505 Common carrier services: Defense Department Wireless telecommunications services— See Air Force Department 460-470 MHz band; high power applications for 12.5 kHz offset channels; filing freeze extended, 70505 Drug Enforcement Administration NOTICES Federal Deposit Insurance Corporation Applications, hearings, determinations, etc.: NOTICES Davenport, Larry E., M.D., 70534–70538 Agency information collection activities; proposals, OTC Distribution Co., 70538–70544 submissions, and approvals, 70505–70506

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Federal Election Commission Forest Service RULES NOTICES Federal Election Campaign Act and Freedom of Information Environmental statements; notice of intent: Act: Payette National Forest and Boise National Forest, ID, Enforcement and related files; public disclosure; policy 70486–70487 statement, 70426–70428 Health and Human Services Department Federal Energy Regulatory Commission See Centers for Disease Control and Prevention NOTICES See Food and Drug Administration Electric rate and corporate regulation filings: See Substance Abuse and Mental Health Services Madison Gas & Electric Co. et al., 70500–70501 Administration RULES Meetings: Federal claims collection: Northern Natural Gas Co.; settlement conference, 70501 Tax refund offset, 70444–70447 Practice and procedure: NOTICES Off-the-record communications, 70501–70502 Organization, functions, and authority delegations: Applications, hearings, determinations, etc.: Office of Commissioned Corps Force Management and Public Utility District No.2 of Grant County, WA; Office of the Surgeon General, 70507–70510 correction, 70502 Homeland Security Department Federal Railroad Administration See Customs and Border Protection Bureau RULES Railroad safety: Interior Department Locomotive horns use at highway-rail grade crossings; See Fish and Wildlife Service requirement for sounding, 70585–70687 See Land Management Bureau NOTICES Grants and cooperative agreements; availability, etc.: Federal Reserve System Tribal Self-Governance Program, 70520 NOTICES Banks and bank holding companies: Change in bank control, 70506 Internal Revenue Service Formations, acquisitions, and mergers, 70506 RULES Federal Open Market Committee: Income taxes: Domestic policy directives, 70506–70507 Partnership income; return Correction, 70584 PROPOSED RULES Fish and Wildlife Service Income taxes: NOTICES Contested liabilities; transfers to provide for satisfaction, Comprehensive conservation plans; availability, etc.: cross references; public hearing; correction, 70482 Tallahatchie, Dahomey, and Coldwater River National NOTICES Wildlife Refuges, MS, 70520–70521 Meetings: Endangered and threatened species: Taxpayer Advocacy Panels, 70583 Findings on petitions, etc.— Preble’s meadow jumping mouse, 70523–70526 International Trade Administration Recovery plans— NOTICES Hawaiian crow, 70527–70528 Antidumping: Otay tarplant, 70526–70527 Tapered roller bearings and parts, finished and Sphinx moth, 70528–70529 unfinished, from— Endangered and threatened species and marine mammal China, 70488–70490 permit applications, 70521–70522 Export trade certificates of review, 70490–70492 Endangered and threatened species permit applications, Tariff rate quotas: 70522–70523 Worsted wool fabrics, 70492–70493 Meetings: Aquatic Nuisance Species Task Force, 70529–70530 International Trade Commission NOTICES Food and Drug Administration Import investigations: RULES Cold-rolled steel from— Medical devices: Various countries, 70532–70533 Neurological devices— Human dura matter; classification, 70435–70436 Justice Department NOTICES See Drug Enforcement Administration Meetings: NOTICES Advisory Committee Information Hotline, 70512–70513 Pollution control; consent judgments: Reports and guidance documents; availability, etc.: Guam, 70533 Medical devices— Island Chemical Co., et al., 70533 Human dura matter; Class II special controls, 70513– Lowe, Ralph L., et al., 70534 70514 New York City Transit Authority, 70534

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Labor Department Grants and cooperative agreements; availability, etc.: NOTICES Benjamin A. Gilman International Scholarship Program, Agency information collection activities; proposals, 70577–70580 submissions, and approvals, 70544–70545 Meetings: Grants and cooperative agreements; availability, etc.: Overseas Building Operations Industry Advisory Panel, Child Labor Education Initiative, 70545 70580 Land Management Bureau NOTICES Substance Abuse and Mental Health Services Agency information collection activities; proposals, Administration submissions, and approvals, 70530–70532 NOTICES Grants and cooperative agreements; availability, etc.: National Oceanic and Atmospheric Administration Mental Health Services Center— PROPOSED RULES Statewide Consumer Networks Program, 70517–70520 Fishery conservation and management: Statewide Family Networks Program, 70514–70517 Alaska; fisheries of Exclusive Economic Zone— Pribilof Islands blue king crab, 70484–70485 NOTICES Textile Agreements Implementation Committee Marine mammal permit applications, 70493 See Committee for the Implementation of Textile Permits: Agreements Marine mammals, 70493–70494 Transportation Department Nuclear Regulatory Commission See Federal Aviation Administration RULES Spent nuclear fuel and high-level radioactive waste; See Federal Railroad Administration independent storage; licensing requirements: Approved spent fuel storage casks; list, 70423–70426 Treasury Department PROPOSED RULES See Internal Revenue Service Spent nuclear fuel and high-level radioactive waste; NOTICES independent storage; licensing requirements: Agency information collection activities; proposals, Approved spent fuel storage casks; list, 70463–70464 submissions, and approvals, 70580–70583 NOTICES Environmental statements; availability, etc.: Carolina Power & Light Co., 70545–70546 Veterans Affairs Department Meetings: NOTICES Non-LWR containment functional performance options; Meetings: workshop, 70546–70547 Rehabilitation Research and Development Service Scientific Merit Review Board, 70583 Patent and Trademark Office PROPOSED RULES Trademark cases: Registrations; amendment and correction requirements, Separate Parts In This Issue 70482–70484 Securities and Exchange Commission Part II NOTICES Transportation Department, Federal Railroad Investment Company Act of 1940: Administration, 70585–70687 Exemption applications— Citicorp North America, Inc., 70547–70549 Self-regulatory organizations; proposed rule changes: Reader Aids Boston Stock Exchange, Inc., 70550–70551 Chicago Board Options Exchange, Inc., 70551–70552 Consult the Reader Aids section at the end of this issue for National Securities Clearing Corp., 70553–70554 phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. State Department To subscribe to the Federal Register Table of Contents NOTICES LISTSERV electronic mailing list, go to http:// Antarctic fishing; conservation measures adoption by listserv.access.gpo.gov and select Online mailing list Commission for Conservation of Antarctic Marine archives, FEDREGTOC-L, Join or leave the list (or change Living Resources, 70554–70577 settings); then follow the instructions.

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CFR PARTS AFFECTED IN THIS ISSUE

A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.

7 CFR 319...... 70421 Proposed Rules: 319...... 70448 10 CFR 72...... 70423 Proposed Rules: 72...... 70463 11 CFR 4...... 70426 111...... 70426 14 CFR 39 (5 documents) ...... 70428, 70429, 70431, 70432, 70434 Proposed Rules: 39 (6 documents) ...... 70464, 70469, 70473, 70475, 70477, 70479 21 CFR 882...... 70435 26 CFR 1...... 70584 Proposed Rules: 1...... 70482 37 CFR Proposed Rules: 2...... 70482 40 CFR 52...... 70437 Proposed Rules: 52...... 70484 45 CFR 31...... 70444 49 CFR 222...... 70586 229...... 70586 50 CFR Proposed Rules: 679...... 70484

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Rules and Regulations Federal Register Vol. 68, No. 243

Thursday, December 18, 2003

This section of the FEDERAL REGISTER [email protected]. Your Currently, 14 plant inspection stations contains regulatory documents having general comment must be contained in the body operate at or near many major U.S. ports applicability and legal effect, most of which of your message; do not send attached and airports. These facilities are are keyed to and codified in the Code of files. Please include your name and designed for inspection and, in some Federal Regulations, which is published under address in your message and ‘‘Docket cases, treatment of imported plants and 50 titles pursuant to 44 U.S.C. 1510. No. 03–067–1’’ on the subject line. seeds. Plant Protection and Quarantine The Code of Federal Regulations is sold by You may read any comments that we (PPQ) staffs plant inspection stations the Superintendent of Documents. Prices of receive on this docket in our reading with officers who specialize in, among new books are listed in the first FEDERAL room. The reading room is located in other things, entomology, plant REGISTER issue of each week. room 1141 of the USDA South Building, pathology, and botany. 14th Street and Independence Avenue At plant inspection stations, PPQ SW., Washington, DC. Normal reading officers inspect imported plants and DEPARTMENT OF AGRICULTURE room hours are 8 a.m. to 4:30 p.m., seeds to ensure that they are free from Monday through Friday, except plant pests and diseases that are known Animal and Plant Health Inspection holidays. To be sure someone is there to not to occur in the United States and Service help you, please call (202) 690–2817 that they otherwise comply with U.S. before coming. import regulations. When pests or 7 CFR Part 319 APHIS documents published in the diseases are detected, PPQ may require [Docket No. 03–067–1] Federal Register, and related that the planting material be treated, information, including the names of exported, or destroyed. Ports of Entry for Certain Plants and organizations and individuals who have In order to be designated as a plant Plant Products commented on APHIS dockets, are inspection station, a building must have available on the Internet at http:// AGENCY: Animal and Plant Health adequate space for inspection areas to Inspection Service, USDA. www.aphis.usda.gov/ppd/rad/ be set up, laboratory facilities for pest webrepor.html. ACTION: Direct final rule. and disease identification, provide easy FOR FURTHER INFORMATION CONTACT: Mr. access by shipments for inspection, and, SUMMARY: We are amending the James A. Petit de Mange, Senior Staff in most cases, contain various treatment regulations governing the importation of Officer, Quarantine Policy, Analysis and facilities. We have determined that the nursery stock and other articles by Support, PPQ, APHIS, 4700 River Road facilities in Atlanta, GA, and Agana, GU, designating the ports of Atlanta, Unit 60, Riverdale, MD 20737–1232; satisfy the criteria for designation as Georgia, and Agana, Guam, as plant (301) 734–8295. plant inspection stations. inspection stations. The addition of the SUPPLEMENTARY INFORMATION: Therefore, in accordance with the two plant inspection stations will help procedures explained below under reduce transportation time and costs to Background ‘‘Dates,’’ this rule amends the list of importers who must currently import The regulations in 7 CFR part 319 ports of entry in § 319.37–14(b) by plants through inspection stations that prohibit or restrict the importation of replacing the current entries for Atlanta, are considerably distant from the certain plants and plant products into GA, and Agana, GU, on the list and importers’ facilities. the United States to prevent the designating those ports as plant DATES: This rule will be effective on introduction of plant pests. The inspection stations. February 17, 2004, unless we receive regulations contained in ‘‘Subpart— Dates written adverse comments or written Nursery Stock, Plants, Roots, Bulbs, notice of intent to submit adverse Seeds, and Other Plant Products,’’ We are publishing this rule without a comments on or before January 20, §§ 319.37 through 319.37–14 (referred to prior proposal because we view this 2004. If we receive written adverse below as the regulations), restrict, action as noncontroversial and comments or written notice of intent to among other things, the importation of anticipate no adverse public comment. submit adverse comments, we will living plants, plant parts, and seeds for This rule will be effective, as published publish a document in the Federal propagation. in this document, on February 17, 2004, Register withdrawing this rule before In § 319.37–14 of the regulations, unless we receive written adverse the effective date. paragraph (b) contains a list of approved comments or written notice of intent to ADDRESSES: You may submit comments ports of entry through which restricted submit adverse comments on or before or notice of intent to submit adverse articles may be imported into the United January 20, 2004. comments by postal mail/commercial States. Restricted articles that do not Adverse comments are comments that delivery or by e-mail. If you use postal require a permit may be imported suggest the rule should not be adopted mail/commercial delivery, please send through any of the approved ports of or that suggest the rule should be four copies (an original and three entry; restricted articles that do require changed. copies) to: Docket No. 03–067–1, a permit, because of their greater plant If we receive written adverse Regulatory Analysis and Development, pest and disease risk, may be imported comments or written notice of intent to PPD, APHIS, Station 3C71, 4700 River only through ports equipped with submit adverse comments, we will Road Unit 118, Riverdale, MD 20737– special inspection and treatment publish a document in the Federal 1238. Please state that your comment facilities. These ports, known as plant Register withdrawing this rule before refers to Docket No. 03–067–1. If you inspection stations, are indicated on the the effective date. We will then publish use e-mail, address your comment to list by an asterisk. a proposed rule for public comment.

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As discussed above, if we receive no million) in 2001.3 These 10 countries 20 establishments engaged in nursery written adverse comments or written accounted for $334.4 million, or about stock trade in Guam. The number of notice of intent to submit adverse 84 percent, of total U.S. planting seed establishments that import nursery comments within 30 days of publication imports. stock may increase because of the of this direct final rule, this direct final reduced transportation costs, reduced Nursery Stock Industry rule will become effective 60 days time, and lower probability of damaged following its publication. We will The availability of good quality plants. publish a document in the Federal nursery stock and seeds contributes to The Hartsfield Atlanta International Register, before the effective date of this domestic production of food grains, Airport is becoming a major air cargo direct final rule, confirming that it is field crops, cotton, oil crops, vegetables, hub. It is an entry port for other effective on the date indicated in this herbs, flowers, trees, and shrubs. restricted articles that do not require a document. Presently, imported nursery stock and permit and is much closer to most seeds can enter the United States with nursery stock importers from the Executive Order 12866 and Regulatory a phytosanitary certificate through 14 surrounding areas and States (northern Flexibility Act approved plant inspection stations. Alabama, North Carolina, South This rule has been reviewed under Atlanta, GA, and Agana, GU, though not Carolina, southern Virginia, Kentucky, Executive Order 12866. For this action, listed as approved Federal plant and Tennessee) than any of the other the Office of Management and Budget inspection stations, currently serve as closest Federal plant inspection stations has waived its review under Executive ports of entry for other restricted articles in Miami, FL, New Orleans, LA, and Order 12866. that do not require a permit. The new Orlando, FL. There are about 470 retail This proposed rule would add facilities in Georgia and Guam have the nursery companies in Georgia alone, of Atlanta, GA, and Agana, GU, as ports of capacity and resources to handle the which 141 are in metropolitan areas. entry through which individuals and importation of nursery stock and seeds, Nursery retailers from the surrounding companies would be able to import which will allow them to be listed as areas that import products would nursery stock. This action would save plant inspection stations. benefit from reduced routing costs and business costs to concerned individuals This action may result in reduced reduced mortality of plants that usually and companies, making the routing of costs for importers by making the occurs from multiple box openings for nursery stock materials to other routing of nursery stock materials inspection and from the longer time authorized entry ports unnecessary. through another plant inspection station elapsed between the place of origin and unnecessary when the materials are the final destination. We are amending the regulations destined for the regions of Atlanta, GA, governing the importation of nursery Impact on Small Entities or Agana, GU. Importers and stock and other articles by designating distributers both in Atlanta, GA, and The Regulatory Flexibility Act the ports of Atlanta, Georgia, and Agana, Agana, GU, should benefit from requires that agencies consider the Guam, as plant inspection stations. The transportation cost savings and reduced economic impact of their rules on small addition of the two plant inspection plant injury that can result during entities. The Small Business stations will help reduce transportation transport. Administration (SBA) has established time and costs to importers who must The Agana International Airport the size standards for determining currently import plants through serves Guam and surrounding islands, which economic entities meet the inspection stations that are considerably which are growing tourist centers. definition of a small firm. A retail distant from the importers’ facilities. Currently, most of the nursery stock nursery or lawn and garden store The United States imported about 700 imported into Guam is routed through (NAICS code 444220) 4 is defined as a million plant units in 2002, about 4.6 Hawaii. Very little is imported from small business if it employs 100 or percent over the previous year and 21 Asian sources because of the time and fewer workers. Resort hotels, golf 1 percent above 2000 level. Nursery cost involved in shipping to Federal courses, and local governments that use stock imports were valued at $591 plant inspection stations in Hawaii and nursery stock for parks and landscaping million in 2002, an increase of about then to Guam. Additionally, plant could be affected. Additionally, 135 percent over a decade ago. The mortality is high due to the additional specialized groups such as horticultural major sources are Canada (50.4 percent), time involved routing through societies, arboreta, and individual plant Netherlands (25.5 percent), Costa Rica Honolulu, HI, which is a major factor hobbyists who import and exchange (3.9 percent), Mexico (2.7 percent), and apart from the shipping cost. The direct nursery stock and small lots of seed Taiwan (2.2 percent). Nursery stock air cargo cost from Narita, Japan, to could also be affected. exports were valued at $250 million in Honolulu, HI, is $11.96 per kilogram Nationally, there are 6,845 2 2002, about 13 percent over 1992 total. and from Hawaii to Guam is $6.65 per establishments that are engaged in Planting seeds are imported from kilogram for a total routing cost from selling trees, shrubs, other plants, seeds, many countries, with a few countries Narita to Guam of $18.61 per kilogram. bulbs, mulch, and related products accounting for the major proportion of The direct air cargo cost from Narita to (NAICS 444220). About 470 of these are U.S. total planting seed imports. The Guam is $7.04 per kilogram. Thus, as in Georgia, including the Atlanta leading suppliers are Chile ($105.8 Agana becomes an approved Federal metropolitan area. There are 20 million), Canada ($105 million), the plant inspection station, importers will companies currently engaged in nursery Netherlands ($36.5 million), Argentina benefit from direct importation of stock trade in Guam. Over 99 percent ($21.2 million), China ($17.9 million), nursery stock materials from Japan, are small entities. However, specialized Japan ($14 million), Finland ($11.1 Taiwan, China, the Philippines, and groups such as horticultural societies, million), Australia ($8.3 million), other Asian countries through reduced arboreta, several resort hotels, golf Denmark ($7.5 million), and India ($7.1 transportation costs. Presently there are courses, and local governments that use imported plants for landscaping 1 USDA/APHIS/PPQ, WADS Database, June 2003. 3 USDA/FAS, FAS Online: U.S. Planting Seed 2 USDA/ERS, Foreign Agricultural Trade of the Trade Archives (http://www.fas.usda.gov/ 4 U.S. Census Bureau, 1997 Economic Census, United States, June 30, 2003. seed_arc.html) Wholesale Trade-Subject Series, August 2000.

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projects, and individual hobbyists who Authority: 7 U.S.C. 450 and 7701–7772; 21 Shielded Canister under a general collect, grow, exhibit, preserve, U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and license. In addition, the amendment exchange, and donate special nursery 371.3. includes three minor changes to the stocks and seeds could also be affected. ■ 2. In § 319.37–14, paragraph (b), the Technical Specifications to correct The exact present size and number of list of ports of entry is amended by inconsistencies and remove irrelevant these entities are difficult to determine. revising the entries for Atlanta, Georgia, references. and Agana, Guam, to read as follows: Since Atlanta, GA, and Agana, GU, DATES: The final rule is effective March already serve as ports of entry for other § 319.37–14 Ports of entry. 2, 2004, unless significant adverse restricted articles and have the capacity * * * * * comments are received by January 20, and resources to handle the importation (b) * * * 2004. A significant adverse comment is of nursery stock and seeds, no effect on one which explains why the rule would Federal Government processing of List of Ports of Entry be inappropriate, including challenges permits and inspection of imported * * * * * to the rule’s underlying premise or materials is expected. Also, no effects approach, or would be ineffective or on other Federal agencies and State and Georgia unacceptable without a change. If the local governments are expected. Since Atlanta rule is withdrawn, timely notice will be imports of these materials are a small published in the Federal Register. fraction of the total domestic supply of Hartsfield Atlanta International Airport, Atlanta, GA 30320. * * * ADDRESSES: You may submit comments nursery stock and seeds, no substantial by any one of the following methods. change in supply and price is expected. Guam Please include the following number Under these circumstances, the Agana (RIN 3150–AH28) in the subject line of Administrator of the Animal and Plant your comments. Comments on Health Inspection Service has Guam International Airport, Tamuning, rulemakings submitted in writing or in determined that this action will not GU 96931. electronic form will be made available have a significant economic impact on * * * * * to the public in their entirety on the a substantial number of small entities. Done in Washington, DC, this 11th day of NRC rulemaking website. Personal Executive Order 12372 December, 2003. information will not be removed from Bobby R. Acord, your comments. This program/activity is listed in the Administrator, Animal and Plant Health Mail comments to: Secretary, U.S. Catalog of Federal Domestic Assistance Inspection Service. Nuclear Regulatory Commission, under No. 10.025 and is subject to [FR Doc. 03–31203 Filed 12–17–03; 8:45 am] Washington, DC 20555–0001, ATTN: Executive Order 12372, which requires BILLING CODE 3410–34–P Rulemakings and Adjudications Staff. intergovernmental consultation with E-mail comments to: [email protected]. If State and local officials. (See 7 CFR part you do not receive a reply e-mail 3015, subpart V.) NUCLEAR REGULATORY confirming that we have received your Executive Order 12988 COMMISSION comments, contact us directly at (301) 415–1966. You may also submit This rule has been reviewed under 10 CFR Part 72 comments via the NRC’s rulemaking Executive Order 12988, Civil Justice website at http://ruleforum.llnl.gov. Reform. This rule: (1) Preempts all State RIN 3150–AH28 Address questions about our rulemaking and local laws and regulations that are website to Carol Gallagher (301) 415– List of Approved Spent Fuel Storage inconsistent with this rule; (2) has no 5905; e-mail [email protected]. Casks: Standardized NUHOMS–24P, retroactive effect; and (3) does not Hand deliver comments to: 11555 –52B, –61BT, –32PT, and –24PHB require administrative proceedings Rockville Pike, Rockville, Maryland Revision before parties may file suit in court 20852, between 7:30 am and 4:15 pm challenging this rule. AGENCY: Nuclear Regulatory Federal workdays [telephone (301) 415– Paperwork Reduction Act Commission. 1966]. ACTION: Direct final rule. Fax comments to: Secretary, U.S. This rule contains no new Nuclear Regulatory Commission at (301) information collection or recordkeeping SUMMARY: The Nuclear Regulatory 415–1101. requirements under the Paperwork Commission (NRC) is amending its Publicly available documents related Reduction Act of 1995 (44 U.S.C. 3501 regulations revising the Transnuclear, to this rulemaking may be viewed et seq.). Inc., Standardized NUHOMS electronically on public computers Horizontal Modular Storage System List of Subjects in 7 CFR Part 319 located at the NRC’s Public Document (Standardized NUHOMS System) Room (PDR), Public File Area O–1F21, Bees, Coffee, Cotton, Fruits, Honey, listing within the ‘‘List of approved One White Flint North, 11555 Rockville Imports, Logs, Nursery stock, Plant spent fuel storage casks’’ to include Pike, Rockville, Maryland. The PDR diseases and pests, Quarantine, Amendment No. 7 in Certificate of reproduction contractor will copy Reporting and recordkeeping Compliance (CoC) Number 1004. documents for a fee. Selected requirements, Rice, Vegetables. Amendment No. 7 will incorporate documents, including comments, can be changes in support of the Amergen viewed and downloaded electronically ■ Accordingly, 7 CFR part 319 is Corporation plans to load damaged fuel via the NRC rulemaking website at amended as follows: and additional fuel types at its Oyster http://ruleforum.llnl.gov. PART 319—FOREIGN QUARANTINE Creek Nuclear Station. Specifically, the Publicly available documents created NOTICES amendment will add damaged Boiling or received at the NRC after November Water Reactor spent fuel assemblies and 1, 1999, are available electronically at ■ 1. The authority citation for part 319 additional fuel types to the authorized the NRC’s Electronic Reading Room at continues to read as follows: contents of the NUHOMS–61BT Dry http://www.nrc.gov/NRC/ADAMS/

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index.html. From this site, the public general license by publishing a final Discussion of Amendments by Section can gain entry into the NRC’s rule in 10 CFR part 72 entitled, ‘‘General Section 72.214 List of Approved Spent Agencywide Document Access and License for Storage of Spent Fuel at Fuel Storage Casks Management System (ADAMS), which Power Reactor Sites’’ (55 FR 29181; July provides text and image files of NRC’s 18, 1990). This rule also established a Certificate No. 1004 is revised by public documents. If you do not have new Subpart L within 10 CFR part 72, adding the effective date of Amendment access to ADAMS or if there are entitled ‘‘Approval of Spent Fuel Number 7. problems in accessing the documents Storage Casks’’ containing procedures Procedural Background located in ADAMS, contact the NRC and criteria for obtaining NRC approval This rule is limited to the changes PDR Reference staff at 1–800–397–4209, of spent fuel storage cask designs. The 301–415–4737, or by e-mail to contained in Amendment 7 to CoC No. NRC subsequently issued a final rule on 1004 and does not include other aspects [email protected]. An electronic copy of the December 22, 1994 (59 FR 65920), that  proposed CoC, proposed Technical  of the Standardized NUHOMS System. approved the Standardized NUHOMS The NRC is using the ‘‘direct final rule Specifications (TS), and preliminary System (NUHOMS–24P and –52B) Safety Evaluation Report (SER) can be procedure’’ to issue this amendment cask designs and added them to the list because it represents a limited and found under ADAMS Accession Nos. of NRC-approved cask designs in ML032100773, ML032100775, and routine change to an existing CoC that § 72.214 as CoC No. 1004. Amendments is expected to be noncontroversial. ML032100776, respectively. 3, 5, and 6, respectively, added the CoC No. 1004, the revised Conditions Adequate protection of public health –61BT, –32PT, and –24PHB designs to for Cask Use and TS, the underlying and safety continues to be ensured. The the Standardized NUHOMS System. SER for Amendment No. 7, and the amendment to the rule will become Environmental Assessment (EA) are Discussion effective on March 2, 2004. However, if available for inspection at the NRC the NRC receives significant adverse Public Document Room, 11555 On March 29, 2002, and as comments by January 20, 2004, then the Rockville Pike, Rockville, MD. Single supplemented on February 14, 2003, NRC will publish a document that copies of these documents may be and July 10, 2003, the certificate holder, withdraws this action and will address obtained from Jayne McCausland, Office Transnuclear, Inc. (TN), submitted an the comments received in response to of Nuclear Material Safety and application to the NRC to amend CoC the proposed amendments published Safeguards, U.S. Nuclear Regulatory No. 1004 to incorporate changes in elsewhere in this issue of the Federal Commission, Washington, DC 20555– support of the Amergen Corporation Register. A significant adverse comment 0001, telephone (301) 415–6219, e-mail plans to load damaged fuel and is a comment which explains why the [email protected]. additional fuel types at its Oyster Creek rule would be inappropriate, including challenges to the rule’s underlying FOR FURTHER INFORMATION CONTACT: Nuclear Station. Specifically, the Jayne M. McCausland, telephone (301) amendment will add damaged Boiling premise or approach, or would be 415–6219, e-mail [email protected], of the Water Reactor (BWR) spent fuel ineffective or unacceptable without a Office of Nuclear Material Safety and assemblies and additional fuel types to change. A comment is adverse and Safeguards, U.S. Nuclear Regulatory the authorized contents of the significant if:  (1) The comment opposes the rule and Commission, Washington, DC 20555– NUHOMS –61BT Dry Shielded Canister provides a reason sufficient to require a 0001. under a general license. In addition, substantive response in a notice-and- three minor changes to the TS were SUPPLEMENTARY INFORMATION: comment process. For example, a requested to correct inconsistencies and substantive response is required when: Background remove irrelevant references. No other  (A) The comment causes the NRC staff Section 218(a) of the Nuclear Waste changes to the Standardized NUHOMS to reevaluate (or reconsider) its position Policy Act of 1982, as amended System were requested in this or conduct additional analysis; (NWPA), requires that ‘‘[t]he Secretary application. The NRC staff performed a (B) The comment raises an issue [of the Department of Energy (DOE)] detailed safety evaluation of the serious enough to warrant a substantive shall establish a demonstration program, proposed CoC amendment request and response to clarify or complete the in cooperation with the private sector, found that an acceptable safety margin record; or for the dry storage of spent nuclear fuel is maintained. In addition, the NRC staff (C) The comment raises a relevant at civilian nuclear power reactor sites, has determined that there is still issue that was not previously addressed with the objective of establishing one or reasonable assurance that public health or considered by the NRC staff. more technologies that the [Nuclear and safety and the environment will be (2) The comment proposes a change Regulatory] Commission may, by rule, adequately protected. or an addition to the rule, and it is approve for use at the sites of civilian This direct final rule revises the apparent that the rule would be nuclear power reactors without, to the Standardized NUHOMS System listing ineffective or unacceptable without maximum extent practicable, the need in § 72.214 by adding Amendment 7 to incorporation of the change or addition. for additional site-specific approvals by CoC No. 1004. The amended TS are (3) The comment causes the NRC staff the Commission.’’ Section 133 of the to make a change (other than editorial) identified in the NRC staff’s SER for NWPA states, in part, that ‘‘[t]he to the CoC or TS. Amendment 7. Commission shall, by rule, establish These comments will be addressed in procedures for the licensing of any The amended Standardized a subsequent final rule. The NRC will  technology approved by the NUHOMS System, when used in not initiate a second comment period on Commission under Section 218(a) for accordance with the conditions this action. However, if the NRC use at the site of any civilian nuclear specified in the CoC, the TS, and NRC receives significant adverse comments power reactor.’’ regulations, will meet the requirements by January 20, 2004, then the NRC will To implement this mandate, the NRC of part 72; thus, adequate protection of publish a document that withdraws this approved dry storage of spent nuclear public health and safety will continue to action and will address the comments fuel in NRC-approved casks under a be ensured. received in response to the proposed

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amendments published elsewhere in required. The rule would amend the Standardized NUHOMS System this issue of the Federal Register. CoC for the Standardized NUHOMS (NUHOMS–24P and –52B) by adding it System within the list of approved spent to the list of NRC-approved cask designs Voluntary Consensus Standards fuel storage casks that power reactor in § 72.214. Amendments 3, 5, and 6, The National Technology Transfer Act licensees can use to store spent fuel at respectively, added the –61BT, of 1995 (Pub. L. 104–113) requires that reactor sites under a general license by –32PT,and –24PHB cask designs to the Federal agencies use technical standards revising the NUHOMS–61BT to Standardized NUHOMS System. On that are developed or adopted by incorporate changes in support of the March 29, 2002, and as supplemented voluntary consensus standards bodies Amergen Corporation plans to load on February 14, 2003, and July 10, 2003, unless the use of such a standard is damaged fuel and additional fuel types the certificate holder, Transnuclear, Inc. inconsistent with applicable law or at its Oyster Creek Nuclear Station. (TN), submitted an application to the otherwise impractical. In this direct Specifically, the amendment will add NRC to amend CoC No. 1004 to final rule, the NRC would revise the damaged BWR spent fuel assemblies incorporate changes in support of the Standardized NUHOMS System listed and additional fuel types to the Amergen Corporation plans to load in § 72.214 (List of NRC-approved spent authorized contents of the NUHOMS– damaged fuel and additional fuel types fuel storage cask designs). This action 61BT Dry Shielded Canister. In at its Oyster Creek Nuclear Station. does not constitute the establishment of addition, the amendment includes three Specifically, the amendment will add a standard that establishes generally minor changes to the TS to correct damaged BWR spent fuel assemblies applicable requirements. inconsistencies and remove irrelevant and additional fuel types to the references. The environmental authorized contents of the NUHOMS– Agreement State Compatibility assessment (EA) and finding of no 61BT Dry Shielded Canister under a Under the ‘‘Policy Statement on significant impact on which this general license. In addition, the Adequacy and Compatibility of determination is based are available for amendment includes three minor Agreement State Programs’’ approved by inspection at the NRC Public Document changes to the TS to correct the Commission on June 30, 1997, and Room, 11555 Rockville Pike, Rockville, inconsistencies and remove irrelevant published in the Federal Register on MD. Single copies of the EA and finding references. September 3, 1997 (62 FR 46517), this of no significant impact are available The alternative to this action is to rule is classified as Compatibility from Jayne M. McCausland, Office of withhold approval of this amended cask Category ‘‘NRC.’’ Compatibility is not Nuclear Material Safety and Safeguards, system design and issue an exemption required for Category ‘‘NRC’’ U.S. Nuclear Regulatory Commission, to the general license for each utility regulations. The NRC program elements Washington, DC 20555–0001, telephone that decides to use the amended cask in this category are those that relate (301) 415–6219, email [email protected]. system design. This alternative would directly to areas of regulation reserved cost both the NRC and the utilities more to the NRC by the Atomic Energy Act of Paperwork Reduction Act Statement time and money because each utility 1954, as amended (AEA), or the This direct final rule does not contain would have to pursue an exemption. provisions of Title 10 of the Code of a new or amended information Approval of the direct final rule will Federal Regulations. Although an collection requirement subject to the eliminate this problem and is consistent Agreement State may not adopt program Paperwork Reduction Act of 1995 (44 with previous NRC actions. Further, the elements reserved to NRC, it may wish U.S.C. 3501 et seq.). Existing direct final rule will have no adverse to inform its licensees of certain requirements were approved by the effect on public health and safety. This requirements via a mechanism that is Office of Management and Budget, direct final rule has no significant consistent with the particular State’s Approval Number 3150–0132. identifiable impact or benefit on other administrative procedure laws, but does Government agencies. Based on this Public Protection Notification not confer regulatory authority on the discussion of the benefits and impacts State. The NRC may not conduct or sponsor, of the alternatives, the NRC concludes and a person is not required to respond that the requirements of the direct final Plain Language to, a request for information or an rule are commensurate with the NRC’s The Presidential Memorandum dated information collection requirement responsibilities for public health and June 1, 1998, entitled ‘‘Plain Language unless the requesting document safety and the common defense and in Government Writing,’’ directed that displays a currently valid OMB control security. No other available alternative the Government’s writing be in plain number. is believed to be as satisfactory, and language. The NRC requests comments thus, this action is recommended. Regulatory Analysis on this direct final rule specifically with Regulatory Flexibility Certification respect to the clarity and effectiveness On July 18, 1990 (55 FR 29181), the of the language used. Comments should NRC issued an amendment to 10 CFR In accordance with the Regulatory be sent to the address listed under the part 72 to provide for the storage of Flexibility Act of 1980 [5 U.S.C. 605(b)], heading ADDRESSES above. spent nuclear fuel under a general the NRC certifies that this rule will not, license in cask designs approved by the if issued, have a significant economic Finding of No Significant NRC. Any nuclear power reactor impact on a substantial number of small Environmental Impact: Availability licensee can use NRC-approved cask entities. This direct final rule affects Under the National Environmental designs to store spent nuclear fuel if it only the licensing and operation of Policy Act of 1969, as amended, and the notifies the NRC in advance, spent fuel nuclear power plants, independent NRC regulations in Subpart A of 10 CFR is stored under the conditions specified spent fuel storage facilities, and part 51, the NRC has determined that in the cask’s CoC, and the conditions of Transnuclear, Inc. The companies that this rule, if adopted, would not be a the general license are met. A list of own these plants do not fall within the major Federal action significantly NRC-approved cask designs is contained scope of the definition of ‘‘small affecting the quality of the human in § 72.214. On December 22, 1994 (59 entities’’ set forth in the Regulatory environment and, therefore, an FR 65920), the NRC issued an Flexibility Act or the Small Business environmental impact statement is not amendment to part 72 that approved the Size Standards set out in regulations

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issued by the Small Business Stat. 1330–232, 1330–236 (42 U.S.C. SUMMARY: The Commission is adopting Administration at 13 CFR part 121. 10162(b), 10168(c),(d)). Section 72.46 also an interim policy with respect to issued under sec. 189, 68 Stat. 955 (42 U.S.C. placing closed files on the public record Backfit Analysis 2239); sec. 134, Pub. L. 97–425, 96 Stat. 2230 in enforcement, administrative fines, The NRC has determined that the (42 U.S.C. 10154). Section 72.96(d) also and alternative dispute resolution cases. backfit rule (10 CFR 50.109 or 10 CFR issued under sec. 145(g), Pub. L. 100–203, 101 Stat. 1330–235 (42 U.S.C. 10165(g)). The categories of records that will be 72.62) does not apply to this direct final Subpart J also issued under secs. 2(2), 2(15), included in the public record are rule because this amendment does not 2(19), 117(a), 141(h), Pub. L. 97–425, 96 Stat. described below. This is an interim involve any provisions that would 2202, 2203, 2204, 2222, 2244 (42 U.S.C. policy only; the Commission will impose backfits as defined. Therefore, a 10101, 10137(a), 10161(h)). Subparts K and L conduct a rulemaking in this respect, backfit analysis is not required. are also issued under sec. 133, 98 Stat. 2230 with full opportunity for public (42 U.S.C. 10153) and sec. 218(a), 96 Stat. comment, in 2004. Small Business Regulatory Enforcement 2252 (42 U.S.C. 10198). Fairness Act EFFECTIVE DATE: January 1, 2004. ■ 2. In § 72.214, Certificate of FOR FURTHER INFORMATION CONTACT: In accordance with the Small Compliance 1004 is revised to read as Vincent J. Convery, Jr., Assistant Business Regulatory Enforcement follows: General Counsel, 999 E Street, NW., Fairness Act of 1996, the NRC has Washington, DC 20463, 202–694–1650 determined that this action is not a § 72.214 List of approved spent fuel or 1–800–424–9530. major rule and has verified this storage casks. SUPPLEMENTARY INFORMATION: determination with the Office of * * * * * The Information and Regulatory Affairs, Certificate Number: 1004. ‘‘confidentiality provision’’ of the Office of Management and Budget. Initial Certificate Effective Date: January Federal Election Campaign Act, 2 U.S.C. 23, 1995. 431 et seq., (FECA), provides that: ‘‘Any List of Subjects in 10 CFR Part 72 Amendment Number 1 Effective Date: notification or investigation under Administrative practice and April 27, 2000. [Section 437g] shall not be made public procedure, Criminal penalties, Amendment Number 2 Effective Date: by the Commission * * * without the Manpower training programs, Nuclear September 5, 2000. written consent of the person receiving Amendment Number 3 Effective Date: such notification or the person with materials, Occupational safety and September 12, 2001. health, Penalties, Radiation protection, Amendment Number 4 Effective Date: respect to whom such investigation is Reporting and recordkeeping February 12, 2002. made.’’ 2 U.S.C. 437g(a)(12)(A). For requirements, Security measures, Spent Amendment Number 5 Effective Date: approximately the first twenty-five years fuel, Whistleblowing. [Reserved]. of its existence, the Commission viewed Amendment Number 6 Effective Date: the confidentiality requirement as ■ For the reasons set out in the preamble December 22, 2003. ending with the termination of a case. and under the authority of the Atomic Amendment Number 7 Effective Date: The Commission placed on its public Energy Act of 1954, as amended; the March 2, 2004. record the documents that had been Energy Reorganization Act of 1974, as SAR Submitted by: Transnuclear, Inc. considered by the Commissioners in amended; and 5 U.S.C. 552 and 553; the SAR Title: Final Safety Analysis Report for  their determination of a case, minus NRC is adopting the following the Standardized NUHOMS Horizontal those materials exempt from disclosure amendments to 10 CFR part 72. Modular Storage System for Irradiated Nuclear Fuel. under the FECA or under the Freedom PART 72—LICENSING Docket Number: 72–1004. of Information Act, 5 U.S.C. 552, REQUIREMENTS FOR THE Certificate Expiration Date: January 23, (FOIA). See 11 CFR 5.4(a)(4). In AFL– INDEPENDENT STORAGE OF SPENT 2015. CIO v. FEC, 177 F.Supp.2d 48 (D.D.C. Model Number: Standardized NUHOMS– 2001), the district court disagreed with NUCLEAR FUEL, HIGH-LEVEL   24P, NUHOMS –52B, NUHOMS –61BT, the Commission’s interpretation of the RADIOACTIVE WASTE, AND NUHOMS–32PT, and NUHOMS –24PHB. REACTOR-RELATED WASTE confidentiality provision and found that GREATER THAN CLASS C WASTE * * * * * the protection of section 437g(a)(12)(A) does not lapse at the time the ■ 1. The authority citation for part 72 Dated at Rockville, Maryland, this 19th day of November, 2003. Commission terminates an continues to read as follows: investigation. 177 F.Supp.2d at 56. For the Nuclear Regulatory Commission. Authority: Secs. 51, 53, 57, 62, 63, 65, 69, Following that district court decision, 81, 161, 182, 183, 184, 186, 187, 189, 68 Stat. William F. Kane, the Commission placed on the public 929, 930, 932, 933, 934, 935, 948, 953, 954, Acting Executive Director for Operations. record only those documents that 955, as amended, sec. 234, 83 Stat. 444, as [FR Doc. 03–31207 Filed 12–17–03; 8:45 am] reflected the agency’s ‘‘final amended (42 U.S.C. 2071, 2073, 2077, 2092, BILLING CODE 7590–01–P determination’’ with respect to 2093, 2095, 2099, 2111, 2201, 2232, 2233, enforcement matters. Such disclosure is 2234, 2236, 2237, 2238, 2282); sec. 274, Pub. L. 86–373, 73 Stat. 688, as amended (42 required under section 437g(a)(4)(B)(ii) U.S.C. 2021); sec. 201, as amended, 202, 206, FEDERAL ELECTION COMMISSION of the FECA and section (a)(2)(A) of the 88 Stat. 1242, as amended, 1244, 1246 (42 FOIA. In all cases, the final U.S.C. 5841, 5842, 5846); Pub. L. 95–601, sec. 11 CFR Parts 4 and 111 determination is evidenced by a 10, 92 Stat. 2951 as amended by Pub. L. 102– certification of Commission vote. The 486, sec. 7902, 106 Stat. 3123 (42 U.S.C. [Notice 2003–25] Commission also continued to disclose 5851); sec. 102, Pub. L. 91–190, 83 Stat. 853 documents that explained the basis for (42 U.S.C. 4332); secs. 131, 132, 133, 135, Statement of Policy Regarding the final determination. Depending 137, 141, Pub. L. 97–425, 96 Stat. 2229, 2230, Disclosure of Closed Enforcement and upon the nature of the case, those 2232, 2241, sec. 148, Pub. L. 100–203, 101 Related Files Stat. 1330–235 (42 U.S.C. 10151, 10152, documents consisted of General 10153, 10155, 10157, 10161, 10168). AGENCY: Federal Election Commission. Counsel’s Reports (frequently in redacted form); Probable Cause to Section 72.44(g) also issued under secs. ACTION: Statement of policy. 142(b) and 148(c), (d), Pub. L. 100–203, 101 Believe Briefs; conciliation agreements;

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Statements of Reasons issued by one or documents that the Commission intends attached to, a document specifically more of the Commissioners; or, a to disclose either do not implicate the subject to release under this interim combination of the foregoing. The Court’s concerns, e.g., categories 8, 9 practice, that document or record will district court indicated that the and 10, or, because they play a critical be disclosed if it is, or was, otherwise Commission was free to release these role in the resolution of a matter, the publicly available. categories of documents. See 177 balance tilts decidedly in favor of public The Commission will place F.Supp.2d at 54 n.11. In administrative disclosure, even if the documents reveal documents on the public record in all fines cases, the Commission began some confidential information. cases that are closed, regardless of the placing on the public record only the With respect to enforcement matters, outcome. By doing so, the Commission Final Determination Recommendation the Commission will place the following complies with the requirements of 2 and certification of vote on final categories of documents on the public U.S.C. 437g(a)(4)(B)(ii) and 5 U.S.C. determination. In alternative dispute record: 552(a)(2)(A). Conciliation Agreements resolution cases, the public record 1. Complaint or internal agency are placed on the public record consisted of the certification of vote and referral; pursuant to 2 U.S.C. 437g(a)(4)(B)(ii). the negotiated agreement. 2. Response to complaint; The Commission will place these Although it affirmed the judgment of 3. General Counsel’s Reports that documents on the public record as soon the district court in AFL–CIO, the Court recommend dismissal, reason to believe, as practicable, and will endeavor to do of Appeals for the District of Columbia no reason to believe, no action at this so within thirty days of the date on Circuit differed with the lower court’s time, probable cause to believe, no which notifications are sent to restrictive interpretation of the probable cause to believe, no further complainant and respondent. See 11 confidentiality provision of 2 U.S.C. action, or acceptance of a conciliation CFR 111.20(a). In the event a Statement 437g(a)(12)(A). The Court of Appeals agreement; of Reasons is required, but has not been stated that: ‘‘the Commission may well 4. Notification of reason to believe issued before the date proposed for the be correct that * * * Congress merely findings (including Factual and Legal release the remainder of the documents intended to prevent disclosure of the Analysis); in a matter, those documents will be fact that an investigation is pending,’’ 5. Respondent’s response to reason to placed on the public record and the and that: ‘‘deterring future violations believe findings; Statement of Reasons will be added to and promoting Commission 6. Briefs (General Counsel’s Brief and the file when issued. accountability may well justify releasing Respondent’s Brief); With respect to administrative fines more information than the minimum 7. Statements of Reasons; cases, the Commission will place the disclosures required by section 8. Conciliation Agreements; entire administrative file on the public 437g(a).’’ See AFL–CIO v. FEC, 333 F.3d 9. Evidence of payment of civil record, which includes the following: 168 (D.C. Cir. 2003) at 174, 179. penalty or of disgorgement; and 1. Reason to Believe recommendation; However, the Court of Appeals warned 10. Certifications of Commission 2. Respondent’s response; that, in releasing enforcement votes. 3. Reviewing Officer’s memoranda to information to the public, the In addition, the Commission will the Commission; Commission must ‘‘attempt to avoid make certain other documents available 4. Final Determination unnecessarily infringing on First which will assist the public in recommendation; Amendment interests where it regularly understanding the record without 5. Certifications of Commission votes; subpoenas materials of a ‘delicate nature intruding upon the associational 6. Statements of Reasons; * * * represent[ing] the very heart of interests of the respondents. These are: 7. Evidence of payment of fine; and the organism which the first amendment 1. Designations of counsel; 8. Referral to Department of the was intended to nurture and protect.’’’ 2. Requests for extensions of time; Treasury. Id. at 179. (Citation omitted). The 3. Responses to requests for With respect to alternative dispute decision suggested that, with respect to extensions of time; and resolution (ADR) cases, the Commission materials of this nature, a ‘‘balancing’’ of 4. Closeout letters. will place the following categories of competing interests is required—on one The Commission is placing the documents on the public record: hand, consideration of the foregoing categories of documents on 1. Complaint or internal agency Commission’s interest in promoting its the public record in all matters it closes referral; own accountability and in deterring on or after January 1, 2004. 2. Response to complaint; future violations and, on the other, The Commission is not placing on the 3. ADR Office’s case analysis report to consideration of the respondent’s public record certain other materials the Commission; interest in the privacy of association and from its investigative files, such as 4. Notification to respondent that case belief guaranteed by the First subpoenaed records, deposition has been assigned to ADR; Amendment. Noting that the transcripts, and other records produced 5. Letter or Commitment Form from Commission had failed to tailor its in discovery, even if those evidentiary respondent participating in the ADR disclosure policy to avoid unnecessarily documents are referenced in, or program; burdening the First Amendment rights attached to, documents specifically 6. ADR Office recommendation as to of the political organizations it subject to release under this interim settlement; investigates, id. at 178, the Court found practice. Release of these underlying 7. Certifications of Commission votes; the agency’s disclosure regulation at 11 evidentiary documents may require a 8. Negotiated settlement agreement; CFR 5.4(a)(4) to be impermissible. Id. at closer balancing of the competing and 179. interests cited by the D.C. Circuit. 9. Evidence of compliance with terms The Commission is issuing this Accordingly, the Commission will of settlement. interim policy statement to identify consider the appropriateness of When disclosing documents in several categories of documents integral disclosing these materials only after a administrative fines and alternative to its decisionmaking process that will full rulemaking with the opportunity for dispute resolution cases, the be disclosed upon termination of an public comment. However, if a Commission will release publicly enforcement matter. The categories of document or record is referenced in, or available records that are referenced in,

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or attached to, documents specifically and includes an optional terminating Conclusion subject to release under this interim action for the repetitive inspections. The The FAA has determined that air practice. actions specified by this AD are safety and the public interest require the With this interim policy, the intended to prevent failure of the engine adoption of the rule as proposed. Commission intends to provide rear mount struts, which could result in guidance to outside counsel, the news reduced structural integrity of the Cost Impact media, and others seeking to understand nacelle and engine support structure. There are approximately 192 the Commission’s disposition of This action is intended to address the airplanes of U.S. registry that will be enforcement, administrative fines, and identified unsafe conditions. affected by this AD. alternative dispute resolution cases and, DATES: Effective January 22, 2004. The actions that are currently thus, to enhance their ability to assess The incorporation by reference of required by AD 94–04–09 take particular matters in light of past certain publications listed in the approximately 16 work hours per decisions. In all matters, the regulations is approved by the Director airplane to accomplish, at an average Commission will continue to redact of the Federal Register as of January 22, labor rate of $65 per work hour. information that is exempt from 2004. Required parts are provided by the disclosure under the FECA and the ADDRESSES: The service information manufacturer at no cost to the operators. FOIA. referenced in this AD may be obtained Based on these figures, the cost impact As discussed above, the Commission from Bombardier, Inc., Bombardier of the currently required actions is hereby is announcing an interim policy. Regional Aircraft Division, 123 Garratt estimated to be $1,040 per airplane. A rulemaking, with full opportunity for Boulevard, Downsview, Ontario M3K The new detailed inspection that is public comment, will be initiated in 1Y5, Canada. This information may be required in this AD action takes 2004. examined at the Federal Aviation approximately 1 work hour per airplane Dated: December 12, 2003. Administration (FAA), Transport to accomplish, at an average labor rate Ellen L. Weintraub, Airplane Directorate, Rules Docket, of $65 per work hour. Based on these Chair, Federal Election Commission. 1601 Lind Avenue, SW., Renton, figures, the cost impact of the required [FR Doc. 03–31241 Filed 12–17–03; 8:45 am] Washington; or at the FAA, New York inspection on U.S. operators is BILLING CODE 6715–01–P Aircraft Certification Office, 10 Fifth estimated to be $12,480, or $65 per Street, Third Floor, Valley Stream, New airplane, per inspection cycle. York; or at the Office of the Federal The cost impact figures discussed DEPARTMENT OF TRANSPORTATION Register, 800 North Capitol Street, NW., above are based on assumptions that no suite 700, Washington, DC. operator has yet accomplished any of Federal Aviation Administration FOR FURTHER INFORMATION CONTACT: Jon the requirements of this AD action, and Hjelm, Aerospace Engineer, Airframe that no operator would accomplish 14 CFR Part 39 Branch, ANE–171, FAA, New York those actions in the future if this AD Aircraft Certification Office, 10 Fifth were not adopted. The cost impact [Docket No. 2001–NM–266–AD; Amendment 39–13388; AD 2003–25–05] Street, Third Floor, Valley Stream, New figures discussed in AD rulemaking York 11581; telephone (516) 256–7523; actions represent only the time RIN 2120–AA64 fax (516) 568–2716. necessary to perform the specific actions SUPPLEMENTARY INFORMATION: A actually required by the AD. These Airworthiness Directives; Bombardier proposal to amend part 39 of the Federal figures typically do not include Model DHC–8–102, –103, –106, –201, Aviation Regulations (14 CFR part 39) incidental costs, such as the time –202, –301, –311, and –315 Airplanes by superseding AD 94–04–09, required to gain access and close up, AGENCY: Federal Aviation amendment 39–8829 (59 FR 8393, planning time, or time necessitated by Administration, DOT. February 22, 1994), which is applicable other administrative actions. ACTION: Final rule. to certain Bombardier Model DHC–8– The optional terminating action, if 100 and DHC–8–300 airplanes, was done, will take approximately 16 work SUMMARY: This amendment supersedes published in the Federal Register on hours per strut to accomplish, at an an existing airworthiness directive (AD), October 9, 2003 (68 FR 58283). The average labor rate of $65 per work hour. applicable to certain Bombardier DHC– action proposed to require new Required parts will cost aproxiamately 8–102, –103, –106, –201, –202, –301, repetitive inspections of the strut $800 per strut. Based on these figures, –311, and –315 airplanes, that currently assemblies for cracking of struts the cost impact of the optional requires inspections to detect breakage replaced per the existing AD, and terminating action is estimated to be in the struts of the rear mount strut replacement of any cracked strut with a $1,840 per strut, per airplane. assemblies on the left and right engine new, machined strut. The action also Regulatory Impact nacelles, and replacement of any broken proposed to change the applicability of struts. The existing AD also requires the existing AD by adding certain The regulations adopted herein will eventual replacement of all currently airplanes and removing certain other not have a substantial direct effect on installed struts with new and/or airplanes, and proposed to include an the States, on the relationship between reworked struts, as terminating action optional terminating action for the the national Government and the States, for the inspections. The amendment repetitive inspections. or on the distribution of power and requires new repetitive inspections of responsibilities among the various the strut assemblies for cracking of Comments levels of government. Therefore, it is struts replaced per the existing AD, and Interested persons have been afforded determined that this final rule does not replacement of any cracked strut with a an opportunity to participate in the have federalism implications under new, machined strut. The amendment making of this amendment. No Executive Order 13132. also changes the applicability of the comments were submitted in response For the reasons discussed above, I existing AD by adding certain airplanes to the proposal or the FAA’s certify that this action (1) is not a and removing certain other airplanes, determination of the cost to the public. ‘‘significant regulatory action’’ under

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Executive Order 12866; (2) is not a AD; however, the definition of a detailed Effective Date ‘‘significant rule’’ under DOT inspection is specified in Note 2 of this AD. (f) This amendment becomes effective on Regulatory Policies and Procedures (44 Note 2: For the purposes of this AD, a January 22, 2004. FR 11034, February 26, 1979); and (3) detailed inspection is defined as: ‘‘An Issued in Renton, Washington, on will not have a significant economic intensive visual examination of a specific December 5, 2003. structural area, system, installation, or impact, positive or negative, on a Kalene C. Yanamura, assembly to detect damage, failure, or substantial number of small entities Acting Manager, Transport Airplane under the criteria of the Regulatory irregularity. Available lighting is normally supplemented with a direct source of good Directorate, Aircraft Certification Service. Flexibility Act. A final evaluation has [FR Doc. 03–31058 Filed 12–17–03; 8:45 am] been prepared for this action and it is lighting at intensity deemed appropriate by the inspector. Inspection aids such as mirror, BILLING CODE 4910–13–M contained in the Rules Docket. A copy magnifying lenses, etc., may be used. Surface of it may be obtained from the Rules cleaning and elaborate access procedures Docket at the location provided under may be required.’’ DEPARTMENT OF TRANSPORTATION the caption ADDRESSES. (1) If no crack is found, repeat the List of Subjects in CFR Part 39 inspection at intervals not to exceed 250 Federal Aviation Administration flight hours, until accomplishment of Air transportation, Aircraft, Aviation paragraph (b) of this AD. 14 CFR Part 39 safety, Incorporation by reference, (2) If any crack is found, before further Safety. flight, replace the strut with a new, improved [Docket No. 2002–NM–137–AD; Amendment 39–13389; AD 2003–25–06] Adoption of the Amendment strut per Bombardier Service Bulletin 8–71– 24, dated August 21, 2001. Repeat the ■ Accordingly, pursuant to the authority inspection thereafter at intervals not to RIN 2120–AA64 exceed 50 flight hours, for that nacelle only. delegated to me by the Administrator, Airworthiness Directives; Airbus Model the Federal Aviation Administration Optional Terminating Action A300 B4–622R and A300 F4–622R amends part 39 of the Federal Aviation (b) Replacement of both rear mount struts Airplanes, and Model A310–324 and Regulations (14 CFR part 39) as follows: in a nacelle with new, improved struts, by –325 Series Airplanes doing all the actions specified in the Job Set- PART 39—AIRWORTHINESS up, Procedure, and Close-out sections of the AGENCY: Federal Aviation DIRECTIVES Accomplishment Instructions of Bombardier Administration, DOT. ■ 1. The authority citation for part 39 Service Bulletin 8–71–24, dated August 21, ACTION: Final rule. continues to read as follows: 2001, ends the repetitive inspections required by this AD for that nacelle only. SUMMARY: This amendment adopts a Authority: 49 U.S.C. 106(g), 40113, 44701. Replacement of both rear mount struts on new airworthiness directive (AD), both the left and right engine nacelles ends § 39.13 [Amended] applicable to certain Airbus Model the repetitive inspections required by this A300 B4–622R and A300 F4–622R ■ 2. Section 39.13 is amended by AD. airplanes, and Model A310–324 and removing amendment 39–8829 (59 FR Parts Installation –325 series airplanes, that are equipped 8393, February 22, 1994), and by adding with Pratt & Whitney PW4000 series a new airworthiness directive (AD), (c) As of the effective date of this AD, no person shall install an engine rear mount engines. This AD requires replacement amendment 39–13388, to read as strut, P/N 87110016–001, –003, –005, –007, of the existing flexible hose assembly follows: –009, or –011, on any airplane. that connects the oil pressure 2003–25–05 Bombardier, Inc. (Formerly de transmitter to the main oil circuit, with Alternative Methods of Compliance Havilland, Inc.): Amendment 39–13388. a new improved tube assembly. This Docket 2001–NM–266–AD. Supersedes In accordance with 14 CFR 39.19, the action is necessary to prevent failure of AD 94–04–09, Amendment 39–8829. Manager, New York Aircraft Certification the oil pressure indicator and low-oil- Office, FAA, is authorized to approve Applicability: Model DHC–8–102, –103, pressure warning in the event of an –106, –201, –202, –301, –311, and –315 alternative methods of compliance for this AD. engine fire, which could result in an airplanes; serial numbers 003 through 509 unannounced shutdown of the engine. inclusive; certificated in any category. Incorporation by Reference Compliance: Required as indicated, unless This action is intended to address the accomplished previously. (e) Unless otherwise provided in this AD, identified unsafe condition. To prevent failure of the engine rear mount the actions shall be done in accordance with DATES: Effective January 22, 2004. struts on the left and right engine nacelles, Bombardier Service Bulletin 8–71–24, dated The incorporation by reference of which could result in reduced structural August 21, 2001. This incorporation by certain publications listed in the reference was approved by the Director of the integrity of the nacelle and engine support regulations is approved by the Director structure, accomplish the following: Federal Register in accordance with 5 U.S.C. 522(a) and 1 CFR part 51. Copies may be of the Federal Register as of January 22, Repetitive Inspections obtained from Bombardier, Inc., Bombardier 2004. (a) Within 1,000 flight hours since Regional Aircraft Division, 123 Garratt ADDRESSES: The service information installation of any new or reworked rear Boulevard, Downsview, Ontario M3K 1Y5, referenced in this AD may be obtained mount strut per the replacement required by Canada. Copies may be inspected at the FAA, from Airbus Industrie, 1 Rond Point paragraph (b) of AD 94–04–09, amendment Transport Airplane Directorate, 1601 Lind Maurice Bellonte, 31707 Blagnac Cedex, Avenue, SW., Renton, Washington; or at the 39–8829, or within 250 flight hours after the France. This information may be effective date of this AD, whichever is later; FAA, New York Aircraft Certification Office, do a detailed inspection for cracking of each 10 Fifth Street, Third Floor, Valley Stream, examined at the Federal Aviation rear mount strut in the left and right engine New York; or at the Office of the Federal Administration (FAA), Transport nacelles. Register, 800 North Capitol Street, NW., suite Airplane Directorate, Rules Docket, Note 1: Bombardier Service Bulletin 8–71– 700, Washington, DC. 1601 Lind Avenue, SW., Renton, 24, dated August 21, 2001, does not contain Note 3: The subject of this AD is addressed Washington; or at the Office of the inspection procedures for the detailed in Canadian airworthiness directive CF– Federal Register, 800 North Capitol inspection required by paragraph (a) of this 2001–20, dated May 16, 2001. Street, NW., suite 700, Washington, DC.

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FOR FURTHER INFORMATION CONTACT: Regulatory Impact Replacement Todd Thompson, Aerospace Engineer, (a) Within 8 months after the effective date International Branch, ANM–116, FAA, The regulations adopted herein will not have a substantial direct effect on of this AD, replace the existing flexible hose Transport Airplane Directorate, 1601 assembly, part number (P/N) 113286, that Lind Avenue, SW., Renton, Washington the States, on the relationship between the national Government and the States, connects the oil pressure transmitter to the 98055–4056; telephone (425) 227–1175; main oil circuit, with a new improved tube or on the distribution of power and fax (425) 227–1149. assembly, P/N 221–5318–501. Before further responsibilities among the various SUPPLEMENTARY INFORMATION: A flight after the replacement, perform a test of levels of government. Therefore, it is proposal to amend part 39 of the Federal the engine oil system. Do these actions determined that this final rule does not Aviation Regulations (14 CFR part 39) to according to the Accomplishment have federalism implications under include an airworthiness directive (AD) Instructions of the service bulletin specified that is applicable to certain Airbus Executive Order 13132. in paragraph (a)(1) or (a)(2) of this AD, as Model A300 B4–622R and A300 F4– For the reasons discussed above, I applicable. 622R airplanes, and Model A310–324 certify that this action (1) is not a (1) For Model A300 B4–622R and A300 and –325 series airplanes, that are ‘‘significant regulatory action’’ under F4–622R airplanes: Airbus Service Bulletin equipped with Pratt & Whitney PW4000 Executive Order 12866; (2) is not a A300–79–6003, dated January 31, 2002. series engines, was published in the ‘‘significant rule’’ under DOT (2) For Model A310–324 and –325 series Federal Register on September 19, 2003 Regulatory Policies and Procedures (44 airplanes: Airbus Service Bulletin A310–79– (68 FR 54872). That action proposed to FR 11034, February 26, 1979); and (3) 2004, dated January 31, 2002. require replacement of the existing will not have a significant economic Note 1: Airbus Service Bulletins A300–79– flexible hose assembly that connects the impact, positive or negative, on a 6003 and A310–79–2004 refer to Pratt & oil pressure transmitter to the main oil substantial number of small entities Whitney Alert Service Bulletin PW4NAC circuit, with a new improved tube under the criteria of the Regulatory A79–21, dated October 15, 2001, as an assembly. Flexibility Act. A final evaluation has additional source of service information for been prepared for this action and it is the replacement required by this AD. Comments contained in the Rules Docket. A copy Interested persons have been afforded of it may be obtained from the Rules Alternative Methods of Compliance an opportunity to participate in the Docket at the location provided under (b) In accordance with 14 CFR 39.19, the making of this amendment. Due the caption ADDRESSES. Manager, International Branch, ANM–116, consideration has been given to the List of Subjects in 14 CFR Part 39 FAA, Transport Airplane Directorate, is single comment received. The authorized to approve alternative methods of commenter has no objection to the Air transportation, Aircraft, Aviation compliance for this AD. proposed AD. safety, Incorporation by reference, Incorporation by Reference Safety. Conclusion (c) The actions shall be done in accordance After careful review of the available Adoption of the Amendment with Airbus Service Bulletin A300–79–6003, data, including the comment noted dated January 31, 2002; or Airbus Service ■ above, the FAA has determined that air Accordingly, pursuant to the authority Bulletin A310–79–2004, dated January 31, safety and the public interest require the delegated to me by the Administrator, 2002; as applicable. This incorporation by adoption of the rule as proposed. the Federal Aviation Administration reference was approved by the Director of the amends part 39 of the Federal Aviation Federal Register in accordance with 5 U.S.C. Cost Impact Regulations (14 CFR part 39) as follows: 552(a) and 1 CFR part 51. Copies may be The FAA estimates that 139 airplanes obtained from Airbus Industrie, 1 Rond Point PART 39—AIRWORTHINESS of U.S. registry will be affected by this Maurice Bellonte, 31707 Blagnac Cedex, DIRECTIVES AD, that it will take approximately 10 France. Copies may be inspected at the FAA, work hours per airplane to accomplish ■ 1. The authority citation for part 39 Transport Airplane Directorate, 1601 Lind the required actions, and that the continues to read as follows: Avenue, SW., Renton, Washington; or at the average labor rate is $65 per work hour. Office of the Federal Register, 800 North Required parts will be provided by the Authority: 49 U.S.C. 106(g), 40113, 44701. Capitol Street, NW., suite 700, Washington, manufacturer at no charge. Based on § 39.13 [Amended] DC. these figures, the cost impact of this AD Note 2: The subject of this AD is addressed on U.S. operators is estimated to be ■ 2. Section 39.13 is amended by adding in French airworthiness directive 2002– $90,350, or $650 per airplane. the following new airworthiness 173(B), dated April 3, 2002. The cost impact figure discussed directive: Effective Date above is based on assumptions that no 2003–25–06 Airbus: Amendment 39–13389. operator has yet accomplished any of Docket 2002–NM–137–AD. (d) This amendment becomes effective on the requirements of this AD action, and Applicability: Model A300 B4–622R and January 22, 2004. that no operator would accomplish A300 F4–622R airplanes, and Model A310– Issued in Renton, Washington, on those actions in the future if this AD 324 and –325 series airplanes, equipped with December 5, 2003. were not adopted. The cost impact Pratt & Whitney PW4000 series engines; figures discussed in AD rulemaking certificated in any category; except those on Kalene C. Yanamura, actions represent only the time which Airbus Modification 12468 has been Acting Manager, Transport Airplane necessary to perform the specific actions accomplished in production. Directorate, Aircraft Certification Service. actually required by the AD. These Compliance: Required as indicated, unless [FR Doc. 03–31059 Filed 12–17–03; 8:45 am] accomplished previously. figures typically do not include To prevent failure of the oil pressure BILLING CODE 4910–13–P incidental costs, such as the time indicator and low-oil-pressure warning in the required to gain access and close up, event of an engine fire, which could result in planning time, or time necessitated by an unannounced shutdown of the engine, other administrative actions. accomplish the following:

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DEPARTMENT OF TRANSPORTATION amendment 39–12203 (66 FR 20912, Regulatory Impact April 26, 2001), which is applicable to The regulations adopted herein will Federal Aviation Administration certain Airbus Model A319 and A320 not have a substantial direct effect on series airplanes, was published in the the States, on the relationship between 14 CFR Part 39 Federal Register on September 18, 2003 the national Government and the States, [Docket No. 2002–NM–57–AD; Amendment (68 FR 54691). The action proposed to or on the distribution of power and 39–13390; AD 2003–25–07] require revising the airplane flight responsibilities among the various manual to specify procedures for RIN 2120–AA64 levels of government. Therefore, it is landing under certain conditions of determined that this final rule does not Airworthiness Directives; Airbus Model gusty winds and turbulence. The action have federalism implications under A319 and A320 Series Airplanes also proposed to require replacement of Executive Order 13132. Equipped With Elevator and Aileron both Elevator and Aileron Computers For the reasons discussed above, I Computer (ELAC) L80 Standard (ELACs) having L80 standards with new certify that this action (1) is not a ELACs having L81 standards, which ‘‘significant regulatory action’’ under AGENCY: Federal Aviation would terminate the requirements of the Executive Order 12866; (2) is not a Administration, DOT. existing AD. ‘‘significant rule’’ under DOT ACTION: Final rule. Comments Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) SUMMARY: This amendment supersedes Interested persons have been afforded will not have a significant economic an existing airworthiness directive (AD), an opportunity to participate in the applicable to certain Airbus Model impact, positive or negative, on a making of this amendment. No substantial number of small entities A319 and A320 series airplanes, that comments were submitted in response currently requires revising the airplane under the criteria of the Regulatory to the proposal or the FAA’s Flexibility Act. A final evaluation has flight manual to specify procedures for determination of the cost to the public. landing under certain conditions of been prepared for this action and it is gusty winds and turbulence. This Conclusion contained in the Rules Docket. A copy of it may be obtained from the Rules amendment requires replacement of The FAA has determined that air both Elevator and Aileron Computers Docket at the location provided under safety and the public interest require the the caption ADDRESSES. (ELACs) having L80 standards with new adoption of the rule as proposed. ELACs having L81 standards, which List of Subjects in 14 CFR Part 39 terminates the requirements of the Cost Impact Air transportation, Aircraft, Aviation existing AD. The actions specified by There are approximately 350 safety, Incorporation by reference, this AD are intended to prevent airplanes of U.S. registry that will be Safety. activation of the high angle-of-attack affected by this AD. protection during final approach for The AFM revision currently required Adoption of the Amendment landing, which could result in loss of by AD 2001–08–26 takes approximately ■ ability to flare properly during landings. Accordingly, pursuant to the authority 1 work hour per airplane to accomplish, delegated to me by the Administrator, This action is intended to address the at an average labor rate of $65 per work identified unsafe condition. the Federal Aviation Administration hour. Based on these figures, the cost amends part 39 of the Federal Aviation DATES: Effective January 22, 2004. impact of the currently required actions Regulations (14 CFR part 39) as follows: The incorporation by reference of on U.S. operators is estimated to be certain publications listed in the $22,750, or $65 per airplane. PART 39—AIRWORTHINESS regulations is approved by the Director The new replacement required in this DIRECTIVES of the Federal Register as of January 22, AD action takes approximately 1 work ■ 2004. hour per airplane to accomplish, at an 1. The authority citation for part 39 ADDRESSES: The service information average labor rate of $65 per work hour. continues to read as follows: referenced in this AD may be obtained Required parts will be provided by the Authority: 49 U.S.C. 106(g), 40113, 44701. from Airbus Industrie, 1 Rond Point manufacturer at no cost to operators. § 39.13 [Amended] Maurice Bellonte, 31707 Blagnac Cedex, Based on these figures, the cost impact France. This information may be of the replacement on U.S. operators is ■ 2. Section 39.13 is amended by examined at the Federal Aviation estimated to be $22,750, or $65 per removing amendment 39–12203 (66 FR Administration (FAA), Transport airplane. 20912, April 26, 2001), and by adding a Airplane Directorate, Rules Docket, The cost impact figures discussed new airworthiness directive (AD), 1601 Lind Avenue, SW., Renton, above are based on assumptions that no amendment 39–13390, to read as Washington; or at the Office of the operator has yet accomplished any of follows: Federal Register, 800 North Capitol the requirements of this AD action, and 2003–25–07 Airbus: Amendment 39–13390. Street, NW., suite 700, Washington, DC. that no operator would accomplish Docket 2002–NM–57–AD. Supersedes FOR FURTHER INFORMATION CONTACT: Tim those actions in the future if this AD AD 2001–08–26, Amendment 39–12203. Dulin, Aerospace Engineer, were not adopted. The cost impact Applicability: Model A319 and A320 series International Branch, ANM–116, FAA, figures discussed in AD rulemaking airplanes; certificated in any category; Transport Airplane Directorate, 1601 actions represent only the time equipped with Elevator and Aileron Lind Avenue, SW., Renton, Washington necessary to perform the specific actions Computer (ELAC) L80 Standard having part 98055–4056; telephone (425) 227–2141; actually required by the AD. These numbers listed in Airbus Service Bulletin fax (425) 227–1149. A320–27–1135, dated June 29, 2001. figures typically do not include Compliance: Required as indicated, unless SUPPLEMENTARY INFORMATION: A incidental costs, such as the time accomplished previously. proposal to amend part 39 of the Federal required to gain access and close up, To prevent activation of the high angle-of- Aviation Regulations (14 CFR part 39) planning time, or time necessitated by attack protection during final approach for by superseding AD 2001–08–26, other administrative actions. landing, which could result in loss of the

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ability to flare properly during landings, Airbus Service Bulletin A320–27–1135, from Boeing Commercial Airplane accomplish the following: dated June 29, 2001. This incorporation by Group, P.O. Box 3707, Seattle, reference was approved by the Director of the Restatement of Requirements of AD 2001– Washington 98124–2207. This Federal Register in accordance with 5 U.S.C. 08–26 information may be examined at the 552(a) and 1 CFR part 51. Copies may be Federal Aviation Administration (FAA), Revision of Airplane Flight Manual (AFM) obtained from Airbus Industrie, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, Transport Airplane Directorate, Rules (a) Within 10 days after May 11, 2001 (the Docket, 1601 Lind Avenue, SW., effective date of AD 2001–08–26, amendment France. Copies may be inspected at the FAA, 39–12203): Revise the Limitations Section of Transport Airplane Directorate, 1601 Lind Renton, Washington; or at the Office of the AFM to incorporate the following Avenue, SW., Renton, Washington; or at the the Federal Register, 800 North Capitol procedures. This may be accomplished by Office of the Federal Register, 800 North Street, NW., suite 700, Washington, DC. Capitol Street, NW., suite 700, Washington, inserting a copy of this AD into the AFM. FOR FURTHER INFORMATION CONTACT: John DC. This action is required until accomplishment Vann, Aerospace Engineer, Propulsion of paragraph (b) of this AD. Note 1: The subject of this AD is addressed Branch, ANM–140S, FAA, Seattle in French airworthiness directive 2001– ‘‘FOR APPROACH TO RUNWAYS WITH Aircraft Certification Office, 1601 Lind KNOWN GUSTY ENVIRONMENT, 508(B), dated October 17, 2001. ESPECIALLY IF THESE CONDITIONS Avenue, SW., Renton, Washington GENERATE VERTICAL GUSTS DUE TO Effective Date 98055–4056; telephone (425) 917–6513; THE SURROUNDING TERRAIN, OR (f) This amendment becomes effective on fax (425) 917–6590. —REPORTED GUST WIND INCREMENT January 22, 2004. SUPPLEMENTARY INFORMATION: A (MAX. WIND MINUS AVERAGE WIND) Issued in Renton, Washington, on proposal to amend part 39 of the Federal HIGHER THAN 10 KT, OR December 5, 2003. Aviation Regulations (14 CFR part 39) to —EXPECTED MODERATE TO SEVERE TURBULENCE ON SHORT FINAL, Kalene C. Yanamura, include an airworthiness directive (AD) THE FLIGHT CREW SHOULD STRICTLY Acting Manager, Transport Airplane that is applicable to Boeing Model 777– ADHERE TO THE FOLLOWING Directorate, Aircraft Certification Service. 200 and 777–300 series airplanes was PROCEDURE: [FR Doc. 03–31060 Filed 12–17–03; 8:45 am] published in the Federal Register on —USE CONF 3 FOR APPROACH AND BILLING CODE 4910–13–P November 18, 2002 (67 FR 69493). That LANDING, action proposed to require application —MINIMUM VAPP IS VLS + 10 KT; THE of high-temperature sealant to the strut RECOMMENDATION TO USE DEPARTMENT OF TRANSPORTATION aft dry bay. MANAGED SPEED REMAINS VALID, —CORRECT THE LANDING DISTANCE Comments FOR THE SPEED INCREMENT, Federal Aviation Administration —IF ‘‘SINK RATE’’ GPWS WARNING Interested persons have been afforded OCCURS BELOW 200 FT, 14 CFR Part 39 an opportunity to participate in the IMMEDIATELY INITIATE A GO making of this amendment. Due AROUND.’’ [Docket No. 2001–NM–295–AD; Amendment consideration has been given to the 39–13385; AD 2003–25–02] New Requirements of This AD comments received. RIN 2120–AA64 Replacement Add Inspection To Determine Whether Sealant Was Applied During (b) Within 1 year after the effective date of Airworthiness Directives; Boeing this AD: Replace both Elevator and Aileron Model 777–200 and 777–300 Series Production Computers (ELACs) having L80 standards Airplanes Several commenters stated that, in with new ELACs having L81 standards, by some of the airplanes on the effectivity doing all the actions per paragraphs A., B., AGENCY: Federal Aviation list of Boeing Alert Service Bulletin C., and D. of the Accomplishment Administration, DOT. Instructions of Airbus Service Bulletin A320– 777–54A0016, dated January 25, 2001, 27–1135, dated June 29, 2001. ACTION: Final rule. (referenced in the proposed rule as the Accomplishment of this replacement ends appropriate service bulletin), high- SUMMARY: the requirements in paragraph (a) of this AD. This amendment adopts a temperature sealant had been applied to new airworthiness directive (AD), Part Installation the strut aft dry bay at the factory during applicable to certain Boeing Model 777– production with no signs of damage or (c) As of the effective date of this AD, no 200 and 777–300 series airplanes, that leakage. According to these person may install on any airplane an ELAC requires application of high-temperature commenters, The Boeing Company having a part number listed in the ‘‘Old Part sealant in designated areas of the strut Number’’ column in the table specified in confirmed that not all the airplanes on aft dry bay. The actions specified by this the effectivity list were delivered with paragraph 2.C., ‘‘List of Components,’’ of AD are intended to prevent leakage of Airbus Service Bulletin A320–27–1135, sealant missing from the designated dated June 29, 2001. hydraulic fluid into the strut aft dry bay, areas of the strut aft dry bay. The where high temperatures associated Alternative Methods of Compliance commenters request, therefore, that the with the adjacent primary exhaust AD (1) add an inspection of those areas (d)(1) In accordance with 14 CFR 39.19, the nozzle may ignite the fluid, resulting in to determine whether sealant had been Manager, International Branch, ANM–116, an uncontrolled fire in the strut aft dry FAA, Transport Airplane Directorate, is applied during production, and (2) bay. This action is intended to address require application of sealant only if authorized to approve alternative methods of the identified unsafe condition. compliance for this AD. had not been applied. (2) Alternative methods of compliance, DATES: Effective January 22, 2004. The FAA concurs with the approved previously per AD 2001–08–26, The incorporation by reference of commenters’ request. We requested and amendment 39–12203, are approved as certain publications listed in the subsequently approved a revision to the alternative methods of compliance with regulations is approved by the Director Boeing service bulletin. Service Bulletin paragraph (a) of this AD. of the Federal Register as of January 22, 777–54A0016, Revision 1, dated July 10, Incorporation by Reference 2004. 2003, adds an inspection for high- (e) Unless otherwise provided in this AD, ADDRESSES: The service information temperature sealant in the designated the actions shall be done in accordance with referenced in this AD may be obtained areas of the strut aft bay. If it is found

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that sealant has been properly applied at The cost impact figure discussed 2003–25–02 Boeing: Amendment 39–13385. each of the designated areas during above is based on assumptions that no Docket 2001–NM–295–AD. production, no further action is operator has yet accomplished any of Applicability: Model 777–200 and 777–300 required. If it is found that sealant is the requirements of this AD action, and series airplanes having line numbers 2 missing or damaged at any of the that no operator would accomplish through 297 inclusive, 299, and 300; designated areas, it must be applied. those actions in the future if this AD certificated in any category. Compliance: Required as indicated, unless Paragraphs (b)(1) and (b)(2) have been were not adopted. The cost impact accomplished previously. added to this AD to specify the figures discussed in AD rulemaking To prevent leakage of hydraulic fluid into appropriate action. actions represent only the time the strut aft dry bay, where high temperatures Conclusion necessary to perform the specific actions associated with the adjacent primary exhaust actually required by the AD. These nozzle may ignite the fluid, resulting in an After careful review of the available figures typically do not include uncontrolled fire in the strut aft dry bay; data, including the comments noted incidental costs, such as the time accomplish the following: above, the FAA has determined that air required to gain access and close up, Application of Sealant safety and the public interest require the planning time, or time necessitated by adoption of the rule with the changes (a) Within 1,000 flight hours after the other administrative actions. effective date of this AD: Except as provided previously described. In adding in paragraph (b) of this AD, apply high- paragraphs (b)(1) and (b)(2) to this AD, Regulatory Impact temperature sealant to designated areas in the we considered whether they would The regulations adopted herein will strut aft dry bay, in accordance with the increase the economic burden on any not have a substantial direct effect on Accomplishment Instruction of Boeing Alert operator or increase the scope of the AD. the States, on the relationship between Service Bulletin 777–54A0016, dated January Our conclusion is that, if paragraph the national Government and the States, 25, 2001; or with Revision 1, dated July 10, (b)(1) applies, it will be relieving; if or on the distribution of power and 2003. paragraph (b)(2) applies, it will be (b)(1) If, upon opening the strut aft fairing responsibilities among the various forward access panels in accordance with the neutral in its effect. Therefore, there is levels of government. Therefore, it is Accomplishment Instruction of Boeing Alert no need to provide additional determined that this final rule does not Service Bulletin 777–54A0016, dated January opportunity for public comment. have federalism implications under 25, 2001; or with Revision 1, dated July 10, Changes to 14 CFR Part 39/Effect on the Executive Order 13132. 2003; it is observed that high-temperature sealant has already been properly applied to AD For the reasons discussed above, I certify that this action (1) is not a each of the designated areas in the strut aft On July 10, 2002, the FAA issued a ‘‘significant regulatory action’’ under dry bay, no further action is required. new version of 14 CFR part 39 (67 FR (2) If, upon opening the strut aft fairing Executive Order 12866; (2) is not a forward access panels in accordance with the 47997, July 22, 2002), which governs the ‘‘significant rule’’ under DOT FAA’s airworthiness directives system. Accomplishment Instructions of Boeing Alert Regulatory Policies and Procedures (44 Service Bulletin 777–54A0016, dated January The regulation now includes material FR 11034, February 26, 1979); and (3) 25, 2001; or with Revision 1, dated July 10, that relates to altered products, special will not have a significant economic 2003; it is observed that high-temperature flight permits, and alternative methods impact, positive or negative, on a sealant has been improperly applied to any of compliance. However, for clarity and substantial number of small entities of the designated areas in the strut aft dry consistency in this final rule, we have under the criteria of the Regulatory bays, re-apply the sealant in each such area retained the language of the NPRM Flexibility Act. A final evaluation has in accordance with either of the service bulletins. regarding that material. been prepared for this action and it is Cost Impact contained in the Rules Docket. A copy Alternative Methods of Compliance of it may be obtained from the Rules (c) An alternative method of compliance or We have reviewed the figures we have Docket at the location provided under adjustment of the compliance time that used over the past several years to the caption ADDRESSES. provides an acceptable level of safety may be calculate AD costs to operators. To used if approved by the Manager, Seattle account for various inflationary costs in List of Subjects in 14 CFR Part 39 Aircraft Certification Office (ACO), FAA. the airline industry, we find it necessary Air transportation, Aircraft, Aviation Operators shall submit their requests through to increase the labor rate used in these safety, Incorporation by reference, an appropriate FAA Principal Maintenance Inspector, who may add comments and then calculations from $60 per work hour to Safety. $65 per work hour. The cost impact send it to the Manager, Seattle ACO. information, below, reflects this Adoption of the Amendment Note 1: Information concerning the existence of approved alternative methods of increase in the specified hourly labor ■ Accordingly, pursuant to the authority rate. compliance with this AD, if any, may be delegated to me by the Administrator, obtained from the Seattle ACO. There are approximately 298 Model the Federal Aviation Administration 777–200 and 777–300 series airplanes of amends part 39 of the Federal Aviation Special Flight Permits the affected design in the worldwide Regulations (14 CFR part 39) as follows: (d) Special flight permits may be issued in fleet. The FAA estimates that 95 accordance with sections 21.197 and 21.199 airplanes of U.S. registry will be affected PART 39—AIRWORTHINESS of the Federal Aviation Regulations (14 CFR by this AD, that it will take DIRECTIVES 21.197 and 21.199) to operate the airplane to approximately 4 work hours per a location where the requirements of this AD airplane to accomplish the required ■ 1. The authority citation for part 39 can be accomplished. continues to read as follows: actions, and that the average labor rate Incorporation by Reference is $65 per work hour. Required parts Authority: 49 U.S.C. 106(g), 40113, 44701. (e) The actions shall be done in accordance will cost approximately $20 per § 39.13 [Amended] with Boeing Alert Service Bulletin 777– airplane. Based on these figures, the cost 54A0016, dated January 25, 2001; or Boeing impact of the AD on U.S. operators is ■ 2. Section 39.13 is amended by adding Service Bulletin 777–54A0016, Revision 1, estimated to be $26,600, or $280 per the following new airworthiness dated July 10, 2003. This incorporation by airplane. directive: reference was approved by the Director of the

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Federal Register in accordance with 5 U.S.C. Administration (FAA), Transport required to gain access and close up, 552(a) and 1 CFR part 51. Copies may be Airplane Directorate, Rules Docket, planning time, or time necessitated by obtained from Boeing Commercial Airplane 1601 Lind Avenue, SW., Renton, other administrative actions. Group, P.O. Box 3707, Seattle, Washington Washington; or at the FAA, New York 98124–2207. Copies may be inspected at the Regulatory Impact Aircraft Certification Office, 10 Fifth FAA, Transport Airplane Directorate, 1601 The regulations adopted herein will Lind Avenue, SW., Renton, Washington; or at Street, Third Floor, Valley Stream, New the Office of the Federal Register, 800 North York; or at the Office of the Federal not have a substantial direct effect on Capitol Street, NW., suite 700, Washington, Register, 800 North Capitol Street, NW., the States, on the relationship between DC. suite 700, Washington, DC. the national Government and the States, or on the distribution of power and Effective Date FOR FURTHER INFORMATION CONTACT: Douglas G. Wagner, Aerospace Engineer, responsibilities among the various (f) This amendment becomes effective on Systems and Flight Test Branch, ANE– levels of government. Therefore, it is January 22, 2004. 172, FAA, New York Aircraft determined that this final rule does not Issued in Renton, Washington, on Certification Office, 10 Fifth Street, have federalism implications under December 5, 2003. Third Floor, Valley Stream, New York Executive Order 13132. Kalene C. Yanamura, 11581; telephone (516) 256–7506; fax For the reasons discussed above, I Acting Manager, Transport Airplane (516) 568–2716. certify that this action (1) is not a Directorate, Aircraft Certification Service. SUPPLEMENTARY INFORMATION: A ‘‘significant regulatory action’’ under [FR Doc. 03–31061 Filed 12–17–03; 8:45 am] proposal to amend part 39 of the Federal Executive Order 12866; (2) is not a BILLING CODE 4910–13–P Aviation Regulations (14 CFR part 39) to ‘‘significant rule’’ under DOT include an airworthiness directive (AD) Regulatory Policies and Procedures (44 that is applicable to certain Bombardier FR 11034, February 26, 1979); and (3) DEPARTMENT OF TRANSPORTATION Model DHC–8–400, –401, and –402 will not have a significant economic airplanes was published in the Federal impact, positive or negative, on a Federal Aviation Administration Register on October 9, 2003 (68 FR substantial number of small entities 58287). That action proposed to require under the criteria of the Regulatory 14 CFR Part 39 a one-time inspection of the forward Flexibility Act. A final evaluation has [Docket No. 2002–NM–78–AD; Amendment engine mount assemblies on the left and been prepared for this action and it is 39–13386; AD 2003–25–03] right engine nacelles for installation of contained in the Rules Docket. A copy pre-production engine mount of it may be obtained from the Rules RIN 2120–AA64 assemblies, and follow-on corrective Docket at the location provided under the caption ADDRESSES. Airworthiness Directives; Bombardier actions if necessary. Model DHC–8–400, –401, and –402 Comments List of Subjects in 14 CFR Part 39 Airplanes Interested persons have been afforded Air transportation, Aircraft, Aviation AGENCY: Federal Aviation an opportunity to participate in the safety, Incorporation by reference, Administration, DOT. making of this amendment. No Safety. ACTION: Final rule. comments were submitted in response Adoption of the Amendment to the proposal or the FAA’s ■ SUMMARY: This amendment adopts a determination of the cost to the public. Accordingly, pursuant to the authority delegated to me by the Administrator, new airworthiness directive (AD), Conclusion applicable to certain Bombardier Model the Federal Aviation Administration DHC–8–400, –401, and –402 airplanes, The FAA has determined that air amends part 39 of the Federal Aviation that requires a one-time inspection of safety and the public interest require the Regulations (14 CFR part 39) as follows: the forward engine mount assemblies on adoption of the rule as proposed. PART 39—AIRWORTHINESS the left and right engine nacelles for Cost Impact DIRECTIVES installation of pre-production engine We estimate that 11 airplanes of U.S. mount assemblies, and follow-on ■ registry will be affected by this AD, that 1. The authority citation for part 39 corrective actions if necessary. This it will take approximately 2 work hours continues to read as follows: action is necessary to prevent failure of per airplane to accomplish the required Authority: 49 U.S.C. 106(g), 40113, 44701. the forward engine mount, which could inspection, and that the average labor result in reduced structural integrity of § 39.13 [Amended] rate is $65 per work hour. Based on the nacelle and engine support these figures, the cost impact of the AD ■ 2. Section 39.13 is amended by adding structure. This action is intended to on U.S. operators is estimated to be the following new airworthiness address the identified unsafe condition. $1,430, or $130 per airplane. directive: DATES: Effective January 22, 2004. The cost impact figure discussed 2003–25–03 Bombardier, Inc. (Formerly de The incorporation by reference of above is based on assumptions that no Havilland, Inc.): Amendment 39–13386. certain publications listed in the operator has yet accomplished any of Docket 2002–NM–78–AD. regulations is approved by the Director the requirements of this AD action, and Applicability: Model DHC–8–400, –401, of the Federal Register as of January 22, that no operator would accomplish and –402 airplanes; serial numbers 4005, 2004. those actions in the future if this AD 4006, 4008 through 4016 inclusive, 4018 ADDRESSES: The service information were not adopted. The cost impact through 4051 inclusive, and 4053; referenced in this AD may be obtained figures discussed in AD rulemaking certificated in any category. Compliance: Required as indicated, unless from Bombardier, Inc., Bombardier actions represent only the time accomplished previously. Regional Aircraft Division, 123 Garratt necessary to perform the specific actions To prevent failure of the forward engine Boulevard, Downsview, Ontario M3K actually required by the AD. These mount, which could result in reduced 1Y5, Canada. This information may be figures typically do not include structural integrity of the nacelle and engine examined at the Federal Aviation incidental costs, such as the time support structure, accomplish the following:

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Inspection Alternative Methods of Compliance Mater’’ that will serve as the special (a) Within 100 flight cycles after the (e) In accordance with 14 CFR 39.19, the control for this device. effective date of this AD: Do a general visual Manager, New York Aircraft Certification DATES: This rule is effective January 20, inspection of the forward engine mount Office, FAA, is authorized to approve 2004. assemblies on the left and right engine alternative methods of compliance for this nacelles for installation of pre-production AD. FOR FURTHER INFORMATION CONTACT: assemblies (determine the part number and Charles N. Durfor, Center for Devices configuration for each assembly), per the Incorporation by Reference and Radiological Health (HFZ–410), Accomplishment Instructions of Bombardier (f) Unless otherwise provided in this AD, Food and Drug Administration, 9200 Alert Service Bulletin A84–71–06, Revision the actions shall be done per Bombardier Corporate Blvd., Rockville, MD 20850, ‘‘A,’’ dated December 5, 2001. If no pre- Alert Service Bulletin A84–71–06, Revision 301–594–3090. production engine mount assembly is ‘‘A,’’ dated December 5, 2001. This installed, no further action is required by this incorporation by reference was approved by SUPPLEMENTARY INFORMATION: AD. the Director of the Federal Register in I. Background Note 1: For the purposes of this AD, a accordance with 5 U.S.C. 552(a) and 1 CFR general visual inspection is defined as: ‘‘A part 51. Copies may be obtained from In the Federal Register of October 22, visual examination of an interior or exterior Bombardier, Inc., Bombardier Regional 2002 (67 FR 64835), FDA issued a area, installation, or assembly to detect Aircraft Division, 123 Garratt Boulevard, proposed rule to classify human dura obvious damage, failure, or irregularity. This Downsview, Ontario M3K 1Y5, Canada. mater into class II based on new level of inspection is made from within Copies may be inspected at the FAA, information regarding this device and touching distance unless otherwise specified. Transport Airplane Directorate, 1601 Lind the recommendation of the Neurological A mirror may be necessary to enhance visual Avenue, SW., Renton, Washington; or at the Devices Panel. FDA identified the draft access to all exposed surfaces in the FAA, New York Aircraft Certification Office, 10 Fifth Street, Third Floor, Valley Stream, guidance document entitled ‘‘Class II inspection area. This level of inspection is Special Controls Guidance Document: made under normally available lighting New York; or at the Office of the Federal conditions such as daylight, hangar lighting, Register, 800 North Capitol Street, NW., suite Human Dura Mater; Guidance for flashlight, or droplight and may require 700, Washington, DC. Industry and FDA’’ as the proposed removal or opening of access panels or doors. Note 3: The subject of this AD is addressed special control capable of providing Stands, ladders, or platforms may be required in Canadian airworthiness directive CF– reasonable assurance of the safety and to gain proximity to the area being checked.’’ 2002–07, dated January 21, 2002. effectiveness of the device. The device is intended to repair defects in human Follow-on Corrective Actions Effective Date dura mater. FDA invited interested (b) If any pre-production engine mount (g) This amendment becomes effective on persons to comment on the proposed assembly is installed, do all the applicable January 22, 2004. rule by January 21, 2003. FDA received follow-on corrective actions (including Issued in Renton, Washington, on one comment. repetitive detailed inspections for cracking, December 5, 2003. and rework or replacement of the pre- II. Summary of the Comment and FDA’s Kalene C. Yanamura, production engine mount assembly if Response necessary), per all the actions specified in the Acting Manager, Transport Airplane Accomplishment Instructions of Bombardier Directorate, Aircraft Certification Service. The comment did not express an Alert Service Bulletin A84–71–06, Revision [FR Doc. 03–31062 Filed 12–17–03; 8:45 am] opinion on the proposed rule. It ‘‘A,’’ dated December 5, 2001, at the BILLING CODE 4910–13–P informed FDA of new research in applicable times specified in Paragraph I., transgenic mice which suggests that it Part D., ‘‘Compliance,’’ of the service may be difficult to distinguish whether bulletin. Any replacement due to cracking a patient’s cause of death is related to must be done before further flight. DEPARTMENT OF HEALTH AND HUMAN SERVICES Creutzfeldt-Jakob Disease (CJD) or Note 2: For the purposes of this AD, a variant CJD based on neuropathology. detailed inspection is defined as: ‘‘An FDA appreciates receipt of the intensive visual examination of a specific Food and Drug Administration structural area, system, installation, or information but does not believe it assembly to detect damage, failure, or 21 CFR Part 882 affects the classification of human dura mater. The guidance document ‘‘Class II irregularity. Available lighting is normally [Docket No. 2002N–0370] supplemented with a direct source of good Special Controls Guidance Document: lighting at intensity deemed appropriate by Neurological Devices; Classification of Human Dura Mater’’ recommends the inspector. Inspection aids such as mirror, Human Dura Mater clinical and histopathological methods, magnifying lenses, etc., may be used. Surface including next of kin interviews and full cleaning and elaborate access procedures AGENCY: Food and Drug Administration, brain autopsy, respectively, that are may be required.’’ HHS. intended to identify and defer potential Optional Terminating Action for Follow-on ACTION: Final rule. human dura mater donors who have Repetitive Inspections either CJD or variant CJD. SUMMARY: The Food and Drug (c) Installation of production engine mount III. FDA’s Conclusion assemblies on all four forward engine mounts Administration (FDA) is classifying ends the repetitive inspection requirements human dura mater intended to repair Based on a review of the available of paragraph (b) of this AD. defects in human dura mater into class information in the preamble to the II (special controls). This action is being proposed rule and placed on file in Part Installation taken to establish sufficient regulatory FDA’s Division of Dockets Management (d) As of the effective date of this AD, no control to provide reasonable assurance (HFA–305), Food and Drug person may install an engine mount assembly of the safety and effectiveness of the Administration, 5600 Fishers Lane, rm. having a pre-production configuration and/or part number 96042–07 on any airplane, device. Elsewhere in this issue of the 1061, Rockville, MD 20852, FDA unless the assembly has been reworked per Federal Register, FDA is announcing concludes that special controls, in Part B of the Accomplishment Instructions of the availability of a guidance document conjunction with general controls, Bombardier Alert Service Bulletin A84–71– entitled ‘‘Class II Special Controls provide reasonable assurance of the 06, Revision ‘‘A,’’ dated December 5, 2001. Guidance Document: Human Dura safety and effectiveness of this device.

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Elsewhere in this issue of the Federal (including potential economic, levels of government. Accordingly, the Register, FDA is announcing the environmental, public health and safety, agency has concluded that the rule does availability of the class II special and other advantages; distributive not contain policies that have controls guidance document. Following impacts; and equity). The agency federalism implications as defined in the effective date of this final believes that this rule is consistent with the Executive order and, consequently, classification rule, any firm submitting the regulatory philosophy and a federalism summary impact statement a premarket notification (510(k)) for principles identified in the Executive is not required. human dura mater will need to address order. In addition, the final rule is not the issues covered in the class II special a significant regulatory action as defined VII. Paperwork Reduction Act of 1995 control guidance. However, the firm by the Executive order and so is not need only show that its device meets the subject to review under the Executive This final rule does not contain recommendations of the guidance or in order. information collection provisions that some other way provides equivalent FDA has also examined the impact of are subject to review by the Office of assurances of safety and effectiveness. the rule under the Regulatory Flexibility Management and Budget under the FDA is now codifying the Act. The purpose of this rule is to Paperwork Reduction Act of 1995 (44 classification and the class II special change the classification of human dura U.S.C. 3501–3520). control guidance document for human mater from an unclassified medical dura mater by adding § 882.5975 to the device into a class II medical device List of Subjects in 21 CFR Part 882 device regulations in Title 21, Code of subject to special controls. As an Medical devices. Federal Regulations (21 CFR). For the unclassified device, this device is convenience of the reader, FDA is also already subject to premarket notification ■ Therefore, under the Federal Food, adding § 882.1(e) to inform the reader and the general labeling provisions of Drug, and Cosmetic Act and under where to find guidance documents the act. There are currently five to seven authority delegated to the Commissioner referenced in 21 CFR part 882. manufacturers of human dura mater of Food and Drugs, 21 CFR part 882 is As discussed in the preamble to the medical devices. All of the firms meet amended as follows: proposed rule (67 FR 64835), FDA the Small Business Administration’s intends to transfer the regulation of definition of a small entity (fewer than PART 882—NEUROLOGICAL DEVICES human dura mater from the Center for 500 employees). FDA, however, believes Devices and Radiological Health to the that manufacturers presently marketing ■ 1. The authority citation for 21 CFR Center for Biologics Evaluation and this device already conform with many part 882 continues to read as follows: Research. FDA expects this transfer will of the recommendations in the special Authority: 21 U.S.C. 351, 360, 360c, 360e, take place upon the implementation of controls guidance document. New 360j, 371. human-cellular and tissue-based manufacturers of human dura mater will product regulations, including only need to submit 510(k)s, as the ■ 2. Section 882.1 is amended by adding regulations addressing donor suitability, statute now requires them to do, and paragraph (e) to read as follows: good tissue practices, and registration demonstrate that they meet the § 882.1 Scope. and listing. FDA has initiated recommendations of the guidance or in rulemaking proceedings involving these some way provide equivalent * * * * * products. (See 64 FR 52696, September assurances of safety and effectiveness. (e) Guidance documents referenced in 30, 1999; 66 FR 1507, January 8, 2001; In addition, biocompatibility and this part are available on the Internet at and 66 FR 5447, January 19, 2001.) In structural testing recommendations are http://www.fda.gov/cdrh/guidance.html. the interim, FDA believes that eliminated from the guidance, which regulation of dura mater as a class II will decrease the premarket notification ■ 3. Section 882.5975 is added to subpart device subject to general and special costs for manufacturers introducing new F to read as follows: controls provides a reasonable human dura mater devices into § 882.5975 Human dura mater. assurance of its safety and effectiveness. commercial distribution. The agency, therefore, certifies that this rule will not (a) Identification. Human dura mater IV. Environmental Impact have a significant economic impact on is human pachymeninx tissue intended The agency has determined under 21 a substantial number of small entities. to repair defects in human dura mater. CFR 25.34(b) that this action is of a type In addition, this rule will not impose that does not individually or costs of $100 million or more on either (b) Classification. Class II (special cumulatively have a significant effect on the private sector or State, local, and controls). The special control for this the human environment. Therefore, tribal governments in the aggregate, and device is the FDA guidance document neither an environmental assessment therefore, a summary statement or entitled ‘‘Class II Special Controls nor an environmental impact statement analysis under section 202(a) of the Guidance Document: Human Dura is required. Unfunded Mandates Reform Act of 1995 Mater.’’ See § 882.1(e) for the is not required. availability of this guidance. V. Analysis of Impacts Dated: December 5, 2003. FDA has examined the impacts of the VI. Federalism final rule under Executive Order 12866 FDA has analyzed this final rule in Linda S. Kahan, and the Regulatory Flexibility Act (5 accordance with the principles set forth Deputy Director, Center for Devices and U.S.C. 601–612), and the Unfunded in Executive Order 13132. FDA has Radiological Health. Mandates Reform Act of 1995 (Public determined that the rule does not [FR Doc. 03–31174 Filed 12–17–03; 8:45 am] Law 104–4). Executive Order 12866 contain policies that have substantial BILLING CODE 4160–01–S directs agencies to assess all costs and direct effects on the States, on the benefits of available regulatory relationship between the National alternatives and, when regulation is Government and the States, or on the necessary, to select regulatory distribution of power and approaches that maximize net benefits responsibilities among the various

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ENVIRONMENTAL PROTECTION SUPPLEMENTARY INFORMATION: version of the comment that is placed in AGENCY the official public rulemaking file. The I. General Information entire printed comment, including the 40 CFR Part 52 A. How Can I Get Copies of This copyrighted material, will be available [CT–057–7216e; A–1–FRL–7600–2] Document and Other Related at the Regional Office for public Information? inspection. Approval and Promulgation of 1. The Regional Office has established B. How and To Whom Do I Submit Implementation Plans; Connecticut; an official public rulemaking file Comments? Motor Vehicle Emissions Budgets for available for inspection at the Regional You may submit comments 2005 and 2007 using MOBILE6.2 for the Office. EPA has established an official Connecticut Portion of the New York- electronically, by mail, or through hand public rulemaking file for this action delivery/courier. To ensure proper Northern New Jersey-Long Island under CT–057–7216e. The official Nonattainment Area and for 2007 for receipt by EPA, identify the appropriate public file consists of the documents rulemaking identification number by the Greater Connecticut Nonattainment specifically referenced in this action, Area including the text ‘‘Public comment on any public comments received, and proposed rulemaking CT–057–7216d’’ AGENCY: Environmental Protection other information related to this action. in the subject line on the first page of Agency (EPA). Although a part of the official docket, your comment. Please ensure that your ACTION: Direct final rule. the public rulemaking file does not comments are submitted within the include Confidential Business specified comment period. Comments SUMMARY: The EPA is approving a Information (CBI) or other information received after the close of the comment revision to the Connecticut State whose disclosure is restricted by statute. period will be marked ‘‘late.’’ EPA is not Implementation Plan (SIP) for the The official public rulemaking file is the required to consider these late attainment and maintenance of the one- collection of materials that is available comments. hour National Ambient Air Quality for public viewing at the Office of 1. Electronically. If you submit an Standard (NAAQS) for ground level Ecosystem Protection, U.S. electronic comment as prescribed ozone submitted by the State of Environmental Protection Agency, EPA below, EPA recommends that you Connecticut. The intended effect of this New England Regional Office, One include your name, mailing address, action is to approve Connecticut’s 2005 Congress Street, Suite 1100, Boston, and an e-mail address or other contact and 2007 motor vehicle emissions MA. EPA requests that if at all possible, information in the body of your budgets recalculated using MOBILE6.2 you contact the contact listed in the FOR comment. Also include this contact for the Connecticut portion of the New FURTHER INFORMATION CONTACT section to information on the outside of any disk York-Northern New Jersey-Long Island schedule your inspection. The Regional or CD ROM you submit, and in any nonattainment area and to approve Office’s official hours of business are cover letter accompanying the disk or Connecticut’s 2007 motor vehicle Monday through Friday, 8:30 to 4:30 CD ROM. This ensures that you can be emissions budgets for the Greater excluding federal holidays. identified as the submitter of the Connecticut nonattainment area also 2. Copies of the State submittal and comment and allows EPA to contact you recalculated using MOBILE6.2. This EPA’s technical support document are in case EPA cannot read your comment action is being taken under the Clean also available for public inspection due to technical difficulties or needs Air Act. during normal business hours, by further information on the substance of DATES: This direct final rule will be appointment at the State Air Agency. your comment. EPA’s policy is that EPA effective February 17, 2004, unless EPA Bureau of Air Management, Department will not edit your comment, and any receives adverse comments by January of Environmental Protection, State identifying or contact information 20, 2004. If adverse comments are Office Building, 79 Elm Street, Hartford, provided in the body of a comment will received, EPA will publish a timely CT 06106–1630. be included as part of the comment that withdrawal of the direct final rule in the 3. Electronic Access. You may access is placed in the official public docket, Federal Register informing the public this Federal Register document and made available in EPA’s electronic that the rule will not take effect. electronically through the public docket. If EPA cannot read your ADDRESSES: Comments may be mailed to Regulation.gov Web site located at http:/ comment due to technical difficulties David Conroy, Unit Manager, Air /www.regulations.gov where you can and cannot contact you for clarification, Quality Planning, Office of Ecosystem find, review, and submit comments on EPA may not be able to consider your Protection (mail code CAQ), U.S. Federal rules that have been published comment. Environmental Protection Agency, EPA in the Federal Register, the i. E-mail. Comments may be sent by New England Regional Office, One government’s legal newspaper, and are electronic mail (e-mail) to Congress Street, Suite 1100, Boston, MA open for comment. [email protected] please including 02114–2023. Comments may also be For public commenters, it is the text ‘‘Public comment on proposed submitted electronically, or through important to note that EPA’s policy is rulemaking CT–057–7216d’’ in the hand delivery/courier, please follow the that public comments, whether subject line. EPA’s e-mail system is not detailed instructions described in part submitted electronically or in paper, an ‘‘anonymous access’’ system. If you (I)(B)(1)(i) through (iii) of the will be made available for public send an e-mail comment directly Supplementary Information section. viewing at the EPA Regional Office, as without going through Regulations.gov, FOR FURTHER INFORMATION CONTACT: Jeff EPA receives them and without change, EPA’s e-mail system automatically Butensky, Environmental Planner, Air unless the comment contains captures your e-mail address. E-mail Quality Unit, U.S. Environmental copyrighted material, CBI, or other addresses that are automatically Protection Agency, EPA New England information whose disclosure is captured by EPA’s e-mail system are Regional Office, One Congress Street, restricted by statute. When EPA included as part of the comment that is Suite 1100 (CAQ), Boston, MA 02114– identifies a comment containing placed in the official public docket, and 2023, (617) 918–1665, copyrighted material, EPA will provide made available in EPA’s electronic [email protected]. a reference to that material in the public docket.

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ii. Regulation.gov. Your use of In addition to one complete version of A. Background Regulation.gov is an alternative method the comment that includes any of submitting electronic comments to information claimed as CBI, a copy of The entire State of Connecticut is EPA. Go directly to Regulations.gov at the comment that does not contain the designated as nonattainment for the one-hour ozone NAAQS. Southwest http://www.regulations.gov, then click information claimed as CBI must be Connecticut (i.e., all of Fairfield County on the button ‘‘TO SEARCH FOR submitted for inclusion in the official except the town of Shelton, plus the REGULATIONS CLICK HERE,’’ and public regional rulemaking file. If you Litchfield County towns of Bridgewater select Environmental Protection Agency submit the copy that does not contain and New Milford) is part of the New as Agency name to search on. The list CBI on disk or CD ROM, mark the York-Northern New Jersey-Long Island of current EPA actions available for outside of the disk or CD ROM clearly comment will be listed. Please follow severe ozone nonattainment area, and that it does not contain CBI. Information the remainder of Connecticut is the the online instructions for submitting not marked as CBI will be included in comments. The system is an Greater Connecticut serious ozone the public file and available for public nonattainment area. The CTDEP ‘‘anonymous access’’ system, which inspection without prior notice. If you means EPA will not know your identity, submitted attainment demonstrations have any questions about CBI or the for both the Southwest Connecticut and e-mail address, or other contact procedures for claiming CBI, please information unless you provide it in the Greater Connecticut ozone consult the person identified in the FOR nonattainment areas on September 16, body of your comment. FURTHER INFORMATION CONTACT section. iii. Disk or CD ROM. You may submit 1998, and EPA published proposed comments on a disk or CD ROM that II. Rulemaking Information rulemakings on CTDEP’s attainment you mail to the mailing address demonstrations on December 16, 1999. identified in section 2, directly below. On June 17, 2003, the Connecticut 64 FR at 70332–70364 (December 16, These electronic submissions will be Department of Environmental Protection 1999). accepted in WordPerfect, Word or ASCII (CTDEP) submitted an amendment to EPA’s December 16, 1999 proposal to file format. Avoid the use of special the Connecticut State Implementation approve the attainment demonstration characters and any form of encryption. Plan (SIP) containing 2005 and 2007 for the Greater Connecticut area was 2. By Mail. Send your comments to: motor vehicle emissions budgets contingent upon several issues. The David Conroy, Unit Manager, Air recalculated using the MOBILE6.2 issues relevant to this action were the Quality Planning, Office of Ecosystem model for the Connecticut portion of the submittal of an adequate motor vehicle Protection (mail code CAQ), U.S. New York-Northern New Jersey-Long emissions budget that was consistent Environmental Protection Agency, EPA Island nonattainment area and 2007 with attainment and a commitment to New England Regional Office, One motor vehicle emissions budgets for the revise the motor vehicle emissions Congress Street, Suite 1100, Boston, MA Greater Connecticut nonattainment area. budget within one year after official 02114–2023. Please include the text This SIP revision fulfills the release of EPA’s MOBILE6 emissions ‘‘Public comment on proposed commitment made by the CTDEP in its model. The CTDEP submitted the rulemaking CT–057–7216d’’ in the February 8, 2000 SIP submittal to revise required motor vehicle emissions subject line on the first page of your the transportation conformity budgets budgets (calculated using EPA’s comment. using EPA’s MOBILE6 emissions MOBILE5b emissions model) for Greater 3. By Hand Delivery or Courier. model.1 In addition, this SIP revision Connecticut on February 8, 2000. The Deliver your comments to: David demonstrates that the new levels of motor vehicle budgets submitted for Conroy, Unit Manager, Air Quality motor vehicle emissions calculated Greater Connecticut on February 8, 2000 Planning, Office of Ecosystem using MOBILE6.2 continue to support were calculated using then-current EPA Protection, U.S. Environmental achievement of the rate of progress guidance. This guidance is articulated Protection Agency, EPA New England requirements and projected attainment in two memoranda which detail how Regional Office, One Congress Street, of the one-hour ozone NAAQS for the states should incorporate the benefits of 11th floor, (CAQ), Boston, MA 02114– Connecticut portion of the New York- the federal motor vehicle Tier 2 2023. Such deliveries are only accepted Northern New Jersey-Long Island standard into their SIPs, ‘‘Guidance on during the Regional Office’s normal nonattainment area and the Greater Motor Vehicle Emissions Budgets in hours of operation. The Regional Connecticut nonattainment area. one-hour Ozone Attainment Office’s official hours of business are Connecticut held a public hearing on its Demonstrations,’’ issued November 3, Monday through Friday, 8:30 to 4:30 proposed SIP revision on May 27, 2003. 1999, and ‘‘One-hour Ozone Attainment excluding federal Holidays. Today’s action approves these budgets. Demonstrations and Tier2/Sulfur Rulemaking,’’ issued November 8, 1999. C. How Should I Submit CBI to the Organization of this document. The In addition, states that have attainment Agency? following outline is provided to aid in demonstrations that include interim locating information in this preamble. Do not submit information that you MOBILE5b-based estimates of the consider to be CBI electronically to EPA. A. Background federal motor vehicle Tier 2 standards You may claim information that you B. What is MOBILE6.2? are required to submit motor vehicle submit to EPA as CBI by marking any C. Are the revised budgets using emissions budgets using the EPA’s April part or all of that information as CBI (if MOBILE6.2 consistent with Connecticut’s 2000 MOBILE5 guidance, ‘‘MOBILE5 you submit CBI on disk or CD ROM, one-hour attainment demonstration? Information Sheet #8: Tier 2 Benefits 2 mark the outside of the disk or CD ROM D. Are Connecticut’s motor vehicle Using MOBILE5.’’ EPA granted full as CBI and then identify electronically emissions budgets approvable? approval to the Greater Connecticut within the disk or CD ROM the specific information that is CBI). Information so 1 Document titled ‘‘Addenda to the Ozone 2 The final rule on Tier 2 Motor Vehicle Attainment Demonstrations for the Southwest Emissions Standards and Gasoline Sulfur Control marked will not be disclosed except in Connecticut Severe Ozone Nonattainment Area and Requirements (‘‘Tier 2 standards’’) for passenger accordance with procedures set forth in Greater Connecticut Serious Ozone Nonattainment cars, light trucks, and larger passenger vehicles was 40 CFR part 2. Area,’’ February 8, 2000. published on February 10, 2000 (65 FR 6698).

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attainment demonstration on January 3, year time period for which Connecticut (NOX) and carbon monoxide (CO) from 2001 (66 FR 633). was required to revise its one-hour passenger cars, motorcycles, buses, and For the Connecticut portion of the ozone attainment demonstration SIP light-duty and heavy-duty trucks. The New York-Northern New Jersey-Long using the MOBILE6 model. Therefore, model accounts for the emission Island nonattainment area, EPA’s Connecticut was required to submit this impacts of factors such as changes in December 16, 1999 rulemaking SIP revision to EPA by January 29, 2003. vehicle emission standards, changes in proposed to conditionally approve the EPA subsequently released updated vehicle populations and activity, ozone attainment SIP for the versions of the model, and the latest variations in temperature, humidity, nonattainment area, and in the model update, MOBILE6.2, was used to fuel type, vehicle type and age alternative, to disapprove the SIP if the prepare this SIP revision. distribution, and air quality programs specified conditions were not satisfied. Although not required by EPA, such as inspection and maintenance, The only condition of importance to CTDEP is electing to replace the existing and many other variables. Although today’s action is the submittal of 2005 MOBILE5b budgets for some minor updates were made in 1996 adequate MOBILE5b 2007 motor vehicle Connecticut portion of the New York- with the release of MOBILE5b, emissions budgets that are consistent Northern New Jersey-Long Island MOBILE6.2 is the first major revision to with attainment, and a commitment to nonattainment area with MOBILE6.2 MOBILE since MOBILE5a was released revise the 2007 motor vehicle emissions budgets. There are no applicable budget in 1993. budgets within one year after official requirements for 2005 for Greater In developing mobile source emission release of EPA’s MOBILE6 emissions Connecticut, but the State previously estimates, states rely on estimates of model. In the February 8, 2000 had 2005 budgets approved by EPA for daily vehicle miles traveled (VMT) submittal, the CTDEP submitted revised the Connecticut portion of the New using travel demand forecasting models 2007 motor vehicle emissions budgets York-Northern New Jersey-Long Island which use variables such as population, (determined with MOBILE5b), which nonattainment area (66 FR 63921). housing, land use, and other relevant EPA found adequate on June 16, 2000 Connecticut is only required to submit planning data. Resulting VMT, speed (65 FR 37778–37779). Connecticut also new 2007 budgets using the MOBILE6.2 data, vehicle age distribution, speed committed to revise its motor vehicle model for the attainment year of 2007. data, road types, vehicle type data, and emissions budgets within one year after Therefore, EPA’s adequacy other data are then entered into the release of MOBILE6.3 In addition, the determination will only be for the MOBILE6.2 model to develop on-road CTDEP incorporated the federal motor revised attainment year budgets for 2007 vehicle emission factors. More vehicle Tier 2 standards program into for both the Connecticut portion of the information on Connecticut’s travel the SIP and provided the necessary SIP New York-Northern New Jersey-Long demand modeling is contained in the commitments as part of revisions Island nonattainment area and the state’s June 17, 2003 SIP submittal. Transportation conformity is required submitted to EPA in February 2000 and Greater Connecticut nonattainment area under section 176(c) of the Clean Air October 2001,4 respectively. As a result and not for the revised reasonable Act. The purpose of transportation of this submittal and the resolution of further progress (2005) budgets for the conformity is to ensure that federally other issues on the attainment Connecticut portion of the New York- supported highway and transit project demonstration, EPA granted full Northern New Jersey-Long Island activities are consistent with (‘‘conform approval of Connecticut’s one-hour nonattainment area. This is consistent with EPA’s approval of the previous to’’) the purpose of a SIP. Conformity to ozone attainment demonstrations on MOBILE5 budgets which limited the the purpose of the SIP means that December 11, 2001 for the Connecticut adequacy process to only the revised transportation activities will not cause portion of the New York-Northern New attainment year budgets, or 2007 for new air quality violations, worsen Jersey-Long Island nonattainment area both nonattainment areas in existing violations, or delay timely (66 FR 63921). Connecticut. EPA has notified the attainment of the NAAQS. EPA’s The SIP being approved today public of Connecticut’s SIP revision transportation conformity rule satisfies CTDEP’s commitments to revise containing 2007 motor vehicle establishes the criteria and procedures motor vehicle emissions budgets within emissions budgets recalculated using for determining whether transportation one year after EPA’s release of the the MOBILE6.2 model for the activities conform to the state air quality MOBILE6 motor vehicle emissions Connecticut portion of the New York- plan. 40 CFR part 51, subpart W and model. EPA published the release of the Northern New Jersey-Long Island ozone part 93. The purpose of the MOBILE6.2 MOBILE6 model in the Federal Register nonattainment area and for the Greater transportation conformity budgets being on January 29, 2002 (67 FR 4254), Connecticut ozone nonattainment area proposed for approval today is to cap beginning the one-year time line for on EPA’s Office of Transportation and the emissions resulting from submitting revised budgets. Thus, the Air Quality Web site ‘‘SIP Submissions Connecticut’s statewide transportation effective date of that Federal Register Currently Under EPA Adequacy improvement program (STIP) in the notice constituted the start of the one- Review’’ located at http://www.epa.gov/ effort to reduce emissions and achieve otaq/transp/conform/currsips.htm. The the NAAQS for ground level ozone. The 3 The Connecticut commitment for submitting MOBILE6 budgets within one year after is codified thirty-day public comment period modeling conducted as part of the STIP at 40 CFR 52.377(b) for the Greater Connecticut area associated with the adequacy review must show that emissions are below and 40 CFR 52.377(c) for the Southwest process started Friday, December 5, these emissions budgets. This process is Connecticut area. 2003. known as a ‘‘conformity determination.’’ 4 MOBILE5b inputs and estimates are from the previously approved SIP submittals ‘‘Addenda to B. What is MOBILE6.2? C. Are the Revised Budgets Using the Ozone Attainment Demonstrations for the MOBILE6.2 Consistent With Southwest Connecticut Severe Ozone MOBILE6.2 is an EPA emissions Nonattainment Area and Greater Connecticut factor model for estimating pollution Connecticut’s One-Hour Attainment Serious Ozone Nonattainment Area’’ (submitted to from on-road motor vehicles in states Demonstration? EPA on February 8, 2000) and ‘‘Updates to the Ozone Attainment Demonstration for the Southwest outside of California. MOBILE6.2 In using MOBILE6.2 to calculate the Connecticut Severe Ozone Nonattainment Area calculates emissions of volatile organic revised budgets, states must consider (submitted to EPA in October 2001). compounds (VOCs), nitrogen oxides whether these calculations continue to

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support attainment of the NAAQS for from 1999, along with previous between the base year and the ozone. EPA has articulated its policy photochemical grid modeling with 2007 attainment year, or 1999 and 2007 for regarding the use of MOBILE6.2 in SIP emission estimates, to determine the budgets that are being approved development in its ‘‘Policy Guidance on whether additional emission reductions today. As can be seen in table 1, for the the Use of MOBILE6.2 for SIP were necessary to provide for a Connecticut portion of the New York- Development and Transportation projection of attainment for Connecticut Northern New Jersey-Long Island Conformity’’ 5 and ‘‘Clarification of in 2007. EPA concluded that attainment nonattainment area, MOBILE6.2 Policy Guidance for MOBILE6.2 in Mid- could be demonstrated if emission reductions are greater than MOBILE5b course Review Areas.’’ 6 Consistent with reductions expected from the federal for emissions of total precursors (39.7 this policy guidance, Connecticut motor vehicle Tier 2 program were tons per summer day (tpd) versus 26.6 submitted a relative reduction incorporated into the SIP, and tpd), VOC (18.3 tpd versus 7.9 tpd), and comparison to show that its one-hour Connecticut subsequently incorporated NOX (21.4 tpd versus 18.7 tpd). In ozone attainment demonstration SIP this program into the SIP as part of addition, the rate of emission reductions continues to demonstrate attainment revisions submitted to EPA in February between the base year of 1999 and when applying the new MOBILE6.2 2000 and October 2001, respectively.8 attainment year of 2007 is also greater budgets. CTDEP used a similar approach to with MOBILE6.2 than MOBILE5b for In developing the EPA approved one- determine if the 2007 MOBILE6.2 total precursor emissions (46.3% versus hour ozone attainment demonstrations, emission projections remain consistent 44.3%) and VOC emissions (52.7% Connecticut relied on a ‘‘weight-of- with the approved attainment plans. versus 44.9%); but slightly lower for evidence’’ approach that examined CTDEP analyzed 1999 through 2007 to NOX emissions (41.9% versus 44.1%). photochemical grid modeling results, compare the relative emission Therefore, MOBILE6.2 provides an emission projections, and air quality reductions projected by MOBILE6.2 to ‘‘excess’’ rate of VOC reductions that is data. As part of Connecticut’s one-hour those projected by MOBILE5b to 7.9% above what MOBILE5b provided attainment demonstration, the level of determine if the relative reductions in the approved attainment SIP. In additional emission reductions needed estimated over the 1999–2007 period addition, MOBILE6.2 provides a 2.2% for attainment was determined by with MOBILE6.2 equal or exceed those smaller rate of NOX reductions applying a relative emission reduction estimates using MOBILE5b. compared to the MOBILE5b emissions technique.7 This relied on measured air MOBILE6.2 generally calculates included in the approved attainment quality data and emission estimates higher emission factors than MOBILE5b SIP.

TABLE 1.—COMPARISON OF MOBILE5B AND MOBILE6.2 EMISSION ESTIMATES: 1999–2007

Connecticut portion of the New York-Northern New Jersey-Long Greater Connecticut Island nonattainment area

VOC + NOX VOC NOX VOC + NOX VOC NOX

MOBILE5b: 1999 (tpd) ...... 60.0 17.6 42.4 191.7 52.3 139.4 MOBILE5b: 2007 (tpd) ...... 33.4 9.7 23.7 109.6 30.0 79.6 M5b Reduction (tpd) ...... 26.6 7.9 18.7 82.1 22.3 59.8 M5b % Reduction...... 44.3% 44.9% 44.1% 42.8% 42.6% 42.9% MOBILE6.2: 1999 (tpd) ...... 85.8 34.7 51.1 272.2 107.3 164.9 MOBILE6.2: 2007 (tpd) ...... 46.1 16.4 29.7 150.3 51.9 98.4 M6.2 Reduction (tpd) ...... 39.7 18.3 21.4 121.9 55.4 66.5 M6.2 % Reduction...... 46.3% 52.7% 41.9% 44.8% 51.6% 40.3% Difference in % Reductions (M6.2¥ M5b) ...... 1.9% 7.9% ¥2.2% 2.0% 9.0% ¥2.6% ‘‘Excess’’ Reductions with MOBILE6.2 (after VOC for NOX substitution at 0.83 to 0.61 ratio established by EPA method) ...... NA 4.9% 0.0% NA 5.5% 0.0%

To demonstrate the net beneficial Ozone Attainment Demonstrations for ppb in the New York City modeling effect on ozone of the combined 7.9% the Southwest Connecticut Severe domain. Scaling these ‘‘normalized’’ ‘‘excess’’ VOC reductions and the 2.2% Ozone Nonattainment Area and Greater values, the 2.2% MOBILE6.2 NOX NOX ‘‘deficit,’’ CTDEP applied the Connecticut Serious Ozone deficit described above can be offset by emission reduction factors previously Nonattainment Area, section 3.B. at 4– 3.0% (i.e., (0.83/0.61) × 2.2% = 3.0% approved by EPA to determine the 7 (January 14, 2000). This method with rounding) of the 7.9% MOBILE6.2 amount of additional reductions needed determined that emission reductions of VOC ‘‘excess.’’ 9 This substitution in Connecticut to ensure attainment of 0.83% VOC and 0.61% NOX resulted in results in a final MOBILE6.2 VOC the ozone standard. See Addenda to the an ozone air quality improvement of one ‘‘excess’’ reduction of 4.9% (with a net

5 Memorandum, ‘‘Policy Guidance on the Use of 8 MOBILE5b inputs and estimates are from the estimates were determined as described in the MOBILE6.2 for SIP Development and previously approved SIP submittals ‘‘Addenda to current SIP revision. Transportation Conformity,’’ issued January 18, the Ozone Attainment Demonstrations for the 9 Note that Connecticut’s submittal indicates that 2002. Southwest Connecticut Severe Ozone the required ‘‘offset’’ for the level of NOX reduction 6 Memorandum, ‘‘Clarification of Policy Guidance Nonattainment Area and Greater Connecticut from the MOBILE6 model is 3.1%, not 3.0%. EPA for MOBILE6.2 SIPs in Mid-course Review Areas,’’ Serious Ozone Nonattainment Area’’ (submitted to issued February 12, 2003. has re-run these calculations, and we believe that EPA on February 8, 2000) and ‘‘Updates to the 7 66 FR 63921–63938 (December 11, 2001) for the the correct number is 3.0%. In either case, it is clear New York-Northern New Jersey-Long Island Ozone Attainment Demonstration for the Southwest that the level of VOC reduction projected by the nonattainment area; 66 FR 634–663 (January 3, Connecticut Severe Ozone Nonattainment Area MOBILE6 model more than compensates for the 2001) for the Greater Connecticut area. (submitted to EPA in October 2001). MOBILE6.2 ‘‘deficit’’ in NOX reductions.

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zero balance of NOX), relative to the Second, Connecticut used the factors emission projections for 2007 are MOBILE5b emissions included in the described above to compare and offset slightly lower than those included in approved attainment SIP. Similar the ‘‘deficit’’ in NOX reductions with the previously approved attainment calculations are summarized in Table 1 ‘‘excess’’ VOC reductions. EPA’s plan. These lower emission projections for the Greater Connecticut guidance does not directly address the further support the attainment plan’s nonattainment area. situation where the overall level of conclusion that emission reductions The methodology used in these ozone precursor reductions appears to included in the SIP are on target to calculations differs from the support the weight of evidence analysis achieve one-hour ozone attainment by methodology provided in EPA underlying the attainment 2007 in both the Connecticut portion of guidance,10 but Connecticut has demonstration but there is a slight the New York-Northern New Jersey- provided evidence that these budgets shortfall in the level of reduction for one Long Island nonattainment area and the continue to support attainment of the pollutant. Connecticut has looked to an Greater Connecticut area. ozone NAAQS by 2007 in both analogous exercise the State and EPA Connecticut must submit a mid- nonattainment areas. First, to assess the undertook to calculate how to balance course review of its attainment relative level of reduction under the between NOX and VOC reductions when demonstration by December 31, 2004 to MOBILE5 model compared with the calculating emission reduction ensure that the state remains on track to MOBILE6 model, Connecticut compared shortfalls in ozone nonattainment areas. attain by 2007. During that mid-course mobile source emission reductions from EPA believes the State’s use of these review, EPA can reconfirm that these 1999 to 2007, the attainment year for factors is a reasonable extension of that mobile budgets continue to support these areas. EPA’s guidance, however, methodology, since the goal of both Connecticut’s attainment recommends comparing reductions from exercises is to compare the relative demonstration. the base year of the attainment benefit in reducing ozone that results Lastly, to further support the approval demonstration with the attainment year. from reductions in either VOC or NOX. of Connecticut’s mobile source budgets, For most purposes, the base year for the Application of this methodology EPA supplemented Connecticut’s attainment demonstrations in provides evidence that MOBILE6.2 analysis with an analysis of its own Connecticut was 1990. Nevertheless, projects a net reduction in total ozone based on information provided by the Connecticut believes that it makes more precursor emissions between the 1999 CTDEP. For the entire state, we sense to start the comparison with 1999 base year and the 2007 attainment year compared the relative reduction, by levels, because that was the year that are at least equivalent to the level percentage, between the 1990 and 2007 Connecticut assembled its attainment of reduction Connecticut relied on for inventories generated using the two demonstration for EPA using a weight of its attainment demonstration using different versions of the models to evidence assessment of various MOBILE5. These excess emission ensure that the approved 1-hour ozone emissions and air quality trends. Much reductions determined with MOBILE6.2 attainment demonstrations for of the data used in that weight of reaffirm that the transportation budgets Connecticut will continue to evidence assessment came from the late developed with MOBILE6.2 are demonstrate attainment by 2007. The 1990’s and made projections of consistent with Connecticut’s methodology for this relative reduction attainment in 2007 by assessing how previously approved attainment comparison consists of comparing the past trends in that data would likely demonstrations. revised MOBILE6 baseline and proceed from 1999 forward. See e.g. the In addition to the evaluation of on- discussion of the Regional Design Value attainment case inventories, by road mobile source emissions, CTDEP pollutant, with the previously approved Rollback Analysis for the Connecticut also reevaluated the effects on the Nonattainment Areas (64 FR at 70341– MOBILE5 inventory totals for the State attainment plan of recent changes to of Connecticut to determine if 70342 (Greater Connecticut) and at 2007 growth projections for other 70359 (Southwest Connecticut) attainment can still be predicted by the emission source categories (i.e., point, attainment date. (December 16, 1999)). Connecticut and area, and non-road mobile sources). The EPA effectively used 1999 as a base year Connecticut Department of Labor’s Table 2 below contrasts Connecticut’s for several purposes when constructing updated total employment projections revised MOBILE6-based motor vehicle the weight of evidence analysis for the manufacturing sector are actually emissions inventories with the supporting our approval of the state’s lower than previous projections by previously approved MOBILE5-based attainment demonstration. Therefore, almost five percent. In addition, inventories for the two Connecticut Connecticut used 1999 as the starting population projections were also nonattainment areas, by pollutant, point for assessing whether the relative updated. When updated employment expressed in units of tons per summer level of reductions in mobile emissions growth and population forecasts are day (tpd). These revised inventories projected using MOBILE6 still supports incorporated into emission were developed using the latest its attainment demonstration, since a calculations,11 overall ozone precursor available information including vehicle critical step in that demonstration relied registration data, traffic data, vehicle on projections from 1999 to 2007. 11 Calculations with updated CTDOL employment miles traveled, and growth assumptions. projections, U.S. Census Bureau were carried out Non-road emissions were calculated 10 Two Memoranda: ‘‘Policy Guidance on the Use using the procedures documented in Connecticut’s using the latest version of EPA’s non- of MOBILE6.2 for SIP development and Post-1999 Rate-of-Progress Plan. See section 3.2 and road model. Transportation Conformity,’’ issued January 18, appendix F of ‘‘Ozone Reduction Strategy for the 2002, and ‘‘Clarification of Policy Guidance for Southwest Connecticut Portion of the New York- MOBILE6.2 SIPs in Mid-course Review Areas,’’ New Jersey-Connecticut Severe Nonattainment September 2001. See: http://www.dep.state.ct.us/ issued February 12, 2003. Area: Post-1999 Rate-of-Progress Plan’’; CTDEP; air2/siprac/2001/pst99tsd.pdf.

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TABLE 2.—COMPARISON OF CONNECTICUT’S MOBILE5 AND REVISED MOBILE6-BASED EMISSIONS INVENTORIES

2007 1990 2007 Percent 1990 Percent State of Connecticut VOC VOC NOX NOX reduction (tpd) (tpd) reduction (tpd) (tpd)

MOBILE5b-based emissions inventory ...... 536.3 311.1 41.99 463.6 297.2 35.88 MOBILE6.2-based revised emissions inventory ...... 587.3 341.8 41.80 452.3 285.7 36.82 Difference in % Reductions (M6.2–M5b) ...... ¥0.18 ...... 0.94 ‘‘Excess’’ Reductions with MOBILE6.2 (after NOX for VOC substitution at 0.61 to 0.83 ratio) ...... 0.0 ...... 0.81

This relative reduction comparison its analysis is performed. This analysis today. These budgets were developed shows that the reduction in NOX satisfies the conditions outlined in using the latest planning assumptions, emissions, on a percentage basis, is EPA’s MOBILE6 Policy guidance, and including 2000 vehicle registration data, greater in the revised MOBILE6-based demonstrates that the new levels of VMT, speeds, fleet mix, and SIP control inventories than in the previously motor vehicle emissions calculated measures. For the Connecticut portion approved MOBILE5 inventories. For using MOBILE6 continue to support of the New York-Northern New Jersey- VOC emissions, the relative reduction in achievement of the projected attainment Long Island nonattainment area, EPA is the revised MOBILE6-based inventories of the 1-Hour Ozone NAAQS by the approving budgets for 2005 and 2007, is slightly less than in the previously attainment date of 2007 for Connecticut and for the Greater Connecticut approved MOBILE5 inventories. ozone nonattainment areas. nonattainment area EPA is approving However, the ‘‘deficit’’ in VOC D. Are Connecticut’s Motor Vehicle budgets for 2007. reductions is more than offset with the Emissions Budgets Approvable? ‘‘excess’’ in NOX reductions when the Table 3 contains Connecticut’s technique that Connecticut DEP used in revised budgets that EPA is approving

TABLE 3.—MOBILE6.2 TRANSPORTATION CONFORMITY BUDGETS

Connecticut portion of the New York-Northern New Jersey-Long Island non- Greater Connecticut Year attainment area

VOC NOX VOC NOX (tons/day) (tons/day) (tons/day) (tons/day)

2005 ...... 19.5 36.8 NA NA 2007 ...... 16.4 29.7 51.9 98.4

As stated in section IIA above, EPA specified in EPA’s approvals of nonattainment area will be approved has posted an announcement on EPA’s Connecticut’s attainment effective 60 days from today. Once the Office of Transportation and Air Quality demonstrations.14 MOBILE6.2 budgets are approved, all Web site http://www.epa.gov/otaq/ Once the MOBILE6.2 2007 attainment future transportation conformity transp/conform/currsips.htm, initiating year motor vehicle emissions budgets analyses in Connecticut will be required the adequacy review process for the for the Connecticut portion of the New to demonstrate conformity with the new MOBILE6.2 2007 attainment year York-Northern New Jersey-Long Island MOBILE6.2 budgets. budgets for both areas in Connecticut in are deemed adequate, transportation air quality conformity analyses, prepared III. Final Action accordance with EPA guidance.12 The with MOBILE6.2, can be evaluated in EPA is approving Connecticut’s 2005 budgets for the Connecticut southwestern Connecticut using the SIP- revision submitted on June 17, 2003 portion of the New York-Northern New approved MOBILE5b 2005 and the containing 2005 and 2007 motor vehicle Jersey-Long Island nonattainment area MOBILE6.2 2007 budgets for the emissions budgets using MOBILE6.2 for must be approved before being used in emission budget tests. the Connecticut portion of the New a conformity analysis and are not The MOBILE6.2 budgets for 2005 and York-Northern New Jersey-Long Island subject to the adequacy process. The 2007 for the Connecticut portion of the nonattainment area and 2007 budgets 2007 MOBILE6.2 attainment year New York-Northern New Jersey-Long for the Greater Connecticut budgets may be used for conformity Island nonattainment area and for 2007 nonattainment area. determinations upon EPA’s for the Greater Connecticut The EPA is publishing this action determination of ‘‘adequate,’’ as without a prior proposal because the described in EPA guidance 13 and dated January 18, 2002; see http://www.epa.gov/ Agency views this as a noncontroversial otaq/models/mobile6/m6policy.pdf. amendment and anticipates no adverse 14 66 FR 63921–63938; (December 11, 2001) (see 12 Memorandum, ‘‘Conformity Guidance on page 63923 for a discussion regarding the MOBILE6 comments. However, in the proposed Implementation of March 2, 1999 Conformity Court conformity budget adequacy determination for the rules section of this Federal Register Decision,’’ issued May 14, 1999. A copy of this Southwest Connecticut area); 66 FR 633–663 publication, EPA is publishing a memorandum cab be found on EPA’s Web site at (January 3, 2001) (see page 635 for a discussion separate document that will serve as the www.epa.gov/otaq/transp/tranqconf.htm. regarding the MOBILE6 conformity budget 13 Policy Guidance on the Use of MOBILE6 for adequacy determination for the Greater Connecticut proposal to approve the SIP revision SIP Development and Transportation Conformity; area). should relevant adverse comments be

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filed. This rule will be effective as specified by Executive Order 13175 appropriate circuit by February 17, February 17, 2004 without further (65 FR 67249, November 9, 2000). This 2004. Interested parties should notice unless the Agency receives action also does not have federalism comment in response to the proposed relevant adverse comments by January implications because it does not have rule rather than petition for judicial 20, 2004. substantial direct effects on the States, review, unless the objection arises after If the EPA receives such comments, on the relationship between the national the comment period allowed for in the then EPA will publish a notice government and the States, or on the proposal. Filing a petition for withdrawing the final rule and distribution of power and reconsideration by the Administrator of informing the public that the rule will responsibilities among the various this final rule does not affect the finality not take effect. All public comments levels of government, as specified in of this rule for the purposes of judicial received will then be addressed in a Executive Order 13132 (64 FR 43255, review nor does it extend the time subsequent final rule based on the August 10, 1999), because it merely within which a petition for judicial proposed rule. The EPA will not approves a state rule implementing a review may be filed, and shall not institute a second comment period on federal standard, and does not alter the postpone the effectiveness of such rule the proposed rule. Only parties relationship or the distribution of power or action. This action may not be interested in commenting on the and responsibilities established in the challenged later in proceedings to proposed rule should do so at this time. Clean Air Act. This rule also is not enforce its requirements. (See section If EPA receives no such comments, the subject to Executive Order 13045 307(b)(2).) public is advised that this rule will be ‘‘Protection of Children from List of Subjects in 40 CFR Part 52 effective on February 17, 2004 and EPA Environmental Health Risks and Safety will take no further action on the Risks’’ (62 FR 19885, April 23, 1997), Environmental protection, Air proposed rule. Please note that if EPA because it is not economically pollution control, Carbon monoxide, receives adverse comment on an significant. Intergovernmental relations, Nitrogen amendment, paragraph, or section of In reviewing SIP submissions, EPA’s dioxide, Ozone, Reporting and this rule and if that provision may be role is to approve state choices, recordkeeping requirements, Volatile severed from the remainder of the rule, provided that they meet the criteria of organic compounds. EPA may adopt as final those provisions the Clean Air Act. In this context, in the Authority: 42 U.S.C. 7401 et seq. of the rule that are not the subject of an absence of a prior existing requirement Dated: December 10, 2003. adverse comment. for the State to use voluntary consensus standards (VCS), EPA has no authority Robert W. Varney, IV. Statutory and Executive Order to disapprove a SIP submission for Regional Administrator, EPA New England. Reviews failure to use VCS. It would thus be ■ Part 52 of chapter I, title 40 of the Code Under Executive Order 12866 (58 FR inconsistent with applicable law for of Federal Regulations is amended as 51735, October 4, 1993), this action is EPA, when it reviews a SIP submission, follows: not a ‘‘significant regulatory action’’ and to use VCS in place of a SIP submission therefore is not subject to review by the that otherwise satisfies the provisions of PART 52—[AMENDED] Office of Management and Budget. For the Clean Air Act. Thus, the ■ 1. The authority citation for part 52 this reason, this action is also not requirements of section 12(d) of the continues to read as follows: subject to Executive Order 13211, National Technology Transfer and ‘‘Actions Concerning Regulations That Advancement Act of 1995 (15 U.S.C. Authority: 42 U.S.C. 7401 et seq. Significantly Affect Energy Supply, 272 note) do not apply. This rule does Subpart H—Connecticut Distribution, or Use’’ (66 FR 28355, May not impose an information collection 22, 2001). This action merely approves burden under the provisions of the ■ 2. Section 52.377 is amended by state law as meeting federal Paperwork Reduction Act of 1995 (44 revising paragraphs (b), (c) and (d) to requirements and imposes no additional U.S.C. 3501 et seq.) read as follows: requirements beyond those imposed by The Congressional Review Act, 5 state law. Accordingly, the U.S.C. 801 et seq., as added by the Small § 52.377 Control strategy: Ozone. Administrator certifies that this rule Business Regulatory Enforcement * * * * * will not have a significant economic Fairness Act of 1996, generally provides (b) Approval—Revisions to the State impact on a substantial number of small that before a rule may take effect, the Implementation Plan submitted by the entities under the Regulatory Flexibility agency promulgating the rule must Connecticut Department of Act (5 U.S.C. 601 et seq.). Because this submit a rule report, which includes a Environmental Protection on September rule approves pre-existing requirements copy of the rule, to each House of the 16, 1998, February 8, 2000 and June 17, under state law and does not impose Congress and to the Comptroller General 2003. The revisions are for the purpose any additional enforceable duty beyond of the United States. EPA will submit a of satisfying the attainment that required by state law, it does not report containing this rule and other demonstration requirements of section contain any unfunded mandate or required information to the U.S. Senate, 182(c)(2)(A) of the Clean Air Act for the significantly or uniquely affect small the U.S. House of Representatives, and Greater Connecticut serious ozone governments, as described in the the Comptroller General of the United nonattainment area. The revision Unfunded Mandates Reform Act of 1995 States prior to publication of the rule in establishes an attainment date of (Public Law 104–4). the Federal Register. A major rule November 15, 2007 for the Greater This rule also does not have tribal cannot take effect until 60 days after it Connecticut serious ozone implications because it will not have a is published in the Federal Register. nonattainment area. Connecticut substantial direct effect on one or more This action is not a ‘‘major rule’’ as commits to conduct a mid-course Indian tribes, on the relationship defined by 5 U.S.C. 804(2). review to assess modeling and between the federal Government and Under section 307(b)(1) of the Clean monitoring progress achieved toward Indian tribes, or on the distribution of Air Act, petitions for judicial review of the goal of attainment by 2007, and power and responsibilities between the this action must be filed in the United submit the results to EPA by December federal Government and Indian tribes, States Court of Appeals for the 31, 2004. The June 17, 2003 revision

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establishes MOBILE6-based motor repair operations; and requirements to Basic Provisions vehicle emissions budgets for 2007 of reduce VOC emissions from certain In accordance with the requirements 51.9 tons per day of volatile organic consumer products. Connecticut also of the DCIA and the implementing compounds (VOC) and 98.4 tons per day commits to conduct a mid-course regulations issued by the Department of of nitrogen oxides (NOX) to be used in review to assess modeling and the Treasury at 31 CFR 285.2, the rule transportation conformity in the Greater monitoring progress achieved toward establishes the rules and procedures for Connecticut serious ozone the goal of attainment by 2007, and certifying and referring a past-due debt nonattainment area. submit the results to EPA by December to FMS for tax refund offset, correcting (c) Approval—Revisions to the State 31, 2004. and updating referral information Implementation Plan submitted by the transmitted to FMS, and providing the Connecticut Department of [FR Doc. 03–31234 Filed 12–17–03; 8:45 am] BILLING CODE 6560–50–P debtor with written notice at least 60 Environmental Protection on October days before the Department refers a debt 15, 2001 and June 17, 2003. These to FMS. This written notice informs the revisions are for the purpose of debtor of the nature and amount of the satisfying the rate of progress debt, that the debt is past-due and requirement of section 182 (c)(2)(B) DEPARTMENT OF HEALTH AND HUMAN SERVICES legally enforceable, that the Department through 2007, and the contingency intends to enforce collection by measure requirements of section 182 45 CFR Part 31 referring the debt to the Department of (c)(9) of the Clean Air Act, for the the Treasury for tax refund offset, and Connecticut portion of the NY–NJ–CT Tax Refund Offset that the debtor has a right to inspect and severe ozone nonattainment area. The copy Department records relating to the AGENCY: Department of Health and October 15, 2001 revision establishes debt, enter into a repayment agreement, Human Services. motor vehicle emissions budgets for and request review and present 2002 of 15.20 tons per day of VOC and ACTION: Final rule. evidence that all or part of the debt is 38.39 tons per day of NOX to be used not past-due or legally enforceable. in transportation conformity in the SUMMARY: The Department of Health and Connecticut portion of the NY–NJ–CT Human Services (HHS) is amending its Rules and Procedures severe ozone nonattainment area. The tax refund offset regulation to reflect Except for minor changes to make the June 17, 2003 revision establishes motor amendments to 31 U.S.C. 3720A made provisions agency-specific, the final rule vehicle emissions budgets for 2005 of by tax refund offset provisions of the is substantially identical to the Treasury 19.5 tons per day of VOC and 36.8 tons Debt Collection Improvement Act of Final Rule. In accordance with the per day of NOX to be used in 1996 (DCIA). The amended regulation substantive and procedural transportation conformity in the changes the process by which HHS requirements of the DCIA and the Connecticut portion of the NY–NJ–CT certifies and refers past-due debt to the Treasury Final Rule, the final rule severe ozone nonattainment area. Department of Treasury for tax refund establishes HHS rules and procedures (d) Approval—Revisions to the State offset to satisfy debt owed to the HHS. for: Implementation Plan submitted by the EFFECTIVE DATE: December 18, 2003. 1. Certifying and referring a past-due Connecticut Department of FOR FURTHER INFORMATION CONTACT: debt to FMS for tax refund offset. Environmental Protection on September 2. Correcting and updating referral 16, 1998, February 8, 2000, October 15, Katherine M. Drews, Associate General Counsel, General Law Division, Office information transmitted to FMS. 2001 and June 17, 2003. The revisions 3. Providing the debtor with written of the General Counsel, Cohen Building, are for the purpose of satisfying the notice at least 60 days before referring Room 4760, Washington DC 20201, attainment demonstration requirements a debt to FMS. This written notice must 202–619–0150. of section 182(c)(2)(A) of the Clean Air inform the debtor of the nature and Act for the Connecticut portion of the SUPPLEMENTARY INFORMATION: amount of the debt, that the debt is past- NY–NJ–CT severe ozone nonattainment Background due and legally enforceable, that the area. The June 17, 2003 revision Department intends to enforce establishes MOBILE6-based motor This final rule implements the tax collection by referring the debt to the vehicle emissions budgets for 2007 of refund offset provisions of the Debt Department of the Treasury for tax 16.4 tons per day of VOC and 29.7 tons Collection Improvement Act of 1996 refund offset, and that the debtor has a per day of NOX to be used in (DCIA), Pub. L. 104–134, 110 Stat. right to inspect and copy Department transportation conformity in the 1321–358, codified at 31 U.S.C. 3720A. records relating to the debt, enter into a Connecticut portion of the NY–NJ–CT As required by the tax refund offset repayment agreement, and request severe ozone nonattainment area. provisions of the DCIA, a Federal review and present evidence that all or Connecticut commits to adopt and agency owed a past-due debt must part of the debt is not past-due or legally submit by October 31, 2001, additional notify the Secretary of the Treasury of enforceable. necessary regional control measures to such debt for collection by tax refund offset the emission reduction shortfall in offset in accordance with regulations Analysis of and Responses to Public order to attain the one-hour ozone promulgated by the Secretary of the Comments standard by November 2007. Treasury. The Financial Management No public comments were received. Connecticut commits to adopt and Service (FMS), a bureau of the submit by October 31, 2001, additional Department of the Treasury (Treasury), Economic Impact necessary intrastate control measures to is responsible for promulgating the We have examined the impact of this offset the emission reduction shortfall in regulations implementing this and other rule as required by Executive Order order to attain the one-hour ozone debt collection tools established by the 12866 (September 1993, Regulatory standard by November 2007. DCIA. The Treasury Final Rule, as Planning and Review), as amended by Connecticut commits to adopt and amended, is published in section 285.2 Executive Order 13258 (February 2002, submit additional restrictions on VOC of title 31 of the Code of Federal Amending Executive Order 12866 on emissions from mobile equipment and Regulations. Regulatory Planning and Review) and

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the Regulatory Flexibility Act (RFA) reporting or record-keeping United States (including funds payable (September 19, 1980; Pub. L. 96–354), requirements on any member of the by the United States on behalf of a State the Unfunded Mandated Reform Act of public. government) to, or held by the United 1995 (Pub. L. 104–4), and Executive States for, a person to satisfy a claim. List of Subjects in 45 CFR Part 31 Order 13132 (August 1999, Federalism). Day means calendar day. For Executive Order 12866 (the Order), as Administrative practice and purposes of computation, the last day of amended by Executive Order 13258, procedure, Taxes, Claims, and Debts. the period will be included unless it is directs agencies to assess all costs and ■ For the reasons set forth in the a Saturday, Sunday, or a Federal legal benefits of available regulatory preamble, HHS amends 45 CFR Subtitle holiday, in which case the next business alternatives and, if regulation is A as follows: Revise part 31 to read as day will be considered the last day of necessary, to select regulatory follows: the period. approaches that maximize the benefits Debt or claim means an amount of (including potential economic, PART 31—TAX REFUND OFFSET money, funds, or other property environmental, public health and safety determined by an appropriate official to effects, distributive impacts, and Sec. be owed to the United States from any equity). A regulatory impact analysis 31.1 Purpose and scope. individual, entity, organization, (RIA) must be prepared for major rules 31.2 Definitions. association, partnership, corporation, or 31.3 General rule. with economically significant effects 31.4 Certification and referral of debt. State or local government or ($100 million or more in 1 year). We 31.5 Notice. subdivision, except another Federal have determined that the final rule is 31.6 Review of Departmental records. agency. consistent with the principles set forth 31.7 Review of a determination that a debt Debtor means an individual, in the Order, and we find that the final is past-due and legally enforceable. organization, association, partnership, rule would not have an effect on the Authority: 31 U.S.C. 3720A, 31 CFR 285.2, corporation, or State or local economy that exceeds $100 million in E.O. 12866, E.O. 13258. government or subdivision indebted to any one year. In addition, this rule is the Government, or the person or entity not a major rule as defined at 5 U.S.C. § 31.1 Purpose and scope. with legal responsibility for assuming 804(2). In accordance with the (a) Purpose. This part prescribes the the debtor’s obligation. provisions of the Order, the rule was Department’s standards and procedures Department means the Department of reviewed by the Office of Management for submitting past-due, legally Health and Human Services, and each of and Budget. enforceable debts to the Department of its Operating Divisions and regional It is hereby certified under the RFA the Treasury for collection by tax refund offices. that this final rule will not have a offset. Evidence of service means significant economic impact on a (b) Authority. These standards and information retained by the Department substantial number of small entities. procedures are authorized under the tax indicating the nature of the document to This final rule applies only to refund offset provision of the Deficit which it pertains, the date of mailing of individuals with past-due debts owed to Reduction Act of 1984, as amended by the document, and the address and the United States. the Debt Collection Improvement Act of name of the debtor to whom it is being Section 202 of the Unfunded 1996, codified at 31 U.S.C. 3720A, and sent. A copy of the dated and signed Mandates Reform Act of 1995 also the implementing regulations issued by written notice of intent to offset requires that agencies assess anticipated the Department of the Treasury at 31 provided to the debtor pursuant to this costs and benefits before issuing any CFR 285.2. part may be considered evidence of rule that may result in expenditure of in (c) Scope. (1) This part applies to all service for purposes of this regulation. any 1 year by State, local, or tribunal Departmental Operating Divisions and Evidence of service may be retained governments, in the aggregate, or by the Regional Offices that administer a electronically so long as the manner of private sector, of $100 million. As noted program that gives rise to a past-due retention is sufficient for evidentiary above, we find that the final rule would non-tax debt owed to the United States, purposes. not have an effect of this magnitude on and to all officers or employees of the FMS means the Financial the economy. Department authorized to collect such Management Service, a bureau within Executive Order 13132 establishes debt. This part does not apply to any the Department of the Treasury. certain requirements that an agency debt or claim owed to the Department IRS means the Internal Revenue must meet when it promulgates a of Health and Human Services by Service, a bureau of the Department of proposed rule (and subsequent final another Federal agency. the Treasury. rule) that imposes substantial direct (2) Nothing in this part precludes the Legally enforceable means that there requirement costs on State and local Department from pursuing other debt has been a final agency determination governments, preempts State law, or collection procedures, including that the debt, in the amount stated, is otherwise has Federalism implications. administrative wage garnishment under due and there are no legal bars to We have reviewed the final rule under part 32 of this title, to collect a debt that collection action. the threshold criteria of Executive Order has been submitted to the Department of Operating division means each 13132, Federalism, and have the Treasury under this part. The separate component, within the determined that this final rule would Department may use such debt Department of Health and Human not have substantial direct impact on collection procedures separately or in Services, including, but not limited to, States, or on the distribution of power conjunction with the offset collection the Administration for Children and and responsibilities among the various procedures of this part. Families, Administration on Aging, the levels of government. As there are no Centers for Disease Control and Federalism implications, a Federalism § 31.2 Definitions. Prevention, the Centers for Medicare & impact statement is not required. In this part, unless the context Medicaid Services, the Food and Drug For purposes of the Paperwork otherwise requires: Administration, the National Institutes Reduction Act, 44 U.S.C. chapter 35, Administrative offset means of Health, and the Office of the this final rule will impose no new withholding funds payable by the Secretary.

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Past-due debt means a debt which the debt is referred within ten (10) years (2) The Department shall provide the debtor does not pay or otherwise resolve after the Department’s right of action certification required under paragraph by the date specified in the initial accrues; (a) of this section for any increases to demand for payment, or in an (3) The Department has made amounts owed. applicable written repayment agreement reasonable efforts to obtain payment of (d) Rejection of certification. If the or other instrument, including a post- the debt, and has: Department of Treasury rejects a delinquency repayment agreement. (i) Submitted the debt to FMS for certification because it does not comply Secretary means the Secretary of the collection by offset and complied with with the requirements of paragraph (a) Department of Health and Human the administrative offset provision of 31 of this section, upon notification of the Services, or the Secretary’s designee U.S.C. 3716(a) and related regulations, rejection and the reason(s) for rejection, within any Operating Division or to the extent that collection by the Secretary will resubmit the debt Regional Office. administrative offset is not prohibited with a corrected certification. Taxpayer identifying number means by statute; the identifying number described under (ii) Notified, or made a reasonable § 31.5 Notice. section 6109 of the Internal Revenue attempt to notify, the debtor that the (a) Requirements. If not previously Code of 1986 (26 U.S.C. 6109). For an debt is past-due, and unless paid within included in the initial demand letter individual, the taxpayer identifying 60 days of the date of the notice, the provided under section 30.11, at least 60 number is the individual’s social debt may be referred to Treasury for tax days before referring a debt for tax security number. refund offset. For purposes of this refund offset, the Secretary shall mail, Tax refund offset means withholding regulation, the Department has made a by first class mail to the debtor’s last or reducing a tax refund payment by an reasonable attempt to notify the debtor known address, written notice amount necessary to satisfy a debt owed if the agency uses the current address informing the debtor of: to the United States by the payee(s) of information contained in the a tax refund payment. Department’s records related to the debt. (1) The nature and amount of the Tax refund payment means any If address validation is desired or debt; overpayment of Federal taxes to be necessary, the Department may obtain (2) The determination that the debt is refunded to the person making the information from the IRS pursuant to 26 past-due and legally enforceable, and overpayment after the IRS makes the U.S.C. 6103(m)(2)(4) or (5). unless paid within 60 days after the date appropriate credits as provided in 26 (iii) Given the debtor at least 60 days of the notice, the Secretary intends to U.S.C. 6402 for any liabilities for any tax to present evidence that all or part of the enforce collection by referring the debt on the part of the person who made the debt is not past-due or not legally the Department of the Treasury for tax overpayment. enforceable, considered any evidence refund offset; and presented by the debtor, and determined (3) The debtor’s rights to: § 31.3 General rule. that the debt is past-due and legally (a) Any past-due, legally enforceable (i) Inspect and copy Department enforceable; and records relating to the debt; debt of at least $25, or such other (iv) Provided the debtor with an minimum amount as determined by the opportunity to make a written (ii) Enter into written agreement to Secretary of the Treasury, shall be agreement to repay the debt; and repay the amount of the debt; submitted to FMS for collection by tax (4) The debt is at least $25. (iii) Request review and present refund offset. (b) Referral. (1) The Secretary shall evidence that all or part of the debt is (b) FMS will compare tax refund submit past-due, legally enforceable not past-due or not legally enforceable. payment records, as certified by the IRS, debt information for tax refund offset in (b) The Secretary will retain evidence with records of debts submitted by the the time and manner prescribed by the of service indicating the date of mailing Department under this part. A match Department of the Treasury. of the notice. The notice may be will occur when the taxpayer (2) For each debt referred under this retained electronically so long as the identification number and name of a part, the Secretary will include the manner of retention is sufficient for payment certification record are the following information: evidentiary purposes same as the taxpayer identifying number (i) The name and taxpayer identifying and name control of a debtor record. number, as defined in 26 U.S.C. 6109, § 31.6 Review of Departmental records. When a match occurs and all other of the debtor responsible for the debt; (a) To inspect or copy Departmental requirements for tax refund offset have (ii) The amount of such past-due and records relating to the debt, the debtor been met, FMS will reduce the amount legally enforceable debt; must send a written request to the of any tax refund payment payable to a (iii) The date on which the debt address designated in the notice debtor by the amount of any past-due became past-due; and described in section 31.5. The request legally enforceable debt. Any amounts (iv) The designation of the must be received by the Department not offset will be paid to the payee(s) Department referring the debt. within 60 days from the date of the listed in the payment certification (c) Correcting and updating referral. notice. record. (1) After referring a debt under this part, the Secretary shall promptly notify the (b) In response to a timely request as § 31.4 Certification and referral of debt. Department of the Treasury if: described in paragraph (a) of this (a) Certification. The Secretary shall (i) An error was made with respect to section, the designated Department certify to FMS that: information transmitted to the official shall notify the debtor of the (1) The debt is past-due and legally Department of the Treasury; location and time when the debtor may enforceable in the amount submitted (ii) The Department receives a inspect and copy such records. If the and that the Department will ensure that payment or credits a payment to the debtor is unable to personally inspect collections are properly credited to the account of a debtor referred for tax such records as the result of debt; refund offset; or geographical or other constraints, the (2) Except in the case of a judgment (iii) The debt amount is otherwise Department will arrange to send copies debt or as otherwise allowed by law, the incorrect. of the records to the debtor.

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§ 31.7 Review of a determination that a the evidence that the debtor believes make a determination based on the debt is past-due and legally enforceable. supports the debtor’s position. The review of the written record, and shall (a) Requesting a review. (1) If the debtor must submit with the request any send a written notice of its decision to debtor believes that all or part of the documents that the debtor wishes to be the debtor. There is no administrative debt is not past-due or not legally considered, or the debtor must state in appeal of this decision. enforceable, the debtor may request a the request that additional information (c) A debt that previously has been review by the Department by sending a will be submitted within the above written request to the address provided specified time period. reviewed pursuant to this part, or that in the notice. The written request must (3) Failure to timely request a review has been reduced to a judgment, will be received by the Department within will be deemed an admission by the not be reconsidered under this part 60 days from the date of the notice or, debtor that the debt is past-due and unless the evidence presented by the if the debtor has requested to inspect the legally enforceable, and will result in a debtor disputes payments made or records, within 30 days from the referral of the debt to the Department of events occurring subsequent to the debtor’s inspection of the records or the the Treasury without further action. previous review or judgment. Department’s mailing of the records (b) Review. Upon the timely Dated: September 22, 2003. under section 31.6(b), whichever is submission of evidence by the debtor, Tommy G. Thompson, later. the Department shall review the dispute (2) The request for review must be and shall consider its records and any Secretary. signed by the debtor, state the amount documentation and evidence submitted [FR Doc. 03–31043 Filed 12–17–03; 8:45 am] disputed, and fully identify and explain by the debtor. The Department shall BILLING CODE 4150–26–P

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Proposed Rules Federal Register Vol. 68, No. 243

Thursday, December 18, 2003

This section of the FEDERAL REGISTER address in your message and ‘‘Docket Section 319.56–6 also provides that any contains notices to the public of the proposed No. 02–106–1’’ on the subject line. shipment of fruits and vegetables may issuance of rules and regulations. The You may read any comments that we be refused entry if the shipment is so purpose of these notices is to give interested receive on this docket in our reading infested with plant pests that an persons an opportunity to participate in the room. The reading room is located in inspector determines that it cannot be rule making prior to the adoption of the final room 1141 of the USDA South Building, rules. cleaned or treated. 14th Street and Independence Avenue Some of the fruits and vegetables SW., Washington, DC. Normal reading proposed for importation would have to DEPARTMENT OF AGRICULTURE room hours are 8 a.m. to 4:30 p.m., meet other special conditions. The Monday through Friday, except proposed conditions of entry, which are Animal and Plant Health Inspection holidays. To be sure someone is there to discussed below, appear adequate to Service help you, please call (202) 690–2817 prevent the introduction and spread of before coming. quarantine pests through the 7 CFR Part 319 APHIS documents published in the importation of these fruits and Federal Register, and related vegetables. [Docket No. 02–106–1] information, including the names of We have prepared a pest risk assessment or, in two cases, a decision Importation of Fruits and Vegetables organizations and individuals who have commented on APHIS dockets, are sheet, for each of the fruits and AGENCY: Animal and Plant Health available on the Internet at http:// vegetables that we propose to add, Inspection Service, USDA. www.aphis.usda.gov/ppd/rad/ unless we have allowed their entry ACTION: Proposed rule. webrepor.html. previously under a permit. Copies of the pest risk assessments and decision FOR FURTHER INFORMATION CONTACT: Mr. SUMMARY: We propose to amend the sheets are available from the person Wayne Burnett, Senior Import fruits and vegetables regulations to list listed under FOR FURTHER INFORMATION Specialist, PPQ, APHIS, 4700 River a number of fruits and vegetables from CONTACT. Road Unit 140, Riverdale, MD 20737– certain parts of the world as eligible, We also propose to make other 1236; (301) 734–6799. under specified conditions, for amendments to update and clarify the importation into the United States. All SUPPLEMENTARY INFORMATION: regulations and improve their of the fruits and vegetables, as a Background effectiveness. Our proposed condition of entry, would be inspected amendments are discussed below by The regulations in ‘‘Subpart—Fruits and subject to treatment at the port of topic. and Vegetables’’ (7 CFR 319.56 through first arrival as may be required by an 319.56–8, referred to below as the Inspected and Subject to Disinfection inspector. In addition, some of the fruits regulations) prohibit or restrict the and vegetables would be required to Section 319.56–2t lists fruits and importation of fruits and vegetables into meet other special conditions. We also vegetables that may be imported into the the United States from certain parts of propose to recognize areas in Peru as United States upon inspection and the world to prevent the introduction free from the South American cucurbit subject to disinfection. We propose to and spread of plant pests that are new fly. These actions would provide the amend that list to include additional to or not widely distributed within the United States with additional types and fruits and vegetables from certain United States. sources of fruits and vegetables while countries; some of the fruits and At the request of various importers vegetables would be added in response continuing to protect against the and foreign ministries of agriculture, we introduction of quarantine pests through to requests that we have received, while propose to amend the regulations to list others have been imported into the imported fruits and vegetables. a number of fruits and vegetables from United States under a permit but are not DATES: We will consider all comments certain parts of the world as eligible, listed in the regulations. We also that we receive on or before February under certain conditions, for propose to make miscellaneous, 17, 2004. importation into the United States. We nonsubstantive changes to § 319.56–2t. ADDRESSES: You may submit comments also propose to list certain fruits and All of these proposed changes are by postal mail/commercial delivery or vegetables that have been imported into discussed below. by e-mail. If you use postal mail/ the United States under a permit commercial delivery, please send four without being specifically listed in the African Horned Cucumber From Chile copies of your comment (an original and regulations to improve the transparency We propose to amend § 319.56–2t to three copies) to: Docket No. 02–106–1, of our regulations. allow the entry of the African horned Regulatory Analysis and Development, The fruits and vegetables referred to cucumber (Cucumis metuliferus) fruit PPD, APHIS, Station 3C71, 4700 River in this document would have to be from Chile. The pest risk assessment Road Unit 118, Riverdale, MD 20737– imported under a permit and would be indicates that there are no quarantine 1238. Please state that your comment subject to the requirements in § 319.56– pests associated with the African refers to Docket No. 02–106–1. If you 6 of the regulations. Under § 319.56–6, horned cucumber fruit from Chile that use e-mail, address your comment to all imported fruits and vegetables, as a are likely to follow the import pathway. [email protected]. Your condition of entry into the United Therefore, we believe that the African comment must be contained in the body States, must be inspected; they are also horned cucumber from Chile may be of your message; do not send attached subject to disinfection at the port of first imported into the United States under files. Please include your name and arrival if an inspector requires it. the requirements in § 319.56–6. The pest

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risk assessment was limited to the Inspection Service (APHIS) periodically (2) It has been treated or is to be continental United States. Therefore, we observed the survey. More information treated for all quarantine pests in the would require African horned cucumber on the survey and copies of the report country of origin, in accordance with from Chile to be shipped in boxes may be obtained from the person listed conditions and procedures that may be labeled ‘‘Not for importation or under FOR FURTHER INFORMATION prescribed by the Administrator. distribution in HI, PR, VI, or Guam.’’ CONTACT. (3) It is imported from a definite area Annona spp. from Grenada We would limit imports of Annona or district in the country of origin that spp. fruit to commercial shipments is free from all quarantine pests that We propose to amend § 319.56–2t to because produce grown commercially is attack the fruit or vegetable and its allow the entry of commercial fruit less likely to be infested with plant importation is in compliance with the shipments of cherimoya (Annona pests than noncommercial shipments. criteria of § 319.56–2(f). cherimola), soursop (A. muricata), Noncommercial shipments are more (4) It is imported from a definite area custard apple (A. reticulata), sugar prone to infestations because the or district of the country of origin that apple (A. squamosa), and atemoya (A. × commodity is often ripe to overripe, is free from quarantine pests that attack squamosa A. cherimola) into the could be a variety with unknown the fruit or vegetable and the criteria of United States from Grenada. susceptibility to pests, and is often § 319.56–2(f) are met with regard to The Government of Grenada grown with little or no pest control. those quarantine pests, provided that all requested that we authorize the Commercial shipments, as defined in importation of these commodities other quarantine pests that attack the § 319.56–1, are shipments of fruits and several years ago, before we routinely fruit or vegetable in the area or district vegetables that an inspector identifies as prepared pest risk assessments of the country of origin have been having been produced for sale and according to the guidelines provided by eliminated from the fruit or vegetable by distribution in mass markets. the Food and Agriculture Organization treatment or any other procedures that and the North American Plant Identification of a particular shipment may be prescribed by the Administrator. Protection Organization. At that time, as commercial is based on a variety of Prior to 1992, APHIS did not we prepared decision sheets. Decision indicators, including, but not limited to, specifically amend the regulations to list sheets contain relatively the same the quantity of produce, the type of those fruits and vegetables for which we information that is contained in modern packaging, identification of a grower or issued a permit after determining that pest risk assessments, but without the packing house on the packaging, and the fruit or vegetable was eligible for standardized format. documents consigning the shipment to entry under the regulations in § 319.56– The decision sheet identified three a wholesaler or retailer. 2(e). However, in 1992, in an effort to internal feeders as quarantine pests in Based on the survey results and the increase transparency, we changed our the West Indies: Bephratelloides decision sheet, we believe that approach and began to amend the cubensis, Talponia batesi, and restricting imports of Annona spp. fruit regulations to specifically list all newly Cerconota anonella. Because of the to commercial shipments and requiring eligible fruits and vegetables (i.e., those possibility that these internal feeders inspection at the port of first arrival that were not previously eligible under may have existed in Grenada, we did would be adequate to mitigate any pest a specific administrative instruction or not issue a permit to allow the risks. Therefore, we propose to list imported under permit in accordance importation of Annona spp. fruit. Annona spp. fruits from Grenada in with § 319.56–2(e)). In most cases, we Subsequently, Grenada informed us that § 319.56–2t. have not amended the regulations to list the fruits and vegetables that were they did not have those pests. We Fruits and Vegetables From Mexico agreed to reconsider their import allowed entry exclusively under permit request if a survey determined that the The regulations in § 319.56–2(e) prior to our decision to specifically list internal feeders were indeed not present provide that any fruit or vegetable, the commodities in the regulations. in Annona spp. fruit grown in Grenada. except those otherwise restricted, may In this document, we propose to list Grenada conducted a 3-year survey for be imported under permit if APHIS is the following fruits and vegetables in the internal feeders and sampled more satisfied that the fruit or vegetable meets § 319.56–2t. These fruits and vegetables, than 16,000 fruits, and no internal one of several conditions: which we determined meet the criteria feeders or quarantine pests were found. (1) The fruit or vegetable is not of § 319.56–2(e)(4), have been imported In addition to approving the survey attacked in the country of origin by into the United States from Mexico protocol, the Animal and Plant Health quarantine pests. under permit since before 1992.

Common name Botanical name Plant part(s)

Allium ...... Allium spp ...... Whole plant. Asparagus ...... Asparagus officinalis ...... Whole plant. Beet ...... Beta vulgaris ...... Whole plant. Carrot ...... Daucus carota ...... Whole plant. Coconut ...... Cocos nucifera ...... Fruit without husk. Eggplant ...... Solanum melongena ...... Whole plant. Grape ...... Vitis spp ...... Fruit, cluster, leaves. Jicama ...... Pachyrhizus tuberosus ...... Whole plant. Lemon ...... Citrus limon ...... Fruit. Lime, sour ...... Citrus aurantiifolia ...... Fruit. Parsley ...... Petroselinum crispum ...... Whole plant. Pineapple ...... Ananas comosus ...... Fruit. Prickly-pear pad ...... Opuntia spp ...... Pad. Radish ...... Raphanus sativus ...... Whole plant. Tomato ...... Lycopersicon lycopersicum ...... Whole plant. Tuna ...... Opuntia spp ...... Fruit.

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In addition, although the flower of inspection at the port of first arrival is found free of D. neobrevipes and P. banana (Musa spp.) and the sufficient to mitigate the risk. minor. These additional conditions inflorescence of cucurbits To mitigate the risk associated with would be necessary to assure us that the (Cucurbitaceae) are currently listed in lethal yellowing disease, we propose to product originated in a fruit fly-free area § 319.56–2t as admissible plant parts allow coconut fruit with milk and husk and was inspected and found free of the from Mexico, the fruit of banana and the to be imported into the United States specified mealybugs. flower and fruit of cucurbits have been from Mexico under conditions similar to Because the pest risk assessment was admissible as well under permit. the existing conditions for the limited to the continental United States, Therefore, we propose to amend the importation of seed coconuts from Costa we would require pitaya from Mexico to existing entries for bananas and Rica and Jamaica. Seed coconuts be shipped in boxes labeled ‘‘Not for cucurbits from Mexico so that all imported into the United States from importation or distribution in HI, PR, admissible plant parts of those Costa Rica or Jamaica must be of either VI, or Guam.’’ commodities are listed in § 319.56–2t. the Malayan dwarf variety or the We believe that these proposed While a few quarantine pests have Maypan variety, which are resistant to conditions are adequate to prevent the been detected on these particular fruits lethal yellowing disease. The seed introduction of the quarantine pests of and vegetables during inspection at the coconuts must be accompanied by a concern. Therefore, we propose to list ports, they have been eliminated from phytosanitary certificate which declares pitaya from Mexico in § 319.56–2t. the fruit or vegetable by treatment or that the coconuts are either the Malayan Other Amendments to § 319.56–2t other procedures. Therefore, we believe dwarf variety or the Maypan variety. that these fruits and vegetables, or plant Therefore, we are proposing to require In many cases, the entries for specific parts, should be listed in § 319.56–2t so that the coconut fruit with milk and fruits and vegetables in the table in that the regulations specifically indicate husk be accompanied by a § 319.56–2t include additional that these commodities may be phytosanitary certificate issued by the conditions, such as restrictions on the imported from Mexico. In accordance national plant protection organization distribution of the fruit or vegetable or with § 319.56–6, these fruits and (NPPO) of Mexico with an additional a requirement that the fruit or vegetable vegetables would continue to be declaration stating that the fruit is of the originate in a pest-free area and be so inspected at the port of first arrival and, Malayan dwarf variety or Maypan certified on a phytosanitary certificate. if required by an inspector, disinfected variety (=F1 hybrid, Malayan We propose to remove those additional at the port of first arrival. Dwarf×Panama Tall), based on conditions from the table and place verification of the parent stock. them in a new paragraph (b) in Coconut Fruit With Milk and Husk Inspection at the port of entry would § 319.56–2t. In the table, the entries in From Mexico further mitigate the risk associated with which the additional conditions had In 1989, we prepared a decision sheet lethal yellowing disease. We believe appeared would instead include a in response to Mexico’s request to that these proposed conditions are reference to the paragraph or paragraphs export coconut fruit with milk and husk adequate to prevent the introduction of in the new paragraph (b) where the to the United States. Because we the quarantine pests of concern. applicable conditions would appear. We identified two quarantine pests of Therefore, we propose to list coconut believe this reorganization of the concern (the red ring nematode fruit with milk and husk from Mexico information contained in the table [Rhadinaphelenchus cocophlus] and in § 319.56–2t. would make the table easier to read and lethal yellowing disease), we denied the use and would eliminate the need to request. Pitaya From Mexico repeat the same conditions multiple Since that time, however, we have Based on a pest risk assessment times when those conditions apply to determined that the risk associated with conducted for pitaya from Mexico that more than one fruit or vegetable. red ring nematode is low. In 1992, we identified the pests of concern as the In order to minimize the number of amended 7 CFR 319.37–5(g) to allow Mediterranean fruit fly (Medfly, restrictions in the proposed new seed coconuts to be imported into the Ceratitis capitata), fruit flies of the paragraph (b), we would state certain United States from Costa Rica, where genus Anastrepha, gray pineapple requirements more generally. For the red ring nematode is also known to mealybug (Dymicoccus neobrevipes), instance, rather than stating that a occur, since the risk associated with and passionvine mealybug (Planococcus phytosanitary certificate must be issued introducing red ring nematode in seed minor), we propose to allow the entry of by the NPPO of a specific country, we coconuts was determined to be low. pitaya from Mexico only under certain would state that the phytosanitary Prior to that amendment, the conditions. certificate must be issued by the NPPO importation of seed coconut was In addition to requiring that pitaya of the country of origin. Because the allowed only from Jamaica, where the from Mexico be subject to inspection term ‘‘country of origin’’ is not defined red ring nematode is not known to and disinfection at the port of entry, we in the regulations, we propose to add a occur. Given that the risk associated would require that the pitaya be grown definition of the term ‘‘country of with the red ring nematode is the same in an area that has been recognized as origin’’ in § 319.56–1. The term for seed coconuts and coconuts with a fruit fly-free area. The regulations in ‘‘country of origin’’ would be defined as milk and husk, and that seed coconut § 319.56–2(h) list the municipalities in ‘‘Country where the plants from which from Costa Rica has been successfully Mexico that APHIS has determined the plant products are derived were imported into the United States for over meet the criteria of § 319.56–2(e) and (f) grown,’’ which is consistent with the a decade, we have reconsidered with regard to freedom from the Medfly definition provided in the standards of Mexico’s request and propose to allow and fruit flies of the genus Anastrepha. the International Plant Protection coconut fruit with milk and husk to be The fruit would have to be Convention of the United Nations’ Food imported into the United States from accompanied by a phytosanitary and Agriculture Organization. Mexico if inspected at the port of first certificate issued by Mexico’s NPPO The entries for some of the fruits and arrival in accordance with § 319.56–6. declaring that the fruit originated in an vegetables in the current regulations Because the risk associated with the red area designated in § 319.56–2(h) as free specify that the commodity may not be ring nematode is low, we believe that from pests and, upon inspection, was imported into or distributed within

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certain areas. For example, papaya from prevent the introduction into the United are in § 319.56–2aa. Because these Guatemala is prohibited entry into States of the South American cucurbit sections are similar, we propose to Hawaii due to the papaya fruit fly, and fly and the gray pineapple mealybug. combine them into a single section, cartons in which fruit is packed must be These proposed conditions, which are which would also contain the stamped ‘‘Not for importation into or discussed below, are similar to the requirements described above for distribution within HI.’’ However, for existing conditions under which certain melons and watermelon from Peru. The other commodities, such as dasheen melon and watermelon may be imported section would be entitled ‘‘Conditions from Indonesia, the required statement from Ecuador (§ 319.56–2y) and from governing the entry of melon and refers only to distribution (i.e., the Brazil and Venezuela (§ 319.56–2aa). watermelon from South America.’’ statement does not refer to both The melon and watermelon would Specific reference to each country’s importation and distribution). For have to be grown in areas of Peru agricultural department would be consistency, we would specify that the considered by APHIS to be free of the changed to the more general reference of importation into, as well as the South American cucurbit fly. Peru the country’s NPPO, thus avoiding the distribution within, certain areas is recently provided APHIS with fruit fly need to amend the regulations should prohibited. survey data that demonstrate that the the specific name of the NPPO change. Under § 319.56–2t, lucuma, mountain Departments of Lima, Ica, Arequipa, In § 319.56–2y(a)(2), ‘‘South American papaya, and sand pear from Chile may Moquegua, and Tacna meet the criteria cucurbit fruit fly’’ would be corrected to be imported from a Medfly-free area. for freedom in § 319.56–2(e) and (f) ‘‘South American cucurbit fly However, the regulations do not specify relative to the South American cucurbit (Anastrepha grandis).’’ The requirement that a phytosanitary certificate declaring fly. (The survey data is available upon for phytosanitary certificates for that the commodity was grown in a request from the person listed under FOR cantaloupe, honeydew melon, and Medfly-free area must accompany the FURTHER INFORMATION CONTACT.) watermelon from Brazil and Venezuela, shipment. We propose to add that Therefore, we propose to consider those which would be moved from § 319.56– requirement for those commodities. areas as free of the South American 2aa(a)(2) to § 319.56–2y(b)(1) for Brazil We also propose to make grammatical cucurbit fly in Peru and to list them as and § 319.56–2y(c)(1) for Venezuela, changes and updates throughout the list such. would be amended to modify the of fruits and vegetables. The footnote for In addition, shipments of melon and requirement for the additional Haiti concerning Executive Order 12779 watermelon would have to be declaration. Rather than requiring that would be removed because that accompanied by a phytosanitary the declaration indicate that the Executive order was revoked on October certificate issued by the Peruvian NPPO cantaloupe or melons were grown in an 16, 1994 (59 FR 52403, published that includes a declaration that the fruit area recognized to be free of the South October 18, 1994). The footnote was grown in an area recognized to be American cucurbit fly, we would requiring that no green may be visible free of the South American cucurbit fly, replace the terms ‘‘cantaloupe or on the shoot of asparagus from Austria and upon inspection, was found free of melons’’ with the more general term would be removed and added to the the gray pineapple mealybug. We would ‘‘fruit.’’ Because we are combining two entry for asparagus from Austria. We also specify in the regulations that only sections into a single section, changes would also amend the entry for commercial shipments of melon and such as updating references to ‘‘this watermelon from Spain by changing the watermelon from Peru may be imported, section’’ to read ‘‘this paragraph’’ would scientific name provided for given that, as discussed previously with be necessary. In addition, we would watermelon from Citrullus vulgaris to C. respect to Annona spp. fruit from make other minor, nonsubstantive lanatus. C. lanatus is the most current Grenada, produce grown commercially grammatical and style changes for scientific name for watermelon, and C. is less likely to be infested with plant consistency. vulgaris is a synonym. pests than noncommercial shipments. The pest risk assessment was limited Watermelon, Squash, Cucumber, and Melon and Watermelon From Certain to the continental United States. Oriental Melon From the Republic of Countries in South America Therefore, we would require melon and Korea We propose to amend the regulations watermelon from Peru to be shipped in We propose to allow watermelon, to allow the entry of commercial boxes labeled ‘‘Not for distribution in squash (Curcurbita maxima), cucumber shipments of watermelon and several HI, PR, VI, or Guam.’’ All shipments of (Cucumis sativus), and oriental melon varieties of melon (Cucumis melo L. melon and watermelon would have to (C. melo) to be imported into the United subsp. melo) into the United States from be labeled in accordance with § 319.56– States from the Republic of Korea under Peru. The specific varieties of melon 2(g), which states, in part, that the box certain conditions, which would be set that would be considered for of fruit imported into the United States forth in § 319.56–2aa. (As discussed importation include cantaloupe, netted must be clearly labeled with the name above, the current § 319.56–2aa would melon (muskmelon, nutmeg melon, and of the orchard or grove of origin, or the be combined with § 319.56–2y.) These Persian melon), vegetable melon (snake name of the grower; and the name of the fruits can be the host of several melon and oriental pickling melon), and municipality and State in which it was quarantine pests, including the winter melon (honeydew and casaba produced; and the type and amount of pumpkin fruit fly (Bactrocera depressa), melon). fruit it contains. the cotton caterpillar (Diaphania At the request of the Government of We believe that the above conditions indica), and the Asian corn borer Peru, we conducted a pest risk would be adequate to guard against the (Ostrinia furnacalis), which were assessment for melon and watermelon introduction of quarantine pests into the identified as pests with high pest-risk from Peru. In that assessment, we United States with melon and potential in the pest risk assessment. identified the pests of concern as the watermelon imported from Peru. The cucumber green mottle mosaic South American cucurbit fly (A. As noted previously, the requirements virus was identified as a quarantine pest grandis) and the gray pineapple for cantaloupe and watermelon from with medium pest-risk potential in the mealybug. We propose to allow the Ecuador are in § 319.56–2y, and the pest risk assessment. entry of melon and watermelon from requirements for melons and We believe that the following Peru only under certain conditions to watermelon from Brazil and Venezuela conditions would guard against the

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entry of the specified quarantine pests from the Republic of Korea into the in shipments of watermelon, squash, United States: cucumber, and oriental melon imported

Condition Quarantine pest to which it applies

The watermelon, squash, cucumber, and oriental melon must be grown in pest- B. depressa, D. indica, O. furnacalis. proof greenhouses registered with the Republic of Korea’s NPPO. The NPPO must inspect and regularly monitor greenhouses for plant pests. The B. depressa, D. indica, O. furnacalis, cucumber green mottle NPPO must inspect greenhouses and plants, including fruit, at intervals of no mosaic virus. more than 2 weeks, from the time of fruit set until the end of harvest. The NPPO must set and maintain fruit fly traps in greenhouses from October 1 to B. depressa. April 30. The number of traps must be set as follows: Two traps for green- houses smaller than 0.2 hectare in size; three traps for greenhouses 0.2 to 0.5 hectare; four traps for greenhouses over 0.5 hectare and up to 1.0 hectare; and for greenhouses greater than 1 hectare, traps must be placed at a rate of four traps per hectare. The NPPO must check all traps once every 2 weeks. If a single pumpkin fruit fly B. depressa. is captured, that greenhouse will lose its registration until trapping shows that the infestation has been eradicated. The fruit may be shipped only from December 1 through April 30 ...... B. depressa. Each shipment must be accompanied by a phytosanitary certificate issued by B. depressa, D. indica, O. furnacalis, cucumber green mottle NPPO, with the following additional declaration: ‘‘The regulated articles in this mosaic virus. shipment were grown in registered greenhouses as specified by 7 CFR 319.56–2aa’’. Each shipment must be protected from pest infestation from harvest until export. B. depressa, D. indica, O. furnacalis. Newly harvested fruits must be covered with insect-proof mesh or a plastic tar- paulin while moving to the packinghouse and awaiting packing. Fruit must be packed within 24 hours of harvesting, in an enclosed container or vehicle or in insect-proof cartons or cartons covered with insect-proof mesh or plastic tar- paulin, and then placed in containers for shipment. These safeguards must be intact when the shipment arrives at the port in the United States.

Grapes from the Republic of Korea of the vines shows that the infestation any significant economic effect on a has been eradicated. substantial number of small entities. We propose to allow the importation (3) Fruit must be bagged from the time However, we do not currently have all of grapes (Vitis spp.) into the United the fruit sets until harvest. of the data necessary for a States from the Republic of Korea under (4) Each shipment must be inspected comprehensive analysis of the effects of certain conditions that would be set by NPPO before export. For each this proposed rule on small entities. forth in a new § 319.56–2ll. The shipment, NPPO must issue a Therefore, we are inviting comments on quarantine pests of concern for grapes phytosanitary certificate with an potential effects. In particular, we are grown in the Republic of Korea that additional declaration stating that the interested in determining the number were rated ‘‘high’’ in the pest risk fruit in the shipment was found free and kind of small entities that may assessment are the yellow peach moth from C. punctiferalis, E. ambiguella, S. incur benefits or costs from the (Conogethes punctiferalis), grapevine pilleriana, S. auriferella, M. fructigena, implementation of this proposed rule. moth (Eupoecilia ambiguella), leaf- and N. vitis. Under the Plant Protection Act (7 rolling torix (Sparganothis pilleriana), We believe that these proposed U.S.C. 7701–7772), the Secretary of apple heliodinid (Stathmopoda growing, inspection, and shipping Agriculture is authorized to regulate the auriferella), and the plant pathogenic requirements would be adequate to importation of plants, plant products, fungus Monilinia fructigena. Another prevent the introduction of quarantine and other articles to prevent the quarantine pest of concern is the moth pests into the United States with grapes introduction of plant pests into the Nippoptilia vitis, which was rated imported from the Republic of Korea. United States or the dissemination of ‘‘medium’’ in the pest risk assessment. plant pests within the United States. We propose the following phytosanitary Executive Order 12866 and Regulatory We propose to amend the fruits and measures to guard against the entry of Flexibility Act vegetables regulations to list a number quarantine pests in shipments of grapes This proposed rule has been reviewed of fruits and vegetables from certain imported from the Republic of Korea under Executive Order 12866. The rule parts of the world as eligible, under into the United States: has been determined to be not specified conditions, for importation (1) The fields where the grapes are significant for the purposes of Executive into the United States. All of the fruits grown must be inspected during the Order 12866 and, therefore, has not and vegetables, as a condition of entry, growing season by the NPPO. The NPPO been reviewed by the Office of would be inspected and subject to such must inspect 250 grapevines per Management and Budget. disinfection at the port of first arrival as hectare, inspecting leaves, stems, and In accordance with 5 U.S.C. 603, we may be required by an inspector. In fruit of the vines. have performed an initial regulatory addition, some of the fruits and (2) If evidence of C. punctiferalis, E. flexibility analysis, which is set out vegetables would be required to meet ambiguella, S. pilleriana, S. auriferella, below, regarding the economic effects of other special conditions. We also or M. fructigena is detected during this proposed rule on small entities. propose to recognize areas in Peru as inspection, the field will immediately Based on the information we have, there free from the South American cucurbit be rejected, and exports from that field is no reason to conclude that adoption fly. These actions would provide the will be canceled until visual inspection of this proposed rule would result in United States with additional kinds and

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sources of fruits and vegetables while Business Administration standards, it is 533 metric tons of apples. In addition, continuing to provide protection against likely that the majority of U.S. farms Annona spp. exports may be included the introduction and spread of producing the commodities discussed under the category of ‘‘apples, not quarantine pests. below are small. Potential economic elsewhere specified,’’ which includes effects that could occur if this proposal wild apples. The 3-year average for Availability of and Request for is adopted are discussed below by exports of apples, not elsewhere Production and Trade Data commodity and country of origin. specified, from Grenada is 5 metric tons. For some of the commodities African horned cucumber from Chile. We believe any exports to the United proposed for importation into the We propose to amend the regulations to States would be minimal and would not United States in this document, data on allow the entry of African horned have any significant economic effect on the levels of production are unavailable cucumber from Chile. African horned U.S. producers, whether small or large, for a number of reasons. Some of these cucumber is a specialty crop that is or consumers. In addition, we believe commodities are not produced in grown in small quantities. Less than 20 that U.S. consumers of Annona spp. significant quantities either in the acres of the fruit are cultivated in would benefit from the increase in its United States or in the country that California; and less than 10 acres in supply and availability. would be exporting the commodity to Region V (Olmue) and Region X Fruit and vegetables from Mexico. We the United States. Generally, statistical (Osorno) of Chile have been cultivated propose to specifically list Allium spp., data are less available for commodities since 1996. Approximately 32,000 asparagus, banana, beets, carrots, produced in small quantities when pounds of fruit are expected to be coconut fruit without husk, cucurbits, compared to a country’s more widely or shipped to the United States annually eggplant, grape, jicama, lemon, sour commercially produced commodities. from March to May. There is no reason lime, parsley, pineapple, prickly pear The uncertainty surrounding the cost to believe that allowing imports of pads, radish, tomato, and tuna as and availability of transportation and African horned cucumber from Chile admissible fruits and vegetables from the demand for the commodity in the would have any significant economic Mexico. Because these fruits and United States increases the difficulty in impact on U.S. entities. In addition, we vegetables are admissible into the obtaining estimates of the potential believe that U.S. consumers of African United States from Mexico under volume of commodities exported from horned cucumber would benefit from permit, specifically listing these foreign countries to the United States. the increase in its supply and commodities in the regulations would Therefore, we are requesting the availability. not have any economic effect on U.S. public to provide APHIS with any Annona spp. from Grenada. In this producers, whether small or large, or available data regarding the production document, we propose to allow the consumers. While production and trade or trade of Annona spp. in the United entry of commercial fruit shipments of data are not available for jicama, prickly States and Grenada and pitaya in the cherimoya, soursop, custard apple, pear, and tuna from Mexico or the United States and Mexico. These data sugar apple, and atemoya, which are United States, data are shown for the will assist us in further assessing the species of Annona, into the United other commodities, as available, in table effects that allowing the importation of States from Grenada. In the United 1. The data provided in table 1 are based these commodities could have on U.S. States, Annona spp. are apparently a on either a 2- or 3-year average. The producers or consumers. specialty crop produced on a small scale averages presented for most U.S. and mainly in southern California; thus no Mexican production and trade, as well Effects on Small Entities data on the U.S. production of Annona as for tomato exports from Mexico, are Data on the number and size of U.S. spp. are available. Although no separate for the 3-year period of 2000, 2001, and producers of the various commodities data are available on the production and 2002. A 2-year average for 2000 and proposed for importation into the trade of Annona spp. from Grenada, 2001 is given for exports from Mexico United States in this document are not data may have been included with the (except tomatoes), U.S. production of available. However, since most fruit and production of all apples. From 2001 to parsley and beets, and U.S. imports of vegetable farms are small by Small 2003, Grenada produced an average of parsley and cucurbits.

TABLE 1.—U.S. AND MEXICAN PRODUCTION AND TRADE DATA (IN METRIC TONS) OF FRUITS AND VEGETABLES

U.S. imports Commodity U.S. from all coun- U.S. imports Mexican Mexican production tries from Mexico production exports

Allium spp.: Shallot and green onion ...... 444,429 257,784 159,953 1,021,605 599,491 Garlic ...... 258,680 37,806 14,776 50,894 27,544 Leek and other alliaceous vegetables ...... (1) 3,040 2,752 (1) 87,455 Asparagus ...... 103,060 75,086 38,231 57,545 44,378 Banana ...... 12,850 4,232,383 74,560 1,961,201 126,368 Beets ...... 101,738 20,341 15,254 (1) 775,100 Carrot ...... 1,913,700 85,037 23,508 358,054 201,944 Coconut ...... 0 63,075 4,854 1,058,667 87,584 Cucurbits: Melon and watermelons ...... 2,969,250 882,350 363,902 1,469,700 572,529 Cucumbers and gherkins ...... 1,078,800 15,035 1,924 416,667 7,880 Pumpkins, squash, and gourds ...... 761,253 223,697 148,343 550,000 372,294 Eggplant ...... 77,290 40,233 36,863 59,000 135,697 Grape ...... 6,495,380 987,124 191,477 427,497 117,510 Lemon and lime ...... 572,250 218,816 184,814 1,658,420 733,184 Parsley ...... 14,210 5,897 (1) (1) (1) Pineapple ...... 302,500 348,617 19,923 598,629 117,510

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TABLE 1.—U.S. AND MEXICAN PRODUCTION AND TRADE DATA (IN METRIC TONS) OF FRUITS AND VEGETABLES— Continued

U.S. imports Commodity U.S. from all coun- U.S. imports Mexican Mexican production tries from Mexico production exports

Radish ...... 53,781 15,338 14,654 (1) (1) Tomato ...... 10,590,000 804,548 664,362 2,085,831 1,551,685 1 Not available.

Coconut fruit with milk and husk produced on a small scale; thus no data metric tons of melon and watermelon. from Mexico. As noted earlier in this on the U.S. production of pitaya are Because the U.S. production of melon document, coconut fruit without husk available. Mexican production and trade and watermelon is supplemented with have been admissible into the United data are also not available. imports in order to satisfy the domestic States from Mexico under permit. In this Melon and watermelon from Peru. We demand, we do not believe that document, we propose to allow coconut propose to amend the regulations to allowing the importation of melon and fruit with milk and husk from Mexico allow the entry of commercial watermelon from certain areas of Peru to be imported into the United States. shipments of watermelon and several would have a significant effect on either While the data on coconut production varieties of melon (Cucumis melo L. U.S. consumers or producers. In and trade do not differentiate between subsp. melo) into the United States from addition, we believe that U.S. coconut fruit with or without husk and Peru. The specific varieties of melons consumers of melon and watermelon milk, it is possible that an increase in that would be considered for would benefit from the increase in its imports of coconuts into the United importation include cantaloupe, netted supply and availability. melon (muskmelon, nutmeg melon, and States from Mexico would occur, since Watermelon, squash, cucumber, and coconut fruit with milk and husk have Persian melon), vegetable melon (snake melon and oriental pickling melon), and oriental melon from the Republic of previously been inadmissible from Korea. We propose to allow watermelon, Mexico. Because the U.S. production of winter melon (honeydew and casaba melon). The melon and watermelon squash, cucumber, and oriental melon coconut fruit with milk and husk is to be imported into the United States supplemented with imports in order to from Peru would be admissible from the Departments of Lima, Ica, Arequipa, from the Republic of Korea (South satisfy the domestic demand, we do not Moquegua, and Tacna, which we Korea) under certain conditions. Table 2 believe that allowing the importation of propose to recognize as free of the South shows the average U.S. and South coconut fruit with milk and husk from American cucurbit fly. Korean production and trade data Mexico would have a significant effect From 2001 to 2003, the United States available for the 3-year period of 2000, on either U.S. consumers or producers. produced an average of almost 3 million 2001, and 2002, with a 2-year average In addition, we believe that U.S. metric tons of melon and watermelon for 2000 and 2001 for exports from consumers would benefit from the and imported an average of 882,350 South Korea. Note that data include a increase in the supply and availability metric tons. For that same 3-year period, broader category than what is actually of coconut fruit with milk and husk Peru produced an average of 72,337 proposed to be imported; e.g., we from Mexico. metric tons of melon and watermelon. propose to import cucumber, but the Pitaya from Mexico. In the United For the 2-year period of 2000 and 2001, data are available under the broader States, pitaya are a specialty crop Peru exported an average of 1,393 category of cucumber and gherkins.

TABLE 2.—PRODUCTION AND TRADE DATA (IN METRIC TONS) FOR U.S. AND SOUTH KOREAN FRUITS AND VEGETABLES

U.S. imports U.S.imports Commodity U.S. from all coun- from South South Korean South Korean production tries Korea production exports

Melon and watermelons ...... 2,969,250 882,350 0 324,260 428 Cucumbers and gherkins ...... 1,078,800 15,035 0 451,175 7,030 Pumpkins, squash, and gourds ...... 761,253 223,697 0 240,161 515

Grapes from South Korea. We propose with imports in order to satisfy the Executive Order 12988 to allow the importation of grapes into domestic demand, we do not believe the United States from South Korea that allowing the importation of grapes This proposed rule would allow under certain conditions. From 2001 to from South Korea would have a certain fruits and vegetables to be 2003, the United States produced an significant effect on either U.S. imported into the United States from average of almost 6.5 million metric consumers or producers. In addition, we certain parts of the world. If this tons of grapes and imported an average believe that U.S. consumers of grapes proposed rule is adopted, State and of 987,124 metric tons. For that same 3- would benefit from the increase in its local laws and regulations regarding the year period, South Korea produced an supply and availability. importation of fruits and vegetables average of 461,198 metric tons grapes This proposed rule contains under this rule would be preempted (approximately 7 percent of the total information collection requirements, while the fruits and vegetables are in U.S. production) with an average export which have been submitted for approval foreign commerce. Fresh fruits and of 101 metric tons. Because the U.S. to the Office of Management and Budget vegetables are generally imported for production of grapes is supplemented (see ‘‘Paperwork Reduction Act’’ below). immediate distribution and sale to the

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consuming public and would remain in Independence Avenue SW., Estimated total annual burden on foreign commerce until sold to the Washington, DC 20250. A comment to respondents: 103 hours. (Due to ultimate consumer. The question of OMB is best assured of having its full averaging, the total annual burden hours when foreign commerce ceases in other effect if OMB receives it within 30 days may not equal the product of the annual cases must be addressed on a case-by- of publication of this proposed rule. number of responses multiplied by the case basis. If this proposed rule is In this document, we propose to reporting burden per response.) adopted, no retroactive effect will be amend the fruits and vegetables Copies of this information collection given to this rule, and this rule will not regulations to list a number of fruits and can be obtained from Mrs. Celeste require administrative proceedings vegetables from certain parts of the Sickles, APHIS’s Information Collection before parties may file suit in court world as eligible, under specified Coordinator, at (301) 734–7477. challenging this rule. conditions, for importation into the Government Paperwork Elimination National Environmental Policy Act United States. All of the fruits and vegetables, as a condition of entry, Act Compliance APHIS’ review and analysis of the would be inspected and subject to The Animal and Plant Health potential environmental impacts treatment at the port of first arrival as Inspection Service is committed to associated with the proposed may be required by an inspector. In compliance with the Government importations are documented in detail addition, some of the fruits and Paperwork Elimination Act (GPEA), in an environmental assessment entitled vegetables would be required to meet which requires Government agencies in ‘‘Proposed Rule for the 12th Periodic other special conditions. We also general to provide the public the option Amendment of the Fruits and propose to recognize areas in Peru as of submitting information or transacting Vegetables Regulations’’ (September free from the South American cucurbit business electronically to the maximum 2003). The environmental assessment fly. extent possible. For information was prepared in accordance with: (1) Allowing these fruits and vegetables pertinent to GPEA compliance related to The National Environmental Policy Act to be imported would necessitate the this proposed rule, please contact Mrs. of 1969 (NEPA), as amended (42 U.S.C. use of certain information collection Celeste Sickles, APHIS’s Information 4321 et seq.), (2) regulations of the activities, including the completion of Collection Coordinator, at (301) 734– Council on Environmental Quality for import permits, phytosanitary 7477. implementing the procedural provisions certificates, and fruit fly monitoring of NEPA (40 CFR parts 1500–1508), (3) records. List of Subjects in 7 CFR Part 319 USDA regulations implementing NEPA We are soliciting comments from the Bees, Coffee, Cotton, Fruits, Honey, (7 CFR part 1b), and (4) APHIS’ NEPA public (as well as affected agencies) Imports, Logs, Nursery stock, Plant Implementing Procedures (7 CFR part concerning our proposed information diseases and pests, Quarantine, 372). collection and recordkeeping Reporting and recordkeeping Copies of the environmental requirements. These comments will requirements, Rice, Vegetables. assessment are available for public help us: inspection in our reading room (1) Evaluate whether the proposed Accordingly, we propose to amend 7 (information on the location and hours information collection is necessary for CFR part 319 as follows: of the reading room is provided under the proper performance of our agency’s PART 319—FOREIGN QUARANTINE the heading ADDRESSES at the beginning functions, including whether the NOTICES of this document). In addition, copies information will have practical utility; may be obtained by writing to the (2) Evaluate the accuracy of our 1. The authority citation for part 319 individual listed under FOR FURTHER estimate of the burden of the proposed would continue to read as follows: INFORMATION CONTACT. The information collection, including the environmental assessment may be Authority: 7 U.S.C. 450 and 7701–7772; 21 validity of the methodology and U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and viewed on the Internet at http:// assumptions used; 371.3. www.aphis.usda.gov/ppd/es/ (3) Enhance the quality, utility, and ppqdocs.html. clarity of the information to be 2. Section 319.56–1 would be amended by adding, in alphabetical Paperwork Reduction Act collected; and (4) Minimize the burden of the order, a new definition for country of In accordance with section 3507(d) of information collection on those who are origin to read as follows: the Paperwork Reduction Act of 1995 to respond (such as through the use of § 319.56–1 Definitions. (44 U.S.C. 3501 et seq.), the information appropriate automated, electronic, collection or recordkeeping mechanical, or other technological * * * * * requirements included in this proposed collection techniques or other forms of Country of origin. Country where the rule have been submitted for approval to information technology; e.g., permitting plants from which the plant products the Office of Management and Budget electronic submission of responses). are derived were grown. (OMB). Please send written comments Estimate of burden: Public reporting * * * * * to the Office of Information and burden for this collection of information 3. Section 319.56–2t would be revised Regulatory Affairs, OMB, Attention: is estimated to average 0.1320 hours per to read as follows: Desk Officer for APHIS, Washington, DC response. 20503. Please state that your comments Respondents: U.S. importers of fruits § 319.56–2t Administrative instructions: refer to Docket No. 02–106–1. Please and vegetables; plant health officials of Conditions governing the entry of certain send a copy of your comments to: (1) exporting countries. fruits and vegetables. Docket No. 02–106–1, Regulatory Estimated annual number of (a) The following commodities may be Analysis and Development, PPD, respondents: 141. imported into all parts of the United APHIS, Station 3C71, 4700 River Road Estimated annual number of States, unless otherwise indicated, from Unit 118, Riverdale, MD 20737–1238, responses per respondent: 5.5319. the places specified, in accordance with and (2) Clearance Officer, OCIO, USDA, Estimated annual number of § 319.56–6 and all other applicable room 404–W, 14th Street and responses: 780. requirements of this subpart:

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Additional restrictions Country/locality Common name Botanical name Plant part(s) (See paragraph (b) of this section.)

Argentina ...... Artichoke, globe ...... Cynara scolymus ...... Immature flower head. Basil ...... Ocimum spp ...... Above ground parts. Currant ...... Ribes spp ...... Fruit. Endive ...... Cichorium endivia ...... Leaf and stem. Gooseberry ...... Ribes spp ...... Fruit. Marjoram ...... Origanum spp ...... Above ground parts. Oregano ...... Origanum spp ...... Above ground parts. Australia ...... Currant ...... Ribes spp ...... Fruit Gooseberry ...... Ribes spp ...... Fruit. Austria ...... Asparagus, white ...... Asparagus officinalis ...... Shoot (no green may be visible on the shoot). Barbados ...... Banana ...... Musa spp ...... Flower. Belgium ...... Leek ...... Allium spp ...... Whole plant ...... (b)(5)(i) Pepper ...... Capsicum spp ...... Fruit Belize ...... Banana ...... Musa spp ...... Flower in bracts with stems. Bay leaf ...... Laurus nobilis ...... Leaf and stem Mint ...... Mentha spp ...... Above ground parts. Papaya ...... Carica papaya ...... Fruit ...... (b)(1)(i), (b)(2)(iii) Rambutan ...... Nephelium lappaceum ...... Fruit ...... (b)(2)(i), (b)(5)(iii) Sage ...... Salivia officinalis ...... Leaf and stem. Tarragon ...... Artemisia dracunculus ...... Above ground parts. Bermuda ...... Avocado ...... Persea americana ...... Fruit. Carambola ...... Averrhoa carambola ...... Fruit. Grapefruit ...... Citrus paradisi ...... Fruit. Guava ...... Psidium guajava ...... Fruit. Lemon ...... Citrus limon ...... Fruit. Longan ...... Dimocarpus longan ...... Fruit. Loquat ...... Eriobotrya japonica ...... Fruit. Mandarin orange ...... Citrus reticulata ...... Fruit. Natal plum ...... Carissa macrocarpa ...... Fruit. Orange, sour ...... Citrus aurantium ...... Fruit. Orange, sweet ...... Citrus sinensis ...... Fruit. Papaya ...... Carica papaya ...... Fruit. Passion fruit ...... Passiflora spp ...... Fruit. Peach ...... Prunus persica ...... Fruit. Pineapple guava ...... Feijoa spp ...... Fruit. Suriname cherry ...... Eugenia uniflora ...... Fruit. Bolivia ...... Belgian endive ...... Cichorium intybus ...... Leaf. Chile ...... African horned cucumber ...... Cucumis metuliferus ...... Fruit ...... (b)(2)(i) Babaco ...... Carica x heilborni var. Fruit ...... (b)(1)(i) pentagona. Basil ...... Ocimum spp...... Above ground parts. Lucuma ...... Manilkara sapota (=Lucuma Fruit ...... (b)(1)(i) mammosa). Mountain papaya ...... Carica pubescens (=C. Fruit ...... (b)(1)(ii) candamarcensis). Oregano ...... Origanum spp...... Leaf and stem. Pepper ...... Capsicum annuum ...... Fruit ...... (b)(1)(i) Sandpear ...... Pyrus pyrifolia ...... Fruit ...... (b)(1)(ii) Tarragon ...... Artemisia dracunculus ...... Above ground parts. China ...... Bamboo ...... Bambuseae spp ...... Edible shoot, free of leaves and roots. Colombia ...... Rhubarb ...... Rheum rhabarbarum ...... Stalk. Snow pea ...... Pisum sativum subsp. sativum Flat, immature pod. Tarragon ...... Artemisia dracunculus ...... Above ground parts. Cook Islands ...... Banana ...... Musa spp ...... Green fruit ...... (b)(4)(i) Cucumber ...... Cucumis sativus ...... Fruit. Drumstick ...... Moringa ...... Leaf. pterygosperma ...... Ginger ...... Zingiber officinale ...... Root ...... (b)(2)(ii) Indian mulberry ...... Morinda citrifolia ...... Leaf. Lemongrass ...... Cymbopogon spp ...... Leaf. Tossa jute ...... Corchorus olitorius ...... Leaf. Costa Rica ...... Basil ...... Ocimum spp ...... Whole plant. Chinese kale ...... Brassica alboglabra ...... Leaf and stem. Chinese turnip ...... Raphanus sativus ...... Root.

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Additional restrictions Country/locality Common name Botanical name Plant part(s) (See paragraph (b) of this section.)

Cole and mustard crops, includ- Brassica spp ...... Whole plant of edible varieties ing cabbage, broccoli, cauli- only. flower, turnips, mustards, and related varieties. Jicama ...... Pachyrhizus tuberosus or P. Root. erosus. Rambutan ...... Nephelium ...... Fruit ...... (b)(2)(i), lappaceum ...... (b)(5)(iii) Dominican Republic .... Bamboo ...... Bambuseae spp ...... Edible shoot, free of leaves and roots. Durian ...... Durio zibethinus ...... Fruit. Ecuador ...... Banana ...... Musa spp ...... Flower. Basil ...... Ocimum spp ...... Above ground parts. Chervil ...... Anthriscus spp ...... Leaf and stem. Cole and mustard crops, includ- Brassica spp ...... Whole plant of edible varieties ing cabbage, broccoli, cauli- only. flower, turnips, mustards, and related varieties. Radicchio ...... Cichorium spp ...... Above ground parts. El Salvador ...... Basil ...... Ocimum spp ...... Above ground parts.. Cilantro ...... Coriandrum sativum ...... Above ground parts.. Cole and mustard crops, includ- Brassica spp ...... Whole plant of edible varieties ing cabbage, broccoli, cauli- only. flower, turnips, mustards, and related varieties. Dill ...... Anethum graveolens ...... Above ground parts. Eggplant ...... Solanum melongena ...... Fruit ...... (b)(3) Fennel ...... Foeniculum vulgare ...... Leaf and stem ...... (b)(2)(i) German chamomile ...... Matricaria recutita and Flower and leaf ...... (b)(2)(i) Matricaria chamomilla. Loroco ...... Fernaldia spp ...... Flower, leaf, and stem. Oregano or sweet marjoram ..... Origanum spp ...... Leaf and stem ...... (b)(2)(i) Parsley ...... Petroselinum crispum ...... Leaf and stem ...... (b)(2)(i) Rambutan ...... Nephelium lappaceum ...... Fruit ...... (b)(2)(i), (b)(5)(iii) Rosemary ...... Rosmarinus officinalis ...... Leaf and stem ...... (b)(2)(i) Waterlily or lotus ...... Nelumbo nucifera ...... Roots without soil ...... (b)(2)(i) Yam-bean or Jicama root ...... Pachyrhizus spp ...... Roots without soil ...... (b)(2)(i) France ...... Tomato ...... Lycopersicon esculentum ...... Fruit ...... (b)(4)(ii) Great Britain ...... Basil ...... Ocimum spp ...... Leaf and stem. Grenada ...... Abiu ...... Pouteria caimito ...... Fruit ...... (b)(3) Atemoya ...... Annona squamosa x A. Fruit. cherimola. Bilimbi ...... Averrhoa bilimbi ...... Fruit. Breadnut ...... Brosimum alicastrum ...... Fruit. Cherimoya ...... Annona cherimola ...... Fruit ...... (b)(3) Cocoplum ...... Chrysobalanus icaco ...... Fruit. Cucurbits ...... Cucurbitaceae ...... Fruit. Custard apple ...... Annona reticulata ...... Fruit ...... (b)(3) Durian ...... Durio zibethinus ...... Fruit. Jackfruit ...... Artocarpus heterophyllus ...... Fruit. Jambolan ...... Syzygium cumini ...... Fruit. Jujube ...... Ziziphus spp ...... Fruit. Langsat ...... Lansium domesticum ...... Fruit. Litchi ...... Litchi chinensis ...... Fruit. Malay apple ...... Syzygium malaccense ...... Fruit. Mammee apple ...... Mammea americana ...... Fruit. Peach palm ...... Bactris gasipaes ...... Fruit. Piper ...... Piper spp ...... Fruit. Pulasan ...... Nephelium ramboutan-ake ...... Fruit. Rambutan ...... Nephelium lappaceum ...... Fruit. Rose apple ...... Syzygium jambos ...... Fruit. Santol ...... Sandoricum koetjape ...... Fruit. Sapote ...... Pouteria sapota ...... Fruit. Soursop ...... Annona muricata ...... Fruit ...... (b)(3) Sugar apple ...... Annona squamosa ...... Fruit ...... (b)(3) Guatemala ...... Artichoke, globe ...... Cynara scolymus ...... Immature flower head. Basil ...... Ocimum spp ...... Above ground parts. Dill ...... Anethum graveonlens ...... Above ground parts. Eggplant ...... Solanum melongena ...... Fruit.

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Additional restrictions Country/locality Common name Botanical name Plant part(s) (See paragraph (b) of this section.)

Fennel ...... Foeniculum vulgare ...... Leaf and stem ...... (b)(2)(i) German ...... Matricaria chamomile Flower and leaf ...... (b)(2)(i) chamomilla and Matricaria recutita. Jicama ...... Pachyrhizus tuberosus or P. Root. erosus. Loroco ...... Fernaldia spp ...... Flower and leaf. Mint ...... Mentha spp ...... Above ground parts. Oregano ...... Origanum spp...... Leaf and stem. Papaya ...... Carica papaya ...... Fruit ...... (b)(1)(i), (b)(2)(iii) Rambutan ...... Nephelium lappaceum ...... Fruit ...... (b)(2)(i), (b)(5)(iii) Rhubarb ...... Rheum rhabarbarum ...... Above ground parts. Rosemary ...... Rosmarinus officinalis ...... Leaf and stem ...... (b)(2)(i) Tarragon ...... Artemisia dracunculus ...... Above ground parts. Waterlily or lotus ...... Nelumbo nucifera ...... Roots without soil ...... (b)(2)(i) Haiti ...... Jackfruit ...... Artocarpus heterophyllus ...... Fruit. Honduras ...... Banana ...... Musa spp ...... Flower. Basil ...... Ocimum basilicum ...... Leaf and stem ...... (b)(2)(i), (b)(5)(iv) Chicory ...... Cichorium spp ...... Leaf and stem. Cilantro ...... Coriandrum sativum ...... Above ground parts. Cole and mustard crops, includ- Brassica spp ...... Whole plant of edible varieties ing cabbage, broccoli, cauli- only. flower, turnips, mustards, and related varieties. German chamomile ...... Matricaria recutita and Flower and leaf...... (b)(2)(i) Matricaria chamomilla. Loroco ...... Fernaldia spp ...... Flower and leaf Oregano or sweet marjoram ..... Origanum spp ...... Leaf and stem ...... (b)(2)(i) Radish ...... Raphanus sativus ...... Root. Rambutan ...... Nephelium lappaceum ...... Fruit ...... (b)(2)(i), (b)(5)(iii) Waterlily or lotus ...... Nelumbo nucifera ...... Roots without soil ...... (b)(2)(i) Yam-bean or Jicama root ...... Pachyrhizus spp ...... Roots without soil ...... (b)(2)(i) Indonesia ...... Dasheen ...... Colocasia spp., Alocasia spp., Tuber ...... (b)(2)(iv) and Xanthosoma spp.. Onion ...... Allium cepa ...... Bulb. Shallot ...... Allium ascalonicum ...... Bulb. Israel ...... Arugula ...... Eruca sativa ...... Leaf and stem. Chives ...... Allium schoenoprasum ...... Leaf. Dill ...... Anethum graveolens ...... Above ground parts. Mint ...... Mentha spp ...... Above ground parts. Parsley ...... Petroselinum crispum ...... Above ground parts. Watercress ...... Nasturtium officinale ...... Leaf and stem. Jamaica ...... Fenugreek ...... Tirgonella foenum-graceum ...... Leaf, stem, root. Jackfruit ...... Artocarpus heterophyllus ...... Fruit. Ivy gourd ...... Coccinia grandis ...... Fruit. Pak choi ...... Brassica chinensis ...... Leaf and stem. Pointed gourd ...... Trichosanthes dioica ...... Fruit. Japan ...... Bamboo ...... Bambuseae spp ...... Edible shoot, free of leaves and roots. Mioga ginger ...... Zingiber mioga ...... Above ground parts.

Mung bean ...... Vigna radiata ...... Seed sprout. Soybean ...... Glycine max ...... Seed sprout. Liberia ...... Jute ...... Corchorus capsularis ...... Leaf. Potato ...... Solanum tuberosum ...... Leaf.

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Additional restrictions Country/locality Common name Botanical name Plant part(s) (See paragraph (b) of this section.)

Mexico ...... Allium ...... Allium spp ...... Whole plant. Anise ...... Pimpinella anisum ...... Leaf and stem. Apple ...... Malus domestica ...... Fruit...... (b)(1)(iii) Apricot ...... Prunus armeniaca ...... Fruit...... (b)(1)(iii) Arugula ...... Eruca sativa ...... Leaf and stem. Asparagus ...... Asparagus officinalis ...... Whole plant. Banana ...... Musa spp ...... Flower and fruit. Bay leaf ...... Laurus nobilis ...... Leaf and stem. Beet ...... Beta vulgaris ...... Whole plant. Blueberry ...... Vaccinium spp...... Fruit. Carrot ...... Daucus carota ...... Whole plant. Coconut ...... Cocos nucifera ...... Fruit without husk. Fruit with milk and husk...... (b)(5)(v) Cucurbits ...... Cucurbitaceae ...... Inflorescence, flower, and fruit. Eggplant ...... Solanum melongena ...... Whole plant. Fig ...... Ficus carica ...... Fruit ...... (b)(1)(iii), (b)(2)(i) Grape ...... Vitis spp ...... Fruit, cluster, and leaf Grapefruit ...... Citrus paradisi ...... Fruit...... (b)(1)(iii) Jicama ...... Pachyrhizus tuberosus ...... Whole plant. Lambsquarters ...... Chenopodium spp ...... Above ground parts. Lemon ...... Citrus limon ...... Fruit. Lime, sour ...... Citrus aurantiifolia ...... Fruit. Mango ...... Mangifera indica ...... Fruit...... (b)(1)(iii) Orange ...... Citrus sinensis ...... Fruit...... (b)(1)(iii) Parsley ...... Petroselinum crispum ...... Whole plant. Peach ...... Prunus persica ...... Fruit...... (b)(1)(iii) Persimmon ...... Diospyros spp ...... Fruit...... (b)(1)(iii) Pineapple ...... Ananas comosus ...... Fruit. Pitaya ...... Hylocereus spp ...... Fruit...... (b)(1)(iv), (b)(2)(i) Piper ...... Piper spp ...... Leaf and stem. Pomegranate ...... Punica granatum ...... Fruit...... (b)(1)(iii) Porophyllum ...... Porophyllum spp ...... Above ground parts. Prickly-pear pad ...... Opuntia spp ...... Pad. Radish ...... Raphanus sativus ...... Whole plant. Rambutan ...... Nephelium lappaceum ...... Fruit...... (b)(2)(i), (b)(5)(iii) Rosemary ...... Rosmarinus officinalis ...... Above ground parts. Salicornia ...... Salicornia spp ...... Above ground parts. Tangerine ...... Citrus reticulata ...... Fruit...... (b)(1)(iii) Tepeguaje ...... Leucaena spp...... Fruit. Thyme ...... Thymus vulgaris ...... Above ground parts. Tomato ...... Lycopersicon lycopersicum ...... Whole plant. Tuna ...... Opuntia spp ...... Fruit. Morocco ...... Strawberry ...... Fragaria spp ...... Fruit. Morocco and Western Tomato ...... Lycopersicon esculentum ...... Fruit...... (b)(4)(ii) Sahara. Netherlands ...... Leek ...... Allium spp ...... Whole plant...... (b)(5)(i) Radish ...... Raphanus sativus ...... Root. New Zealand ...... Avocado ...... Persea americana ...... Fruit. Fig ...... Ficus carica ...... Fruit. Oca ...... Oxalis tuberosa ...... Tuber. Nicaragua ...... Cilantro ...... Coriandrum sativum ...... Above ground parts. Cole and mustard crops, includ- Brassica spp ...... Whole plant of edible varieties ing cabbage, broccoli, cauli- only. flower, turnips, mustards, and related varieties.. Eggplant ...... Solanum melongena ...... Fruit...... (b)(3) Fennel ...... Foeniculum vulgare ...... Leaf and stem...... (b)(2)(i) German chamomile ...... Matricaria recutita and M. Flower and leaf ...... (b)(2)(i) chamomilla. Loroco ...... Fernaldia spp ...... Leaf and stem. Mint ...... Mentha spp ...... Above ground parts. Parsley ...... Petoselinum crispum ...... Above ground parts. Radicchio ...... Cichorium spp ...... Above ground parts. Rambutan ...... Nephelium lappaceum ...... Fruit ...... (b)(2)(i), (b)(5)(iii) Rosemary ...... Rosmarinus officinalla ...... Above ground parts Waterlily or lotus ...... Nelumbo nucifera ...... Roots without soil ...... (b)(2)(i)

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Additional restrictions Country/locality Common name Botanical name Plant part(s) (See paragraph (b) of this section.)

Yam-bean or Jicama root ...... Pachyrhizus spp ...... Roots without soil ...... (b)(2)(i) Panama ...... Basil ...... Ocimum spp ...... Above ground parts. Bean, green and lima ...... Phaseolus vulgaris and P. Seed. lunatus. Belgian endive ...... Cichorium spp ...... Above ground parts. Chervil ...... Anthriscus cerefolium ...... Above ground parts. Chicory ...... Cichorium spp ...... Above ground parts. Eggplant ...... Solanum melongena ...... Fruit. Endive ...... Cichorium spp ...... Above ground parts. Fenugreek ...... Tirgonella foenum-graceum ...... Leaf and stem. Lemon thyme ...... Thymus citriodorus ...... Leaf and stem. Mint ...... Mentha spp ...... Above ground parts. Oregano ...... Origanum spp ...... Above ground parts. Rambutan ...... Nephelium lappaceum ...... Fruit ...... (b)(2)(i), (b)(5)(iii) Rosemary ...... Rosmarinus officinalis ...... Above ground parts. Tarragon ...... Artemisia dracunculus ...... Above ground parts. Peru ...... Argula ...... Eruca sativa ...... Leaf and stem. Basil ...... Ocimum spp ...... Leaf and stem. Carrot ...... Daucus carota ...... Root. Chervil ...... Anthriscus spp ...... Leaf and stem. Cole and mustard crops, includ- Brassica spp ...... Whole plant of edible varieties ing cabbage, broccoli, cauli- only. flower, turnips, mustards, and related varieties.. Cornsalad ...... Valerianella spp ...... Whole plant. Dill ...... Anethum graveolens ...... Above ground parts. Lambsquarters ...... Chenopodium album ...... Above ground parts. Lemongrass ...... Cymbopogon spp ...... Leaf and stem. Marijoram ...... Origanum spp ...... Above ground parts. Mustard greens ...... Brassica juncea ...... Leaf. Oregano ...... Origanum spp ...... Leaf and stem. Parsley ...... Petroselinum crispum ...... Leaf and stem. Radicchio ...... Cichorium spp ...... Leaf. Swiss chard ...... Beta vulgaris ...... Leaf and stem. Thyme ...... Thymus vulgaris ...... Above ground parts. Philippines ...... Jicama ...... Pachyrhizus tuberosus or P. Root. erosus. Poland ...... Pepper ...... Capsicum spp ...... Fruit. Tomato ...... Lycopersicon esculentum ...... Fruit. Republic of Korea ...... Angelica ...... Aralia elata ...... Edible shoot. Aster greens ...... Aster scaber ...... Leaf and stem. Bonnet bellflower ...... Codonopsis lanceolata ...... Root. Chard ...... Beta vulgaris subsp. cicla ...... Leaf. Chinese bellflower ...... Platycodon grandiflorum ...... Root. Dasheen ...... Colocasia spp., Alocasia spp., Root ...... (b)(2)(iv) and Xanthosoma spp. Eggplant ...... Solanum melongena ...... Fruit. Kiwi ...... Actinidia deliciosa ...... Fruit. Lettuce ...... Lactuca sativa ...... Leaf. Mugwort ...... Artemisia vulgaris ...... Leaf and stem. Onion ...... Allium cepa ...... Bulb Shepherd’s pursue ...... Capsell bursa ...... Leaf and stem. Strawberry ...... Fragaria spp ...... Leaf and stem. Watercress ...... Nasturtium official ...... Leaf and stem. Youngia greens ...... Youngia sonchifolia ...... Leaf, stem, and root. Sierra Leone ...... Cassava ...... Manihot esculenta ...... Leaf. Jute ...... Corchorus capsularis ...... Leaf. Potato ...... Solanum tuberosum ...... Leaf. St. Vincent and the Turmeric ...... Curcuma longa ...... Rhizome. Grenadines. South Africa ...... Artichoke, globe ...... Cynara scolymus ...... Immature flower head. Pineapple ...... Ananas spp ...... Fruit. Spain ...... Eggplant ...... Solanum melongena ...... Fruit ...... (b)(3) Tomato ...... Lycopersicon escyulentum ...... Fruit ...... (b)(4)(ii) Watermelon ...... Citrullus lanatus ...... Fruit ...... (b)(3)

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Additional restrictions Country/locality Common name Botanical name Plant part(s) (See paragraph (b) of this section.)

Suriname ...... Amaranth ...... Amaranthus spp ...... Leaf and stem. Black palm nut ...... Astrocaryum spp ...... Fruit. Jessamine ...... Cestrum latifolium ...... Leaf and stem. Malabar spinach ...... Bassella alba ...... Leaf and stem. Mung bean ...... Vigna radiata ...... Seed sprout. Pak choi ...... Brassica chinensis ...... Leaf and stem. Sweden ...... Dill ...... Astrocaryum graveolens ...... Above ground parts. Taiwan ...... Bamboo ...... Bambuseae spp ...... Edible shoot, free of leaves and roots. Burdock ...... Arctium lappa ...... Root. Wasabi (Japanese horseradich) Wasabia japonica ...... Root and stem. Thailand ...... Dasheen ...... Alocasia spp., Colocaisa spp., Leaf and stem. and Xanthosoma spp.. Tumeric ...... Curcuma domestica ...... Leaf and stem. Tonga ...... Burdock ...... Arctium lappa ...... Root, stem, and leaf. Jicama ...... Pachyrhizus tuberosus ...... Root. Pumpkin ...... Cucurbita maxima ...... Fruit. Trinidad and Tobago .. Lemongrass ...... Cymbopogon citratus ...... Leaf and stem. Leren ...... Calathea allouia ...... Tuber. Shield leaf ...... Cecropia peltata ...... Leaf and stem. Zambia ...... Snow pea ...... Pisum sativum spp. sativum ..... Flat, immature pod.

(b) Additional restrictions for (2) Restricted importation and commodity is apparently free of applicable fruits and vegetables as distribution. Acrolepiopsis assectella. specified in paragraph (a) of this (i) Prohibited entry into Puerto Rico, (ii) Entry permitted only from section. Virgin Islands, Hawaii, and Guam. September 15 to May 31, inclusive, to (1) Free areas. Cartons in which commodity is packed prevent the introduction of a complex of (i) The commodity must be from a must be stamped ‘‘Not for importation exotic pests including, but not limited Medfly-free area listed in § 319.56–2(j) into or distribution within PR, VI, HI, or to a thrips (Haplothrips chinensis) and and must be accompanied by a Guam.’’ a leafroller (Capua tortrix). phytosanitary certificate issued by the (ii) Prohibited entry into Puerto Rico, national plant protection organization Virgin Islands, and Guam. Cartons in (iii) Must be accompanied by a (NPPO) of the country of origin with an which commodity is packed must be phytosanitary certificate issued by the additional declaration stating that the stamped ‘‘Not for importation into or NPPO of the country of origin with an commodity originated in a Medfly-free distribution within PR, VI, or Guam.’’ additional declaration stating that the area. (iii) Prohibited entry into Hawaii. fruit is free from Coccus moestus, C. (ii) The commodity must be from a Cartons in which commodity is packed viridis, Dysmicoccus neobrevipes, Medfly-free area listed in § 319.56–2(j) must be stamped ‘‘Not for importation Planococcus lilacinus, P. minor, and and must be accompanied by a into or distribution within HI.’’ Psedococcus landoi; and all damaged phytosanitary certificate issued by the (iv) Prohibited entry into Guam. fruit was removed from the shipment NPPO of the country of origin with an Cartons in which commodity is packed prior to export under the supervision of additional declaration stating that the must be stamped ‘‘Not for importation the NPPO. commodity originated in a free area. into or distribution within Guam.’’ (iv) Must be accompanied by a Fruit from outside Medfly-free areas (3) Commercial shipments only. phytosanitary certificate issued by the must be treated in accordance with (4) Stage of fruit. NPPO of the country of origin with an § 319.56–2x of this subpart. (i) The bananas must be green at the additional declaration stating that the (iii) The commodity must be from a time of export. Inspectors at the port of fruit is free from Planococcus minor. fruit-fly free area listed in § 319.56–2(h) arrival will determine that the bananas and must be accompanied by a were green at the time of export if: (1) (v) Must be accompanied by a phytosanitary certificate issued by the Bananas shipped by air are still green phytosanitary certificate issued by the NPPO of the country of origin with an upon arrival in the United States; and national plant protection organization of additional declaration stating that the (2) bananas shipped by sea are either the country of origin with an additional commodity originated in a free area. still green upon arrival in the United declaration stating that the fruit is of the (iv) The commodity must be from a States or yellow but firm. Malayan dwarf variety or Maypan fruit-fly free area listed in § 319.56–2(h) variety (=F1 hybrid, Malayan (ii) The tomatoes must be green upon × and must be accompanied by a arrival in the United States. Pink or red Dwarf Panama Tall) (which are phytosanitary certificate issued by the fruit may only be imported in resistant to lethal yellowing disease) NPPO of the country of origin with an accordance with § 319.56–2dd of this based on verification of the parent stock. additional declaration stating: ‘‘These subpart. (Approved by the Office of Management regulated articles originated in an area (5) Other conditions. and Budget under control number 0579– free from pests as designated in 7 CFR (i) Must be accompanied by a 0049) 319.56–2(h) and, upon inspection, were phytosanitary certificate issued by the 4. Sections 319.56–2y and 319.56–2aa found free of Dymicoccus neobrevipes NPPO of the country of origin with an would be revised and a new § 319.56– and Planococcus minor.’’ additional declaration stating that the 2ll would be added to read as follows:

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§ 319.56–2y Conditions governing the (1) The cantaloupe, honeydew (2) The cantaloupe, honeydew entry of melon and watermelon from certain melons, or watermelon must have been melons, and watermelon must be countries in South America. grown in the area of Brazil considered packed in an enclosed container or (a) Cantaloupe and watermelon from by APHIS to be free of the South vehicle, or must be covered by a pest- Ecuador. Cantaloupe (Cucumis melo) American cucurbit fly in accordance proof screen or plastic tarpaulin while and watermelon (fruit) (Citrullus with § 319.56–2(e)(4) of this subpart. in transit to the United States. lanatus) may be imported into the (i) The following area in Brazil is (3) All shipments of cantaloupe, United States from Ecuador only in considered free of the South American honeydew melons, and watermelon accordance with this paragraph and all cucurbit fly: That portion of Brazil must be labeled in accordance with other applicable requirements of this bounded on the north by the Atlantic § 319.56–2(g) of this subpart. subpart: Ocean; on the east by the River Assu (d) Cantaloupe, netted melon, (1) The cantaloupe or watermelon (Acu) from the Atlantic Ocean to the vegetable melon, winter melon, and may be imported in commercial city of Assu; on the south by Highway watermelon from Peru. Cantaloupe, shipments only. BR 304 from the city of Assu (Acu) to netted melon, vegetable melon, and (2) The cantaloupe or watermelon Mossoro, and by Farm Road RN–015 winter melon (Cucumis melo L. subsp. must have been grown in an area where from Mossoro to the Ceara State line; melo); and watermelon may be imported trapping for the South American and on the west by the Ceara State line into the United States from Peru only in cucurbit fly (Anastrepha grandis) has to the Atlantic Ocean. accordance with this paragraph and all been conducted for at least the previous (ii) All shipments of cantaloupe, other applicable requirements of this 12 months by the national plant honeydew melons, and watermelon subpart: must be accompanied by a protection organization (NPPO) of (1) The fruit may be imported in phytosanitary certificate issued by the Ecuador, under the direction of APHIS, commercial shipments only. 7 NPPO of Brazil that includes a with no findings of the pest. (2) The fruit must have been grown in declaration indicating that the fruit was (3) The following area meets the the area of Peru considered by APHIS to grown in an area recognized to be free requirements of paragraph (a)(2) of this be free of the South American cucurbit section: The area within 5 kilometers of of the South American cucurbit fly. (2) The cantaloupe, honeydew fly in accordance with § 319.56–2(e)(4) either side of the following roads: of this subpart. (i) Beginning in Guayaquil, the road melons, and watermelon must be packed in an enclosed container or (i) The Departments of Lima, Ica, north through Nobol, Palestina, and Arequipa, Moquegua, and Tacna in Peru Balzar to Velasco-Ibarra (Empalme); vehicle, or must be covered by a pest- proof screen or plastic tarpaulin while are considered free of the South (ii) Beginning in Guayaquil, the road American cucurbit fly. south through E1 26, Puerto Inca, in transit to the United States. (3) All shipments of cantaloupe, (ii) All shipments must be Naranjal, and Camilo Ponce to Enriquez; accompanied by a phytosanitary (iii) Beginning in Guayaquil, the road honeydew melons, and watermelon must be labeled in accordance with certificate issued by the NPPO of Peru east through Palestina to Vinces; that includes a declaration indicating (iv) Beginning in Guayaquil, the road § 319.56–2(g) of this subpart. (c) Cantaloupe, honeydew melons, that the fruit was grown in an area west through Piedrahita (Novol) to and watermelon from Venezuela. recognized to be free of the South Pedro Carbo; or Cantaloupe, honeydew melons, and American cucurbit fly, and upon (v) Beginning in Guayaquil, the road watermelon may be imported into the inspection, were found free of the gray west through Progreso, Engunga, United States from Venezuela only in pineapple mealybug (Dymicoccus Tugaduaja, and Zapotal to El Azucar. accordance with this paragraph and all neobrevipes). (4) The cantaloupe or watermelon other applicable requirements of this (3) The fruit must be packed in an may not be moved into Alabama, subpart: enclosed container or vehicle, or must American Samoa, Arizona, California, (1) The cantaloupe, honeydew be covered by a pest-proof screen or Florida, Georgia, Guam, Hawaii, melons, or watermelon must have been plastic tarpaulin while in transit to the Louisiana, Mississippi, New Mexico, grown in the area of Venezuela United States. Puerto Rico, South Carolina, Texas, and considered by APHIS to be free of the (4) All shipments of fruit must be the U.S. Virgin Islands. The boxes in South American cucurbit fly in labeled in accordance with § 319.56– which the cantaloupe or watermelon is accordance with § 319.56–2(e)(4) of this 2(g) of this subpart, and the boxes in packed must be stamped with the name subpart. which the fruit is packed must be of the commodity followed by the words (i) The following area in Venezuela is labeled ‘‘Not for distribution in HI, PR, ‘‘Not to be distributed in the following considered free of the South American VI, or Guam.’’ States or territories: AL, AS, AZ, CA, FL, cucurbit fly: The Paraguana Peninsula, * * * * * GA, GU, HI, LA, MS, NM, PR, SC, TX, located in the State of Falcon, bounded VI’’. on the north and east by the Caribbean § 319.56–2aa Conditions governing the (b) Cantaloupe, honeydew melons, Ocean, on the south by the Gulf of Coro entry of watermelon, squash, cucumber, and watermelon from Brazil. and an imaginary line dividing the and oriental melon from the Republic of Cantaloupe, honeydew melons, and autonomous districts of Falcon and Korea. watermelon may be imported into the Miranda, and on the west by the Gulf of Watermelon (Citrullus lanatus), United States from Brazil only in Venezuela. squash (Curcurbita maxima), cucumber accordance with this paragraph and all (ii) All shipments of cantaloupe, (Cucumis sativus), and oriental melon other applicable requirements of this honeydew melons, and watermelon (Cucumis melo) may be imported into subpart: must be accompanied by a the United States from the Republic of phytosanitary certificate issued by the Korea only in accordance with this 7 Information on the trapping program may be NPPO of Venezuela that includes a paragraph and all other applicable obtained by writing to the Animal and Plant Health requirements of this subpart: Inspection Service, International Services, Stop declaration indicating that the fruit was 3432, 1400 Independence Avenue SW., grown in an area recognized to be free (a) The fruit must be grown in pest- Washington, DC 20250–3432. of the South American cucurbit fly. proof greenhouses registered with the

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Republic of Korea’s national plant detected during inspection, the field DATES: Comments on the proposed rule protection organization (NPPO). will immediately be rejected, and must be received on or before January (b) The NPPO must inspect and exports from that field will be canceled 20, 2004. regularly monitor greenhouses for plant until visual inspection of the vines ADDRESSES: You may submit comments pests. The NPPO must inspect shows that the infestation has been by any one of the following methods. greenhouses and plants, including fruit, eradicated. Please include the following number at intervals of no more than 2 weeks, (c) Fruit must be bagged from the time (RIN 3150–AH28) in the subject line of from the time of fruit set until the end the fruit sets until harvest. your comments. Comments on of harvest. (d) Each shipment must be inspected rulemakings submitted in writing or in (c) The NPPO must set and maintain by the NPPO before export. For each electronic form will be made available fruit fly traps in greenhouses from shipment, the NPPO must issue a to the public in their entirety on the October 1 to April 30. The number of phytosanitary certificate with an NRC rulemaking Web site. Personal traps must be set as follows: Two traps additional declaration stating that the information will not be removed from for greenhouses smaller than 0.2 hectare fruit in the shipment was found free your comments. in size; three traps for greenhouses 0.2 from C. punctiferalis, E. ambiguella, S. Mail comments to: Secretary, U.S. to 0.5 hectare; four traps for greenhouses pilleriana, S. auriferella, or M. Nuclear Regulatory Commission, over 0.5 hectare and up to 1.0 hectare; fructigena, and Nippoptilia vitis. Washington, DC 20555–0001, ATTN: and for greenhouses greater than 1 Rulemakings and Adjudications Staff. hectare, traps must be placed at a rate Done in Washington, DC, this 11th day of December, 2003. E-mail comments to: [email protected]. If of four traps per hectare. you do not receive a reply e-mail (d) The NPPO must check all traps Bobby R. Acord, Administrator, Animal and Plant Health confirming that we have received your once every 2 weeks. If a single pumpkin comments, contact us directly at (301) fruit fly is captured, that greenhouse Inspection Service. [FR Doc. 03–31202 Filed 12–17–03; 8:45 am] 415–1966. You may also submit will lose its registration until trapping comments via the NRC’s rulemaking BILLING CODE 3410–34–P shows that the infestation has been Web site at http://ruleforum.llnl.gov. eradicated. Address questions about our rulemaking (e) The fruit may be shipped only Web site to Carol Gallagher (301) 415– from December 1 through April 30. (f) Each shipment must be NUCLEAR REGULATORY 5905; email [email protected]. accompanied by a phytosanitary COMMISSION Hand deliver comments to: 11555 certificate issued by NPPO, with the Rockville Pike, Rockville, Maryland following additional declaration: ‘‘The 10 CFR Part 72 20852, between 7:30 am and 4:15 pm regulated articles in this shipment were Federal workdays [telephone (301) 415– grown in registered greenhouses as RIN 3150—AH28 1966]. specified by 7 CFR 319.56–2aa.’’ Fax comments to: Secretary, U.S. (g) Each shipment must be protected List of Approved Spent Fuel Storage Nuclear Regulatory Commission at (301) from pest infestation from harvest until Casks: Standardized NUHOMS–24P, 415–1101. export. Newly harvested fruit must be –52B, –61BT, –32PT, and –24PHB Publicly available documents related covered with insect-proof mesh or a Revision to this rulemaking may be viewed plastic tarpaulin while moving to the electronically on public computers AGENCY: packinghouse and awaiting packing. Nuclear Regulatory located at the NRC’s Public Document Fruit must be packed within 24 hours of Commission. Room (PDR), Public File Area O–1F21, harvesting, in an enclosed container or ACTION: Proposed rule. One White Flint North, 11555 Rockville vehicle or in insect-proof cartons or Pike, Rockville, Maryland. The PDR cartons covered with insect-proof mesh SUMMARY: The Nuclear Regulatory reproduction contractor will copy or plastic tarpaulin, and then placed in Commission (NRC) is amending its documents for a fee. Selected containers for shipment. These regulations revising the Transnuclear, documents, including comments, can be  safeguards must be intact when the Inc., Standardized NUHOMS viewed and downloaded electronically shipment arrives at the port in the Horizontal Modular Storage System via the NRC rulemaking Web site at  United States. (Standardized NUHOMS System) http://ruleforum.llnl.gov. listing within the ‘‘List of approved Publicly available documents created * * * * * spent fuel storage casks’’ to include or received at the NRC after November § 319.56–2ll Conditions governing the Amendment No. 7 in Certificate of 1, 1999, are available electronically at entry of grapes from the Republic of Korea. Compliance Number 1004. Amendment the NRC’s Electronic Reading Room at Grapes (Vitis spp.) may be imported No. 7 would incorporate changes in http://www.nrc.gov/NRC/ADAMS/ into the United States from the Republic support of the Amergen Corporation index.html. From this site, the public of Korea under the following conditions: plans to load damaged fuel and can gain entry into the NRC’s (a) The fields where the grapes are additional fuel types at its Oyster Creek Agencywide Document Access and grown must be inspected during the Nuclear Station. Specifically, the Management System (ADAMS), which growing season by the Republic of amendment would add damaged Boiling provides text and image files of NRC’s Korea’s national plant protection Water Reactor spent fuel assemblies and public documents. If you do not have organization (NPPO). The NPPO will additional fuel types to the authorized access to ADAMS or if there are inspect 250 grapevines per hectare, contents of the NUHOMS–61BT Dry problems in accessing the documents inspecting leaves, stems, and fruit of the Shielded Canister under a general located in ADAMS, contact the NRC vines. license. In addition, the amendment PDR Reference staff at 1–800–397–4209, (b) If evidence of Conogethes would include three minor changes to 301–415–4737, or by email to punctiferalis, Eupoecilia ambiguella, the Technical Specifications to correct [email protected]. An electronic copy of the Sparganothis pilleriana, Stathmopoda inconsistencies and remove irrelevant proposed Certificate of Compliance auriferella, or Monilinia fructigena is references. (CoC), Technical Specifications (TS),

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and preliminary safety evaluation report (3) The comment causes the NRC staff 2. In § 72.214, Certificate of can be found under ADAMS Accession to make a change (other than editorial) Compliance 1004 is revised to read as Nos. ML032100773, ML032100775, and to the CoC or TS. follows: ML032100776, respectively. These comments will be addressed in § 72.214 List of approved spent fuel FOR FURTHER INFORMATION CONTACT: a subsequent final rule. The NRC will storage casks. Jayne M. McCausland, telephone (301) not initiate a second comment period on * * * * * 415–6219, e-mail, [email protected] of the this action. Office of Nuclear Material Safety and Certificate Number: 1004. List of Subjects In 10 CFR Part 72 Initial Certificate Effective Date: January Safeguards, U.S. Nuclear Regulatory 23, 1995. Commission, Washington, DC 20555– Administrative practice and Amendment Number 1 Effective Date: 0001. procedure, Criminal penalties, April 27, 2000. SUPPLEMENTARY INFORMATION: For Manpower training programs, Nuclear Amendment Number 2 Effective Date: September 5, 2000. additional information see the direct materials, Occupational safety and final rule published in the final rules Amendment Number 3 Effective Date: health, Penalties, Radiation protection, September 12, 2001. section of this Federal Register. Reporting and recordkeeping Amendment Number 4 Effective Date: Procedural Background requirements, Security measures, Spent February 12, 2002. fuel, Whistleblowing. Amendment Number 5 Effective Date: This rule is limited to the changes [Reserved]. contained in Amendment 7 to CoC No. For the reasons set out in the Amendment Number 6 Effective Date: 1004 and does not include other aspects preamble and under the authority of the December 22, 2003. of the Standardized NUHOMS System. Atomic Energy Act of 1954, as amended; Amendment Number 7 Effective Date: The NRC is using the ‘‘direct final rule the Energy Reorganization Act of 1974, March 2, 2004. procedure’’ to issue this amendment as amended; and 5 U.S.C. 553, the NRC SAR Submitted by: Transnuclear, Inc. because it represents a limited and SAR Title: Final Safety Analysis Report for is proposing to adopt the following  routine change to an existing CoC that amendments to 10 CFR part 72. the Standardized NUHOMS Horizontal is expected to be noncontroversial. Modular Storage System for Irradiated Nuclear Fuel. Adequate protection of public health PART 72—LICENSING REQUIREMENTS FOR THE Docket Number: 72–1004. and safety continues to be ensured. Certificate Expiration Date: January 23, Because NRC considers this action INDEPENDENT STORAGE OF SPENT 2015. noncontroversial and routine, the NUCLEAR FUEL, HIGH-LEVEL Model Number: Standardized NUHOMS– proposed rule is being published RADIOACTIVE WASTE, AND 24P, NUHOMS–52B, NUHOMS–61BT, concurrently as a direct final rule. The REACTOR-RELATED WASTE NUHOMS–32PT, and NUHOMS–24PHB. direct final rule will become effective on GREATER THAN CLASS C WASTE * * * * * March 2, 2004. However, if the NRC 1. The authority citation for Part 72 Dated at Rockville, Maryland, this 20th day receives significant adverse comments of November, 2003. by January 20, 2004, then the NRC will continues to read as follows: publish a document that withdraws this For the Nuclear Regulatory Commission. Authority: Secs. 51, 53, 57, 62, 63, 65, 69, William F. Kane, action and will address the comments 81, 161, 182, 183, 184, 186, 187, 189, 68 Stat. received in response to the proposed 929, 930, 932, 933, 934, 935, 948, 953, 954, Acting Executive Director for Operations. amendments published elsewhere in 955, as amended, sec. 234, 83 Stat. 444, as [FR Doc. 03–31208 Filed 12–17–03; 8:45 am] this issue of the Federal Register. A amended (42 U.S.C. 2071, 2073, 2077, 2092, BILLING CODE 7590–01–P significant adverse comment is a 2093, 2095, 2099, 2111, 2201, 2232, 2233, comment where the commenter 2234, 2236, 2237, 2238, 2282); sec. 274, Pub. explains why the rule would be L. 86–373, 73 Stat. 688, as amended (42 DEPARTMENT OF TRANSPORTATION inappropriate, including challenges to U.S.C. 2021); sec. 201, as amended, 202, 206, the rule’s underlying premise or 88 Stat. 1242, as amended, 1244, 1246 (42 Federal Aviation Administration approach, or would be ineffective or U.S.C. 5841, 5842, 5846); Pub. L. 95–601, sec. 10, 92 Stat. 2951 as amended by Pub. L. 102– unacceptable without a change. A 14 CFR Part 39 486, sec. 7902, 106 Stat. 3123 (42 U.S.C. comment is adverse and significant if: 5851); sec. 102, Pub. L. 91–190, 83 Stat. 853 [Docket No. 2001–NM–111–AD] (1) The comment opposes the rule and (42 U.S.C. 4332); secs. 131, 132, 133, 135, provides a reason sufficient to require a 137, 141, Pub. L. 97–425, 96 Stat. 2229, 2230, RIN 2120–AA64 substantive response in a notice-and- 2232, 2241, sec. 148, Pub. L. 100–203, 101 comment process. For example, a Stat. 1330–235 (42 U.S.C. 10151, 10152, Airworthiness Directives; Airbus Model substantive response is required when— 10153, 10155, 10157, 10161, 10168). A300 B2 Series Airplanes; A300 B4 (A) The comment causes the NRC staff Section 72.44(g) also issued under secs. Series Airplanes; A300 B4–600, B4– to reevaluate (or reconsider) its position 142(b) and 148(c), (d), Pub. L. 100–203, 101 600R, F4–600R, and C4–605R Variant F or conduct additional analysis; Stat. 1330–232, 1330–236 (42 U.S.C. (Collectively Called A300–600) Series (B) The comment raises an issue 10162(b), 10168(c), (d)). Section 72.46 also Airplanes; and A310 Series Airplanes serious enough to warrant a substantive issued under sec. 189, 68 Stat. 955 (42 U.S.C. response to clarify or complete the 2239); sec. 134, Pub. L. 97–425, 96 Stat. 2230 AGENCY: Federal Aviation record; or (42 U.S.C. 10154). Section 72.96(d) also Administration, DOT. (C) The comment raises a relevant issued under sec. 145(g), Pub. L. 100–203, 101 Stat. 1330–235 (42 U.S.C. 10165(g)). ACTION: Notice of proposed rulemaking issue that was not previously addressed Subpart J also issued under secs. 2(2), 2(15), (NPRM). or considered by the NRC staff. 2(19), 117(a), 141(h), Pub. L. 97–425, 96 Stat. (2) The comment proposes a change 2202, 2203, 2204, 2222, 2244, (42 U.S.C. SUMMARY: This document proposes the or an addition to the rule, and it is 10101, 10137(a), 10161(h)). Subparts K and L supersedure of an existing airworthiness apparent that the rule would be are also issued under sec. 133, 98 Stat. 2230 directive (AD), applicable to certain ineffective or unacceptable without (42 U.S.C. 10153) and sec. 218(a), 96 Stat. Airbus Model A300 series airplanes, incorporation of the change or addition. 2252 (42 U.S.C. 10198). that currently requires either a one-time

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ultrasonic inspection, or repetitive be submitted in triplicate to the address detected in the surrounding panel above visual inspections and eventual specified above. All communications the right mid-passenger door. The ultrasonic inspection, to detect cracking received on or before the closing date requirements of that AD are intended to of the longitudinal skin splice above the for comments, specified above, will be detect and correct cracking of the mid-passenger door panels, and considered before taking action on the longitudinal skin splice (skin lap joint) corrective actions if necessary. This proposed rule. The proposals contained above the mid-passenger door panels, action would require repetitive in this action may be changed in light which could result in reduced structural ultrasonic inspections to detect cracking of comments received. integrity of the fuselage pressure vessel. Submit comments using the following of certain skin lap joints in additional Actions Since Issuance of Previous Rule areas of the fuselage and repair if format: necessary. This action also would • Organize comments issue-by issue. Since the issuance of that AD, further expand the applicability of the existing For example, discuss a request to analysis by the manufacturer revealed AD to include additional airplanes. The change the compliance time and a that additional areas with similar stress actions specified by the proposed AD request to change the service bulletin loading and design may also be affected are intended to detect and correct reference as two separate issues. by cracking. Because of the similar • cracking of certain skin lap joints, For each issue, state what specific stress loading and design, cracking of which could result in reduced structural change to the proposed AD is being certain skin lap joints may exist on all integrity and decompression of the requested. Airbus Model A300 B4–600, B4–600R, • airplane. This action is intended to Include justification (e.g., reasons or F4–600R, C4–605R Variant F address the identified unsafe condition. data) for each request. (collectively called A300–600), and Comments are specifically invited on A310 series airplanes; therefore, those DATES: Comments must be received by the overall regulatory, economic, airplanes may also be subject to the January 20, 2004. environmental, and energy aspects of same unsafe condition described above. ADDRESSES: Submit comments in the proposed rule. All comments The DGAC issued French airworthiness triplicate to the Federal Aviation submitted will be available, both before directive 2002–639(B), dated December Administration (FAA), Transport and after the closing date for comments, 24, 2002, to ensure the continued Airplane Directorate, ANM–114, in the Rules Docket for examination by airworthiness of these airplanes in Attention: Rules Docket No. 2001–NM– interested persons. A report France. That French airworthiness 111–AD, 1601 Lind Avenue, SW., summarizing each FAA-public contact directive supersedes French Renton, Washington 98055–4056. concerned with the substance of this airworthiness directives 2000–001– Comments may be inspected at this proposal will be filed in the Rules 300(B)R1 and 2001–071(B). location between 9 a.m. and 3 p.m., Docket. Monday through Friday, except Federal Commenters wishing the FAA to Explanation of Relevant Service holidays. Comments may be submitted acknowledge receipt of their comments Information via fax to (425) 227–1232. Comments submitted in response to this action For Model A300 B2 and A300 B4 may also be sent via the Internet using must submit a self-addressed, stamped series airplanes, Airbus has issued the following address: 9-anm- postcard on which the following Service Bulletins A300–53–0354, [email protected]. Comments sent statement is made: ‘‘Comments to Revision 02, dated December 13, 2001; via fax or the Internet must contain Docket Number 2001–NM–111–AD.’’ A300–53–0356, dated December 26, ‘‘Docket No. 2001–NM–111–AD’’ in the The postcard will be date stamped and 2000; and A300–53–0357, dated subject line and need not be submitted returned to the commenter. December 26, 2000. These service in triplicate. Comments sent via the bulletins describe procedures for Internet as attached electronic files must Availability of NPRMs repetitive ultrasonic inspections to be formatted in Microsoft Word 97 for Any person may obtain a copy of this detect cracking in certain skin lap joints, Windows or ASCII text. NPRM by submitting a request to the and repair if necessary. The service information referenced in FAA, Transport Airplane Directorate, • Service Bulletin A300–53–0354 the proposed rule may be obtained from ANM–114, Attention: Rules Docked No. describes procedures for repetitive Airbus Industrie, 1 Rond Point Maurice 2001–NM–111–AD, 1601 Lind Avenue, inspections of skin lap joints located Bellonte, 31707 Blagnac Cedex, France. SW., Renton, Washington 98055–4056. above the mid-passenger doors. If repair This information may be examined at is necessary, operators are instructed to Discussion the FAA, Transport Airplane do temporary or final repair, as Directorate, 1601 Lind Avenue, SW., On January 31, 2000, the FAA issued applicable, per the applicable repair Renton, Washington. AD 2000–02–39, amendment 39–11557 drawing. FOR FURTHER INFORMATION CONTACT: (65 FR 5756, February 7, 2000), • Service Bulletin A300–53–0356 Anthony Jopling, Aerospace Engineer, applicable to certain Airbus Model describes procedures for repetitive International Branch, ANM–116, FAA, A300 series airplanes, to require either inspections of skin lap joints located Transport Airplane Directorate, 1601 a one-time ultrasonic inspection, or below the mid-passenger doors and in Lind Avenue, SW., Renton, Washington repetitive visual inspections and the lower fuselage aft of the wing. If 98055–4056: telephone (425) 227–2190: eventual ultrasonic inspection, to detect repairs is necessary, operators are fax (425) 227–1149. cracking of the longitudinal skin splice instructed to do a final repair per the SUPPLEMENTARY INFORMATION: above the mid-passenger door panels, applicable Airbus structural repair and corrective actions if necessary. That manual. The effectivity of this specific Comments Invited action was prompted by notification service bulletin excludes those airplanes Interested persons are invited to from the Direction Ge´ne´rale de modified by Airbus Modification 2611 participate in the making of the l’Aviation Civile (DGAC), which is the in production. proposed rule by submitting such airworthiness authority for France, that • Service Bulletin A300–53–0357 written, views, or arguments as they during a routine maintenance check on describes procedures for repetitive may desire. Communications shall an Airbus Model A300 series airplane, inspections on skin lap joints located identify the Rules Docket number and a horizontal crack of 35.6 inches was above the aft-passenger doors. If repair

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is necessary, operators are instructed to Explanation of Change Made to Existing The ultrasonic inspection that is contact Airbus for repair instructions. Requirements currently required by AD 200–02–39 takes approximately 4 work hours per For Model A300–600 series airplanes, The FAA has changed all references airplane to accomplish, at an average Airbus has issued Service Bulletin to a ‘‘detailed visual inspection’’ in the labor rate of $65 per work hour. Based A310–53–6129, Revision 02, dated existing AD to ‘‘detailed inspection’’ in on these figures, the cost impact of the December 13, 2001, which describes this action. currently required actions is estimated procedures for repetitive ultrasonic Explanation of Change to Applicability to be $260 per airplane. inspections to detect cracking in skin The detailed inspection that is In this proposed AD the FAA has lap joints located above the mid- currently required by AD 2000–01–39 passenger doors, and repair if necessary. revised the applicability of affected takes approximately 2 work hours per Airbus Model A300 series airplanes to For Model A310 series airplanes, airplane to accomplish, at an average ‘‘Airbus Model A300 B2 Series Airbus has issued Service Bulletin labor rate of $65 per work hour. Based Airplanes’’ and ‘‘Airbus Model A300 B4 on these figures, the cost impact of the A310–53–2112, dated December 26, Series Airplanes’’ to match the most 2000, which describes procedures for currently required actions is estimated recent type certificate data sheet for the to be $130 per airplane. repetitive ultrasonic inspections to affected models. detect cracking in skin lap joints located The ultrasonic inspection that is Also, for Model A300 series airplanes, proposed in this AD action would take below the aft passenger door, and repair the applicability of the existing AD if necessary. approximately 1 work hour per airplane includes serial numbers ‘‘1 through 156 to accomplish, at an average rate of $65 Accomplishment of the actions inclusive.’’ In this action the per work hour. Based on these figures, specified in the service bulletins are applicability for Airbus Model A300 B2 the cost impact of this proposed intended to adequately address the and B4 series airplanes has been inspection on U.S. operators is identified unsafe condition. changed to include serial numbers estimated to be $8,320, or $65 per ‘‘0003 through 0156 inclusive.’’ The airplane. FAA’s Conclusions airplanes with serial numbers 1 and 2 The cost impact figures discussed These airplane models are were destroyed by the manufacturer. above are based on assumptions that no manufactured in France and are type No Flight With Cracks operator has yet accomplished any of certificated for operation in the United the current or proposed requirements of Airbus Service Bulletins A300–53– this AD action, and that no operator States under the provisions of section 0354, Revision 02; A300–53–0356; and 21.29 of the Federal Aviation would accomplish those actions in the A300–53–6129, Revision 02; allow flight future if this AD were not adopted. The Regulations (14 CFR 21.29) and the with cracking of certain lengths, as cost impact figures discussed in AD applicable bilateral airworthiness specified in the applicable service rulemaking actions represent only the agreement. Pursuant to this bilateral bulletin. This proposed AD would not time necessary to perform the specific airworthiness agreement, the DGAC has allow flight with any cracking, actions actually required by the AD. kept the FAA informed of the situation regardless of crack length. We have These figures typically do not include described above. The FAA has determined that because of the safety incidental costs, such as the time examined the findings of the DGAC, implications and consequences required to gain access and close up, reviewed all available information, and associated with such cracking, any planning time, or time necessitated by determined that AD actions is necessary cracking must be repaired before further other administrative actions. for products of this type design that are flight. certificated for operation in the United Regulatory Impact States. Difference Between the Proposed AD The regulations proposed herein and the Service Information would not have a substantial direct Explanation of Requirements of Operators should note that, although effect on the States, on the relationship Proposed Rule the service bulletins specify that the between the national Government and Since an unsafe condition has been manufacturer may be contacted for the States, or on the distribution of identified that is likely to exist or disposition of certain repair conditions power and responsibilities among the develop on other airplanes of the same and repetitive inspections after a final various levels of government.Therefore, type design registered in the United repair, this proposal would require the it is determined that this proposal repair of those conditions to be would not have federalism implications States, the proposed AD would accomplished in accordance with a under Executive Order 13132. supersede AD 2000–02–39 to continue method approved by either the FAA, or For the reasons discussed above, I to require either a one-time ultrasonic the DGAC (or its delegated agent). In certify that this proposed regulation (1) inspection, or repetitive visual light of the type of repair that would be Is not a ‘‘significant regulatory action’’ inspections and eventual ultrasonic required to address the identified unsafe under Executive Order 12866; (2) is not inspection, to detect cracking of the condition, and consonance with existing a ‘‘significant rule’’ under the DOT longitudinal skin splice above the mid- bilateral airworthiness agreements, the Regulatory Policies and Procedures (44 passenger door panels, and corrective FAA has determined that, for this FR 11034, February 26, 1979); and (3) if actions if necessary. The proposed AD proposed AD, a repair approved by promulgated, will not have a significant would also require repetitive ultrasonic either the FAA or the DGAC would be economic impact, positive or negative, inspections to detect cracking of certain acceptable for compliance with this on a substantial number of small entities skin lap joints in additional areas of the proposed AD. under the criteria of the Regulatory fuselage, and repair if necessary. The Flexibility Act. A copy of the draft actions would be required to be Cost Impacts regulatory evaluation prepared for this accomplished in accordance with the There are approximately 128 action is contained in the Rules Docket. service bulletins described previously, airplanes of U.S. registry that would be A copy of it may be obtained by except as discussed below. affected by this proposed AD. contacting the Rules Docket at the

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location provided under the caption Note 1: For the purposes of this AD, a December 13, 2001, has been accomplished: ADDRESSES. detailed inspection is defined as: ‘‘An Do the initial inspection at the applicable intensive visual examination of a specific time specified in paragraph (c)(2)(i) or List of Subjects in 14 CFR Part 39 structural area, system, installation, or (c)(2)(ii) of this AD. If no cracking is detected, assembly to detect damage, failure, or repeat the inspection thereafter at intervals Air transportation, Aircraft, Aviation irregularity. Available lighting is normally not to exceed 6,500 flight cycles. safety, Safety. supplemented with a direct source of good (i) For airplanes with less than 20,500 The Proposed Amendment lighting at intensity deemed appropriate by flight cycles as of the effective date of this the inspector. Inspection aids such as AD: Inspect before the accumulation of Accordingly, pursuant to the mirrors, magnifying lenses, etc., may be used. 20,500 total flight cycles or within 19 months authority delegated to me by the Surface cleaning and elaborate access after the effective date of this AD, whichever Administrator, the Federal Aviation procedures may be required.’’ occurs later. (ii) For airplanes with 20,500 total flight Administration proposes to amend part (i) If no cracking is detected: Accomplish the requirements of paragraphs (a)(2)(i)(A) cycles or more, but less than 26,500 total 39 of the Federal Aviation Regulations flight cycles as of the effective date of this (14 CFR part 39) as follows: and (a)(2)(i)(B) of this AD. (A) Repeat the detailed inspection AD: Inspect within 500 flight cycles after the effective date of this AD. PART 39—AIRWORTHINESS thereafter at intervals not to exceed 80 flight cycles; and (d) Accomplishment of the actions DIRECTIVES (B) Within 90 days after January 31, 2000: specified in Airbus Service Bulletin A300– Accomplish the requirements of paragraph 53–0354, Revision 01, dated December 26, 1. The authority citation for part 39 2000, before the effective date of this AD, is (a)(1) of this AD. considered acceptable for compliance with continues to read as follows: (ii) If any cracking is detected: Before the requirements of paragraph (c) of this AD. Authority: 49 U.S.C. 106(g), 40113, 44701. further flight, accomplish the requirements of (e) If any cracking is detected during any paragraph (b) of this AD. § 39.13 [Amended] inspection per paragraph (c) of this AD: Do Corrective Actions paragraphs (e)(1) and (e)(2) of this AD, as 2. Section 39.13 is amended by applicable. removing amendment 39–11557 (65 FR (b) For airplanes on which any cracking is detected during any inspection required by (1) If any crack is detected in Area A as 5756, February 7, 2000), and by adding paragraph (a)(1) or (a)(2) of this AD: Before defined in Figure 1 of Airbus Service Bulletin A300–53–0354, Revision 02, dated December a new airworthiness directive (AD), to further flight, install either a temporary or 13, 2001: Before further flight, repair per a read as follows: final repair, in accordance with Airbus AOT method approved by either the Manager, A300–53A0532, dated January 4, 2000. Airbus: Docket 2001–NM–111–AD. International Branch, ANM–116, Transport (1) If a temporary repair is installed: Prior Supersedes AD 2000–02–39, Airplane Directorate, FAA, or the Direction to the accumulation of 2,000 flight cycles Amendment 39–11557. Ge´ne´rale de l’Aviation Civile (DGAC) (or its after the installation of the repair, install the delegated agent). Applicability: Model A300 B2 series final repair. (2) If any crack is detected in Area B as airplanes; A300 B4 series airplanes; A300 (2) If a final repair is installed: No further defined in Figure 1 of Airbus Service Bulletin B4–600, B4–600R, and C4–605R Variant F action is required by paragraphs (a) and (b) A300–53–0354, Revision 02, dated December (Collectively Called A300–600) series of this AD. airplanes; and A310 series airplanes; 13, 2001: Before further flight, do a certificated in any category. New Requirements of This AD temporary repair or final repair, as Compliance: Required as indicated, unless applicable, per the Accomplishment Inspections and Corrective Actions: Model accomplished previously. Instructions of the service bulletin. A300 B2 and B4 Series Airplanes To detect and correct cracking of certain (f) For Model A300 B2 and A300 B4 series skin lap joints, which could result in reduced (c) For Model A300 B2 and A300 B4 series airplanes with S/Ns 0003 through 0305 structural integrity and decompression of the airplanes with S/Ns 0003 through 0305 inclusive which have been repaired per airplane, accomplish the following: inclusive: From the airplane interior, do an paragraph (d)(2) of this AD: Do paragraph ultrasonic inspection to detect cracking of the (f)(1) of (f)(2) of this AD, as applicable. Restatement of Certain Requirements of AD skin lap joint located above the mid- (1) If a temporary repair has been 2000–02–39 passenger door panel below stringer 11, accomplished: Within 2,000 flight cycles Ultrasonic or Detailed Visual Inspection between frames 28A and 31, on the left and after doing the temporary repair, do the final right sides of the airplane, as applicable, per repair per the Accomplishment Instructions (a) For Model A300 series airplanes having the Accomplishment Instructions of Airbus of Airbus Service Bulletin A300–53–0354, serial number (S/N) 0003 through 0156 Service Bulletin A300–53–0354, Revision 02, Revision 02, dated December 13, 2001. inclusive: Within 14 days after January 31, dated December 13, 2001 Do the inspection (2) If a final repair has been accomplished: 2000 (the effective date of AD 2000–02–39, at the times specified in paragraphs (c)(1) or Perform repetitive inspections per a method amendment 39–11557), accomplish the (c)(2) of this AD, as applicable. and at intervals approved by either the requirements of either paragraph (a)(1) or Accomplishment of this inspection Manager, International Branch, ANM–116, (a)(2) of this AD, in accordance with Airbus terminates the repetitive inspections required Transport Directorate, FAA, or the DGAC (or All Operators Telex (AOT) A300–53A0352, by paragraph (a)(2)(i)(A) of this AD. its delegated agent). dated January 4, 2000. (1) For airplanes with S/Ns 0003 through (g) For Model A300 B2 and A300 B4 series (1) Perform a one-time ultrasonic 0156 inclusive, except those airplanes on airplanes, except those airplanes with Airbus inspection to detect cracking of the which the final repair in AOT A300– Modification 2611 accomplished in longitudinal skin splice above the mid- 53A0352, Dated January 4, 2000; or Airbus production: Prior to the accumulation of passenger door panels below stringer 11 (left- Service Bulletin A300–53–0354, Revision 02, 30,300 total flight cycles, or within 19 and right-hand) and between frames 28A and dated December 13, 2001, has been months after the effective date of this AD, 30A. accomplished: Do the inspection within whichever occurs later, do the inspections in (i) If no cracking is detected: No further 2,500 flight cycles after the inspection per paragraphs (g)(1) and (g)(2) of this AD. action is required by this paragraph. paragraph (a) of this AD, or within 14 days (1) From the airplane interior: Do an (ii) If any cracking is detected: Before after the effective date of this AD, whichever ultrasonic inspection to detect cracking of the further flight, accomplish the requirements of occurs later. If no cracking is detected, repeat skin lap joint located below the mid- paragraph (b) of this AD. the inspection thereafter at intervals not to passenger door panel, below stringer 27, (2) Perform a detailed inspection to detect exceed 2,500 flight cycles. between frames 28A and 30A, on the left and cracking of the longitudinal skin splice above (2) For airplanes with S/Ns 0157 through right sides of the airplane, as applicable, per the mid-passenger door panels below stringer 0305 inclusive, except those airplanes on the Accomplishment Instructions of Airbus 11 (left- and right-hand) and between frames which the final repair in Airbus Sevice Service Bulletin A300–53–0356, dated 28A and 30A. Bulletin A300–53–0354, Revision 02, dated December 26, 2000.

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(i) If no cracking is detected: Repeat the (j) For all Model A300 B2 and A300 B4 13, 2001: Before further flight, repair per a inspection required by paragraph (g)(1) of series airplanes; if any cracking is detected method approved by either the Manager, this AD thereafter at intervals not to exceed during the inspection required by paragraph International Branch, ANM–116, or the 4,100 flight cycles. (h) of this AD; Before further flight, repair the DGAC (or its delegated agent). (ii) If any cracking is detected in area A as affected area, per a method approved by (2) If any crack is detected in Area B as defined in Figure 1 of Airbus Service Bulletin either the Manager, International Branch, defined in figure 1 of Airbus Service Bulletin A300–53–0356: Before further flight, repair ANM–116, or the DGAC (or its delegated A300–53–6129, Revision 02, dated December the affected area per a method approved by agent). either the Manager, International Branch, 13, 2001: Before further fight, do a temporary ANM–116, or the DGAC (or its delegated Inspections and Corrective Actions: Model repair or final repair, as applicable, per the agent). Upon completion of the repair, do A310 Series Airplanes Accomplishment Instructions of Airbus repetitive inspections of the affected area per (k) For Model A310 series airplanes; prior Service Bulletin A300–53–6129, Revision 02, a method and at intervals approved by one to the accumulation of 29,500 total flight dated December 13, 2001. of the airworthiness authorities listed above. cycles, or within 19 months after the effective (n) For airplanes which have been repaired (2) Do an external ultrasonic inspection to date of this AD, whichever occurs later: From per paragraph (m)(2) of this AD: Do detect cracking of the skin lap joint located the airplane interior, do an ultrasonic paragraph (n)(1) or (n)(2) of this AD, as in the lower fuselage, aft of the wing, below inspection to detect cracking of the skin lap applicable. the mid-passenger door panel, below stringer joint located below the aft-passenger door (1) If a temporary repair has been 52, between frames 56 and 58, on the left and panel, below stringer 28, between frame 72 right sides of the airplane, as applicable, per and frame 76, on the right and left sides of accomplished: Within 2,000 flight cycles the Accomplishment Instructions of Airbus the airplane, as applicable, per the after doing the temporary repair, do the final Service Bulletin A300–53–0356, dated Accomplishment Instructions of Airbus repair per the Accomplishment Instructions December 26, 2000. If an internal or external Service Bulletin A310–53–2112, dated of Airbus Service Bulletin A300–53–6129, repair doubler approved by the FAA or the December 26, 2000. If an internal or external Revision 02, dated December 13, 2001. DGAC (or its delegated agent), of Airbus repair doubler is installed in any inspection (2) If a final repair has been accomplished: design origin, has been installed in this area, area, inspection of that specific area is not Perform repetitive inspections per a method the doubler does not need to be removed for required. and at intervals approved by either the inspection of this area. (1) If no cracking is detected: Repeat the Manager, International Branch, ANM–116, or (i) If no cracking is detected: Repeat the inspection thereafter at intervals not to the DGAC (or its delegated agent). inspection required by paragraph (g)(2) of exceed 5,400 flight cycles. this AD thereafter at intervals not to exceed (2) If any cracking is detected: Before Credit for Previous Service Bulletin Revision 4,100 flight cycles. further flight, repair the affected area, per a (o) Accomplishment of the actions in (ii) If any cracking is detected in Area B as method and at repetitive intervals approved defined in Figure 1 of Airbus Service Bulletin by either the Manager, International Branch, Airbus Service Bulletin A300–53–6129, A300–53–0356: Before further flight, do a ANM–116, or the DGAC (or its delegated Revision 01, dated December 26, 2000, before final repair per the Accomplishment agent). the effective date of this AD, is considered Instructions of Airbus Service Bulletin A300– acceptable for compliance with the 53–0356. Inspections and Corrections Actions: Model requirements of paragraph (1) of this AD. (h) For Model A300 B2 and A300 B4 series A300–600 Series Airplanes airplanes, except those on which Airbus (l) For Model A300–600 series airplanes: Submission of Inspection Results to Service Bulletin A300–53–0209 has been From the airplane interior, do an ultrasonic Manufacture Not Required accomplished: From the airplane interior, do inspection to detect cracking of the skin lap (p) Although the service bulletins an ultrasonic inspection to detect cracking of joint located above the mid-passenger door referenced in this AD specify to submit the skin lap joint located below the aft- panel, below stringer 11, between frames 28A information to the manufacture, this AD does passenger door panel, below stringer 28, and 31, on the right and left sides of the not include such a requirement. between frames 72 and 76 on the left and airplane, as applicable, per the right sides of the airplane, as applicable, per Accomplishment Instructions of Airbus Alternative Methods of Compliance the Accomplishment Instructions of Airbus Service Bulletin A300–53–6129, Revision 02, (q)(1) In accordance with 14 CFR 39.19, the Service Bulletin A300–53–0357, dated dated December 13, 2001. Do the inspection December 26, 2000. If an internal or external at the applicable time specified in paragraph Manager, International Branch, ANM–116, is repair doubler is installed in this area, (l)(1), (l)(2), or (l)(3) of this AD. If no cracking authorized to approve alternative methods of inspection of this area is not required. is detected, repeat the inspection thereafter at compliance for this AD. Perform the inspection at the later of the intervals not to exceed 6,500 flight cycles. (2) Alternative methods of compliance, times specified in paragraphs (h)(1) and (1) For airplanes with less than 20,500 approved previously in accordance with AD (h)(2) of this AD. flight cycles as of the effective date of this 2000–02–39, amendment 39–11557, are (1) Prior to the accumulation of 24,100 AD: Inspect before the accumulation of approved as alternative methods of total flight cycles for S/Ns 0003 through 0156 20,500 total flight cycles or within 19 months compliance with the applicable actions in inclusive, or 29,500 total flight cycles for after the effective date of this AD, whichever this AD. S/Ns 0157 through 0305 inclusive. occurs later. (2) Within 2,000 flight cycles or 19 months (2) For airplanes with 20,500 total flight Note 2: The subject of this AD is addressed after the effective date of this AD, whichever cycles or more, but less than 26,500 total in French airworthiness directive 2002– occurs first. flight cycles as of the effective date of this 639(B), dated December 24, 2002. (i) If no cracking is detected during the AD: Inspect within 500 flight cycles after the Dated: Issued in Renton, Washington, on inspection required by paragraph (h) of this effective date of this AD. AD: Repeat the inspection required by (3) For airplanes with 26,500 total flight December 11, 2003. paragraph (h) of this AD at the intervals cycles or more as of the effective date of this Kevin M. Mullin, specified in paragraph (i)(1) and (i)(2) of this AD: Inspect within 200 flight cycles or 30 Acting Manager, Transport Airplane AD, as applicable. days after the effective date of this AD, Directorate, Aircraft Certification Service. (1) For Model A300 B2 and A300 B4 series whichever occurs later. [FR Doc. 03–31194 Filed 12–17–03; 8:45 am] airplanes with S/Ns 003 through 0156 (m) If any cracking is detected during any inclusive: Repeat the inspection thereafter at inspection per paragraph (l) of this AD: Do BILLING CODE 4910–13–M intervals not to exceed 3,400 flight cycles. paragraphs (m)(1) and (m)(2) of this AD, as (2) For Model A300 B2 and A300 B4 series applicable. airplanes with S/Ns 0157 through 0305 (1) If any crack is detected in Area A as inclusive: Repeat the inspection thereafter defined in Figure 1 of Airbus Service Bulletin not to exceed 5,400 flight cycles. A300–53–619, Revision 02, dated December

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DEPARTMENT OF TRANSPORTATION in triplicate. Comments sent via the concerned with the substance of this Internet as attached electronic files must proposal will be filed in the Rules Federal Aviation Administration be formatted in Microsoft Word 97 or Docket. 2000 or ASCII text. Commenters wishing the FAA to 14 CFR Part 39 The service information referenced in acknowledge receipt of their comments the proposed rule may be obtained from [Docket No. 2002–NM–126–AD] submitted in response to this action Bombardier, Inc., Bombardier Regional must submit a self-addressed, stamped RIN 2120–AA64 Aircraft Division, 123 Garratt Boulevard, postcard on which the following Downsview, Ontario M3K 1Y5, Canada. Airworthiness Directives; Bombardier statement is made: ‘‘Comments to This information may be examined at Docket Number 2002–NM–126–AD.’’ Model DHC–8–101, –102, –103, –106, the FAA, Transport Airplane –201, –202, –301, –311, and –315 The postcard will be date stamped and Directorate, 1601 Lind Avenue, SW., returned to the commenter. Airplanes Renton, Washington; or at the FAA, Availability of NPRMs AGENCY: Federal Aviation New York Aircraft Certification Office, Administration, DOT. 10 Fifth Street, Third Floor, Valley Any person may obtain a copy of this Stream, New York. ACTION: Notice of proposed rulemaking NPRM by submitting a request to the FOR FURTHER INFORMATION CONTACT: (NPRM). Ezra FAA, Transport Airplane Directorate, Sasson, Aerospace Engineer, Systems ANM–114, Attention: Rules Docket No. SUMMARY: This document proposes the and Flight Test Branch, ANE–172, FAA, 2002–NM–126–AD, 1601 Lind Avenue, adoption of a new airworthiness New York Aircraft Certification Office, SW., Renton, Washington 98055–4056. directive (AD) that is applicable to all 10 Fifth Street, Third Floor, Valley Bombardier Model DHC–8–101, –102, Stream, New York 11581; telephone Discussion –103, –106, –201, –202, –301, –311, and (516) 256–7520; fax (516) 568–2716. Transport Canada Civil Aviation –315 airplanes. This proposal would SUPPLEMENTARY INFORMATION: (TCCA), which is the airworthiness require a detailed inspection of the wing Comments Invited authority for Canada, notified the FAA leading edge de-icer boots to determine that an unsafe condition may exist on Interested persons are invited to if they comply with the patch size and/ certain Bombardier Model DHC–8–101, participate in the making of the or patch number limits in the critical –102, –103, –106, –201, –202, –301, proposed rule by submitting such zone as defined in the Aircraft –311, and –315 airplanes. The written data, views, or arguments as Maintenance Manual; and corrective manufacturer has revised the Aircraft they may desire. Communications shall action, if necessary. This action is Maintenance Manual (AMM) to tighten identify the Rules Docket number and necessary to prevent reduced the limit on the size and number of be submitted in triplicate to the address aerodynamic smoothness of the wing repair patches on the de-icer boots in specified above. All communications leading edge de-icer boots and possible the wing critical zone to avoid any received on or before the closing date reduced stall margin, which could result adverse effect to the aerodynamic stall for comments, specified above, will be in a significant increase in stall speeds, margins. The new limits are based on considered before taking action on the leading to a possible stall prior to the airplane aerodynamic characteristics proposed rule. The proposals contained activation of the stall warning. This and the smoothness of the boots. in this action may be changed in light action is intended to address the Reduced aerodynamic smoothness of identified unsafe condition. of the comments received. Submit comments using the following the wing leading edge de-icer boots, and DATES: Comments must be received by format: possible reduced stall margin, if not January 20, 2004. • Organize comments issue-by-issue. corrected, could result in a significant ADDRESSES: Submit comments in For example, discuss a request to increase in stall speeds, leading to a triplicate to the Federal Aviation change the compliance time and a possible stall prior to activation of the Administration (FAA), Transport request to change the service bulletin stall warning. Airplane Directorate, ANM–114, reference as two separate issues. Explanation of Relevant Service • Attention: Rules Docket No. 2002–NM– For each issue, state what specific Information 126–AD, 1601 Lind Avenue, SW., change to the proposed AD is being Renton, Washington 98055–4056. requested. Bombardier has issued revisions to Comments may be inspected at this • Include justification (e.g., reasons or the AMM, listed in the following table, location between 9 a.m. and 3 p.m., data) for each request. which describe procedures for a Monday through Friday, except Federal Comments are specifically invited on detailed inspection of the wing leading holidays. Comments may be submitted the overall regulatory, economic, edge de-icer boots for damage and to via fax to (425) 227–1232. Comments environmental, and energy aspects of determine if they comply with the patch may also be sent via the Internet using the proposed rule. All comments size and/or patch number limits in the the following address: 9-anm- submitted will be available, both before critical zone as defined in the AMM. [email protected]. Comments sent and after the closing date for comments, The AMM revisions also describe via fax or the Internet must contain in the Rules Docket for examination by procedures for replacement of non- ‘‘Docket No. 2002–NM–126–AD’’ in the interested persons. A report compliant de-icer boots with new de- subject line and need not be submitted summarizing each FAA-public contact icer boots, if necessary.

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TABLE—AMM REVISIONS

Program support Model— AMM— manual Chapter— Revision— Dated— (PSM)—

DHC–8–101, –102, –103, and –106 ...... Series 100 ...... 1–8–2 30–10–48 49 October 3, 2001. DHC–8–201, and –202 ...... Series 200 ...... 1–82–2 30–12–00 11 October 19, 2001. DHC–8–301, –311, and –315 ...... Series 300 ...... 1–83–2 30–10–48 ...... October 30, 2001. 1 Temporary Revision (TR) 30–21.

Accomplishment of the actions approximately 2 work hours per action is contained in the Rules Docket. specified in the applicable AMM airplane to accomplish the proposed A copy of it may be obtained by revision is intended to adequately inspection, and that the average labor contacting the Rules Docket at the address the identified unsafe condition. rate is $65 per work hour. Based on location provided under the caption TCCA classified these actions as these figures, the cost impact of the ADDRESSES. mandatory and issued Canadian proposed AD on U.S. operators is List of Subjects in 14 CFR Part 39 airworthiness directive CF–2001–43, estimated to be $26,000, or $130 per dated November 23, 2001, to ensure the airplane. Air transportation, Aircraft, Aviation continued airworthiness of these The cost impact figure discussed safety, Safety. airplanes in Canada. above is based on assumptions that no The Proposed Amendment FAA’s Conclusions operator has yet accomplished any of the proposed requirements of this AD Accordingly, pursuant to the These airplane models are action, and that no operator would authority delegated to me by the manufactured in Canada and are type accomplish those actions in the future if Administrator, the Federal Aviation certificated for operation in the United this AD were not adopted. The cost Administration proposes to amend part States under the provisions of section impact figures discussed in AD 39 of the Federal Aviation Regulations 21.29 of the Federal Aviation rulemaking actions represent only the (14 CFR part 39) as follows: Regulations (14 CFR 21.29) and the time necessary to perform the specific applicable bilateral airworthiness actions actually required by the AD. PART 39—AIRWORTHINESS agreement. Pursuant to this bilateral These figures typically do not include DIRECTIVES airworthiness agreement, the TCCA has incidental costs, such as the time kept us informed of the situation 1. The authority citation for part 39 required to gain access and close up, described above. We have examined the continues to read as follows: planning time, or time necessitated by findings of the TCCA, reviewed all other administrative actions. Authority: 49 U.S.C. 106(g), 40113, 44701. available information, and determined that AD action is necessary for products Regulatory Impact § 39.13 [Amended] of this type design that are certificated The regulations proposed herein 2. Section 39.13 is amended by for operation in the United States. would not have a substantial direct adding the following new airworthiness Explanation of Requirements of effect on the States, on the relationship directive: Proposed Rule between the national Government and Bombardier, Inc. (Formerly de Havilland, Since an unsafe condition has been the States, or on the distribution of Inc.): Docket 2002–NM–126–AD. identified that is likely to exist or power and responsibilities among the Applicability: All Model DHC–8–101, develop on other airplanes of the same various levels of government. Therefore, –102, –103, –106, –201, –202, –301, –311, type design registered in the United it is determined that this proposal and –315 airplanes; certificated in any category. States, the proposed AD would require would not have federalism implications under Executive Order 13132. Compliance: Required as indicated, unless accomplishment of the actions specified accomplished previously. in the Canadian airworthiness directive For the reasons discussed above, I To prevent reduced aerodynamic described previously, and corrective certify that this proposed regulation (1) smoothness of the wing leading edge de-icer actions, if necessary. The corrective is not a ‘‘significant regulatory action’’ boots and possible reduced stall margin, actions involve the temporary revision under Executive Order 12866; (2) is not which could result in a significant increase of the Aircraft Flight Manual (AFM) to a ‘‘significant rule’’ under the DOT in stall speeds, leading to a possible stall specify operating limitations, and Regulatory Policies and Procedures (44 prior to activation of the stall warning; eventual replacement of the de-icer FR 11034, February 26, 1979); and (3) if accomplish the following: boots with new boots. promulgated, will not have a significant Maintenance Manual Reference economic impact, positive or negative, Cost Impact (a) The term ‘‘Aircraft Maintenance on a substantial number of small entities Manual,’’ or the acronym ‘‘AMM,’’ as used in We estimate that 200 airplanes of U.S. under the criteria of the Regulatory this AD, means the chapter of the Bombardier registry would be affected by this Flexibility Act. A copy of the draft Aircraft Maintenance Manuals listed in Table proposed AD, that it would take regulatory evaluation prepared for this 1 of this AD, as applicable:

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TABLE 1.—AMM REFERENCE

Program support Model— AMM— manual Chapter— Revision— Dated— (PSM)—

DHC–8–101, –102, –103, and –106 ...... Series 100 ...... 1–8–2 30–10–48 49 October 3, 2001. DHC–8–201, and –202 ...... Series 200 ...... 1–82–2 30–12–00 11 October 19, 2001. DHC–8–301, –311, and –315 ...... Series 300 ...... 1–83–2 30–10–48 (1) October 30, 2001. 1 Temporary Revision (TR) 30–12.

Detailed Inspection cleaning and elaborate access procedures (1) Before further flight, insert the contents (b) Within 60 days after the effective date may be required.’’ of Table 2 of this AD in the Limitations of this AD: Perform a detailed inspection of (1) If all de-icer boots are within the patch Section of the Aircraft Flight Manual (AFM) the wing leading edge de-icer boots to size and/or patch number limits in the and advise flight crews to comply with the determine if the de-icer boots comply with critical zone as defined in the AMM, no performance penalties detailed in Table 2 of the patch size and/or patch number limits in further action is required by this paragraph. this AD. the critical zone as defined in the AMM. (2) If any de-icer boot exceeds the patch (2) Within 24 months after the effective Note 1: For the purposes of this AD, a size and/or patch number limits in the date of this AD, replace all wing de-icer boots detailed inspection is defined as: ‘‘An critical zone as defined in the AMM, that exceed the patch size and/or patch intensive visual examination of a specific accomplish the corrective actions required by number limits in the critical zone as defined structural area, system, installation, or paragraph (c) of this AD. in the AMM, with new de-icer boots, in assembly to detect damage, failure, or accordance with the applicable AMM irregularity. Available lighting is normally Corrective Actions referenced in Table 1 of this AD. Remove the supplemented with a direct source of good (c) For de-icer boots that require the contents of Table 2 of this AD from the AFM, lighting at intensity deemed appropriate by corrective actions described in paragraph and terminate the requirements to comply the inspector. Inspection aids such as mirror, (b)(2) of this AD, accomplish the following with the performance penalties after all magnifying lenses, etc., may be used. Surface corrective actions: replacements are accomplished.

TABLE 2.—PERFORMANCE PENALTIES

AFM limits with de-ice boot patch limits exceeded AFM sections Note: Flap settings as applicable to aircraft model

T/O Speed: Sub-Section 5–2 V1, Vr & V2 ...... Add: 5 kt (flap 0°) 5 kt (flap 5°) 5 kt (flap 10°) 5 kt (flap 15°) Final T/O Climb Speed ...... Add: 5 kt (flap 0°)

T/O WAT Limit: Sub-Section 5–3 Note: Weight reduction not required when limited by maximum structural weight. Subtract: 18 kg, 400 lb. (flap 0°) 90 kg, 200 lb. (flap 5°) No change (flap 10°) No change (flap 15°)

T/O Climb: Sub-Section 5–4 1st Seg. Gradient ...... Subtract: 0.008 (flap 0°) 0.004 (flap 5°) 0.004 (flap 10°) 0.004 (flap 15°) 2nd Seg. Gradient ...... Subtract: 0.005 (flap 0°) 0.002 (flap 5°) 0.002 (flap 10°) 0.002 (flap 15°) Final Seg. Gradient ...... Subtract: 0.009 (flap 0°)

T/O Field Length: Sub-Section 5–5

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TABLE 2.—PERFORMANCE PENALTIES—Continued

AFM limits with de-ice boot patch limits exceeded AFM sections Note: Flap settings as applicable to aircraft model

TOR, TOD & ASD ...... Add: 16% (flap 0°) 16% (flap 5°) 16% (flap 10°) 16% (flap 15°)

Net T/O Flight Path: Sub-Section 5–6 Ref Gradient ...... Subtract 0.005 (flap 0°) 0.002 (flap 5°) 0.002 (flap 10°) 0.002 (flap 15°) 4th Seg. Net Gradient ...... Subtract: 0.012 (flap 0°) Flap Retraction Initiation Speed ...... Add: 5 kt (flap 5°) 5 kt (flap 10°) 5 kt (flap 15°)

Enroute Climb Data: Sub-Section 5–7 Enroute Climb Speed ...... Add: 5 kt Net Climb Gradient ...... Subtract: 0.004 OEI-Climb Ceiling ...... Subtract: 1,200 ft Landing Speed: Sub-Section 5–8 Approach, Go-around & Vref ...... Add: 5 kt (flap 5°) 5 kt (flap 10°) 5 kt (flap 15°) 5 kt (flap 35°)

Landing WAT Limit: Sub-Section 5–9 Note: Weight reduction not required when limited by maximum structural weight. Subtract: 860 kg, 1900 lb.(flap 10°) 225 kg, 500 lb. (flap 15°) 180 kg, 400 lb. (flap 35°)

Landing Climb Data: Sub-Section 5–10 Approach Gross Climb Gradient ...... Subtract: 0.010 (flap 5°) 0.003 (flap 10°) 0.002 (flap 15°) Balked Landing Gross Climb Gradient ...... Subtract: 0.035 (flap 10°) 0.017 (flap 15°) 0.016 (flap 35°)

Landing Field Length: Sub-Section 5–11 Add: 23% (flap 10°) 16% (flap 15°) 10% (flap 35°)

Brake Energy: Sub-Section 5–12 Accel/Stop B.E...... Add 7% (flap 0°) 7% (flap 5°) 7% (flap 10°) 7% (flap 15°) Landing B.E...... Add: 30% (flap 10°) 20% (flap 15°) 8% (flap 35°)

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Parts Installation Administration (FAA), Transport the proposed rule. All comments (d) As of the effective date of this AD, no Airplane Directorate, ANM–114, submitted will be available, both before person may install—on any airplane—a de- Attention: Rules Docket No. 2003–NM– and after the closing date for comments, icer boot patch in the critical zone of the 80–AD, 1601 Lind Avenue, SW., in the Rules Docket for examination by wing de-icer boots that exceeds the AMM Renton, Washington 98055–4056. interested persons. A report limits referenced in paragraph (b) of this AD. Comments may be inspected at this summarizing each FAA-public contact Alternative Methods of Compliance location between 9 a.m. and 3 p.m., concerned with the substance of this (e) In accordance with 14 CFR 39.19, the Monday through Friday, except Federal proposal will be filed in the Rules Manager, New York Aircraft Certification holidays. Comments may be submitted Docket. Office (ACO), FAA, is authorized to approve via fax to (425) 227–1232. Comments Commenters wishing the FAA to alternative methods of compliance for this may also be sent via the Internet using acknowledge receipt of their comments AD. the following address: submitted in response to this action Note 2: The subject of this AD is addressed [email protected]. must submit a self-addressed, stamped in Canadian airworthiness directive Comments sent via fax or the Internet postcard on which the following CF–2001–43, dated November 23, 2001. must contain ‘‘Docket No. 2003–NM– statement is made: ‘‘Comments to Issued in Renton, Washington, on 80–AD’’ in the subject line and need not Docket Number 2003–NM–80–AD.’’ The December 10, 2003. be submitted in triplicate. Comments postcard will be date stamped and Kevin Mullin, sent via the Internet as attached returned to the commenter. Acting Manager, Transport Airplane electronic files must be formatted in Availability of NPRMs Directorate, Aircraft Certification Service. Microsoft Word 97 or 2000 or ASCII text. Any person may obtain a copy of this [FR Doc. 03–31183 Filed 12–17–03; 8:45 am] NPRM by submitting a request to the BILLING CODE 4910–13–P The service information referenced in the proposed rule may be obtained from FAA, Transport Airplane Directorate, Airbus Industrie, 1 Rond Point Maurice ANM–114, Attention: Rules Docket No. 2003–NM–80–AD, 1601 Lind Avenue, DEPARTMENT OF TRANSPORTATION Bellonte, 31707 Blagnac Cedex, France. This information may be examined at SW., Renton, Washington 98055–4056. Federal Aviation Administration the FAA, Transport Airplane Discussion Directorate, 1601 Lind Avenue, SW., The Direction Ge´ne´rale de l’Aviation 14 CFR Part 39 Renton, Washington. Civile (DGAC), which is the [Docket No. 2003–NM–80–AD] FOR FURTHER INFORMATION CONTACT: Tim airworthiness authority for France, Backman, Aerospace Engineer, notified the FAA that an unsafe RIN 2120–AA64 International Branch, ANM–116, FAA, condition may exist on certain Airbus Transport Airplane Directorate, 1601 Airworthiness Directives; Airbus Model Model A300 B4–600 and A300 C4–600 Lind Avenue, SW., Renton, Washington A300 B4–600 and A300 C4–600 Series series airplanes. The DGAC previously 98055–4056; telephone (425) 227–2797; Airplanes advised the FAA that damaged center fax (425) 227–1149. tank fuel pumps and pump canisters AGENCY: Federal Aviation SUPPLEMENTARY INFORMATION: had been found on Airbus Model A300 Administration, DOT. B4–600R and A300 F4–600R series Comments Invited ACTION: Notice of proposed rulemaking airplanes. Investigation revealed that the (NPRM). Interested persons are invited to pump canister legs had cracked due to participate in the making of the fatigue. In one instance, this led to the SUMMARY: This document proposes the proposed rule by submitting such separation of the upper part of the pump adoption of a new airworthiness written data, views, or arguments as canister from its lower part attached at directive (AD) that is applicable to they may desire. Communications shall the center tank bottom wall. Fatigue certain Airbus Model A300 B4–600 and identify the Rules Docket number and cracking was also found at the base of A300 C4–600 series airplanes. This be submitted in triplicate to the address the fuel pump diffuser housing. The proposal would require a one-time specified above. All communications DGAC has since advised the FAA that inspection to detect damage of the received on or before the closing date fuel tank pump canisters have also been pump diffuser guide slots (bayonet) of for comments, specified above, will be found broken on Model A300 B4–600 the center tank fuel pumps, the pump considered before taking action on the and A300 C4–600 series airplanes, diffuser housings, and the pump proposed rule. The proposals contained which are consequently subject to the canisters; repetitive inspections to in this action may be changed in light unsafe condition identified in this detect damage of the fuel pumps and the of the comments received. proposed AD: separation of a fuel pump fuel pump canisters; and corrective Submit comments using the following from its electrical motor housing, loss of action, if necessary. This action is format: flame trap capability, and a possible fuel necessary to detect and correct damage • Organize comments issue-by-issue. ignition source in the center fuel tank. of the center tank fuel pumps and fuel For example, discuss a request to pump canisters, which could result in change the compliance time and a Related Rulemaking separation of a pump from its electrical request to change the service bulletin On December 23, 1999, the FAA motor housing, loss of flame trap reference as two separate issues. issued AD 99–27–07, amendment 39– capability, and a possible fuel ignition • For each issue, state what specific 11488 (65 FR 213, January 4, 2000), for source in the center fuel tank. This change to the proposed AD is being all Model A300 B4–600R and A300 F4– action is intended to address the requested. 600R series airplanes. That AD requires identified unsafe condition. • Include justification (e.g., reasons or a one-time inspection for damage of the DATES: Comments must be received by data) for each request. center tank fuel pumps and fuel pump January 20, 2004. Comments are specifically invited on canisters, repetitive inspections of the ADDRESSES: Submit comments in the overall regulatory, economic, fuel pumps and fuel pump canisters, triplicate to the Federal Aviation environmental, and energy aspects of and replacement of damaged parts with

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new or serviceable parts. The actions airworthiness agreement, the DGAC has must be repeated at regular intervals. specified by that AD are intended to kept the FAA informed of the situation The FAA finds that those airplanes are detect damage to the fuel pump and fuel described above. The FAA has still subject to the identified unsafe pump canister, which could result in examined the findings of the DGAC, condition and should be included in the loss of flame trap capability and could reviewed all available information, and applicability of this proposed AD. provide a fuel ignition source in the determined that AD action is necessary Interim Action center fuel tank. for products of this type design that are certificated for operation in the United This is considered to be interim Explanation of Relevant Service States. action. The inspection reports that Information would be required by this proposed AD Airbus has issued All Operators Telex Explanation of Requirements of Proposed Rule would enable the manufacturer to (AOT) A300–600–28A6075, dated obtain better insight into the nature, February 20, 2003, which describes Since an unsafe condition has been cause, and extent of the fuel pump procedures for the following: identified that is likely to exist or damage, and eventually to develop final • A one-time detailed inspection to develop on other airplanes of the same action to address the unsafe condition. detect cracks, fretting, and other damage type design registered in the United Once final action has been identified, of the lower part of the pump diffuser States, the proposed AD would require the FAA may consider further guide slots (bayonet) of the center tank accomplishment of the actions specified rulemaking. fuel pumps and the bottom of the pump in and in accordance with the AOT diffuser housings; and replacement of described previously, except as Changes to 14 CFR Part 39/Effect on the any damaged pump and its discussed under ‘‘Differences Between Proposed AD corresponding fuel pump canister with Proposed AD and AOT/French On July 10, 2002, the FAA published new parts. Airworthiness Directive.’’ This • a new version of 14 CFR 39 (67 FR A one-time detailed inspection to proposed AD would also require that 47997, July 22, 2002), which governs the detect cracks of the center tank fuel operators report their findings to the FAA’s AD system. This regulation now manufacturer. pump canisters, and replacement of any includes material that relates to altered cracked fuel pump canister and its Differences Between Proposed AD and products, special flight permits, and corresponding fuel pump with new AOT/French Airworthiness Directive alternative methods of compliance parts. • The DGAC issued French (AMOCs). This proposed AD does not Repetitive detailed inspections to include this material; however, the detect damage of the fuel pumps, and airworthiness directive 2003–085 (B) as ‘‘telegraphic.’’ The FAA agrees that the office authorized to approve AMOCs is replacement of any damaged pump with identified in paragraph (d). a new part. unsafe condition could warrant • Repetitive nondestructive test immediate attention but finds it Change to Labor Rate Estimate (NDT) inspections to detect damage of unnecessary to immediately adopt this We have reviewed the figures we have the fuel pump canisters, and rule. At the time of issuance, this used over the past several years to replacement of any damaged canister proposed AD would affect only two calculate AD costs to operators. To with a new part. Replacement of a airplanes. The FAA has been advised account for various inflationary costs in canister would reset the inspection that the one-time detailed inspections the airline industry, we find it necessary schedule for the next inspection to specified in paragraph (a) of this to increase the labor rate used in these 7,000 flight cycles, to be repeated within proposed AD (with a proposed calculations from $60 per work hour to 1,500-flight-cycle intervals. compliance time of 15 days) have been $65 per work hour. The cost impact Replacement of a canister eliminates the accomplished for both affected information, below, reflects this need to reinspect the fuel pumps. airplanes. Furthermore, the proposed • A report of the findings for each compliance time for the repetitive increase in the specified hourly labor inspection. inspections is long enough to provide rate. The DGAC classified this AOT as notice and the opportunity for public Cost Impact mandatory and issued French comment on the proposed rule. telegraphic airworthiness directive The applicability/effectivity for the The FAA estimates that 2 airplanes of 2003–085 (B), dated February 21, 2003, French airworthiness directive/AOT U.S. registry would be affected by this to ensure the continued airworthiness of includes A300 B4–600 and A300 C4– proposed AD. The detailed inspections these airplanes in France. 600 series airplanes, which are would take about 2 work hours per Airbus AOT A300–600–28A6075 identified as ‘‘A300–600 aircraft without airplane, and the NDT inspection would refers to Airbus Alert Service Bulletin a fuel trim tank system (pre-production take about 5 work hours per airplane, A300–28A6061, Revision 04, dated Mod 4801).’’ The only Model A300 C4– per inspection cycle. The average labor August 1, 2002, as an additional source 600 airplane listed on the type rate is $65 per work hour. Based on of service information for certificate data sheet is the A300 C4–605 these figures, the cost per airplane is accomplishment of the NDT Variant F. Therefore, the applicability of estimated to be $130 for the detailed inspections. this proposed AD is Model A300 B4– inspections and $325 per NDT 601, A300 B4–603, A300 B4–620, and inspection. FAA’s Conclusions A300 C4–605 Variant F series airplanes; The FAA has been advised that the These airplane models are except those equipped with a fuel trim proposed one-time detailed inspections manufactured in France and are type tank system. have already been accomplished for certificated for operation in the United The French airworthiness directive both of the U.S.-registered airplanes. States under the provisions of section excludes certain airplanes (serial Therefore, the future economic cost 21.29 of the Federal Aviation numbers 546, 553, 618, and 623) that impact of this proposed AD on U.S. Regulations (14 CFR 21.29) and the ‘‘have already been inspected per operators would be only $325 per applicable bilateral airworthiness Airbus Alert Service Bulletin A300– airplane, per each of the repetitive NDT agreement. Pursuant to this bilateral 28A6061.’’ However, that inspection inspections.

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The cost impact figures discussed in Compliance: Required as indicated, unless Reporting Requirement AD rulemaking actions represent only accomplished previously. (d) At the applicable time specified in the time necessary to perform the To detect and correct damage of the center paragraph (d)(1) or (d)(2) of this AD: Submit specific actions actually required by the tank fuel pumps and fuel pump canisters, a report of findings (both positive and AD. These figures typically do not which could result in separation of a pump negative) of each inspection required by this include incidental costs, such as the from its electrical motor housing, loss of AD, in accordance with Airbus AOT A300– flame trap capability, and a possible fuel time required to gain access and close 600–28A6075, dated February 20, 2003. ignition source in the center fuel tank, Information collection requirements up, plan, or perform other accomplish the following: contained in this AD have been approved by administrative actions. the Office of Management and Budget (OMB) Detailed Inspections Regulatory Impact under the provisions of the Paperwork (a) Within 15 days after the effective date Reduction Act of 1980 (44 U.S.C. 3501 et The regulations proposed herein of this AD (unless accomplished previously), seq.) and have been assigned OMB Control would not have a substantial direct perform detailed inspections as specified in Number 2120–0056. effect on the States, on the relationship paragraphs (a)(1) and (a)(2) of this AD, in (1) For any inspection accomplished after between the national Government and accordance with paragraph 4.2 of Airbus All the effective date of this AD: Submit the the States, or on the distribution of Operators Telex (AOT) A300–600–28A6075, report within 10 days after performing that power and responsibilities among the dated February 20, 2003. inspection. various levels of government. Therefore, Note 1: For the purposes of this AD, a (2) For any inspection accomplished before the effective date of this AD: Submit the it is determined that this proposal detailed inspection is defined as: ‘‘An intensive visual examination of a specific report within 10 days after the effective date would not have federalism implications of this AD. under Executive Order 13132. structural area, system, installation, or For the reasons discussed above, I assembly to detect damage, failure, or Alternative Methods of Compliance certify that this proposed regulation (1) irregularity. Available lighting is normally (e) In accordance with 14 CFR 39.19, the supplemented with a direct source of good Manager, International Branch, ANM–116, is not a ‘‘significant regulatory action’’ lighting at intensity deemed appropriate by under Executive Order 12866; (2) is not FAA, is authorized to approve alternative the inspector. Inspection aids such as mirror, methods of compliance for this AD. a ‘‘significant rule’’ under the DOT magnifying lenses, etc., may be used. Surface Note 3: The subject of this AD is addressed Regulatory Policies and Procedures (44 cleaning and elaborate access procedures FR 11034, February 26, 1979); and (3) if in French telegraphic airworthiness directive may be required.’’ 2003–085 (B), dated February 21, 2003. promulgated, will not have a significant (1) Inspect the lower part of the pump economic impact, positive or negative, diffuser guide slots (bayonet) of the center Issued in Renton, Washington, on on a substantial number of small entities tank fuel pumps and the bottom of the pump December 10, 2003. under the criteria of the Regulatory diffuser housings to detect cracks, fretting, Kevin Mullin, Flexibility Act. A copy of the draft and other damage. Replace any damaged Acting Manager, Transport Airplane regulatory evaluation prepared for this pump and the corresponding fuel pump Directorate, Aircraft Certification Service. action is contained in the Rules Docket. canister with new parts before further flight [FR Doc. 03–31182 Filed 12–17–03; 8:45 am] in accordance with the AOT. A copy of it may be obtained by BILLING CODE 4910–13–P contacting the Rules Docket at the (2) Inspect the center tank fuel pump canisters to detect cracks. Replace any location provided under the caption cracked fuel pump canister and the DEPARTMENT OF TRANSPORTATION ADDRESSES. corresponding fuel pump with new parts List of Subjects in 14 CFR Part 39 before further flight in accordance with the Federal Aviation Administration AOT. Air transportation, Aircraft, Aviation safety, Safety. Repetitive Inspections 14 CFR Part 39 The Proposed Amendment (b) Within 600 flight hours after the [Docket No. 2002–NM–352–AD] effective date of this AD: Perform a detailed Accordingly, pursuant to the inspection of the fuel pumps, and an eddy RIN 2120–AA64 authority delegated to me by the current inspection of the fuel pump canisters, Administrator, the Federal Aviation to detect damage. Do the inspections in Airworthiness Directives; Empresa Administration proposes to amend part accordance with paragraph 4.3 of Airbus Brasileira de Aeronautica S.A. 39 of the Federal Aviation Regulations AOT A300–600–28A6075, dated February 20, (EMBRAER) Model EMB–135 and –145 (14 CFR part 39) as follows: 2003. Replace any damaged part with a new Series Airplanes part before further flight in accordance with AGENCY: Federal Aviation PART 39—AIRWORTHINESS the AOT. Repeat the inspections at intervals Administration, DOT. DIRECTIVES not to exceed 1,500 flight cycles. (c) Within 7,000 flight cycles after canister ACTION: Notice of proposed rulemaking 1. The authority citation for part 39 replacement as specified in paragraph (b) of (NPRM). continues to read as follows: this AD: Perform an eddy current inspection of the fuel pump canisters to detect damage SUMMARY: This document proposes the Authority: 49 U.S.C. 106(g), 40113, 44701. in accordance with Airbus AOT A300–600– adoption of a new airworthiness § 39.13 [Amended] 28A6075, dated February 20, 2003. Replace directive (AD) that is applicable to any damaged part with a new part before 2. Section 39.13 is amended by certain Empresa Brasileira de further flight in accordance with the AOT. Aeronautica S.A. (EMBRAER) Model adding the following new airworthiness Thereafter repeat the inspection at intervals EMB–135 and –145 series airplanes. directive: not to exceed 1,500 flight cycles. This proposal would require Airbus: Docket 2003–NM–80–AD. Note 2: Airbus AOT A300–600–28A6075 replacement of the air turbine starters refers to Airbus Alert Service Bulletin A300– Applicability: Model A300 B4–601, A300 (ATS) with modified ATSs. This action B4–603, A300 B4–620, and A300 C4–605 28A6061, Revision 04, dated August 1, 2002, Variant F series airplanes; certificated in any as an additional source of service information is necessary to prevent sheared ATS category; except those airplanes equipped for accomplishment of the eddy current output shafts, which could result in oil with a fuel trim tank system (Airbus inspection required by paragraph (b)(2) of flowing down the engine accessory gear Modification 4801). this AD. box shafts and dripping into the engine

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compartments, and consequent oil fire, • For each issue, state what specific Honeywell service bulletin include in-flight shutdown, and/or rejected take- change to the proposed AD is being inspecting the magnetic drain plug for off. This action is intended to address requested. metal contamination, inspecting the the identified unsafe condition. • Include justification (e.g., reasons or ATS output shafts for interference DATES: Comments must be received by data) for each request. marks, modifying the ATS output shafts January 20, 2004. Comments are specifically invited on by machining/drilling holes and ADDRESSES: Submit comments in the overall regulatory, economic, installing a restrictor, and installing triplicate to the Federal Aviation environmental, and energy aspects of modified ATSs on the airplane. Administration (FAA), Transport the proposed rule. All comments Accomplishment of the actions Airplane Directorate, ANM–114, submitted will be available, both before specified in the service bulletin is Attention: Rules Docket No. 2002–NM– and after the closing date for comments, intended to adequately address the 352–AD, 1601 Lind Avenue, SW., in the Rules Docket for examination by identified unsafe condition. The DAC Renton, Washington 98055–4056. interested persons. A report classified this service bulletin as Comments may be inspected at this summarizing each FAA-public contact mandatory and issued Brazilian location between 9 a.m. and 3 p.m., concerned with the substance of this airworthiness directive 2001–09–04, Monday through Friday, except Federal proposal will be filed in the Rules dated October 10, 2001, to ensure the holidays. Comments may be submitted Docket. continued airworthiness of these via fax to (425) 227–1232. Comments Commenters wishing the FAA to airplanes in Brazil. acknowledge receipt of their comments may also be sent via the Internet using FAA’s Conclusions submitted in response to this action the following address: 9-anm- These airplane models are [email protected]. Comments sent must submit a self-addressed, stamped postcard on which the following manufactured in Brazil and are type via fax or the Internet must contain certificated for operation in the United ‘‘Docket No. 2002–NM–352–AD’’ in the statement is made: ‘‘Comments to Docket Number 2002–NM–352–AD.’’ States under the provisions of § 21.29 of subject line and need not be submitted the Federal Aviation Regulations (14 in triplicate. Comments sent via the The postcard will be date stamped and returned to the commenter. CFR 21.29) and the applicable bilateral Internet as attached electronic files must airworthiness agreement. Pursuant to be formatted in Microsoft Word 97 or Availability of NPRMs this bilateral airworthiness agreement, 2000 or ASCII text. Any person may obtain a copy of this the DAC has kept the FAA informed of The service information referenced in NPRM by submitting a request to the the situation described above. The FAA the proposed rule may be obtained from FAA, Transport Airplane Directorate, has examined the findings of the DAC, Empresa Brasileira de Aeronautica S.A. ANM–114, Attention: Rules Docket No. reviewed all available information, and (EMBRAER), P.O. Box 343–CEP 12.225, 2002–NM–352–AD, 1601 Lind Avenue, determined that AD action is necessary Sao Jose dos Campos–SP, Brazil. This SW., Renton, Washington 98055–4056. for products of this type design that are information may be examined at the certificated for operation in the United FAA, Transport Airplane Directorate, Discussion States. 1601 Lind Avenue, SW., Renton, The Departmento de Aviacao Civil Washington. (DAC), which is the airworthiness Explanation of Requirements of FOR FURTHER INFORMATION CONTACT: authority for Brazil, notified the FAA Proposed AD Todd Thompson, Aerospace Engineer, that an unsafe condition may exist on Since an unsafe condition has been International Branch, ANM–116, FAA, certain EMBRAER Model EMB–135 and identified that is likely to exist or Transport Airplane Directorate, 1601 –145 series airplanes. The DAC advises develop on other airplanes of the same Lind Avenue, SW., Renton, Washington that it has received reports of type design registered in the United 98055–4056; telephone (425) 227–1175; interference problems between the States, the proposed AD would require fax (425) 227–1149. engine air turbine starter (ATS) output accomplishment of the actions specified SUPPLEMENTARY INFORMATION: shafts and the engine accessory gear box in the service bulletin described (AGB) shafts, which resulted in sheared previously, except as described below. Comments Invited ATS output shafts. Sheared ATS output Difference Between the Brazilian AD Interested persons are invited to shafts could result in oil flowing down and the Proposed AD participate in the making of the the engine AGB shafts and dripping into proposed rule by submitting such the engine compartments, and The effectivity listed in the original written data, views, or arguments as consequent oil fire, in-flight shutdown, issue of EMBRAER Service Bulletin they may desire. Communications shall and/or rejected take-off. 145–80–0004, dated May 23, 2001, was identify the Rules Docket number and the same as the applicability listed in Explanation of Relevant Service be submitted in triplicate to the address Brazilian airworthiness directive 2001– Information specified above. All communications 09–04, dated October 10, 2001. When received on or before the closing date EMBRAER has issued Service Bulletin EMBRAER Service Bulletin 145–80– for comments, specified above, will be 145–80–0004, Change 01, dated October 0004, Change 01, dated October 22, considered before taking action on the 22, 2001, which describes procedures 2001, was issued, the effectivity was proposed rule. The proposals contained for replacing the existing ATS with a revised and additional airplanes were in this action may be changed in light modified ATS. That service bulletin added to the effectivity of the service of the comments received. references Honeywell Service Bulletin bulletin. The Brazilian airworthiness Submit comments using the following 3505910–80–1710, Revision 1, dated directive has not been revised; therefore, format: August 7, 2001, as an additional source the applicability does not match the • Organize comments issue-by-issue. of service information for current effectivity listed in Change 01 of For example, discuss a request to accomplishment of the modification. the service bulletin. The applicability of change the compliance time and a The Honeywell service bulletin is this proposed AD references the request to change the service bulletin included within the EMBRAER service effectivity as listed in Change 01 of the reference as two separate issues. bulletin. The procedures in the service bulletin so all affected airplanes

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are addressed. This difference has been Administrator, the Federal Aviation DEPARTMENT OF TRANSPORTATION coordinated with the DAC. Administration proposes to amend part 39 of the Federal Aviation Regulations Federal Aviation Administration Cost Impact (14 CFR part 39) as follows: The FAA estimates that 290 airplanes 14 CFR Part 39 of U.S. registry would be affected by this PART 39—AIRWORTHINESS proposed AD, that it would take DIRECTIVES [Docket No. 2002–NM–335–AD] approximately 1 work hour per airplane to accomplish the proposed actions, and 1. The authority citation for part 39 RIN 2120–AA64 that the average labor rate is $65 per continues to read as follows: Airworthiness Directives; Boeing work hour. There would be no charge Authority: 49 U.S.C. 106(g), 40113, 44701. Model 707 and 720 Series Airplanes for required parts. Based on these figures, the cost impact of the proposed § 39.13 [Amended] AGENCY: Federal Aviation AD on U.S. operators is estimated to be Administration, DOT. 2. Section 39.13 is amended by $18,850, or $65 per airplane. adding the following new airworthiness ACTION: Notice of proposed rulemaking The cost impact figure discussed (NPRM). above is based on assumptions that no directive: operator has yet accomplished any of Empresa Brasileira de Aeronautica S.A. SUMMARY: This document proposes the the proposed requirements of this AD (EMBRAER): Docket 2002–NM–352–AD. adoption of a new airworthiness action, and that no operator would Applicability: Model EMB–135 and –145 directive (AD) that is applicable to accomplish those actions in the future if series airplanes, as listed in EMBRAER certain Boeing Model 707 and 720 series this AD were not adopted. The cost Service Bulletin 145–80–0004, Change 01, airplanes. This proposal would require impact figures discussed in AD dated October 22, 2001; certificated in any repetitive inspections of the upper and rulemaking actions represent only the category. lower barrel nuts and bolts that retain time necessary to perform the specific Compliance: Required as indicated, unless the aft trunnion support fitting of each actions actually required by the AD. accomplished previously. main landing gear for corrosion, cracks, These figures typically do not include To prevent sheared air turbine starters and loose or missing nuts and bolts; incidental costs, such as the time (ATS) output shafts, which could result in oil torque checks of the upper and lower required to gain access and close up, flowing down the engine accessory gear box bolts to verify the torque is within a planning time, or time necessitated by shafts and dripping into the engine specified range; and corrective actions, other administrative actions. compartments, and consequent oil fire, in- if necessary. This action is necessary to flight shutdown, and/or rejected take-off, detect and correct cracking and/or loss Regulatory Impact accomplish the following: of the barrel nuts and bolts that retain The regulations proposed herein Replacement of ATSs With Modified ATSs the aft trunnion support fitting, which would not have a substantial direct (a) Within 800 flight hours after the could result in the collapse of the main effect on the States, on the relationship effective date of this AD, replace the ATSs landing gear upon landing. This action between the national Government and with modified ATSs in accordance with the is intended to address the identified the States, or on the distribution of Accomplishment Instructions of EMBRAER unsafe condition. power and responsibilities among the Service Bulletin 145–80–0004, Change 01, DATES: Comments must be received by various levels of government. Therefore, dated October 22, 2001. February 2, 2004. it is determined that this proposal Note 1: Honeywell Service Bulletin would not have federalism implications ADDRESSES: Submit comments in 3505910–80–1710, Revision 1, dated August triplicate to the Federal Aviation under Executive Order 13132. 7, 2001, is incorporated within the pages of For the reasons discussed above, I Administration (FAA), Transport EMBRAER Service Bulletin 145–80–0004, Airplane Directorate, ANM–114, certify that this proposed regulation (1) Change 01, dated October 22, 2001. is not a ‘‘significant regulatory action’’ Attention: Rules Docket No. 2002–NM– (b) Accomplishment of the specified 335–AD, 1601 Lind Avenue, SW., under Executive Order 12866; (2) is not actions before the effective date of this AD in a ‘‘significant rule’’ under the DOT Renton, Washington 98055–4056. accordance with EMBRAER Service Bulletin Comments may be inspected at this Regulatory Policies and Procedures (44 145–80–0004, dated May 23, 2001, is FR 11034, February 26, 1979); and (3) if location between 9 a.m. and 3 p.m., considered acceptable for compliance with Monday through Friday, except Federal promulgated, will not have a significant paragraph (a) of this AD. economic impact, positive or negative, holidays. Comments may be submitted on a substantial number of small entities Alternative Methods of Compliance via fax to (425) 227–1232. Comments under the criteria of the Regulatory (c) In accordance with 14 CFR 39.19, the may also be sent via the Internet using Flexibility Act. A copy of the draft Manager, International Branch, ANM–116, the following address: 9-anm- regulatory evaluation prepared for this FAA, Transport Airplane Directorate, is [email protected]. Comments sent action is contained in the Rules Docket. authorized to approve alternative methods of via fax or the Internet must contain A copy of it may be obtained by compliance for this AD. ‘‘Docket No. 2002–NM–335–AD’’ in the contacting the Rules Docket at the Note 2: The subject of this AD is addressed subject line and need not be submitted location provided under the caption in Brazilian airworthiness directive 2001–09– in triplicate. Comments sent via the ADDRESSES. 04, dated October 10, 2001. Internet as attached electronic files must be formatted in Microsoft Word 97 or List of Subjects in 14 CFR Part 39 Issued in Renton, Washington, on 2000 or ASCII text. December 10, 2003. Air transportation, Aircraft, Aviation The service information referenced in safety, Safety. Kevin Mullin, the proposed rule may be obtained from Acting Manager, Transport Airplane Boeing Commercial Airplane Group, The Proposed Amendment Directorate, Aircraft Certification Service. P.O. Box 3707, Seattle, Washington Accordingly, pursuant to the [FR Doc. 03–31181 Filed 12–17–03; 8:45 am] 98124–2207. This information may be authority delegated to me by the BILLING CODE 4910–13–U examined at the FAA, Transport

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Airplane Directorate, 1601 Lind Discussion and the torque check. The average labor Avenue, SW., Renton, Washington. The FAA has received reports rate is $65 per work hour. Based on FOR FURTHER INFORMATION CONTACT: indicating that one operator found these figures, the cost impact on U.S. Candice Gerretsen, Aerospace Engineer, cracks in the barrel nut that attaches the operators is estimated to be $2,730, or Airframe Branch, ANM–120S, FAA, aft trunnion bearing cap of the main $65 per airplane, per inspection and Seattle Aircraft Certification Office, landing gear to the trunnion support torque check. 1601 Lind Avenue, SW., Renton, fitting and that another operator It would take approximately 3 work Washington 98055–4056; telephone discovered that the barrel nut and bolt hours per airplane to accomplish the proposed detailed inspection of the aft (425) 917–6428; fax (425) 917–6590. were missing, on Boeing Model 707 trunnion bearing cap. The average labor SUPPLEMENTARY INFORMATION: series airplanes. The cause of the cracking is stress corrosion. This rate is $65 per work hour. Based on Comments Invited condition, if not detected and corrected, these figures, the cost impact on U.S. operators is estimated to be $8,190, or Interested persons are invited to could result in cracking and/or loss of the barrel nuts and bolts that retain the $195 per airplane. participate in the making of the It would take approximately 4 work aft trunnion support fitting, which proposed rule by submitting such hours per airplane to accomplish the could result in the collapse of the main written data, views, or arguments as proposed installation of the new Inconel landing gear upon landing. they may desire. Communications shall barrel nut and bolt and the main landing identify the Rules Docket number and Explanation of Relevant Service gear trunnion. The average labor rate is be submitted in triplicate to the address Information $65 per work hour. Based on these specified above. All communications The FAA has reviewed and approved figures, the cost impact on U.S. received on or before the closing date Boeing 707/720 Alert Service Bulletin operators is estimated to be $10,920, or for comments, specified above, will be A3509, dated June 13, 2002, which $260 per airplane. considered before taking action on the describes procedures for performing Required parts would cost proposed rule. The proposals contained repetitive detailed inspections of the approximately $3,380 per airplane. in this action may be changed in light upper and lower barrel nuts and bolts The cost impact figures discussed of the comments received. that retain the aft trunnion support above are based on assumptions that no Submit comments using the following fitting of each main landing gear for operator has yet accomplished any of format: corrosion, cracks, and loose or missing the proposed requirements of this AD • Organize comments issue-by-issue. nuts and bolts; torque checks of the action, and that no operator would For example, discuss a request to upper and lower bolts to verify the accomplish those actions in the future if change the compliance time and a torque is within the specified range; and this proposed AD were not adopted. The request to change the service bulletin corrective actions, if necessary. The cost impact figures discussed in AD reference as two separate issues. corrective actions consist of performing rulemaking actions represent only the • For each issue, state what specific a detailed inspection of the aft trunnion time necessary to perform the specific change to the proposed AD is being bearing cap and aft trunnion support actions actually required by the AD. requested. fitting for corrosion, and repair if These figures typically do not include incidental costs, such as the time • Include justification (e.g., reasons or necessary; performing a magnetic required to gain access and close up, data) for each request. particle inspection of the aft trunnion bearing cap for cracks, and replacement planning time, or time necessitated by Comments are specifically invited on other administrative actions. the overall regulatory, economic, if necessary; and reinstalling the main environmental, and energy aspects of landing gear trunnion with new Inconel Regulatory Impact barrel nuts and bolts to retain the aft the proposed rule. All comments The regulations proposed herein trunnion support fitting. submitted will be available, both before would not have a substantial direct and after the closing date for comments, Accomplishment of the actions specified in the service bulletin is effect on the States, on the relationship in the Rules Docket for examination by between the national Government and interested persons. A report intended to adequately address the identified unsafe condition. the States, or on the distribution of summarizing each FAA-public contact power and responsibilities among the concerned with the substance of this Explanation of Requirements of various levels of government. Therefore, proposal will be filed in the Rules Proposed Rule it is determined that this proposal Docket. Since an unsafe condition has been would not have federalism implications Commenters wishing the FAA to identified that is likely to exist or under Executive Order 13132. acknowledge receipt of their comments develop on other products of this same For the reasons discussed above, I submitted in response to this action type design, the proposed AD would certify that this proposed regulation (1) must submit a self-addressed, stamped require accomplishment of the actions is not a ‘‘significant regulatory action’’ postcard on which the following specified in the service bulletin under Executive Order 12866; (2) is not statement is made: ‘‘Comments to described previously. a ‘‘significant rule’’ under the DOT Docket Number 2002–NM–335–AD.’’ Regulatory Policies and Procedures (44 The postcard will be date stamped and Cost Impact FR 11034, February 26, 1979); and (3) if returned to the commenter. There are approximately 230 promulgated, will not have a significant economic impact, positive or negative, Availability of NPRMs airplanes of the affected design in the worldwide fleet. The FAA estimates that on a substantial number of small entities Any person may obtain a copy of this 42 airplanes of U.S. registry would be under the criteria of the Regulatory NPRM by submitting a request to the affected by this proposed AD. Flexibility Act. A copy of the draft FAA, Transport Airplane Directorate, It would take approximately 1 work regulatory evaluation prepared for this ANM–114, Attention: Rules Docket No. hour per airplane to accomplish the action is contained in the Rules Docket. 2002–NM–335–AD, 1601 Lind Avenue, proposed detailed inspection of the A copy of it may be obtained by SW., Renton, Washington 98055–4056. upper and lower barrel nuts and bolts contacting the Rules Docket at the

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location provided under the caption is found not to be within the specified range, DEPARTMENT OF TRANSPORTATION ADDRESSES. during the inspection and torque check specified in paragraph (b) of this AD: Before Federal Aviation Administration List of Subjects in 14 CFR Part 39 further flight, do the corrective actions Air transportation, Aircraft, Aviation specified in paragraphs (d)(1) through (d)(3) 14 CFR Part 39 safety, Safety. of this AD. Accomplishment of these actions [Docket No. 2002–NM–175–AD] constitutes terminating action for the The Proposed Amendment repetitive inspections specified in paragraph RIN 2120–AA64 Accordingly, pursuant to the (c) of this AD. authority delegated to me by the (1) Perform a detailed inspection of the aft Airworthiness Directives; Airbus Model Administrator, the Federal Aviation trunnion bearing cap and aft trunnion A310 Series Airplanes Administration proposes to amend part support fitting for corrosion, in accordance AGENCY: 39 of the Federal Aviation Regulations Federal Aviation with the service bulletin. If any corrosion is Administration, DOT. (14 CFR part 39) as follows: detected, before further flight, repair in accordance with the service bulletin. ACTION: Notice of proposed rulemaking PART 39—AIRWORTHINESS (2) Perform a magnetic particle inspection (NPRM). DIRECTIVES of the aft trunnion bearing cap for cracks in SUMMARY: This document proposes the 1. The authority citation for part 39 accordance with Figure 3 of the service supersedure of an existing airworthiness continues to read as follows: bulletin. directive (AD), applicable to certain (i) If no crack is found, before further flight, Authority: 49 U.S.C. 106(g), 40113, 44701. Airbus Model A310 series airplanes, reinstall the inspected aft trunnion bearing that requires repetitive inspections of § 39.13 [Amended] cap in accordance with the service bulletin. the fuselage skin to detect corrosion or (ii) If any crack is found, before further 2. Section 39.13 is amended by fatigue cracking around and under the flight, replace the aft trunnion bearing cap adding the following new airworthiness chafing plates of the wing root; and with a new aft trunnion bearing cap in directive: corrective actions, if necessary. That AD accordance with the service bulletin. also provides an optional terminating Boeing: Docket 2002–NM–335–AD. (3) Reinstall the main landing gear Applicability: Model 707 and 720 series trunnion with new Inconel barrel nuts and action for the repetitive inspections. airplanes, as listed in Boeing 707/720 Alert bolts to retain the aft trunnion support fitting, This action would reinstate repetitive Service Bulletin A3509, dated June 13, 2002; in accordance with Figure 4 of the service inspections in certain areas where certificated in any category. bulletin. corrosion was detected and reworked as Compliance: Required as indicated, unless required by the existing AD. The actions accomplished previously. Terminating Action specified by the proposed AD are To detect and correct cracking and/or loss of the upper and lower barrel nuts and bolts (e) Within one year after the effective date intended to detect and correct fatigue that retain the aft trunnion support fitting, of this AD, for each main landing gear, cracks and corrosion around and under which could result in the collapse of the replace the upper and lower steel barrel nuts the chafing plates of the wing root, main landing gear upon landing, accomplish and H–11 bolts that retain the aft trunnion which could result in reduced structural the following: support fitting with new Inconel barrel nuts integrity of the airplane. This action is Service Bulletin References and bolts as specified in paragraphs (d)(1) intended to address the identified through (d)(3) of this AD. Accomplishment of unsafe condition. (a) The term ‘‘service bulletin,’’ as used in this AD, means the Accomplishment these actions constitutes terminating action DATES: Comments must be received by Instructions of Boeing 707/720 Alert Service for the requirements of this AD. January 20, 2004. Bulletin A3509, dated June 13, 2002. Parts Installation ADDRESSES: Submit comments in Initial Inspection (f) As of the effective date of this AD, no triplicate to the Federal Aviation (b) Within 60 days after the effective date person shall install a steel barrel nut with H– Administration (FAA), Transport of this AD, for each main landing gear, 11 bolt to retain the aft trunnion support Airplane Directorate, ANM–114, perform the inspection specified in fitting, on any airplane. Attention: Rules Docket No. 2002–NM– paragraph (b)(1) of this AD and the torque 175–AD, 1601 Lind Avenue, SW., check specified in paragraph (b)(2) of this Alternative Methods of Compliance Renton, Washington 98055–4056. AD, in accordance with the service bulletin. (g) In accordance with 14 CFR 39.19, the Comments may be inspected at this (1) Perform a detailed inspection of the Manager, Seattle Aircraft Certification Office, location between 9 a.m. and 3 p.m., upper and lower barrel nuts and bolts that retain the aft trunnion support fitting for FAA, is authorized to approve alternative Monday through Friday, except Federal corrosion, cracks, and loose or missing nuts methods of compliance for this AD. holidays. Comments may be submitted via fax to (425) 227–1232. Comments and bolts. Issued in Renton, Washington, on (2) Torque check the upper and lower bolts December 10, 2003. may also be sent via the Internet using to verify the torque is within the range the following address: 9-anm- specified in Figure 2 of the service bulletin. Kevin Mullin, [email protected]. Comments sent Repetitive Inspections Acting Manager, Transport Airplane via fax or the Internet must contain Directorate, Aircraft Certification Service. (c) If no corrosion, crack, or loose or ‘‘Docket No. 2002–NM–175–AD’’ in the [FR Doc. 03–31180 Filed 12–17–03; 8:45 am] missing nut or bolt is found, and the torque subject line and need not be submitted is found to be within the specified range, BILLING CODE 4910–13–U in triplicate. Comments sent via the during the inspection and torque check Internet as attached electronic files must specified in paragraph (b) of this AD, then be formatted in Microsoft Word 97 or repeat the actions specified in paragraph (b) 2000 or ASCII text. of this AD thereafter at intervals not to The service information referenced in exceed 60 days. the proposed rule may be obtained from Corrective Actions Airbus Industrie, 1 Rond Point Maurice (d) If any corrosion, crack, or loose or Bellonte, 31707 Blagnac Cedex, France. missing nut or bolt is found, or if the torque This information may be examined at

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the FAA, Transport Airplane Discussion Airbus has also issued Service Directorate, 1601 Lind Avenue, SW., On April 21, 1998, the FAA issued Bulletin A310–53–2070, Revision 02, Renton, Washington. AD 98–09–20, amendment 39–10501 (63 dated November 8, 2000, which FOR FURTHER INFORMATION CONTACT: FR 23377, April 29, 1998), applicable to describes procedures for replacement of Anthony Jopling, Program Manager, certain Airbus Model A310 series the stainless steel chafing plates with new chafing plates made of aluminum International Branch, ANM–116, FAA, airplanes, to require repetitive alloy. Accomplishment of this service Transport Airplane Directorate, 1601 inspections of the fuselage skin to detect bulletin eliminates the need for the Lind Avenue, SW., Renton, Washington corrosion or fatigue cracks around and repetitive inspections for fatigue 98055–4056; telephone (425) 227–2190; under the chafing plates of the wing cracking, unless corrosion was detected fax (425) 227–1149. root; and corrective actions, if and reworked on the left and/or right SUPPLEMENTARY INFORMATION: necessary. That AD also provides an side of frame 39, stringer 35. If corrosion optional terminating action for the Comments Invited was detected and reworked in this area, repetitive inspections. That action was repetitive inspections for fatigue Interested persons are invited to prompted by notification from the cracking are still necessary. The original participate in the making of the ´ ´ Direction Generale de l’Aviation Civile issue of this service bulletin, dated proposed rule by submitting such (DGAC), which is the airworthiness October 3, 1994, is cited in AD 98–09– written data, views, or arguments as authority for France, that it received 20 as an acceptable source of service they may desire. Communications shall reports of the presence of corrosion information for the optional terminating identify the Rules Docket number and under the chafing plates and around the action. be submitted in triplicate to the address fasteners of the wing root between The DGAC classified Airbus Service specified above. All communications fuselage frames 36 and 39. The Bulletin A310–53–2069, Revision 04, received on or before the closing date requirements of that AD are intended to dated November 8, 2000, as mandatory for comments, specified above, will be detect and correct fatigue cracks and and issued French airworthiness considered before taking action on the corrosion around and under the chafing directive 2000–514–326(B) R1, dated proposed rule. The proposals contained plates of the wing root, which could May 15, 2002, to ensure the continued in this action may be changed in light result in reduced structural integrity of airworthiness of these airplanes in of the comments received. the airplane. France. Submit comments using the following format: Actions Since Issuance of Previous Rule FAA’s Conclusions • Organize comments issue-by-issue. Although AD 98–09–20 provides an This airplane model is manufactured For example, discuss a request to optional terminating action for in France and is type certificated for change the compliance time and a repetitive inspections for fatigue operation in the United States under the request to change the service bulletin cracking around and under the chafing provisions of § 21.29 of the Federal reference as two separate issues. plates of the wing root, it has been Aviation Regulations (14 CFR 21.29) • For each issue, state what specific determined that repetitive inspections and the applicable bilateral change to the proposed AD is being for fatigue cracking are still necessary airworthiness agreement. Pursuant to requested. on the left and right sides of frame 39, this bilateral airworthiness agreement, • Include justification (e.g., reasons or stringer 35, if any corrosion was the DGAC has kept the FAA informed data) for each request. reworked in this area. of the situation described above. We Comments are specifically invited on Explanation of Relevant Service have examined the findings of the the overall regulatory, economic, Information DGAC, reviewed all available environmental, and energy aspects of information, and determined that AD the proposed rule. All comments Since the issuance of AD 98–09–20, action is necessary for products of this submitted will be available, both before Airbus has issued Service Bulletin type design that are certificated for and after the closing date for comments, A310–53–2069, Revision 02, dated operation in the United States. in the Rules Docket for examination by September 23, 1996; Revision 03, dated interested persons. A report October 28, 1997; and Revision 04, Explanation of Requirements of summarizing each FAA-public contact dated November 8, 2000. These service Proposed Rule concerned with the substance of this bulletins describe the same procedures Since an unsafe condition has been proposal will be filed in the Rules as specified in Airbus Service Bulletin identified that is likely to exist or Docket. A310–53–2069, Revision 01, dated develop on other airplanes of the same Commenters wishing the FAA to September 19, 1995, for repetitive type design registered in the United acknowledge receipt of their comments inspections to detect corrosion and States, the proposed AD would submitted in response to this action fatigue cracks around and under the supersede AD 98–09–20 to continue to must submit a self-addressed, stamped chafing plates of the wing root between require repetitive inspections of the postcard on which the following fuselage frame 36 and frame 39. These fuselage skin to detect corrosion or statement is made: ‘‘Comments to service bulletins also include the same fatigue cracking around and under the Docket Number 2002–NM–175–AD.’’ procedures for follow-on and corrective chafing plates of the wing root; and The postcard will be date stamped and actions as Service Bulletin A310–53– corrective actions, if necessary. The returned to the commenter. 2069, Revision 01. The corrective inspections would be required to be actions include reworking corroded accomplished in accordance with Availability of NPRMs areas, oversizing and reaming holes, Airbus Service Bulletin A310–53–2069, Any person may obtain a copy of this installing doublers, and performing a Revision 04; Revision 03; Revision 02; NPRM by submitting a request to the high frequency eddy current inspection or Revision 01; described previously; FAA, Transport Airplane Directorate, and an x-ray inspection. Revision 01 of except as discussed below. The ANM–114, Attention: Rules Docket No. the service bulletin is cited in AD 98– replacement of the chafing plates would 2002–NM–175–AD, 1601 Lind Avenue, 09–20 as the appropriate source of be required to be accomplished in SW., Renton, Washington 98055–4056. service information. accordance with Airbus Service Bulletin

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A310–53–2070, Revision 02; Revision actions actually required by the AD. Compliance: Required as indicated, unless 01, dated September 23, 1996; or These figures typically do not include accomplished previously. Original Issue; described previously; incidental costs, such as the time To detect and correct fatigue cracking and except as discussed below. This action required to gain access and close up, corrosion around and under chafing plates of would reinstate repetitive inspections the wing root between fuselage frame 36 and planning time, or time necessitated by frame 39, which could result in reduced for fatigue cracking at frame 39, stringer other administrative actions. structural integrity of the airplane, 35, if corrosion was detected and accomplish the following: reworked in this area. Regulatory Impact The regulations proposed herein Restatement of Requirements of AD 98–09– Differences Among Proposed Rule, would not have a substantial direct 20 Service Information, and French effect on the States, on the relationship Repetitive Inspections and Corrective Actions Airworthiness Directive between the national Government and (a) Except as provided by paragraph (b) of Although the service bulletins specify the States, or on the distribution of this AD: Within 4 years since date of that operators may contact the power and responsibilities among the manufacture, or within 12 months after June manufacturer for disposition of certain various levels of government. Therefore, 3, 1998 (the effective date of AD 98–09–20, repair conditions, this proposal would it is determined that this proposal amendment 39–10501), whichever occurs require operators to repair those would not have federalism implications later, perform an inspection to detect conditions per a method approved by under Executive Order 13132. discrepancies around and under the chafing either the FAA or the DGAC (or its plates of the wing root, in accordance with For the reasons discussed above, I the Accomplishment Instructions of Airbus delegated agent). In light of the type of certify that this proposed regulation (1) repair that would be required to address Service Bulletin A310–53–2069, Revision 04, is not a ‘‘significant regulatory action’’ dated November 8, 2000; Revision 03, dated the unsafe condition, and consistent under Executive Order 12866; (2) is not October 28, 1997; Revision 02, dated with existing bilateral airworthiness a ‘‘significant rule’’ under the DOT September 23, 1996; or Revision 01, dated agreements, we have determined that, Regulatory Policies and Procedures (44 September 19, 1995. If any discrepancy is for this proposed AD, a repair approved FR 11034, February 26, 1979); and (3) if found, prior to further flight, accomplish by either the FAA or the DGAC would promulgated, will not have a significant follow-on corrective actions (i.e., removal of be acceptable for compliance with this economic impact, positive or negative, corrosion, corrosion protection, high frequency eddy current inspection, x-ray proposed AD. on a substantial number of small entities Also, operators should note that, inspection), as applicable, in accordance under the criteria of the Regulatory with the applicable service bulletin. Repeat although the Accomplishment Flexibility Act. A copy of the draft Instructions of the referenced service the inspections thereafter at the intervals regulatory evaluation prepared for this specified in the applicable service bulletin. bulletins describe procedures for action is contained in the Rules Docket. After the effective date of this AD, repeat the reporting inspection results to the A copy of it may be obtained by inspections thereafter at the intervals manufacturer, this proposed AD would contacting the Rules Docket at the specified in Revision 04 of the service not require such reporting. The FAA location provided under the caption bulletin. (b) If any discrepancy is found during any does not need this information from ADDRESSES. operators. inspection required by paragraph (a) of this List of Subjects in 14 CFR Part 39 AD, and Airbus Service Bulletin A310–53– Cost Impact 2069, Revision 04, dated November 8, 2000; Air transportation, Aircraft, Aviation There are approximately 46 airplanes Revision 03, dated October 28, 1997; safety, Safety. of U.S. registry that would be affected Revision 02, dated September 23, 1996; or by this proposed AD. This proposed AD The Proposed Amendment Revision 01, dated September 19, 1995; as applicable; specifies to contact Airbus for adds no new requirements. It requires Accordingly, pursuant to the appropriate action: Prior to further flight, continuation of repetitive inspections authority delegated to me by the repair in accordance with a method approved for airplanes where corrosion was Administrator, the Federal Aviation by the Manager, International Branch, ANM– detected and reworked at frame 39, Administration proposes to amend part 116, FAA, Transport Airplane Directorate. stringer 35. The current costs associated Where differences in the compliance times or 39 of the Federal Aviation Regulations corrective actions exist between the service with this proposed AD are reiterated in (14 CFR part 39) as follows: their entirety as follows for the bulletin and this AD, the AD prevails. convenience of affected operators: PART 39—AIRWORTHINESS New Requirements of This AD The inspections that are currently DIRECTIVES required by AD 98–09–20 take Optional Terminating Action approximately 68 work hours per 1. The authority citation for part 39 (c) Except as provided by paragraph (d) of airplane to accomplish at an average continues to read as follows: this AD: Accomplishment of the replacement labor rate of $65 per work hour. Based of the stainless steel chafing plates with new Authority: 49 U.S.C. 106(g), 40113, 44701. chafing plates made of aluminum alloy, in on these figures, the cost impact of the § 39.13 [Amended] accordance with Airbus Service Bulletin currently required actions is estimated A310–53–2070, Revision 02, dated November to be $4,420 per airplane, per inspection 2. Section 39.13 is amended by 8, 2000; Revision 01, dated September 23, cycle. removing amendment 39–10501 (63 FR 1996; or the Original Issue, dated October 3, The cost impact figures discussed 23377, April 29, 1998), and by adding 1994; constitutes terminating action for the above are based on assumptions that no a new airworthiness directive (AD), to repetitive inspections required by paragraph operator has yet accomplished any of read as follows: (a) of this AD. the current or proposed requirements of Airbus: Docket 2002–NM–175–AD. Continuation of Repetitive Inspections this AD action, and that no operator Supersedes AD 98–09–20, Amendment (d) Within 30 days after the effective date would accomplish those actions in the 39–10501. of this AD: Do a review of the airplane future if this AD were not adopted. The Applicability: Model A310 series airplanes maintenance records to determine if any cost impact figures discussed in AD on which Airbus Modifications 8888 and corrosion was detected and reworked on the rulemaking actions represent only the 8889 have not been accomplished, left and/or right side of frame 39, stringer 35, time necessary to perform the specific certificated in any category. during the accomplishment of any corrective

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action or repair specified in paragraphs (a) or FOR FURTHER INFORMATION CONTACT: be accompanied by the original (b) of this AD. If any corrective action or Norma Rotunno (202) 622–7900 (not a certificate or a certified copy; and add repair has been accomplished in this area, toll-free number). a requirement that a request for perform an inspection for fatigue cracking of correction of a mistake in a registration frame 39, stringer 35, in accordance with the SUPPLEMENTARY INFORMATION: be filed within one year of the date of Accomplishment Instructions of Airbus Background Service Bulletin A310–53–2069, Revision 04, registration. dated November 8, 2000. Do the initial The proposed rulemaking by cross- DATES: To be ensured of consideration, inspection at the threshold specified in reference to temporary regulations that written comments must be received on Figure 1 of the service bulletin, or within 30 are the subject of this correction are or before February 2, 2004. No public days after the effective date of this AD, under section 461(f) of the Internal hearing will be held. whichever is later. Repeat the inspection Revenue Code. ADDRESSES: The Office prefers that all thereafter at the intervals specified in Figure 1 of the service bulletin. If any discrepancy Need for Correction comments be sent by electronic mail to [email protected]. is found, prior to further flight, accomplish As published, the proposed the applicable follow-on corrective actions in Written comments may also be accordance with the Accomplishment rulemaking by cross-reference to submitted by mail or hand delivery to: Instructions of the service bulletin. temporary regulations (REG–136890– Commissioner for Trademarks, 2900 02), contains an error that may prove to Submission of Information Not Required Crystal Drive, Arlington, VA 22202– be misleading and is in need of 3514, attention Mary Hannon. Copies of (e) Although the service bulletins clarification. all comments will be available for referenced in this AD specify to submit information to the manufacturer, this AD Correction of Publication public inspection in Suite 10B10, South Tower Building, 10th floor, 2900 Crystal does not include such a requirement. Accordingly, the publication of the Drive, Arlington, Virginia 22202–3514, proposed rulemaking by cross-reference Alternative Methods of Compliance from 8:30 a.m. until 5 p.m., Monday to temporary regulations (REG–136890– (f) In accordance with 14 CFR 39.19, the through Friday. Manager, International Branch, ANM–116, 02), which is the subject of FR. Doc. 03– 29043, is corrected as follows: FOR FURTHER INFORMATION CONTACT: FAA, Transport Airplane Directorate, is Mary Hannon, Office of the authorized to approve alternative methods of 1. On page 65646, column 1, in the compliance for this AD. preamble, under the subject heading Commissioner for Trademarks, by telephone at (703) 308–8910, ext. 137; or Note 1: The subject of this AD is addressed ‘‘Comments and Public Hearing’’, in French airworthiness directive 2000–514– paragraph 3, line 8, the language by e-mail to [email protected]. 326(B) R1, dated May 15, 2002. ‘‘March 2, 2003. A period of 10 SUPPLEMENTARY INFORMATION: The Office minutes’’ is corrected to read ‘‘March 2, proposes to amend its rules to (1) Issued in Renton, Washington, on eliminate the requirement that a request December 10, 2003. 2004. A period of 10 minutes’’. for amendment or correction of a Kevin Mullin, Cynthia E. Grigsby, registration be accompanied by the Acting Manager, Transport Airplane Acting Chief, Publications and Regulations original certificate of registration or a Directorate, Aircraft Certification Service. Branch, Legal Processing Division, Associate certified copy thereof, and the [FR Doc. 03–31179 Filed 12–17–03; 8:45 am] Chief Counsel (Procedures and requirement that an application to Administration). BILLING CODE 4910–13–U surrender a registration for cancellation [FR Doc. 03–31163 Filed 12–17–03; 8:45 am] be accompanied by the original BILLING CODE 4830–01–U certificate or a certified copy; and (2) DEPARTMENT OF THE TREASURY add a requirement that a request for correction of a mistake in a registration Internal Revenue Service DEPARTMENT OF COMMERCE be filed within one year of the date of registration. 26 CFR Part 1 Patent and Trademark Office References below to ‘‘the Act,’’ ‘‘the Trademark Act,’’ or ‘‘the statute’’ refer to [REG–136890–02] 37 CFR Part 2 the Trademark Act of 1946, 15 U.S.C. 1051 et seq., as amended. RIN 1545–BA90 [Docket No. 2003–T–023] RIN 0651–AB67 One Year Time Limit for Requests for Transfers To Provide for Satisfaction Correction of Registrations of Contested Liabilities; Correction Changes in the Requirements for Currently, there is no time limit set Amendment and Correction of AGENCY: Internal Revenue Service (IRS), forth in §§ 2.174 and 2.175 for filing a Trademark Registrations Treasury. request for correction of a mistake in a ACTION: Correction to notice of proposed AGENCY: Patent and Trademark Office, registration under section 7(g) or 7(h) of rulemaking by cross-reference to Commerce. the Trademark Act. Some registrants temporary regulations. ACTION: Proposed rule. have filed requests to correct an error in a mark years after the date of SUMMARY: This document contains a SUMMARY: The United States Patent and registration. Granting these requests is correction to a notice of proposed Trademark Office (‘‘Office’’) proposes to harmful to examining attorneys and rulemaking by cross-reference to amend its rules to eliminate the third parties who search Office records, temporary regulations relating to the requirement that a request for because they do not have accurate transfer of indebtedness or stock of a amendment or correction of a information about existing registrations. taxpayer or related persons or of a registration be accompanied by the Therefore, the Office proposes to amend promise to provide services or property original certificate of registration or a §§ 2.174 and 2.175 to require that all in the future to provide for the certified copy thereof, and the requests for correction of a registration satisfaction of an asserted liability that requirement that an application to be filed within one year after the date the taxpayer is contesting. surrender a registration for cancellation of registration, even where a mistake in

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a registration resulted from an Office registration for cancellation be approved by OMB under OMB Control error. accompanied by the original certificate Number 0651–0009, Trademark Applicants and registrants are advised of registration. Processing. Notwithstanding any other to carefully review notices of The Office proposes to amend § 2.173 provision of law, no person is required publication, notices of allowance, and to eliminate the requirement that a to respond to nor shall a person be certificates of registration to ensure that request for amendment of a trademark subject to a penalty for failure to comply the data is correct, so that any necessary registration be accompanied by the with a collection of information subject requests for correction can be filed original certificate of registration or a to the requirements of the Paperwork within one year of the date of certified copy thereof. Reduction Act unless that collection of registration. The Office proposes to amend § 2.174 information displays a currently valid to: (1) Eliminate the requirement that a OMB control number. Requirement For Submission of request for correction of a mistake by Original Certificate of Registration or the Office in a trademark registration List of Subjects in 37 CFR Part 2 Certified Copy pursuant to section 7(g) of the Administrative practice and Currently, § 2.172 requires that an Trademark Act be accompanied by the procedure, Trademarks. application for surrender of a original certificate of registration or a For the reasons given in the preamble registration for cancellation under certified copy thereof; and (2) add a and under the authority contained in 35 section 7 of the Trademark Act be requirement that a request for correction U.S.C. 2 and 15 U.S.C. 1123, as accompanied by the original certificate, of a mistake by the Office be filed amended, the Office proposes to amend if not lost or destroyed. If the original within one year of the date of part 2 of title 37 as follows: certificate is submitted, the Office will registration. destroy the certificate once the The Office proposes to amend § 2.175 PART 2—RULES OF PRACTICE IN registration is cancelled. If the original to: (1) Eliminate the requirement that a TRADEMARK CASES certificate does not accompany the request for correction of a mistake by a request, the Office assumes that the registrant in a trademark registration 1. The authority citation for 37 CFR certificate is lost or destroyed, and pursuant to section 7(g) of the part 2 continues to read as follows: processes the request for cancellation. Trademark Act be accompanied by the Authority: 15 U.S.C. 1123, 35 U.S.C. 2, Sections 2.173, 2.174, and 2.175(b) original certificate of registration or a unless otherwise noted. currently require that a request for certified copy thereof; and (2) add a 2. Revise § 2.172 to read as follows: amendment or correction of a requirement that a request for correction registration under section 7 of the of a mistake by a registrant be filed § 2.172 Surrender for cancellation. Trademark Act be accompanied by the within one year of the date of Upon application by the registrant, original certificate of registration or a registration. the Director may permit any registration certified copy thereof. The Office The Office proposes to amend § 2.176 to be surrendered for cancellation. amends or corrects the registration by to change ‘‘Examiner of Trademarks’’ to Application for surrender must be attaching an updated registration ‘‘Post Registration Examiner.’’ signed by the registrant. When there is more than one class in a registration, certificate, showing the amendment or Rule Making Requirements correction, to the original certificate of one or more entire class(es) but less than registration and to the printed copies of Regulatory Flexibility Act the total number of classes may be the registration in the Office. See 37 The Deputy General Counsel for surrendered. Deletion of less than all of CFR 2.173(c), 2.174 and 2.175(c). The General Law of the United States Patent the goods or services in a single class Office returns the original registration and Trademark Office has certified to constitutes amendment of registration as certificate, or certified copy thereof, the Chief Counsel for Advocacy of the to that class (see § 2.173). 3. Amend § 2.173 by revising with the updated registration certificate Small Business Administration that the paragraph (a) to read as follows: attached, to the owner of record. TMEP proposed rule changes will not have a §§ 1609.01 and 1609.09. significant impact on a substantial § 2.173 Amendment of registration. The Office believes that requiring the number of small entities (Regulatory (a) A registrant may apply to amend registrant to submit the original Flexibility Act, 5 U.S.C. 605(b)). a registration or to disclaim part of the certificate or a certified copy is mark in the registration. The registrant unnecessary and inefficient. The Office Executive Order 13132 must submit a written request proposes to eliminate this requirement. This rule making does not contain specifying the amendment or When amending or correcting a policies with federalism implications disclaimer. This request must be signed registration, the Office will send the sufficient to warrant preparation of a by the registrant and verified or updated registration certificate showing Federalism Assessment under Executive supported by a declaration under § 2.20, the amendment or correction to the Order 13132 (Aug. 4, 1999). and accompanied by the required fee. If registrant, and instruct the registrant to the amendment involves a change in the attach it to the certificate of registration. Executive Order 12866 mark, the registrant must submit a new The Office will also update its own This rule making has been determined specimen showing the mark as used on records to show the amendment or not to be significant for purposes of or in connection with the goods or correction. The Office will send an Executive Order 12866 (Sept. 30, 1993). services, and a new drawing of the updated registration certificate to the Paperwork Reduction Act amended mark. The registration as owner of record. This rule contains no new amended must still contain registrable Discussion of Specific Rules information collection or recordkeeping matter, and the mark as amended must The Office proposes to amend requirements under the Paperwork be registrable as a whole. An §§ 2.172, 2.173, 2.174, 2.175, and 2.176. Reduction Act of 1995 (44 U.S.C. 3501 amendment or disclaimer must not The Office proposes to amend § 2.172 et seq.). Existing collections of materially alter the character of the to eliminate the requirement that an information and recordkeeping mark. application to surrender a trademark requirements have been reviewed and * * * * *

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4. Revise § 2.174 to read as follows: mailing date, the matter will be Quality Unit, U.S. Environmental considered abandoned. Protection Agency, EPA New England § 2.174 Correction of Office mistake. Regional Office, One Congress Street, (a) Whenever a material mistake in a Dated: December 9, 2003. James E. Rogan, Suite 1100 (CAQ), Boston, MA 02114– registration, incurred through the fault 2023, (617) 918–1665, Under Secretary of Commerce for Intellectual of the United States Patent and [email protected]. Trademark Office, is clearly disclosed Property and Director of the Patent and by the records of the Office, a certificate Trademark Office. SUPPLEMENTARY INFORMATION: In the of correction stating the fact and nature [FR Doc. 03–31904 Filed 12–17–03; 8:45 am] Rules section of this Federal Register, of the mistake, signed by the Director or BILLING CODE 3510–16–U EPA is approving the State’s SIP by an employee designated by the submittal as a direct final rule without Director, shall be issued without charge a prior proposal because the Agency and recorded. A printed copy of the ENVIRONMENTAL PROTECTION views this as a noncontroversial certificate of correction shall be attached AGENCY submittal and anticipates no adverse to each printed copy of the registration comments. A detailed rationale for the certificate. Thereafter, the corrected 40 CFR Part 52 approval is set forth in the direct final certificate shall have the same effect as [CT–057–7216d; A–1–FRL–7600–1] rule. If EPA receives no adverse if it had been originally issued in the comments in response to this action, we corrected form. In the discretion of the Approval and Promulgation of contemplate no further activity. If EPA Director the Office may issue a new Implementation Plans; Connecticut; receives adverse comments, we will certificate of registration without charge. Motor Vehicle Emissions Budgets for withdraw the direct final rule and we (b) A request for correction of an 2005 and 2007 Using MOBILE6.2 for will address all public comments we Office error in a registration must be the Connecticut Portion of the New receive in a subsequent final rule based filed within one year after the date of York-Northern New Jersey-Long Island on this proposed rule. EPA will not registration. Nonattainment Area and for 2007 for institute a second comment period. Any 5. Amend § 2.175 by revising the Greater Connecticut Nonattainment parties interested in commenting on this paragraphs (a) and (b) to read as follows: Area action should do so at this time. Please note that if EPA receives adverse § 2.175 Correction of mistake by AGENCY: Environmental Protection comment on an amendment, paragraph, registrant. Agency (EPA). or section of this rule and if that (a) Whenever a mistake has been ACTION: Proposed rule. provision may be severed from the made in a registration and a showing remainder of the rule, EPA may adopt SUMMARY: The EPA is proposing to has been made that the mistake as final those provisions of the rule that approve a revision to the Connecticut occurred in good faith through the fault are not the subject of an adverse State Implementation Plan (SIP) for the of the registrant, the Director may issue comment. attainment and maintenance of the one- a certificate of correction. In the For additional information, see the hour National Ambient Air Quality discretion of the Director, the Office direct final rule which is located in the Standard (NAAQS) for ground level may issue a new certificate upon Rules section of this Federal Register. ozone submitted by the State of payment of the required fee, provided Connecticut. EPA is proposing approval Dated: December 10, 2003. that the correction does not involve of Connecticut’s 2005 and 2007 motor Robert W. Varney, such changes in the registration as to vehicle emissions budgets recalculated Regional Administrator, EPA New England. require republication of the mark. using MOBILE6.2 for the Connecticut (b) Application for such action must: [FR Doc. 03–31233 Filed 12–17–03; 8:45 am] (1) Be filed within one year after the portion of the New York-Northern New BILLING CODE 6560–50–P date of registration; Jersey-Long Island nonattainment area (2) Include the following: and 2007 motor vehicle emissions (i) Specification of the mistake for budgets for the Greater Connecticut DEPARTMENT OF COMMERCE which correction is sought; nonattainment area. This action is being (ii) Description of the manner in taken under the Clean Air Act. National Oceanic and Atmospheric which it arose; and DATES: Written comments must be Administration (iii) A showing that it occurred in received on or before January 20, 2004. good faith; ADDRESSES: Comments may be mailed to 50 CFR Part 679 (3) Be signed by the registrant and David Conroy, Unit Manager, Air [I.D. 112803A] verified or include a declaration in Quality Planning, Office of Ecosystem accordance with § 2.20; and Protection (mail code CAQ), U.S. RIN 0648–AR74 Environmental Protection Agency, EPA (4) Be accompanied by the required Fisheries of the Exclusive Economic New England Regional Office, One fee. Zone Off Alaska; Rebuilding Congress Street, Suite 1100, Boston, MA * * * * * Overfished Fisheries 6. Amend § 2.176 to read as follows: 02114–2023. Comments may also be submitted AGENCY: National Marine Fisheries § 2.176 Consideration of above matters. electronically, or through hand Service (NMFS), National Oceanic and The matters in §§ 2.171 to 2.175 will delivery/courier, please follow the Atmospheric Administration (NOAA), be considered in the first instance by the detailed instructions (Part (I)(B)(1)(i) Commerce. SUPPLEMENTARY Post Registration Examiner. If the action through (iii) of the ACTION: Notice of availability; request of the Examiner is adverse, registrant INFORMATION section) described in the for comments. may request the Director to review the direct final rule which is located in the action under § 2.146. If the registrant Rules section of this Federal Register. SUMMARY: The North Pacific Fishery does not respond to an adverse action of FOR FURTHER INFORMATION CONTACT: Jeff Management Council (Council) has the Examiner within six months of the Butensky, Environmental Planner, Air submitted for Secretarial review

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Amendment 17 to the Fishery Amendment 17 specifies a time short-term, is the strongest guarantee Management Plan for Bering Sea/ period for rebuilding the stock intended that the stock will be healthy and Aleutian Islands King and Tanner Crabs to satisfy the requirements of the support a fishery in the long term. Once (FMP). This amendment would Magnuson-Stevens Act. Under the rebuilt, fishing communities would implement a rebuilding plan for the rebuilding plan, the Pribilof Islands blue once again have expanded opportunities overfished stock of Pribilof Islands blue king crab stock is estimated to rebuild, (both fishing and processing) in this king crab. This action is intended to with a 50–percent probability, within 10 potentially lucrative fishery. As this ensure that conservation and years. The stock will be considered rebuilding plan applies the same management measures continue to be ‘‘rebuilt’’ when it reaches the maximum restrictions to all participants, the plan based on the best scientific information sustainable yield stock size level in 2 allocates the fishery restrictions fairly available and enhance the Council’s consecutive years. This rebuilding time and equitably among sectors of the ability to achieve, on a continuing basis, period is as short a possible and takes fishery. Likewise, the plan allocates all optimum yield from fisheries under its into account the status and biology of recovery benefits fairly and equitably authority. the stock, the needs of fishing among sectors of the fishery. DATES: Comments on the amendment communities, and the interaction of the No additional habitat or bycatch must be submitted on or before February overfished stock within the marine measures are part of this rebuilding plan 17, 2004. ecosystem, as required by the because neither habitat nor bycatch ADDRESSES: Comments may be Magnuson-Stevens Act in section measures are expected to have a submitted to Sue Salveson, Assistant 304(e)(4)(A)(i). measurable impact in rebuilding. Regional Administrator, Sustainable The rebuilding plan consists of a Habitat is protected from fishing Fisheries Division, Alaska Region, framework that references the State of impacts by the existing Pribilof Islands NMFS, P.O. Box 21668, Juneau, AK Alaska’s harvest strategy. Section 8.3 of Habitat Conservation Zone, which 99802–1668, Attn: Lori Durall. the FMP defers to the State of Alaska the encompasses the majority of blue king Comments also may be sent via authority to develop and implement crab habitat. Bycatch of blue king crab facsimile (fax) to 907–586–7465. harvest strategies, with oversight by in both crab and groundfish fisheries is Comments will not be accepted if NMFS and the Council. The rebuilding a negligible proportion of the total submitted via e-mail or Internet. Courier harvest strategy, and alternative harvest population abundance. or hand delivery of comments may be strategies, were developed and analyzed An EA was prepared for Amendment made to NMFS in the Federal Building, by the Alaska Department of Fish and 17 that describes the management Room 420, Juneau, AK 99801.Copies of Game and reviewed and adopted by the background, the purpose and need for Amendment 17 to the FMP, and the Alaska Board of Fisheries. The action, the management alternatives, Environmental Assessment (EA) rebuilding harvest strategy, and detailed and the environmental and socio- prepared for the amendment are alternatives analysis, were reviewed by economic impacts of the alternatives. A available from the above address. the Council, its Scientific and Statistical copy of the EA can be obtained from Committee, and Crab Plan Team for FOR FURTHER INFORMATION CONTACT: NMFS (see ADDRESSES). consistency with the FMP, Magnuson- The Magnuson-Stevens Act requires Gretchen Harrington, 907–586–7228 or Stevens Act, and the National Standard [email protected]. that each regional fishery management guidelines. The analysis prepared for council submit each FMP or FMP SUPPLEMENTARY INFORMATION: NMFS the rebuilding harvest strategy is amendment it prepares to NMFS for declared the Pribilof Islands stock of contained in the EA prepared for this review and approval, disapproval, or blue king crab (Paralithodes platypus) action. partial approval. The Magnuson-Stevens overfished because the spawning stock The rebuilding harvest strategy, Act also requires that NMFS, upon biomass was below the minimum stock which closes the directed fishery until receiving an FMP or FMP amendment, size threshold defined in Amendment 7 the stock is rebuilt, should result in immediately publish a notification in to the FMP. Amendment 7 specified more spawning biomass than allowing a the Federal Register that the objective and measurable criteria for fishery during rebuilding, because more amendment is available for public identifying when any of the crab large male crab would be conserved and review and comment. This action fisheries covered by the FMP are fewer juveniles and females would die constitutes such notice for FMP overfished or when overfishing is due to incidental catch and discard Amendment 17. NMFS will consider occurring (64 FR 11390, March 9, 1999). mortality. More spawning biomass public comments received during the On September 23, 2002, NMFS would be expected to produce larger comment period in determining notified the Council that the Pribilof year-classes when environmental whether to approve this FMP Islands blue king crab stock was conditions are favorable. amendment. To be considered, a overfished (67 FR 62212, October 4, This conservative rebuilding plan is comment must be received by close of 2002). The Council then took action to warranted at this time for this stock business by the last day of the comment develop a rebuilding plan within 1 year given the concerns regarding the period (see DATES), regardless of the of notification as required by section rebuilding potential of this stock, the comment’s postmark or transmission 304(e)(3) of the Magnuson-Stevens potential vulnerability to overfishing, date. Fishery Conservation and Management and the poor precision of survey Act (Magnuson-Stevens Act). In October estimates. The other alternatives under Dated: December 12, 2003. 2003, the Council adopted Amendment consideration, which would allow Bruce C. Morehead, 17, the rebuilding plan, to accomplish fishing prior to stock rebuilding, would Acting Director, Office of Sustainable the purposes outlined in the national not provide sufficient safeguards for this Fisheries, National Marine Fisheries Service. standard guidelines to rebuild the vulnerable stock. The preferred [FR Doc. 03–31226 Filed 12–17–03; 8:45 am] overfished stock. alternative, while forgoing harvest in the BILLING CODE 3510–22–S

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Notices Federal Register Vol. 68, No. 243

Thursday, December 18, 2003

This section of the FEDERAL REGISTER SUPPLEMENTARY INFORMATION: The minimum tool approach means contains documents other than rules or that managers would use the minimum Purpose and Need for Action proposed rules that are applicable to the necessary weed treatment method(s) to public. Notices of hearings and investigations, The purpose of the proposed project accomplish management objectives. committee meetings, agency decisions and is to: The minimum tool approach would rulings, delegations of authority, filing of • Prioritize weed species and be implemented on a site-specific basis. petitions and applications and agency treatment areas; A number of steps would be followed to statements of organization and functions are • Identify and treat weed infestations examples of documents appearing in this determine and implement the most section. using a variety of methods including appropriate site-specific treatment herbicide application by hand and aerial method including: spraying; • Detection of the weed; • DEPARTMENT OF AGRICULTURE Prevent or limit the introduction • Prioritization of weed treatment at a and establishment of noxious and particular site; Forest Service invasive weed species; and • Determination if sensitive • Maintain native plant communities environmental receptors are present; Payette National Forest, Krassel and and watershed function. • Consideration of potential for McCall Ranger Districts, Idaho; and The SFSR Subbasin is an ecologically adverse effects; Boise National Forest, Cascade Ranger important, relatively pristine area where • Determination of the treatment District, Idaho; South Fork Salmon the spread of noxious and invasive methods, including minimum tool River Subbasin Noxious Weed weeds could result in unacceptable method; Management consequences on fish and wildlife • Selection of appropriate treatment habitat, recreation, and other resources. method for the weed; and AGENCY: Forest Service, USDA. • Proposed Action Treatment followed by restoration ACTION: Notice of intent to prepare an and monitoring, as necessary. environmental impact statement (EIS). The overall management objective of the proposed action is to maximize the Possible Alternatives SUMMARY: The USDA Forest Service will treatment of noxious and invasive prepare an environmental impact A ‘‘No Action’’ alternative is required weeds throughout the SFSR Subbasin. statement (EIS) for management of under NEPA regulations and also serves The proposed action would prioritize noxious and invasive weeds in the as a baseline for comparison of other noxious and invasive weed species and South Fork Salmon River (SFSR) alternatives. The No Action Alternative treatment areas within the Subbasin Subbasin. The analysis area of would be no chemical treatment, based on the following goals: because no environmental analysis has approximately 788,660 acres includes 1. Treat all known sites less than 5 headwater streams to the Salmon River ever been completed for noxious weed acres in size with the goal of and includes portions of the Boise treatment in the SFSR Subbasin. eradication. Another alternative to be considered National Forest (BNF) and Payette 2. Reduce all established areas of National Forest (PNF) in central Idaho. would include the same noxious weed noxious and invasive weeds greater than treatment methods that are used on the The subbasin is immediately adjacent to 5 acres in size by 50 percent. and upstream of the Frank Church River remainder of the Payette National Treatment would begin by Forest. of No Return (FC–RONR) Wilderness. determining the minimum tool The purpose of the proposed project is necessary to achieve management Scoping Process to identify and treat noxious and objectives (see below). Treatment The Forest Service is seeking invasive weeds using a variety of methods would include removal by comments from individuals, methods including herbicide hand pulling and shovel, herbicide organizations, Tribal governments, and application by hand and aerial spraying. treatment by hand, herbicide treatment federal, state, and local agencies The need is to minimize the impacts of with truck mounted equipment, aerial interested in or affected by this project. noxious and invasive weeds. The EIS application of herbicides, and biological Public participation will be solicited will disclose the environmental effects control. Limits would be placed on the through news releases, scoping meetings of the proposed action and alternatives. type, amount, and location of herbicide and requests for written comments. The The Forest Service now invites use. Noxious and invasive weed first formal opportunity to comment is comments on the scope of the analysis management would also include to respond to this notice of intent, and the issues to address. education and preventive measures which initiates the scoping process (40 DATES: Comments must be received by such as area closures and weed-free hay CFR 1501.7). Scoping includes: (1) January 19th, 2004. The Draft EIS is requirements and inspections. Weeds Identifying potential issues, (2) expected in October 2004, and the Final would be treated on a maximum area of identifying significant issues, (3) EIS is expected in April 2005. 3,000 acres each year in the SFSR exploring alternatives, and (4) ADDRESSES: Send written comments to: Subbasin. The distribution of treatment identifying potential environmental District Ranger, Krassel Ranger District, acres between ground application, aerial effects of the proposed action and P.O. Box 1026, McCall, Idaho 83638. application, and mechanical treatment, alternatives. FOR FURTHER INFORMATION CONTACT: Ana and biological control would likely vary Egnew, Krassel Ranger District, P.O. Box on a yearly basis; however, it is Preliminary Issues 1026, McCall, Idaho 83638 or phone expected that ground application would The Forest Service has identified the (208) 634–0600. dominate. following nine potential issues. Public

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input will help determine which of contentions. Vermont Yankee Nuclear including an analysis of the incident these issues and what other issues merit Power Corp., v NRDC, 435 U.S. 519, 553 together with a discussion of the key detailed analyses. (1978). Also, environmental objections findings, root and contributing causes, • Issue 1—Water Quality: Effects to that could be raised at the draft EIS and draft recommendations. The CSB water quality. stage, but that are not raised until staff presentation will focus on three • Issue 2—Soil: Effects to soil completion of the final EIS, may be key safety issues: overpressure productivity. waived or dismissed by the courts. City • protection, hazard evaluation systems, Issue 3—Fisheries Resources: Effects of Angoon v. Hodell, 803 F .2d 1016, and engineering at small facilities. to listed species. 1002 (9th Cir. 1986), and Wisconsin • Issue 4—Vegetation: Effects on Heritages, Inc., v. Harris, 490 F. Supp. This incident occurred at 2:10 a.m. on native plant communities and rare 1334, 1338 (E. D. Wis. 1980). Because of Friday, April 11, 2003, when a vessel plants. these court rulings, it is important that explosion at the DD Williamson plant • Issue 5—Fire and Fuels: Effects on those interested in this proposed action killed an operator and caused extensive fire regimes and spread of weeds due to participate by the close of the 45-day damage to the western end of the fire. comment period so substantive facility. As a consequence of the • Issue 6—Wildlife Resources: Effects comments and objections are made explosion, 26,000 pounds of aqua on big game, listed species, Forest available to the Forest service at a time ammonia (29.4% ammonia solution in Service sensitive species, and PNF and when it can meaningfully consider them water) leaked into the atmosphere, BNF Management Indicator Species and respond to them in the final EIS. forcing the evacuation of 26 residents. (MIS). • Nature of Decision To Be Made The DD Williamson plant employs Issue 7—Recreation: Effects to approximately 45 people and is located This decision will be whether or not inventoried Roadless Areas, Wild and in a mixed industrial and residential scenic Rivers, adjacent Wilderness, and to implement specific noxious weed neighborhood approximately 1.5 miles visual resources. management activities in the SFSR • Issue 8—Cultural Resources: Effects Subbasin, and if so, what types of weed east of downtown Louisville. of treatment methods on cultural treatments would be implemented. The Recommendations proposed in the resources, particularly Traditional decision would include any mitigation investigative report are issued by a vote Cultural Properties (TCP). measures needed in addition to those of the Board and address identified • Issue 9—Human Health: Effects of prescribed in the Forest Plans. safety deficiencies uncovered during the herbicide use on human health. Responsible Official investigation, and specify how to correct Comment Requested the situation. Safety recommendations I am the responsible official for the are the primary tool used by the Board This notice of intent initiates the preparation of the EIS. The deciding to motivate implementation of safety officials for the decision to accompany scoping process that guides the improvements and prevent future the Final EIS are: Mark J. Madrid, Forest development of the EIS. To assist the incidents. The CSB uses its unique Forest Service in identifying and Supervisor, Payette National Forest, independent accident investigation considering issues and alternatives, P.O. Box 1026, McCall, Idaho 83628; perspective to identify trends or issues comments should be as specific as and Richard A. Smith, Forest possible. Reviewers may wish to refer to Supervisor, Boise National Forest, 1249 that might otherwise be overlooked. the Council on Environmental Quality South Vinnell Way, Suite 200, Boise, CSB recommendations may be directed Regulations for implementing the Idaho 83709. to corporations, trade associations, government entities, safety procedural provisions of the National Dated: December 12, 2003. organizations, labor unions and others. Environmental Policy Act at 40 CFR Mark J. Madrid, 1503.3 in addressing these points. Forest Supervisor. After the staff presentation, the Board Comments received, including the [FR Doc. 03–31190 Filed 12–17–03; 8:45 am] will allow a time for public comment. names and addresses of those who BILLING CODE 3410–11–M Following the conclusion of the public comment, will be part of the project comment period, the Board will record and will be available for public consider whether to vote to approve the inspection. CHEMICAL SAFETY AND HAZARD final report and recommendations. Early Notice of Importance of Public INVESTIGATION BOARD All staff presentations are preliminary Participation in Subsequent and are intended solely to allow the Environmental Review Sunshine Act Meeting Board to consider in a public forum the The Draft EIS is proposed to be In connection with its investigation issues and factors involved in this case. available for public comment in October into the cause of a deadly explosion and No factual analyses, conclusions or of 2004. The comment period on the the leakage of 26,000 pounds of aqua findings should be considered final. Draft EIS will be 45 days from the date ammonia into the atmosphere from the Only after the Board has considered the the Environmental Protection Agency DD Williamson & Co., Inc. plant in staff presentation and approved the staff publishes the notice of availability in Louisville, Kentucky on April 11, 2003, report will there be an approved final the Federal Register. the United States Chemical Safety and record of this incident. The Forest Service believes it is Hazard Investigation Board announces The meeting will be open to the important to give reviewers notice of that it will convene a public meeting public. Please notify CSB if a translator several court rulings related to public beginning at 9:30 a.m. local time on or interpreter is needed, at least 5 participation in the environmental January 14, 2004, at the Galt House, 140 business days prior to the public review process. First reviewers of draft North Fourth Street, Louisville, KY, meeting. For more information, please EISs must structure their participation 40202—telephone: (502) 568–5200. in the environmental review of the At the meeting CSB staff will present contact the Chemical Safety and Hazard proposal so that is meaningful and alerts to the Board the results of their an agency to the reviewer’s position and investigation into this incident,

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Investigation Board at (202) 261–7600, Background petitioner did not request reviews of any or visit our Web site at: www.csb.gov. On February 14, 2003, the Department of these companies. Therefore, pursuant published the preliminary results of this to 19 CFR § 351.213(d)(1), because these Christopher W. Warner, companies withdrew their requests for General Counsel. review of tapered roller bearings and parts thereof, finished and unfinished review within 90 days of the date of [FR Doc. 03–31330 Filed 12–16–03; 12:52 publication of the notice of initiation of (‘‘TRBs’’) from the People’s Republic of pm] this review and no other party requested China (‘‘PRC’’). See Tapered Roller BILLING CODE 6350–01–P a review of these companies, we are Bearings and Parts Thereof, Finished rescinding the review with respect to and Unfinished, From the People’s Hailin, Wanxiang, Luoyang, Liaoning, Republic of China: Preliminary Results and CMC. DEPARTMENT OF COMMERCE of 2001–2002 Administrative Review and Partial Rescission of Review, 68 FR Use of Facts Otherwise Available International Trade Administration 7500 (February 14, 2003) (‘‘Preliminary As discussed in detail in the Results’’). The period of review (‘‘POR’’) Preliminary Results, we have [A–570–601] is June 1, 2001, through May 31, 2002. determined that companies which did This review covers the following not respond to the Department’s Tapered Roller Bearings and Parts producers or exporters (referred to Thereof, Finished and Unfinished, from questionnaire in this proceeding should collectively as ‘‘the respondents’’): not receive separate rates and, thus, are the People’s Republic of China: Final Wanxiang Group Corporation Results of 2001–2002 Administrative viewed as part of the PRC-wide entity. (‘‘Wanxiang’’), China National Moreover, as noted in the Preliminary Review and Partial Rescission of Machinery Import & Export Corporation Review Results, we determine that, in (‘‘CMC’’), Tianshui Hailin Import and accordance with sections 776(a) and (b) AGENCY: Import Administration, Export Corporation (‘‘Hailin’’), Luoyang of the Act, the use of adverse facts International Trade Administration, Bearing Corporation (Group) available is appropriate for companies Department of Commerce. (‘‘Luoyang’’), Liaoning MEC Group Co. that did not respond to our requests for Ltd. (‘‘Liaoning’’), Peer Bearing ACTION: Notice of Final Results of 2001– information. No party in this proceeding Company - Changshan (‘‘CPZ’’), and 2002 Administrative Review and Partial has commented on these issues since Yantai Timken Co., Ltd. (‘‘Yantai Rescission of the Review. the publication of the Preliminary Timken’’) Results. Thus, for these final results, we SUMMARY: We have determined that We invited parties to comment on the have continued to assign the rate of sales of tapered roller bearings and parts Preliminary Results. On March 17, 2003, 33.18 percent to companies that are part thereof, finished and unfinished, from we received case briefs from the Timken of the PRC-entity. the People’s Republic of China, were Company (‘‘the petitioner’’), CPZ, and Analysis of Comments Received made below normal value during the Yantai Timken. On March 24, 2003, the period June 1, 2001, through May 31, Timken Company and Yantai Timken All issues raised in the case and 2002. We are also rescinding the review, submitted rebuttal briefs. rebuttal briefs by parties to this review in part, in accordance with 19 CFR § The Department has conducted this are addressed in the ‘‘Issues and 351.213(d)(3). administrative review in accordance Decision Memorandum’’ from Jeffrey Based on our review of comments with section 751 of the Tariff Act of May, Deputy Assistant Secretary, Import received and a reexamination of 1930, as amended (‘‘the Act’’). Administration, to James J. Jochum, Assistant Secretary, Import surrogate value data, we have made Scope of Review certain changes in the margin Administration, dated December 11, calculations of all of the reviewed Merchandise covered by this review is 2003 (‘‘Decision Memorandum’’), which companies. Consequently, the final TRBs from the PRC; flange, take up is hereby adopted by this notice. results differ from the preliminary cartridge, and hanger units Attached to this notice as an Appendix results. The final weighted-average incorporating tapered roller bearings; is a list of the issues that parties have dumping margins for these firms are and tapered roller housings (except raised and to which we have responded listed below in the section entitled pillow blocks) incorporating tapered in the Decision Memorandum. Parties ‘‘Final Results of the Review.’’ Based on rollers, with or without spindles, can find a complete discussion of all these final results of review, we will whether or not for automotive use. This issues raised in this investigation and instruct the U.S. Customs and Border merchandise is currently classifiable the corresponding recommendations in Protection to assess antidumping duties under the Harmonized Tariff Schedule this public memorandum, which is on based on the difference between the of the United States (‘‘HTSUS’’) item file in the Department’s Central Records export price and normal value on all numbers 8482.20.00, 8482.91.00.50, Unit, located in Room B-099 of the main appropriate entries. 8482.99.30, 8483.20.40, 8483.20.80, Department building (‘‘CRU’’). In 8483.30.80, 8483.90.20, 8483.90.30, EFFECTIVE DATE: December 18, 2003. addition, a complete version of the 8483.90.80, 8708.99.80.15, and Decision Memorandum can be accessed FOR FURTHER INFORMATION CONTACT: S. 8708.99.80.80. Although the HTSUS directly on the Internet at http:// Anthony Grasso or Andrew R. Smith, item numbers are provided for ia.ita.doc.gov/frn/ under the heading Group 1, Office I, Antidumping/ convenience and customs purposes, the ‘‘China PRC.’’ The paper copy and Countervailing Duty Enforcement, written description of the scope of the electronic version of the Decision Import Administration, International order and this review is dispositive. Memorandum are identical in content. Trade Administration, U.S. Department of Commerce, 14th Street and Rescission of Review in Part Changes Since the Preliminary Results Constitution Avenue NW, Washington, As noted in the Preliminary Results, Based on our review of comments DC 20230; telephone (202) 482–3853 or on September 10, 2002, Hailin, received and a reexamination of (202) 482–1276, respectively. Wanxiang, Luoyang, Liaoning, and CMC surrogate value data, we have made SUPPLEMENTARY INFORMATION: withdrew their requests for review. The certain changes to the calculations for

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the final results. These changes are Assessment Rates These deposit rates shall remain in discussed in the following Comments in In accordance with 19 CFR § effect until publication of the final the Decision Memorandum or in the 351.212(b)(1), we have calculated results of the next administrative referenced final calculation memoranda importer (or customer)-specific review. for particular companies: assessment rates for the merchandise Notification to Importers subject to this review. To determine All Companies This notice also serves as a final whether the duty assessment rates were Certain adjustments were made to the reminder to importers of their de minimis, in accordance with the overhead, SG&A, and profit ratios. See responsibility under 19 CFR § 351.402(f) requirement set forth in 19 CFR § Decision Memorandum at Comment 5. to file a certificate regarding the 351.106(c)(2), we calculated importer reimbursement of antidumping duties CPZ (or customer)-specific ad valorem rates prior to liquidation of the relevant by aggregating the dumping margins In the Preliminary Results we used entries during this review period. calculated for all U.S. sales to that data on Japanese exports to India to Failure to comply with this requirement importer (or customer) and dividing this value the hot-rolled alloy steel used by could result in the Secretary’s amount by the total value of the sales to CPZ to manufacture the subject presumption that reimbursement of that importer (or customer). Where an merchandise. For these final results, we antidumping duties occurred and the importer (or customer)-specific ad revised this surrogate value. Instead, we subsequent assessment of doubled valorem rate was greater than de relied on data for Japanese exports to antidumping duties. Indonesia to value the hot-rolled alloy minimis, we calculated a per unit steel used to manufacture the subject assessment rate by aggregating the Notification Regarding APOs merchandise. See Decision dumping margins calculated for all U.S. This notice also serves as a reminder Memorandum at Comment 3 and the sales to that importer (or customer) and to parties subject to administrative Memorandum from Team to Susan dividing this amount by the total protective orders (‘‘APO’’) of their Kuhbach: ‘‘Factors of Production Values quantity sold to that importer (or responsibility concerning the return or Used for the Final Results,’’ dated customer). Where an importer (or destruction of proprietary information December 11, 2003. customer )-specific ad valorem rate was disclosed under APO in accordance de minimis, we will order the Customs with 19 CFR § 351.305, which continues Yantai Timken Service to liquidate without regard to to govern business proprietary We revised Yantai Timken’s final antidumping duties. information in this segment of the results calculations to correct several All other entries of the subject proceeding. Timely written notification minor reporting and clerical errors merchandise during the POR will be of the return/destruction of APO noted by Yantai Timken in its case brief. liquidated at the antidumping duty rate materials or conversion to judicial See Memorandum from Case Analyst to in place at the time of entry. protective order is hereby requested. File, ‘‘Final Results Calculation The Department will issue Failure to comply with the regulations Memorandum for Yantai Timken appropriate assessment instructions and terms of an APO is a violation Company, Ltd.’’ (‘‘Yantai Timken’s Calc directly to U.S. Customs and Border which is subject to sanction. Memo’’), dated December 11, 2003, Protection (‘‘CBP’’) within 15 days of We are issuing and publishing this which is on file in the Department’s publication of these final results of determination and notice in accordance CRU. review. with sections section 751(a)(1) and As noted in the Preliminary Results, Cash Deposit Requirements 771(i) of the Act. and consistent with our treatment of Dated: December 11, 2003. subsidized inputs in TRBs XIV, TRBs The following cash deposit rates will James J. Jochum, XIII, and TRBs XII, we do not use the be effective upon publication of these prices paid by PRC producers of TRBs final results for all shipments of TRBs Assistant Secretary for Import Administration. for inputs that we have a reason to from the PRC entered, or withdrawn believe or suspect are subsidized. from warehouse, for consumption on or Appendix Accordingly, for a particular input that after the publication date of this notice, List of Comments and Issues in the Yantai Timken purchased from a market as provided for by section 751(a)(1) of Decision Memorandum economy country, for these final results, the Act: (1) the cash deposit rates for the we have used a surrogate value instead reviewed companies will be the rates Comment 1: Peer Bearing Company - of the market price paid by Yantai shown above except that, for firms Changshan’s (‘‘CPZ’’) Market Economy Timken and used in the Preliminary whose weighted-average margins are Steel Results. (See Yantai Timken’s Calc less than 0.5%, and therefore, de Comment 2: Valuing the Steel Input Memo for a more detailed discussion of minimis, the Department shall require Used by CPZ to Manufacture Cups and this issue.) no deposit of estimated antidumping Cones duties; (2) for a company previously Comment 3: Cups and Cones Surrogate Final Results of Review found to be entitled to a separate rate Value: Japanese Exports to India Versus We determine that the following and for which no review was requested, to Indonesia dumping margins exist for the period the cash deposit rate will be the rate Comment 4: Correct the Surrogate Value June 1, 2000, through May 31, 2001: established in the most recent review of Calculated Using Japanese Exports to that company; (3) for all other PRC India exporters of subject merchandise, the Comment 5: Financial Ratios: HMT’s Exporter/manufacturer Weighted-average margin percentage rate will be the PRC country-wide rate, Financial Records and Calculate Using a which is 33.18 percent; and (4) for non- Simple Average Peer Bearing Company PRC exporters of subject merchandise Comment 6: Discontinue Excluding - Changshan ...... 0.00 from the PRC, the cash deposit rate will Yantai Timken Co., Ltd. 18.75 Negative Dumping Margins PRC-wide rate ...... 33.18 be the rate applicable to the PRC Comment 7: Amelioration of the exporter that supplied that exporter. Anomalous Situation Arising from the

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Petitioner Owning 100% of Yantai 3. Technology Rights foreign distributor, and that the foreign Timken Proprietary rights to all technology distributor may agree to represent only Comment 8: Yantai Timken Reported associated with Products or Services, WFE and/or one or more Members in Steel Values Clerical Error including, but not limited to: patents, the Export Markets and none of its Comment 9: Yantai Timken Packing trademarks, service marks, trade names, competitors); Values Clerical Error copyrights, trade secrets, know-how. 4. Design develop and market generic Comment 10: Yantai Timken Part- corporate labels for use in Export Specific Costs 4. Export Trade Facilitation Services (as Markets; [FR Doc. 03–31223 Filed 12–17–03; 8:45 am] They Relate to the Export of Products, 5. Engage in joint promotional BILLING CODE 3510–DS–S Services and Technology Rights) activities directly targeted at developing All export trade-related facilitation Export Markets, such as: arranging trade services, including, but not limited to: shows and marketing trips; providing DEPARTMENT OF COMMERCE Consulting and trade strategy; sales and advertising services; providing marketing; export brokerage; foreign brochures and industry newsletters; International Trade Administration marketing research; foreign market providing product, service, and industry development; overseas advertising and information; conducting international Export Trade Certificate of Review promotion; product research and design market and product research; and procuring, international marketing, ACTION: Notice of issuance of an Export based on foreign buyer and consumer Trade Certificate of Review, Application preferences; communication and advertising, and promotional services; 6. Share the cost of joint promotional No. 03–00006. processing of export orders; inspection and quality control; transportation; activities among the Members; SUMMARY: The Department of Commerce freight forwarding and trade 7. Conduct product and packaging has issued an Export Trade Certificate of documentation; insurance; billing of research and development exclusively Review to Western Fruit Exporters, LLC foreign buyers; collection (letters of for export in order to meet foreign (‘‘WFE’’). This notice summarizes the credit and other financial instruments); regulatory requirements, foreign buyer conduct for which certification has been provision of overseas sales and specifications, and foreign consumer granted. distribution facilities and overseas sales preferences; 8. Negotiate and enter into agreements FOR FURTHER INFORMATION CONTACT: staff, legal, accounting and tax with governments and other foreign Jeffrey C. Anspacher, Director, Office of assistance; management information persons regarding non-tariff trade Export Trading Company Affairs, systems development and application; barriers in Export Markets such as International Trade Administration, by assistance and administration related to packaging requirements, and providing telephone at (202) 482–5131 (this is not participation in government export specialized packing operations and a toll-free number), or by e-mail at assistance programs. other quality control procedures to be [email protected]. II. Export Markets followed by WFE and Members in the SUPPLEMENTARY INFORMATION: Title III of The Export Markets include all parts export of Products into the Export the Export Trading Company Act of of the world except the United States Markets; 1982 (15 U.S.C. 4001–21) authorizes the (the fifty states of the United States, the 9. Assist each other in maintaining Secretary of Commerce to issue Export District of Columbia, the the quality standards necessary to be Trade Certificates of Review. The Commonwealth of Puerto Rico, the successful in the Export Markets; regulations implementing Title III are Virgin Islands, American Samoa, Guam, 10. Provide Export Trade Facilitation found at 15 CFR part 325 (2003). the Commonwealth of the Northern Services with respect to Products, The Office of Export Trading Mariana Islands, and the Trust Territory Services and Technology (including Company Affairs (‘‘OETCA’’) is issuing of the Pacific Islands). such items as commodity fumigation, this notice pursuant to 15 CFR 325.6(b), refrigeration and storage techniques, which requires the Department of III. Export Trade Activities and and other quality control procedures to Commerce to publish a summary of the Methods of Operation be followed in the export of Products in Certificate in the Federal Register. In connection with the promotion and Export Markets; Under section 305(a) of the Act and 15 sale of Members’ Products, Services, 11. Advise and cooperate with CFR 325.11(a), any person aggrieved by and/or Technology Rights into the agencies of the United States the Secretary’s determination may, Export Markets, WFE and/or one or government in establishing procedures within 30 days of the date of this notice, more of its Members may: regulating the export of the Members’ bring an action in any appropriate 1. Design and execute foreign Products, Services and/or Technology district court of the United States to set marketing strategies for its Export Rights in Export Markets; aside the determination on the ground Markets; 12. Negotiate and enter into purchase that the determination is erroneous. 2. Prepare joint bids, establish export agreements with buyers in Export prices for Members’ Products and Markets regarding export prices, Description of Certified Conduct Services, and establish terms of sale in quantities, type and quality of Products, I. Export Trade Export Markets in connection with time periods, and the terms and potential or actual bona fide conditions of sale; 1. Products opportunities; 13. Broker or take title to Products Brine sweet cherries in any stage of 3. Grant sales and distribution rights intended for Export Markets; processing and finished maraschino for the Products, whether or not 14. Purchase Products from non- cherry products in any stage of exclusive, into designated Export Members to fulfill specific sales packaging. Markets to foreign agents or importers obligations, provided that WFE and/or (‘‘exclusive’’ meaning that WFE and/or one or more Members shall make such 2. Services one or more Members may agree not to purchases only on a transaction-by- Inspection, quality control, marketing sell the Products into the designated transaction basis and when the and promotional services. Export Markets through any other purchasing Members are unable to

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supply, in a timely manner, the dates of Products available from WFE disclosure is limited to the prospective requisite Products at a price competitive and its Members for export; purchasing Member. under the circumstances; (c) Information about terms and 2. Each Member shall determine 15. Solicit non-Member producers to conditions of contracts for sales in independently of WFE and each other become Members; Export Markets to be considered and/or the quantity of Products each will make 16. Communicate and process export bid on by WFE and/or Members; available for export or sell through WFE. orders; (d) Information about joint bidding WFE may not require any Member to 17. Procure, negotiate, contract, and opportunities; accept any offer for sale or require any administer transportation services for (e) Information about methods by Member to export any minimum Products in the course of export, which export sales are to be allocated quantity of Products. including overseas freight among WFE and/or Members; 3. Any agreements, discussions, or transportation, inland freight (f) Information about expenses exchanges of information under this transportation from the packing house specific to exporting to and within Certificate relating to quantities of to the U.S. port of embarkment, leasing Export Markets, including Products available for Export Markets, of transportation equipment and transportation, transshipments, inter- product specifications or standards, facilities, storing and warehousing, modal shipments, insurance, inland export prices, product quality or other stevedoring, wharfage and handling, freight to port, port storage, terms and conditions of export sales insurance, and freight forwarder commissions, export sales, (other than export financing) shall be in services; documentation, financing and customs connection only with actual or potential 18. Arrange for trade documentation duties or taxes; bona fide export transactions or and services, customs clearance, (g) Information about U.S. and foreign opportunities and shall include only financial instruments, and foreign legislation and regulations, including those Members participating or having a exchange; federal marketing order programs that genuine interest in participating in such 19. Arrange financing through private may affect sales to Export Markets; transactions or opportunities, provided financial entities, government financial (h) Information about WFE’s or that WFE and/or the Members may assistance and incentive programs and Members’ export operations, including discuss standardization of Products and other arrangements; sales and distribution networks Services for purposes of making bona 20. Bill and collect monies from established by WFE or Members in fide recommendations to foreign foreign buyers, and arrange for or Export Markets, and prior export sales governmental or private standard setting provide accounting, tax, legal and by Members, including export price organizations. consulting services in relation to Export information; and 4. Meetings at which WFE and Trade Activities and Methods of (i) Information about claims or bad Members allocate export sales and Operation; debts by WFE’s or Members’ customers establish export prices shall not be open 21. Enter into exclusive agreements in Export Markets. to the public. with non-Members to provide Export 5. Participation by WFE and/or Trade Services and Export Trade IV. Definitions Members in any Export Trade Activity Facilitation Services; ‘‘Export Intermediary’’ means a or Method of Operation under this 22. Open and operate overseas sales person who acts as distributor, sales Certificate shall be entirely voluntary as and distribution offices and companies representative, sales or marketing agent, to WFE and/or the Members, subject to to facilitate the sales and distribution of or broker, or who performs similar the honoring of contractual Products in the Export Markets; functions, including providing, or commitments for sales of Products, 23. Negotiate and enter into arranging for the provision of, Export Services or Technology Rights in agreements with governments and Trade Facilitation Services. specific export transactions. A Member foreign persons to develop countertrade may withdraw from coverage under this V. Members (Within the Meaning of arrangements, provided that this Certificate at any time by giving written Section 325.2(l) of the Regulations) Certificate does not protect any conduct notice to WFE, a copy of which WFE related to the sale of goods in the United Eola Cherry Company, Inc., Gervais, shall promptly transmit to the Secretary States that are imported as part of any Oregon; Diana Fruit Co., Inc., Santa of Commerce and the Attorney General. countertrade transactions; Clara, California; Johnson Foods Co., 6. WFE and the Members will comply 24. Refuse to deal with or provide Inc., Sunnyside, Washington; and with requests made by the Secretary of quotations to other Export Oregon Cherry Growers, Inc., Salem, Commerce on behalf of the Secretary or Intermediaries for sales of Members’ Oregon. the Attorney General for information or documents relevant to conduct under Products into Export Markets; VI. Terms and Conditions of Certificate 25. Require common marking and the Certificate. The Secretary of identification of Members’ Products 1. Neither WFE nor any Member shall Commerce will request such sold in Export Markets; intentionally disclose, directly or information or documents when either 26. Exchange information as indirectly, to any other Member any the Attorney General or the Secretary necessary to carry out Export Trade information about its or any other believes that the information or Activities and Methods of Operation, Member’s costs, production, capacity, documents are required to determine including: inventories, domestic prices, domestic that the Export Trade, Export Trade (a) Information about sales, marketing sales, terms of domestic marketing or Activities and Methods of Operation of efforts, and sales strategies in Export sale, or U.S. business plans, strategies, a person protected by this Certificate of Markets, including pricing; projected or methods, unless (1) such information Review continue to comply with the demand in Export Markets for Products; is already generally available to the standards of section 303(a) of the Act. customary terms of sale; and foreign trade or public; or (2) the information buyer and consumer product disclosed is a necessary term or VII. Protection Provided by Certificate specifications; condition (e.g., price, time required to This Certificate protects WFE and its (b) Information about the price, fill an order, etc.) of an actual or directors, officers, and employees acting quality, quantity, source and delivery potential bona fide sale and the on its behalf, as well as its Members,

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and their directors, officers, and Dated: December 15, 2003. the Secretary of Commerce to allocate employees acting on their behalf, from Jeffrey C. Anspacher, the quantity of worsted wool fabric private treble damage actions and Director, Office of Export Trading Company imports under the tariff rate quotas. On governmental criminal and civil suits Affairs. January 22, 2001, the Department under U.S. Federal and state antitrust [FR Doc. 03–31323 Filed 12–17–03; 8:45 am] published regulations establishing laws for the export conduct specified in BILLING CODE 3510–DR–P procedures for applying for, and the Certificate and carried out during its determining, such allocations. 66 FR effective period in compliance with its 6459, 15 CFR 335. terms and conditions. DEPARTMENT OF COMMERCE On August 28, 2003, the Department published a notice in the Federal VIII. Effective Period of Certificate International Trade Administration Register (68 FR 51767) soliciting applications for an allocation of the This Certificate continues in effect Notice of Allocation of Tariff Rate 2004 tariff rate quotas with a closing from the effective date indicated below Quotas on the Import of Certain date of September 29, 2003. The until it is relinquished, modified or Worsted Wool Fabrics for Calendar Department received timely revoked as provided in the Act and the Year 2004 applications for the HTS 9902.51.11 Regulations. December 12, 2003. tariff rate quota from 13 firms. The IX. Other Conduct AGENCY: Department of Commerce, Department received timely International Trade Administration. applications for the HTS 9902.51.12 Nothing in this Certificate prohibits tariff rate quota from 14 firms. All ACTION: Notice of allocation of 2004 applicants were determined eligible for WFE and its Members from engaging in worsted wool fabric tariff rate quota. conduct not specified in this Certificate, an allocation. Most applicants but such conduct is subject to the SUMMARY: The Department of Commerce submitted data on a business normal application of the antitrust laws. (Department) has determined the confidential basis. As allocations to allocation for Calendar Year 2004 of firms were determined on the basis of X. Disclaimer imports of certain worsted wool fabrics this data, the Department considers individual firm allocations to be The issuance of this Certificate of under tariff rate quotas established by business confidential. Review to WFE by the Secretary of Title V of the Trade and Development Commerce with the concurrence of the Act of 2000 as amended by the Trade FIRMS THAT RECEIVED Attorney General under the provisions Act of 2002. The companies that are ALLOCATIONS: of the Act does not constitute, explicitly being provided an allocation are listed below. HTS 9902.51.11, fabrics, of worsted or implicitly, an endorsement or wool, with average fiber diameter FOR FURTHER INFORMATION CONTACT: opinion by the Secretary of Commerce greater than 18.5 micron, certified by Sergio Botero, Office of Textiles and or the Attorney General concerning the importer as suitable for use in Apparel, U.S. Department of Commerce, either (a) the viability or quality of the making suits, suit-type jackets, or (202) 482-4058. business plans of WFE or its Members trousers (provided for in subheading or (b) the legality of such business plans SUPPLEMENTARY INFORMATION: 5112.11.60 and 5112.19.95). Amount of WFE or its Members under the laws BACKGROUND: allocated: 4,500,000 square meters. of the United States (other than as Title V of the Trade and Development provided in the Act) or under the laws Companies Receiving Allocation: Act of 2000 (The Act) as amended by Bowdon Manufacturing Co., Inc--Bowdon, GA of any foreign country. the Trade Act of 2002 creates two tariff Calvin Clothing Company, Inc.--Scranton, PA The application of this Certificate to rate quotas, providing for temporary Hartmarx Corporation--Chicago, IL Hartz & Company, Inc.--Frederick, MD conduct in Export Trade where the reductions in the import duties on two Hugo Boss Cleveland, Inc-Brooklyn, OH United States government is the buyer categories of worsted wool fabrics JA Apparel Corp.--New York, NY or where the United States Government suitable for use in making suits, suit- John H. Daniel Co.--Knoxville, TN bears more than half the cost of the type jackets, or trousers. For worsted Majer Brands Company, Inc.-Hanover, PA Saint Laurie Ltd--New York, NY transaction is subject to the limitations wool fabric with average fiber diameters Sewell Clothing Company, Inc.--Bremen, GA set forth in Section V(D) of the greater than 18.5 microns (Harmonized Southwick Clothing L.L.C.--Lawrence, MA ‘‘Guidelines for the Issuance of Export Tariff Schedule of the United States Toluca Garment Company-Toluca, IL Trade Certificates of Review (Second (HTS) heading 9902.51.11), the The Tom James Co.--Franklin, TN Edition),’’ 50 FR 1786 (January 11, 1985) reduction in duty is limited to 4,500,000 HTS 9902.51.12, fabrics, of worsted (‘‘Guidelines’’). square meters per year. For worsted wool, with average fiber diameter of 18.5 micron or less, certified by the In accordance with the authority wool fabric with average fiber diameters of 18.5 microns or less (HTS heading importer as suitable for use in making granted under the Act and Regulations, 9902.51.12), the reduction is limited to suits, suit-type jackets, or trousers this Export Trade Certificate of Review 3,500,000 square meters per year. The (provided for in subheading 5112.11.30 is hereby granted to Western Fruit Act requires the President to ensure that and 5112.19.60). Amount allocated: Exporters, L.L.C. such fabrics are fairly allocated to 3,500,000 square meters. The effective date of the Certificate is persons (including firms, corporations, December 8, 2003. A copy of this or other legal entities) who cut and sew Companies Receiving Allocation: certificate will be kept in the men’s and boys’ worsted wool suits and American Fashion, Inc.--Chula Vista, CA Retail Brand Alliance, Inc. d/b/a Brooks Brothers-- International Trade Administration’s suit-like jackets and trousers in the New York, NY Freedom of Information Records United States and who apply for an Hartmarx Corporation--Chicago, IL Inspection Facility Room 4102, U.S. allocation based on the amount of such Hartz & Company, Inc.--Frederick, MD Department of Commerce, 14th Street Hugo Boss Cleveland, Inc.-Brooklyn, OH suits cut and sewn during the prior JA Apparel Corp.--New York, NY and Constitution Avenue, NW., calendar year. Presidential Proclamation John H. Daniel Co.--Knoxville, TN Washington, DC 20230. 7383, of December 1, 2000, authorized Majer Brands Company, Inc.-Hanover, PA

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Martin Greenfield--Brooklyn, NY photography for educational or Dated: December 11, 2003. Saint Laurie Ltd--New York, NY Sewell Clothing Company, Inc.--Bremen, GA commercial purposes involving marine Stephen L. Leathery, Southwick Clothing L.L.C.--Lawrence, MA mammals in the wild not listed as Chief, Permits, Conservation and Education Toluca Garment Compan-Toluca, IL endangered or threatened. NMFS is Division, Office of Protected Resources, The Tom James Co.--Franklin, TN currently working on proposed National Marine Fisheries Service. regulations to implement this provision. [FR Doc. 03–31227 Filed 12–17–03; 8:45 am] Dated: December 12, 2003. However, in the meantime, NMFS has BILLING CODE 3510–22–S James C. Leonard III, received and is processing this request Deputy Assistant Secretary for Textiles, as a ‘‘pilot’’ application for Level B Apparel and Consumer Goods Industries, DEPARTMENT OF COMMERCE Department of Commerce. Harassment of non-listed marine mammals for photographic purposes. [FR Doc. E3–00584 Filed 12–17–03; 8:45 am] National Oceanic and Atmospheric BILLING CODE 3510–DR–S The applicant proposes to take by Administration harassment up to 2000 northern fur seals each year during ground and [I.D. 103103A] DEPARTMENT OF COMMERCE underwater filming activities. The purpose of the proposed project is to Marine Mammals; File Nos. 704–1698 National Oceanic and Atmospheric collect high-definition digital media of and 1044–1706 Administration contemporary norther fur seals on the AGENCY: National Marine Fisheries [I.D. 103003D] Pribilof Islands, particularly breeding Service (NMFS), National Oceanic and and territorial behaviors in a natural Atmospheric Administration (NOAA), Marine Mammals; Photography Permit setting on rookeries and haulout areas Commerce. Application No. 1050–1727–00 for public television documentary ACTION: Issuance of permits. series. The documentary series will AGENCY: National Marine Fisheries combine footage of northern fur seals SUMMARY: Notice is hereby given that Service (NMFS), National Oceanic and with original research, photographs and the following applicants have been Atmospheric Administration (NOAA), other documents about the history of issued permits to take marine mammals Commerce. commercial fur sealing on the Pribilofs parts from species of marine mammals ACTION: Receipt of application. with emphasis on key historical figures. under NMFS jurisdiction for purposes SUMMARY: Notice is hereby given that The action area is the Pribilof Islands, of scientific research: (1) The University the NOAA Pribilof Islands Restoration including St. George, St. Paul, Walrus of Alaska Museum, 907 Yukon Drive, Project Office, National Ocean Service, and Otter Islands and Sea Lion Rock. P.O. Box 756960, Fairbanks, AK 99775 7600 Sand Point Way, Seattle, WA The Permit would expire 2 years after (Dr. Gordon Jarrell, Principal 98115 [Principal Investigator: John the date of issuance. Investigator (PI)); and (2) The Alaska Lindsay] has applied in due form for a In compliance with the National Sea Otter and Steller Sea Lion permit to take Northern fur seal seals Environmental Policy Act of 1969 (42 Commission (TASSC), 6239 B Street, (Callorhinus ursinus) for purposes of U.S.C. 4321 et seq.), an initial Suite 204, Anchorage, AK 99518 (Dr. commercial/educational photography. determination has been made that the Dolly Garza, PI). DATES: Written or telefaxed comments activity proposed is categorically ADDRESSES: The permits and related must be received on or before January excluded from the requirement to documents are available for review 20, 2004. prepare an environmental assessment or upon written request or by appointment ADDRESSES: The application and related environmental impact statement. in the following office(s): Permits, Conservation and Education documents are available for review Written comments or requests for a Division, Office of Protected Resources, upon written request or by appointment public hearing on this application in the following office(s): NMFS, 1315 East-West Highway, Room should be mailed to the Chief, Permits, 13705, Silver Spring, MD 20910; phone Permits, Conservation and Education Conservation and Education Division, Division, Office of Protected Resources, (301)713–2289; fax (301)713–0376; and F/PR1, Office of Protected Resources, Alaska Region, NMFS, P.O. Box NMFS, 1315 East-West Highway, Room NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone 21668, Juneau, AK 99802–1668; phone 13705, Silver Spring, MD 20910. Those (907)586–7221; fax (907)586–7249. (301)713–2289; fax (301)713–0376; and individuals requesting a hearing should FOR FURTHER INFORMATION CONTACT: Northwest Region, NMFS, 7600 Sand set forth the specific reasons why a Point Way NE, BIN C15700, Bldg. 1, hearing on this particular request would Ruth Johnson or Amy Sloan, (301)713– Seattle, WA 98115–0700; phone be appropriate. 2289. (206)526–6150; fax (206)526–6426; and, SUPPLEMENTARY INFORMATION: On Alaska Region, NMFS, P.O. Box Comments may also be submitted by September 8, 2003, notice was 21668, Juneau, AK 99802–1668; phone facsimile to (301) 713–0376, provided published in the Federal Register (68 (907)586–7221; fax (907)586–7249. the facsimile is confirmed by hard copy FR 52905) that requests for scientific FOR FURTHER INFORMATION CONTACT: submitted by mail and postmarked no research permits to take marine Ruth Johnson or Jennifer Jefferies later than the closing date of the mammal parts had been submitted by (301)713–2289. comment period. Please note that the above-named organizations. The SUPPLEMENTARY INFORMATION: The comments will not be accepted by e- requested permits have been issued subject permit is requested under the mail or by other electronic media. under the authority of the Marine authority of section 104(c)(6) of the Concurrent with the publication of Mammal Protection Act of 1972, as Marine Mammal Protection Act of 1972, this notice in the Federal Register, amended (16 U.S.C. 1361 et seq.), the as amended (16 U.S.C. 1361 et seq.), the NMFS is forwarding copies of this Regulations Governing the Taking and Regulations Governing the Taking and application to the Marine Mammal Importing of Marine Mammals (50 CFR Importing of Marine Mammals (50 CFR Commission and its Committee of part 216), the Endangered Species Act of part 216). Section 104(c)(6) provides for Scientific Advisors. 1973, as amended (ESA; 16 U.S.C. 1531

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et seq.), the regulations governing the ACTION: Issuing a directive to the warehouse for consumption of textiles and taking, importing, and exporting of Commissioner, Bureau of Customs and textile products in the following categories, endangered and threatened species (50 Border Protection establishing limits. produced or manufactured in Belarus and exported during the twelve-month period CFR parts 222–226), and the Fur Seal beginning on January 1, 2004 and extending EFFECTIVE DATE: January 1, 2004. Act of 1966, as amended (16 U.S.C. 1151 through December 31, 2004: et seq.). FOR FURTHER INFORMATION CONTACT: Naomi Freeman, International Trade File No. 704–1698: The University of Category Twelve-month restraint Alaska Museum is authorized to take, Specialist, Office of Textiles and limit Apparel, U.S. Department of Commerce, import and export specimen samples 622 ...... 9,646,000 square me- (whole carcasses; hard and soft parts) (202) 482-4212. For information on the quota status of these limits, refer to the ters of which not from all marine mammal species more than 1,590,000 (pinnipeds and cetaceans) under NMFS Quota Status Reports posted on the square meters shall jurisdiction. The objective of this permit bulletin boards of each Customs port, be in Category 622- is to archive specimens for future bona call (202) 927-5850, or refer to the L 1. fide research at the University of Alaska Bureau of Customs and Border 435 ...... 67,320 dozen. and other institutions in the U.S. and Protection Web site at http:// 448 ...... 34,680 dozen. world-wide. www.customs.gov. For information on 1 Category 622-L: only HTS numbers embargoes and quota re-openings, refer 7019.51.9010, 7019.52.4010, 7019.52.9010, File No. 1044–1706: TASSC is to the Office of Textiles and Apparel 7019.59.4010, and 7019.59.9010. authorized to take, import and export Web site at http://otexa.ita.doc.gov. parts and tissues from marine mammals Products in the above categories exported SUPPLEMENTARY INFORMATION: taken from legally subsistence hunted during 2003 shall be charged to the applicable category limit and sublimit for Steller sea lions and other species. The Authority: Section 204 of the Agricultural Act of 1956, as amended (7 U.S.C. 1854); that year (see directive dated January 21, objectives of this research are to 2003) to the extent of any unfilled balance. promote Alaska Native participation in Executive Order 11651 of March 3, 1972, as amended. In the event the limit and sublimit Steller sea lion conservation and The Bilateral Textile Memorandum of established for that period have been exhausted by previous entries, such products management; assess the health and Understanding dated January 10, 2003 condition of Steller sea lions through shall be charged to the limit and sublimit set between the Governments of the United forth in this directive. biological data and tissue collection; States and Belarus establishes limits for educate and inform the public on the The limits set forth above are subject to the period January 1, 2004 through adjustment pursuant to the current bilateral traditional and contemporary December 31, 2004. agreement between the Governments of the relationship between the Steller sea lion These limits may be revised if Belarus United States and Belarus. and Alaska Natives; and work with becomes a member of the World Trade This limits may be revised if Belarus regulatory agencies toward the common Organization (WTO) and the United becomes a member of the World Trade goal of enhancing and protecting States applies the WTO agreement to Organization (WTO) and the United States healthy Steller sea lion populations. applies the WTO agreement to Belarus. Belarus. In carrying out the above directions, the Issuance of these permits, as required In the letter published below, the Commissioner, Bureau of Customs and by the ESA, was based on a finding that Chairman of CITA directs the Border Protection should construe entry into such permits (1) were applied for in Commissioner, Bureau of Customs and the United States for consumption to include good faith, (2) will not operate to the Border Protection to establish the limits. entry for consumption into the disadvantage of the endangered species A description of the textile and Commonwealth of Puerto Rico. which is the subject of these permits, apparel categories in terms of HTS The Committee for the Implementation of and (3) are consistent with the purposes numbers is available in the Textile Agreements has determined that this CORRELATION: Textile and Apparel action falls within the foreign affairs and policies set forth in section 2 of the exception of the rulemaking provisions of 5 ESA. Categories with the Harmonized Tariff U.S.C. 553(a)(1). Dated: December 12, 2003. Schedule of the United States (see Sincerely, Federal Register notice 68 FR 1599, Stephen L. Leathery, James C. Leonard III, published on January 13, 2003). Chairman, Committee for the Implementation Chief, Permits, Conservation and Education Information regarding the availability of of Textile Agreements. Division, Office of Protected Resources, National Marine Fisheries Service. the 2004 CORRELATION will be [FR Doc. E3–00585 Filed 12–17–03; 8:45 am] published in the Federal Register at a [FR Doc. 03–31228 Filed 12–17–03; 8:45 am] BILLING CODE 3510–DR–S later date. BILLING CODE 3510–22–S James C. Leonard III, COMMODITY FUTURES TRADING Chairman, Committee for the Implementation of Textile Agreements. COMMISSION COMMITTEE FOR THE Committee for the Implementation of Textile In the Matter of Intermarket Clearing IMPLEMENTATION OF TEXTILE Agreements Corporation—Request for Vacation AGREEMENTS December 12, 2003. From Designation as Derivatives Establishment of Import Limits for Commissioner, Clearing Organization Bureau of Customs and Border Protection, Certain Wool and Man-Made Fiber AGENCY: Commodity Futures Trading Washington, DC 20229. Textile Products Produced or Commission. Manufactured in Belarus Dear Commissioner: Pursuant to section 204 of the Agricultural Act of 1956, as ACTION: Proposed order. December 12, 2003. amended (7 U.S.C. 1854); Executive Order 11651 of March 3, 1972, as amended; you are SUMMARY: In response to a request by the AGENCY: Committee for the directed to prohibit, effective on January 1, Intermarket Clearing Corporation Implementation of Textile Agreements 2004, entry into the United States for (‘‘ICC’’), the Commodity Futures (CITA). consumption and withdrawal from Trading Commission (‘‘Commission’’ or

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‘‘CFTC’’) is proposing to issue an order submitted a request for the vacation of determines that the exemption would be vacating ICC’s designation as a registration.4 The ICC is a registered consistent with the public interest.’’ 5 Derivatives Clearing Organization DCO under section 5b(d) of the Act and As explained above, the ICC has not (‘‘DCO’’). thus a registered entity as defined in operated as a clearing entity in a ADDRESSES: Interested persons should section 1a(29)(C) of the Act. The ICC is number of years. The merger of ICC into submit their views and comments to a wholly owned subsidiary of The OCC will allow the OCC to streamline Jean A. Webb, Secretary, Commodity Options Clearing Corporation (‘‘OCC’’), its operations. The Commission believes Futures Trading Commission, Three another registered DCO. For the past that exempting ICC from the 90-day Lafayette Centre, 1155 21st Street, NW., several years, ICC has not engaged in requirement of section 7 is consistent Washington, DC 20581. In addition, any clearing activities, and thus the with the public interest, is consistent comments may be sent by facsimile OCC wishes to merge the ICC into the with the purposes of the Act and would transmission to facsimile number (202) OCC. At the completion of the merger, have no adverse effect on the ability of 418–5521, or by electronic mail to ICC will cease to exist as a corporate OCC to fulfill its self-regulatory [email protected]. Reference should be entity. Therefore, the ICC requests that responsibilities imposed by the Act. made to ‘‘ICC’’. the Commission vacate the registration III. Conclusion DATES: Comments must be received by of ICC as a DCO. December 23, 2003. After consideration of the ICC request, Section 7 of the Act allows ‘‘any FOR FURTHER INFORMATION CONTACT: R. the Commission is proposing to exempt Trabue Bland, Attorney, Division of person that has been designated or ICC from the 90-day notice requirement Clearing and Intermediary Oversight, registered as a registered entity in the of section 7 of the Act. Furthermore, the Commodity Futures Trading manner herein provided may have such Commission proposes to vacate the Commission, Three Lafayette Centre, designation or registration vacated and Intermarket Clearing Corporation’s 1155 21st Street, NW., Washington, DC set aside by giving notice to the registration as a derivatives clearing 20581. Telephone: (202) 418–5430. E- Commission requesting that its organization upon completion of the mail: [email protected]. designation or registration as a merger between ICC and OCC. SUPPLEMENTARY INFORMATION: registered entity be vacated, which The Commission specifically invites notice shall be served at least ninety comment on whether it should vacate I. Statutory Background days prior to the date named therein as the registration of ICC and whether the Section 5b(d) of the Commodity the date when vacation of designation or Commission should exempt ICC from Exchange Act 1 provides that DCOs that registration shall take effect.’’ ICC the 90-day notice requirement of section clear contracts for boards of trade served notice to the Commission on 7. In addition to issues specified above, designated by the Commission as November 17, 2003. However, the the Commission welcomes comment on contract markets prior to a certain date merger of ICC and OCC will take place any aspect of the proposed order. are deemed registered with the before the end of the calendar year 2003, IV. Cost-Benefit Analysis Commission. Under section 1a(29)(C) of which will occur before the expiration the Act, registered DCOs are ‘‘registered of the ninety-day notice requirement Section 15(a) of the Act requires the entities.’’ Section 7 of the Act 2 provides required by section 7 of the Act. Commission to consider the costs and that ‘‘any person that has been Therefore, at ICC’s request, pursuant to benefits of its action before issuing a designated or registered as a registered new regulation or order under the Act. entity in the manner herein provided section 4(c) of the Act, the Commission proposes to exempt ICC from section 7’s By its terms, section 15(a) does not may have such designation or require the Commission to quantify the 90-day notice requirement. registration vacated and set aside by costs and benefits of a new regulation or giving notice to the Commission B. Public Interest Considerations to determine whether the benefits of the requesting that its designation or proposed regulation outweigh its costs. registration as a registered entity be This proposed order is waiving the Rather, section 15(a) simply requires the vacated, which notice shall be served at section 7 90-day notice requirement Commission to ‘‘consider the costs and least ninety days prior to the date pursuant to section 4(c) of the Act, benefits’’ of its action. named therein as the date when which grants the Commission broad Section 15(a) further specifies that vacation of designation or registration exemptive authority. Section 4(c) of the costs and benefits shall be evaluated in shall take effect.’’ ICC has requested that Act provides that, in order to promote light of five broad areas of market and the vacation of its registration take place responsible economic or financial public concern: Protection of market before the expiration of the ninety-day innovation and fair competition, the participants and the public; efficiency, period. In response to the request, the Commission ‘‘may, by rule, regulation competitiveness, and financial integrity Commission is proposing to exempt ICC or order, exempt any class of of futures markets; price discovery; from the notice requirements of section agreements, contracts or transactions, sound risk management practices; and 7 of the Act pursuant to section 4(c) of including any person or class of persons other public interest considerations. 3 the Act, which gives the Commission offering, entering into, rendering advice Accordingly, the Commission could in broad exemptive authority and then or rendering other services with respect its discretion give greater weight to any vacate ICC’s registration. to, the agreement, contract, or one of the five enumerated areas and II. Request for Vacation of Registration transaction, from the contract market could in its discretion determine that, designation requirement of section 4(a) notwithstanding its costs, a particular A. Background of the Act, or any other provision of the rule was necessary or appropriate to By letter to the Division of Clearing Act * * * if the Commission protect the public interest or to Intermediary Oversight, the ICC effectuate any of the provisions or to 4 The letter, dated November 17, 2003, was sent 1 7 U.S.C. 7a–1 (2003). to John Lawton, Deputy Director and Chief Counsel 5 See, e.g. 65 FR 77993 (December 13, 2000) 2 7 U.S.C. 11 (2003). of the Division of Clearing and Intermediary (adopting final rules pursuant to the 4(c) 3 7 U.S.C. 6c (2003). Oversight. exemption).

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accomplish any of the purposes of the as a DCO upon the effectiveness of that OMB Desk Officer: Mr. Edward C. Act. merger; Springer. The proposed order is intended to (6) The merger of ICC and OCC will Written comments and vacate the registration of the ICC, in take place before the expiration of the recommendations on the proposed order to allow the Options Clearing ninety day requirement of section 7 of information collection should be sent to Corporation to merge with the ICC. The the Act; and Mr. Springer at Office of Management Commission has considered the costs (7) Exempting ICC from the 90-day and Budget, Desk Officer for DoD, Room and benefits of the order in light of the requirement of section 7 of the Act will 10236, new Executive Office Building, specific provisions of section 15(a) of have no adverse effect on any of the Washington DC 20503. the Act. regulatory or self-regulatory responsibilities imposed by the Act and Pamela Fitzgerald, 1. Protection of Market Participants and will be consistent with the public Air Force Federal Register Liaison Officer. the Public interest. [FR Doc. 03–31169 Filed 12–17–03; 8:45 am] The ICC does not provide any clearing Therefore, the Commission hereby BILLING CODE 5001–01–P services to any designated contract orders that ICC’s designation as a DCO markets. Accordingly, the proposed be and hereby is vacated upon the order should have no effect on the effectiveness of that merger. DEPARTMENT OF EDUCATION Commission’s ability to protect market Issued in Washington, DC, on December participation and the public. 12, 2003, by the Commission. Submission for OMB Review; Comment Request 2. Efficiency and Competition Jean A. Webb, The proposed order is not expected to Secretary of the Commission. AGENCY: Department of Education. have an effect on efficiency or [FR Doc. 03–31220 Filed 12–17–03; 8:45 am] SUMMARY: The Leader, Regulatory competition. BILLING CODE 6351–01–M Information Management Group, Office of the Chief Information Officer invites 3. Financial Integrity of Futures Markets comments on the submission for OMB and Price Discovery DEPARTMENT OF DEFENSE review as required by the Paperwork The proposed order should have no Reduction Act of 1995. effect, from the standpoint of imposing Department of the Air Force DATES: Interested persons are invited to costs or creating benefits, on the submit comments on or before January Proposed Collection; Comment financial integrity or price discovery 20, 2004. Request function of the commodity futures and ADDRESSES: Written comments should options markets. AGENCY: Department of the Air Force, be addressed to the Office of 4. Sound Risk Management Practices DoD. Information and Regulatory Affairs, ACTION: Notice. Attention: Melanie Kadlic, Desk Officer, The proposed order should have no Department of Education, Office of effect on sound risk management The Department of Defense has Management and Budget, 725 17th practices. submitted to OMB for clearance, the Street, NW., Room 10235, New 5. Other Public Interest Considerations following proposal for collection of Executive Office Building, Washington, information under the provisions of the DC 20503, or should be electronically The proposed order will have the Paperwork Reduction Act (44 U.S.C. mailed to the Internet address positive effect of allowing the OCC to Chapter 35). [email protected]. streamline its operations. Title, Form Number, and OMB SUPPLEMENTARY INFORMATION: Section V. Proposed Order Number: Application for Establishment of Air Force Junior ROTC Unit; 3506 of the Paperwork Reduction Act of Upon due consideration, and AFOATS Form 59; OMB Number 0701– 1995 (44 U.S.C. chapter 35) requires that pursuant to its authority under section 0114. the Office of Management and Budget 7 of the Act to vacate the designation of Type of Request: Extension. (OMB) provide interested Federal a registered entity and pursuant to its Number of Respondents: 1. agencies and the public an early authority under section 4(c) of the Act Responses per Respondent: 1. opportunity to comment on information to exempt ICC from the requirement that Annual Responses: 40. collection requests. OMB may amend or notice be served within 90 days of Average Burden per Response: 30 waive the requirement for public vacation, the Commission finds that: minutes. consultation to the extent that public (1) The Intermarket Clearing Annual Burden Hours: 20. participation in the approval process Corporation (‘‘ICC’’) is currently Needs and Uses: The information would defeat the purpose of the registered with the Commission as a collection requirement is necessary to information collection, violate State or derivatives clearing organization obtain information about schools that Federal law, or substantially interfere (‘‘DOC’’) under section 5b(d) of the would like to host an Air Force Junior with any agency’s ability to perform its Commodity Exchange Act (the ‘‘Act’’); ROTC unit. Respondents are high school statutory obligations. The Leader, (2) ICC has not engaged in activity as officials who provide information about Regulatory Information Management a DCO for several years; their school. The completed form is Group, Office of the Chief Information (3) ICC proposes to merge into The used to determine the eligibility of the Officer, publishes that notice containing Options Clearing Corporation, which is school to host an Air Force JROTC unit. proposed information collection also registered as a DCO; Affected Public: Not-For-Profit requests prior to submission of these (4) Upon the effectiveness of that Institutions; State, Local or Tribal requests to OMB. Each proposed merger, ICC will cease to exist as a Government. information collection, grouped by corporate entity; Frequency: On Occasion. office, contains the following: (1) Type (5) ICC has requested that the Respondent’s Obligation: Required to of review requested, e.g., new, revision, Commission terminate ICC’s registration obtain or retain benefits. extension, existing or reinstatement; (2)

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Title; (3) Summary of the collection; (4) Dated: December 15, 2003. Title: Application for Grants under Description of the need for, and Angela C. Arrington, the State Charter School Facilities proposed use of, the information; (5) Leader, Regulatory Information Management Incentive Grant Program. Respondents and frequency of Group, Office of the Chief Information Officer. Frequency: Annually. collection; and (6) Reporting and/or Office of Innovation and Improvement Recordkeeping burden. OMB invites Affected Public: State, local, or tribal public comment. Type of Review: New. gov’t, SEAs or LEAs.

Responses Burden hours

Reporting and recordkeeping hour burden: ...... 12 4,800

Abstract: This is a grant application DEPARTMENT OF EDUCATION If you use a telecommunications for a program to give States incentive device for the deaf (TDD), you may call grants to establish new or enhance Office of Vocational and Adult the Federal Information Relay Service existing per-pupil facilities aid Education, Department of Education; (FIRS) at 1–800–877–8339. programs for charter schools. Notice of Intent to Award Grantback SUPPLEMENTARY INFORMATION: Funds to the Commonwealth of This information collection is being Massachusetts Department of A. Background submitted under the Streamlined Education Clearance Process for Discretionary Under two settlement agreements between the Department and the Grant Information Collections (1890– SUMMARY: Under section 459 of the MADOE, the Department recovered 0001). Therefore, the 30-day public General Education Provisions Act $3,841,433 from the MADOE in full comment period notice will be the only (GEPA), 20 U.S.C. 1234h, the Secretary resolution of claims arising under the public comment notice published for of Education (Secretary) intends to Carl D. Perkins Vocational and this information collection. repay to the Commonwealth of Technical Education Act of 1998 Massachusetts Department of Education Requests for copies of the submission (Perkins III), 20 U.S.C. 2301 et seq., the (MADOE), under a grantback agreement, for OMB review; comment request may Elementary and Secondary Education an amount equal to 75 percent of the be accessed from Act of 1965, as amended, 20 U.S.C. 6301 principal amount of funds recovered by http://edicsweb.ed.gov, by selecting the et seq., and the Individuals with the U.S. Department of Education ‘‘Browse Pending Collections’’ link and Disabilities Education Act, as amended, (Department) in resolution of findings by clicking on link number 2424. When 20 U.S.C. 1401, 1411–1419. Of the total 42, 51, 54, 57, and 60 of the State’s amount recovered under the two you access the information collection, Single Audit Reports for the years ended agreements, $2,432,628 resolved Perkins click on ‘‘Download Attachments’’ to June 30, 1997 (ACN: 01–97–88064); June III-related findings cited in view. Written requests for information 30, 1998 (ACN: 01–98–08038); and June Massachusetts’ Single Audit Reports should be addressed to Vivian Reese, 30, 1999 (ACN: 01–99–08038), covering State fiscal years (FYs) 1997 Department of Education, 400 Maryland respectively. The Department’s recovery (ACN: 01–97–88064), 1998 (ACN: 01– Avenue, SW., Room 4050, Regional of funds followed two settlement 98–98009) and 1999 (ACN: 01–99– Office Building 3, Washington, DC agreements executed by the parties 08038). In its grantback application, the 20202–4651, or to the e-mail address under which the MADOE refunded MADOE requests repayment of 75 [email protected]. Requests may also $2,432,628 to the Department in full percent of the $2,432,628 recovered by be electronically mailed to the Internet resolution of the findings noted above. the Department for Perkins III-related address [email protected] or faxed to The MADOE has submitted to the claims. 202–708–9346. Please specify the Department a grantback application in The Department’s claim of $2,432,628 complete title of the information accordance with section 459(a) of GEPA. for Perkins III-related findings was This notice describes the MADOE’s plan collection when making your request. contained in a May 25, 2001 program for use of the repaid funds and the terms Comments regarding burden and/or determination letter (PDL) and and conditions under which the the collection activity requirements accompanying Matrix of Closed Secretary intends to make those funds should be directed to Kathy Axt at her Findings (Matrix) issued by the Deputy available. This notice also invites e-mail address [email protected]. Assistant Secretary for Vocational and comments on the proposed grantback. Individuals who use a Adult Education and other Department telecommunications device for the deaf DATES: We must receive your comments officials. The Matrix noted that the (TDD) may call the Federal Information on or before January 20, 2004. MADOE violated the Federal Relay Service (FIRS) at 1–800–877– ADDRESSES: All written comments requirements governing matching and 8339. should be addressed to Maurice James, time distribution. Specifically, the MADOE failed to match, from non- [FR Doc. 03–31222 Filed 12–17–03; 8:45 am] Chief, State Administration Branch, Office of Vocational and Adult Federal sources and on a dollar-for- BILLING CODE 4000–01–P Education, U.S. Department of dollar basis, Federal funds reserved for Education, 400 Maryland Avenue, SW., State administration. In addition, the Mary E. Switzer Building, Room 4319, MADOE failed to keep proper time MS 7323, Washington, DC 20202. distribution records for salaries and fringe benefits paid with Perkins III FOR FURTHER INFORMATION CONTACT: funds. These findings were resolved Maurice James. Telephone: (202) 205– through the Department’s Cooperative 8781 or via Internet at: Audit Resolution and Oversight [email protected]. Initiative (CAROI).

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The CAROI process culminated in the procedures for the process and grantback priority that focuses on the two settlement agreements under which reconciliation of salary charges to improvement of postsecondary CTE the MADOE refunded to the Department Federal programs, including the Perkins student retention and graduation rates. a principal amount of $2,432,628 for III account. Adjustments will be made to Approximately 50 percent of the Perkins III-related claims. The the Federal accounts in a timely proposed grantback activities will settlement agreements were executed in manner, and any excess charges will be support a strengthened partnership May 2001. The Department received full the responsibility of the State. The between secondary and postsecondary payment for these determinations in salary adjustment plan that was education institutions. October 2001. implemented specified a monthly E. Description of the State’s Current reporting requirement. There are no B. Authority for Awarding a Grantback Activities Under the Applicable plans to alter these procedures. There Program Section 459(a) of GEPA, 20 U.S.C. were no questioned costs in this area 1234h(a), provides that whenever the based on the FY 2002 audit conducted The MADOE’s CTE unit is directly Secretary has recovered funds following by the independent public accounting responsible for administering programs a final audit determination with respect firm of Deloitte and Touche. authorized under Perkins III. The unit is to any applicable program, the Secretary also responsible for approving programs may consider those funds to be D. Consultation in the Development of under Charter 74 (the State law for CTE) additional funds available for the the Grantback Application and for providing technical assistance to program and may arrange to repay to the In developing the grantback school districts, community colleges, State or local educational agency application, the MADOE states that it and other agencies on issues related to affected by that determination an solicited input from: the transition from school to careers. amount not to exceed 75 percent of the • Secondary and postsecondary According to the MADOE, over the recovered funds. The Secretary may educators in the State; past three years, the CTE unit has enter into this grantback arrangement if • Workforce training and focused its work on addressing the four the Secretary determines that— development organizations; core indicators in the State’s Perkins (1) The practices or procedures of the • Massachusetts Community College accountability system. These efforts recipient that resulted in the violation of Executive Office; address: law have been corrected and the • Massachusetts Association of • Improving academic and technical recipient is in all other respects in Vocational Administrators; skill gains for secondary and compliance with the requirements of • Massachusetts Tech Prep postsecondary CTE students; that program; Roundtable; • Increasing the number of CTE (2) The recipient has submitted to the • Massachusetts Postsecondary students graduating from high school Secretary a plan for the use of those Perkins Committee. and receiving a two-year associate funds pursuant to the requirements of According to the MADOE, each degree or a one- or two-year certificate; that program and, to the extent possible, constituency group reviewed and • Improving the placement of for the benefit of the population that supported the identified priorities. The students in technical careers related to was affected by the failure to comply or priorities include: their fields of study; and by the misuse of funds that resulted in • Improving the transition of career • Increasing the number of students the recovery; and and technical education (CTE) students enrolled in and completing (3) The use of the funds in accordance from high school to college CTE nontraditional programs. with that plan would serve to achieve programs; To reach these goals the CTE unit has the purposes of the program under • Supporting the development and focused on: which the funds were originally paid. implementation of Statewide secondary • Supporting whole school to postsecondary ‘‘pathways’’ in restructuring through the State’s C. Plan for Use of Funds Awarded information technology, health and pre- membership in the High Schools that Under a Grantback Arrangement engineering career fields; Work initiative. The State network is Pursuant to section 459(a)(2) of GEPA, • Increasing the participation and comprised of 30 high schools, including the MADOE has applied for a grantback completion of CTE programs that lead to many of the most challenged schools in of $1,824,471, or 75 percent of the nontraditional training and the Commonwealth; $2,432,628 refunded to the Department employment; • Offering State-sponsored for Perkins III-related claims under the • Increasing the pool of highly professional development highlighting two settlement agreements, and has qualified vocational technical educators ‘‘best practices’’ that lead to improved submitted a plan for use of the proposed through a Web-based licensing and job student achievement. Perkins III local grantback funds, consistent with Perkins bank system and an improved pre- recipients provide high-quality III. The MADOE has implemented a service program for new vocational professional development through the system to address the requirement in technical educators; and use of a mandated ‘‘15 percent or more Perkins III to match administration costs • Providing support to Perkins- set-aside’’ of State leadership funds. The on a dollar-for-dollar basis. The MADOE eligible secondary and postsecondary State has designed its professional will not count towards the match any schools and colleges to add new CTE development programs in a manner State administrative expenditures for programs for occupations in information intended to increase teachers’ staff that are not 100 percent related to technology, health and pre-engineering, knowledge of academic and technical vocational education. The positions or to assist these schools and colleges in subject matter and to support school- funded from Perkins III administrative attaining national program approval or wide academic initiatives in such areas funds will be supported by monthly business and industry standards in as reading, writing and mathematics; time sheets, and their costs will be these three areas. • Providing additional financial counted toward the match. The MADOE’s grantback application resources to school districts’ CTE A May 2002 on-site monitoring visit indicates that the Executive Director for programs through the MADOE’s by Department staff confirmed that the the Massachusetts Community College ‘‘Academic Support Grants’’ to increase MADOE has implemented policies and System is especially supportive of the the number of CTE students passing the

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Massachusetts Comprehensive (four-year high school to one-year, two- current ‘‘Educator Licensure and Assessment System exam (a year and four-year college) program Recruitment’’ system, known as ELAR. requirement for receiving a high school pathways in health, information The system will allow applicants to diploma); technology and engineering. request waivers, search jobs and post • Encouraging and supporting Competencies, course and program resumes, and make fee payments online. schools and colleges in applying for and sequencing, syllabi, curricula, It will be linked to the State’s educator receiving national program approval articulation processes, workplace preparation education programs and its and helping students to earn industry or opportunities and assessment models vocational educator testing center. The State-recognized credentials; will be identified in all three career new system will include an on-line • Supporting the development of a areas. All of the resources produced as faculty register that will be used by career and technical assessment system part of this initiative will be posted at MADOE staff to ensure that all current that would lead to issuing a certificate the CTE unit’s Web site for employers, vocational technical education teachers of occupational proficiency; schools and colleges. The CTE unit also employed by school districts and • Providing strong tech-prep will provide professional development collaboratives have the appropriate programs that lead to increased numbers opportunities to support Statewide credentials. of CTE students successfully implementation of the pathway models. (6) High-wage, high-demand career transitioning to and completing two- This initiative will be aligned with and and technical education—competitive year and four-year postsecondary be part of the implementation of the grant program. programs of study; and new system to issue Certificates of The MADOE will issue a competitive • Providing technical assistance and Occupational Proficiency and the new RFP for Perkins-eligible secondary and professional development specifically Massachusetts Vocational-Technical postsecondary institutions with career targeted to increasing the number of Career 74 Regulations. and technical programs. Grantees will CTE students enrolling in and (3) Workplace models in high-wage, use funds either to begin a new CTE completing nontraditional programs. high-demand career and technical program in high-wage, high-demand In its grantback application, the education pathways—competitive grant fields within the three cluster areas or MADOE states that for the past two program. to update existing programs in those years, the CTE unit’s administration and The MADOE proposes to issue a clusters to align with national program staff have analyzed the data collected competitive RFP to Perkins-eligible standards or industry-recognized from their work addressing the four core school districts and colleges to develop certifications. The MADOE believes that indicators and identified particular and provide workplace models in there is an inadequate number of areas of need for the focus of the health, information technology and technically skilled workers to fill the grantback application. In addition, the engineering program pathways. Program jobs being created in technology-driven Perkins program compliance audit, models must include intensive services. As a result of rapid growth in conducted in May 2002 by a team from workplace projects, employer this sector, demand for professional and the Department’s Office of Vocational mentoring, academic and technical skill technical workers, including in fields and Adult Education, and subsequent competency attainment related to course requiring less than a four-year degree for report support the need for the content, collaborative project entry-level positions, is expected to initiatives outlined in the grantback development that includes industry expand the fastest and generate the most application. employees and high school and college new jobs in the State. It is also expected staff, and assessment of both product that engineering and architectural F. Proposed Initiatives outcomes for industry and academic services will grow by 13 percent and The following is a description of the and technical skill gain by students. generate 4,300 new jobs. Of the 25 seven proposed initiatives, as outlined (4) Increased participation in and fastest growing occupations in the State, in the MADOE’s grantback application: completion of technical education more than half are related to (1) Successful transition of CTE programs that lead to nontraditional information technology and health care. students from high school to college— training and employment. (7) Vocational technical education competitive grant program. The MADOE is proposing a two- teachers’ pre-service training. The MADOE proposes to offer a pronged study to alter current career The Massachusetts Board of competitive request for proposal (RFP) and technical education enrollment Education recently approved a new set to Perkins-eligible secondary and patterns. A contractor will be selected of vocational technical education postsecondary institutions to develop through a competitive ‘‘request for regulations that became effective on collaborative programs that focus on response’’ (RFR) process to study the September 1, 2003. The teacher intensive college transition and current nontraditional enrollment credentialing portion of the regulations preparation programs for CTE high patterns in secondary career and contains a new provision that requires school students. This initiative would technical education programs. The vocational technical education teacher focus on the academic and technical study will examine the underlying candidates to earn 21 college degree preparedness needed for a student’s factors for selecting a career major and credits in professional education success at the postsecondary level. take into consideration any recent courses. These courses include a three Programs would include academic research done in the field. The study credit college degree seminar school year preparedness and transition will also include actions that the specifically designed for new teachers. activities with an intensive summer MADOE and school districts can take to New teachers will be required to take program for entering college students. help alter current secondary career and these courses in their first year of (2) Development and dissemination of technical education enrollment patterns. teaching. As part of the State’s effort to Statewide secondary-to-postsecondary (5) Web-based Perkins accountability prepare first-year vocational technical pathways in information technology, system. education teachers better, a ‘‘new health and pre-engineering/engineering The MADOE proposes to develop a teachers tool kit’’ will be developed in career fields. Web-based application for licensing consultation with the State’s three The MADOE’s CTE unit proposes to vocational technical educators. This vocational technical educator develop specific high school-to-college will be an enhancement to the State’s preparation programs. The tool kit will

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be based upon the professional approved in advance by the Secretary; listed in ascending order within each standards for vocational technical and docket classification. education teachers contained in the (2) All funds received under this 1.Madison Gas and Electric Company; regulations. Topics covered in the tool grantback arrangement must be MGE Energy, Inc.; MGE Power LLC; kit may include, but are not limited to, obligated by September 30, 2004, in MGE Power West Campus LLC student grading, assigning and accordance with section 459(c) of GEPA reviewing homework, classroom and the MADOE’s plan; [Docket Nos. EC04–35–000 and EL04–32– management, lesson planning, (3) The MADOE will, no later than 90 000] developing a course syllabus and calendar days after the expiration date Take notice that on December 5, 2003, project-based learning, and pertinent of the approved grantback award, Madison Gas and Electric Company, State and Federal laws and regulations. submit a report to the Secretary that— MGE Energy, Inc., MGE Power LLC and (a) Indicates that the funds awarded MGE Power West Campus filed an G. The Secretary’s Determination under the grantback have been Application for Approval of the The Secretary has carefully reviewed expended in accordance with the Disposition of Jurisdictional Facilities the plan submitted by the MADOE and proposed plan, and under section 203 of the Federal Power other relevant documentation. Based (b) Describes the results and Act, 16 U.S.C. 824b (2000), and Petition upon that review, the Secretary has effectiveness of the projects for which for Declaratory Order. MGE Power West determined that the conditions under the funds were spent; and Campus, a non-utility subsidiary of section 459(a) of GEPA have been met. (4) Separate accounting records must MGE Energy and MGE Power, states that This determination is based upon the be maintained documenting the it will develop, construct and own best information available to the expenditures of funds awarded under generating assets and associated Secretary at the present time. If this the grantback arrangement. interconnection facilities and lease information is not accurate or complete, those facilities under a long-term lease Electronic Access to This Document the Secretary is not precluded from to its corporate affiliate, MGE. taking appropriate administrative You may view this document, as well Comment Date: December 29, 2003. action. In finding that the conditions of as all other Department of Education 2.Duquesne Power, L.P. section 459(a) of GEPA have been met, documents published in the Federal the Secretary makes no determination Register, in text or Adobe Portable [Docket No. EG04–21–000] concerning any pending audit Document Format (PDF) on the Internet Take notice that on December 8, 2003, recommendations or other at the following site: www.ed.gov/ Duquesne Power, L.P., (applicant) filed investigations. legislation/FedRegister. with the Federal Energy Regulatory To use PDF you must have Adobe Commission an application for H. Notice of the Secretary’s Intent To Acrobat Reader, which is available free determination of exempt wholesale Enter Into a Grantback Arrangement at this site. If you have questions about generator status pursuant to part 365 of Section 459(d) of GEPA requires that, using PDF, call the U.S. Government the Commission’s regulations. The at least 30 days before entering into an Printing Office (GPO), toll free, at 1– applicant is a limited partnership that agreement to award funds under a 888–293–6498; or in the Washington, will engage directly or indirectly and grantback arrangement, the Secretary DC area at (202) 512–1530. exclusively in the business of owning publish in the Federal Register a notice Note: The official version of this document and/or operating eligible facilities in the of intent to do so, and the terms and is the document published in the Federal United States and selling electric energy conditions under which the payment Register. Free Internet access to the official at wholesale. The applicant states that it will be made. edition of the Federal Register and the Code proposes to own and operate an In accordance with section 459(d) of of Federal Regulations is available on GPO approximately 436 megawatt four-unit GEPA, notice is hereby given that the Access at: http://www.access.gpo/nara/ coal-fired generating station located in Secretary intends to make funds index.html. Shamokin Dam, Pennsylvania. The available to the MADOE under a applicant states that it is seeking a (Catalog of Federal Domestic Assistance determination of its exempt wholesale grantback agreement. The grantback Number 84.048, Basic State Grants for award would be in the amount of Vocational Education) generator status and all electric energy $1,824,471, which is 75 percent—the sold by the applicant will be sold maximum percentage authorized by Dated: December 11, 2003. exclusively at wholesale. GEPA—of the principal recovered by Richard T. LaPointe, Comment Date: December 29, 2003. Deputy Assistant Secretary for Vocational the Department as a result of the final Standard Paragraph audit determinations and resolution of and Adult Education. the Perkins III-related claims. [FR Doc. 03–31010 Filed 12–17–03; 8:45 am] Any person desiring to intervene or to BILLING CODE 4000–01–P protest this filing should file with the I. Terms and Conditions Under Which Federal Energy Regulatory Commission, Payments Under a Grantback 888 First Street, NE., Washington, DC Arrangement Would Be Made DEPARTMENT OF ENERGY 20426, in accordance with rules 211 and The MADOE has agreed to comply 214 of the Commission’s rules of with the following terms and conditions Federal Energy Regulatory practice and procedure (18 CFR 385.211 under which payment under a grantback Commission and 385.214). Protests will be considered by the Commission in arrangement would be made: [Docket No. EC04–35–000, et al.] (1) The MADOE will expend the determining the appropriate action to be funds awarded under the grantback in Madison Gas and Electric Company, et taken, but will not serve to make accordance with — al.; Electric Rate and Corporate Filings protestants parties to the proceeding. (a) All applicable statutory and Any person wishing to become a party regulatory requirements, and December 10, 2003. must file a motion to intervene. All such (b) The plan that was submitted and The following filings have been made motions or protests should be filed on any amendments to the plan that are with the Commission. The filings are or before the comment date, and, to the

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extent applicable, must be served on the Any party, as defined by 18 CFR Unless the Commission determines that applicant and on any other person 385.102(c), or any participant as defined the prohibited communication and any designated on the official service list. by 18 CFR 385.102(b), is invited to responses thereto should become a part This filing is available for review at the attend. Persons wishing to become a of the decisional record, the prohibited Commission or may be viewed on the party must move to intervene and off-the-record communication will not Commission’s Web site at http:// receive intervenor status pursuant to the be considered by the Commission in www.ferc.gov, using the ‘‘FERRIS’’ link. Commission’s regulations (18 CFR reaching its decision. Parties to a Enter the docket number excluding the 385.214). proceeding may seek the opportunity to last three digits in the docket number For additional information, please respond to any facts or contentions filed to access the document. For contact Michael Cotleur (202) 502–8519 made in a prohibited off-the-record assistance, call (202) 502–8222 or TTY, [email protected], William communication, and may request that (202) 502–8659. Protests and Collins (202) 502–8248 the Commission place the prohibited interventions may be filed electronically [email protected], or Kevin Frank communication and responses thereto via the Internet in lieu of paper; see 18 (202) 502–8065 [email protected]. in the decisional record. The CFR 385.2001(a)(1)(iii) and the Magalie R. Salas, Commission will grant such a request instructions on the Commission’s Web Secretary. only when it determines that fairness so site under the ‘‘e-Filing’’ link. The requires. Any person identified below as [FR Doc. E3–00590 Filed 12–17–03; 8:45 am] Commission strongly encourages having made a prohibited off-the-record electronic filings. BILLING CODE 6717–01–P communication shall serve the document on all parties listed on the Magalie R. Salas, DEPARTMENT OF ENERGY official service list for the applicable Secretary. proceeding in accordance with Rule [FR Doc. E3–00589 Filed 12–17–03; 8:45 am] Federal Energy Regulatory 2010, 18 CFR 385.2010. BILLING CODE 6717–01–P Commission Exempt off-the-record [Docket No. RM98–1–000] communications will be included in the DEPARTMENT OF ENERGY decisional record of the proceeding, Records Governing Off-the Record unless the communication was with a Federal Energy Regulatory Communications; Public Notice cooperating agency as described by 40 Commission CFR 1501.6, made under 18 CFR December 12, 2003. 385.2201(e)(1)(v). This constitutes notice, in accordance [Docket No. RP03–398–000] with 18 CFR 385.2201(b), of the receipt The following is a list of prohibited of exempt and prohibited off-the-record and exempt communications recently Northern Natural Gas Company; Notice communications. received in the Office of the Secretary. of Informal Settlement Conference Order No. 607 (64 FR 51222, The communications listed are grouped September 22, 1999) requires by docket numbers. These filings are December 12, 2003. Commission decisional employees, who available for review at the Commission Take notice that an informal make or receive an exempt or prohibited in the Public Reference Room or may be settlement conference will be convened off-the-record communication relevant viewed on the Commission’s Web site at in this proceeding commencing at 10 to the merit’s of a contested on-the- http://www.ferc.gov using the eLibrary a.m. on Tuesday, December 16, 2003 record proceeding, to deliver a copy of (FERRIS) link. Enter the docket number and if necessary, 9 a.m. on Wednesday, the communication, if written, or a excluding the last three digits in the December 17, 2003 at the offices of the summary of the substance of any oral docket number field to access the Federal Energy Regulatory Commission, communication, to the Secretary. document. For Assistance, please 888 First Street, NE., Washington, DC, Prohibited communications will be contact FERC, Online Support at 20426, for the purpose of exploring the included in a public, non-decisional file [email protected] or toll possible settlement of the above- associated with, but not a part of, the free at (866)208–3676, or for TTY, referenced docket. decisional record of the proceeding. contact (202)502–8659.

EXEMPT

Docket No. Date filed Presenter or requester

1. Project No. 2232–407 ...... 11–28–03 Hon. John Edwards. 2. Docket No. CP02–90–000 ...... 12–2–03 James Martin. 3. Docket No. CP02–78–000 ...... 12–2–03 Linda Kokemuller, et al. 4. Project No. 2030–000 ...... 12–4–03 Peter Lickwar. 5. Project No. 2086–000 ...... 12–12–03 Dr. Knox Mellon.

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Magalie R. Salas, that address the requirements of the requirements of the National Pollutant Secretary. National Pollutant Discharge Discharge Elimination Systems (NPDES) [FR Doc. E3–00591 Filed 12–17–03; 8:45 am] Elimination Systems (NPDES) program program with special emphasis on wet BILLING CODE 6717–01–P with special emphasis on wet weather weather activities, i.e., storm water, and activities, i.e., storm water, combined concentrated animal feeding operations sewer overflows, sanitary sewer as well as projects that enhance the DEPARTMENT OF ENERGY overflows, and concentrated animal ability of the regulated community to feeding operations as well as projects deal with non-traditional pollution Federal Energy Regulatory that enhance the ability of the regulated problems in priority watersheds. Commission community to deal with non-traditional An organization whose IP is selected pollution problems in priority Public Utility District No. 2 of Grant for possible Federal assistance must watersheds. From the IPs received, EPA complete an EPA Application for Project No. P–2114–116; County estimates that 30 to 35 projects may be Washington; Errata Notice Assistance, including the Federal SF– selected to submit full applications. 424 form (Application for Federal December 12, 2003. The Agency intends to make available Assistance, see 40 CFR 30.12 and 31.10). at least $200,000 per year of the annual On November 3, 2003, the appropriation for Water Quality Organizations who have an existing Commission issued a ‘‘Notice of Cooperative Agreements, from FY 2004 agreement under this program are Application Tendered for Filing with through FY 2005, for projects which eligible to compete with proposals for the Commission, Soliciting Additional address cooling water intake issues to new awards. Study Requests, and Establishing include technical and environmental Procedural Schedule for Relicensing The Office of Wastewater Management, studies. The Agency has made available and a Deadline for Submission of Final Office of Water, EPA Headquarters Has $600,000 from FY 2001 through FY Amendments’’ in the above-referenced Identified the Following High Priority 2003. It is expected that the $200,000 proceeding. Areas for Consideration available for cooling water intake Item ‘‘1.’’ of the referenced Notice projects in FY 2004 will be used to fund Assistance agreements awarded under read ‘‘Deadline for filing additional a project approved in a prior year. Section 104(b)(3) may only be used to study requests and requests for agency The Agency reserves the right to reject conduct and promote the coordination cooperating status: December 22, 2003.’’ all IPs and make no awards. and acceleration of activities such as The date should have been: December DATES: research, investigations, experiments, 29, 2003. EPA will consider all IPs received on or before 5 p.m. Eastern training, education, demonstrations, Magalie R. Salas, Time, February 17, 2004. IPs received surveys, and studies relating to the Secretary. after the due date, may be reviewed at causes, effect, extent, prevention, [FR Doc. E3–00592 Filed 12–17–03; 8:45 am] EPA’s discretion. reduction, and elimination of water BILLING CODE 6717–01–P ADDRESSES: It is preferred that IPs be pollution. These activities, while not electronically mailed (E-mailed) to defined in the statute, advance the state [email protected]. If mailed of knowledge, gather information, or ENVIRONMENTAL PROTECTION through the postal service or other transfer information. For instance, AGENCY means, three copies should be sent to: ‘‘demonstrations’’ are generally projects Barry Benroth, 4204M, WQCA2004 U.S. that demonstrate new or experimental [FRL–7599–8 ] Environmental Protection Agency, 1200 technologies, methods, or approaches Pennsylvania Avenue, NW., and the results of the project will be Notice of Request for Initial Proposals Washington, DC 20460. disseminated so that others can benefit (IPs) for Projects To Be Funded From The following address must be used from the knowledge gained. A project the Water Quality Cooperative for delivery of the copies by an that is accomplished through the Agreement Allocation (CFDA 66.463— overnight delivery or courier service: performance of routine, traditional, or Water Quality Cooperative Barry Benroth, 4204M, WQCA2004, established practices, or a project that is Agreements) Phone 202–564–0672, U.S. simply intended to carry out a task AGENCY: Environmental Protection Environmental Protection Agency, rather than transfer information or Agency (EPA). Room 7324 J, EPA East, 1201 advance the state of knowledge, Constitution Avenue, NW., Washington, however worthwhile the project may be, ACTION: Notice. DC 20004. is not a demonstration. Research SUMMARY: EPA is soliciting Initial FOR FURTHER INFORMATION CONTACT: projects may include the application of Proposals (IPs) from States, Tribes, local Barry Benroth by telephone at 202–564– established practices when they governments, universities, non-profits, 0672 or by E-mail at contribute to learning about an and other eligible entities, as shown [email protected]. environmental concept or problem. below in the section called Eligible SUPPLEMENTARY INFORMATION: The Office of Wastewater Applicants, interested in applying for Management at EPA Headquarters has Federal assistance for Water Quality Purpose of This Request Is for Initial identified several subject areas for Cooperative Agreements (CFDA 66.463) Proposals priority consideration. EPA will award under the Clean Water Act (CWA) The Office of Wastewater Assistance Agreements for research, section 104(b)(3). EPA Headquarters Management, Office of Water at EPA investigations, experiments, training, intends to award an estimated $3.5 Headquarters is requesting IPs from demonstrations, surveys and studies million to eligible applicants through States, Tribes, local governments, non- related to the causes, effects, extent, assistance agreements ranging in size profit organizations and other eligible prevention, reduction, and elimination from $10,000 up to $500,000 for Water entities under the Clean Water Act of water pollution in the subject areas Quality Cooperative Agreements, which Section 104(b)(3) for unique and shown below in bold. Example projects are for unique and innovative projects innovative projects that address the are shown for each area.

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Water and Wastewater Infrastructure National Pollutant Discharge Request for Initial Proposal Format and Elimination System (NPDES) Program Contents Benefits assessment of wastewater Strategies To Implement Watershed- IPs should be limited to four pages. infrastructure investments including based Efforts funding from the Clean Water State Full application packages should not be Revolving Fund program. Conduct a demonstration project that submitted at this time. It is provides support to facilitate watershed- recommended that confidential Tools, techniques, benchmarking, or based permitting and trading. information not be included in the IP. training for more efficient wastewater Develop and pilot innovative The following format should be used for and other systems performance. techniques to facilitate NPDES program all IPs: Capacity development for Tribes, management for enhanced results, Name of Project: Native Villages, and small communities integrity and/or efficiency. Point of Contact: (Individual and to effectively operate and maintain Organization Name, Address, Phone water and wastewater treatment Animal Feeding Operations Number, Fax Number, E-mail Address) facilities. Develop and demonstrate innovative Is This a Continuation of a Previously Innovative water efficiency programs or alternative technologies for CAFOs to Funded Project (if so, please provide the or techniques to reduce infrastructure treat/process wastewater or manage number and status of the current grant costs or municipal water use. manure. or cooperative agreement): CAFO producer outreach programs to Proposed Award Amount: Demonstration of remote techniques train/educate the industry on Proposed Awardee Cost Share: (Cost for assessing the performance and implementation of the CAFO rule. sharing is not required) environmental impacts of on-site/ EPA may also consider other project Description of General Budget decentralized wastewater systems. areas for funding to the extent Proposed To Support Project: Innovative approaches or methods to authorized by CWA section 104(b)(3) Project Area: (based on areas of reduce risk or impact of terrorist or and to the extent funds are available for interest shown above) other attacks to integrity and such project areas. Project Description: (Should not effectiveness of wastewater collections exceed three pages of single-spaced text) and treatment. Statutory Authority, Applicable Expected Accomplishments or Regulations, and Funding Level Impacts of Wet Weather Flows Product, With Dates, Environmental Water Quality Cooperative Results and Interim Milestones: This Test results achieved by peak excess Agreements are awarded under the section should also include a discussion flow technologies in collection systems authority of section 104(b)(3) of the of a communication plan for at CSO outfalls and at treatment plants, Clean Water Act (33 U.S.C. 1254(b)(3)). distributing the project results to and test performance of devices before The regulations governing the award interested parties. and after blending. Testing may include and administration of Water Quality Describe How the Project Meets the pollutants in effluent or ambient Cooperative Agreements are 40 CFR part Evaluation Criteria Specified Below: settings. 30 (for institutions of higher learning, EPA IP Evaluation Criteria Measure, or develop tools to hospitals, and other non-profit EPA will award Water Quality determine the effectiveness of storm organizations) and 40 CFR part 31 and Cooperative Agreements on a water BMPs. 40 CFR part 35, subparts A and B (for States, Tribes, local governments, competitive basis and evaluate IPs based Develop and pilot storm water intertribal consortia, and interstate on the following criteria (maximum discharge and ambient water monitoring agencies). points for each element are shown). techniques for gauging water quality Applicants requested to submit a full • The relationship of the proposed improvements. application (SF–424) will be required to project to the priorities identified in this Develop and pilot sample comply with Intergovernmental Review notice. (5) performance measures for use by small requirements (40 CFR part 29). • How well the project proposes to Municipal Separate Storm Sewer Applicants must provide a Dun and address a nationally important need, Systems (MS4s) to incorporate into Bradstreet (D&B) Data Universal issue, or interest. (30) storm water management plans. Numbering System (DUNS) number • Communication plan to transfer Outreach on low impact development with the full application. Organizations results of the project to other potentially (LID) and its potential uses. may obtain the number by calling, toll interested parties. (25) • How well the project furthers the Provide tools to help permitees select free, 1–866–705–5711. goal of the Clean Water Act to prevent, options and overcome barriers in storm Total funding available for award by reduce, and eliminate water pollution. water pollution prevention plan Headquarters will depend on EPA’s (20) development. appropriation for Fiscal Year 2004; however, it is estimated that $3.5 • Leverage of other resources (e.g., Pathogens million will be available for funding cost share, participation by other approved projects. The average size of organizations) as part of the proposed Conduct studies on monitoring an award is anticipated to be approach. (10) pathogens in wastewater and biosolids, approximately $100,000. • Cost effectiveness and including bacterial, viruses and Construction projects, except for the reasonableness of the proposal. (10) parasites. construction required to carry out a The IPs will be evaluated by EPA staff Conduct studies on treatability of demonstration project, and acquisition on the elements shown above. pathogens in wastewater. of land, are not eligible for funding Maximum points equals 100. EPA may Characterization of impacts of PH under this program. New or on-going consider IPs even if all criteria are not levels on municipal infrastructure programs to implement environmental fully met, provided the proposed systems (pretreatment discharges to controls are not eligible for funding projects meet the applicable statutory POTWs). under this program. and regulatory requirements and funds

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are available for such projects. IPs submit a formal application package. advise the contact listed below as soon which are not in compliance with the Schedule may be modified based on the as possible. notice, i.e., do not provide the required level of response. ADDRESSES: Direct all Paperwork information, are submitted by ineligible A list of selected projects will be Reduction Act (PRA) comments to applicants, are considered to be posted on the Office of Wastewater Judith B. Herman, Federal primarily construction projects, or are Management Web site http:// Communications Commission, Room 1– for the acquisition of land will not be www.epa.gov/owm/wqca/2004.htm. C804, 445 12th Street, SW., Washington, considered. This web site may also contain DC 20554 or via the Internet to Judith- additional information about this [email protected]. IP Selection request. Deadline extensions, if any, FOR FURTHER INFORMATION CONTACT: For Final selection of IPs will be made by will be posted on this web site and not additional information or copies of the the Director, Office of Wastewater in the Federal Register. information collection(s), contact Judith Management. Selected organizations Dated: December 11, 2003. B. Herman at 202–418–0214 or via the will be notified and requested to submit Jane S. Moore, Internet at [email protected]. a full application. It is expected that unsuccessful applicants will be notified Deputy Director, Office of Wastewater SUPPLEMENTARY INFORMATION: Management. by e-mail. OMB Control No.: 3060–1046. [FR Doc. 03–31236 Filed 12–17–03; 8:45 am] Title: Implementation of the Pay Eligible Applicants BILLING CODE 6560–50–P Telephone Reclassification and Eligible applicants for assistance Compensation Provisions of the agreements under section 104(b)(3) of Telecommunications Act of 1996, CC the Clean Water Act are State water FEDERAL COMMUNICATIONS Docket No. 96–128, Report and Order. pollution control agencies, Tribal COMMISSION Form No.: N/A. governments, intertribal consortia, Type of Review: Revision of a interstate agencies, and other public or Notice of Public Information currently approved collection. non-profit private agencies, institutions, Collection(s) Being Reviewed by the Respondents: Business or other for- organizations and individuals. Federal Communications Commission, profit. Comments Requested Number of Respondents: 1,023 Application Procedure respondents; 7,140 responses. December 10, 2003. Electronic transmittal of IPs is Estimated Time Per Response: 100 SUMMARY: The Federal Communications preferred to facilitate the review hours. Commission, as part of its continuing process. Hard copies are acceptable. Frequency of Response: Quarterly effort to reduce paperwork burden Please send three copies of the IPs if it reporting requirement, third party invites the general public and other is not electronically transmitted. disclosure requirement, and Federal agencies to take this recordkeeping requirement. Dispute Resolution Process opportunity to comment on the Total Annual Burden: 714,000 hours. Procedures at 40 CFR 30.63 and 40 following information collection(s), as Total Annual Cost: N/A. CFR 31.70 apply. required by the Paperwork Reduction Needs and Uses: The Commission Act (PRA) of 1995, Public Law No. 104– issued a Report and Order in CC Docket Type of Assistance 13. An agency may not conduct or No. 96–128, FCC 03–235, in which final It is expected that all the awards sponsor a collection of information rules were adopted that altered the under this program will be cooperative unless it displays a currently valid previous payphone compensation rules. agreements. States, interstate agencies, control number. No person shall be The new rules place the liability to federally recognized tribes, and subject to any penalty for failing to compensate payphone service providers intertribal consortia meeting the comply with a collection of information (PSPs) for payphone-originated calls on requirements at 40 CFR 35.504 may subject to the Paperwork Reduction Act the facilities-based long distance include the funds for Water Quality that does not display a valid control carriers from whose switches such calls Cooperative Agreements in a number. Comments are requested are completed. The new rules were not Performance Partnership Grant (PPG) in concerning (a) Whether the proposed put in effect immediately to allow accordance with the regulations collection of information is necessary industry time to prepare for governing PPGs at 40 CFR part 35, for the proper performance of the implementation of the new rules. subparts A and B. For states and functions of the Commission, including Accordingly, the Order adopted interim interstate agencies that choose to do so, whether the information shall have rules initially adopted in the Second the regulations provide that the work practical utility; (b) the accuracy of the Order on Reconsideration until the new plan commitments that would have Commission’s burden estimate; (c) ways rules outlined in CC Docket No. 96–128 been included in the WQCA must be to enhance the quality, utility, and become effective. The interim rules included in the PPG work plan. A clarity of the information collected; and received OMB approval on 11/14/03 description of the Agency’s substantial (d) ways to minimize the burden of the and are currently in effect. The involvement in cooperative agreements collection of information on the Commission is now seeking OMB will be included in the final agreement. respondents, including the use of approval of the final rules. The interim automated collection techniques or rules will be vacated and the new rules Schedule of Activities other forms of information technology. will go into effect on the first day of the This is the estimated schedule of DATES: Written Paperwork Reduction next full quarter following the date of activities for submission, review of Act (PRA) comments should be OMB approval. proposals and notification of selections: submitted on or before February 17, OMB Control No.: 3060–0894. February 17, 2004—RFIPs due to EPA. 2004. If you anticipate that you will be Title: Certification Letter Accounting March 29, 2004—Initial approvals submitting comments, but find it for Receipt of Federal Support—CC identified and sponsors of projects difficult to do so within the period of Docket Nos. 96–45 and 96–262. selected for funding will be requested to time allowed by this notice, you should Form No.: N/A.

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Type of Review: Revision of a DATES: For up to 180 days after October against harmful interference to medical currently approved collection. 16, 2003, the freeze on the filing of telemetry operations pending such Respondents: State, local or tribal applications for high power operations resolutions. This action is authorized government. on 12.5 kHz offset channels in the under sections 4(i), 4(j), and 303(r) of Number of Respondents: 52. private land mobile radio 460–470 MHz the Communications Act of 1934, as Estimated Time Per Response: 3–5 band, will continue in the ‘‘freeze’’ amended, 47 U.S.C. §§ 154(i), 154(j), hours. status. 303(r), and is taken under delegated Frequency of Response: On occasion FOR FURTHER INFORMATION CONTACT: John authority pursuant to §§ 0.131 and 0.331 and annual reporting requirements. Kuzma, P.E., [email protected], of the Commission’s rules, 47 CFR Total Annual Burden: 162 hours. Public Safety and Private Wireless 0.131, 0.331. Total Annual Cost: N/A. Division, Wireless Telecommunications Federal Communications Commission. Needs and Uses: The Commission Bureau, (202) 418–7479, or TTY (202) Ramona Melson, requires states to certify that carriers 418–7233. within the state had accounted for its Deputy Chief, Public Safety and Private SUPPLEMENTARY INFORMATION: This is a Wireless Division. receipt of federal support in its rates or summary of FCC Public Notice, DA 03– otherwise used the support pursuant [FR Doc. 03–31217 Filed 12–17–03; 8:45 am] 3178, released October 15, 2003. The BILLING CODE 6712–01–P with Section 254(e). In an Order on full text of this document is available for Remand, the Commission modifies the inspection and copying during normal high-cost universal service support business hours in the FCC Reference mechanism for non-rural carriers and FEDERAL DEPOSIT INSURANCE Center, 445 12th Street, SW., CORPORATION adopts measures to induce states to Washington, DC 20554. The complete ensure reasonable comparability of rural text may be purchased from the FCC’s Agency Information Collection and urban rates in areas served by non- copy contractor, Qualex International, Activities: Submission for OMB rural carriers. 445 12th Street, SW., Room CY–B402, Review; Comment Request Federal Communications Commission. Washington, DC 20554. The full text Marlene H. Dortch, may also be downloaded at: http:// AGENCY: Federal Deposit Insurance Secretary. www.fcc.gov/wtb. Alternative formats Corporation. ACTION: [FR Doc. 03–31155 Filed 12–17–03; 8:45 am] are available to persons with disabilities Notice of information collections to be submitted to OMB for BILLING CODE 6712–01–P by contacting Brian Millin at (202) 418– 7426 or TTY (202) 418–7365 or at review and approval under the [email protected]. Paperwork Reduction Act of 1995. 1. On September 23, 2003, the FEDERAL COMMUNICATIONS SUMMARY: In accordance with American Hospital Association (AHA) COMMISSION requirements of the Paperwork reported that, based on its recent, Reduction Act of 1995 (44 U.S.C. 3501 [DA 03–3178] informal polling of hospitals, there has et seq.), the FDIC hereby gives notice been virtually no migration of medical Freeze on High Power Use of the 460– that it plans to submit to the Office of telemetry systems to the WMTS 470 MHz Band Extended Management and Budget (OMB) a frequencies. AHA notes that high power request for OMB review and approval of AGENCY: Federal Communications use in the 460–470 MHz band has the the following information collection Commission. potential to interfere with existing systems described below. ACTION: Notice. medical telemetry systems that have not 1. Type of Review: Renewal of a moved to the WMTS frequencies and currently approved collection. SUMMARY: In this document the Federal has proposed a thirty-month plan for the Title: Application for Consent to Communications Commission (FCC) transition of medical telemetry Exercise Trust Powers. announces that its freeze on the filing of equipment into the WMTS frequencies. Form Number: 6200/09. applications for high power operations 2. The decision to extend the freeze is OMB Number: 3064–0025. on 12.5 kHz offset channels in the procedural in nature and therefore not Annual Burden: private land mobile radio 460–470 MHz subject to the notice and comment and Estimated annual number of band, which had been originally set to effective date requirements of the respondents: 18. expire October 16, 2003, will instead be Administrative Procedure Act. Estimated time per response: 14 extended. In June 2000, the FCC Moreover, there is good cause for not applications—8 hours; 4 applications— established the Wireless Medical using notice and comment procedures 24 hours. Telemetry Service (WMTS), and allotted in this case, or making the freeze Total annual burden hours: 208 a total of 13.5 megahertz of spectrum on extension effective 30 days after hours. a primary basis in three blocks (608–614 publication in the Federal Register. The Expiration Date of OMB Clearance: MHz, 395–1400 MHz, and 1427– FCC finds that such procedures would January 31, 2004. 1429.5). To prevent potential be impractical, unnecessary and SUPPLEMENTARY INFORMATION: Insured interference to medical telemetry contrary to the public interest as our State nonmember banks submit operations the FCC froze applications compliance would undermine the applications to FDIC for consent to for high power use of offset channels in public policy rationale of the freeze in exercise trust powers. Applications are the 460–470 MHz band on October 16, the first place. The decision to impose evaluated by FDIC to verify 2000 for a period not to exceed three a temporary extension of the freeze is qualifications of bank management to years. Thus, the freeze was set to expire not intended to reflect on the ultimate administer a trust department and to on October 16, 2003. The purpose of the resolution of the use of this band, but ensure that bank’s financial condition three year freeze was to give hospitals is intended to maintain the FCC’s will not be jeopardized as a result of sufficient time to migrate their medical regulatory options in the band pending trust operations. telemetry operations from the 460–470 the resolution of such issues described 2. Type of Review: Renewal of a MHz band to the new WMTS bands. herein and to the continue to protect Currently Approved Collection.

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Title: Appraisal Standards. also will be available for inspection at from the National Information Center OMB Number: 3064–0103. the office of the Board of Governors. Web site at www.ffiec.gov/nic/. Annual Burden: Interested persons may express their Unless otherwise noted, comments Estimated annual number of views in writing to the Reserve Bank regarding each of these applications respondents: 5,346. indicated for that notice or to the offices must be received at the Reserve Bank Estimated number of responses: of the Board of Governors. Comments indicated or the offices of the Board of 328,600. must be received not later than January Governors not later than January 12, Estimated time per response: 15 2, 2004. 2004. minutes. A. Federal Reserve Bank of Average annual burden hours: 82,150 A. Federal Reserve Bank of Boston Richmond (A. Linwood Gill, III, Vice (Richard Walker, Community Affairs hours. President) 701 East Byrd Street, Expiration Date of OMB Clearance: Officer) 600 Atlantic Avenue, Boston, Richmond, Virginia 23261-4528: Massachusetts 02106-2204: February 29, 2004. 1. Herman Eugene Ratchford, Triangle 1. Manulife Financial Corporation, SUPPLEMENTARY INFORMATION: FIRREA Real Estate of Gastonia, Inc., Herman directs the FDIC to prescribe Eugene Ratchford, Jr., and James Henry Toronto, Canada; to become a bank appropriate standards for the Ratchford, all of Gastonia, North holding company by acquiring 100 performance of real estate appraisals in Carolina, as a group acting in concert to percent of the voting shares of John connection with federally related acquire voting shares of First South Hancock Financial Services, Inc., transactions under its jurisdiction. The Bancorp, Inc., Spartanburg, South Boston, Massachusetts, and thereby information collection activities Carolina, and thereby indirectly acquire indirectly acquire First Signature Bank attributable to 12 CFR part 323 are a voting shares of First South Bank, and Trust Company, Portsmouth, New direct consequence of the statutory Spartanburg, South Carolina. Hampshire. In connection with this application, requirements and the legislative intent. Board of Governors of the Federal Reserve John Hancock Financial Services, Inc., DATES: Comments on these collections System, December 12, 2003. of information are welcome and should Robert deV. Frierson, Boston, Massachusetts; to become a bank holding company by acquiring 100 be submitted on or before January 20, Deputy Secretary of the Board. percent of the voting shares of First 2004, to both the OMB reviewer and the [FR Doc. E3–00587 Filed 12–17–03; 8:45 am] FDIC contact listed below. Signature Bank and Trust Company, BILLING CODE 6210–01–S Portsmouth, New Hampshire. ADDRESSES: Information about this B. Federal Reserve Bank of submission, including copies of the Richmond (A. Linwood Gill, III, Vice proposed collections of information, FEDERAL RESERVE SYSTEM President) 701 East Byrd Street, may be obtained by calling or writing Richmond, Virginia 23261-4528: the FDIC contact listed below. Formations of, Acquisitions by, and • Mail: Leneta G. Gregorie, (202) 898– Mergers of Bank Holding Companies 1. Community Capital Corporation, Greenwood, South Carolina; to merge 3719, Legal Division, Federal Deposit The companies listed in this notice with Abbeville Capital Corporation, Insurance Corporation, 550 17th Street, have applied to the Board for approval, Abbeville, South Carolina, and thereby NW., Washington, DC 20429. pursuant to the Bank Holding Company indirectly acquire The Bank of Joseph F. Lackey, Jr., Office of Act of 1956 (12 U.S.C. 1841 et seq.) Abbeville, Abbeville, South Carolina. Management and Budget, Office of (BHC Act), Regulation Y (12 CFR part Information and Regulatory Affairs, 225), and all other applicable statutes C. Federal Reserve Bank of St. Louis New Executive Office Building, Room and regulations to become a bank (Randall C. Sumner, Vice President) 411 10236, Washington, DC 20503. holding company and/or to acquire the Locust Street, St. Louis, Missouri 63166- Dated: December 10, 2003. assets or the ownership of, control of, or 2034: Federal Deposit Insurance Corporation. the power to vote shares of a bank or 1. Home Bancshares, Inc., Conway, Arkansas; to retain 32.25 percent of the Robert E. Feldman, bank holding company and all of the banks and nonbanking companies voting shares of TCBancorp, Inc., North Executive Secretary. Little Rock, Arkansas, and thereby [FR Doc. E3–00555 Filed 12–17–03; 8:45 am] owned by the bank holding company, including the companies listed below. indirectly retain voting shares of Twin BILLING CODE 6714–01–P The applications listed below, as well City Bank, North Little Rock, Arkansas. as other related filings required by the Board of Governors of the Federal Reserve Board, are available for immediate System, December 12, 2003. FEDERAL RESERVE SYSTEM inspection at the Federal Reserve Bank Robert deV. Frierson, Change in Bank Control Notices; indicated. The application also will be Deputy Secretary of the Board. Acquisition of Shares of Bank or Bank available for inspection at the offices of [FR Doc. E3–00586 Filed 12–17–03; 8:45 am] the Board of Governors. Interested Holding Companies BILLING CODE 6210–01–S persons may express their views in The notificants listed below have writing on the standards enumerated in applied under the Change in Bank the BHC Act (12 U.S.C. 1842(c)). If the FEDERAL RESERVE SYSTEM Control Act (12 U.S.C. 1817(j)) and proposal also involves the acquisition of § 225.41 of the Board’s Regulation Y (12 a nonbanking company, the review also Federal Open Market Committee; CFR 225.41) to acquire a bank or bank includes whether the acquisition of the Domestic Policy Directive of October holding company. The factors that are nonbanking company complies with the 28, 2003 considered in acting on the notices are standards in section 4 of the BHC Act set forth in paragraph 7 of the Act (12 (12 U.S.C. 1843). Unless otherwise In accordance with § 271.25 of its U.S.C. 1817(j)(7)). noted, nonbanking activities will be rules regarding availability of The notices are available for conducted throughout the United States. information (12 CFR part 271), there is immediate inspection at the Federal Additional information on all bank set forth below the domestic policy Reserve Bank indicated. The notices holding companies may be obtained directive issued by the Federal Open

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Market Committee at its meeting held 1. Delete Paragraph, ‘‘K. Office of the • Office of Reserve Affairs (ACM4) on October 28, 2003.1 Surgeon General (ACM),’’ in its entirety Section ACM.20 Functions: The Federal Open Market Committee and replace with the following: (a) Immediate Office of the Surgeon seeks monetary and financial conditions K. Office of the Surgeon General General (ACM): (1) Advises the ASH on that will foster price stability and (ACM) matters relating to protecting and promote sustainable growth in output. Section ACM.00 Mission—The Office advancing the public health of the To further its long–run objectives, the of the Surgeon General (OSG) is headed Nation; (2) manages special Committee in the immediate future by the SG who reports to the Assistant deployments that address Presidential seeks conditions in reserve markets Secretary for Health (ASH), provides and Secretarial initiatives directed consistent with maintaining the federal staff support for: (1) Activities relating toward resolving critical public health funds rate at an average of around 1 to membership on the Board of Regents problems; (3) as requested, serves as a percent. of the Uniformed Services University of spokesperson on behalf of the Secretary By order of the Federal Open Market the Health Sciences and as principal and the ASH, addressing the quality of Committee, December 12, 2003. health official for PHS on matters public health practice on the Nation; (4) related to policies affecting PHS faculty provides supervision of activities Vincent R. Reinhart, and students (10 U.S.C. 2113(a)(3)); (2) relating to the day-to-day management Secretary, Federal Open Market Committee. activities related to responsibilities on of operations and deployment of officers [FR Doc. E3–00588 Field 12–17–03; 8:45 am] other boards are assigned, including the of the Commissioned Corps; (5) BILLING CODE 6210–01–S (a) National Library of Medicine; (b) provides advice to the ASH, Armed Forces Institute of Pathology collaborating with the Office of (AFIP); (c) American Medical Commissioned Corps Management Association (AMA) House of Delegates; (OCCFM), on the policies and DEPARTMENT OF HEALTH AND and (d) Executive Committee, implementation related to the HUMAN SERVICES Association of Military Surgeons of the appointment, promotion, assimilation, United States. The Office provides recognition, professional development, Office of the Secretary support to the SG; (3) in issuing and other matters required for the warnings to the public on identified efficient management of the Corps; (6) Office of Public Health and Science; health hazards; (4) for review of the provides liaison with governmental and Statements of Organizations, particulars of Department of Defense non-governmental organizations on Functions, and Delegations of (DoD) plans for transportation, open matters pertaining to military and Authority testing and disposal of lethal chemicals veterans affairs; (7) directs and oversees and biological agents and in internal office administrative operations Part A, Office of the Secretary (OS) of recommending precautions necessary to (including proposing and executing the Statement of Organization, protect the public health and safety office budgets); and (8) convenes Functions, and Delegation of Authority binding on the Secretary, DoD, which periodic meetings of the flag officers to for the Department of Health and can only be overridden by the President obtain senior level advice concerning Human Services (HHS), chapter AC, (50 U.S.C. 1512 (2) & (3)); (5) the day-to-day management of Corps’ Office of Public Health and Science communicating with professional operations. (OPHS), as last amended at 67 FR societies to receive, solicit, and channel (b) Office of Science and 71568, dated December 2, 2002, is being concerns regarding health policy in Communications (ACM1): (1) amended to reflect the realignment of behalf of the ASH; (6) maintaining Coordinates activities to plan, develop, personnel oversight, administration, and liaison with the Surgeons General of the introduce, and evaluate Surgeon management functions for the U.S. Armed Forces and the Department of General’s Reports, Calls-to-Action, Public Health Service (PHS) Veterans Affairs; (7) representing PHS at workshops, and other authoritative Commissioned Corps in the OPHS. national and international health and statements; (2) advises the SG on Specifically, it realigns these functions professional meetings to interpret PHS science, data, and evidence pertaining in a newly established Office of philosophy, policies, organizational to population-based public health and Commissioned Corps Force responsibilities and programs, as the furtherance of public health Management (ACQ) and in the Office of assigned; (8) providing management and priorities; (3) represents the SG in the Surgeon General (ACM). The oversight for the community-based, efforts to coordinate federal public changes are as follows: civilian Medical Reserve Corps program; health activities with similar activities I. Under Part A, Chapter AC, Office of (9) providing liaison with governmental in the States and local areas; (4) Public Health and Science, make the and non-governmental organizations on coordinates and is responsible for the following changes: matters pertaining to military and preparation of SG correspondence, A. Under Paragraph AC.10 veterans affairs; and, (10) assuring day- speeches, and communications; (5) Organization, insert the following line at to-day management of the Corps’ represents the SG at conferences, the end of the listing: operations, force readiness, and field symposia, and community events; and N. Office of Commissioned Corps command of deployments of the (6) coordinates the receipt of senior Force Management (ACQ) Commissioned Corps. level advice from the Chief Professional B. Under Paragraph AC.20, Functions, Section ACM.10 Organization: Officers, the Surgeon General’s make the following changes: includes the following components: Professional Advisory Council, and • Immediate Office of the Surgeon categorical Professional Advisory 1 Copies of the Minutes of the Federal Open General (ACM) Committees. Market Committee meeting on October 28, 2003, • Office of Science and (c) Office of Commissioned Corps which includes the domestic policy directive issued Communications (ACM1) Operations (ACM2): at the meeting, are available upon request to the • Office of Commissioned Corps Section ACM2.00 Mission: (1) Board of Governors of the Federal Reserve System, Operations (ACM2) Provides advice to the SG on matters Washington, DC 20551. The minutes are published • in the Federal Reserve Bulletin and in the Board’s Office of Force Readiness and related to the day-to-day management of annual report. Deployment (ACM3) Commissioned Corps operations,

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including active duty and reserve • Division of Commissioned Corps a billet management system utilizing components; (2) implements the Recruitment (ACM21) standards developed by OCCFM, and policies established by the ASH for the • Division of Commissioned Corps approved by the ASH; (4) evaluates and operations of the PHS Commissioned Assignment (ACM22) grades billets to which officers are to be Corps; (3) provides for the delivery of • Division of Commissioned Corps assigned in accordance with standards training and for career development, Training and Career Development established by OCCFM; (5) assures that and applies professional credentialing (ACM23) assignments of officers and the billets to • requirements for the Corps; (4) manages Division of Commissioned Corps which assigned are consistent and systems required for selecting personnel Officer Support (ACM24) appropriately categorized and for appointment, promotion, Section ACM2 2.0 Functions identified; (6) reviews all proposed (1) Immediate Office of the Director assimilation, and award recognition, for officer personnel actions and prepares (ACM2): (1) Advises the SG on all evaluating officer performance, and for orders for signature by the ASH; (7) matters related to the operations processes required for disability implements, manages, and monitors management of the PHS Commissioned retirement, disciplinary, and other-than- approved blanket personnel agreements Corps; (2) provides for the day-to-day honorable discharge purposes; (5) and individual details; (8) reviews and management of Commissioned Corps implements officer and force accession recommends to the ASH the temporary operations, implements policies plans through a staff of recruiters, deployment of all officers not received from the ASH for personnel, including an Associate Recruiters specifically under an assignment to training, readiness, assignment, Program; (6) manages personnel another operating or staff division of the deployment, promotion, and retirement administration systems for the Department or another department or for all officers; (3) collaborates with agency; and (9) administers a system to permanent or temporary assignment, OCCFM on the development and deployment, and detail of Corps monitor assignments. implementation of Commissioned Corps (4) Division of Commissioned Corps members; (7) implements policies policies; (4) coordinates the application established by the ASH for Training and Career Development of information technology and support (ACM23): (1) Identifies and manages commissioned and warrant officers on for the execution of OSG activities; (5) active duty, Commissioned Officer training resources required for manages the process for adverse action establishing and maintaining the Student Training Extern Program decisions and other-than-honorable (COSTEP), reserve officers, retired readiness and proficiency of the discharges; and (6) is responsible for the members of the Corps; (2) operates officers, and survivors of deceased appropriate exercise of delegated officers; (8) prepares all personnel Commissioned Officer education and authorities and responsibilities. training systems, providing basic, mid- orders for approval and signature by the (2) Division of Commissioned Corps ASH; (9) makes recommendations to the career, and specialized training Recruitment (ACM21): (1) Implements programs; (3) monitors officer SG on individual details for review and approved programs to assure awareness action by the ASH; (10) reviews and compliance with credentialing of the Corps and its career opportunities standards; (4) implements career makes recommendations on proposed among health professional schools and blanket personnel agreements development programs and provides associations, provider institutions, and individual career counseling; (5) negotiated by the ASH; (11) reviews and the public; (2) in accordance with makes recommendations on the coordinates COSTEP; (6) administers policies, goals, and strategies training programs; and (7) assists temporary deployments of officers not established by the ASH, carries out officers with retirement planning. specifically under an assignment to programs and activities designed to (5) Division of Commissioned Corps another Operating or Staff Division of attract new health personnel to the Officer Support (ACM24): (1) the Department or another Department Corps, to attract officers already in the Coordinates the assignment of members or agency covered by a memorandum of Corps to designated assignments, and to of boards convened for the purpose of agreement or blanket detail agreement; promote the Corps and service in it; (3) recommending appointments, (12) provides technical review and manages an Associate Recruiter Program promotions, assimilation actions, recommendations to the SG on appeals and otherwise mobilizes recruitment approval of award nominations, of adverse actions that would result in activity among the active duty, reserve, disability retirements, and other boards the termination of officers’ commissions and retired officers; (4) assists OCCFM that may be required to support and on formal Equal Employment in promoting the effective and efficient operations; (2) supports the boards Opportunity complaints; (13) maintains utilization of the Corps within all convened by OSG; (3) administers a liaison with the OCCFM, and, as venues where the Corps is utilized; and system for assuring credentialing, directed, with Departmental Operating (5) carries out approved recruitment licensing, and other regulatory and Staff Divisions and, as directed, programs specifically for reserve compliance, and for the periodic with non-departmental entities to which components and other Corps personnel evaluation of the individual members of officers are assigned under blanket asset programs. the Corps, including Corps reserve agreements; and (14) works with (3) Division of Commissioned Corps personnel assets; (4) reviews all OCCFM and agencies to identify career Assignments (ACM22): (1) Addresses personnel evaluations to assure that development assignments, and to and meets the short-term and long-term Corps standards are being maintained; identify officers to be recommended for placement requirements for active-duty and (5) maintains the official personnel directed reassignments where and reserve component personnel records of the Corps. appropriate. established by the ASH and developed (d) Office of Force Readiness and Section ACM2.10 Organization. The by OCCFM, including the Deployment (ACM3): (1) Administers Office of Commissioned Corps Commissioned Corps and the warrant readiness activities to include (a) advice Operations is headed by a Director, who Corps, by category; (2) works with to the ASH and OCCFM on strategic and reports to the SG, and includes the OCCFM to identify and categorize the long term readiness planning, (b) following components: types of assignments for which Corps assurance of the accuracy and • Immediate Office of the Director members and its reserve personnel maintenance of an adequate roster of the (ACM2) assets may be required; (3) implements readiness status of officers, (c)

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development and maintenance of committees; (3) develops workforce and services; (5) reviews the Commissioned systems for the tracking, mission critical officer standards, conducts workforce Corps Personnel Services budget as training, mobilization, and deployment planning for all components of the established through the Service and of commissioned officers; (d) Commissioned Corps and evaluates Supply Fund Board and provides supervision of a teaching staff charged workforce effectiveness; (4) maintains liaison with that Board; (6) oversees the with officer instruction using plans, the Commissioned Corps Personnel policy development and strategies, and materials, consistent with Manual (CCPM); (5) in coordination implementation for the activities carried policy developed by the ASH, necessary with OPHS budget staff, prepares and out by the Program Support Center for officers to fulfill readiness and executes the Commissioned Corps (PSC) and/or other contractors for the deployment standards; and (e) Personnel Services budget as implementation of Corps-related coordination of logistics for after-action established through the Service and services; (7) assures the availability of requirements about deployments; (2) Supply Fund Board and provides information technology and support for administers and oversees mobile liaison with that Board; (6) serves as the the execution of Commissioned Corps medical teams and other special Secretariat for the Public Health Service personnel activities for OCCFM and operations team activities and supports Commissioned Corps Council; (7) OSG; (8) works with external federal the OASPHEP with resources as convenes periodic meetings of the flag and non-federal organizations to required for emergency operations at officers, on behalf of the Secretary and develop memorandums of agreement headquarters and in the field; (3) chaired by the ASH, to obtain senior and contracts as required for the provides day-to-day management and level policy advise; (8) develops policies effective management and oversight of oversight of the USA Freedom Corps and programs for the recruitment, the Corps, including the proper Medical Reserve Corps (MRC) program appointment, promotion, assimilation, assignment of contracted duties and by: (a) Managing the MRC grant program training, and evaluation of all evaluation of contractor performance; and (b) providing technical assistance to commissioned and warrant officers of and (9) collaborates with other elements MRC communities on a variety of the Commissioned Corps; (9) establishes of the Department as appropriate to community and outreach issues; (4) time lines, performance standards, and acquire legal opinions and services as maintains liaison with the OSPHEP and measurements for the evaluation of the needed, and coordinates legislative other Federal entities as appropriate; operations and management of the activities. and (5) manages and supervises Commissioned Corps; (10) works closely (b) Recruitment, Marketing, and temporary deployments of all officers with the OSG to facilitate operations Information Systems Division (ACQ1): not specifically under an assignment to and implementation of policies and (1) Develops recruitment strategies, another Operating or Staff Division of programs; and (11) oversees the programs, materials, and other resources the Department or another Department Beneficiary Medical Program, systems directed toward attracting health or agency. for the compensation of members of the professional audiences who are (e) Office of Reserve Affairs (ACM4): Corps, and the programs for survivor potential candidates to apply for and to (1) Develops and maintains reserve assistance, medical affairs, and any become officers serving in the active components or assets, except for other function that may be conducted in duty and reserve components of the extended active duty reserve officers, in behalf of the ASH under a contract or Commissioned Corps; (2) plans and accordance with established plans; (2) memorandum of agreement, or prepares a public affairs program designed to raise awareness of members serves as the SG’s principal advisor on performed within any other component of the public, the press, and other activities related to the preparedness of the department. external constituencies, to promote and activation of the Corps reserve Section ACQ.10 Organization. The interest in the activities of the personnel assets; (3) in conjunction with Office of Commissioned Corps Force Commissioned Corps; (3) develops and the OCCFM conducts strategic and long- Management is headed by a Director, oversees information technology and term planning for Corps reserve who reports to the ASH, and includes systems to support recruitment, personnel assets; and (4) coordinates the the following components: • personnel and Corps management assignments of Corps reserve personnel Immediate Office of the Director functions and collaborates with the OSG assets, to support the missions of HHS (ACQ) • Recruitment, Marketing, and on their implementation, usage, and as well as those of the DoD, the U.S. Information Systems Division (ACQ1) improvement; (4) provides daily liaison Coast Guard, the National • Workforce Policy and Plans with agencies and their respective Oceanographic and Atmospheric Division (ACQ2) human resource functions to promote Administration, the Department of • Program Evaluation and Oversight the effective and efficient use of officers Justice, and other federal, state, and Division (ACQ3) and to incorporate agency-specific local agencies. Section ACQ.20 Functions: marketing information into recruiting 2. At the end of Section AC.20 (a) Immediate Office of the Director programs. Functions, insert the following new (ACQ): (1) Advises the ASH on all (c) Force Policy and Plans Division component: matters related to the development of (ACQ2): (1) Conducts a program of N. Office of Commissioned Corps policies affecting all officers, whether comprehensive force planning including Force Management (ACQ) active-duty, reserve, or retired; (2) a billet evaluation and management Section ACQ.00 Mission. The Office convenes and manages policy and system, including working with of Commissioned Corps Force planning related boards and agencies to determine requirements for Management (OCCFM), under the committees; (3) directs the development commissioned corps staffing by direction of a Director who reports to of issuances and maintenance of the professional category, and developing the ASH, (1) Develops policies and Commissioned Corps Personnel Manual, short and long-term manpower proposes regulations in order to carry including all policies and regulations projections to assist in directing out a comprehensive force management requiring approval of the ASH or the recruitment; (2) develops issuances for, program for the Commissioned Corps; Secretary; (4) develops and executes the and maintains, the CCPM, as well as (2) convenes and manages policy and budget for the operation of OCCFM, regulations required for the management planning related boards and including contracted or subsidiary of the Commissioned Corps; (3)

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develops a broad range of personnel effect prior to this reorganization are NCHS National Health Interview standards, including commissioning, continue in full force and effect. Survey) and other federally sponsored professional, and officer competency III. Delegation of Authority: All surveys. The most common standards; (4) develops training and delegations and redelegations of questionnaire evaluation method is the education policy and career authority made by officials and cognitive interview. In a cognitive development guidelines and materials; employees of affected organizational interview, a questionnaire design (5) develops and maintains policies for components will continue in them or specialist interviews a volunteer billet description, grading, and their successors pending further participant. The interviewer administers classification that reflect both redelegation, provided they are the draft survey questions as written, commissioned corps and agency consistent with this reorganization. probes the participant in depth about requirements; (6) advises the ASH on IV. Funds, Personnel, and Equipment: interpretations of questions, recall Transfer of organizations and functions policy pertaining to deployments, and processes used to answer questions and affected by this reorganization shall be on mission nature, size, duration and adequacy of response categories to accompanied by direct and support mix and blend of the use of active duty express answers, while noting points of funds, positions, personnel, records, and reserve officers for deployments; (7) confusion and errors in responding. conducts force planning for all elements equipment, supplies and other of reserve assets, and recommends resources. Interviews are generally conducted in policy to support plans, goals, and Dated: December 11, 2003. small rounds of 12 interviews; the objectives; (8) develops policy, Ed Sontag, questionnaire is re-worked between rounds, and revisions are tested guidelines, and standard memoranda of Assistant Secretary for Administration and agreement for individual and blanket Management. iteratively until interviews yield relatively few new insights. When details; and (9) works with the Program [FR Doc. 03–31242 Filed 12–17–03; 8:45 am] Evaluation and Oversight Division and possible, cognitive interviews are BILLING CODE 4150–28–M other uniformed services to identify and conducted in the survey’s intended adapt best practices to improve mode of administration. For example, efficiency and effectiveness, and for the DEPARTMENT OF HEALTH AND when testing telephone survey purpose of developing systems to HUMAN SERVICES questionnaires, participants often provide the highest quality services to respond to the questions via a telephone the agencies and to the commissioned Centers for Disease Control and in a laboratory room. This method officer community. Prevention forces the participant to answer without (d) Program Evaluation and Oversight [30Day–10–04] face-to-face interaction, yet it still Division (ACQ3): (1) Develops and allows QDRL staff to observe response implements evaluations and Proposed Data Collections Submitted difficulties, and to conduct a face-to- assessments of the Commissioned Corps for Public Comment and face debriefing. Five types of activities in meeting its goals, objectives and Recommendations will be carried out: (1) Survey milestones; (2) manages relationships questionnaire development and testing with the PSC and all contractors; (3) The Centers for Disease Control and based on cognitive interviewing assures that programs contain Prevention (CDC) publishes a list of methodology; (2) Research on the appropriately time framed goals, information collection requests under cognitive aspects of survey objectives, and outcomes by which to review by the Office of Management and methodology; (3) Research on computer- monitor and assess progress and Budget (OMB) in compliance with the user interface design for computer- performance; (4) conducts after action Paperwork Reduction Act (44 U.S.C. assisted instruments, also known as assessments and evaluations pertaining Chapter 35). To request a copy of these usability testing; (4) Pilot household to the use of the Commissioned Corps requests, call the CDC Reports Clearance interviews; and (5) Studies of the for deployments, special assignments, or Officer at (404) 498–1210. Send written optimal design and presentation of other non-routine uses of officers; (5) comments to CDC, Desk Officer, Human statistical, graphical and textual oversees and evaluates the medical Resources and Housing Branch, New materials. benefit and payroll programs; (6) Executive Office Building, Room 10235, conducts periodic program reviews of Washington, DC 20503 or by fax to (202) In general, cognitive interviewing all aspects of the management and 395–6974. Written comments should be provides useful data on questionnaire utilization of the Commissioned Corps; received within 30 days of this notice. performance at minimal cost and and (7) develops methods and Proposed Project: NCHS respondent burden (note that approaches to monitor satisfaction and Questionnaire Design Research respondents receive remuneration for follow up concerning services provided Laboratory (OMB No. 0920–0222)— their travel and effort). Similar to various customers, and provides Revision—National Center for Health methodology has been adopted by other feedback to program officials. Statistics (NCHS), Centers for Disease federal agencies, as well as by academic II. Continuation of Policy: Except as Control and Prevention (CDC). The and commercial survey organizations. inconsistent with this reorganization, all NCHS Questionnaire Design Research The estimated annualized burden for statements of policy and interpretations Laboratory (QDRL) conducts this data collection is 600 hours. CDC is with respect to the Commissioned Corps questionnaire pre-testing and evaluation requesting OMB approval of this data of the PHS heretofore issued and in activities for CDC surveys (such as the collection for 3 years.

Average bur- Number of re- Number of re- den per re- Anticipated 2004–2007 projects spondents sponses per sponse respondent (in hours)

QDRL Laboratory Interviews: (1) National Health Interview Survey (NHIS) modules ...... 100 1 1.25

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Average bur- Number of re- Number of re- den per re- Anticipated 2004–2007 projects spondents sponses per sponse respondent (in hours)

(2) Behavioral Risk Factor Surveillance System Survey (BRFSS) ...... 50 1 1.25 (3) Healthy People 2010 (HP 2010) ...... 50 1 1.25 (4) National Survey of Family Growth (NSFG) ...... 50 1 1.25 (5) Pregnancy Risk Assessment Monitoring System (PRAMS) ...... 50 1 1.25 (6) National Health and Nutrition Examination Survey (NHANES) ...... 50 1 1.25 (7) Other questionnaire testing: 2004 ...... 100 1 1.25 2005 ...... 100 1 1.25 2006 ...... 100 1 1.25 (8) Perceptions of Quality of Life project ...... 80 1 1.25 (9) Perceptions of Confidentiality Project ...... 50 1 1.25 (10) Perception of Statistical Maps Project ...... 50 1 1.25 (11) General Methodological Research ...... 100 1 1.25 Pilot Household Interviews: 2004 NHIS Modules ...... 50 1 1.25 2005 NHIS Modules ...... 50 1 1.25 2006 NHIS Modules ...... 50 1 1.25 Focus Groups (10 groups of 10 for three years) ...... 300 1 1.50

Dated: December 8, 2003. Prevention (NCHSTP) at the Centers for Epidemiology Branch, Division of HIV/ Alvin Hall, Disease Control and Prevention (CDC) of AIDS Prevention—Surveillance and Director, Management Analysis and Services the Department of Health and Human Epidemiology, NCHSTP, CDC, 1600 Office, Centers for Disease Control And Services (DHHS) seeks one or more Clifton Road, Mailstop E–45, Atlanta, Prevention. pharmaceutical, biotechnical, or other GA 30333; Phone: (direct) 404–639– [FR Doc. 03–31187 Filed 12–17–03; 8:45 am] companies that hold a proprietary 5259, (office) 404–639–6130; Fax: 404– BILLING CODE 4163–18–P position on agents which may be useful 639–6127; e-mail: [email protected]. as microbicides to prevent sexual Scientific questions should be transmission of HIV infection. The addressed to Lisa A. Grohskopf, MD, DEPARTMENT OF HEALTH AND selected company and CDC will execute MPH, Epidemiology Branch, Division of HUMAN SERVICES an Agreement under which the HIV/AIDS Prevention—Surveillance company will provide a product for and Epidemiology, NCHSTP, CDC, 1600 Centers for Disease Control and CDC to study the product’s safety and Clifton Road, Mailstop E–45, Atlanta, Prevention preliminary efficacy as a topical GA 30333; Phone: (direct) 404–639– microbicide. Initial studies will include 6116, (office) 404–639–6146; Fax: 404– Opportunity To Collaborate in the in-vitro assays and may include 639–6127; e-mail: [email protected]. Evaluation of Topical Microbicides To macaque studies. Agents will be Inquiries directed to ‘‘Agreement’’ Reduce Sexual Transmission of selected for phase I and phase II trials documents related to participation in Human Immunodeficiency Virus (HIV) in women and men based upon data this opportunity should be addressed to AGENCY: Centers for Disease Control and obtained in the CDC studies as well as Thomas E. O’Toole, MPH, Deputy Prevention, Department of Health and other available published and Director, Technology Transfer Office, Human Services (DHHS). unpublished safety and efficacy data. CDC, 1600 Clifton Road, Mailstop K–79, Each collaboration would have an Atlanta, GA 30333; Phone: (direct) 770– ACTION: Opportunities for collaboration expected duration of one (1) to five (5) 488–8611, (office) 770–488–8607; Fax: for evaluation of topical microbicides. years. The goals of the collaboration 770–488–8615; e-mail: [email protected]. The Centers for Disease Control and include the timely development of data SUPPLEMENTARY INFORMATION: Prevention (CDC), National Center for to further the identification and HIV, STD, and TB Prevention commercialization of effective topical Technology Available (NCHSTP), Division of HIV/AIDS microbicides and the rapid publication One mission of the Epidemiology Prevention-Surveillance and of research findings to increase the Branch (EpiBr) of DHAP–SE/NCHSTP is Epidemiology (DHAP–SE), number of HIV prevention technologies to develop and evaluate biomedical Epidemiology Branch (EpiBr), proven effective and available for use. interventions to reduce HIV announces an opportunity for Confidential proposals, preferably 10 transmission. To this end, the EpiBr is collaboration to evaluate the safety and pages or less (excluding appendices), establishing contracts to conduct phase preliminary efficacy of topical are solicited from companies with I and phase II trials of topical microbicides designed for vaginal and/ patented or licensed agents which have microbicides. EpiBr also funds research or rectal application to reduce HIV undergone sufficient preclinical testing in the Division of AIDS, STD, and TB transmission. These evaluations will to be prepared to submit an Laboratory Research (DASTLR) of the include in-vitro assays, macaque Investigational New Drug (IND) National Center for Infectious Diseases studies, and phase I/phase II trials in application to the FDA within six (NCID) at CDC and with external women and men. months of submitting the proposal. laboratories to conduct macaque studies SUMMARY: The Division of HIV/AIDS DATES: This Notice will be open and in-vitro studies in support of Prevention-Surveillance and indefinitely. human microbicide trials. The goal of Epidemiology (DHAP–SE) of the ADDRESSES: Formal proposals should be these efforts is to provide scientific and National Center of HIV, STD, and TB submitted to Carmen Villar, technical expertise and key resources

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for the evaluation of topical (1) Providing intellectual, scientific, ACTION: Notice. microbicides through late preclinical, and technical expertise and experience phase I and phase II safety and phase II to the research project; SUMMARY: The Food and Drug efficacy clinical trials. (2) Participating in the planning of Administration (FDA) is announcing research studies, interpretation of Technology Sought that we have revised the Advisory research results, and as appropriate, Committee Information Hotline (the EpiBr now seeks potential joint publication of conclusions; hotline). The hotline provides the (3) Providing NCHSTP access to collaborators having licensed or public with access to the most current necessary proprietary technology and/or patented agents for use as vaginal and/ information available on FDA advisory or rectal microbicides which: data in support of the research activities; and committee meetings. This notice (1) Have laboratory or animal model supersedes all previously published evidence of anti-HIV activity; (4) Providing NCHSTP clinical grade announcements of FDA’s Advisory (2) Have been formulated for vaginal (c-GMP) agent for use in preclinical and Committee Information Hotline. or rectal application; clinical studies covered in this collaboration. (3) Are not entering phase III clinical FOR FURTHER INFORMATION CONTACT: Other contributions may be necessary trial in the next 12 months; Theresa L. Green, Committee for particular proposals. (4) Have sufficient preclinical data to Management Officer (HF–4), Food and submit an IND application within Selection Criteria Drug Administration, 5600 Fishers approximately six months following In addition to evidence of the ability Lane, Rockville, MD 20857, 301–827– submission of proposal; and to fulfill the roles described above, 1220. (5) Have manufacturing arrangements proposals submitted for consideration for production of clinical trial-grade should address, as best as possible and SUPPLEMENTARY INFORMATION: The product (and applicator if necessary) to the extent relevant to the proposal, Advisory Committee Information under Good Manufacturing Process (c- each of the following: Hotline can be accessed by dialing 1– GMP) standards. (1) Data on the in-vitro anti-HIV 800–741–8138 or 301–443–0572. The activity of the agent; advisory committee meeting NCHSTP and Collaborator (2) Animal and other data on the information and information updates Responsibilities safety of the agent when applied to can also be accessed via FDA’s Advisory The NCHSTP anticipates that its role mucosal surfaces; Committee calendar at http:// may include, but not be limited to, the (3) Data on the effects of the agent on www.fda.gov/oc/advisory/accalendar/ following: vaginal and/or rectal commensal accalendar.html. (1) Providing intellectual, scientific, microbial organisms; and Each advisory committee is assigned and technical expertise and experience (4) Data on the in-vitro activity of the a 10-digit number. This 10-digit number to the research project; agent against other sexually transmitted will appear in each individual notice of (2) Planning and conducting organisms. meeting. The public can obtain preclinical (in-vitro and in-vivo) Dated: December 11, 2003. information about a particular advisory research studies of the agent and Joseph R. Carter, committee meeting by using the interpreting results; Deputy Chief Operating Officer, Centers for (3) Publishing research results; Disease Control and Prevention. committee’s 10-digit number. Information on the hotline is (4) Depending on the results of these [FR Doc. 03–31186 Filed 12–17–03; 8:45 am] preliminary and may change before a preclinical investigations, NCHSTP may BILLING CODE 4163–18–P elect to conduct additional research meeting is actually held. The hotline with macaques to evaluate safety and/or will be updated when such changes are efficacy proof-of-concept; and DEPARTMENT OF HEALTH AND made. The following is a list of each (5) Depending on the results of HUMAN SERVICES advisory committee’s 10-digit number to preclinical and/or macaque studies and be used when accessing the hotline. FDA approval, NCHSTP may elect to Food and Drug Administration conduct phase I/II clinical trials of the Advisory Committee Information agent. Hotline The NCHSTP anticipates that the role of the successful collaborator(s) will AGENCY: Food and Drug Administration, include the following: HHS.

ADVISORY COMMITTEE NUMBER

OFFICE OF THE COMMISSIONER Science Board to the FDA ...... 3014512603 CENTER FOR BIOLOGICS EVALUATION AND RESEARCH Allergenic Products Advisory Committee ...... 3014512388 Biological Response Modifiers Advisory Committee ...... 3014512389 Blood Products Advisory Committee ...... 3014519516 Transmissible Spongiform Encephalopathies Advisory Committee ...... 3014512392 Vaccines and Related Biological Products Advisory Committee ...... 3014512391 CENTER FOR DRUG EVALUATION AND RESEARCH Anesthetic and Life Support Drugs Advisory Committee ...... 3014512529 Anti-Infective Drugs Advisory Committee (Peds SubC) ...... 3014512530 Antiviral Drugs Advisory Committee ...... 3014512531 Arthritis Advisory Committee ...... 3014512532 Cardiovascular and Renal Drugs Advisory Committee ...... 3014512533

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ADVISORY COMMITTEE NUMBER

Dermatologic and Ophthalmic Drugs Advisory Committee ...... 3014512534 Drug Safety and Risk Management Advisory Committee (Drug Abuse Subcommittee) ...... 3014512535 Endocrinologic and Metabolic Drugs Advisory Committee ...... 3014512536 Gastrointestinal Drugs Advisory Committee ...... 3014512538 Nonprescription Drugs Advisory Committee ...... 3014512541 Oncologic Drugs Advisory Committee ...... 3014512542 Peripheral and Central Nervous System Drugs Advisory Committee ...... 3014512543 Pharmaceutical Science, Advisory Committee for ...... 3014512539 Psychopharmacologic Drugs Advisory Committee ...... 3014512544 Pulmonary-Allergy Drugs Advisory Committee ...... 3014512545 Reproductive Health Drugs, Advisory Committee for ...... 3014512537 CENTER FOR FOOD SAFETY AND APPLIED NUTRITION Food Advisory Committee (full committee and subcommittees) ...... 3014510564 Additives and Ingredients Subcommittee Biotechnology Subcommittee Contaminants and Natural Toxicants Subcommittee Dietary Supplements Subcommittee Infant Formula Subcommittee Nutrition Subcommittee CENTER FOR DEVICES AND RADIOLOGICAL HEALTH Device Good Manufacturing Practice Advisory Committee ...... 3014512398 Medical Devices Advisory Committee (comprised of 18 panels) ...... N/A Anesthesiology and Respiratory Therapy Devices Panel ...... 3014512624 Circulatory System Devices Panel ...... 3014512625 Clinical Chemistry and Clinical Toxicology Devices Panel ...... 3014512514 Dental Products Panel ...... 3014512518 Ear, Nose, and Throat Devices Panel ...... 3014512522 Gastroenterology-Urology Devices Panel ...... 3014512523 General and Plastic Surgery Devices Panel ...... 3014512519 General Hospital and Personal Use Devices Panel ...... 3014512520 Hematology and Pathology Devices Panel ...... 3014512515 Immunology Devices Panel ...... 3014512516 Medical Devices Dispute Resolution Panel ...... 3014510232 Microbiology Devices Panel ...... 3014512517 Molecular and Clinical Genetics Panel ...... 3014510231 Neurological Devices Panel ...... 3014512513 Obstetrics-Gynecology Devices ...... 3014512524 Ophthalmic Devices Panel ...... 3014512396 Orthopaedic and Rehabilitation Devices Panel ...... 3014512521 Radiological Devices Panel ...... 3014512526 National Mammography Quality Assurance Advisory Committee ...... 3014512397 Technical Electronic Product Radiation Safety Standards Committee ...... 3014512399 CENTER FOR VETERINARY MEDICINE Veterinary Medicine Advisory Committee ...... 3014512548 NATIONAL CENTER FOR TOXICOLOGICAL RESEARCH Science Advisory Board to NCTR ...... 3014512559 Advisory Committee on Special Studies Relating to the Possible Long-Term Health Effects of Phenoxy Herbicides 3014512560 and Contaminants.

The hotline will provide the most This notice is issued under the DEPARTMENT OF HEALTH AND recent information available on Federal Advisory Committee Act (5 HUMAN SERVICES upcoming advisory committee meetings, U.S.C. app. 2) and 21 CFR part 14, guidance for making an oral relating to advisory committees. Food and Drug Administration presentation during the open public Dated: December 10, 2003. [Docket No. 2002D–0371] hearing portion of a meeting, and Peter J. Pitts, procedures on obtaining copies of Class II Special Controls Guidance transcripts of advisory committee Associate Commissioner for External Document: Human Dura Mater; Relations. meetings. Because the hotline will Guidance for Industry and FDA; communicate the most current [FR Doc. 03–31157 Filed 12–17–03; 8:45 am] Availability BILLING CODE 4160–01–S information available about any AGENCY: Food and Drug Administration, particular advisory committee meeting, HHS. this system will provide interested ACTION: Notice. parties with timely and equal access to such information. The hotline should SUMMARY: The Food and Drug also conserve agency resources by Administration (FDA) is announcing the reducing the current volume of inquiries availability of the guidance entitled individual FDA offices and employees ‘‘Class II Special Controls Guidance must handle concerning advisory Document: Human Dura Mater.’’ This committee schedules and procedures. guidance document describes a means

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by which human dura mater may current thinking on the human dura on video conferencing and electronic comply with the requirement of special mater device. It does not create or confer submissions, Mammography Matters, controls for class II devices. Elsewhere any rights for or on any person and does and other device-oriented information. in this issue of the Federal Register, not operate to bind FDA or the public. The CDRH Web site may be accessed at FDA is publishing a final rule to classify An alternative approach may be used if http://www.fda.gov/cdrh. A search this device type into class II (special such approach satisfies the capability for all CDRH guidance controls). requirements of the applicable statute documents is available at http:// DATES: Submit written or electronic and regulations. www.fda.gov/cdrh/guidance.html. comments on the guidance at any time. III. Paperwork Reduction Act of 1995 Guidance documents are also available on the Division of Dockets Management ADDRESSES: Submit written requests for This guidance contains information single copies on a 3.5’’ diskette of the Internet site at http://www.fda.gov/ collection provisions that are subject to ohrms/dockets. guidance document entitled ‘‘Class II review by the Office of Management and Special Controls Guidance Document: Budget (OMB) under the Paperwork Dated: December 5, 2003. Human Dura Mater’’ to the Division of Reduction Act of 1995 (the PRA)(44 Linda S. Kahan, Small Manufacturers, International, and USC 3501–3520). The collections of Deputy Director, Center for Devices and Consumer Assistance (HFZ–220), Center information addressed in the guidance Radiologiccal Health. for Devices and Radiological Health document have been approved by OMB [FR Doc. 03–31175 Filed 12–17–03; 8:45 am] (CDRH), Food and Drug Administration, in accordance with the PRA under the BILLING CODE 4160–01–S 1350 Piccard Dr., Rockville, MD 20850. regulations governing premarket Send one self-addressed adhesive label notification submissions (21 CFR part to assist that office in processing your 807, subpart E; OMB Control No. 0910– DEPARTMENT OF HEALTH AND request, or fax your request to 301–443– 0120). The labeling provisions HUMAN SERVICES 8818. Submit written comments addressed in the guidance have been Substance Abuse and Mental Health concerning this guidance to the Division approved by OMB under the PRA under Services Administration of Dockets Management (HFA–305), OMB Control No. 0910–0485. Food and Drug Administration, 5630 Fiscal Year (FY) 2004 Funding Fishers Lane, rm. 1061, Rockville, MD IV. Comments Opportunity 20852. Submit electronic comments to Interested persons may submit to the http://www.fda.gov/dockets/ecomments. Division of Dockets Management (see ACTION: Notice of funding availability See the SUPPLEMENTARY INFORMATION ADDRESSES ) written or electronic for Statewide Family Network Grants. section for information on electronic comments on the guidance at any time. access to the guidance. Two copies of mailed comments are to be submitted, except that individuals Authority: Section 520 A of the Public FOR FURTHER INFORMATION CONTACT: Health Service Act, as amended and subject Charles N. Durfor, Center for Devices may submit one copy. Comments are to to the availability of funds. be identified with the docket number and Radiological Health (HFZ–410), SUMMARY: The Substance Abuse and Food and Drug Administration, 9200 found in brackets in the heading of this Mental Health Services Administration Corporate Blvd., Rockville, MD 20850, document. The guidance and received (SAMHSA), Center for Mental Health 301–594–3090. comments are available for public Services (CMHS) announces the SUPPLEMENTARY INFORMATION: examination in the Division of Dockets availability of FY 2004 funds for Management between 9 a.m. and 4 p.m., I. Background Statewide Family Network Grants. A Monday through Friday. synopsis of this funding opportunity, as In the Federal Register of October 22, V. Electronic Access well as many other Federal Government 2002 (67 FR 64835), FDA published a funding opportunities, is also available proposed rule to classify human dura To receive a copy of ‘‘Class II Special Controls Guidance Document: Human at the Internet site: http:// mater into class II (special controls). www.grants.gov. FDA identified the draft guidance Dura Mater’’ by fax machine, call the For complete instructions, potential document entitled ‘‘Class II Special CDRH Facts-On-Demand system at 800– applicants must obtain a copy of the Controls Guidance Document: Human 899–0381 or 301–827–0111 from a standard Infrastructure Grants Program Dura Mater; Draft Guidance for Industry touch-tone telephone. Press 1 to enter Announcement (INF–04 PA), and the and FDA’’ as the special control, in the system. At the second voice prompt, PHS 5161–1 (Rev. 7/00) application conjunction with general controls, that press 1 to order a document. Enter the form before preparing and submitting an is capable of providing reasonable document number (054) followed by the application. The INF–04 PA describes assurance of safety and effectiveness for pound sign (#). Follow the remaining the general program design and this device. voice prompts to complete your request. FDA invited interested persons to Persons interested in obtaining a copy provides instructions for applying for all comment on the draft guidance by of the guidance may also do so by using SAMHSA Infrastructure Grants, January 21, 2003. FDA received one the Internet. CDRH maintains an entry including Statewide Family Network comment that informed the agency of on the Internet for easy access to Grants. Additional instructions and research findings concerning information including text, graphics, requirements specific to the Statewide Creutzfeldt-Jakob Disease. The comment and files that may be downloaded to a Family Network Grants are described did not express any opinion on the personal computer with Internet access. below. guidance. Updated on a regular basis, the CDRH Funding Opportunity Title: Statewide home page includes device safety alerts, Family Network Grants. II. Significance of Guidance Federal Register reprints, information Announcement Type: Initial. This guidance is being issued on premarket submissions (including Funding Opportunity Number: SM consistent with FDA’s good guidance lists of approved applications and 04–004. practices regulation (21 CFR 10.115). manufacturers’ addresses), small Catalog of Federal Domestic The guidance represents the agency’s manufacturer’s assistance, information Assistance (CFDA) Number: 93.243.

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Due Date for Applications: February Background: The Statewide Family funds will be appropriated to permit 27, 2004. Network Program builds on the work of SAMHSA to fund any applications. You will be notified by postal mail The Child, Adolescent and Services Period of Support: Awards will be that your application has been received. Systems Program (CASSP), which made for project periods of up to three helped to establish a child and family years, with annual continuations Note: Letters from State Single Point of depending on the availability of funds, Contact (SPOC) in response to E.O. 12372 are focus in programs serving children and due April 27, 2004. adolescents with serious emotional grantee progress in meeting program disturbances around the county. Today, goals and objectives, and timely Funding Instrument: Grant. nearly every State has active family submission of required data and reports. Funding Opportunity Description: organizations dedicated to promoting Eligible Applicants: Eligible The Statewide Family Networks systems of care that are responsive to applicants are limited to domestic program is one of SAMHSA’s the needs of children and adolescents private, nonprofit entities, including Infrastructure Grants programs. with serious emotional disturbances and faith-based entities, tribal family SAMHSA’s Infrastructure Grants their families. Although significant organizations, and currently funded provide funds to increase the capacity of progress has been made, further support Statewide Family Networks grantees mental health and/or substance abuse will ensure self-sufficient, empowered that: (1) Are controlled and managed by service systems to support programs and networks that will effectively participate family members; (2) are dedicated to the services. SAMHSA’s Infrastructure in State and local mental health services improvement of mental health services Grants are intended for applicants planning and health care reform statewide; and (3) have a Board of seeking Federal support to develop or activities related to improving Directors comprised of no less than 51 enhance their service system community-based services for children percent family members. SAMHSA is infrastructure in order to support and adolescents with serious emotional limiting eligibility to family-controlled effective substance abuse and/or mental disturbances and their families. organizations because the goals of this grant program are to: strengthen the health service delivery. Statewide Estimated Funding Available/Number Family Network Grants are intended for capacity of families to act as agents of of Awards: It is expected that $2.8 transformation in influencing the type applicants seeking Federal support to million will be available to fund 43 act as ‘‘Agents of Transformation’’ in and amount of services provided to awards in FY 2004, with a limit of one them and to their children who have a developing or enhancing their service award per State. Only Category 1— system infrastructure in order to support serious emotional disturbance and to Small Infrastructure Grant awards, as ensure that their mental health care is effective substance abuse and/or mental defined in the INF–04 PA, will be made. health service delivery which is consumer and family driven. Applicants In general, these Category 1 awards are will be required to complete and sign a consumer and family driven. The expected to be up to $60,000 per year Statewide Family Network Program is a Certification of Eligibility and provide in total costs (direct and indirect). Up to necessary supportive documentation. critical part of the SAMHSA/CMHS 22 grantees with projects that include a effort to implement the President’s New This certification will be provided in youth leadership component may the application kit, available from the Freedom Commission on Mental Health receive an additional $10,000 per year. Report. National Mental Health Information Applications without a youth leadership Center, and will also be posted on the The purpose of the Statewide Family component that include proposed SAMHSA Web page along with the Networks program is to enhance State budgets that exceed $60,000 in any year NOFA. capacity and infrastructure to be more will be returned without review. Additional information regarding oriented to the needs of children and Applications with a youth leadership eligibility, including program adolescents with serious emotional component that include proposed requirements and formatting disturbances and their families. The budgets that exceed $70,000 in any year requirements, is provided in the INF–04 programs goals are to: (1) Strengthen will be returned without review. The PA. Applications that do not comply organizational relationships; (2) foster actual amount available for the awards with these requirements will be leadership and business management may vary, depending on unanticipated screened out and will not be reviewed. skills among families of children and program requirements and the number Is Cost Sharing or Matching Required: adolescents with serious emotional and quality of the applications received. No. disturbance; and (3) identify and This program is being announced prior Exceptions to the INF–04 and Other address the technical assistance needs to the annual appropriation for FY 2004 Special Requirements: The following of children and adolescents with serious for SAMHSA’s programs, with funding information describes exceptions or emotional disturbances and their estimates based on the President’s limitations to the INF–04 PA and families. To achieve this goal, the budget request for FY 2004 and/or provides special requirements that program assists family members around preliminary Congressional action on pertain only to the Statewide Family the country to work with policy makers SAMHSA’s appropriation. Applications Network Grants: and service providers to improve are invited based on the assumption that • Review Criteria/Project Narrative: services for children and adolescents sufficient funds will be appropriated for Applicants for Statewide Family with serious emotional disturbances and FY 2004 to permit funding of a Networks grants are required to address their families. The Statewide Family reasonable number of applications the following requirements in the Networks Program is designed to ensure hereby solicited. This program is being Project Narrative of their applications, that families are the catalysts for announced in order to allow applicants in addition to the requirements transforming the mental health and sufficient time to plan and prepare specified in the INF–04 PA: related systems in their State by applications. Solicitation of applications (1) In Section B, applicants must strengthening coalitions among family in advance of a final appropriation will describe how the primary focus of the members, and between family members also enable the award of appropriated proposed project will be on training and policymakers and service providers, grant funds in an expeditious manner. capacity, network development (i.e., recognizing that family members are the All applicants are reminded, however, with other consumer and family best and most effective change agents. that we cannot guarantee that sufficient organizations), organizational and

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community readiness, and policy • An increase of families served; and Public Health System Impact development to support best practices. • An increase in the number of Statement: The Public Health System (2) In Section B, applicants must grantees that demonstrate inclusion of Impact Statement (PHSIS) is intended to describe the applicant’s collaborations consumers [adolescents and young keep State and local health officials with other family and consumer adults transitioning to adult services] informed of proposed health services networks, the State Director of and family members in planning, grant applications submitted by Consumer Affairs (if applicable), family policy, and service delivery decisions community-based, non-governmental representatives on the State Planning through (a) Having policies in place; organizations within their jurisdictions. Council, and other disability groups. and (b) data on consumers [adolescents State and local governments and Indian (3) In Section C, applicants must and young adults transitioning to adult tribal government applicants are not describe the applicant’s organizational services] and family member subject to the Public Health System mission and how its scope of work participation. Reporting Requirements. Instructions reflects statewide focus on families who SAMHSA will work with grantees to for completing the PHSIS are provided have children, youth and adolescents up finalize a standard methodology related in the INF–04 PA. to age 18 with a serious emotional, to these indicators shortly after award. Application Review Information: behavior or mental disorder and are The data collection tool is yet to be SAMHSA applications are peer- currently receiving services, or up to age developed. Grantees will be required to reviewed. For those programs where the 25 with a serious emotional, behavior or report performance data to SAMHSA on individual award is over $100,000, mental disorder and are receiving an annual basis. applications must also be reviewed by transitional services from children to Application and Submission the Appropriate National Advisory adult services. Information: Complete application kits Council. Decisions to fund a grant are (4) In Section C, applicants must may be obtained from: the National based on the strengths and weaknesses describe the extent to which the Mental Health Information Center at 1– of the application as identified by the applicant’s Board of Directors includes 800–789–2649. When requesting an peer review committee and approved by family members whose children up to application kit, the applicant must the National Advisory Council, and the age 18 with a serious emotional, specify the funding opportunity title availability of funds. Unless otherwise behavior or mental disorder and are and number for which detailed specified, SAMHSA intends to make not currently receiving services, or up to age information is desired. All information more than one award per organization 25 with a serious emotional, behavior or necessary to apply, including where to per funding opportunity in any given mental disorder and are receiving submit applications and application fiscal year. transitional services from children to deadline instructions, are included in Checklist for Application Formatting adult services. the application kit. The PHS 5161–1 Requirements: SAMHSA’s desire is to (5) Applicants must clearly indicate application form is also available review all applications submitted for in their applications whether or not a electronically via SAMHSA’s World grant funding. However, this desire youth leadership component is included Wide Web Home Page: http:// must be balanced against SAMHSA’s in the proposed project. Applicants that www.samhsa.gov (Click on ‘‘Grant obligation to ensure equitable treatment include a youth leadership component Opportunities’’) and the INF–04 PA is of applications. For this reason, must include relevant information about available electronically at http:// SAMHSA has established certain the youth leadership component in all www.samhsa.gov/grants/2004/standard/ formatting requirements for its sections of the Project Narrative and Infrastructure/index.asp. applications. Your application must Supporting Documentation. For When submitting an application, be adhere to these formatting requirements. example, Section A must address the sure to type ‘‘SM 04–004, Statewide If you do not adhere to these need for a youth leadership component Family Networks’’ in Item Number 10 requirements, your application will be in the State where the project will be on the face page of the application form. screened out and returned to you located, Section B must include a Also, SAMHSA applicants are required without review. In addition to these description of the proposed approach to provide a DUNS number on the face formatting requirements, programmatic for implementing a youth leadership page of the application. To obtain a requirements (e.g., relating to eligibility) component, Section C must include a DUNS Number, access the Dun and may be specified in the NOFA. Please description of the staff, management Bradstreet Web site at http:// check the entire NOFA before preparing and related experience for the youth www.dunandbradstreet.com or call 1– your application. leadership component, and Section D 866–705–5711. • Use the PHS 5161–1 application. must include a description of evaluation Intergovernmental Review: Applicants • The 10 application components and data activities for the youth for this funding opportunity must required for SAMHSA applications leadership component. The budget for comply with Executive Order 12372 must be included (i.e., Face Page, the youth leadership component (E.O. 12372). E.O.12372, as Abstract, Table of Contents, Budget provided in Section E must be implemented through Department of Form, Project Narrative and Supporting separately justified and may not exceed Health and Human Services regulation Documentation, Appendices, $10,000. at 45 CFR Part 100, sets up a system for Assurances, Certifications, Disclosure of Performance Measurement: All State and local review of applications Lobbying Activities, and Checklist.) SAMHSA grantees are required to for Federal financial assistance. • Text must be legible. collect performance data so that Grantees must comply with the • Paper must be white paper and 8.5″ SAMHSA can meet its obligations under requirements of E.O. 12372. Instructions by 11.0″ in size. the Government Performance and for complying with E.O. 12372 are • Pages must be single-spaced with Results Act (GPRA). In Section D of provided in the INF–04 PA. A current one column per page. their applications, applicants for the listing of State Single Points of Contact • Margins must be at least one inch. Statewide Family Networks program (SPOCs) is included in the application • Type size in the Project Narrative must document their ability to collect kit and is available at http:// cannot exceed an average of 15 and report data on the following www.whitehouse.gov/omb/grants/ characters per inch when measured indicators: spoc.html. with a ruler. (Type size in charts, tables,

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graphs, and footnotes will not be copied or sent to reviewers. Do not Announcement Type: Initial. considered in determining compliance.) include videotapes, audiotapes, or CD– Funding Opportunity Number: SM • Photo reduction or condensation of ROMs. 04–003. type cannot be closer than 15 characters Award Administration: Award Catalog of Federal Domestic per inch or 6 lines per inch. information, including information Assistance (CFDA) Number: 93.243. • Pages cannot have printing on both about award notices, administrative Due Date for Applications: February sides. requirements and reporting 25, 2004. • Page limitations specified for the requirements, is included in the INF–04 You will be notified by postal mail Project Narrative (25 pages) and PA. that your application has been received. Appendices 1, 3, and 4 (30 pages) Contact for Additional Information: [NOTE: Letters from State Single Point cannot be exceeded. Elizabeth Sweet, SAMHSA/CMHS, • of Contact (SPOC) in response to E.O. Information provided must be Child, Adolescent and Family Branch, 12372 are due April 25, 2004.] sufficient for review. Center for Mental Health Services, 5600 Funding Instrument: Grant. • Applications must be received by Fishers Lane, Room 11C–16, Rockville, Funding Opportunity Description: the application deadline. Applications MD 20857; 301–443–1333; E-mail: The Statewide Consumer Networks received after this date must have a [email protected]. program is one of SAMHSA’s proof of mailing date from the carrier Dated: December 12, 2003. Infrastructure Grants programs. dated at least 1 week prior to the due Anna Marsh, SAMHSA’s Infrastructure Grants date. Private metered postmarks are not Acting Executive Officer, Substance Abuse provide funds to increase the capacity of acceptable as proof of timely mailing. and Mental Health Services, Administration. mental health and/or substance abuse Applications not received by the [FR Doc. 03–31158 Filed 12–17–03; 8:45 am] service systems to support programs and application deadline or postmarked a BILLING CODE 4162–20–P services. SAMHSA’s Infrastructure week prior to the application deadline Grants are intended for applicants will not be reviewed. • Applications that do not comply seeking Federal support to develop or DEPARTMENT OF HEALTH AND enhance their service system with the following requirements and HUMAN SERVICES any additional program requirements infrastructure in order to support specified in the NOFA, or are otherwise effective substance abuse and/or mental Substance Abuse and Mental Health health service delivery. Statewide unresponsive to PA guidelines, will be Services Administration screened out and returned to the Consumer Network Grants are intended applicant without review: Fiscal Year (FY) 2004 Funding for applicants seeking Federal support • Provisions relating to Opportunity to act as ‘‘Agents of Transformation’’ in confidentiality, participant protection developing or enhancing their service and the protection of human subjects ACTION: Notice of funding availability system infrastructure in order to support specified in Section VIII–A of this for Statewide Consumer Network effective substance abuse and/or mental document. Grants. health service delivery which is • Budgetary limitations as specified consumer driven. The Statewide in Sections I, II and IV–E of this Authority: Section 520 A of the Public Consumer Network Grant Program is a document. Health Service Act, as amended and subject critical part of the SAMHSA/CMHS • Documentation of nonprofit status to the availability of funds. efforts to implement the as required in the PHS 5161–1. SUMMARY: The Substance Abuse and recommendations of the Final Report of To facilitate review of your Mental Health Services Administration the President’s New Freedom application, follow these additional (SAMHSA), Center for Mental Health Commission on Mental Health. guidelines. Failure to follow these Services (CMHS), announces the The purpose of the Statewide guidelines will not result in your availability of FY 2004 funds for Consumer Networks program is to application being screened out. Statewide Consumer Network Grants. A enhance State capacity and However, following these guidelines synopsis of this funding opportunity, as infrastructure to be consumer-centered will help reviewers to consider your well as many other Federal Government and targeted toward recovery and application. funding opportunities, is also available resiliency and consumer-driven by • Please use black ink and number at the Internet site: http:// promoting the use of consumers as pages consecutively from beginning to www.grants.gov. agents of transformation. The program end so that information can be located For complete instructions, potential goals are to (1) strengthen organizational easily during review of the application. applicants must obtain a copy of the relationships; (2) promote skill The cover page should be page 1, the standard Infrastructure Grants Program development with an emphasis on abstract page should be page 2, and the Announcement (INF–04 PA), and the leadership and business management; table of contents page should be page 3. PHS 5161–1 (Rev. 7/00) application and (3) identify technical assistance Appendices should be labeled and form before preparing and submitting an needs of consumers and provide separated from the Project Narrative and application. The INF–04 PA describes training and support to ensure that they budget section, and the pages should be the general program design and are the catalysts for transforming the numbered to continue the sequence. provides instructions for applying for all mental health and related systems in • Send the original application and SAMHSA Infrastructure Grants, their State. To achieve this goal, the two copies to the mailing address in the including Statewide Consumer Network program assists consumer organizations PA. Please do not use staples, paper Grants. Additional instructions and around the country to work with clips, and fasteners. Nothing should be requirements specific to Statewide policymakers and services providers to attached, stapled, folded, or pasted. Do Consumer Network Grants are described improve services for consumers with a not use any material that cannot be below. serious mental illness. The Program is copied using automatic copying Funding Opportunity Title: Statewide designed to strengthen coalitions among machines. Odd-sized and oversized Consumer Network Grants (Short Title: consumers, policymakers and service attachments such as posters will not be Statewide Consumer Networks). providers, recognizing that the

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consumers are the best and most Estimated Funding Available/Number be posted on the SAMHSA Web page effective change agents. of Awards: It is expected that $1.5 along with the NOFA. The Statewide Consumer Network million will be available in FY 2004 to Additional information regarding grants will support State-level fund approximately 20–22 awards of up eligibility, including program consumer-run organizations to assist to $70,000 per year in total costs (direct requirements and formatting consumers to participate in the and indirect), with a limit of one award requirements, is provided in the INF–04 development of policies, programs, and per State. It is expected that only PA. Applications that do not comply quality assurance activities related to Category 1-Small Infrastructure Grant with these requirements will be the Final Report of the President’s New awards, as defined in the INF–04 PA, screened out and will not be reviewed. Freedom Commission on Mental Health will be made. Applications that include Period of Support: Awards will be as it applies to mental health service proposed budgets that exceed $70,000 made for project periods of up to three delivery. Grantees are especially in any year will be returned without years, with annual continuations encouraged to utilize training capacity, review. The actual amount available for depending on the availability of funds, network development, organizational the awards may vary, depending on grantee progress in meeting program and community readiness, and policy unanticipated program requirements goals and objectives, and timely submission of required data and reports. development to support best practices and the number and quality of the but are not limited to these specific Is Cost Sharing or Matching Required: applications received. This program is No. activities. Examples of the types of being announced prior to the annual community services that grantees will Exceptions to the INF–04 and Other appropriation for FY 2004 for Special Requirements: The following work to improve include State planning SAMHSA’s programs, with funding boards and councils, individualized information describes exceptions or estimates based on the President’s limitations to the INF–04 PA and plans of care, anti-stigma initiatives, budget request for FY 2004 and/or interactions with the criminal justice provides special requirements that preliminary Congressional action on pertain only to the Statewide Consumer system, supported employment SAMHSA’s appropriation. Applications programs, rights protection, cultural Network Grants: are invited based on the assumption that • Review Criteria/Project Narrative— competence, outreach to people in rural sufficient funds will be appropriated for Applicants for Statewide Consumer areas, people of color and older-adults: FY 2004 to permit funding of a Networks grants are required to address research on recovery, trauma and reasonable number of applications the following requirements in the medication; evidence based hereby solicited. This program is being Project Narrative of their applications, determinations and applications; announced in order to allow applicants in addition to the requirements workforce development; tele-health and sufficient time to plan and prepare specified in the INF–04 PA: other on line supports including applications. Solicitation of applications (1) In Section B, applicants must personal recovery pages. in advance of a final appropriation will describe how the primary focus of the Background: The Statewide Consumer also enable the award of appropriated proposed project will include work to Network Grant Program builds on the grant funds in an expeditious manner. transform the system through specific work of the Federal Community Support All applicants are reminded, however, training and capacity building activities, Program (CSP). The Center for Mental that we cannot guarantee that sufficient and network and policy development Health Services has supported the funds will be appropriated to permit that reflects the goals of the Final Report development of accessible, responsive SAMHSA to fund any applications. of the President’s New Freedom mental health treatment, rehabilitation, Eligible Applicants: Eligible Commission on Mental Health. and supportive services for people with (2) In Section B, applications must applicants are limited to domestic a serious mental illness through CSP. describe the applicant’s collaborations private, nonprofit entities, including The mission of CSP is to promote the with other family and consumer faith-based entities and currently development of systems of care which networks, the State Director of funded Statewide Consumer Network help adults with serious mental illness Consumer Affairs in the State office of Grantees that (1) are controlled and recover, live independently and mental health (if applicable), consumers productively in the community, and managed by mental health consumers; on the State Planning Council, and other avoid inappropriate use of institutions. (2) are dedicated to the improvement of disability groups. CSP helped to establish consumer and mental health services statewide; and (3) In Section C, applicants must family organizations throughout the (3) have a Board of Directors comprised describe the applicant’s organizational country. Today, nearly every State has of more than 51 percent consumers. mission and how its scope of work an active consumer organization SAMHSA is limiting eligibility to reflects statewide focus on consumers dedicated to promoting systems of care consumer-controlled organizations with a serious mental illness and that are responsive to the needs of because the goals of this grant program promotes the concepts of consumer self- people with a serious mental illness. By are to: to strengthen the capacity of help; management plan and staffing. providing appropriate training and tools consumers to act as agents of • Performance Measurement—All in the development of individualized transformation in influencing the type SAMHSA grantees are required to mental health plans, understanding the and amount of services and supports collect performance data so that need and use of accountability and provided to people with a serious SAMHSA can meet its obligations under evaluation measures, and the many mental illness and to ensure that their the Government Performance and other self-help, self-management skills, mental health care is consumer driven. Results Act (GPRA). In Section D of consumers can provide the guidance Applicants will be required to complete their applications, applicants for the and foresight into changing the present and sign a Certification of Eligibility and Statewide Consumer Networks Program system to a recover-oriented system for provide necessary supportive must document their ability to collect all peers and thereby ensuring the documentation. This certification will and report data on all the following implementation of the goals of the Final be provided in the application kit, indicators: Report of the President’s New Freedom available from the National Mental • An increase in the number of Commission on Mental Health. Health Information Center, and will also consumers served; and

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• An increase in the number of State and local governments and Indian • Page limitations specified for the consumers and family members in tribal government applicants are not Project Narrative (25 pages) and planning, policy, and service delivery subject to the Public Health System Appendices 1, 3, and 4 (30 pages) decisions by (a) having policies in place; Reporting Requirements. Instructions cannot be exceeded. and (b) data on consumers and family for completing the PHSIS are provided • Information provided must be member participation. in the INF–04 PA. sufficient for review. SAMHSA will work with grantees to Application Review Information: • Applications must be received by finalize a standard methodology related SAMHSA applications are peer- the application deadline. Applications to these indicators shortly after award. reviewed. For those programs where the received after this date must have a The data collection tool has not yet been individual award is over $100,000, proof of mailing date from the carrier developed. Grantees will be required to applications must also be reviewed by dated at least 1 week prior to the due report performance data to SAMHSA on the Appropriate National Advisory date. Private metered postmarks are not an annual basis. Council. Decisions to fund a grant are acceptable as proof of timely mailing. Application and Submission based on the strengths and weaknesses Applications not received by the Information: Complete application kits of the application as identified by the application deadline or postmarked a may be obtained from: the National peer review committee and approved by week prior to the application deadline Mental Health Information Center at 1– the National Advisory Council, and the will not be reviewed. • 800–789–2649. When requesting an availability of funds. Unless other wise Applications that do not comply application kit, the applicant must specified, SAMHSA intends to make not with the following requirements and specify the funding opportunity title more than one award per organization any additional program requirements and number for which detailed per funding opportunity in any given specified in the NOFA, or are otherwise information is desired. All information fiscal year. unresponsive to PA guidelines, will be necessary to apply, including where to Checklist for Application Formatting screened out and returned to the submit applications and application applicant without review: Requirements: SAMHSA’s desire is to • deadline instructions, are included in review all applications submitted for Provisions relating to the application kit. The PHS 5161–1 grant funding. However, this desire confidentiality, participant protection application form is also available must be balanced against SAMHSA’s and the protection of human subjects electronically via SAMHSA’s World obligation to ensure equitable treatment specified in Section VIII–A of this Wide Web Home Page: http:// of applications. For this reason, document. www.samhsa.gov (Click on ‘‘Grant • SAMHSA has established certain Budgetary limitations as specified Opportunities’’) and the INF–04 PA is formatting requirements for its in Sections I, II and IV–E of this available electronically at http:// applications. Your application must document. www.samhsa.gov/grants/2004/standard/ • Documentation of nonprofit status adhere to these formatting requirements. Infrastructure/index.asp. as required in the PHS 5161–1. When submitting an application, be If you do not adhere to these To facilitate review of your sure to type ‘‘SM 04–003, Statewide requirements, your application will be application, follow these additional Consumer Networks’’ in Item Number screened out and returned to you guidelines. Failure to follow these 10 on the face page of the application without review. In addition to these guidelines will not result in your form. Also, SAMHSA applicants are formatting requirements, programmatic application being screened out. required to provide a DUNS number on requirements (e.g., relating to eligibility) However, following these guidelines the face page of the application. To may be specified in the NOFA. Please will help reviewers to consider your obtain a DUNS Number, access the Dun check the entire NOFA before preparing application. and Bradstreet Web site at http:// your application. • Please use black ink and number • www.dunandbradstreet.com or call 1– Use the PHS 5161–1 application. pages consecutively from beginning to • 866–705–5711. The 10 application components end so that information can be located Intergovernmental Review: Applicants required for SAMHSA applications easily during review of the application. for this funding opportunity must must be included (i.e., Face Page, The cover page should be page 1, the comply with Executive Order 12372 Abstract, Table of Contents, Budget abstract page should be page 2, and the (E.O. 12372). E.O. 12372, as Form, Project Narrative and Supporting table of contents page should be page 3. implemented through Department of Documentation, Appendices, Appendices should be labeled and Health and Human Services regulation Assurances, Certifications, Disclosure of separated from the Project Narrative and at 45 CFR Part 100, sets up a system for Lobbying Activities, and Checklist.) budget section, and the pages should be • State and local review of applications Text must be legible. numbered to continue the sequence. for Federal financial assistance. • Paper must be white paper and 8.5″ • Send the original application and Instructions for complying with E.O. by 11.0″ in size. two copies to the mailing address in the 12372 are provided in the INF–04 PA. • Pages must be single-spaced with PA. Please do not use staples, paper A current listing of State Single Points one column per page. clips, and fasteners. Nothing should be of Contact (SPOCs) is included in the • Margins must be at least one inch. attached, stapled, folded, or pasted. Do application kit and is available at http:/ • Type size in the Project Narrative not use any material that cannot be /www.whitehouse.gov/omb/grants/ cannot exceed an average of 15 copied using automatic copying spoc.html. characters per inch when measured machines. Odd-sized and oversized Public Health System Impact with a ruler. (Type size in charts, tables, attachments such as posters will not be Statement: The Public Health System graphs, and footnotes will not be copied or sent to reviewers. Do not Impact Statement (PHSIS) is intended to considered in determining compliance.) include videotapes, audiotapes, or CD- keep State and local health officials • Photo reduction or condensation of ROMs. informed of proposed health services type cannot be closer than 15 characters Award Administration: Award grant applications submitted by per inch or 6 lines per inch. information, including information community-based, non-governmental • Pages cannot have printing on both about award notices, administrative organizations within their jurisdictions. sides. requirements and reporting

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requirements, is included in the INF–04 notices of the date on which the served by the Bureau of Indian Affairs PA. payment is due for each broker permit (BIA) agency that is serving the tribe FOR FURTHER INFORMATION CONTACT: Risa shall be published by the Secretary of that is a party to the funding agreement. Fox, SAMHSA/Center for Mental Health the Treasury in the Federal Register by Initial negotiations with a tribe/ Services, 5600 Fishers Lane, Room 11C– no later than 60 days before such due consortium located in a region and/or 22, Rockville, MD 20857; 301–443– date. agency which has not previously been 3653; E-mail: [email protected]. This document notifies brokers that involved with self-governance for 2004, the due date of the user fee is negotiations, will take approximately Dated: December 12, 2003. February 27, 2004. It is expected that two months from start to finish. Anna Marsh, the annual user fees for brokers for Agreements for an October 1 to Acting Executive Officer, Substance Abuse subsequent years will be due on or September 30 funding year need to be and Mental Health Services Administration. about the 20th of January of each year. signed and submitted by July 1. [FR Doc. 03–31159 Filed 12–17–03; 8:45 am] Dated: December 11, 2003. Agreements for a January 1 to December BILLING CODE 4162–20–P Jayson P. Ahern, 31 funding year need to be signed and Assistant Commissioner, Office of Field submitted by October 1. Operations. Purpose of Notice 25 CFR 1000.10 to DEPARTMENT OF HOMELAND 1000.31 will be used to govern the [FR Doc. 03–31237 Filed 12–17–03; 8:45 am] SECURITY application and selection process for BILLING CODE 4820–02–P tribes/consortia to begin their Bureau of Customs and Border participation in the tribal self- Protection governance program in fiscal year 2005 DEPARTMENT OF THE INTERIOR and calendar year 2005. Applicants Annual User Fee for Customs Broker should be guided by the requirements in Permit and National Permit; General Office of the Assistant Secretary— these subparts in preparing their Notice Indian Affairs; Application Deadline for Self-Governance in 2005 applications. Copies of these subparts AGENCY: Bureau of Customs and Border may be obtained from the information Protection, Department of Homeland AGENCY: Office of Self-Governance and contact person identified in this notice. Security. Self-Determination, Interior. Tribes/consortia wishing to be ACTION: Notice of due date for Customs ACTION: Notice of application deadline. considered for participation in the tribal broker user fee. self-governance program in fiscal year SUMMARY: In this notice, the Office of 2005 or calendar year 2005 must SUMMARY: This is to advise Customs Self-Governance and Self-Determination respond to this notice, except for those brokers that the annual fee of $125 that (OSG) establishes a March 1, 2004, which are (1) currently involved in is assessed for each permit held by a deadline for tribes/consortia to submit negotiations with the Department; (2) broker whether it may be an individual, completed applications to begin one of the 83 tribal entities with signed partnership, association or corporation, participation in the tribal self- agreements; or (3) one of the tribal is due by February 27, 2004. This governance program in fiscal year 2005 entities already included in the announcement is being published to or calendar year 2005. applicant pool as of the date of this comply with the Tax Reform Act of DATES: Completed application packages notice. 1986. must be received by March 1, 2004. Dated: December 2, 2003. DATES: Due date for payment of fee: ADDRESSES: Application packages for Aurene M. Martin, February 27, 2004. inclusion in the applicant pool should Principal Deputy Assistant Secretary—Indian FOR FURTHER INFORMATION CONTACT: be sent to William A. Sinclair, Director, Affairs. Bruce Raine, Broker Management, (202) Office of Self-Governance and Self- [FR Doc. 03–31161 Filed 12–17–03; 8:45 am] Determination, Department of the 927–0380. BILLING CODE 4310–W8–P SUPPLEMENTARY INFORMATION: Section Interior, Mail Stop 2548, 1849 C Street, 13031 of the Consolidated Omnibus NW., Washington DC 20240. Budget Reconciliation Act of 1985 (Pub. FOR FURTHER INFORMATION CONTACT: Dr. DEPARTMENT OF THE INTERIOR L. 99–272) established that an annual Kenneth D. Reinfeld, Office of Self- user fee of $125 is to be assessed for Governance and Self-Determination, Fish and Wildlife Service each Customs broker permit and Telephone 202–208–5734. Tallahatchie, Dahomey, and Coldwater National permit held by an individual, SUPPLEMENTARY INFORMATION: Under the River National Wildlife Refuges partnership, association or corporation. Tribal Self-Governance Act of 1994 This fee is set forth in the Customs (Pub. L. 103–413), as amended by the AGENCY: Fish and Wildlife Service, Regulations in section 111.96 (19 CFR Fiscal Year 1997 Omnibus Interior. 111.96). Appropriations Bill (Pub. L. 104–208) ACTION: Notice of intent to prepare a Customs Regulations provide that this the Director, Office of Self-Governance Comprehensive Conservation Plan and fee is payable for each calendar year in and Self-Determination may select up to Environmental Assessment for each broker district where the broker 50 additional participating tribes/ Tallahatchie, Dahomey, and Coldwater was issued a permit to do business by consortia per year for the tribal self- River National Wildlife Refuges, located the due date which will be published in governance program, and negotiate and in the State of Mississippi. the Federal Register annually. Broker enter into a written funding agreement districts are defined in the general with each participating tribe. The Act SUMMARY: The Fish and Wildlife notice published in the Federal mandates that the Secretary submit Service, Southeast Region, intends to Register, volume 60, no. 187, September copies of the funding agreements at least gather information necessary to prepare 27, 1995. 90 days before the proposed effective a comprehensive conservation plan and Section 1893 of the Tax Reform Act of date to the appropriate committees of environmental assessment pursuant to 1986 (Pub. L. 99–514) provides that the Congress and to each tribe that is the National Environmental Policy Act

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and its implementing regulations. The Coldwater River National Wildlife Written data, comments, or requests for Service is furnishing this notice in Refuge, established in 1991, is located copies of these complete applications compliance with the National Wildlife in Tallahatchie and Quitman Counties, should be submitted to the Director Refuge System Administration Act of Mississippi. It consists of 2,202 acres, (address above). 1966, as amended (16 U.S.C. 668dd et much of which is inaccessible during Applicant: Gerald L. Otterbacher, seq.), to achieve the following: the winter months due to backwater Medina, OH, PRT–074571. (1) Advise our agencies and the public flooding of the Tallahatchie River. The applicant requests a permit to of our intentions, and Objectives are to provide habitat for import the sport-hunted trophy of one (2) Obtain suggestions and migratory waterfowl, shorebirds, and male bontebok (Damaliscus pygargus information on the scope of issues to wading birds; convert marginal dorcas) culled from a captive herd include in the environmental document. agricultural land to hardwood forests; maintained under the management Special mailings, newspaper articles, and provide fallow field habitat for program of the Republic of South Africa, and other media announcements will be wintering grassland birds. for the purpose of enhancement of the used to inform the public and state and Authority: This notice is published under survival of the species. local government agencies of the the authority of the National Wildlife Refuge Applicant: George H. Brannen, II, opportunities for input throughout the System Improvement Act of 1997, Pub. L. Inverness, FL, PRT–080563. 105–57. planning process. The applicant requests a permit to ADDRESSES: Address comments, Dated: November 14, 2003. import the sport-hunted trophy of one questions, and requests for more J. Mitch King, male bontebok (Damaliscus pygargus information to Stephen W. Gard, Project Acting Regional Director. dorcas) culled from a captive herd Leader, North Mississippi National [FR Doc. 03–31165 Filed 12–17–03; 8:45 am] maintained under the management Wildlife Refuge Complex, 2776 Sunset BILLING CODE 4310–55–M program of the Republic of South Africa, Drive, P.O. Box 1070, Grenada, for the purpose of enhancement of the Mississippi 38901; Telephone: 662/226– survival of the species. 8286; Fax: 662/226–8488; E-mail: DEPARTMENT OF THE INTERIOR Applicant: Richard B. Nilsen, Ft. [email protected]. Lauderdale, FL, PRT–077045. Fish and Wildlife Service SUPPLEMENTARY INFORMATION: By Federal The applicant requests a permit to law, all lands within the National Receipt of Applications for Permit import the sport-hunted trophy of one Wildlife Refuge System are to be male black-faced impala (Aepyceros managed in accordance with an AGENCY: Fish and Wildlife Service, melampus petersi) taken in Namibia, for approved comprehensive conservation Interior. the purpose of enhancement of the plan. The plan guides management ACTION: Notice of receipt of applications survival of the species. decisions and identifies refuge goals, for permit. Applicant: James A. Shipley, Highland, long-range objectives, and strategies for MI, PRT–077046. SUMMARY: The public is invited to achieving refuge purposes. The comment on the following applications The applicant requests a permit to planning process will consider many to conduct certain activities with import the sport-hunted trophy of one elements including wildlife and habitat endangered species and/or marine male black-faced impala (Aepyceros management, public recreational mammals. melampus petersi) taken in Namibia, for activities, and cultural resource the purpose of enhancement of the protection. Public input in the planning DATES: Written data, comments or survival of the species. requests must be received by January 20, process is essential as the Service Applicant: John L. Schwabland, Jr., 2004. establishes management priorities and Seattle, WA, PRT–077047. ADDRESSES: Documents and other explores opportunities for non-invasive The applicant requests a permit to information submitted with these and low-impact activities. import the sport-hunted trophy of one applications are available for review, Tallahatchie National Wildlife Refuge, male black-faced impala (Aepyceros subject to the requirements of the established in 1990, is located in melampus petersi) taken in Namibia, for Privacy Act and Freedom of Information Grenada and Tallahatchie Counties, the purpose of enhancement of the Act, by any party who submits a written Mississippi. It consists of 4,083 acres survival of the species. and is managed primarily to provide request for a copy of such documents Applicant: Ralph S. Cunningham, habitat for migratory waterfowl. Refuge within 30 days of the date of publication Montgomery, TX, PRT–077050. objectives are to create a woodland of this notice to: U.S. Fish and Wildlife corridor along Tippo Bayou for Service, Division of Management The applicant requests a permit to migratory neotropical songbirds, convert Authority, 4401 North Fairfax Drive, import the sport-hunted trophy of one marginal agricultural land to hardwood Room 700, Arlington, Virginia 22203; male black-faced impala (Aepyceros forests, and provide fallow field habitat fax 703/358–2281. melampus petersi) taken in Namibia, for for wintering grassland birds. FOR FURTHER INFORMATION CONTACT: the purpose of enhancement of the Dahomey National Wildlife Refuge, Division of Management Authority, survival of the species. also established in 1990, is located in telephone 703/358–2104. Applicant: Dan L. Duncan, Houston, TX, Bolivar County, Mississippi. It consists SUPPLEMENTARY INFORMATION: PRT–077051. of 9,691 acres, and is the largest Endangered Species The applicant requests a permit to remaining tract of bottomland hardwood The public is invited to comment on import the sport-hunted trophy of one forested wetlands in the northwest the following applications for a permit male black-faced impala (Aepyceros portion of Mississippi. Objectives are to to conduct certain activities with melampus petersi) taken in Namibia, for provide habitat for migratory waterfowl endangered species. This notice is the purpose of enhancement of the and other migratory birds, and to provided pursuant to Section 10(c) of survival of the species. provide recreational use and the Endangered Species Act of 1973, as Applicant: Wildlife Conservation environmental education to the public. amended (16 U.S.C. 1531, et seq.). Society, Bronx, NY, PRT–079034.

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The applicant requests a permit to re- requesting a hearing should give (Glaucomys sabrinus) throughout North export biological samples from maned specific reasons why a hearing would be Carolina and Virginia. Activities are wolf (Chrysocyon brachyurus) to Dr. appropriate. The holding of such a proposed for the enhancement of Beat Bigler, Bern, Switzerland, for the hearing is at the discretion of the survival of the species in the wild. Director. purpose of diagnostic and scientific Permit Number TE 079161–0 research. This notification covers Applicant: Ronald J. Bartels, Schriever, activities to be conducted by the LA, PRT–080350. Applicant: Paula K. Kleintjes, University of Wisconsin-Eau Claire, Eau applicant over a five-year period. The applicant requests a permit to Applicant: James J. Homann, Sr., Claire, Wisconsin. import a polar bear (Ursus maritimus) The applicant requests a permit to Omaha, NE, PRT–080210. sport hunted from the Baffin Bay polar take (harass) Karner blue butterfly The applicant requests a permit to bear population in Canada prior to (Lycaeides melissa samuelis) in import the sport-hunted trophy of one February 18, 1997, for personal use. Wisconsin. Activities are proposed for male bontebok (Damaliscus pygargus Dated: December 5, 2003. the enhancement of survival of dorcas) culled from a captive herd Michael S. Moore, (Lycaeides melissa samuelis) in maintained under the management Wisconsin. Activities are proposed for program of the Republic of South Africa, Senior Permit Biologist, Branch of Permits, Division of Management Authority. the enhancement of survival of the for the purpose of enhancement of the species in the wild. survival of the species. FR Doc. 03–31212 Filed 12–17–03; 8:45 am] Applicant: Atlanta Zoo, Atlanta, GA, BILLING CODE 4310–55–P Permit Number TE 079162–0 PRT–080016. Applicant: Jeremy A. Williamson, The applicant requests a permit to DEPARTMENT OF THE INTERIOR Polk County Land and Water Resources import frozen semen samples from one Department, Balsam Lake, Wisconsin. male giant panda (Ailuropoda Fish and Wildlife Service The applicant requests a permit to melanoleuca) from the Chengdu take (collect) Higgins’ eye pearlymussel Research Base of Giant Panda Breeding, Endangered and Threatened Species (Lampsilis higginsi) and winged China, for the purpose of artificial Permit Applications mapleleaf (Quadrula fragosa) in insemination for scientific research and Wisconsin. Activities are proposed for AGENCY: Fish and Wildlife Service, the enhancement of survival of the propagation for the enhancement of the Interior. survival of the species. species in the wild. ACTION: Notice of receipt of application. Applicant: Michelle L. Sauther, Permit Number TE 072500 University of Colorado, Boulder, CO, SUMMARY: The following applicants have Applicant: U.S. Army Corps of PRT–040035. applied for permits to conduct certain Engineers, Engineer Research and The applicant requests an amendment activities with endangered species. This Development Center, Champaign, and renewal of their permit to import notice is provided pursuant to section Illinois. biological samples from ring-tailed 10(c) of the Endangered Species Act of The applicant requests a permit to lemur (Lemur catta) collected in the 1973, as amended (16 U.S.C. 1531, et take Topeka shiner (Notropis topeka) in wild in Madagascar, for the purpose of seq.). Illinois. Activities are proposed for the scientific research. This notification DATES: Written data or comments enhancement of survival of the species covers activities to be conducted by the should be submitted to the Regional in the wild. applicant over a five-year period. Director, U.S. Fish and Wildlife Service, Dated: December 3, 2003. Applicant: Cleveland Metroparks Zoo, Ecological Services, 1 Federal Drive, T.J. Miller, Cleveland, OH, PRT–080013. Fort Snelling, Minnesota 55111—4056, Acting Assistant Regional Director, Ecological The applicant requests a permit to and must be received on or before Services, Region 3, Fort Snelling, Minnesota. import two male and two female captive January 20, 2004. [FR Doc. 03–31184 Filed 12–17–03; 8:45 am] born ocelots (Leopardus pardalis) from FOR FURTHER INFORMATION CONTACT: Mr. BILLING CODE 4910–13–U several zoos in Brazil, as part of the Peter Fasbender, (612) 713–5343. Brazilian Ocelot Consortium (BOC), for SUPPLEMENTARY INFORMATION: the purpose of enhancement of the DEPARTMENT OF THE INTERIOR survival of the species through captive Permit Number TE 056081–1 propagation and conservation Applicant: EnviroScience, Fish and Wildlife Service education. Incorporated, Stow, Ohio. Receipt of Applications for The applicant requests a permit to Marine Mammals Endangered Species Permits take (collect) listed fish and mussel The public is invited to comment on species throughout the State of Georgia. AGENCY: Fish and Wildlife Service, the following application for a permit to Activities are proposed to identify Interior. conduct certain activities with marine populations of listed species and to ACTION: Notice of receipt of applications mammals. The application was develop methods to minimize or avoid for permits. submitted to satisfy requirements of the project related impacts to those Marine Mammal Protection Act of 1972, populations. The scientific research is SUMMARY: The public is invited to as amended (16 U.S.C. 1361 et seq.), aimed at enhancement of survival of comment on the following applications and the regulations governing marine species in the wild. to conduct certain activities with mammals (50 CFR Part 18). Written endangered species. We provide this data, comments, or requests for copies Permit Number TE 023666–0 notice pursuant to section 10(c) of the of the complete applications or requests Applicant: Eric R. Britzke, Clemson Endangered Species Act of 1973, as for a public hearing on these University, Clemson, South Carolina. amended (16 U.S.C. 1531 et seq.). applications should be submitted to the The applicant requests a permit to DATES: We must receive written data or Director (address above). Anyone take (collect) the northern flying squirrel comments on these applications at the

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address given below, by January 20, The applicant requests authorization DATES: The finding announced in this 2004. to take (trap, handle, relocate, radio-tag, document was made on December 11, PIT-tag, and release) the Alabama beach 2003. You may submit new information ADDRESSES: Documents and other mouse (Peromyscus polionotus concerning this species for our information submitted with these ammobates) and Perdido Key beach consideration at any time. applications are available for review, mouse (Peromyscus polionotus subject to the requirements of the ADDRESSES: Questions or information trissyllepsis) while conducting presence Privacy Act and Freedom of Information concerning this petition should be sent and absence studies and population Act, by any party who submits a written to the Field Supervisor, U.S. Fish and monitoring. The proposed activities request for a copy of such documents to Wildlife Service, Ecological Services, would occur on Bon Secour National the following office within 30 days of 755 Parfet, Lakewood, Colorado 80215. Wildlife Refuge, Baldwin County, the date of publication of this notice: The separate petition finding, Alabama; Johnson Beach of Gulf Island U.S. Fish and Wildlife Service, 1875 supporting data, and comments are National Seashore, Escambia County, Century Boulevard, Suite 200, Atlanta, available for public review, by Florida; Perdido Key State Recreation Georgia 30345 (Attn: Victoria Davis, appointment, during normal business Area, Escambia County, Florida; and Permit Biologist). hours at the above address. Alabama Point, Baldwin County, FOR FURTHER INFORMATION CONTACT: Ms. FOR FURTHER INFORMATION CONTACT: Alabama. Susan Linner at 303–275–2370 (see Victoria Davis, telephone 404/679–4176; Applicant: Jereme N. Phillips, Gulf ADDRESSES section). facsimile 404/679–7081. Shores, Alabama, TE080229–0. SUPPLEMENTARY INFORMATION: SUPPLEMENTARY INFORMATION: The The applicant requests authorization public is invited to comment on the to take (trap, mark, recapture, and Background following applications for permits to release) the Alabama beach mouse Section 4(b)(3)(A) of the Endangered conduct certain activities with (Peromyscus polionotus ammobates) Species Act (Act) of 1973, as amended endangered species. If you wish to while conducting presence and absence (16 U.S.C. 1531 et seq.), requires that the comment, you may submit comments by studies. The proposed activities would Service make a finding on whether a any one of the following methods. You occur on Bon Secour National Wildlife petition to list, delist, or reclassify a may mail comments to the Service’s Refuge, Baldwin County, Alabama. species presents substantial scientific or Regional Office (see ADDRESSES section) Dated: December 3, 2003. commercial information to demonstrate or via electronic mail (e-mail) to that the petitioned action may be ‘‘[email protected]’’. Please submit Jackie Parrish, Acting Regional Director. warranted. This finding is to be based electronic comments as an ASCII file on all information readily available to [FR Doc. 03–31185 Filed 12–17–03; 8:45 am] avoiding the use of special characters the Service at the time the finding is and any form of encryption. Please also BILLING CODE 4310–55–P made. To the maximum extent include your name and return address practicable, the finding shall be made in your e-mail message. If you do not DEPARTMENT OF THE INTERIOR within 90 days following receipt of the receive a confirmation from the Service petition and promptly published in the that we have received your e-mail Fish and Wildlife Service Federal Register. Following a positive message, contact us directly at the finding, section 4(b)(3)(B) of the Act telephone number listed above (see FOR Endangered and Threatened Wildlife requires the Service to promptly FURTHER INFORMATION CONTACT section). and Plants; 90-Day Finding for a commence a status review of the Finally, you may hand deliver Petition to Delist the Preble’s Meadow species. comments to the Service office listed Jumping Mouse in Colorado and The Preble’s meadow jumping mouse above (see ADDRESSES section). Wyoming is a small rodent in the family Our practice is to make comments, Zapodidae and is 1 of 12 recognized including names and home addresses of AGENCY: Fish and Wildlife Service, subspecies of the species Zapus respondents, available for public review Interior. hudsonius, the meadow jumping mouse. during regular business hours. ACTION: Notice of 90-day petition Preble’s is native only to the Rocky Individual respondents may request that finding. Mountains-Great Plains interface of we withhold their home address from eastern Colorado and southeastern the administrative record. We will SUMMARY: The U.S. Fish and Wildlife Wyoming. This shy, largely nocturnal honor such requests to the extent Service (Service) announces a 90-day mouse is 8 to 9 inches long (its tail allowable by law. There may also be finding for a petition to delist the accounts for 60 percent of its length) other circumstances in which we would Preble’s meadow jumping mouse (Zapus with hind feet adapted for jumping. It withhold from the administrative record hudsonius preblei) under the occurs in foothills riparian habitat from a respondent’s identity, as allowable by Endangered Species Act of 1973, as southeastern Wyoming to south central law. If you wish us to withhold your amended. We find that the petition and Colorado. Preble’s meadow jumping name and address, you must state this additional information in our files did mice regularly use upland grasslands prominently at the beginning of your not present substantial scientific or adjacent to riparian habitat, and they comments. However, we will not commercial information indicating that may be dependent upon some amount consider anonymous comments. We delisting may be warranted. We will not of open water. The species hibernates will make all submissions from be initiating a further status review in near riparian zones from mid-October to organizations or businesses, and from response to this petition. We ask the early May. Loss of riparian habitats and individuals identifying themselves as public to submit to us any new other factors associated with representatives or officials of information that becomes available urbanization appear to be the major organizations or businesses, available concerning the status of or threats to threat to the species. for public inspection in their entirety. this species. This information will help On August 16, 1994, the Service Applicant: Claudia Frosch, Gulf us monitor and encourage the received a petition from the Biodiversity Shores, Alabama, TE080231–0. conservation of this species. Legal Foundation to list the Preble’s

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meadow jumping mouse. On March 15, private landowners, the Forest Service, taxon as endangered or threatened. 1995, the Service published a notice of and the Wyoming Department of Under section 4(a)(1) of the Act, we the 90-day finding that the petition Transportation in a number of potential must determine whether a species presented substantial information habitat sites in the North Platte drainage should be listed as threatened or indicating that listing the Preble’s may occurred after the species was listed as endangered due to one or more of the be warranted, and requested comments threatened in 1998. Although the following five factors—(1) present or and biological data on the status of the Service did not have this trapping threatened destruction, modification, or mouse (60 FR 13950). On March 25, information available for consideration curtailment of habitat or range; (2) 1997, the Service issued a 12-month during preparation of the 1998 listing overutilization for commercial, finding on the petition action along with rule, we did consider in the listing rule recreational, scientific, or educational a proposed rule to list Preble’s as an that the Preble’s likely occurred in these purposes; (3) disease or predation; (4) endangered species and announced a areas because the species historically the inadequacy of existing regulatory 90-day public comment period (62 FR had been collected there and these areas mechanisms; and (5) other natural or 14093), with subsequent reopenings of have suitable habitat for the Preble’s. manmade factors affecting the species’ the comment period to gather additional Therefore, the Service took into continued existence. Our determination information (62 FR 24387, 62 FR 67041). consideration the likely presence of the is statutorily limited to an evaluation of The Service added the Preble’s meadow Preble’s in these surveyed locations in these five factors. jumping mouse to the List of the 1998 listing rule. In response to whether the taxonomic Endangered and Threatened Wildlife in The second petitioner stated that the entity is valid, the Code of Federal 50 CFR 17.11 as a threatened species on reason for the delisting request was the Regulations (50 CFR 424.11) states that May 13, 1998 (63 FR 26517). inability to identify the mouse. We in listing entities as endangered or On July 27, 1999, the Service received interpret this concern, that is the threatened under the Act, the Service a petition to delist the Preble’s, dated difficulty in differentiating Preble’s from will rely on standard scientifically July 20, 1999. The Service subsequently the western jumping mouse in the field, accepted taxonomy. The Preble’s received two other petitions to delist the as either a concern that (1) the listing is meadow jumping mouse (Zapus Preble’s—one dated July 26, 1999, and invalid or (2) the taxonomic entity is not hudsonius preblei) is a valid, one dated August 27, 2000. These valid. The range of the western jumping scientifically accepted subspecies of petitions are being treated as second mouse (Zapus princeps) in Wyoming meadow jumping mice (Zapus petitions for the requested delisting and Colorado overlaps that of Preble’s hudsonius) (Krutzch 1954; Clark and action, and both have been considered (Hall 1981), and the two species are Stromberg 1987; Fitzgerald et al. 1994). in this 90-day finding. similar in their appearance. Despite The third petitioner disagreed with difficulties in field identification, the the use of information available on Review of the Petition Preble’s can be differentiated from the Zapus hudsonius and the application of In requesting that the Service delist western jumping mouse. Compared to this information to Zapus hudsonius the Preble’s, the first petitioner stated the western jumping mouse, the Preble’s preblei. When information specific to a that the information available to the is generally smaller and has a more subspecies is lacking, information on Service did not justify a listing and distinctly bicolored tail and a less the parent species may be the best asked the Service to ‘‘set aside’’ the Act obvious dorsal (back) stripe. A better information available for the Service to relative to the Preble’s to allow time to technique for identification of the use. We must base our determination on gather more information. The third Preble’s requires skulls of specimens the best available scientific information. petitioner stated that, because the housed in natural history museums, Many characteristics of the species Z. information available on the Preble’s is where dental characteristics (such as the hudonius would generally be applicable limited, the Service’s listing of the presence or absence of a tooth fold on to all its subspecies, including Z. h. subspecies was ‘‘precipitate and the first lower molar (Klingener 1963, preblei. uninformed.’’ The Service is mandated Hafner 1993) or the shape of a tooth The third petitioner stated that the to use the best scientific information cusp) can be seen and used in original petition to list the Preble’s available at the time we make a decision combination with distribution and should not have been given credence to list a species (50 CFR 424.11(b)). elevation. These techniques have been because it lacked sufficient information Once petitioned to list a species, we are useful scientific tools for almost half a on the Preble’s. Under the Code of under statutory obligations as stated in century. A third and more recent Federal Regulations (50 CFR 424.13 and the Act to complete the petition process. technique to identify Preble’s uses a 424.14), the Service is required to We did extend or reopen the comment combination of skull measurements in seriously consider all petitions and period twice and held three public addition to the tooth fold (which may utilize all available information, not just hearings to seek factual reports or not always be reliable by itself due to the petitioner’s, when making its information that might contribute to the tooth wear) (Conner and Shenk in determination. In the 1998 listing rule, development of the final rule (63 FR press). These techniques accurately we relied on a host of scientific 26517). identify most of the Preble’s specimens. information available on the species The first petitioner stated that A fourth technique is genetic analysis. concerning the threats it faced and did additional information was available on Future DNA studies, including a current not make our determination based trapping conducted by private study being conducted at the Denver solely on the information provided in landowners, the Forest Service, and the Museum of Nature and Science, will go the original petition. State Department of Transportation that a long way towards resolving some of The third petitioner stated that the the Service did not consider in its 1998 the few remaining identification 1998 listing is inappropriate because of listing and that the Service should set inconsistencies. errors in the subspecies’ geographical aside the listing to evaluate this new In addition, ease of field identification distribution. The third petitioner stated information. The third petitioner stated is not a threat to be evaluated when that the Service did not accept the that the information coming to light in making a listing determination. The Act identification of an individual Preble’s 1999 indicated a plenitude of this requires that the Service evaluate five reportedly found in Las Animas County, subspecies. Trapping conducted by factors in determining whether to list a Colorado, because it would have raised

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questions regarding the subspecies’ The third petitioner stated the use of Based on information that (1) the presence in Huerfano, Costilla, and Sherman live traps as a reason why the Service has identified numerous known Pueblo Counties of Colorado. As stated subspecies’ geographical distribution or potential population areas, and (2) in the 1998 listing rule, the Service did cannot be fixed entirely. The there are large numbers of unsurveyed not accept this identification because geographical distribution of the sites, the third petitioner concludes that further morphological analysis subspecies was determined based on the Preble’s is abundant and has never determined this individual to be a small mammal surveys conducted in been threatened. different species of mouse, the western Colorado and Wyoming over the past The Service did identify areas of jumping mouse, not the Preble’s. 100 years primarily using snaptraps, not known or potential Preble’s populations The third petitioner stated that Sherman live traps. Therefore, surveys to assist local governments and other favorable habitat may occur in other using Sherman live traps were not the entities in planning activities (63 FR Colorado counties (Gilpin, Clear Creek, primary information used to determine 66777, December 3, 1998). The sites Fremont, Teller, Huerfano, and Costilla) the species’ geographical distribution. identified as ‘‘potential’’ Preble’s that have not been surveyed. Since The use of Sherman live traps in population areas had not been surveyed; receipt of the third petitioner’s petition, surveying for Preble’s became standard the presence of Preble’s in these surveys have been undertaken in methodology in the early 1990s, and locations was considered possible, but Fremont and Teller Counties. Gilpin, information from these surveys has had not been verified. This list was a Clear Creek, and Teller are high- refined but not significantly altered the preliminary estimate of potential elevation counties west of known subspecies geographical distribution. habitat; some of these potential sites Preble’s distribution with almost no Additionally, the third petitioner have since been found not to have favorable habitat. The only favorable stated that the Service did not suitable habitat and/or not to support habitat would occur where these accurately identify the Preble’s Preble’s populations. The potential counties meet lower elevation geographical range because of what the habitats since found to support Preble’s neighboring counties. The lower petitioner stated were errors in several continue to be subject to the threats elevation habitat within the South Platte citations (Whitaker 1972; Compton and listed in the 1998 listing rule. River drainage in northern Teller Hugie 1993; Harrington et. al. 1995, and The third petitioner asserts that the County may be occupied by the Preble’s Meaney and Clippenger 1996). In numbers of known and potential near the Jefferson County line. Surveys defining the geographical distribution, Preble’s habitat indicate its abundance. identified one Preble’s mouse at the Service used all scientific The list of known or potential approximately the county line but none information available; it did not rely populations identifies fragments of the upstream within Teller County. The only upon the citations mentioned by original Preble’s habitat. The number of habitat in Teller County is very limited the third petitioner but used other fragments may appear high but in extent because the elevation rapidly citations as well to give a full picture of represent only a small portion of the becomes too high upstream from Teller the species’ range. original whole. The number of separate County’s border with Jefferson County. The third petitioner cites Shenk sites reflects the amount of Similarly, elevations in Gilpin and Clear (1998) as saying that there is insufficient fragmentation that has occurred within Creek Counties are generally too high to information on Preble’s range and historic habitat and is an indication of support the Preble’s. At the eastern edge ecology. While Shenk cites gaps in the previous and continuing threats to of both counties, mountain drainages knowledge on the Preble’s, Shenk’s Preble’s habitat described in the 1998 exit into Jefferson County to lower intent was to identify information listing rule. elevation streams characteristic of the needed to support a conservation Additional surveys have been subspecies’ range. Surveys of lower strategy for the Preble’s and was not undertaken since the 1998 listing rule in elevation streams in Gilpin and Clear related to the species’ listing. some locations throughout the Creek Counties suggest that habitat is The third petitioner stated that subspecies’ range where habitat was marginal, at best, for the Preble’s. Any population declines have not been believed suitable and where the species additional habitat in these counties documented. The Preble’s has been was presumed to occur but had not been would not significantly increase the size extirpated from some historically documented. Some of these surveys of the Preble’s geographical distribution occupied areas. Surveys have identified verified Preble’s presence at the survey and, therefore, would not alter the threat various locations where the subspecies locations; others did not. While new analysis in the 1998 listing rule. was historically present but is now populations have been documented and Fremont, Costilla, and Huerfano absent (Ryon 1996). Since at least 1991, additional animals have been found, the Counties are not likely to support the Preble’s has not been found in threat analysis in the 1998 listing rule Preble’s. Surveys of possibly suitable Denver, Adams, or Arapahoe Counties identified significant threats to the habitats in Fremont County have failed in Colorado. Its absence in these subspecies and its habitat throughout to document the Preble’s (Christina counties is likely due to urban most of its range in both known and Werner, Colorado Natural Heritage development, which has altered, potentially occupied areas. The newly Program, in litt. 2003). While a portion reduced, or eliminated riparian habitat documented populations remain subject of Huerfano County is within the (Compton and Hugie 1993; Ryon 1996). to the threats analyzed in the 1998 Arkansas River drainage (where Preble’s The third petitioner referred to listing rule. has been documented in the statements made by unidentified parties The third petitioner stated that there northernmost part), Huerfano County is about lack of historical information and is no rational definition of habitat. even further south of known Preble’s about additional animals being found. Typical habitat for the Preble’s range and is even less likely to have We have addressed the issue of comprises well-developed plains suitable habitat for the Preble’s. Costilla insufficient information in previous riparian vegetation with adjacent County is in the Rio Grande drainage. It paragraphs. We address the issue of undisturbed grassland communities and lies far from known Preble’s range, additional surveys and documentation a nearby water source. Well-developed south and west of the Arkansas River of additional populations in response to plains riparian vegetation typically drainage and separated by a mountain additional statements by the third includes a dense combination of grasses, range. petitioner below. forbs, and shrubs; a taller shrub and tree

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canopy may be present (Bakeman 1997). locations. Research has been conducted, DEPARTMENT OF THE INTERIOR When present, the shrub canopy is often such as radio-telemetry studies on Salix spp. (willow), although shrub habitat use and movements by Preble’s Fish and Wildlife Service species including Symphoricarpus spp. that has added to current knowledge Draft Recovery Plan for Deinandra (snowberry), Prunus virginiana about the species’ biology. There is new conjugens (Otay Tarplant) (chokecherry), Crataegus spp. information verifying differences in (hawthorn), Quercus gambelli (Gambel’s morphological characteristics between AGENCY: U.S. Fish and Wildlife Service, oak), Alnus incana (alder), Betula Zapus hudsonius preblei and related Interior. fontinalis (river birch), Rhus trilobata taxa (Connor and Shenk, in press). ACTION: Notice of document availability (skunkbrush), Prunus americana (wild plum), Amorpha fruticosa (lead plant), Information is available on the for review and comment. presence of and possible increases in Cornus sericea (dogwood), and others SUMMARY: The U.S. Fish and Wildlife threats to Preble’s and its habitat also may occur (Bakeman 1997; Shenk Service (‘‘we’’), announces the and Eussen 1998). throughout a large portion of the availability of the Draft Recovery Plan Additional research on the species’ species’ range, as evidenced by—(1) for Deinandra conjugens (Otay Tarplant) habitat has supported and refined the section 7 consultations conducted to for public review. This draft recovery definition of habitat used in the 1998 address adverse effects to the Preble’s plan includes specific criteria and listing rule. This recent information from Federal actions and (2) measures to be taken in order to indicates that, although Preble’s have applications by private parties for effectively recover the species to the rarely been trapped in uplands adjacent permits to take Preble’s. The Service is point where delisting is warranted. We to riparian areas (Dharman 2001), in the process of preparing a recovery solicit review and comment from the detailed studies of the Preble’s plan for the Preble’s and is involved in public and local, State, and Federal movement patterns using radio- section 7 consultations on Federal agencies on this draft recovery plan. telemetry found Preble’s feeding and activities as well as assisting with the resting in adjacent uplands and DATES: Comments on the draft recovery development of Habitat Conservation traveling considerable distances along plan must be received on or before streams, as far as 1.6 km (1.0 mi) in one Plans addressing many private March 2, 2004 to receive our evening (Shenk and Sivert 1999a; Shenk activities. Through these efforts, we are consideration. continually reviewing and considering and Sivert 1999b; Ryon 1999; Schorr ADDRESSES: Hard copies of the draft 2001). These studies suggest that the all newly available information recovery plan will be available in 2 to Preble’s uses uplands at least as far out regarding the species’ abundance and 4 weeks. An electronic copy of this draft as 100 m (330 ft) beyond the 100-year the threats it faces. plan is now available at http:// floodplain (Ryon 1999; Tanya Shenk, Finding www.pacific.fws.gov/ecoservices/ Colorado Division of Wildlife, in litt. endangered/recovery/default. Written 2002). The Service has reviewed the request for copies of the draft recovery The third petitioner also raised petitions, the material submitted with plan and submission of written several issues specifically dealing with the petitions and subsequent to the comments regarding the plan should be stated increased costs or private petitions, and additional information in addressed to the Field Supervisor, U.S. property takings or life, health, and the Service’s files. On the basis of the Fish and Wildlife Service, Carlsbad Fish safety issues, including disease carried best scientific and commercial data and Wildlife Office, 6010 Hidden Valley by deer mice. The Code of Federal available, the Service finds that the Road, Carlsbad, California 92009. Regulations (50 CFR 424.11(b)) states petitions and information in the Supporting documents are available for that the Service must make inspection, by appointment, during determinations based on the basis of the Service’s files do not present substantial information that delisting the Preble’s normal business hours at the above best available scientific and commercial address. information regarding a species’ status, meadow jumping mouse in Colorado without reference to possible economic and Wyoming may be warranted. FOR FURTHER INFORMATION CONTACT: or other impacts of such determination. Kelly Goocher, Fish and Wildlife References Cited Biologist, at the above Carlsbad address New Information Available in the (telephone: 760–431–9440). Service’s Files A complete list of all references cited in this finding is available, upon SUPPLEMENTARY INFORMATION: In addition to considering information request, from the Lakewood, Colorado Background provided by the petitioners, if any, the Fish and Wildlife Office (see ADDRESSES Service also must consider the section). Recovery of endangered or threatened information readily available at the time animals and plants is a primary goal of of this finding. Additional information Authority our endangered species program and the on the Preble’s has become available Endangered Species Act (Act) (16 U.S.C. since the species was listed in 1998 and The authority for this action is section 1531 et seq.). Recovery means since the petitions were received. As 4 of the Endangered Species Act of 1973 improvement of the status of listed cited earlier, numerous surveys have (16 U.S.C. 1531 et seq.). species to the point at which listing is been undertaken throughout the species’ Dated: December 11, 2003. no longer appropriate under the criteria range in suitable habitat areas where the Steve Williams, set out in section 4(a)(1) of the Act. species was presumed to occur but had Recovery plans describe actions not been documented. Some of these Director, Fish and Wildlife Service. considered necessary for the surveys provided verification of Preble’s [FR Doc. 03–31255 Filed 12–17–03; 8:45 am] conservation of the species, establish presence at the survey locations; others BILLING CODE 4310–55–P criteria for downlisting or delisting did not. The survey results indicate that listed species, and estimate time and the species may persist at or may have cost for implementing the measures been extirpated from individual survey needed for recovery.

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The Act requires the development of framework, and protecting key SUMMARY: The U.S. Fish and Wildlife recovery plans for listed species unless populations. Additional measures Service (‘‘we’’) announces the such a plan would not promote the outlined in the draft recovery plan will availability of a draft revised recovery conservation of a particular species. enhance the species’ ability to achieve plan for the ‘Alala¯, or Hawaiian Crow Section 4(f) of the Act requires that recovery. (Corvus hawaiiensis) for public review. public notice and an opportunity for This draft recovery plan recognizes This endemic Hawaiian bird, a member public review and comment be provided efforts by the local jurisdictions to of the family Corvidae, is now believed during recovery plan development. We conserve Deinandra conjugens under to be extinct in the wild and survives will consider all information presented the MSCP, and includes additional only in captivity. The ‘Alala¯ was listed during the public comment period prior conservation measures designed to as an endangered species in 1967 (32 FR to approval of each new or revised ensure D. conjugens will continue to 4001). The original recovery plan for the recovery plan. Substantive technical exist, distributed throughout its extant ‘Alala¯ was published in 1982. comments may result in changes to the and historic range. Recovery is DATES: Comments on the draft revised recovery plan. Substantive comments dependent upon the conservation of recovery plan must be received on or regarding recovery plan implementation sufficient habitat to sustain populations before February 17, 2004 to receive our may not necessarily result in changes to of D. conjugens, as well as populations consideration. the recovery plan, but will be forwarded of its primary pollinators; maintaining ADDRESSES: Copies of the draft revised to appropriate Federal or other entities genetic variability within the species; recovery plan are available for so that they can take these comments and connect conserved populations to inspection, by appointment, during into account during the course of ensure gene flow (through cross normal business hours at the following implementing recovery actions. pollination). locations: U.S. Fish and Wildlife Individual responses to comments will The ultimate goal of this recovery Service, Pacific Islands Fish and not be provided. plan is to delist Deinandra conjugens Wildlife Office, 300 Ala Moana Deinandra conjugens is an annual through implementation of a variety of Boulevard, Room 3–122, Honolulu, plant in the family Asteraceae. It was recovery actions including: (1) federally listed as a threatened species Hawaii 96850 (telephone 808–792– stabilizing and protecting habitat 9400) and Hawaii State Library, 478 S. on October 13, 1998 (63 FR 54938). The supporting known populations within species occurs in southwest San Diego King Street, Honolulu, Hawaii 96813. the conserved areas under the MSCP; (2) Requests for copies of the draft revised County, California, and in northern Baja surveying for new populations; (3) California, Mexico. It occurs recovery plan and written comments assessing status of known populations; and materials regarding this plan should predominantly on clay soils, subsoils, or (4) adaptively managing and monitoring lenses (isolated areas of clay soil), be addressed to the Field Supervisor, conserved areas; (5) identifying research Ecological Services, at the above which typically support grasslands, but needs and conducting studies on may support some woody vegetation. Honolulu address. An electronic copy of biology and ecology of the species; and Agriculture and urban development, the draft revised recovery plan is also (6) developing and implementing a invasion of nonnative species, and available at: http://endangered.fws.gov/ habitat fragmentation and degradation community outreach plan. recovery/index.html#plans. have resulted in the loss of suitable Public Comments Solicited FOR FURTHER INFORMATION CONTACT: Jay habitat across the species’ range. The Nelson, Fish and Wildlife Biologist, at We solicit written comments on the species’ self-incompatible breeding the above Honolulu address. draft recovery plan described. All system (an individual plant cannot SUPPLEMENTARY INFORMATION: comments received by the date specified pollinate itself, so successful above will be considered in developing Background reproduction requires pollination a final recovery plan. between genetically unrelated plants), Recovery of endangered or threatened its annual habit, and the extensive Authority animals and plants is a primary goal of fragmentation of remaining populations our endangered species program and the The authority for this action is section potentially create additional threats Endangered Species Act (Act) (16 U.S.C. 4(f) of the Endangered Species Act, 16 from random population fluctuations, 1531 et seq.). Recovery means U.S.C. 1533(f). reduced populations of pollinators, a improvement of the status of listed subsequent reduction in cross Dated: November 28, 2003. species to the point at which listing is pollination and gene flow between D. Kenneth McDermond, no longer appropriate under the criteria populations, and a decline in genetic Acting Manager, California/Nevada set out in section 4(a)(1) of the Act. variation. Maintenance of the genetic Operations Office, Region 1, Fish and Wildlife Recovery plans describe actions variability within the species, through Service. considered necessary for the cross-pollination, may be critical to [FR Doc. 03–31164 Filed 12–17–03; 8:45 am] conservation of the species, establish long-term survival. BILLING CODE 4310–55–P criteria for downlisting or delisting Within San Diego County, the species listed species, and estimate time and occurs entirely within the Multiple cost for implementing the measures Species Conservation Planning (MSCP) DEPARTMENT OF THE INTERIOR needed for recovery. area, primarily within three associated The Act requires the development of subarea plans: the City of San Diego Fish and Wildlife Service recovery plans for listed species unless Subarea Plan, the County of San Diego such a plan would not promote the Subarea Plan, and the City of Chula Draft Revised Recovery Plan for the conservation of a particular species. ¯ Vista Subarea Plan. These subarea plans ‘Alala (Corvus hawaiiensis) Section 4(f) of the Act requires that provide for the conservation of AGENCY: Fish and Wildlife Service, public notice and an opportunity for Deinandra conjugens and many other Interior. public review and comment be provided listed and non-listed species by during recovery plan development. We ACTION: Notice of document availability developing a reserve system with a will consider all information presented for review and comment. monitoring and management during the public comment period prior

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to approval of each new or revised habitat where the taxa occurred and Authority recovery plan. Comments may result in habitat where the species is not known The authority for this action is section changes to the plan. Comments to have occurred but which may be 4(f) of the Endangered Species Act, 16 regarding recovery plan implementation suitable, restoration of degraded habitat, U.S.C. 1533 (f). will be forwarded to appropriate Federal removal of feral ungulates from habitat Dated: October 16, 2003. or other entities so that they can take areas, predator control, captive these comments into account during the propagation and reintroduction, David J. Wesley, course of implementing recovery development of strategies to reduce Regional Director, Region 1, U.S. Fish and Wildlife Service. actions. Individual responses to mortality of reintroduced ‘Alala¯ by ‘Io comments will not be provided. predation, and the development of [FR Doc. 03–31166 Filed 12–17–03; 8:45 am] The Hawaiian Crow, or ‘Alala¯, is an BILLING CODE 4310–55–P means to address threats of avian omnivorous, forest-dwelling bird disease. Key to recovery will be endemic to dry and mesic forests on the ¯ island of Hawaii. Although ‘Alala¯ were propagation of ‘Alala in captivity; DEPARTMENT OF THE INTERIOR still abundant in the 1890’s, their removal of feral ungulates that degrade numbers decreased sharply throughout forest habitat, spread introduced Fish and Wildlife Service the twentieth century despite legal nonnative plant species, and create Draft Recovery Plan for the protection conferred by the Territory of breeding sites for disease-carrying Hawaii in 1931, the Act in 1973, and the mosquitoes; control of introduced Blackburn’s Sphinx Moth (Manduca State of Hawaii Endangered Species Act rodents; removal of feral cats that carry blackburni) in 1982. Progressive range reduction toxoplasmosis; and control of invasive AGENCY: Fish and Wildlife Service, and population fragmentation have plant species. Habitat management and Interior. characterized the decline. By 1987, the restoration will increase foods available ACTION: Notice of document availability wild ‘Alala¯ population was reduced to to released ‘Alala¯ and provide better for review and comment. a single bird in north Kona, and an cover for escape in areas with ‘Io. unknown number in central Kona, on Significant features of the ‘Alala¯’s life SUMMARY: The U.S. Fish and Wildlife the west slope of Mauna Loa volcano, history, behavior, ecological Service (‘‘we’’) announces the Hawaii. The last reproduction of birds interactions, and habitat needs remain availability of the Draft Recovery Plan in the wild was in 1996, and the wild unknown. These unknowns, combined for the Blackburn’s Sphinx Moth population declined from 12 birds in (Manduca blackburni) (sphinx moth) for with the pressing need to successfully 1992 to 2 birds (possibly 3) in 2002, and public review and comment. This insect maintain and augment the last apparent extinction in the wild in 2003. taxon is listed as endangered (45 FR remaining population of the species in Today, the ‘Alala¯ is believed to 4770; February 1, 2000), and is endemic survive only in captivity. Small captivity, led us to develop a draft to the main Hawaiian Islands. We solicit population size and inbreeding are the revised recovery plan that focuses review and comment from local, State, primary threats to the species at present, primarily on actions to conserve the and Federal agencies, and the public on fertility and hatching success in ‘Alala¯ in the short-term while working this draft recovery plan. within the framework of a broader long- captivity are currently low, and the DATES: Comments on this draft recovery incidence of congenital abnormalities is term recovery strategy. This draft plan must be received on or before increasing. revised recovery plan is therefore February 17, 2004 to receive our Many factors contributed to the presented in three sections: (1) An consideration. decline of ‘Alala¯ in the wild. Introduction and Overview provides Destruction of most of the lowland information on the biology of the ADDRESSES: Copies of the draft recovery forests restricted the bird’s ability to species; (2) a Strategic Plan outlines the plan are available for inspection, by follow seasonal fruiting up and down overall long-term goals and broad appointment, during normal business the mountains. The upland forests have strategies which we anticipate shall hours at the following locations: U.S. been thinned and fragmented, and many remain effective throughout the Fish and Wildlife Service, Pacific fruiting plants lost, due to logging, recovery process for this species; and (3) Islands Fish and Wildlife Office, 300 Ala Moana Boulevard, Room 3–122, Box ranching, and the effects of grazing by a 5-year Implementation Plan which 50088, Honolulu, Hawaii 96850 (phone: feral pigs, cattle, and sheep. Mongooses, sets short-term goals for recovery efforts 808–541–3441) and the Hawaii State cats, and rats prey on ‘Alala¯ eggs and and research essential to conservation of Library 478 S. King Street, Honolulu, fledglings. Diseases carried by the species. It is anticipated that new Hawaii 96813. Requests for copies of the introduced mosquitoes may have cause Implementation Plans will be prepared draft plan and written comments and the mortality of many ‘Alala¯, as they did and published as addenda to the revised other forest birds. The role of ‘Io in this materials regarding this plan should be recovery plan every 3 to 5 years as we addressed to the Field Supervisor, decline, however, is unknown, despite gain further knowledge of the ‘Alala¯ and their known effect on released birds. Ecological Services, at the above are better able to determine the However, ‘Io densities are higher, and Honolulu address. parameters and techniques for the vulnerability of ‘Alala¯ may be greater, in FOR FURTHER INFORMATION CONTACT: The effective recovery of this species in the areas where ungulate grazing has Field Supervisor at the above Honolulu wild. reduced understory cover. address. The overall objective of this plan is to Public Comments Solicited SUPPLEMENTARY INFORMATION: provide a framework for the recovery of the ‘Alala¯ so that its protection under We solicit written comments on the Background the Act is no longer necessary. Recovery draft revised recovery plan described. Recovery of endangered or threatened is contingent upon protecting and All comments received by the date animals and plants is a primary goal of managing suitable habitat for specified above will be considered in our endangered species program and the reintroduction of ‘Alala¯. Recovery developing a final revised recovery Endangered Species Act (Act) (16 U.S.C. actions include measures to protect plan. 1531 et seq. Recovery means

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improvement of the status of listed recovery plan identifies 3 recovery River Basin Regional Panel. The meeting species to the point at which listing is units, comprising 13 management units, topics are identified in the no longer necessary under the criteria which are geographic areas recently SUPPLEMENTARY INFORMATION. set out in section 4(a)(1) of the Act. documented to contain sphinx moth DATES: The Mississippi River Basin Recovery plans describe actions populations and/or sphinx moth host Regional Panel will meet from 8 a.m. to considered necessary for the plant populations, and shall be the 5 p.m. on Thursday, January 8, 2004, conservation and survival of the species, focus of recovery actions or tasks. The and 8 a.m. to 4 p.m. on Friday, January establish criteria for downlisting or three recovery units and their 9, 2004. Minutes of the meeting will be delisting listed species, and estimate component management units contain available for public inspection during time and cost for implementing the habitat considered necessary for the regular business hours, Monday through measures needed for recovery. long-term conservation of the sphinx Friday. The Act requires the development of moth (e.g., networks of suitable habitat ADDRESSES: The Mississippi River Basin recovery plans for listed species unless patches and connecting lands). Regional Panel meeting will be held at such a plan would not promote the The recovery actions described in this the Radisson Hotel—New Orleans, 1500 conservation of a particular species. draft recovery plan include: (1) Protect Canal Street, New Orleans, LA 70112. Section 4(f) of the Act requires that habitat and control threats to the moth Phone 504–522–4500. Minutes of the public notice, and an opportunity for and its habitat; (2) expand existing wild meeting will be maintained in the office public review and comment, be Nothocestrum spp. host plant of Chief, Division of Environmental provided during recovery plan populations; (3) conduct additional Quality, U.S. Fish and Wildlife Service, development. We will consider all research essential to recovery of the Suite 322, 4401 North Fairfax Drive, information presented during a public sphinx moth; (4) develop and Arlington, Virginia 22203–1622. comment period prior to approval of implement a detailed monitoring plan FOR FURTHER INFORMATION CONTACT: Jay each new or revised recovery plan. We, for the sphinx moth; (5) reestablish wild Rendall, Mississippi River Basin Panel along with other Federal agencies, will sphinx moth populations within its Chair and Exotic Species Program also take these comments into account historic range; (6) develop and provide Coordinator, Minnesota Department of in the course of implementing approved information for the public on the sphinx Natural Resources at (651) 297–1464 or recovery plans. Individual responses to moth; and (7) validate recovery Jerry Rasmussen, Coordinator, MICRA, comments will not be provided. objectives. P.O. Box 774, Bettendorf, IA 52722, at The sphinx moth was federally listed The recovery objective of this draft (309) 793–5811, or Shawn Alam, as endangered on February 1, 2000 (65 recovery plan is to ensure the species’ Aquatic Nuisance Species Task Force at FR 4770). This insect taxon is currently long-term survival and conservation and (703) 358–2025. known to occur on three of the seven to conduct research necessary to refine Hawaiian Islands where it historically recovery criteria so that the sphinx moth SUPPLEMENTARY INFORMATION: Pursuant occurred, including Hawaii, Maui, and can be reclassified to threatened and to section 10(a)(2) of the Federal Kahoolawe. Although some habitat is eventually delisted. Advisory Committee Act (5 U.S.C. App. under public ownership and zoned for I), this notice announces meetings of the conservation purposes, no known Public Comments Solicited Aquatic Nuisance Species Task Force sphinx moth habitat complexes are We solicit written comments on the Mississippi River Basin Regional Panel. entirely protected, and the species faces draft recovery plan described. All The Task Force was established by the threats throughout its range. comments received by the date specified Nonindigenous Aquatic Nuisance The sphinx moth is currently found in above will be considered in developing Prevention and Control Act of 1990. The association with topographically diverse a final sphinx moth recovery plan. Mississippi River Basin Regional Panel landscapes that contain low to moderate was established by the ANS Task Force levels of nonnative vegetation. Authority in 2002. The Mississippi River Basin Vegetation types that support the sphinx The authority for this action is section Panel, comprised of representatives moth include dry to mesic shrub land 4(f) of the Endangered Species Act, 16 from Federal, State, local agencies and and forest from sea level to mid- U.S.C. 1533(f). from private environmental and elevations. Soil and climatic conditions, commercial interests, performs the Dated: October 14, 2003. as well as physical factors, affect the following activities: suitability of habitat within the species’ David J. Wesley, a. Identifies priorities for activities in range. The primary threats to the sphinx Acting Regional Director, Region 1, Fish and the Mississippi River Basin, moth include urban and agricultural Wildlife Service. b. develops and submits development; invasion by non-native [FR Doc. 03–31189 Filed 12–17–03; 8:45 am] recommendations to the national plant species; habitat fragmentation and BILLING CODE 4310–55–U Aquatic Nuisance Species Task Force, degradation; increased wildfire c. coordinates aquatic nuisance frequency; impacts from ungulates; species program activities in the Basin, other human-caused disturbances that DEPARTMENT OF THE INTERIOR d. advises public and private interests have resulted in substantial losses of on control efforts, and habitat throughout the species’ historic Fish and Wildlife Service e. submits an annual report to the range; parasitoids and insect predators; Aquatic Nuisance Species Task Force Aquatic Nuisance Species Task Force. and vandalism (collection). Needed The purpose of the Panel is to advise Mississippi River Basin Panel Meeting conservation activities include and make recommendations to the protection, management, and restoration AGENCY: Fish and Wildlife Service, Aquatic Nuisance Species Task Force on of suitable and restorable habitat; out- Interior. issues relating to the Mississippi River planting of native Nothocestrum spp. ACTION: Notice of meeting. Basin region of the United States that host plants; and a sphinx moth captive includes thirty-two Mississippi River breeding program that would augment SUMMARY: This notice announces a Basin States: Alabama, Arkansas, or expand the existing population meeting of the Aquatic Nuisance Colorado, Georgia, Iowa, Illinois, within its historic range. This draft Species (ANS) Task Force Mississippi Indiana, Kentucky, Kansas, Louisiana,

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Maryland, Michigan, Minnesota, Collection Clearance Officer at the DEPARTMENT OF THE INTERIOR Missouri, Mississippi, Montana, North telephone number listed below. Carolina, North Dakota, Nebraska, New The OMB must respond to this Bureau of Land Management Mexico, New York, Ohio, Oklahoma, request within 60 days but may respond [WO–230–1030–PB–24 1A] Pennsylvania, South Carolina, South after 30 days. For maximum Dakota, Tennessee, Texas, Virginia, consideration your comments and OMB Control Number 1004–0058; West Virginia, Wisconsin, and suggestions on the requirement should Information Collection Submitted to Wyoming. The Mississippi River Basin be directed within 30 days to the Office the Office of Management and Budget Regional Panel will discuss several of Management and Budget, Interior Under the Paperwork Reduction Act topics at this meeting including: a Department Desk Officer (1004–0001), at review of the first Panel meeting and OMB–OIRA via facsimile to (202) 395– The Bureau of Land Management Panel efforts to date including the 6566 or e-mail to (BLM) has sent a request to extend the development of an Executive Board [email protected]. Pleae current information collection to the report; presentations on round goby provide a copy of your comments to the Office of Management and Budget predation on smallmouth bass eggs; Bureau Information Collection (OMB) under the provisions of the updates on Asian Carp, bighead and Clearance Officer (WO–630), Bureau of Paperwork Reduction Act of 1995 (44 silver carp risk assessments; updates on Land Management, Eastern States U.S.C. 3501 et seq.). On February 11, white perch and distribution of ANS in Office, 7450 Boston Blvd., Springfield, 2003, the BLM published a notice in the the Basin; discussions on pathways and Virginia 22153. Federal Register (68 FR 6941) prevention activities such as the use of Nature of Comments: We specifically requesting comment on this information HACCP in fish hatcheries; a report on an request your comments on the collection. The comment period ended Asian carp barrier feasibility study following: on April 14, 2003. BLM received no initiated by the Minnesota DNR; 1. Whether the collection of comments. You may obtain copies of the development of national ballast water information is necessary for the proper collection of information and related regulations, and state ballast water functioning of the BLM, including forms and explanatory material by regulations; status reports from panel whether the information will have contacting the BLM Information subcommittees; a discussion on each practical utility; Collection Clearance Officer at the subcommittee’s responsibilities, the 2. The accuracy of our estimates of the telephone number listed below. 2004 Action Plans, and information collection burden, The OMB must respond to this recommendations for the ANS Task including the validity of the request within 60 days but may respond Force; and updates from Panel member methodology and assumptions we use; after 30 days. For maximum organizations and states. 3. Ways to enhance the quality, utility consideration your comments and and clarity of the information we suggestions on the requirement should Dated: December 1, 2003. collect; and be directed within 30 days to the Office William E. Knapp, 4. Ways to minimize the information of Management and Budget, Interior Acting Co-Chair, Aquatic Nuisance Species collection burden on those who are to Department Desk Officer (1004–0058), at Task Force, Acting Assistant Director— respond, including the use of OMB–OIRA via facsimile to (202) 395– Fisheries & Habitat Conservation. appropriate automated, electronic, 6566 or e-mail to [FR Doc. 03–31211 Filed 12–17–03; 8:45 am] mechanical, or other forms of [email protected]. Please BILLING CODE 4310–55–M information technology. provide a copy of your comments to the Title: Free Use Application and Bureau Information Collection Permit (Vegetative or Mineral Materials) Clearance Officer (WO–630), Bureau of DEPARTMENT OF THE INTERIOR (43 CFR 3620 and 5510). Land Management, Eastern States OMB Approval Number: 1004–0001. Office, 7450 Boston Blvd., Springfield, Bureau of Land Management Bureau Form Number(s): 5510–1. Virginia 22153. Abstract: The Bureau of Land Nature of Comments: We specifically [WO–230–1030–PB–24 1A] Management (BLM) collects information request your comments on the from respondents to monitor and assess following: OMB Approval Number 1004–0001; the use of authorized removals of 1. Whether the collection of Information Collection Submitted to vegetative or mineral materials to ensure information is necessary for the proper the Office of Management and Budget sustainable resource management. functioning of the BLM, including Under the Paperwork Reduction Act Frequency: Occasional. whether the information will have Description of Respondents: practical utility; The Bureau of Land Management Individuals, groups, not for profit 2. The accuracy of our estimates of the (BLM) has sent a request to extend the organizations, Federal, State, and local information collection burden, current information collection to the governments, or corporations. including the validity of the Office of Management and Budget Estimated Completion Time: 30 methodology and assumptions we use; (OMB) under the provisions of the minutes. 3. Ways to enhance the quality, utility Paperwork Reduction Act of 1995 (44 Annual Responses: 300. and clarity of the information we U.S.C. 3501 et seq.). On February 5, Application Fee Per Response: 0. Annual Burden Hours: 150. collect; and 2003, the BLM published a notice in the Bureau Clearance Officer: Michael 4. Ways to minimize the information Federal Register (68 FR 5913) Schwartz, (202) 452–5033. collection burden on those who are to requesting comment on this information respond, including the use of collection. The comment period ended Dated: November 14, 2003. appropriate automated, electronic, on April 7, 2003. BLM received no Michael H. Schwartz, mechanical, or other forms of comments. You may obtain copies of the Bureau of Land Management, Information information technology. collection of information and related Collection Clearance Officer. Title: Timber Export Reporting and forms and explanatory material by [FR Doc. 03–31214 Filed 12–17–03; 8:45 am] Substitution Determination (43 CFR contacting the BLM Information BILLING CODE 4310–84–M 5400).

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OMB Control Number: 1004–0058. current information collection to the 1. Whether the collection of Bureau Form Number(s): 5460–17. Office of Management and Budget information is necessary for the proper Abstract: The Bureau of Land (OMB) under the provisions of the functioning of the BLM, including Management (BLM) collects and uses Paperwork Reduction Act (44 U.S.C. whether the information will have the information to determine if there 3501 et seq.). On July 26, 2002, the BLM practical utility; was a substitution of Federal timber for published a notice in the Federal 2. The accuracy of our estimates of the exported private timber in violation of Register (67 FR 48936) requesting information collection burden, 43 CFR 5400.0–3(c). comment on this information collection. including the validity of the Frequency: Occasional and within 12 The comment period ended on methodology and assumptions we use; months of last export sale. September 24, 2002. BLM received no 3. Ways to enhance the quality, utility Description of Respondents: Federal comments. You may obtain copies of the and clarity of the information we timber purchasers. collection of information and related collect; and Estimated Completion Time: 1 hour. 4. Ways to minimize the information Annual Responses: 25. forms and explanatory material by Application Fee Per Response: 0. contacting the BLM Information collection burden on those who are to Annual Burden Hours: 25. Collection Clearance Officer at the respond, including the use of Bureau Clearance Officer: Michael telephone number listed below. appropriate automated, electronic, Schwartz, (202) 452–5033. mechanical, or other forms of The OMB must respond to this information technology. Dated: November 24, 2003. request within 60 days but may respond Title: Coal Management (43 CFR Michael H. Schwartz, after 30 days. For maximum 3400). Bureau of Land Management, Information consideration your comments and OMB Approval Number: 1004–0073. Collection Clearance Officer. suggestions on the requirement should Bureau Form Number: 3400–12 and [FR Doc. 03–31215 Filed 12–17–03; 8:45 am] be directed within 30 days to the Office 3440–1. BILLING CODE 4310–84–M of Management and Budget, Interior Abstract: The Bureau of Land Department Desk Officer (1004–0073), at Management (BLM) collects and uses OMB–OIRA via facsimile to (202) 395– the information for leasing or DEPARTMENT OF THE INTERIOR 6566 or e-mail to OIRA developing Federal coal. BLM uses the [email protected]. Please provide Bureau of Land Management information to determine if an applicant a copy of your comments to the Bureau is qualified to hold a Federal coal lease. [WO–320–1320–PB–24 1A] Information Collection Clearance Officer Frequency: Quarterly, monthly, and (WO–630), Bureau of Land annually. OMB Approval Number 1004–0073; Management, Eastern States Office, 7450 Description of Respondents: Information Collection Submitted to Boston Blvd., Springfield, Virginia Individuals, groups, or corporations. the Office of Management and Budget 22153. Estimated Completion Time: 10 hours Under the Paperwork Reduction Act Nature of Comments: We specifically for 3440–1 and 1 hour for 3400–12. The Bureau of Land Management request your comments on the The following chart lists non-form (BLM) has sent a request to extend the following: information collection requirements.

Public burden Information collection HR per action

a. Application for an exploration license ...... 36 b. Issuance and termination of an exploration license ...... 12 c. Operations under and modification of an exploration license ...... 1 d. Collection and submission of data from a exploration license ...... 18 e. Call for coal resource and other information ...... 24 f. Surface owner consultation ...... 1 g. Expression of leasing interest ...... 0 h. Response to notice of sale (bids received) ...... 56 i. Consultation with the Attorney General ...... 4 j. Leasing on application (application received) ...... 308 k. Surface owner consent ...... 1 l. Preference right lease application ...... 800 m. Lease modification ...... 12 n. License to mine ...... 21 o. Relinquishments ...... 18 p. Transfers, assignments, subleases ...... 10 q. Bond actions (by lease or license) ...... 8 r. Land description requirements ...... 2 s. Future interest lease application ...... 8 t. Special leasing qualification ...... 3 u. Qualification statement ...... 3 v. Lease rental and royalty rate reductions ...... 13 w. Lease suspension ...... 20 x. Lease form ...... 1 y. Logical mining units ...... 170 z. General obligations of the operator lessee ...... 1 aa. Exploration plans ...... 30 bb. Resource recovery and protection plan ...... 192 cc. Modifications to the exploration plans and resource recovery and protection plan ...... 16 dd. Mining operations maps ...... 20 ee. Request for payment in lieu of continued operations ...... 22

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Public burden Information collection HR per action

ff. Performance standards for exploration ...... 1 gg. Performance standards for surface and underground coal mines ...... 1 hh. Exploration reports ...... 4 ii. Production reports ...... 10 jj. Notices and orders ...... 3 kk. Enforcement ...... 2

Annual Responses: 1,289. Application Fee Per Response:

Estimated Total esti- number of ac- Filing fee per mated annual tions action collection

(a) Application for an exploration license ...... 10 $250 $2,500 (j) Leasing on application (applications received) ...... 15 250 3,750 (m) Lease modifications ...... 6 250 1,500 (n) License to mine ...... 2 10 20 (p) Transfers, assignments, subleases ...... 27 50 1,350 Total ...... 9,120

Annual Burden Hours: 25,585. contacting the Commission’s TDD participate in these remand Bureau Clearance Officer: Michael terminal on (202) 205–1810. General proceedings. Schwartz, (202) 452–5033. information concerning the Commission Nature of the Remand Proceedings Dated: December 11, 2003. may also be obtained by accessing its On January 5, 2004, the Commission Michael H. Schwartz, Internet server (http://www.usitc.gov). SUPPLEMENTARY INFORMATION: will make available to parties who Bureau of Land Management, Information participate in the remand proceedings Collection Clearance Officer. Reopening the Record information that has been gathered by [FR Doc. 03–31216 Filed 12–17–03; 8:45 am] In March, May, and July of 2000, the the Commission as part of these remand BILLING CODE 4310–84–M Commission made negative final proceedings. Parties that are determinations in the referenced participating in the remand proceedings investigations. The determinations were may file comments on or before January INTERNATIONAL TRADE appealed to the U.S. Court of 8, 2004 on whether any new COMMISSION International Trade (CIT). On October information received affects the Commission’s findings as to the [Investigation Nos. 701–TA–393 and 731– 28, 2003, the CIT issued an opinion TA–829–840 (Final) (Remand)] requiring the Commission to reconsider applicability of the captive production its findings on the applicability of the provision in these investigations. Any Cold-Rolled Steel From Argentina, captive production provision (19 U.S.C. material in the comments that does not Brazil, China, Indonesia, Japan, 1677(7)(C)(iv)) and its injury address this limited issue will be Russia, Slovakia, South Africa, Taiwan, determination. The Commission was stricken from the record or disregarded. Thailand, Turkey, and Venezuela; instructed to file its findings on remand No additional new factual information Notice and Scheduling of Remand within 90 days of its order, or on may be included in such comments. Proceedings January 26, 2004. Comments shall be typewritten and In order to assist it in making its submitted in a font no smaller than 11- AGENCY: International Trade determinations on remand, the point (Times new roman) and shall not Commission. Commission is reopening the record on exceed twelve double-spaced pages ACTION: Notice. remand in these investigations to (inclusive of any footnotes, tables, include information bearing on the graphs, exhibits, appendices, etc.). SUMMARY: The United States applicability of the captive production In addition, all written submissions International Trade Commission provision. The record in these must conform with the provisions of (Commission) gives notice of the court- proceedings will encompass the section 201.8 of the Commission’s rules; ordered remand of its final material from the record of the original any submissions that contain business countervailing duty and antidumping investigations and information gathered proprietary information (BPI) must also duty investigations Nos. 701–TA–393 by Commission staff during the remand conform with the requirements of and 731–TA–829–840 (Final) (Remand). proceedings. sections 201.6, 207.3, and 207.7 of the FOR FURTHER INFORMATION CONTACT: Commission’s rules. The Commission’s Michael Diehl, Esq., Office of the Participation in the Proceedings rules do not authorize filing General Counsel, telephone (202) 205– Only those persons who were submissions with the Secretary by 3095 or Diane Mazur, Office of interested parties to the original facsimile or electronic means. Each Investigations, telephone (202) 205– administrative proceedings and are document filed by a party participating 3184, 500 E Street SW., Washington, DC parties to the ongoing litigation (i.e., in the remand investigations must be 20436, U.S. International Trade persons listed on the Commission served on all other parties who may Commission. Hearing-impaired Secretary’s service list and parties to participate in the remand investigations individuals are advised that information Bethlehem Steel v. United States, (as identified by either the public of BPI on this matter can be obtained by Consol. Ct. No. 00–00151) may service list), and a certificate of service

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must be timely filed. The Secretary will The Department of Justice will receive Environmental Response, not accept a document for filing without for a period of thirty (30) days from the Compensation, and Recovery Act, as a certificate of service. Parties are also date of this publication comments amended (‘‘CERCLA’’), 42 U.S.C. 9606, advised to consult the Commission’s relating to the consent decree. 9607(a) and 9613. The Consent Decree, Rules of Practice and Procedure, part Comments should be addressed to the which was lodged concurrently with the 201, subparts A through E (19 CFR part Assistant Attorney General, filing of the complaint, resolves the 201), and part 207, subpart A (19 CFR Environment and Natural Resources United States’ claims under the part 207) for provisions of general Division, P.O. Box 7611, U.S. Complaint, recovers $490,000 of applicability concerning written Department of Justice, Washington, DC unreimbursed past costs, plus future 20044–7611, and should refer to United submissions to the Commission. costs, and obligates the Settling States v. Government of Guam, D.J. Ref. Defendants to perform the Remedial Limited Disclosure of Business #90–5–1–1–06658. Proprietary Information (BPI) Under an The consent decree may be examined Design/Remedial Action (‘‘RD/RA’’) at Administrative Protective Order (APO) at the Office of the United States the Site valued at approximately $1.4 and BPI Service List Attorney, Suite 500, Sirena Plaza, 108 million with a contingency groundwater Hernan Cortez, Hagatna, Guam, and at remedy estimated to cost an additional Information obtained during the $1 million. remand investigations will be released U.S. EPA Region 9, Office of Regional to the referenced parties, as appropriate, Counsel, 75 Hawthrone Street, San The Department of Justice will receive under the administrative protective Francisco, California. During the public for a period of thirty (30) days from the comment period, the consent decree order (APO) in effect in the original date of this publication comments may also be examined on the following investigation. A separate service list will relating to the Consent Decree. Department of Justice Web site: http:// be maintained by the Secretary for those Comments should be addressed to the www.usdoj.gov/enrd/open.html. A copy parties authorized to receive BPI under Assistant Attorney General, of the consent decree may also be the APO in these remand investigations. Environment and Natural Resources obtained by mail from the Consent Division, P.O. Box 7611, U.S. Authority: This action is taken under the Decree Library, P.O. Box 7611, U.S. authority of the Tariff Act of 1930, title VII. Department of Justice, Washington, DC Department of Justice, Washington, DC 20044–7611 or by faxing or e-mailing a 20044–7611, and should refer to United By order of the Commission. States v. Island Chemical Company, et Issued: December 15, 2003. request to Tonia Fleetwood ([email protected]), fax no. al., D.J. Ref. 90–11–2–954/2. Marilyn R. Abbott, (202) 514–0097, phone confirmation The Consent Decree may be examined Secretary to the Commission. number (202) 514–1547. In requesting a at the Office of the United States [FR Doc. 03–31272 Filed 12–17–03; 8:45 am] copy from the Consent Decree Library, Attorney, District of the Virgin Islands, BILLING CODE 7020–02–P please enclose a check in the amount of P.O. Box 3239 Christiansted, St. Croix, $20.00 (25 cents per page reproduction U.S. Virgin Islands 00822, (contact cost) payable to the U.S. Treasury. DEPARTMENT OF JUSTICE Assistant United States Attorney Ernest Ellen M. Mahan, A. Batenga) and at U.S. EPA Region II, Notice of Lodging of Consent Decree Assistant Chief, Environmental Enforcement 290 Broadway, New York, New York Under the Clean Water Act Section, Environment and Natural Resources 10007–1866 (contact Assistant Regional Division. Counsel Carol Berns). During the public Under 28 CFR 50.7, notice is hereby [FR Doc. 03–31152 Filed 12–17–03; 8:45 am] comment period, the Consent Decree, given that on December 3, 2003, a BILLING CODE 4410–15–M may also be examined on the following proposed consent decree in United Department of Justice Web site, http:// States v. Government of Guam, Civil www.usdoj.gov/enrd/open.html. A copy Case No. 02–00022, was lodged with the DEPARTMENT OF JUSTICE of the Consent Decree may also be United States District Court for the obtained by mail from the Consent District of Guam. Notice of Lodging of Consent Decree Pursuant to the Comprehensive Decree Library, P.O. Box 7611, U.S. In this action, the United States Environmental Response Department of Justice, Washington, DC sought injunctive relief and civil Compensation and Liability Act 20044–7611 or by faxing or e-mailing a penalties under section 309 of the Clean (‘‘CERCLA’’) request to Tonia Fleetwood Water Act (‘‘CWA’’) against the ([email protected]), fax no. Government of Guam for: (1) Discharges Notice is hereby given that on (202) 514–0097, phone confirmation of leachate from the Ordot Landfill December 3, 2003, a proposed Consent number (202) 514–1547. In requesting a without a permit in violation of CWA Decree (‘‘Consent Decree’’) in United copy from the Consent Decree Library, section 301; and (2) violation of the U.S. States v. Island Chemical Company, et please enclose a check in the amount of Environmental Protection Agency’s al., Civil Action No. 2003–193 was $41.50 (25 cents per page reproduction administrative order to cease the lodged with the United States District cost), payable to the U.S. Treasury. discharges. The consent decree requires Court for the District of the Virgin the Government of Guam to: (1) Close Islands, Division of St. Criox. Ronald Gluck, the Ordot Landfill, conduct In this action the United States sought Assistant Chief, Environmental, Enforcement environmental studies, and develop, the implementation of the remedy set Section, Environment and Natural Resources design, construct, and operate a new forth in the Record of Decision issued Division. sanitary landfill; (2) as a supplemental August 13, 2002, and the recovery of [FR Doc. 03–31154 Filed 12–17–03; 8:45 am] environmental project, develop and costs incurred by the United States in BILLING CODE 4410–15–M implement a comprehensive waste response to releases and threatened diversion strategy for household releases of hazardous substances at the hazardous waste on Guam; and (3) pay Site pursuant to sections 106, 107(a) and a civil penalty of $200,000. 113 of the Comprehensive

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DEPARTMENT OF JUSTICE $7.00 (25 cents per page reproduction of the proposed Consent Judgment may cost) payable to the U.S.Treasury. be obtained by mail from the Consent Notice of Lodging of Consent Decree Decree Library, P.O. Box 7611, U.S. Thomas Mariani, Under the Comprehensive Department of Justice, Washington, DC Assistant Chief, Environmental Enforcement 20044–7611 or by faxing or e-mailing a Environmental Response, Section, Environment and Natural Resources Compensation and Liability Act Division. request to Tonia Fleetwood ([email protected]), fax no. [FR Doc. 03–31153 Filed 12–17–03; 8:45 am] Notice is hereby given that on (202) 514–0097, phone confirmation BILLING CODE 4410–15–M December 10, 2003, a proposed Consent number (202) 514–1547. If requesting a Decree in United States v. Ralph L. copy of the proposed Consent Judgment, Lowe, et al., Civil Action No. H–91–830 DEPARTMENT OF JUSTICE please so note and enclose a check in was lodged with United States District the amount of $3.00 (25 cent per page Court for the Southern District of Texas. Notice of Lodging of Consent reproduction cost) payable to the U.S. Judgment Pursuant to Clean Air Act Treasury. In this action the United States sought all costs incurred by the United States Notice is hereby given that on Ronald Gluck, for responding to releases or threatened December 1, 2003, a proposed Consent Assistant Section Chief, Environmental releases of hazardous substances at the Judgment in United States v. The New Enforcement Section, Environment and Natural Resources Division. Dixie Oil Processors, Inc. Superfund York City Transit Authority, Civil Site near Friendswood in Harris County, Action No. CV–97–7521, was lodged [FR Doc. 03–31151 Filed 12–17–03; 8:45 am] Texas. The Consent Decree resolves the with the United States District Court for BILLING CODE 4410–15–M United States claim against Pharmacia the Eastern District of New York. The proposed Consent Judgment will Corporation (formerly known as DEPARTMENT OF JUSTICE Monsanto Company), the Dow Chemical resolve the United States’ claims under section 113 of the Clean Air Act, 42 Company, Merichem Company, Drug Enforcement Administration U.S.C. 7413, on behalf of the U.S. Lyondell Chemical Company (as Environmental Protection Agency successor to ARCO Chemical Company), Larry E. Davenport, M.D.: Denial of against defendant New York City Application for DEA Registration and Rohn and Haas Company for past Transit Authority (‘‘TA’’) in connection response costs that have been incurred with the TA’s renovation of six subway I. Background and for future response costs that will stations in Brooklyn and Queens, New On September 21, 2001, the Deputy be incurred by the United States at the York. According to the complaint, Assistant Administrator, Office of Site. These Defendants have agreed to asbestos-containing material was Diversion Control, Drug Enforcement pay $873,949.80. improperly removed during the Administration (DEA) issued an Order The Department of Justice will receive renovation of six subway stations in to Show Cause (OTSC) to Larry E. for a period of thirty (30) days from the Brooklyn and Queens, New York. The Davenport, M.D., (Respondent), date of this publication comments Consent Judgment requires the TA to proposing to deny his application for a relating to the Consent Decree. pay $300,000 in civil penalties and DEA Certificate of Registration. The Comments should be addressed to the enjoins the TA from committing basis for the Order to Show Cause was Assistant Attorney General, violations of the Clean Air Act and the that Respondent’s registration would be National Emission Standards for Environment and Natural Resources inconsistent with the public interest as Hazardous Air Pollutants for Asbestos, Division, P.O. Box 7611, U.S. that term is used 21 U.S.C. 823(f). More 40 CFR part 61, subpart M. specifically, the OTSC alleged that the Department of Justice, Washington, DC The Department of Justice will receive 20044–7611, and should refer to United Tennessee Department of Health found for a period of thirty (30) days from the that in 1998 and 1999, Respondent States v. Ralph L. Lowe, et al., D.J. Ref. date of this publication comments obtained Schedule II and III controlled 90–11–2–0323. relating to the proposed Consent substances for the personal use of The Consent Decree may be examined Judgment. Comments should be Respondent and his wife. Respondent at the Office of the United States addressed to the Assistant Attorney obtained the drugs by telephoning in Attorney, 910 Travis Street, Suite 1500, General of the Environment and Natural prescriptions using the DEA registration Houston, Texas and at U.S. EPA Region Resources Division, Department of numbers of several different physicians. 6, 1445 Ross Avenue, Suite 1200, Dallas, Justice, Washington, DC 20530, and Sometimes he had his employees do the Texas. During the public comment should refer to United States v. The New calling. The OTSC also alleged that period, the Consent Decree, may also be York City Transit Authority, Civil Respondent removed controlled examined on the following Department Action No. CV–97–7521, D.J. Ref. 90–5– substances from the clinic where he was of Justice Web site, http:// 2–1–2135. employed, including Emerol, a The proposed Consent Judgment may www.usdoj.gov/enrd/open.html. A copy Schedule II controlled substance. be examined at the Office of the United of the Consent Decree may also be By letter dated December 10, 2001, States Attorney, Eastern District of New Respondent,through his legal counsel, obtained by mail from the Consent York, One Pierrepoint Plaza, 14th Fl., requested a hearing on the issues raised Decree Library, P.O. Box 7611, U.S. Brooklyn, New York 11201, and at the in the OTSC. The matter was placed on Department of Justice, Washington, DC United States Environmental Protection the docket of Administrative Law Judge 20044–7611 or by faxing or e-mailing a Agency, Region, II, 290 Broadway, New Gail A. Randall. (The ALJ). request to Tonia Fleetwood York, New York 10007–1866. During the The following prehearing procedures, ([email protected]), fax no. public comment period, the proposed testimony was presented before the ALJ (202) 514–0097, phone confirmation Consent Judgment may also be on June 5 and 6, 2002, in Knoxville, number (202) 514–1547. In requesting a examined on the following Department Tennessee. The Government presented copy from the Consent Decree Library, of Justice Web site, http:// testimony from three witnesses and had please enclose a check in the amount of www.usdoj.gov/enrd/open.html. A copy admitted into evidence several exhibits.

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Respondent testified on his behalf and procedure to keep track of controlled spent a lot of time in the restroom, and also had several exhibits admitted into substances at the MediCenter. again noticed throughout the day blood evidence. After the hearing, both parties On September 22, 1998, and again on spots on Kleenex in the trash can along submitted Proposed Findings of Fact, September 29, 1998, Ms. Runyon-Dean with blood spots on the commode and conclusions of Law and Argument. recorded in her log Respondent’s sink in the employees’ restroom. At the On August 6, 2003, the ALJ certified requests for tuberculin syringes, which end of the day, she saw Respondent and transmitted the record to the Acting he claimed were necessary to give his emerge from the employee’s restroom Deputy Administrator of DEA. The daughter allergy shots at home. On and drop a bloody Kleenex into a trash record included, among other thing, the October 6, 1998, Ms. Runyon-Dean can next to the drug closet. Recommended Rulings, Findings of observed that Respondent’s speech Respondent testified that the bloody Fact, Conclusions of Law and Decision ‘‘became more slurred, his eyes were tissues could have been from anybody, of the Administrative Law Judge, the glassy and droopy, he was real groggy including staff or patients. However, findings of act and conclusions of law and sleepy.’’ Ms. Runyon-Dean also Ms. Runyon-Dean testified that aside proposed by all parties, all of the wrote that Respondent went to the from these occasions, she never saw exhibits and affidavits, and the Pigeon Forge Drugstore and picked up a blood on the lid of the commode of the tr4anscript of the hearing sessions. bottle of Demerol, and later spent ‘‘a lot employees’ restroom and on the of time in the restroom.’’ On the same occasions where she saw blood, she II. Final Order day, Ms. Runyon-Dean, who was solely knew no one had used the restroom The Acting Deputy Administrator responsible for keeping the employees’ other than Respondent. Ms. Runyon- does not adopt the Findings of Fact, restroom clean, noticed several Kleenex Dean further testified that initially, she Conclusions of Law, and Decision of the tissues in the employee’s restroom trash would clean the employees’ restroom Administrative Law Judge. The Acting can that had small spots of blood on once or twice a day; however, after the Deputy Administrator has carefully them. change in Respondent’s behavior, she reviewed the entire record in this On the same day, Ms. Runyon-Dean would sometimes have to clean the matter, as defined above, and hereby recorded in her log a conversation with restroom five or six times per day as another employee, Sherry Linsey. After issues this final rule and final order other employees alerted her that there Ms. Lindsey learned that Ms. Runyon- prescribed by 21 CFR 1316.67 and 21 was blood in the restroom that needed Dean provided syringes to Respondent, CFR 1301.46, based upon the following to be cleaned up. findings of fact and conclusions of law. she stated that Respondent’s daughter did not receive allergy injections. Ms. On October 13, 1998, Ms. Runyon- The Government adduced substantial Runyon-Dean never witnessed Dean also noted in her log a meeting evidence at the hearing that in 1998 and Respondent’s daughter receive an between Sheri Linsey and Respondent 1999, Respondent was diverting allergy shot at the MediCenter and the about Demerol that was missing from Demerol, a Schedule II controlled medical record at the MediCenter for the drug safe. Respondent told the staff substance, for his own use. At the Respondent’s daughter did not that if the drug was missing, then the hearing, Pam Runyon-Dean (Ms. corroborate any recommendations for drug would no longer be kept in the Runyon-Dean) testified on behalf of the allergy shots. At the hearing, office. This account was corroborated by Government. Ms. Runyon-Dean was a Respondent testified that his daughter Respondent’s testimony. Ms. Runyon- medical assistant at Respondent’s clinic, suffers from allergies and that Ms. Dean noted that the staff agreed with the the MediCenter, in Pigeon Forge, Lindsey should not have made the Respondent’s decision to keep the drug Tennessee form May 1995 until January above statements because she doesn’t out of the office. Ms. Runyon-Dean 1999. After completing training to know his daughter’s condition. further noted, however, that the reason become a medical assistant, she did her However, Respondents presented no the drug was missing was that Ms. externship at the MediCenter. documentary evidence of his daughter’s Lindsey (unbeknownst to Respondent) Ms. Runyon-Dean testified about her condition. had taken the drug out of the safe the observations of the Respondent’s On October 9, 1998, Ms. Runyon-Dean previous Friday afternoon and hid it in diversion of Demerol. As the result of a reported in her log that she went into the front office to keep it from complaint, the Tennessee Health the employee’s restroom after Respondent. Ms. Runyon-Dean testified Related Board (HRB) initiated an Respondent came out and found blood that Ms. Lindsey told her that she hid investigation of Respondent. Marianne spots on the commode seat. She had to the bottle of Demerol from Respondent Cheaves, an HRB investigator, met with wipe the spots before she could use the because she felt that he was taking it for Ms. Runyon-Dean and another commode. When she threw away her personal use. Ms. Runyon-Dean also employee of the MediCenter, and paper towel, Ms. Runyon-Dean saw a noted that after a few days, a bottle of suggested that Ms. Runyon-Dean wrapper in the trash can from one of the Demerol was back in the drug safe. maintain notes of events occuring there. MediCenter’s 3cc syringes. It was the On October 19, 1998, Ms. Runyon- Since Ms. Runyon-Dean already utilized only thing she saw in the trash can. Ms. Dean noted in her log that Respondent a daily planner, she used it to write her Runyon-Dean testified that the trash can called her in the morning, and his notes, which she then transferred on to was empty prior to Respondent’s use of speech was slurred and he would lose lined notebook pages. The notes were the restroom that day because she had his train of thought in the middle of a later faxed to Investigator Cheaves. cleaned the facility that morning. Ms. sentence. Respondent came into the Entries were written on the date when Runyon-Dean did not notice blood spots MediCenter later that day, and Ms. incidents occurred. prior to Respondent going into the Runyon-Dean again noted that Ms. Runyon-Dean testified that restroom. She also thought it odd to find Respondent’s speech was slurred. Ms. Demerol and other controlled a 3cc syringe in the employee’s restroom Runyon-Dean also noted that as the day substances at the MediCenter were because there was no medication in the progressed, Respondent became more stored in a safe in a closet. The room and the room was not used to give and more sleepy, groggy and glassy dispensing of controlled substances was injections. eyed, and his speech became more recorded on a drug log, usually by a On October 11, 1998, Ms. Runyon- slurred, to a point where his words were medical assistant. There were no other Dean again observed that Respondent very drawn out.

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During his testimony, Respondent because she heard the bottles jingling. period. She then calculated how much disagreed and attributed his demeanor She then observed Respondent go into Demerol had been dispensed to the to the lack of sleep. Respondent also the employees’ restroom. Ms. Runyon- clinic’s patients during that time. The testified that he doubted his speech was Dean immediately asked Julie Bowman, audit showed that 10,100 milligrams slurred. an office employee, to check the drug were not accounted for. On that same date, Ms. Edna Kimble, safe. Upon inspection, the Demerol was Thus, there is substantial evidence to a patient of the MediCenter, told Ms. missing. Ms. Runyon-Dean testified that conclude that Respondent abused Runyon-Dean that she observed she, along with Ms. Bowman and Demerol in 1998 and 1999, and at the Respondent take a syringe into the another office employee, noted that the hearing, Respondent provided very little employees’ restroom, and later return Demerol was present in the safe prior to evidence to rebut this conclusion. The with a bloody Band-Aid on his right Respondent going into the safe. About large amount of Demerol unaccounted arm, holding a bloody Kleenex on it. 20 minutes later, after Respondent had for in Ms. Cheave’s audit, Respondent’s When Ms. Kimble asked the Respondent emerged from the restroom, the seemingly drugged behavior on certain why he was bleeding, he informed her MediCenter staff noticed that the bottle days, his frequent forays into the that Terry Sutton, an employee of the of Demerol had been returned to the employees’ restroom, leaving behind MediCenter, had drawn Respondent’s drug safe. Ms. Runyon-Dean testified syringes, bloody band aids, tissues and blood to measure his cholesterol. Ms. that periodically during that day, the blood on the commode, the Runyon-Dean testified that when she bottle of Demerol was missing and those disappearance and reappearance of the asked Mr. Sutton that day if he had times corresponded to Respondent’s Demerol bottle in the drug safe drawn any blood, or tried to draw blood visits to the employees’ restroom. By the corresponding to Respondent’s visits to from the Respondent that day, Mr. end of the day, the bottle of Demerol the restroom, Respondent’s untruths Sutton stated that he had been too busy had disappeared and was never about having his blood drawn and the and had not drawn Respondent’s or returned to the safe. prescription for Demerol syrup (see anyone else’s blood on that day. Later In addition to testifying that blood infra) together constitute ample that day, Ms. Runyon-Dean emptied the spots on his shirt were attributed to a evidence that Respondent diverted a trash can in the employees’ restroom ‘‘flashback’’ brought about as a result of substantial amount of Demerol for his and found several bloodied Kleenex blood being drawn by an employee, own use. along with two empty packages of Respondent further testified that blood The Government also adduced generic Halcion. Ms. Runyon-Dean also would also ‘‘spray back’’ on him from plentiful evidence that from 1995 until saw a Band Aid on Respondent’s arm. lancing wounds and the like. 1998, Respondent was calling in During his testimony, the Respondent Respondent also testified that blood prescriptions, or having his employees again attributed the blood on his arm to found in the employees’ restroom was call in prescriptions, for Respondent the ‘‘one time’’ that his employee, Terry form employees going there to wash off and his family, using the names of other Sutton, attempted to draw Respondent’s blood if it got splattered. doctors at the MediCenter. The blood. Respondent claimed that Mr. Ms. Runyon-Dean noted in her log Government produced a copy of an Sutton got a ‘‘flashback’’ (‘‘pierced the that on October 20, 1998, Respondent’s Agreed Order entered into by vein’’). Respondent failed to explain, shirt sleeves were rolled up to the Respondent and the Tennessee however, why Mr. Sutton denied elbows, and there were blood spots on Department of Health (the Department) drawing Respondent’s blood, and did his ‘‘left arm sleeve.’’ She further in January 2001. In the Agreed Order, not continue the blood drawing testified during the hearing that Respondent agreed that he had issued procedure at another location on the Respondent had blood stains on his t- 41 prescriptions for controlled vein or on another vein after he had shirt underneath his scrubs. On one substances for his wife and himself gotten the flashback. When Ms. Runyon- occasion, Respondent was observed under the names of other physicians. Dean asked Mr. Sutton whether he had with a syringe sticking out of the top of The Agreed Order was signed by drawn blood that day from Respondent, his left back pocket. On that same date, Respondent on January 21, 2001. The Mr. Sutton did not mention to Ms. MediCenter staff witnessed Ms. Runyon- controlled substances included Halcion, Runyon-Dean that there had been any Dean empty the trash in the employees’ Ambien, Hydrocodone and Lorcet. The ‘‘flashback’’ in an attempt to draw blood restroom. The contents of the trash Department suspended Respondent’s from Respondent. revealed several wads of wet paper medical license for three months and Ms. Runyon-Dean further testified towels with blood on them along with levied a fine, followed by a two-year that anytime MediCenter staff drew two ‘‘very bloody’’ Band Aids. period of probation. blood from someone, requisitions for the On October 2, 1998, Respondent was The evidence presented by the lab are filled out. On October 19, 1998, not in the MediCenter and the Demerol Government at the hearing confirmed there were no requisitions for lab was missing from the drug safe. Respondent’s misconduct. Ms. Runyon- worked filled out on the Respondent. At Respondent called later and told Ms. Dean testified that she had heard the hearing, Respondent contested Ms. Lindsey that he had taken the Demerol Respondent call in prescriptions for Runyon-Dean’s account, stating that she and emptied it out because he did not himself and his family members, never asked Terry Sutton about drawing want to keep it in the office anymore. requesting that the prescriptions be blood, and that in any event ‘‘*** it’s He then told Ms. Lindsey that he had issued under the names of other doctors none of her business when I draw blood changed his mind and asked her to get at the MediCenter. Two pharmacists and when I don’t draw blood.’’ a new bottle of Demerol from the told the HRB investigator that In her log entry for October 20, 1998, pharmacy. Respondent had called in prescriptions Ms. Runyon-Dean noted her HRB Inspector Cheaves also testified for himself and his wife and had asked observations of Respondent entering the about the MediCenter’s handling of that the prescriptions be issued in MediClinic that morning and Demerol. She first performed an audit of another physician’s name. The proceeding straight to the drug closet. the Demerol purchased by the clinic for pharmacists knew that Respondent was She then realized that he had gone into a period of approximately one year. It on the phone because they recognized the drug safe where the Demerol and showed that the clinic had received his voice. Ms. Runyon-Dean testified other controlled substances were kept, 14,000 milligrams of Demerol during the that when some of the physicians at the

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MediCenter found out that their names and were now lying to protect expired in July 1998. In the Agreed had been used on prescriptions that themselves. Order, Respondent agreed that he had they had not issued, became upset about The Government also presented the issued prescriptions for controlled it. testimony of DEA Diversion Investigator substances after the expiration of his From October 13, 1998, through the (D/I) Rhonda Phillips. Investigator DEA registration. middle of the year 2000, HRB Phillips has been a Diversion At the hearing, Respondent admitted investigators conducted interviews of Investigator with the DEA Nashville that he had issued prescriptions for past and present employees of the Office for fourteen years. She testified controlled substances after his DEA MediCenter, including nine physicians. that Respondent came to the attention of registration had expired, blaming it on The physicians interviewed were shown DEA in 1999, when the HRB requested his own negligence. He claimed that he pharmacy printouts and original assistance in its investigation of wrote the prescriptions not realizing prescriptions for controlled substances Respondent. In the course of its that his registration had expired. The purportedly issued in their names for investigation, DEA received a copy of a Government presented evidence, Respondent and his wife. The report prepared by the Federal Bureau however, that Respondent continued to physicians were asked to review and of Investigation (FBI). The initial target issue several prescriptions for verify the prescriptions in question. All of the FBI investigation was a controlled substances after he learned of but two of the physicians confirmed that chiropractor, however, Dr. Underwood the expiration of his registration. The they had not authorized the was interviewed as part of that evidence showed that Respondent prescriptions attributed to them. One investigation. Dr. Underwood stated in learned about the expiration of his physician was unsure whether he had the report that Respondent posed as him registration in late 1998. Respondent authorized the prescriptions. One of the in calling in a Vicodin prescription for testified that he stopped writing physicians told the investigator that Respondent’s wife around January 1999. prescriptions after he learned of the when he later confronted Respondent According to Dr. Underwood, expiration of his DEA registration and about the prescriptions issued in his Respondent apparently became instructed his staff not to refill or call in name (to which Respondent admitted), concerned about being caught, and told any prescriptions using his name. the Respondent replied ‘‘that’s what Dr. Underwood, in effect, that ‘‘We have Nevertheless, Investigator Cheaves partners do.’’ to do something.’’ Respondent then obtained a prescription profile from the One physician, Dr. Underwood, requested that Dr. Underwood postdate Medicine Shoppe in Knoxville, a patient chart for his wife to make it confirmed that he had approved a Tennessee showing that on January 7, appear that the earlier prescription was prescription for Respondent’s wife. The 1999, after Respondent learned that his medically necessary. Dr. Underwood doctor explained that he issued a DEA registration had expired, a refused to take such action. At the prescription for Lorcet, a Schedule III prescription for Valium was filled for hearing, Respondent denied asking Dr. controlled substance, to Respondent’s patient Hugh Ray Wilson under Underwood to cover up the wife, because Respondent had told him Respondent’s expired DEA registration prescription, claiming that Dr. that his wife was experiencing painful number, and two prescriptions for Underwood was lying in order to periods. The physician admitted, Ambien for Mr. Wilson were refilled protect himself. under that registration number on however, that he had never seen There was also evidence that Respondent’s wife. January 26 and April 7, 1999. Respondent issued prescriptions in his On January 23, 1999, a prescription In a later interview, Dr. Underwood own name for his own use. On March further explained that on or about was filed for Clorazepate Dipotassium (a 22, 2001, DEA personnel interviewed Schedule IV controlled substance); on February 5, 1999, he received a Clark M. Kent, former registered telephone call from the Respondent and February 10, 1999, a prescription was pharmacist for Drugs For Less #2121 in filled for Guaituss DAC Syrup (a was advised that the Respondent had Halls, Tennessee. Mr. Kent stated that called in another prescription for his Schedule V controlled substance); on Respondent would come into the May 26, 2000,1 a prescription was filled wife, apparently using Dr. Underwood’s pharmacy and write hydrocodone name and DEA registration number. In for Lomitil liquid (diphenoxylate prescriptions in the names of other hydrochloride and atropine sulfate (a a February 17, 1999, written statement, individuals and take the controlled Dr. Underwood stated: ‘‘Without my Schedule V controlled substance). With substances with him. Mr. Kent further respect to the Lomitil prescription, knowledge or permission, neither recalled a conversation where express or implied, [Respondent] Respondent admitted calling it in, but Respondent asked Mr. Kent if he would added that he didn’t know the drug was apparently, called in a prescription of a fill a call-in prescription that was issued pain medicine, as well as, anaprox ds a controlled substance. Respondent later under Dr. O’Shaughnessy’s name. Mr. added that someone from his staff may and a sedative for insomnia using my Kent stated that he declined name and DEA number * * * [h]e did have called in the prescription. Respondent’s request because it violated Based upon the above, the Acting not tell me the date that he called in the federal and state regulations. Mr. Kent Deputy Administrator finds that prescription, nor the pharmacy that he also informed investigators that Respondent diverted substantial called.’’ Respondent called in a prescription for amounts of Demerol for his own use; At the hearing, Respondent denied Demerol syrup for the latter’s son. Mr. failed to comply with DEA regulations that he had ever called in a prescription Kent found the prescription unusual to account for controlled substances at using another doctor’s name without since that type of medication was not his place of business; called in or first obtaining the physician’s ordinary for a young individual. During caused to be called in controlled permission. He contended that he, or the hearing, Respondent denied that he substance prescriptions for himself and one of his employees, had asked the had called in a prescription for Demerol his wife using other physicians’ names; doctors to call in the prescriptions for syrup for his son. and negligently issued prescriptions for him, and that this was run of the mill The Government also presented practice at the clinic. Respondent evidence concerning Respondent’s 1 This prescription was also authorized following claimed that the doctors must have issuance of controlled substance Respondent’s submission of his January 3, 2000 forgotten to annotate the patient charts, prescriptions after his DEA registration application for DEA registration.

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controlled substances after his DEA and his long-term issuance of institute effective control and registration had expired. prescriptions for controlled substances procedures against diversion; (2) The Acting Deputy Administrator will in other physicians’ names are multiple bottles of OTC now consider the factors used by DEA particularly disturbing. Moreover, even pseudoephedrine were seized from an to determine the public interest. Under in the face of overwhelming evidence of illicit manufacturing lab in Oregon; (3) 21 U.S.C. 823(f), the Attorney General his misconduct, Respondent has failed OTC failed to report an uncommon shall register a practitioner to handle to admit to any intentional misconduct method of payment as required by 21 controlled substances unless the whatsoever. Respondent’s appalling CFR 1310.05(a); (4) OTC shipped listed Attorney General determines that the misconduct and his continued denials chemicals to an unregistered location in registration of the applicant is about his misuse of controlled violation of the MOA; (5) an audit of inconsistent with public interest.2 In substances show that he has failed to OTC’s purchase orders and sales determining the public interest, the recognize the gravity of his actions and invoices revealed a failure to comply Acting Deputy Administrator shall that it would not be in the public with the regulatory requirements of 21 consider: interest to permit him to handle CFR 1310.06(a); (6) the audit also 1. Maintenance by the applicant of controlled substances. Accordingly, the revealed that OTC was unable to effective controls against diversion of Acting Deputy Administrator of the account for approximately 415,000 listed chemicals into other than Drug Enforcement Administration, bottles of pseudoephedrine as a result of legitimate channels; pursuant to the authority vested in her a failure to maintain complete and 2. Compliance by the applicant with by 21 U.S.C. 823 and 824 and 28 CFR accurate records; and (7) the monthly applicable Federal, State, and local 0.100 and 0.104, hereby finds that the sales spreadsheets OTC provided to the laws; performance of the evidence establishes DEA underreported the company’s 3. Any prior conviction record of the that the registration of Respondent as a actual total pseudoephedrine sales by applicant under Federal or State laws practitioner would be inconsistent with more than 200,000 bottles. relating to controlled substances or the the public interest. By letter dated June 6, 2000, chemicals controlled under Federal or Therefore the Acting Deputy Respondent, by counsel, filed a request State law; Administrator hereby orders that for a hearing on the issues raised by the 4. Any past experience of the Respondent’s application for a DEA Order to Show Cause and the matter applicant in the manufacture and Certificate of Registration and any was docketed before Administrative distribution of chemicals, and requests for renewal or modification Law Judge Gail A. Randall. On July 17, 5. Such other factors as are relevant to submitted by Respondent be, and 2000, the Administrator of the DEA and consistent with the public health hereby are, denied. issued an Order of Immediate and safety. Suspension of Registration based on the Consideration of the first factor Dated: November 26, 2003. fact that: (1) After the Order to Show weights heavily against Respondent. Michele M. Leonhart, Cause was issued, a second audit of Respondent could not account for a Acting Deputy Administrator. OTC’s inventory and records revealed a large amount of Demerol that had been [FR Doc. 03–31218 Filed 12–17–03; 8:45 am] shortage of over 10,000 bottles of purchased by the MediCenter. BILLING CODE 4410–09–M pseudoephedrine; and (2) subsequent to Respondent never audited his supplies the issuance of the Order to Show of controlled substances and at the Cause, the DEA sent four warning letters hearing testified that he was not even DEPARTMENT OF JUSTICE to the Respondent, alleging that OTC’s aware of the existence of the Code of pseudoephedrine products had been Federal Regulations. Drug Enforcement Administration found at various sites related to the With regard to the second factor, there [Docket No. 00–22] illegal manufacturing of was substantial evidence that methamphetamine. Respondent failed to comply with OTC Distribution Company; Federal, State and local law. His Revocation of Registration Following prehearing procedures, a diversion of Demerol for his own use hearing was held in Arlington, Virginia violated 21 U.S.C. 841(a). His failure to On May 9, 2000, the Deputy Assistant on September 5–6, 2000, and in Dallas, conduct audits of the controlled Administrator, Office of Diversion Texas on November 15–17 and substances in his place of business Control, Drug Enforcement December 5–7, 2000, and on May 8, violated 21 U.S.C. 827. Respondent’s Administration (DEA), issued an Order 2001. At the hearing, both parties called issuance of prescriptions to himself and to Show Cause to OTC Distribution witnesses to testify and introduced his wife under other doctors’ names Company (‘‘OTC’’) as to why the OTC’s documentary evidence. After the violated 21 U.S.C. 841(a) and 21 CFR DEA Certificate of Registration as a hearing, both parties submitted 1306.04 and 1306.05. distributor of List I chemical products Proposed Findings of Fact, Conclusions As for the third factor, there is no should not be revoked as being of Law and Argument. On August 8, evidence that Respondent had any prior inconsistent with the public interest, as 2002, Judge Randall issued her convictions related to controlled determined by 21 U.S.C. 823(h). The Recommended Rulings, Findings of substances. The fourth factor is not Order to Show Cause alleged that: (1) Fact, Conclusions of Law, and Decision relevant to these proceedings. OTC (Respondent) had failed to comply of the Administrative Law Judge With regard to the fifth factor, many with the terms and conditions agreed to (Opinion and Recommended Ruling), considerations weigh heavily against in a Memorandum of Agreement (MOA) recommending that Respondent’s DEA providing Respondent with a DEA with the DEA, including the registration be revoked. Both parties Certificate of Registration. Respondent’s requirements: To abide by all laws filed exceptions to the Opinion and misconduct is extremely alarming. The relative to listed chemicals, to report all Recommended Ruling and on diversion of Demerol for his own use sales and purchases to DEA monthly, to September 27, 2002, Judge Randall prepare quarterly inventories, to contact transmitted the record of these 2 This function has been redelegated to the Acting the DEA field office regarding questions proceedings to the Deputy Deputy Administrator of DEA. about potential customers and to Administrator.

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The Acting Deputy Administrator has after the manufacturer has sold its any suspicious transaction, identify its considered the record in its entirety and product to a distributor. customers and promptly notify DEA in pursuant to 21 CFR 1316.67, hereby OTC’c chemical background the event of a change in business or issues her final order based upon originated from the business operations ownership. findings of fact and conclusions of law of L&M Vending company (L&M A DEA registration was issued to OTC as hereinafter set forth. Except as Vending), OTC’s predecessor entity. On on or about July 30, 1999, and was specifically noted, the Acting Deputy April 30, 1997, Larry Petit filed for a scheduled to expire December 31, 2000, Administrator adopts, in full, the DEA Registration on behalf of L&M if no renewal application was filed. OTC Opinion and Recommended Ruling of Vending. Subsequently, Tim Petit, was thus authorized to distribute List I the Administrative Law Judge. Her brother of Larry Petit, filed an Assumed chemical products while its registration adoption is in no manner diminished by Name Record and Copy Request with was valid, until July 17, 2000, when the any recitation of facts, issues and the Earl Bullock County Clerk’s Office, Administrator entered his Order of conclusions herein, or any failure to asserting ownership for the Immediate Suspension of Registration. mention a matter of fact or law. unincorporated business, L&M Vending. On December 22, 2000, Tim Petit filed Pseudoephedrine is a List I chemical Articles of Incorporation for L&M a renewal application for DEA used as a precursor in the clandestine Vending were later issued by the Office registration. The application was ‘‘OTC production of methamphetamine. Most of Secretary of State of Texas, naming Distribution.Co.’’ typed in as the clandestine laboratory operators use a ‘‘Larry Petit,’’ ‘‘Mitzi Petit,’’ and registrant’s name. However, variety of methods to conceal their ‘‘Timmy Petit’’ as initial directors of the handwritten below that entry was ‘‘OTC purchases of precursor chemicals and corporation. Larry Petit was designated Distribution Inc.’’ Additionally, in the equipment from law enforcement and the initiated Registered Agent for L&M explanation section of the application, firms distributing such chemicals and Vending. the words ‘‘Temporary (sic.) goods are required to carefully By letter of November 15, 1999, OTC Suspended’’ were handwritten. Tim scrutinize their sales transactions to informed the DEA that, effective August Petit signed the renewal application, 1, 1999, L&M. Vending no longer sold designating himself as ‘‘President- prevent the unauthorized purchase and List I chemical products, L&M Vending Owner’’ of the business. On August 31, use of such goods. Pseudoephedrine is surrendered its DEA Certificate of 2000, OTC filed a Designation of lawfully marketed in the United States Registration and transferred to OTC, via Representatives and Power of Attorney for use as a decongestant in 30 or 60 mg. invoice, all of its inventory of products (Designation), pursuant to 21 CFR tablets and the maximum recommended containing List I chemicals. Larry Petit, 1316.50. The Designation, executed by adult daily dose is four 60 mg. tablets who had performed confidential Tim Petit, appointed Larry Petit ‘‘as per day, amounting to 120 tablets per informant work for DEA in which L&M representative of the sole proprietorship month. Ephedrine, also a List I chemical Vending was used, testified at the and/or Corporation, nunc pro tunc to which may be used as a precursor in the hearing that OTC was formed in order July 7, 1999 (for the proprietorship) and clandestine manufacture of to shift legitimate List I chemical June 30, 2000 (for the Corporation), to methamphetamine, is marketed for use products sales away from L&M represent either or both with regard to as a bronchodilator for asthma and may Vending’s informant operations. Due to matters within DEA’s jurisdiction.’’ be used as a topical decongestant. policy changes within the agency, DEA While Larry Petit provided testimony on From 1994 until 1999, DEA discontinued using Larry Petit applied behalf of the Respondent, Tim Petit did clandestine laboratory seizures rose as a cooperating source in September of not appear or testify at the hearing. from 263 to 2,025 and in 1999, the 1997. In May of 2001, L&M Vending was Both L&M Vending, Inc. and OTC national total for all State, local and still in business, supplying novelty conducted business through ‘‘800’’ Federal agencies was 6,835. During an merchandise to convenience stores. numbers on vehicle cell phones. L&M eight-month period in 2000, DEA Larry Petit testified during the hearing Vending is not listed in the Dallas area reported over 3,000 clandestine in this matter that Tim Petit was the telephone directory. Larry Petit testified laboratory seizures. The overwhelming owner of L&M Vending and OTC. at the hearing that he did not know majority of these laboratories were However, on June 30, 2000, after these whether or not OTC was listed in the associated with the clandestine proceedings began, OTC filed Articles of telephone directory. Testimony at the manufacture of methamphetamine. Incorporation with the Texas Secretary hearing also established that OTC had Methamphetamine has a high abuse of State, listing Larry Petit, Mitzi Petit never had a marketing plan, never potential and adverse impact on public and Timmy Petit as directors of the advertised, had promotions, nor health. Dependency is the primary corporation. On May 5, 1999, Tom Petit provided point-of-sale advertising. Larry motivation for methamphetamine use applied for a DEA Registration for OTC Petit did not know the number of and between 1993 and 1998, 3,903 to distribute List I chemical products. In pseudoephedrine tablets sold in 2000, methamphetamine-related deaths were connection with OTC’s May 5, 1999, had not assessed the total market for reported in the Drug Abuse Warning application for a DEA Registration, on that product, was unaware of his market Network for the Primary Metropolitan July 30, 1999, DEA and Larry Petit (on share for that product and did not have and Statistical Areas of San Diego, Los behalf of OTC), entered into a a product catalogue or price list. Angeles, San Francisco and Phoenix. Memorandum of Agreement (‘‘MOA’’). In the Memorandum of Agreement Pseudoephedrine bulk powder is In the MOA DEA promised to grant OTC which OTC entered into with DEA in usually imported from China or India, a Certificate of Registration for chemical 1999 in order to become registered, the tableted by DEA-registered code numbers 8112 (pseudoephedrine), company agreed to maintain records of manufacturers, distributed to various 8113 (ephedrine) and 1225 receipt, distribution and returns of each distributors, wholesalers and then to (phenylpropanolamine), in exchange for transaction of listed chemical products, retail outlets. Of DEA’s approximately Respondent’s compliance with even if the transaction was not a 3,500 chemical registrants in 2000, over requirements beyond those stated in regulated transaction. These records 3,100 were distributors. While illegal Federal, State and local law. Generally, were to include information as to the diversion can occur at any point in the the Respondent agreed to maintain purchaser’s identity, date of transaction, distribution chain, it usually occurs complete records, review each sale for full description of the product and

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method of transfer and the method of MOA point by point with Larry Petit, disclosed shortages of several products payment. Receipt and distribution who was permitted to ask questions and including thousands of bottles of records were to be maintained at the make comments on the terms of the pseudoephedrine. registered location or at Larry Petit’s agreement. Larry Petit did suggest some Diversion Investigators conducted daughter-in-law’s, Tita Petit’s, office, be changes and DEA agreed to allow OTC’s another inspection on May 23, 2000. readily retrievable and maintained for books to be kept at Tita Petit’s They inventoried approximately 1,500 two (2) years after the transaction. residence, separate from OTC’s bottles of List I chemical products on Distribution of all List I chemical registered location. Larry Petit was hand, a figure Larry Petit certified. products were to be made under the advised that he would have to very Using Respondent’s list of sales of the name OTC. carefully and fully identify OTC’s month of May 2000 and purchase and Larry Petit further agreed to mail customers and comply with regulations sales documents from OTC, and two of photocopies of receipt and distribution stipulated in the Code of Federal its suppliers for that month, DEA records of listed chemical products to Regulations. Copies of regulations and personnel determined that for the DEA on a monthly basis and submit warning sheets, advising the DEA had month of May 2000, OTC had additional monthly reports to DEA of mail order seized combination ephedrine and shortages of 10,589 bottles of List I sales of listed chemical products. OTC pseudoephedrine at clandestine chemical products. was not in compliance with the MOA methamphetamine laboratories, were The Administrative Law Judge found because OTC failed to regularly provide also provided. Larry Petit was instructed that as a chemical registrant, OTC had the requisite purchase records to DEA that OTC should have a photocopy of an obligation to maintain records for its listed chemical products. OTC customer’s applications or DEA licenses regarding List I chemical products and also failed to provide DEA with monthly or of photographic identification or to keep purchasing records and sales purchase records, although it did driver’s licenses and should physically records. Further, pursuant to paragraph provide monthly sales records. Both verify that the company existed. 7 of the MOA, OTC was required to were required by the MOA. The Acting Deputy Administrator keep an inventory of all List I chemicals Respondent also agreed in the MOA agrees with the Administrative Law on a quarterly basis. Pursuant to the that Larry Petit would personally review Judge that this MOA is a valid and MOA, OTC was also required to keep each sale by OTC of listed chemical binding agreement between DEA and sales invoices. The sales invoices DEA products for suspicious orders, any and Respondent. obtained March 30, 1999, were retained all of which were to be promptly On March 30, 2000, DEA Diversion pursuant to that requirement, but those reported to DEA. Although not required Investigators went to Tita Petit’s records were incomplete. More than half of List I chemical distributors by law, residence. Since August 1999, Tina Petit of the 179 invoices (98) did not denote under the MOA, Respondent was had worked for OTC, assisting Larry the method of transfer, which should be obligated to take quarterly inventories of Petit in keeping the company’s List I recorded in accordance with DEA its List I chemical products, which chemical product records, and the regulations. The MOA also required would include the List I chemical’s records were maintained at her recordation of the method of payment, name, strength, form of packaging, residence. The Diversion Investigators yet approximately 56 or 57 of the total amount in stock, date of inventory and asked for OTC’s purchase and sales invoices reviewed failed to note method a witnessed signature of the person records, and Tita Petit produced of payment. taking the inventory. hardcopy sale and purchase invoices In the months following its pre- OTC was also required to keep two which she confirmed were ‘‘all the registration inspection, OTC provided forms of identification on file for all records.’’ The records were found to be DEA with sales records in accordance customers and maintain a separate file incomplete in that they did not indicate with the MOA, but not the required on each customer purchasing List I when and if a product was actually purchase records. The purchase records chemical products. For retail customers, received. Tita Petit indicated she and were, however, promptly produced in the file should include a copy of the Larry Petit were trying to ‘‘work out the January or February 2000 after they customer’s business license and problem’’ and at that time there was no were requested. photographs of the establishment real way to tell when a shipment had Between July 1999 and February bearing the company name. If the been received. During this period they 2000, Koehn Enterprises of Texarkana, company was a DEA registrant, that were working with OTC’s main supplier Texas purchased 600 cases of status was to be verified with the DEA of List I chemical products, OTC pseudoephedrine product from OTC. On Dallas Field Division. OTC was also to Brokerage, Inc. (‘‘OTCB’’), to match up February 15, 2000, a DEA Diversion ensure the ‘‘ship to’’ address of retail invoices. In a May 10, 2000, letter to Investigator went to the location that customers matched the addresses on DEA, Larry Petit indicated OTCB had OTC shipped to and found Koehn’s business licenses maintained in the not provided OTC with complete registered location to be a day care customer files. purchase records. center and that its List I chemical OTC’s List I chemical products were The Diversion Investigators attempted products were being stored at another to be received and stored only at 12617 to conduct an audit of the company’s unregistered address. Koehn also had Gaslite Drive, Dallas, Texas and DEA List I chemical products. The audit been arrested on state charges for approval was required before OTC could covered the period July 30, 1999, to unlawful transfer of precursor use any other storage facility. OTC also March 30, 2000. In addition to the chemicals. DEA was advised that Koehn agreed to provide advance notification incomplete receiving records, the made many shipments of List I to the Dallas Field Division of any Diversion Investigators found chemicals to Las Vegas, Nevada to planned ownership change in OTC and inconsistencies in the sales records. The customers taken over from OTC. Koehn promptly notify DEA if OTC Investigators went to some of OTC’s was unable to account for 97 cases of Distribution Co. discontinued business. suppliers in an attempt to determine pseudoephedrine which it had received During a pre-registration investigation exactly how much product was received from OTC. of Respondent’s premises conducted by OTC during the audit period. They OTC was also receiving, processing July 28, 1999, DEA Investigators were not able to obtain all the and distributing orders containing List I reviewed the terms of the proposed information they needed. The audit chemical products at the AIT Freight

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facility. When an air shipment came manufacturing. Fourteen DEA Warning Perrigo. Perrigo’s representative had into AIT, OTC’s salesman would come Letters were addressed to Respondent never seen or heard of the OTC’s to the facility and break down the between January 6, 1999, and October product and concluded it was neither a shipment into orders. While some 18, 2000, enumerating over 20 different national brand nor a competitor of would be given to AIT for re-shipment, seizures of OTC’s pseudoephedrine Perrigo’s. others would be given by OTC’s product at clandestine sites. These During the hearing and in post- salesman to customers who came to letters documented the seizure of 28,423 hearing filings, the Government asserted AIT’s dock. On May 12, 2000, the bottles of 60-count List I chemical that Respondent’s registration should be salesman was seen supervising the product, 116 bottles of 100-count List I revoked on public interest grounds. It loading of apparent pseudoephedrine chemical product and 32,589 bottles of argued that OTC failed to maintain product into a rental truck, which then 120-count List I chemical products. effective controls against diversion, that left the area. Thus it appeared that OTC During the period November 1999 to the MOA bound OTC to additional was shipping or distributing List I July 2000, OTC pseudoephedrine requirements with which OTC failed to chemicals from an unregistered product was seized at clandestine comply and that OTC failed to take location. laboratories in eight states, with over 2 corrective action after being notified of From April to June 2000, Respondent million dosage units seized in possible diversion of its product. The kept an organized chart of Oklahoma alone. Government also contends OTC failed to pseudoephedrine product activity. This OTC sold List I chemical products to comply with relevant Federal, State and chart included: Detailed information as Tobacco Wholesale. Sales increased local law by failing to report a regulated to customers’ identity and addresses, from 110 cases in February 2000 to over transaction which included a suspicious DEA registration numbers, dates of 800 cases by May 2000. Larry Petit method of payment to DEA, failure to request, invoice numbers, types of thought this was appropriate, as that identify the other party to a regulated carrier used to deliver the product, firm would become OTC’s regional transaction, failure to keep and maintain quantities of product sold, any amounts distributor in Oklahoma. He also records of regulated transactions and returned, OTC purchase order numbers, testified he had an agreement with failure to keep and maintain accurate the customers’ purchase order numbers, another List I chemical wholesaler, inventory records. specific product information and the Branex to be OTC’s regional distributor The Government contends OTC’s payment numbers. in Florida. However, this was not a principal manager was aware of DEA With regard to customer compliance, written agreement, but one orally regulatory requirements and knew, OTC sent a packet of information to its negotiated by OTC’s salesman. Petit was through DEA Warning Letters, that its customers containing information about unaware if OTC had a special price pseudoephedrine product was being reporting suspicious orders, complying agreement with Branex, whether he had diverted to the illicit production of with DEA regulations and restricting assessed Branex’s ability to compete in methamphetamine. The Government terms of resale. It also sent a contract to the Florida pseudoephedrine market or further argues OTC was not providing retailers selling OTC products which if Branex had been asked to provide listed chemical products for the required implementing and educating OTC a list of its retail customers. store employees on a ‘‘maximum There were instances when Larry Petit traditional and recognized therapeutic purchase policy’’ and compliance with also did not check on the trade market. all DEA regulations. OTC also sent a references supplied by customers or Respondent contends it substantially conditions of sales contract to its know if anyone from OTC had checked satisfied its regulatory obligations, distributor customers, explaining its on their downstream customers. Petit entered into a voluntary agreement requirements for resale of also admitted that he ignored references imposing additional responsibilities, pseudoephedrine and ephedrine supplied by customers even though he substantially followed those obligations products. A suspicious orders guide referred to the reference as a ‘‘bad guy.’’ and attempted to consult with DEA to sheet was also provided both retail and In the traditional market, Pfizer is the improve its operations. It further points distributor customers, enumerating a list manufacturer and distributor of the to Larry Petit’s extensive work with the of suspicious factors found in the DEA’s Sudafed product line and one of the DEA. While acknowledging violation of Chemical Handler’s Manual. It also largest sellers of pseudoephedrine the record-reporting provision of the explained that distributors, who were products in the United States. Pfizer’s MOA when it failed to provide purchase most familiar with their customers and major customers include retail trade orders to DEA, it argues this violation circumstances, must use their best outlets such as drug and grocery store does not justify revocation, given OTC’s judgment in identifying suspicious chains and mass merchandisers. From remedial efforts to rectify that error. orders. Govt. Ex. 11 at 5. With regard to August 1999 to April 2000, OTC sold Pursuant to 21 U.S.C. 823(h) and OTC’s customer files, most contained almost one-third the number of 824(a)(4), the Acting Deputy photographs of their facilities and pseudoephedrine products sold by Administrator may revoke a DEA photocopies of their representative’s Pfizer nationwide. Pfizer’s Certificate of Registration and deny any driver’s license. representative was not aware of OTC as pending application for renewal for OTC reported suspicious transactions a competitor and concluded OTC’s such registration, if she determines that to DEA by letter five times between brand was not sold in the same market registrant’s continued registration November 18, 1999, and June 22, 2000. as Sudafed. would be inconsistent with the public Its predecessor, L&M Vending, also The L. Perrigo Company is the largest interest. Section 823(h) requires that the reported suspicious transactions by manufacturer of over-the-counter following factors be considered in letter on five occasions between March pharmaceutical products for the ‘‘store determining the public interest: and July 1999. brand’’ market, which are sold under (1) Maintenance by the applicant of DEA has implemented a system of various labels and compete with effective controls against diversion of documenting and informing a company nationally advertised brands. From listed chemicals into other than that products it has manufactured or August 1999 until April 2000, OTC sold legitimate channels. distributed have surfaced at a site over one-third the number of tablets of (2) Compliance by the applicant with associated with clandestine drug pseudoephedrine product sold by applicable Federal, State and local law.

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(3) Any prior conviction record of the will be considered by the Acting Deputy Further, prior agency rulings have applicant under Federal or State laws Administrator in determining the public applied a more expansive view of factor relating to controlled substances or to interest in OTC’s continued registration. one than mere physical security. See, chemicals controlled under Federal or The Acting Deputy Administrator also e.g., Alfred Khalily, Inc., 64 FR 31,289, State law. agrees with the Administrative Law 31,292 (1999) and NVE (4) Any past experience of the Judge that OTC Distribution Company’s Pharmaceuticals, Inc., 64 FR 59,215, applicant in the manufacture and Certificate of Registration was not 59,217–18 (1999) (failure to identify a distribution of chemicals; and terminated as a matter of law when, party to a transaction or engaging in (5) Such other factors as are relevant after initiation of these proceedings, transactions with non-registered entities to and consistent with the public health Tim Petit filed Articles of Incorporation fell under factor one); State Petroleum, and safety. with the State of Texas in the name of Inc., 67 FR 9,994, 9,994 (2002); Hadid These factors are to be considered in ‘‘OTC Distribution, Inc.’’ Ambiguity as International, Inc., 67 FR 10,230, 10,231 the disjunctive; the Acting Deputy to the Respondent’s intent to alter its (2002) and Aqui Enterprises, 67 FR Administrator may rely on any one or a status as a sole proprietorship to that of 12,576, 12,578 (2002) (recordkeeping combination of factors and may give corporation and to use a renewed inadequate to track sales and customers each factor the weight she deems certificate to carry out its business, was within factor one). appropriate in determining whether a generated by conflicting notations on Respondent’s failure to maintain registration should be revoked or an the December 22, 2000, application for adequate administrative records and application for registration denied See renewal of registration signed by Tim controls to permit a more precise audit Henry J. Schwartz, Jr., M.D., 54 FR Petit. of its List I chemical products, its 16422 (1989). However, no requests for a inability or unwillingness to fully As a preliminary matter, the modification to change the registrant’s comply with its record keeping and Administrative Law Judge refused the name or transfer the certificate of report obligations under the MOA, its Government’s request to take official registration to a new corporate entity distribution of List I chemical products notice that ‘‘no business entity, were ever submitted. The Government directly to customers from a freight intended to be a going concern, operates also did not introduce evidence of facility loading dock and substantial in such a fashion as OTC did.’’ The conduct by OTC Distribution Co., seizures of OTC pseudoephedrine Acting Deputy Administrator agrees that consistent with a conclusion that OTC products from illicit sites, all weigh the broad assertion of OTC’s Distribution Co. had ceased existence or against Respondent as to factor one. illegitimacy as an on-going business discontinued business. Neither was any With regard to factor two, compliance entity embodied in this particular Texas law offered to support the with applicable law, the Acting Deputy request is not appropriate for official conclusion that, by operation of law, Administrator agrees with the notice. However, the Acting Deputy OTC Distribution Co. ceased legal Administrative Law Judge that OTC was Administrator disagrees with the existence or discontinued business, bound to comply with the provisions of Administrative Law Judge’s broad simply upon filing of the articles of the MOA, in addition to the conclusion that DEA possesses ‘‘no incorporation. Accordingly, the Acting recordkeeping, reporting and specialized knowledge pertaining to Deputy Administrator agrees with the identification requirements in the Code general business practices of legitimate Administrative Law Judge that OTC of Federal Regulations. OTC then failed business entities’’ (ALJ Decision at 47). Distribution Company’s DEA Certificate to provide the DEA with adequate The DEA does possess special expertise of Registration remains a viable, if inventory records, complete sales in many areas of business operations, temporarily suspended, registration invoices or with any purchase records. both legitimate and illegitimate, which whose fate cannot be decided by With regard to the accountability relate to the manufacture and summary disposition. audits conducted by DEA Diversion distribution of controlled substances With respect to factor one, Investigators which resulted in their and List I chemicals. maintenance of effective controls finding of overages and shortages of Nevertheless, deciding whether or not against diversion, the Acting Deputy listed chemicals, Respondent has filed ‘‘any’’ business entity, intending to be Administrator agrees with the exceptions to the Opinion and an ongoing concern, would operate as Administrative Law Judge that Recommended Ruling of the OTC did, does require a qualitative Respondent’s physical storage facility Administrative Law Judge. OTC argues analysis of the evidence in the met or exceeded minimum security the audits were not undertaken in a particular record on a finding which requirements. However, while physical ‘‘manner that lends credibility to their could materially impact the outcome. security is a focus of 21 CFR 1309.71 results’’ and ‘‘were based on erroneous The request also does not involve an (2000), the Acting Deputy Administrator assumptions.’’ Respondent’s Exceptions ‘‘obvious and notorious’’ fact (See agrees with the Government’s exception at 4. However, the inability of DEA Attorney General’s Manual at 79), is to the Opinion and Recommended personnel to precisely account for the open to dispute and is not capable of Ruling, that the Administrative Law receipt and distribution of OTC’s List I ready and certain verification. Judge’s discussion on this factor was chemical products was principally Considering the foregoing and the scope unnecessarily limited to the adequacy of attributable to Respondent’s failure to of the request, the Acting Deputy storage and physical access to maintain adequate records. The Acting Administrator will not take official Respondent’s List I chemical products. Deputy Administrator is particularly notice of the specific fact which was Among the factors required to be troubled that Respondent was placed on requested. considered by the Acting Deputy notice by the terms of the MOA as to its Nevertheless, certain facts established Administrator under the general need to maintain accountability for the in the record do indicate numerous security requirements of 21 CFR List I chemicals it distributed—through deviations from what would be 1309.71, is ‘‘[t]he adequacy of the its own records—and nevertheless failed considered sound business practices of registrant’s or applicant’s systems for to fully comply with those requirements companies engaged in distributing monitoring the receipt, distribution and either by intent, ignorance or neglect. regulated chemicals. As did the disposition of List I chemicals in its There was a substantial deviation Administrative Law Judge, these facts operations.’’ 21 CFR 1309.71(b)(8). between the results of two investigators

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as to the number of unaccounted for suspicious regulated transactions way.’’ (Tr. at 1295.) Given the foregoing, bottles from the audit. Nevertheless, involving uncommon methods of the Acting Deputy Administrator using the smaller numbers, the delivery and payment. Such concludes Larry Petit recognized the Administrative Law Judge characterized transactions are required to be reported unusual nature of this transaction and it OTC’s unaccounted for product as being to the DEA pursuant to 21 CFR should have been reported to DEA at the ‘‘unacceptably large.’’ However, in its 1310.05(a)(1) (2000). With regard to time. exceptions, Respondent points to the delivery, OTC representatives received, The Administrative Law Judge found inability of OTC’s supplier, OTCB, to processed and distributed orders OTC engaged in over-the-threshold provide exact figures as to the amount containing List I chemical products regulated transactions of of product it shipped to OTC during the directly from a freight facility, an pseudoephedrine products with a non- audit period, thus degrading the unregistered location. These registrant. (Finding of fact 47.) This reliability of the figures the Diversion transactions would be regarded as involves sales to the Red Coleman Investigator was required to use in suspicious transactions. However, the Stores. Respondent filed exceptions to making her calculations. The Acting Deputy Administrator agrees this finding, arguing Red Coleman is a Administrative Law Judge adequately with the Administrative Law Judge that retail distributor which did not have to acknowledged the inherent difficulty in there was insufficient evidence showing be registered with DEA. The Acting arriving at a bottom line using the Respondent shipped List I chemical Deputy Administrator agrees the records that were available. It also products to an unregistered location in evidence is ambiguous on this point and should be noted that OTC was required connection with sales to Worldwide insufficient to show the Red Coleman to maintain complete records of all Wholesale. Stores engaged in over-the-threshold listed chemicals it received. The Administrative Law Judge found retail transactions requiring that Nevertheless, given the large figures of OTC engaged in a suspicious, company’s registration. Accordingly, the unaccounted for product, it was unreported transaction when it accepted Administrative Law Judge’s finding of reasonable to infer that even given the $70,000.00 in cash from T.J. Wholesale sales to a non-registrant in violation of problems in accuracy noted in the as part of a transaction for products DEA regulations will not be adopted. record here, there were still containing List I chemicals. Noting the Regarding factor three, relevant unacceptably large quantities of finding that Larry Petit did not think the conviction record, the Administrative unaccounted for List I chemical payment suspicious, Respondent has Law Judge found that neither the products in OTC’s records. Further, the filed an exception asserting the Respondent nor its principal officers gravaman of the Administrative Law Administrative Law Judge’s decision in have any prior conviction record Judge’s opinion in this section was effect, improperly places the relevant to the handling of List I OTC’s internal failure to maintain characterization as to what constitutes a chemicals. adequate records. The Acting Deputy ‘‘suspicious order in the hands of the Regarding factor four, applicant’s Administrator agrees and concludes that Agency after the fact.’’ experience in distributing chemicals, failure is significant and contributes to While the seizure of the Administrative Law Judge found the risk to the public interest of OTC’s pseudoephedrine, sold by OTC to T.J. that the officers of OTC and Larry Petit chemical products being diverted to the Wholesale and later discovered in illicit in particular, had extensive experience illicit market. See, e.g., In the Matter of laboratories, had not yet been reported with distributing List I chemicals, much David N. Pruitt, 57 FR 11,339, 11,340 to OTC by a Warning Letter, the of which stemmed from the operation of (1992). suspicious circumstances of the cash L&M Vending Company and Larry Based on inclusion of the unregulated transaction were readily apparent to any Petit’s work with DEA. product Maxinol, in the computation reasonable person. Larry Petit’s With respect to factor five, such other chart prepared by one of the Diversion explanation, that he did not think it factors relevant to and consistent with Investigators based on OTCB records unusual for someone going to Las Vegas public health and safety, the (Govt. Ex. 95) and photographs of that to have $70,000.00 cash, begs the Administrative Law Judge noted the product taken during the May 23, 2000, relevant question. While perhaps a ‘‘big- serious impact upon the public interest inspection, Respondent’s exceptions time’’ gambler might carry cash for that of the diversion of List I chemical further challenge the overall validity of purpose, that does not explain why a products into the illicit production of the audits. However, it was jointly legitimate business enterprise would methamphetamine. Acknowledging the stipulated by the parties that Maxinol purchase a substantial amount of List I distinction between ‘‘Traditional’’ and does not contain a List I chemical and chemical products with cash, let alone ‘‘Non-Traditional’’ markets, the the Administrative Law Judge’s findings $70,000.00 worth of pseudoephedrine. Administrative Law Judge concluded relating to that audit and her decision In addition to the testimony of a OTC engaged in unusual business were not premised on the apparent 1296 Diversion Supervisor that payment in practices, raising suspicions as to the unaccounted for bottles of Maxinol. cash is suspicious, payment in cash and exact source of OTC’s customer base Indeed, the six other products in the by cashier’s check were identified as and intended purpose of its business computation chart which did form the reasons to consider a particular operations. basis for the judge’s findings regarding transaction as being suspicious in the Specifically, OTC was not listed in the audit, are all products containing very materials OTC sent its own the Dallas area telephone directory, did List I chemicals and reflect large customers. OTC also included cash not have a marketing plan during its quantities of unaccounted payments as suspicious in proposed formation and early days of operation, pseudoephedrine product, including a conditions of sale contracts with its has no product catalog or price list, shortage of 54,403 bottles of OTC’s 120- customers. (See Govt. Ex 11 at 4.) That never engaged in promotions or count 60 mg. product. The Acting Larry Petit recognized the unusual advertising and had no employees. Deputy Administrator finds nature of the transaction was also Additionally, Larry Petit did not know Respondent’s exception to be without indicated by his testimony that he told OTC’s market share of List I chemical merit. T.J. Wholesale’s representative that he products. However, the evidence The Administrative Law Judge would take the cash ‘‘one time only’’ showed OTC sold over 92 million concluded Respondent engaged in and ‘‘I don’t operate my company that tablets of pseudoephedrine product

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from August 1999 until April 2000. This The Acting Deputy Administrator DEPARTMENT OF LABOR is a sizable share compared to the sales concludes Respondent’s registration of the two largest sellers of with DEA would be inconsistent with Office of the Secretary pharmaceutical pseudoephedrine the public interest. Although some Submission for OMB Review; products in the United States, Pfizer and positive efforts have been undertaken Comment Request Perrigo. Despite the ‘‘share’’ of the after initiation of these proceedings, potential market that OTC’s millions of OTC’s track record has been one of non- December 9, 2003. tablets represented, neither the Pfizer or compliance with recordkeeping The Department of Labor (DOL) has Perrigo representatives were even aware requirements of List I chemical products submitted the following public of OTC as a possible competitor. and an inability to account for large information collection request (ICR) to Further, the government established that between January 6, 1999 and quantities of List I chemical products. the Office of Management and Budget October 18, 2000, 14 Warning Letters OTC further failed to fully comply with (OMB) for review and approval in enumerated over 20 different seizures of the terms of the MOA, failing to provide accordance with the Paperwork OTC’s pseudoephedrine products from complete sales records, adequate Reduction Act of 1995 (Pub. L. 104–13, illicit sites, including 28,423 bottles of inventory records or purchases records 44 U.S.C. Chapter 35). A copy of this 60-count product, 116 bottles of 100- as required. Further, OTC’s handling ICR, with applicable supporting count product and 32,589 bottles of 120- and delivery of List I chemical products documentation, may be obtained by count products. The Acting Deputy at AIT’s unregistered and insecure contacting the Department of Labor. To Administrator agrees with the freight facility creates an unacceptable obtain documentation, contact Darrin Administrative Law Judge that these risk of diversion. King on 202–693–4129 (this is not a toll- warning letters demonstrate the free number) or E-Mail: king- The Acting Deputy Administrator [email protected]. movement of OTC’s List I chemical agrees with the Administrative Law products into the illicit market, an Comments should be sent to Office of Judge that DEA has insufficient additional factor that OTC’s continued Information and Regulatory Affairs, assurances that Respondent, under the handling of these products creates a risk Attn: OMB Desk Officer for the Office of to the public health and safety by possible direction of Tim Petit, will be Disability Employment Policy (ODEP), fueling the activities of that illicit able to aggressively correct its List I Office of Management and Budget, market. chemical product handling practices Room 10235, Washington, DC 20503 The Acting Deputy Administrator has and recordkeeping problems to a level (202–395–7316/this is not a toll-free considered the totality of the that would justify its continued number), within 30 days from the date circumstances, including Respondent’s registration as being in the public of this publication in the Federal favorable evidence. Martha Hernandez, interest. In the past, under the direction Register. M.D., 62 FR 61,145, 61,147 (1997). In of Larry Petit, Respondent’s disregard The OMB is particularly interested in this regard, Larry Petit’s relationship for the regulations and its obligations comments which: • with DEA as a cooperating source; under the MOA make questionable its Evaluate whether the proposed OTC’s financial audit and efforts commitment and ability to comply with collection of information is necessary undertaken to improve the company’s the DEA statutory and regulatory for the proper performance of the financial records and better monitor its requirements designed to protect the functions of the agency, including billing and shipping records and public from the diversion of listed whether the information will have practical utility; invoices; OTC’s willingness to take chemicals. See, e.g., Seaside • Evaluate the accuracy of the action in response to several DEA Pharmaceutical Co., 67 FR 12,580, agency’s estimate of the burden of the Warning Letters; its acceptable customer 12,583 (2002); Aseel, Incorporated, compliance files; and the filing of some proposed collection of information, Wholesale Division, 66 FR 35,459, suspicious transaction reports by OTC including the validity of the are all noted. The Acting Deputy 35,461 (2001). methodology and assumptions used; Administrator has also taken into Accordingly, the Acting Deputy • Enhance the quality, utility, and consideration OTC’s prompt notification Administrator of the Drug Enforcement clarity of the information to be to the Dallas Field Division of its receipt Administration, pursuant to the collected; and of product that came into its possession authority vested in her by 21 U.S.C. 823 • Minimize the burden of the inadvertently after the Order of and 824 and 28 CFR 0.100(b) and 0.104, collection of information on those who Immediate Suspension had been served hereby orders that DEA Certificate of are to respond, including through the on it, a fact pointed out in Respondent’s Registration, 0044580RY, previously use of appropriate automated, Exceptions to the Opinion and issued to OTC Distribution company, electronic, mechanical, or other Recommended Ruling. be, and it is, hereby revoked. The Acting technological collection techniques or On the other hand, Larry Petit’s Deputy Administrator further orders other forms of information technology, experience as a cooperating source that any pending applications for e.g., permitting electronic submission of should have sensitized him to the threat responses. renewal or modification of said of criminal activity posed by diversion Agency: Office of Disability registration be, and they hereby are, of List I chemical products and the need Employment Policy. for OTC’s full compliance with both denied. This order is effective December Type of Review: New collection. DEA regulations and the terms of its 18, 2003. Title: National Survey of Sub- MOA. Further, while the financial audit Dated: November 26, 2003. minimum Wage (14c) Certificate was a positive business step, it did not Michele M. Leonhart, Recipients. focus on the more pressing need for Acting Deputy Administrator. OMB Number: 1230–0NEW. regulatory compliance and strict record Affected Public: Not-for-profit [FR Doc. 03–31219 Filed 12–17–03; 8:45 am] keeping actions necessary to ensure institutions. future accountability in the handling of BILLING CODE 4410–09–M Type of Response: Reporting. listed chemical products. Frequency: One time.

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Number of Respondents: 341. combat exploitative child labor in the USDOL’s Child Labor Education Number of Annual Responses: 341. following countries and regions: Central Initiative nurtures the development, Estimated Time Per Response: 30 America (Costa Rica, El Salvador, health, safety, and enhanced future minutes. Guatemala, Honduras, and Nicaragua), employability of children around the Total Burden Hours: 171. Ecuador, Indonesia, Southern Africa world by increasing access to basic Total Annualized Capital/Startup (Botswana, Lesotho, Namibia, South education for children removed from Costs: $0. Africa, and Swaziland), and Turkey. child labor or at risk of entering it. Total Annual costs (operating/ ILAB intends to solicit cooperative Eliminating child labor will depend in maintaining systems or purchasing agreement applications from qualified part on improving access to, quality of, services): $0. organizations (i.e., any commercial, and relevance of education. Without Description: The data collected from international, educational, or non-profit improving educational quality and this survey will provide descriptive organization capable of successfully relevance, children withdrawn from information on the current use of Fair developing and implementing education child labor may not have viable Labor Standards Act (FLSA) section programs) to implement programs that alternatives and may return to work or 14(c) Special Wage Certificates by promote school attendance and provide resort to other hazardous means of Community Rehabilitation Programs in educational opportunities for working subsistence. the United States. Specifically, the children or children at risk of starting The Child Labor Education Initiative survey will look at perceived working. The programs should focus on has the following four goals: organizational barriers to achieving innovative ways to address the many 1. Raise awareness of the importance competitive employment outcomes for gaps and challenges to basic education of education for all children and individuals with significant disabilities. found in the countries mentioned above. mobilize a wide array of actors to This will include organizations’ Please refer to http://www.dol.gov/_sec/ improve and expand education perceived training and resource needs regs/fedreg/notices/2002012956.pdf for infrastructures; related to moving their programs from an example of a previous notice of 2. Strengthen formal and transitional FLSA section 14(c) to integrated availability of funds and solicitation for education systems that encourage employment outcomes. The information cooperative agreement applications. working children and those at risk of generated by the survey will be used by working to attend school; DATES: Specific solicitations for ODEP for policy analysis and 3. Strengthen national institutions cooperative agreement applications are subsequent policy development and and policies on education and child to be published in the Federal Register recommendations. In addition, Training labor; and and remain open for at least 30 days and Technical Assistance for Providers 4. Ensure the long-term sustainability from the date of publication. All (T–TAP) will use the information to of these efforts. design and disseminate resources and cooperative agreements awarded will be When working to increase access to training materials as well as provide made before September 30, 2004. quality basic education, USDOL strives technical assistance to Community ADDRESSES: Once solicitations are to complement existing efforts to Rehabilitation Programs (CRP). Part of published in the Federal Register, eradicate the worst forms of child labor, disseminating this information will applications must be delivered to: U.S. to build on the achievements of and include writing journal articles, fact Department of Labor, Procurement lessons learned from these efforts, to sheets, online seminars and web Services Center, 200 Constitution expand impact and build synergies postings, conference presentations, or Avenue, NW., Room N–5416, Attention: among actors, and to avoid duplication other literature that can be used by Lisa Harvey, Washington, DC 20210. of resources and efforts. ODEP, T–TAP, CRPs, organizations, and FOR FURTHER INFORMATION CONTACT: Lisa Signed in Washington, DC, this 11th day of others interested in facilitating Harvey. E-mail address: harvey- December, 2003. competitive employment for individuals [email protected]. All inquiries should make Lawrence J. Kuss, with disabilities. reference to the USDOL Child Labor Grant Officer. Ira Mills, Education Initiative—Solicitations for [FR Doc. 03–31200 Filed 12–17–03; 8:45 am] Cooperative Agreement Applications. Departmental Clearance Officer. BILLING CODE 4510–28–P [FR Doc. 03–31199 Filed 12–17–03; 8:45 am] SUPPLEMENTARY INFORMATION: Since BILLING CODE 4510–LX–M 1995, USDOL has supported a worldwide technical assistance program NUCLEAR REGULATORY implemented by the International Labor COMMISSION DEPARTMENT OF LABOR Organization’s International Program on the Elimination of Child Labor (ILO– [Docket No. 50–261] Office of the Secretary IPEC). In that time, ILAB has provided Carolina Power and Light Company, H. over $270 million to ILO–IPEC and B. Robinson Steam Electric Plant, Unit Child Labor Education Initiative other organizations for international 2; Notice of Availability of the Final technical assistance to combat abusive AGENCY: Bureau of International Labor Supplement 13 to the Generic child labor around the world. Affairs, Department of Labor. Environmental Impact Statement for ACTION: Notice of intent to solicit In its FY 2003 appropriations, in the License Renewal of H. B. Robinson cooperative agreement applications. addition to funds earmarked for ILO– Steam Electric Plant, Unit 2 IPEC, USDOL received $37 million in SUMMARY: The U.S. Department of Labor two-year funding for the Child Labor Notice is hereby given that the U.S. (USDOL), Bureau of International Labor Education Initiative to support programs Nuclear Regulatory Commission (the Affairs (ILAB), intends to award that improve access to basic education Commission) has published the final approximately U.S. $29 million to in international areas with a high rate of plant-specific supplement to the organizations to develop and implement abusive and exploitative child labor. All Generic Environmental Impact formal, non-formal, and vocational such FY 2003 funds will be obligated Statement (GEIS), NUREG–1437, education programs as a means to prior to September 30, 2004. regarding the renewal of operating

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license DPR–23 for an additional 20 NUCLEAR REGULATORY can be arranged, please provide years of operation at H. B. Robinson COMMISSION notification of attendance to Shana Steam Electric Plant, Unit 2. H. B. Browde, Office of Nuclear Regulatory Robinson Steam Electric Plant, Unit 2 is Workshop on Options for Non-LWR Research, Mail Stop: T–10 F13A, U.S. located in Darlington County, South Containment Functional Performance Nuclear Regulatory Commission, Washington DC 20555–0001, (301) 415– Carolina. Possible alternatives to the AGENCY: Nuclear Regulatory 7652, e-mail: [email protected]. proposed action (license renewal) Commission. include no action and reasonable ACTION: Notice of public workshop. Background alternative energy sources. The possibility of using alternatives to SUMMARY: It is stated in Section 9.3 of the report: The Nuclear Regulatory the traditional ‘‘essentially leak-tight’’ Commission has requested the staff to Based on (1) the analysis and findings in containment structures for non-LWRs develop options for containment has been the subject of Commission the GEIS (NRC, 1996; 1999); (2) the ER functional performance requirements (Environmental Report) submitted by CP&L policy review, beginning with SECY– and criteria for future non-light water 93–092, ‘‘Issues Pertaining to the (CP&L 2002); (3) consultation with Federal, reactors, taking into account design State, and local agencies; (4) the staff’s own Advanced Reactor (PRISM, MHTGR, features such as fuel, core, and cooling and PIUS) and CANDU 3 Designs and independent review; and (5) the staff’s systems. The options selected will also consideration of public comments, the Their Relationship to Current be used for the development of the new Regulatory Requirements,’’ dated April recommendation of the staff is that the regulatory framework for a risk- Commission determine that the adverse 8, 1993. More recently, in SECY–02– informed regulatory structure for 0139, ‘‘Plan for Resolving Policy Issues environmental impacts of license renewal for advanced reactors. H. B. Robinson Steam Electric Plant, Unit 2 Related to Licensing Non-Light Water are not so great that preserving the option of DATES: January 14, 2004, 8:30 a.m.–5 Reactor Designs,’’ dated July 22, 2002 license renewal for energy-planning decision- p.m. the staff informed the Commission of its makers would be unreasonable. ADDRESSES: Doubletree Hotel; 1750 plan to develop policy options for the Rockville Pike; Rockville, MD 20852– design and safety performance of the The final supplement 13 to the GEIS 1699 containment structure and related is available electronically for public systems for non-LWRs. FOR FURTHER INFORMATION CONTACT: inspection in the NRC’s Public In SECY–03–0047, ‘‘Policy Issues Shana Browde, Office of Nuclear Document Room (PDR), located at One Related to Licensing Non-Light-Water Regulatory Research, Mail Stop: T–10 White Flint North, 11555 Rockville Pike Reactor Designs,’’ dated March 28, 2003, F13A, U.S. Nuclear Regulatory staff discussed the policy issue of the (first floor), Rockville, Maryland, or Commission, Washington DC 20555– from the Publicly Available Records conditions, if any, that would be 0001, (301) 415–7652, e-mail: acceptable for licensing a plant without (PARS) component of NRC’s [email protected]. Agencywide Documents Access and a pressure-retaining containment Management System (ADAMS). ADAMS SUPPLEMENTARY INFORMATION: This building. In SECY–03–0047, the staff recommended to the Commission that is accessible from the NRC Web site at notice serves as initial notification of a (1) Functional performance http://www.nrc.gov/reading-rm.html public workshop to provide for the exchange of information with all requirements be approved for use in (the Public Electronic Reading Room). stakeholders regarding the staff’s efforts establishing the acceptability of either a Persons who do not have access to to develop options for containment pressure retaining, low leakage ADAMS or who encounter problems in functional performance requirements containment or a non-pressure retaining accessing the documents located in and criteria for future non-light water building for future non-LWR reactor ADAMS, should contact the NRC’s PDR reactors. The meeting will focus on the designs and, if approved, (2) the staff Reference staff at 1–800–397–4209, 301– current work being performed by the develop the functional performance 415–4737, or by e-mail to [email protected]. NRC staff. A preliminary agenda is requirements using the guidance contained in the July 30, 1993 FOR FURTHER INFORMATION CONTACT: Mr. attached. Commission Staff Requirements Richard L. Emch, Jr., License Renewal Workshop Meeting Information Memorandum (SRM) for SECY–93–092 and Environmental Impacts Program, The staff intends to conduct a and the Commission’s guidance on the Division of Regulatory Improvement workshop to provide for an exchange of other issues in SECY–03–0047. In the Programs, U.S. Nuclear Regulatory information related to the staff’s initial June 26, 2003 SRM for SECY–03–0047, Commission, Washington, DC 20555– efforts to develop options for the Commission requested the staff to 0001. Mr. Emch may be contacted at containment functional performance submit options and recommendations to 301–415–1590 or [email protected]. requirements and criteria for future non- the Commission on functional Dated at Rockville, Maryland, this 12th day light water reactors. Persons other than performance requirements and criteria of December, 2003. NRC staff and NRC contractors for the containment of non-LWRs. For the Nuclear Regulatory Commission. interested in making a presentation at Options for containment functional performance requirements and criteria Pao-Tsin Kuo, the workshop should notify Shana Browde, Office of Nuclear Regulatory for future non-LWRs are under Program Director, License Renewal and Research, Mail Stop: T–10 F13A, U.S. development by the staff. The final Environmental Impacts, Division of Nuclear Regulatory Commission, options and recommendations are due Regulatory Improvement Programs, Office of in April 2004. To assist in developing Nuclear Reactor Regulation. Washington DC 20555–0001, (301) 415– 7652, e-mail: [email protected]. and evaluating the options and in [FR Doc. 03–31209 Filed 12–17–03; 8:45 am] identifying the recommended options, BILLING CODE 7590–01–P Registration the NRC staff is planning to hold a There is no registration fee for the workshop and solicit feedback from the workshop; however, so that adequate public. Key considerations for space, materials, etc., for the workshop discussion include:

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• Are the identified containment DATES: The application was filed on July borrowers (‘‘Borrowing Funds’’) in loan functions being considered appropriate? 17, 2002, and amended on May 8, 2003, facilities administered by CNAI (‘‘Loan • Are the options for containment and August 26, 2003. Facilities’’). The entities proposed to be performance criteria appropriate? Hearing or Notification of Hearing: An used in connection with a Loan Facility • Are there other or alternative order granting the requested relief will issue commercial paper and, in certain containment functions and options be issued unless the Commission orders cases, medium-term notes (collectively, which should be considered? a hearing. Interested persons may ‘‘Promissory Notes’’) and will use • What metrics should be considered request a hearing by writing to the liquidity support provided by financial in evaluating the options, including Commission’s Secretary and serving institutions that are ‘‘banks’’ within the specific advantages and disadvantages applicants with a copy of the request, meaning of section 2(a)(5) of the Act for the identified options? personally or by mail. Hearing requests (‘‘Liquidity Providers’’) in connection should be received by the Commission with the Loan Facility (each such CNAI- Preliminary Workshop Agenda by 5:30 p.m. on January 5, 2004, and administered entity, a ‘‘Conduit’’). The January 14, 2004 should be accompanied by proof of Conduits are limited liability companies 8:30–10:15—NRC Presentation and service on applicants, in the form of an organized under the laws of Delaware Discussion on Options for Non-LWR affidavit or, for lawyers, a certificate of that issue Promissory Notes to fund Containment Functional Performance service. Hearing requests should state loans secured by receivables or other Requirements and Criteria the nature of the writer’s interest, the financial assets of the borrowers. 10:15–10:30—BREAK reason for the request, and the issues 3. The Promissory Notes issued by the 10:45–noon—NRC Presentation and contested. Persons who wish to be Conduits generally are sold to Discussion on Options for Non-LWR notified of a hearing may request institutional investors that are Containment Functional Performance notification by writing to the ‘‘accredited investors’’ as defined in rule Requirements and Criteria (continued) Commission’s Secretary. 501(a) of Regulation D under the Noon–1—LUNCH ADDRESSES: Secretary, Securities and Securities Act of 1933 (the ‘‘Securities 1–2:15—NRC Presentation and Exchange Commission, 450 Fifth Street, Act’’) or ‘‘qualified institutional buyers’’ Discussion on Options for Non-LWR NW., Washington, DC 20549–0609. as defined in rule 144A under the Containment Functional Performance Applicant, c/o Marc B. Adelman, Securities Act. As administrator, CNAI requirements and Criteria Director and Vice President, Citicorp negotiates business arrangements on 2:15–2:30—BREAK North America, Inc., 388 Greenwich behalf of a Conduit, including loan amounts, interest rates and fees. CNAI 2:30–5—General discussion and wrap- Street, New York, NY 10013. will act as agent for the Conduits and up FOR FURTHER INFORMATION CONTACT: Julia the related Liquidity Providers under Dated at Rockville, Maryland, this 11th day Kim Gilmer, Senior Counsel, at (202) the agreements entered into with each of December, 2003. 942–0528, or Janet M. Grossnickle, Borrowing Fund and in such capacity For the Nuclear Regulatory Commission. Branch Chief, at (202) 942–0564 will exercise rights and enforce Farouk Eltawila, (Division of Investment Management, remedies on behalf of the Conduit and Office of Investment Company Director, Division of Systems Analysis and Liquidity Providers. Personnel Regulatory Effectiveness, Office of Nuclear Regulation). employed by CNAI have substantially Regulatory Research. SUPPLEMENTARY INFORMATION: The similar levels of experience and [FR Doc. 03–31210 Filed 12–17–03; 8:45 am] following is a summary of the expertise as personnel that administer BILLING CODE 7590–01–P application. The complete application loans backed by financial assets made may be obtained for a fee at the by Citibank, N.A., which may act as a Commission’s Public Reference Branch, Liquidity Provider. SECURITIES AND EXCHANGE 450 Fifth Street, NW., Washington, DC 4. As security for a loan, Borrowing COMMISSION 20549–0102 (tel. 202–942–8090). Funds will pledge assets (‘‘Pledged Assets’’) for the benefit of the Conduit Applicant’s Representations [Release No. IC–26292; 812–12854] and the Liquidity Providers. The 1. CNAI is a wholly-owned subsidiary Pledged Assets will meet eligibility Citicorp North America, Inc.; Notice of of Citicorp, a bank holding company, criteria set by the Conduit and such Application that is, in turn, wholly-owned by criteria will be consistent with the Citigroup Inc. (‘‘Citigroup’’), a global Borrowing Fund’s investment objectives December 12, 2003. financial services organization. CNAI and policies. For each loan transaction, AGENCY: Securities and Exchange has extensive experience and expertise CNAI will evaluate (a) the type and Commission (‘‘Commission’’). as an administrator of asset-backed nature of a Borrowing Fund’s Pledged ACTION: Notice of application under commercial paper and medium-term Assets to determine whether they meet section 6(c) of the Investment Company note conduit programs, having managed the Conduit’s standards for collateral; Act of 1940 (the ‘‘Act’’) for an such programs since 1983. CNAI (b) the operations and history of the exemption from section 18(f)(1) of the administers approximately $43 billion Borrowing Fund; and (c) the financial Act. in assets in such programs worldwide. position and operations of the Applicant states that several open-end Borrowing Fund’s investment adviser. Applicant: Citicorp North America, investment companies have expressed 5. Applicant states that a Conduit Inc. (‘‘CNAI’’). interest in borrowing from the would make loans to a Borrowing Fund SUMMARY: Applicant requests an order commercial paper and medium-term on an uncommitted basis and the permitting registered open-end note conduit programs that CNAI related Liquidity Providers would, management investment companies to administers. subject to the terms of the Loan Facility, enter into secured loan transactions 2. Applicant requests relief to permit be obligated to make loans to the with commercial paper and medium- any registered open-end management Borrowing Fund in the event the term note conduits administered by investment company or series thereof to Conduit was unable or unwilling to CNAI. participate from time to time as make such loans. The Conduit at any

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time and for any reason may (a) sell an trustees that are not ‘‘interested provisions of the Act. CNAI requests outstanding loan to a Liquidity persons’’ within the meaning of section exemptive relief from section 18(f)(1) Provider, or (b) require a Liquidity 2(a)(19) of the Act (‘‘Disinterested solely to the extent necessary to allow Provider to provide financing to a Directors’’) will determine that such a Borrowing Fund to borrow from a Borrowing Fund instead of the Conduit. participation is consistent with the Conduit that is not a bank. CNAI CNAI states that these arrangements Borrowing Fund’s investment objectives believes that permitting the Borrowing provide additional assurances to holders and policies and in the best interests of Funds to borrow from a Conduit is fully of Promissory Notes that the Promissory the Borrowing Fund and its consistent with the purposes and Notes will be paid at maturity. shareholders. Each Borrowing Fund’s policies of section 18(f)(1) and would 6. A Conduit purchases receivables Board, including a majority of the not implicate the concerns underlying and other assets from, and makes Disinterested Directors, will also adopt that provision. secured loans to, a broad range of sellers procedures for evaluating and making 3. CNAI states that section 18(f) of the and borrowers in a variety of industries. certain determinations concerning the Act reflects Congressional concern Aggregate loans made by a Conduit to terms of each loan transaction between about excessive borrowing and the Borrowing Funds are not expected to be the Borrowing Fund and a Conduit. issuance of senior securities by open- more than 10%, and usually would be 9. CNAI states that the proposed Loan end investment companies because considerably less than 10%, of the Facilities would enable Borrowing these practices could unduly increase Conduit’s outstanding loans and other Funds to borrow money from the the speculative character and assets. Conduits at lower cost than obtaining investment risk of junior securities. 7. CNAI represents that the revolving comparable loans from a bank. CNAI CNAI notes that Borrowing Funds credit and security agreement of a Loan states that a Conduit’s cost of funds is would remain subject to the 300% asset Facility, which will be negotiated by the lower than that of banks, and this coverage requirement in section 18(f)(1) parties, will contain representations, advantage will be passed on to the of the Act for all borrowings, including warranties, covenants and events of Borrowing Funds.1 those from a Conduit. CNAI further default that are customary for secured represents that Conduit loans will not Applicant’s Legal Analysis loan transactions involving open-end impose any restrictions on a Borrowing investment companies as well as such 1. Section 18(f)(1) of the Act prohibits Fund’s shareholders that are different other terms that are specific to a open-end investment companies from from those imposed by a collateralized particular Borrowing Fund and the issuing any senior security except that bank loan. Finally, CNAI argues that conduct of its business. A Borrowing a company is permitted to borrow from permitting a Borrowing Fund to borrow Fund will have the right to prepay its any bank, if immediately after the from a Conduit rather than a bank is loans and terminate its participation in borrowing, there is an asset coverage of expected to reduce its costs of a Loan Facility upon prior notice at any at least 300 per cent for all borrowings borrowing, which should decrease the time. The Pledged Assets of a Borrowing of the company.2 Section 2(a)(5) defines risk that a Borrowing Fund’s borrowing Fund will be available solely to secure ‘‘bank’’ as a depository institution, a costs will exceed the return from repayment of the loans and other branch or agency of a foreign bank, a securities purchased with borrowed outstanding obligations incurred by that member bank of the Federal Reserve money and lessen any related incentive Borrowing Fund under a Loan Facility. System, a banking institution or other to purchase more speculative portfolio CNAI further states that a Borrowing trust company that, as a substantial securities to cover those costs. Fund would have the same rights and portion of its business, receives deposits 4. CNAI states that section 18(f) of the remedies under state and federal law or exercises fiduciary powers similar to Act also limited open-end investment with respect to a loan from a Conduit those permitted to national banks, or a companies to borrowing from traditional that it would have with respect to a receiver, conservator or liquidating institutional lending sources out of a comparable loan from a bank. CNAI also agent of any of the foregoing. Applicant Congressional concern that public states that the arrangements with the states that while a Conduit engages in holders of senior securities might be Liquidity Providers protect Borrowing many of the same business activities as unaware that they were much riskier Funds by providing an alternative banks, it is not a ‘‘bank’’ under this instruments than senior securities source of financing in the event a definition. issued by operating companies. Senior Conduit is unable to continue lending 2. Section 6(c) of the Act permits the securities of investment companies funds. Commission to exempt any person or typically were secured by assets that 8. No Borrowing Fund will participate transaction or any class or classes of were subject to wide fluctuations in in a Loan Facility unless it has persons or transactions from any value. Further, common shareholders represented, in writing, to CNAI, that (a) provision or provisions of the Act, if could redeem at any time, which also its policies permit borrowing and, if and to the extent that such exemption might affect an open-end investment applicable, the use of leverage; (b) all is necessary or appropriate in the public company’s ability to repay its borrowing transactions pursuant to the interest and consistent with the outstanding debt. Loan Facility will be subject to the protection of investors and the purposes 5. CNAI argues that the Loan requirements of the Act, the rules and fairly intended by the policy and Facilities do not involve the type of regulations thereunder, and any other senior security holder that section applicable interpretations or guidance 1 The rate at which a Liquidity Provider would 18(f)(1) of the Act was designed to from the Commission or its staff; and (c) make a loan to a Borrowing Fund would not be as protect and that the structure of the each borrowing transaction will be favorable as that of the Conduit, but would be Loan Facilities and related Conduits comparable to the rates on secured lines of credit conducted in accordance with all from banks. CNAI anticipates that a Conduit, rather provide sufficient protection to the applicable representations and than a Liquidity Provider, will be the lender to the parties that face any risk of loss by conditions of the application. Before a Borrowing Funds under a Loan Facility, absent lending to an open-end investment Borrowing Fund may participate in a extenuating circumstances. company. A Conduit is administered by 2 Under section 18(g) of the Act, the term ‘‘senior Loan Facility, the Borrowing Fund’s security’’ includes any bond, debenture, note, or CNAI, which has extensive expertise in Board of Directors or Trustees (‘‘Board’’) similar obligation or instrument constituting a administering loans collateralized by including a majority of the directors or security and evidencing indebtedness. financial instruments that equals or

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exceeds the expertise of most banks. Applicant’s Conditions Borrowing Fund, the Board of the The Liquidity Providers are banks as Applicant agrees that any order Borrowing Fund, including a majority of defined by the Act and thus not the type granting the requested relief will be the Disinterested Directors, will be of senior security holder that Congress subject to the following conditions: notified promptly. As soon as believed needed protection. CNAI states 1. All Borrowing Funds will comply practicable, the Board, including a that the Promissory Notes are general with the asset coverage requirements in majority of the Disinterested Directors, obligations of the Conduit and loans to section 18(f)(1) of the Act, including must determine whether it is in the best Borrowing Funds are not expected to with respect to all borrowings from a interests of the Borrowing Fund and its exceed 10% of a Conduit’s assets. Any Conduit. shareholders to continue to participate risk of loss on the Promissory Notes 2. A loan by a Conduit to a Borrowing in the Loan Facility or to terminate the posed by loans to open-end investment Fund will be at an interest rate equal to Borrowing Fund’s participation in the companies is further reduced by CNAI’s the Conduit’s cost of funds (i.e., the expertise, the Conduit’s ability to sell Loan Facility in accordance with its weighted average Promissory Note rate the loans to the Liquidity Providers, and terms. plus dealer commissions). the Conduit-wide liquidity sources. 6. At each regular quarterly meeting, 3. Before a Borrowing Fund may 6. Applicant states that section 18(f) the Board, including a majority of the participate in a Loan Facility, the also reflects a concern that complex Disinterested Directors, will (a) review a capital structures may permit insiders to Borrowing Fund’s Board, including a majority of the Disinterested Directors, Borrowing Fund’s loan transactions manipulate the allocation of expenses under a Loan Facility during the and profits; facilitate control of the will determine that participation in the Loan Facility is consistent with the preceding quarter, including the terms investment company by junior security of each transaction; and (b) determine shareholders with little investment; and Borrowing Fund’s investment objectives and policies and is in the best interests whether the transactions were effected make it difficult for investors in the in compliance with the Procedures and investment company to understand of the Borrowing Fund and its the terms and conditions of the order. what their stock is worth. CNAI states shareholders. In addition, a Borrowing At least annually, the Board, including that borrowing from Conduits would not Fund will disclose in its statement of facilitate pyramiding of control or additional information all material facts a majority of the Disinterested Directors, manipulative reallocation of expenses about its participation in the Loan will (a) with respect to a Borrowing and profits. Further, CNAI believes that Facility. Fund’s continued participation in a borrowings from a Conduit would not 4. Before a Borrowing Fund may Loan Facility, make the determinations be any more difficult for shareholders of participate in a Loan Facility, its Board, required in condition 3 above and (b) a Borrowing Fund to understand than including a majority of the Disinterested approve such changes to the Procedures bank borrowings. Directors, will adopt procedures as it deems necessary or appropriate. governing the Borrowing Fund’s 7. Applicant also states that section 7. A Borrowing Fund will maintain participation in the Loan Facility 18(f) reflects a concern that existed and preserve permanently in an easily when the Act was adopted that (‘‘Procedures’’). In addition to any other provisions the Board may find necessary accessible place a written copy of the borrowings by open-end investment Procedures and any modifications to the companies could be used to invest in or appropriate to be included in the Procedures. The Borrowing Fund will securities without being subject to Procedures, the Procedures will require maintain and preserve for a period of limitations of the Board of Governors of that, before a Borrowing Fund may enter the Federal Reserve System (‘‘FRB’’) on into loan transactions with a Conduit, not less than six years from the end of the amount of credit that could be used the Board, including a majority of the the fiscal year in which any transaction for these purposes (‘‘margin Disinterested Directors, will determine with a Loan Facility occurred, the first requirements’’). Under Regulations U that: two years in an easily accessible place, and T under the Securities Exchange (a) The borrowing is in the best a written record of each transaction Act of 1934, in effect prior to enactment interests of the Borrowing Fund and its setting forth a description of the terms of the Act, only borrowings for such shareholders; of the transaction, including the purposes made by a domestic bank or (b) The borrowing and pledge of amount, the maturity, and the rate of broker-dealer were subject to margin assets are consistent with the Borrowing interest on the loan and all information requirements. CNAI states that a Fund’s investment objectives and upon which the determinations required Conduit would be subject to the same policies; by these conditions were made. (c) The interest rate on the loan does credit restrictions as a bank under 8. The applicant will not enter into a Regulation U as currently in effect. not exceed the rate on a comparable Loan Facility with any Borrowing Fund 8. Finally, applicant believes the collateralized bank loan; requested relief will benefit Borrowing (d) The Borrowing Fund’s asset if, at the time of such transaction, the Funds by providing them with an eligibility criteria are consistent with its applicant, Conduit or Liquidity Provider alternative, lower-cost source of investment objectives and policies; and is an affiliated person of a Borrowing financing. For all of these reasons and (e) Each Borrowing Fund’s Fund, within the meaning of section in light of the protections afforded by investments, consistent with the asset 2(a)(3) of the Act, or an affiliated person the conditions set forth below, CNAI eligibility criteria and any other of an affiliated person of a Borrowing believes that permitting Borrowing requirements of participating in the Fund. Funds to borrow from the Conduits Loan Facility, will be in the best By the Commission. would be in the best interests of the interests of the Borrowing Fund and its Margaret H. McFarland, Borrowing Funds and their shareholders. shareholders, appropriate in the public 5. If a Conduit determines (a) to Deputy Secretary. interest and consistent with the require the Liquidity Providers to [FR Doc. 03–31170 Filed 12–17–03; 8:45 am] protection of investors and the purposes acquire from the Conduit outstanding BILLING CODE 8010–01–P fairly intended by the policy and loans made to a Borrowing Fund, or (b) provisions of the Act. not to extend additional loans to a

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SECURITIES AND EXCHANGE statements may be examined at the the objective of maintaining the BSE’s COMMISSION places specified in Item IV below. The financial integrity.7 To simplify the Exchange has prepared summaries, set administration of the revenue sharing [Release No. 34–48914; File No. SR–BSE– 2003–22] forth in Sections A, B, and C below, of program and smooth out monthly the most significant aspects of such expense fluctuations, the program will Self-Regulatory Organizations; Notice statements. operate on a quarterly basis. In addition, of Filing and Immediate Effectiveness A. Self-Regulatory Organization’s to the extent that Nasdaq market data of Proposed Rule Change and Statement of the Purpose of, and revenue is subject to a year-end Amendment No. 1 by the Boston Stock Statutory Basis for, the Proposed Rule adjustment, revenues distributed to Exchange, Inc. To Establish a General Change Member Firms are subject to adjustment Revenue Sharing Program for Member accordingly, to ensure that Member Firms 1. Purpose receipts of market data revenue are The purpose of the proposed rule consistent with the year-end true up December 12, 2003. change is to amend the Exchange’s procedures applied under the Nasdaq Pursuant to section 19(b)(1) of the Transaction Fee Schedule to establish a UTP Plan. Securities Exchange Act of 1934 new general revenue sharing program. 1 2 MFOR will be shared with Member (‘‘Act’’), and Rule 19b–4 thereunder, In order to remain competitive with Firms on a pro rata basis. After the BSE notice is hereby given that on December other market centers that trade Nasdaq has accounted for operating expenses 9, 2003, the Boston Stock Exchange, National Market and Nasdaq SmallCap and working capital contributions, each Incorporated (‘‘BSE’’ or ‘‘Exchange’’) securities (‘‘Nasdaq Securities’’), filed with the Securities and Exchange including the Nasdaq Stock Market and Member Firm will receive a percentage Commission (‘‘Commission’’) the National Stock Exchange (formerly the of the MFOR to be shared that is equal proposed rule change as described in Cincinnati Stock Exchange), the BSE is to that firm’s percentage contribution to Items I, II, and III below, which Items implementing a general revenue sharing the MFOR. In no event will the amount have been prepared by the Exchange. program based on National Stock of revenue shared with Member Firms On December 10, 2003, the Exchange Exchange’s revenue sharing program, as exceed MFOR. amended the proposed rule change.3 adopted in 1999 and subsequently 2. Statutory Basis The Exchange has designated this amended.5 proposal as one establishing or changing The purpose of the proposed rule The Exchange believes the proposed a due, fee, or other charge imposed by change is to provide general revenue rule change is consistent with section the BSE under section 19(b)(3)(A)(ii) of sharing in certain securities on the BSE. 6(b) of the Act,8 in general, and with 4 the Act, which renders the proposal To compete more effectively, the BSE section 6(b)(4) of the Act,9 in particular, effective upon filing with the proposes to provide incentive for in that it provides for the equitable Commission. The Commission is Member Firms to execute trades on the allocation of reasonable dues, fees, and publishing this notice to solicit BSE and recover costs by means of a other charges among its members. comments on the proposed rule change, quarterly revenue sharing program, as amended, from interested persons. without diminishing the quality of the In addition, the BSE believes that the 6 proposed rule change is consistent with I. Self-Regulatory Organization’s market, including regulatory quality. The proposed rule change section 6(b)(5) of the Act,10 in that it is Statement of the Terms of Substance of designed to promote just and equitable the Proposed Rule Change contemplates the Exchange sharing with Member Firms all or a portion of the principles of trade, to remove The BSE proposes to establish a BSE Member Firm’s Operating Revenue impediments to and perfect that general revenue sharing program for (‘‘MFOR’’) attributable to transactions in mechanism of a free and open market Member Firms. The text of the proposed Nasdaq Securities after operating and a national market system, and, in rule change is available at the BSE and expenses and working capital needs general, to protect investors and the at the Commission. have been met. MFOR is comprised of public interest. The BSE believes that II. Self-Regulatory Organization’s all operating revenue generated by the proposed rule change will create Statement of the Purpose of, and trading activity on the Exchange and incentives for Member Firms to actively Statutory Basis for, the Proposed Rule consists of transaction fees, technology quote and execute transactions on the Change fees, and market data revenue that is Exchange, which will, in turn, enhance attributable to BSE Member Firm the National Market System. In its filing with the Commission, the activity in Nasdaq Securities. All Exchange included statements regulatory monies are excluded from B. Self-Regulatory Organization’s concerning the purpose of and basis for MFOR. Statement on Burden on Competition the proposed rule change and discussed Under the proposal, the Exchange’s The Exchange does not believe that any comments it received on the Board of Governors would have the proposed rule change. The text of these the proposed rule change will impose authority to determine on an ongoing any burden on competition. basis the appropriate amount of MFOR 1 15 U.S.C. 78s(b)(1). to be shared with Member Firms. In 7 2 17 CFR 240.19b–4. making this determination, the Board In particular, the BSE will not compromise its 3 See December 9, 2003 letter from John Boese, regulatory responsibilities by sharing revenue that Vice President, Legal and Compliance, to Nancy would be guided by the need to balance would more appropriately be used to fund Sanow, Assistant Director, Division of Market regulatory responsibilities. The Exchange will be Regulation, Commission, and attachments 5 Securities Exchange Act Release Nos. 41082 mindful of its regulatory responsibilities when (‘‘Amendment No. 1’’) Amendment No. 1 (February 22, 1999), 64 FR 10035 (March 1, 1999) determining its working capital needs. See completely replaces and supersedes the original (SR–CSE–99–02) (notice); 41286 (April 14, 1999), Securities Exchange Act Release No. 41286 (April filing. For purposes of calculating the 60-day 64 FR 19843 (April 22, 1999) (SR–CSE–99–02) 14, 1999), 64 FR 19843, 19844 (April 22, 1999) (SR– abrogation period, the Commission considers the (approval order); 46688 (October 18, 2002), 67 FR CSE–99–02). period to have commenced on December 10, 2003, 65816 (October 28, 2002) (SR–CSE–2002–14) 8 15 U.S.C. 78f(b). the date the BSE filed Amendment No. 1. (notice of filing and immediate effectiveness). 9 15 U.S.C. 78f(b)(4). 4 15 U.S.C. 78s(b)(3)(A)(ii). 6 See infra note 7. 10 15 U.S.C. 78f(b)(5).

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C. Self-Regulatory Organization’s For the Commission, by the Division of CHICAGO BOARD OPTIONS Statement on Comments on the Market Regulation, pursuant to delegated EXCHANGE, INCORPORATED Proposed Rule Change Received From authority.13 RULES Members, Participants, or Others Margaret H. McFarland, The Exchange has neither solicited Deputy Secretary. * * * * * nor received comments on the proposed [FR Doc. 03–31168 Filed 12–17–03; 8:45 am] CHAPTER II—Organization and rule change. BILLING CODE 8010–01–P Administration III. Date of Effectiveness of the Part–A—Committees Proposed Rule Change and Timing for Commission Action SECURITIES AND EXCHANGE Committees of the Exchange COMMISSION The proposed rule change has become Rule 2.1. Committees of the Exchange effective pursuant to section 19(b)(3)(A)(ii) of the Act 11 and [Release No. 34–48913; File No. SR–CBOE– (a) Establishment of Committees. In subparagraph (f)(2) of Rule 19b–4 2003–37] addition to committees specifically thereunder,12 because it involves a due, provided for in the Constitution, there Self-Regulatory Organizations; Notice fee, or other charge. At any time within shall be the following committees: 60 days of the filing of the proposed rule of Filing of Proposed Rule Change and Appeals, Arbitration, Business Conduct, change, the Commission may summarily Amendment No. 1 Thereto by the appropriate Floor Procedure abrogate such rule change if it appears Chicago Board Options Exchange, Inc. Committees, Floor Officials, appropriate to the Commission that such action is Relating to Appointment of the Market Performance Committees, necessary or appropriate in the public Members and Chairman of Its Membership, Product Development and interest, for the protection of investors, Governance Committee such other committees as may be or otherwise in furtherance of the established in accordance with the December 11, 2003. purposes of the Act. Constitution. Except as may be Pursuant to section 19(b)(1) of the IV. Solicitation of Comments otherwise provided in the Constitution Securities Exchange Act of 1934 or the Rules, the Vice Chairman of the Interested persons are invited to (‘‘Act’’),1 and Rule 19b–4 thereunder,2 Board, with the approval of the Board, submit written data, views, and notice is hereby given that on shall appoint the chairmen and arguments concerning the foregoing, September 5, 2003, the Chicago Board members of such committees to serve including whether the proposal is Options Exchange, Inc. (‘‘CBOE’’ or for terms expiring at the regular meeting consistent with the Act. Persons making ‘‘Exchange’’) filed with the Securities of the Board following the next written submissions should file six and Exchange Commission succeeding Annual Election Meeting or copies thereof with the Secretary, until successors are appointed. Securities and Exchange Commission, (‘‘Commission’’) the proposed rule Consideration shall be given to 450 Fifth Street, NW., Washington, DC change as described in Items I, II, and continuity and to having, where 20549–0609. Comments may also be III below, which Items have been submitted electronically at the following prepared by the CBOE. On November 6, appropriate, a cross section of the e-mail address: [email protected]. 2003, the CBOE filed Amendment No. 1 membership represented on each All comment letters should refer to File to the proposed rule change.3 The committee. Except as may be otherwise No. SR–BSE–2003–22. This file number Commission is publishing this notice to provided in the Constitution or the should be included on the subject line solicit comments on the proposed rule Rules, the Vice Chairman of the Board if e-mail is used. To help the change from interested persons. may, at any time, with or without cause, Commission process and review your remove any member of such comments more efficiently, comments I. Self-Regulatory Organization’s committees. Any vacancy occurring in should be sent in hardcopy or by e-mail Statement of the Terms of Substance of one of these committees shall be filled but not by both methods. Copies of the the Proposed Rule Change by the Vice Chairman of the Board for the remainder of the term. submission, all subsequent The CBOE proposes to amend Notwithstanding the foregoing, the amendments, all written statements Exchange Rule 2.1 pertaining to the with respect to the proposed rule Chairman of the Board, with the appointment of the members and change that are filed with the approval of the Board, shall appoint Commission, and all written Chairman of the Exchange’s Governance Directors to serve on the [Audit and communications relating to the Committee. Below is the text of the Compensation Committees,] proposed rule change between the proposed rule change. Proposed new Governance Committee, whose members Commission and any person, other than language is in italics; proposed shall not be subject to removal except by those that may be withheld from the deletions are in [brackets]. the Board. The Chairman of the public in accordance with the Governance Committee shall be provisions of 5 U.S.C. 552, will be 13 17 CFR 200.30–3(a)(12). appointed by the Chairman of the available for inspection and copying in 1 15 U.S.C. 78s(b)(1). Board. Whenever the Vice Chairman of 2 the Commission’s Public Reference 17 CFR 240.19b–4. the Board is, or has reason to believe he Room. Copies of such filing will also be 3 See letter from Patrick Sexton, Assistant General Counsel, CBOE, to Gordon Fuller, Counsel to the may become, a party to any proceeding available for inspection and copying at Assistant Director, Division of Market Regulation, of an Exchange committee, he shall not the principal office of the Exchange. All Commission, dated November 6, 2003 exercise his power to appoint or remove submissions should refer to file number (‘‘Amendment No. 1’’). In Amendment No. 1, CBOE members of that committee, and the SR–BSE–2003–22, and should be clarified the current procedure by which Chairman of the Board shall have such submitted by January 8, 2004. Governance Committee members are appointed, explained the reason for the proposed rule change, power. and revised a portion of the original proposed rule (b)–(d) No change. 11 15 U.S.C. 78s(b)(3)(A)(ii). text. These changes are more fully described in 12 17 CFR 240.19b–4(f)(2). Section II below. * * * * *

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II. Self-Regulatory Organization’s of the Exchange, and assures that as an B. Institute proceedings to determine Statement of the Purpose of, and on-going matter, questions pertaining to whether the proposed rule change Statutory Basis for, the Proposed Rule governance that may arise from time to should be disapproved. Change time will be reviewed promptly and IV. Solicitation of Comments In its filing with the Commission, the brought to the Board’s attention. The CBOE included statements concerning Exchange further noted that its proposal Interested persons are invited to the purpose of and basis for the is consistent with other provisions in submit written data, views and CBOE’s Constitution, which grant the proposed rule change and discussed any arguments concerning the foregoing, Chairman the authority to appoint the comments it received on the proposed including whether the proposed rule members and the chairmen of other rule change. The text of these statements change, as amended, is consistent with may be examined at the places specified standing committees of the Board of Directors. Finally, the CBOE deleted a the Act. Persons making written in Item IV below. The CBOE has submissions should file six copies prepared summaries, set forth in reference in the proposed rule’s text to thereof with the Secretary, Securities Sections A, B, and C below, of the most the term ‘‘members’’ in reference to the and Exchange Commission, 450 Fifth significant aspects of such statements. Governance Committee, and replaced it with the term ‘‘directors,’’ which is the Street NW., Washington, DC 20549. A. Self-Regulatory Organization’s term used in the current rule. CBOE Comments may also be submitted Statement of the Purpose of, and explained that the Governance electronically at the following e-mail Statutory Basis for, the Proposed Rule Committee is comprised currently only address: [email protected]. All Change of directors and will continue to be comment letters should refer to File No. 1. Purpose comprised only of directors in the SR–CBOE–2003–37. This file number should be included on the subject line The purpose of the proposed rule future. if e-mail is used. To help the change is to amend Exchange Rule 2.1 2. Statutory Basis to state that the Chairman of the Board Commission process and review shall have the authority to appoint the The Exchange believes that, by comments more efficiently, comments members of the Exchange’s Governance providing that the members of the should be sent in hardcopy or by e-mail Committee, and also to appoint the Exchange’s Governance Committee and but not by both methods. Copies of the Chairman of the Governance Committee. the Chairman of the Governance submission, all subsequent The CBOE Governance Committee is a Committee shall be appointed by the amendments, all written statements standing committee of the CBOE’s Board Chairman of the Board, the proposed with respect to the proposed rule of Directors. The CBOE believes that the rule change furthers the objectives of change that are filed with the proposed amendment to Rule 2.1 section 6(b)(5) of the Act 5 to protect Commission, and all written granting to the Chairman of the Board investors and the public interest. communications relating to the the authority to appoint the members B. Self-Regulatory Organization’s proposed rule change between the and the Chairman of the Governance Statement on Burden on Competition Commission and any person, other than Committee is consistent with other those that may be withheld from the provisions in CBOE’s Constitution that The Exchange does not believe that public in accordance with the grant the Chairman of the Board the the proposed rule change will impose provisions of 5 U.S.C. 552, will be authority to appoint the members and any burden on competition not available for inspection and copying in Chairman of other standing committees necessary or appropriate in furtherance the Commission’s Public Reference of the Board of Directors, such as the of the purposes of the Act. Room. Copies of such filing will also be 4 Audit and Compensation Committees. available for inspection and copying at In addition to the foregoing proposed C. Self-Regulatory Organization’s the principal office of the CBOE. All change to Rule 2.1, the Exchange Statement on Comments on the submissions should refer to file number proposes a ‘‘housekeeping’’ amendment Proposed Rule Change Received From to Rule 2.1—namely, to delete the Members, Participants or Others SR–CBOE–2003–37 and should be submitted by January 8, 2004. reference to the Audit Committee and No written comments were solicited Compensation Committee in Rule 2.1 as or received with respect to the proposed For the Commission, by the Division of these two committees are specifically rule change, as amended. Market Regulation, pursuant to delegated codified in Sections 7.3 and 7.4, authority. 6 respectively, of the CBOE’s I. Date of Effectiveness of the Proposed Margaret H. McFarland, Rule Change and Timing for Constitution. Deputy Secretary. In Amendment No. 1, the CBOE Commission Action [FR Doc. 03–31167 Filed 12–17–03; 8:45 am] clarified that currently the Vice Chairman of the Exchange, with the Within 35 days of the date of BILLING CODE 8010–01–P approval of the Board of Directors, has publication of this notice in the Federal the authority to appoint the Chairman Register or within such longer period (i) and members of the Governance as the Commission may designate up to Committee. The CBOE explained that it 90 days of such date if it finds such believes it is appropriate that the longer period to be appropriate and Chairman have this authority, as the publishes its reasons for so finding or Governance Committee, which is a (ii) as to which the self-regulatory standing Board committee, reviews and organization consents, the Commission evaluates the Exchange’s governance will: structure and makes recommendations A. By order approve the proposed rule to the Board concerning the governance change, or

4 See CBOE Constitution, Sections 7.3 and 7.4. 5 15 U.S.C. 78f(b)(5). 6 17 CFR 200.30–3(a)(12).

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SECURITIES AND EXCHANGE NSCC’s members, insurance carrier business (provides electronic COMMISSION members, and data services only application forms of various insurance members to submit application carriers that can be filled out and [Release No. 34–48896; File No. SR–NSCC– information and to settle premium 2003–18] transmitted electronically); call center payments with respect to life insurance (teleunderwriting that gathers data Self-Regulatory Organizations; products. required for an annuity or life insurance National Securities Clearing Unlike other parts of the financial application provided by applicants); Corporation; Notice of Filing and services industry, the life insurance and requirements ordering (arranges with Immediate Effectiveness of a Proposed annuity industries rely heavily on third parties for medical examinations, Rule Change Relating to an manual processing and one-off review of driving records, credit history Enhancement to the Insurance communications to process the sale of check, etc.); and case management Processing Service their products. The lack of technology, (manages the case, including obtaining absence of standards, and resulting all necessary information for the December 9, 2003. lengthy delays in the sales process electronic application prior to the Pursuant to Section 19(b)(1) of the contribute to a typical lag of 30 to 90 underwriting process, oversees the Securities Exchange Act of 1934 days between the initial sale by the sales integration of information from the call (‘‘Act’’),1 notice is hereby given that on person or distributor and the issuance center and requirements outsourcing September 22, 2003, the National by the insurance carrier of a life processes, and performs quality Securities Clearing Corporation insurance policy. assurance functions). IPS currently offers many services (‘‘NSCC’’) filed with the Securities and NSCC will charge Portal users through that help automate and standardize Exchange Commission (‘‘Commission’’) the NSCC settlement system.3 The users certain aspects of the processing of the proposed rule change as described will be subject to the service standards annuities and life insurance. However, in Items I, II, and III below, which Items offered to NSCC by these service there are many aspects of this have been prepared primarily by NSCC. providers. Portal will be subject to the processing that fall outside of current The Commission is publishing this same liability standard as with other IPS capabilities. For example, IPS notice to solicit comments on the features of IPS.4 currently allows its users to transmit proposed rule change from interested NSCC believes that the proposed rule persons. information through IPS regarding annuities applications as part of the change is consistent with the I. Self-Regulatory Organization’s Initial Application Information (‘‘APP’’) requirements of Section 17A of the Act Statement of the Terms of Substance of function, but the APP function does not and the rules and regulations the Proposed Rule Change accommodate life insurance thereunder since it will facilitate the prompt and accurate processing of The proposed rule change will modify applications. In addition, not all transactions. NSCC’s Rule 57, Section 1, to allow potential users of IPS have programmed NSCC’s members, insurance carrier their systems to allow full access to B. Self-Regulatory Organization’s members, and data services-only existing IPS services. Statement on Burden on Competition members to submit application To remedy some of the problems NSCC does not believe that the information and to settle premium outlined above, NSCC proposes to proposed rule change will have an payments with respect to life insurance introduce a system called ‘‘Portal’’ that impact on or impose a burden on products by adding a new service called will handle annuities and life insurance competition. Portal. applications through APP. Users will access Portal through a software package C. Self-Regulatory Organization’s II. Self-Regulatory Organization’s provided by NSCC that will allow users Statement on Comments on the Statement of the Purpose of, and to more easily access certain IPS Proposed Rule Change Received From Statutory Basis for, the Proposed Rule functions without undertaking all of the Members, Participants, or Others Change internal programming that they would In its filing with the Commission, otherwise have to do. No written comments relating to the NSCC included statements concerning In addition, because there are other proposed rule change have been the purpose of and basis for the functions that distributors of life solicited or received. NSCC will notify proposed rule change and discussed any insurance and annuity products must the Commission of any written comments it received on the proposed perform between the sale of the product comments received by NSCC. and its issuance, NSCC is contracting rule change. The text of these statements with third party service providers that III. Date of Effectiveness of the may be examined at the places specified offer these functions. These functions Proposed Rule Change and Timing for in Item IV below. NSCC has prepared include producer education (i.e., Commission Action summaries, set forth in sections A, B, registered representatives who work for and C below, of the most significant The foregoing rule change has become members or data services only members aspects of such statements.2 effective pursuant to Section who help distributors and producers A. Self-Regulatory Organization’s fulfill their educational requirements for 3 The proposed fee schedule for Portal users is Statement of the Purpose of, and offering products under state law); being developed and will be filed with the Statutory Basis for, the Proposed Rule producer licensing (helps to streamline Commission at a later date. Change the licensing process for distributors to 4 NSCC’s Rule 57, Section 6 states: ‘‘[NSCC] will not be responsible for the completeness or accuracy The purpose of the proposed rule have their producers become licensed of the IPS Data received from or transmitted to an change is to enhance NSCC’s Insurance by states and facilitates the exchange of Insurance Carrier Member, Member or Data Services Processing Service (‘‘IPS’’) by allowing information relating to licensees); Only Member through IPS nor for any errors, product profile repository (provides a omissions or delays which may occur in the absence of gross negligence on [NSCC]’s part, in the 1 15 U.S.C. 78s(b)(1). database of generic details regarding transmission of such IPS Data to or from an 2 The Commission has modified the text of the individual life insurance and annuity Insurance Carrier Member, or Data Services Only summaries prepared by NSCC. products); electronic submission of new Member.’’

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19(b)(3)(A)(iii) of the Act 5 and Rule For the Commission by the Division of should also see 15 CFR Chapter III- 19b–4(f)(6) thereunder 6 because it Market Regulation, pursuant to delegated International Fishing and Related 7 effects a change that does not authority. Activities, Part 300–International significantly affect the protection of Margaret H. McFarland, Fishing Regulations, Subpart A-General; investors or the public interest, does not Deputy Secretary. Subpart B-High Seas Fisheries; and impose any significant burden on [FR Doc. 03–31213 Filed 12–17–03; 8:45 am] Subpart G-Antarctic Marine Living competition, and does not become BILLING CODE 8010–01–P Resources, for other regulatory measures operative for 30 days after the date of related to conservation and management the filing. At any time within sixty days in the CCAMLR Convention area. of the filing of such rule change, the DEPARTMENT OF STATE Subpart B notes the requirements for high seas fishing vessel licensing. Commission could have summarily Office of Oceans Affairs Subparts A and G describe the process abrogated such rule change if it [I.D. 120103G] for regulating U.S. fishing in the appeared to the Commission that such CCAMLR Conventional area and contain action was necessary or appropriate in New Conservation Measures for the text of CCAMLR Conservation the public interest, for the protection of Antarctic Fishing Under the Auspices Measures that are not expected to investors, or otherwise in furtherance of of CCAMLR change from year to year. The the purposes of the Act. regulations in Subparts A and G include AGENCY: Office of Oceans Affairs, IV. Solicitation of Comments sections on; Purpose and scope; Department of State. Definitions; Relationship to other Interested persons are invited to ACTION: Notice. treaties, conventions, laws and regulations; Procedure for according submit written data, views, and SUMMARY: At its Twenty-Second protection to CCAMLR Ecosystem arguments concerning the foregoing, Meeting in Hobart, Tasmania, from Monitoring Program Sites; Scientific including whether the proposed rule October 27 to November 7, 2003, the Research; Initiating a new fisher; change is consistent with the Act. Commission for the Conservation of Exploratory fisheries; Reporting and Persons making written submissions Antarctic Marine Living Resources record keeping requirements; Vessel and should file six copies thereof with the (CCAMLR), of which the United States gear identification; Gear disposal; Mesh Secretary, Securities and Exchange is a member, adopted conservation Size; Harvesting permits; Import Commission, 450 5th Street NW., measures, pending countries’ approval, permits; Appointment of a designated pertaining to fishing in the CCAMLR Washington, DC 20549–0069. representative; Prohibitions; Facilitation Convention Area. All the measures were Comments may also be submitted of enforcement and inspection; and agreed upon in accordance with Article electronically at the following e-mail Penalties. address: [email protected]. All IX of the Convention for the The Commission agreed that the comment letters should refer to File No. Conservation of Antarctic Marine Living following conservation measures will SR–NSCC–2003–18. This file number Resources. Measures adopted restrict remain in force in 2003/04: compliance: should be included on the subject line overall catches of certain species of fish 10–01 (1998), 10–02 (2001), 10–03 if e-mail is used. To help the and crabs, restrict fishing in certain (2002), 10–04 (2002) and 10–06 (2002); areas, specify implementation and Commission process and review your general fishery matters: 21–01 (2002), inspection obligations supporting the comments more efficiently, comments 21–02 (2002), 22–01 (1986), 22–02 Catch Documentation Scheme of (1984), 22–03 (2002), 23–02 (1993), 23– should be sent in hardcopy or by e-mail Contracting Parties, and promote but not by both methods. Copies of the 03 (1991), 23–04 (2000), 23–05 (2000), compliance with CCAMLR measures by 23–06 (2002), 25–01 (1996), 31–01 submission, all subsequent non-Contracting Party vessels. This amendments, all written statements (1986), 32–01 (2001), 32–02 (1998), 32– notice includes the full text of the 03 (1998), 32–04 (1986), 32–05 (1986), with respect to the rule filing that are conservation measures adopted at the filed with the Commission, and all 32–06 (1985), 32–07 (1999), 32–08 Twenty-Second meeting of CCAMLR. (1997), 32–10 (2002), 32–11 (2002), 32– written communications relating to the For all of the conservation measures in 12 (1998), 33–01 (1995), 41–03 (1999), rule filing between the Commission and force, see the CCAMLR Website at http:/ 51–01 (2002), 51–02 (2002) and 51–03 any person, other than those that may be /www.ccamlr.org. This notice, therefore, (2002); protected areas: 91–01 (2002), withheld from the public in accordance together with the U.S. regulations 91–02 (2002) and 91–03 (2002). with provisions of 5 U.S.C. 552, will be referenced under the SUPPLEMENTARY At its twenty-second meeting in available for inspection and copying in INFORMATION provides a comprehensive Hobart, Tasmania, the Commission the Commission’s Public Reference register of all current U.S. obligations agreed that the following resolutions Room in Washington, DC. Copies of under CCAMLR. will remain in force in 2003/04: such filing will also be available for DATES: Persons wishing to comment on Resolutions 7/IX, 10/XII, 14/XIX, 16/ inspection and copying at NSCC’s the measures or desiring more XIX, 17/XX, 18/XXI and 19/XXI. The principal office and on NSCC’s Web site information should submit written Commission had also considered the at http://www.nscc.com/legal/. All comments by January 20, 2004. implementation of a C-VMS. Although submissions should refer to File No. FOR FURTHER INFORMATION CONTACT: significant progress had been made, the SR–NSCC–2003–18 and should be Matthew V. Cassetta, Office of Oceans Commission did not reach consensus at submitted by January 8, 2004. Affairs (OES/OA), Room 5805, the most recent meeting. As a result, Department of State, Washington, DC Conservation Measure 10–04 and 20520; tel: 202–647–3947; fax: 202–647– Resolution 16/XIX remain in force. 9099; e-mail: [email protected]. New and Revised Conservation SUPPLEMENTARY INFORMATION: Measures. The Commission revised the Individuals interested in CCAMLR following conservation measures at its 5 15 U.S.C. 78s(b)(3)(A)(iii). twenty-second meeting: compliance: 6 17 CFR 240.19b–4(f)(6). 7 17 CFR 200.30–3(a)(12). 10–05 (2002) and 10–07 (2002); general

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fishery matters: 23–01 (2000), 24–01 caught in a manner consistent with (iii) the reference number of the (2002), 24–02 (2002), 25–02 (2002) and CCAMLR conservation measures, license or permit, whichever is 25–03 (1999). In addition, thirty-four Wishing to reinforce the conservation applicable, that is issued to the vessel; measures and two resolutions were measures already adopted by the (iv) the weight of each Dissostichus adopted at the twenty-second meeting Commission with respect to species landed or transhipped by follow. For further information, see the Dissostichus spp., product type, and CCAMLR web site at http:// Inviting non-Contracting Parties (a) by CCAMLR statistical subarea or www.ccamlr.org under Publications for whose vessels fish for Dissostichus spp. division if caught in the Convention the Schedule of Conservation Measures to participate in the Catch Area; and/or in Force (2003/2004), or contact the Documentation Scheme for Dissostichus (b) by FAO statistical area, subarea or Commission at the CCAMLR Secretariat, spp., hereby adopts the following division if caught outside the P.O. Box 213, North Hobart, Tasmania conservation measure in accordance Convention Area; (v) the dates within which the catch 7002, Australia. Tel: (61) 3–6234–9965. with Article IX of the Convention: was taken; CONSERVATION MEASURES AND 1. Each Contracting Party shall take (vi) the date and the port at which the RESOLUTIONS ADOPTED steps to identify the origin of catch was landed or the date and the ATCCAMLR-XXII Dissostichus spp. imported into or vessel, its flag and national registry exported from its territories and to number, to which the catch was CONSERVATION MEASURE 10–05 determine whether Dissostichus spp. (2003) transhipped; and harvested in the Convention Area that is (vii) the name, address, telephone and Catch Documentation Scheme for imported into or exported from its fax numbers of the recipient(s) of the Dissostichus spp. territories was caught in a manner catch and the amount of each species consistent with CCAMLR conservation and product type received. [only paragraphs A5. and A9. of Annex measures. 10–05/A of this measure were revised] 7. Procedures for completing 2. Each Contracting Party shall require The Commission, Dissostichus catch documents in respect that each master or authorized Concerned that illegal, unregulated of vessels are set forth in paragraphs A1 representative of its flag vessels and unreported (IUU) fishing for to A10 of Annex 10–05/A to this authorized to engage in harvesting of Dissostichus spp. in the Convention measure. The standard catch document Dissostichus eleginoides and/or Area threatens serious depletion of is attached to the annex. Dissostichus mawsoni complete a populations of Dissostichus spp.,Aware 8. Each Contracting Party shall require Dissostichus catch document for the that IUU fishing involves significant by- that each shipment of Dissostichus spp. catch landed or transhipped on each catch of some Antarctic species, imported into or exported from its occasion that it lands or tranships including endangered albatross, territory be accompanied by the export- Dissostichus spp. validated Dissostichus catch Noting that IUU fishing is document(s) and, where appropriate, inconsistent with the objective of the 3. Each Contracting Party shall require validated re-export document(s) that Convention and undermines the that each landing of Dissostichus spp. at account for all the Dissostichus spp. effectiveness of CCAMLR conservation its ports and each transhipment of contained in the shipment. measures, Dissostichus spp. to its vessels be accompanied by a completed 9. An export-validated Dissostichus Underlining the responsibilities of Dissostichus catch document. catch document issued in respect of a Flag States to ensure that their vessels vessel is one that: conduct their fishing activities in a 4. Each Contracting Party shall, in accordance with their laws and (i) includes all relevant information responsible manner, and signatures provided in accordance Mindful of the rights and obligations regulations, require that their flag vessels which intend to harvest with paragraphs A1 to A11 of Annex of Port States to promote the 10–05/A to this measure; and effectiveness of regional fishery Dissostichus spp., including on the high seas outside the Convention Area, are (ii) includes a signed and stamped conservation measures, certification by a responsible official of Aware that IUU fishing reflects the provided with specific authorization to do so. Each Contracting Party shall the exporting State of the accuracy of high value of, and resulting expansion the information contained in the in markets for and international trade provide Dissostichus catch document forms to each of its flagvessels document. in, Dissostichus spp., 10. Each Contracting Party shall Recalling that Contracting Parties authorized to harvest Dissostichus spp. and only to those vessels. ensure that its customs authorities or have agreed to introduce classification other appropriate officials request and 5. A non-Contracting Party seeking to codes for Dissostichus spp. at a national examine the documentation of each cooperate with CCAMLR by level, shipment of Dissostichus spp. imported participating in this scheme may issue Recognizing that the implementation into or exported from its territory to Dissostichus catch document forms, in of a Catch Documentation Scheme for verify that it includes the export- accordance with the procedures Dissostichus spp. will provide the validated specified in paragraphs 6 and 7, to any Commission with essential information Dissostichus catch document(s) and, of its flag vessels that intend to harvest necessary to provide the precautionary where appropriate, validated re-export management objectives of the Dissostichus spp. document(s) that account for all the Convention, 6. The Dissostichus catch document Dissostichus spp. contained in the Committed to take steps, consistent shall include the following information: shipment. These officials may also with international law, to identify the (i) the name, address, telephone and examine the content of any shipment to origins of Dissostichus spp. entering the fax numbers of the issuing authority; verify the information contained in the markets of Contracting Parties and to (ii) the name, home port, national catch document or documents. determine whether Dissostichus spp. registry number, and call sign of the 11. If, as a result of an examination harvested in the Convention Area that is vessel and, if issued, its IMO/Lloyd’s referred to in paragraph 10 above, a imported into their territories was registration number; question arises regarding the

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information contained in a Dissostichus 16. A Contracting Party may transfer port and country of landing or vessel of catch document or a re-export document all or part of the proceeds from the sale transhipment and shall request from the the exporting State whose national of seized or confiscated Dissostichus Flag State, a Flag State confirmation authority validated the document(s) spp. into the CDS Fund created by the number. and, Commission or into a national fund A3. If, for catches2 taken in the as appropriate, the Flag State whose which promotes achievement of the Convention Area or on the high seas vessel completed the document are objectives of the Convention. A outside the Convention Area, the Flag called on to cooperate with the Contracting Party may, consistent with State verifies, by the use of a VMS (as importing State with a view to resolving its domestic legislation, decline to described in paragraphs 5 and 6 of such question. provide a market for toothfish offered Conservation Measure 10–04), the area 12. Each Contracting Party shall for sale with a SVDCD by another State. fished and that the catch to be landed promptly provide by the most rapid Provisions concerning the uses of the or transhipped as reported by its vessel electronic means copies to the CCAMLR CDS Fund are found in Annex B. is accurately recorded and taken in a Secretariat of all export-validated manner consistent with its authorization Dissostichus catch documents and, ANNEX 10–05/A to fish, it shall convey a unique Flag where relevant, validated re-export A1. Each Flag State shall ensure that State confirmation number to the documents that it issued from and each Dissostichus catch document form vessel’s master by the most rapid received into its territory and shall that it issues includes a specific electronic means available. The report annually to the Secretariat data, identification number consisting of: Dissostichus catch document will drawn from such documents, on the (i) a four-digit number, consisting of receive a confirmation number from the origin and amount of Dissostichus spp. the two-digit International Standards Flag State, only when it is convinced exported from and imported into its Organization (ISO) country code plus that the information submitted by the territory. the last two digits of the year for which vessel fully satisfies the provisions of 13. Each Contracting Party, and any the form is issued; and this conservation measure. non-Contracting Party that issues (ii) a three-digit sequence number A4. The master shall enter the Flag Dissostichus catch documents in respect (beginning with 001) to denote the order State confirmation number on the of its flag vessels in accordance with in which catch document forms are Dissostichus catch document form. paragraph 5, shall inform the CCAMLR issued. A5. The master of a vessel that has Secretariat of the national authority or It shall also enter on each been issued a Dissostichus catch authorities (including names, addresses, Dissostichus catch document form the document form or forms shall adhere to phone and fax numbers and email number as appropriate of the license or the following procedures immediately addresses) responsible for issuing and permit issued to the vessel. after each landing or transhipment of validating Dissostichus catch A2. The master of a vessel which has Dissostichus spp.: documents. been issued a Dissostichus catch (i) in the case of a transhipment, the 14. Notwithstanding the above, any document form or forms shall adhere to master shall confirm the transhipment Contracting Party, or any non- the following procedures prior to each obtaining the signature on the Contracting Party participating in the landing or transhipment of Dissostichus Dissostichus catch document of the Catch Documentation Scheme, may spp.: master of the vessel to which the catch require additional verification of catch (i) the master shall ensure that the is being transferred; documents by Flag States by using, inter information specified in paragraph 6 of (ii) in the case of a landing, the master alia, VMS, in respect of catches1 taken this conservation measure is accurately or authorized representative shall on the high seas outside the Convention recorded on the Dissostichus catch confirm the landing by obtaining a Area, when landed at, imported into or document form; signed and stamped certification on the exported from its territory. (ii) if a landing or transhipment Dissostichus catch document by a 15. If a Contracting Party participating includes catch of both Dissostichus spp., responsible official of the Port State of in the CDS has cause to sell or dispose the master shall record on the landing or free trade zone who is acting of seized or confiscated Dissostichus Dissostichus catch document form the under the direction of either the spp., it may issue a Specially Validated total amount of the catch landed or customs or fisheries authority of the Dissostichus Catch Document (SVDCD) transhipped by weight of each species; Port State and is competent with regard specifying the reasons for that (iii) if a landing or transhipment to the validation of Dissostichus catch validation. The SVDCD shall include a includes catch of Dissostichus spp. documents; statement describing the circumstances taken from different statistical subareas (iii) in the case of a landing, the under which confiscated fish are and/or divisions, the master shall record master or authorized representative moving in trade. To the extent on the Dissostichus catch document shall also obtain the signature on the practicable, Parties shall ensure that no form the amount of the catch by weight Dissostichus catch document of the financial benefit arising from the sale of of each species taken from each individual that receives the catch at the seized or confiscated catch accrue to the statistical subarea and/or division and port of landing or free trade zone; perpetrators of IUU fishing. If a indicating whether the catch was caught (iv) in the event that the catch is Contracting Party issues a SVDCD, it in an EEZ or on the high seas, as divided upon landing, the master or shall immediately report all such appropriate; and authorized representative shall present a validations to the Secretariat for (iv) the master shall convey to the copy of the Dissostichus catch conveying to all Parties and, as Flag State of the vessel by the most document to each individual that appropriate, recording in trade statistics. rapid electronic means available, the receives a part of the catch at the port Dissostichus catch document number, 1 Excluding by-catches of Dissostichus spp. by the dates within which the catch was 2 Excluding by-catches of Dissostichus spp. by trawlers fishing on the high seas outside the taken, the species, processing type or trawlers fishing on the high seas outside the Convention Area. A by-catch shall be defined as no ConventionArea. A by-catch shall be defined as no more than 5% of total catch of all species and no types, the estimated weight to be landed more than 5% of total catch of all species and no more than 50 tons for an entire fishing trip by a and the area or areas of the catch, the more than 50 tons for an entire fishing trip by a vessel. date of landing or transhipment and the vessel.

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of landing or free trade zone, record on Dissostichus catch documents, or if the ANNEX 10–05/B that copy of the catch document the catch was divided, copies, of all the THE USE OF THE CDS FUND amount and origin of the catch received Dissostichus catch documents, to the by that individual and obtain the Flag State(s) that issued the Dissostichus B1. The purpose of the CDS Fund signature of that individual. catch document, and shall provide a (’the Fund’) is to enhance the capacity A6. In respect of each landing or copy of the relevant document to each of the Commission in improving the transhipment, the master or authorized recipient of the catch. The Flag State of effectiveness of the CDS and by this, representative shall immediately sign the receiving vessel shall immediately and other means, to prevent, deter and and convey by the most rapid electronic convey by the most rapid electronic eliminate IUU fishing in the Convention means available a copy, or, if the catch means available a copy of the document Area. landed was divided, copies, of the to the CCAMLR Secretariat to be made B2. The Fund will be operated signed Dissostichus catch document to available by the next working day to all according to the following provisions: the Flag State of the vessel and shall Contracting Parties. (i) The Fund shall be used for special provide a copy of the relevant document A11. For each shipment of projects, or special needs of the to each recipient of the catch. Dissostichus spp. to be exported from Secretariat if the Commission so A7. The Flag State of the vessel shall the country of landing, the exporter decides, aimed at assisting the immediately convey by the most rapid shall adhere to the following procedures development and improving the electronic means available a copy or, if to obtain the necessary export validation effectiveness of the CDS. The Fund may the catch was divided, copies, of the of the Dissostichus catch document(s) also be used for special projects and signed Dissostichus catch document to that account for all the Dissostichus spp. other activities contributing to the the CCAMLR Secretariat to be made contained in the shipment: prevention, deterrence and elimination available by the next working day to all (i) the exporter shall enter on each of IUU fishing in the Convention Area, Contracting Parties. Dissostichus catch document the and for other such purposes as the A8. The master or authorized amount of each Dissostichus spp. Commission may decide. representative shall retain the original reported on the document that is (ii) The Fund shall be used primarily copies of the signed Dissostichus catch contained in the shipment; for projects conducted by the document(s) and return them to the Flag (ii) the exporter shall enter on each Secretariat,although the participation of State no later than one month after the Dissostichus catch document the name Members in these projects is not end of the fishing season. and address of the importer of the precluded. While individual Member A9. The master of a vessel to which shipment and the point of import; projects may be considered, this shall catch has been transhipped (receiving (iii) the exporter shall enter on each not replace the normal responsibilities vessel) shall adhere to the following Dissostichus catch document the of Members of the Commission. The procedures immediately after each exporter’s name and address, and shall Fund shall not be used for outine landing of such catch in order to sign the document; and Secretariat activities. complete each Dissostichus catch (iv) the exporter shall obtain a signed (iii) Proposals for special projects may document received from transhipping and stamped validation of the be made by Members, by the vessels: Dissostichus catch document by a Commission or the Scientific Committee (i) the master of the receiving vessel responsible official of the exporting and their subsidiary bodies, or by the shall confirm the landing by obtaining State. a signed and stamped certification on A12. In the case of re-export, the re- Secretariat. Proposals shall be made to the Dissostichus catch document by a exporter shall adhere to the following the Commission in writing and be responsible official of the Port State of procedures to obtain the necessary re- accompanied by an explanation of the landing or free trade zone who is acting export validation of the Dissostichus proposal and an itemized statement of under the direction of either the catch document(s) that account for all estimated expenditure. customs or fisheries authority of the the Dissostichus spp. contained in the (iv) The Commission will, at each Port State and is competent with regard shipment: annual meeting, designate six Members to the validation of Dissostichus catch (i) the re-exporter shall supply details to serve on a Review Panel to review documents; of the net weight of product of all proposals made intersessionally and to (ii) the master of the receiving vessel species to be re-exported, together with makerecommendations to the shall also obtain the signature on the the Dissostichus catch document Commission on whether to fund special Dissostichus catch document of the number to which each species and projects orspecial needs. The Review individual that receives the catch at the product relates; Panel will operate by email port of landing or free trade; (ii) the re-exporter shall supply the intersessionally and meet during the (iii) in the event that the catch is name and address of the importer of the first week of the Commission’s annual divided upon landing, the master of the shipment, the point of import and the meeting. receiving vessel shall present a copy of name and address of the exporter; (v) The Commission shall review all the Dissostichus catch document to each (iii) the re-exporter shall obtain a proposals and decide on appropriate individual that receives a part of the signed and stamped validation of the projects and funding as a standing catch at the port of landing or free trade above details by the responsible official agenda item at its annual meeting. zone, record on that copy of the catch of the exporting State on the accuracy of (vi) The Fund may be used to assist document the amount and origin of the information contained in the Acceding States and non-Contracting catch received by that individual and document(s); and Parties that wish to cooperate with obtain the signature of that individual. (iv) the responsible official of the CCAMLR and participate in the CDS, so A10. In respect of each landing of exporting state shall immediately long as this use is consistent with transhipped catch, the master or transmit by the most rapid electronic provisions (i) and (ii) above. Acceding authorized representative of the means a copy of the re-export document States and non-Contracting Parties may receiving vessel shall immediately sign to the Secretariat to be made available submit proposals if the proposals are and convey by the most rapid electronic next working day to all Contracting sponsored by, or in cooperation with, a means available a copy of all the Parties. Member.

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(vii) The Financial Regulations of the 3. A non-Contracting Party vessel taken in respect of the vessel or vessels Commission shall apply to the Fund, which has been sighted engaging in concerned. except in so far as these provisions fishing activities in the Convention Area 7. Contracting Parties may at any time provide or the Commission decides or which has been denied port access, submit to the Executive Secretary any otherwise. landing or transhipment in accordance additional information, which might be (viii) The Secretariat shall report to with Conservation Measure 10–03 is relevant for the identification of non- the annual meeting of the Commission presumed to be undermining the Contracting Party vessels that might be on the activities of the Fund, including effectiveness of CCAMLR conservation carrying out IUU fishing activities in the its income and expenditure. Annexed to measures. In the case of any Convention Area. the report shall be reports on the transhipment activities involving a 8. The Standing Committee on progress of each project being funded by sighted non-Contracting Party vessel Implementation and Compliance (SCIC) the Fund, including details of the inside or outside the Convention Area, shall review the information received expenditure on each project. The report the presumption of undermining the pursuant to paragraphs 5,6 and 7and will be circulated to Members in effectiveness of CCAMLR conservation any other information provided during advance of the annual meeting. measures applies to any other non- its annual deliberations which may be (ix) Where an individual Member Contracting Party vessel which has considered relevant to this review. project is being funded according to engaged in such activities with that 9. Following the review referred to in vessel. provision (ii), that Member shall paragraph 8, SCIC shall submit to the 4. When the non-Contracting Party provide an annual report on the Commission for approval, a proposed vessel referred to in paragraph 3 enters progress of the project, including details IUU Vessel List. a port of any Contracting Party, it shall 10. The Executive Secretary, SCIC and of the expenditure on the project. The be inspected by authorized Contracting report shall be submitted to the the Commission shall undertake each Party officials in accordance with year the procedures set out in this Secretariat in sufficient time to be Conservation Measure 10–03 and shall circulated to Members in advance of the conservation measure in respect of not be allowed to land or tranship any adding or removing vessels from the annual meeting. When the project is fish species subject to CCAMLR completed, that Member shall provide a IUU Vessel List. In this regard, SCIC conservation measures it might be shall recommend that the Commission final statement of account certified by holding on board unless the vessel an auditor acceptable to the removes vessels from the list approved establishes that the fish were caught in in a previous annual meeting if the Commission. compliance with all relevant CCAMLR (x) The Commission shall review all relevant Flag State satisfies the conservation measures and Commission that: ongoing projects at its annual meeting as requirements under the Convention. a standing agenda item and reserves the 5. The Contracting Party which sights (a) the vessel did not take part in IUU right, after notice, to cancel a project at the non-Contracting Party vessel or fishing activities described in paragraph any time should it decide that it is denies it port access, landing or 2; or necessary. Such a decision shall be transhipment under paragraph 3 shall (b) it has taken effective action in exceptional, and shall take into account attempt to inform the vessel it is response to the IUU fishing activities in progress made to date and likely presumed to be undermining the question, including prosecution and progress in the future, and shall in any objective of the Convention and that this imposition of sanctions of adequate case be preceded by an invitation from information will be distributed to all severity; or the Commission to the project Contracting Parties and to the (c) the vessel has changed ownership coordinator to present a case for Secretariat, and to the Flag State of the and that the new owner can establish continuation of funding. vessel. the previous owner no longer has any (xi) The Commission may modify 6. Information regarding such legal, financial, or real interests in the these provisions at any time. sightings or denial of port access, vessel, or exercises control over it and landings or transhipments, and the that the new owner has not participated CONSERVATION MEASURE 10–07 results of all inspections conducted in in IUU fishing; or (2003) the ports of Contracting Parties, and any (d) the Flag State has taken measures Scheme to Promote Compliance by Non- subsequent action shall be transmitted considered sufficient to ensure the Contracting Party Vessels with CCAMLR immediately to the Commission in granting of the right to the vessel to fly Conservation Measures accordance with Article XXII of the its flag will not result in IUU fishing. Convention. The Secretariat shall 11. Contracting Parties shall take all 1. The Contracting Parties request transmit this information to all necessary measures, to the extent non-Contracting Parties to cooperate Contracting Parties, within one business possible in accordance with their fully with the Commission with a view day of receiving this information, and to applicable legislation, in order that: to ensuring that the effectiveness of the Flag State of the sighted vessel as (a) the issuance of a licence to vessels CCAMLR conservation measures is not soon as possible. At this time, the included in the IUU Vessel List to fish undermined. Secretariat shall, in consultation with in waters under their fisheries 2. At each annual meeting the the Chair of the Commission, request jurisdiction is prohibited; Commission shall identify those non- the Flag State concerned that, where (b) fishing vessels, support vessels, Contracting Parties whose vessels are appropriate, measures be taken in mother-ships and cargo vessels flying engaged in illegal, unregulated and accordance with its applicable laws and their flag do not participate in any unreported (IUU) fishing activities in regulations to ensure that the vessel or transhipment or joint fishing operations the Convention Area that threaten to vessels in question desist from any with vessels registered in the IUU undermine the effectiveness of activities that undermine the Vessel List; CCAMLR conservation measures, and effectiveness of CCAMLR conservation (c) vessels appearing in the IUU shall establish a list of such vessels (IUU measures, and that the Flag State report Vessel List that enter ports are not Vessel List), in accordance with the back to CCAMLR on the results of such authorized to land or tranship therein procedures and criteria set out hereafter. enquiries and/or on the measures it has and are inspected in accordance with

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Conservation Measure 10–03 on so this respect, non-Contracting Parties the total aggregate catch for the season entering; may cooperate to adopt appropriate to date together with an estimate of the (d) the chartering of vessels included multilaterally agreed trade-related date upon which the total allowable in the IUU Vessel List is prohibited; measures, consistent with the World catch is likely to be reached for that (e) granting of their flag to vessels Trade Organization (WTO), that may be season. In the case of exploratory appearing in the IUU Vessel List is necessary to prevent, deter and fisheries, the Executive Secretary shall refused; eliminate the IUU fishing activities also notify total aggregate catch for the (f) imports of Dissostichus spp. from identified by the Commission. season todate in each small-scale vessels included in the IUU Vessel List Multilateral trade-related measures may research unit (SSRU) together with an are prohibited; be used to support cooperative efforts to estimate of the date upon which the (g) ’Export or Re-export Government ensure that trade in Dissostichus spp. total allowable catch is likely to be Authority Validation’ is not verified and its products does not in any way reached in each SSRU for that season. when the shipment (of Dissostichus encourage IUU fishing or otherwise Estimates shall be based on a projection spp.) is declared to have been caught by undermine the effectiveness of forward of the trend in daily catch any vessel included in the IUU Vessel CCAMLR’s conservation measures rates,obtained using linear regression List; which are consistent with the United techniques from a number of the most (h) importers, transporters and other Nations Convention on the Law of the recent catch reports. sectors concerned, are encouraged to Sea 1982. 7. At the end of every six reporting refrain from negotiating and from periods, the Executive Secretary shall transhipping of fish caught by vessels CONSERVATION MEASURE 23–01 inform all Contracting Parties of the appearing in the IUU Vessel List; (2003) total catch taken during the six most (i) any appropriate information is Five-day Catch and Effort Reporting recent reporting periods, the total collected and exchanged with other System aggregate catch for the season to date Contracting Parties or cooperating non- together with an estimate of the date Contracting Parties, entities or fishing This conservation measure is adopted upon which the total allowable catch is entities with the aim of detecting, in accordance with Conservation likely to be reached for that season. controlling and preventing the use of Measure 31–01 where appropriate: 8. If the estimated date of completion false import/export certificates 1. For the purposes of this Catch and of the total allowable catch, is within regarding fish from vessels appearing in Effort Reporting System the calendar five days of the date on which the the IUU Vessel List. month shall be divided into six Secretariat received the report of the 12. The Executive Secretary shall reporting periods, viz: day 1 to day 5, catches, the Executive Secretary shall place the IUU Vessel List on a secure day 6 to day 10, day 11 to day 15, day inform all Contracting Parties that the section of the CCAMLR website. 16 to day 20, day 21 to day 25 and day fishery will close on that estimated day 13. The Commission shall request 26 to the last day of the month. These or on the day on which the report was those non-Contracting Parties identified reporting periods are hereinafter received, whichever is the later. In the pursuant to paragraph 2, to immediately referred to as periods A, B, C, D, E and case of exploratory fisheries, if the take steps to address the IUU fishing F. estimated date of completion of the activities of the vessels flying their flag 2. At the end of each reporting period, catch in any SSRU is within five days that have been included in the IUU each Contracting Party shall obtain from of the day on which the Secretariat Vessel List, including if necessary, the each of its vessels its total catch and received the report of catches, the withdrawal of the registration or of the total days and hours fished for that Executive Secretary shall additionally fishing licenses of these vessels, the period and shall, by cable, telex or inform all Contracting Parties nullification of the relevant catch facsimile, transmit the aggregated catch thatfishing in that SSRU will be documents and denial of further access and days and hours fished for its prohibited from that calculated day, or to the Catch Documentation Scheme for vessels. The catch and effort data shall on the day on which the report was Dissostichus spp. (CDS), and to inform reach the Executive Secretary not later received, whichever is the later. the Commission of the measures taken than five (5) days after the end of the 9. Should a Contracting Party fail to in this respect. reporting period, or in the case of transmit a report to the Executive 14. Contracting Parties shall jointly exploratory fisheries, notlater than two Secretary in the appropriate form by the and/or individually request non- (2) working days after the end of the deadline specified in paragraph 2, the Contracting Parties identified pursuant reporting period. In the case of longline Executive Secretary shall issue a to paragraph 2, to cooperate fully with fisheries, the number of hooks shall also reminder to the Contracting Party. If at the Commission in order to avoid be reported. the end of a further two five-day undermining the effectiveness of 3. A report must be submitted by periods, or, in the case of exploratory conservation measures adopted by the every Contracting Party taking part in fisheries, a further one five-day period, Commission. the fishery for each reporting period for those data have still not been provided, 15. The Commission shall review, at the duration of the fishery even if no the Executive Secretary shall notify all subsequent annual meetings as catches are taken. Contracting Partiesof the closure of the appropriate, actions taken by those non- 4. The catch of all species, including fishery to the vessel which has failed to Contracting Parties identified pursuant by-catch species, must be reported. supply the data as required and the to paragraph 2 to which requests have 5. Such reports shall specify the Contracting Party concerned shall been made pursuant to paragraphs 13 month and reporting period (A, B, C, D, require the vessel to cease fishing. If the and 14, and identify those which have E or F) to which each report refers. Executive Secretary is notified by the not rectified their fishing activities. 6. Immediately after the deadline has Contracting Party that the failure of the 16. The Commission shall decide passed for receipt of the reports for each vessel to report is due to technical appropriate measures to be taken in period, the Executive Secretary shall difficulties, the vessel may resume respect to Dissostichus spp. so as to notify all Contracting Parties engaged in fishing once the report orexplanation address these issues with those fishing activities in the area, of the total concerning the failure has been identified non-Contracting Parties. In catch taken during the reporting period, submitted.

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CONSERVATION MEASURE 24–01 Secretariat for distribution to Members the test until such time as a total of 20 (2003)3,4 at least six months in advance of the tests with a minimum sink rate of 0.3 m/ planned starting date for the research. In s are recorded; The Application of Conservation the event of any request for a review of (v) all equipment and fishing gear Measures to Scientific Research[only such plan being lodged within two used in the tests is to be the same as that Annex 24–01/B of this measure was months of its circulation, the Executive to be used in the Convention Area. revised] Secretary shall notify all Members and A2. During fishing, for a vessel to This conservation measure governs submit the plan to the Scientific maintain the exemption to night-time the application of conservation Committee for review. Based on the setting requirements, continuous line measures to scientific research and is submitted research plan and any advice sink monitoring shall be undertaken by adopted in accordance with Article IX provided by the appropriate working the CCAMLR scientific observer. The of the Convention. group, the Scientific Committee will vessel shall cooperate with the 1. General application: provide advice to the Commission CCAMLR observer who shall: (a) Catches taken by any vessel for where the review process will be (i) aim to place a TDR on every research purposes will be considered as concluded. Until the review process is longline set during the observer’s shift; part of any catch limits in force for each complete the planned fishing for (ii) every seven days place all species taken, and shall be reported to research purposes shall not proceed. available TDRs on a single longline to CCAMLR as part of the annual (b) Research plans shall be reported in determine any sink rate variation along STATLANT returns. accordance with the standardized the line; (b) The CCAMLR within-season catch guidelines and formats adopted by the (iii) randomize TDR placement on the and effort reporting systems shall Scientific Committee, given in Annex longline within and between sets; applywhenever the catch within a 24–01/A. (iv) calculate an individual rate for specified reporting period exceeds five (c) A summary of the results of any each TDR when returned to the vessel; tons, unless more specific regulations research subject to these provisions (v) measure the sink rate as an average apply to the particular species. shall be provided to the Secretariat of the time taken to sink from the 2. Application to vessels taking less within 180 days of the completion of the surface (0 m) to 15 m. than 50 tons of finfish including no research fishing. A full report shall be A3. The vessel shall: more than the amounts specified for provided within 12 months. (i) ensure the average sink rate is at a finfish taxa in Annex 24–01/B and less (d) Catch and effort data resulting minimum of 0.3 m/s; than 0.1% of a given catch limit for non- from research fishing in accordance (ii) report daily to the fishery finfish taxa indicated in Annex 24–01/ with paragraph (a) above, should be manager; B: reported to the Secretariat according to (iii) ensure that data collected from (a) Any Member planning to use a the haul-by-haul reporting format for line sink trials is recorded in the vessel for research purposes when the research vessels (C4). approved format and submitted to the estimated catch is as above shall notify fishery manager at the conclusion of the the Secretariat of the Commission which CONSERVATION MEASURE 24–02 season. (2003) in turn will notify all Members Protocol B: immediately, according to the format Experimental Line-weighting Trials provided in Annex 24–01/A. This B1. The vessel shall, under notification shall be included in the In respect of fisheries in Statistical observation by a scientific observer:(i) Members’ Activities Reports. Subareas 48.6, 88.1 and 88.2 and set a minimum of five longlines of the (b) Vessels to which the provisions of Divisions 58.4.1, 58.4.2, 58.4.3a, 58.4.3b maximum length to be used in paragraph 2(a) above apply, shall be and 58.5.2, paragraph 3 of Conservation theConvention Area with a minimum of exempt from conservation measures Measure 25–02 shall not apply only four bottle tests (see paragraphs B5 to relating to mesh size regulations, where a vessel can demonstrate, prior to B9)on the middle one-third of the prohibition of types of gear, closed entry into force of the license for this longline; areas, fishing seasons and size limits, fishery and prior to entering the (ii) randomize bottle test placement and reporting system requirements other Convention Area, its ability to fully on the longline within and between sets, than those specified in paragraphs 1(a) comply with either of the following noting that all tests should be applied and (b) above. experimental protocols. halfway between weights; (iii) calculate an individual sink rate 3. Application to vessels taking more Protocol A: than 50 tons of finfish or more than the for each bottle test, where the sink rate A1. The vessel shall, under amounts specified for finfish taxa in shall be measured as the time taken for observation by a scientific observer: Annex 24–01/B or more than 0.1% of a the longline to sink from the surface (0 (i) set a minimum of five longlines given catch limit for non-finfish taxa m) to 10 m; with a minimum of four Time Depth (iv) this sink rate shall be at a indicated in Annex 24–01/B: Recorders (TDR) on each line; minimum rate of 0.3 m/s; (a) Any Member planning to use any (ii) randomize TDR placement on the (v) if the minimum sink rate is not type of vessel to conduct fishing for longline within and between sets; achieved at all 20 sample points (four research purposes when the estimated (iii) calculate an individual sink rate tests on five lines), continue testing catch is as above, shall notify the for each TDR when returned to the until such time as a total of 20 tests with Commission and provide the vessel, where: a minimum sink rate of 0.3 m/s are opportunity for other Members to (a) the sink rate shall be measured as recorded; review and comment on its research an average of the time taken to sink from (vi) all equipment and fishing gear plan. The plan shall be provided to the the surface (0 m) to 15 m; used in the tests is to be to the same (b) this sink rate shall be at a specifications as that to be used in the 3 Except for waters adjacent to the Kerguelen and Crozet Islands minimum rate of 0.3 m/s; Convention Area. 4 Except for waters adjacent to the Prince Edward (iv) if the minimum sink rate is not B2. During fishing, for a vessel to Islands achieved at all 20 sample points, repeat maintain the exemption to paragraph 3

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of Conservation Measure 25–02, regular twine is attached to the longline6, 02. The leeward streamer must be as line sink rate monitoring shall be midway between weights (the close as possible to that specification, undertaken by the CCAMLR scientific attachment point). recognising that modifications will be observer. The vessel shall cooperate B8. The observer records the time at needed to prevent entanglement of the with the CCAMLR observer who shall: which the attachment point enters the two streamer lines and the vessels in the (i) aim to conduct a bottle test on water as t1 in seconds. The time at trial shall have operational discretion to every longline set during the observer’s which the bottle is observed to be avoid this. shift, noting that the test should be pulled completely under is recorded as 3. The CCAMLR Scientific Observer undertaken on the middle one-third of t2 in seconds7. The result of the test is shall provide a detailed description of the line; calculated as follows: the leeward streamer line use and (ii) every seven days place at least Line sink rate = 10 / (t2 - t1) construction in their cruise report. four bottle tests on a single longline to B9. The result should be equal to or 4. One of the observers shall determine any sink rate variation along greater than 0.3 m/s. These data are to determine during every trial set whether the line; be recorded in the space provided in the seabirds of any species enter the ’risk (iii) randomize bottle test placement electronic observer logbook. zone’ near vessels. The risk zone is on the longline within and between sets, CONSERVATION MEASURE 24–03 defined as: noting that all tests should be applied (2003) (i) up to 100 m astern of the vessel; halfway between weights; (ii) up to 10 m either side of the Experimental Integrated Line-Weighting (iv) calculate an individual sink rate setting direction of the longline; Trials in Statistical Subareas 88.1 and for each bottle test; 88.2 in the 2003/04 Season (iii) up to 10 m above the longline. (v) measure the line sink rate as the 5. Whenever a seabird is sighted in time taken for the line to sink from the The Commission, the risk zone during a set, the observer surface (0 m) to 10 m. Noting the advice of the Scientific shall immediately inform the officer in B3. The vessel shall whilst operating Committee and the desire to resolve line charge of the setting operation who shall under this exemption: weighting issues for autoline vessels in immediately begin firing a bird scaring (i) ensure that all longlines are the Convention Area, and the proposal gas cannon until such time that the weighted to achieve a minimum line to undertake a comprehensive trial to seabird(s) leave the prescribed area. The sink rate of 0.3 m/s at all times; further resolve this issue from Australia gas cannon shall be fired on a (ii) report daily to its national agency and New Zealand in Statistical Subareas randomized cycle with a firing on the achievement of this target; 88.1 and 88.2,Accepting the need to frequency of at least two times every have two specified vessels use longlines (iii) ensure that data collected from three minutes. that will not meet the normal sink rate line sink rate monitoring are recorded in 6. If, on firing the gas cannon three requirements during these trials,Agrees the approved format and submitted to times, seabirds remain in the risk zone, to adopt the following conservation the relevant national agency at the the vessel shall: measure to allow the trials to occur only conclusion of the season. (i) if the seabird(s) is/are an albatross on the specified agreed vessels pursuant B4. A bottle test is to be conducted as (all species) or giant petrel (both to the experimental design put forward described below. species) the vessel shall immediately by the Scientific Committee. In respect deploy external weights on unweighted Bottle Set Up of fishing in Statistical Subareas 88.1 longlines (but not on integrated weight and 88.2, paragraphs 1 and 2 of B5. 10 m of 2 mm multifilament nylon longlines) at such a rate as to achieve a Conservation Measure 25–02, protocols snood twine, or equivalent, is securely 0.3 m/s line sink rate (~5 kg per 50 m) A2, A3, B2, and B3 of Conservation attached to the neck of a 750 ml plastic until such time that the seabird(s) leaves Measure 24–02, paragraph 8 of bottle5 (buoyancy about 0.7 kg) with a the prescribed area; or, alternatively Conservation Measure 41–09, and longline clip attached to the other end. (ii) if the seabird(s) is not a species of paragraph 7 of Conservation Measure The length measurement is taken from albatross or giant petrel, the vessel may 41–10 shall not apply to the FV Janas8 the attachment point (terminal end of continue the trial until such time as the and the FV Avro Chieftain9 whilst these the clip) to the neck of the bottle, and seabird catch limits, for species other vessels comply with the following should be checked by the observer every than in (i) above, prescribed in Annex few days. experimental protocol. 1. The CCAMLR Scientific Observer 24–03/A are reached. B6. Reflective tape should be wrapped or the national observer shall observe all 7. If either the second streamer line around the bottle to allow it to be sets of longlines during the trial (100% described in paragraph 2 above, or the observed at night. A piece of waterproof coverage of sets). gas cannon described in paragraph 6 paper with a unique identifying number 2. Vessels shall deploy two streamer above are not able to be operated, the large enough to be read from a few lines on all sets of longlines during the trials shall cease immediately until such meters away should be placed inside the trial. Streamer lines shall be deployed time as they are able to be deployed bottle. on either side of the longline. The again. Test windward streamer will be of the same 8. If any one of the seabird by-catch specification as that detailed in the limits in Annex 24–03/A is reached, the B7. The bottle is emptied of water, the Appendix to Conservation Measure 25– vessel shall revert to fishing under the stopper is left open and the twine is requirements of Conservation Measure wrapped around the body of the bottle 6 On autolines attach to the backbone; on the 41–09, Conservation Measure 41–10, for setting. The bottle with the encircled Spanish longline system attach to the hookline. Conservation Measure 25–02 and 7 Binoculars will make this process easier to view, Conservation Measure 24–02. 5 A plastic water bottle that has a hard plastic especially in foul weather. The by-catch limits for seabirds 8 screw-on ’stopper’ is needed. The stopper of the Subject to a license being issued by the Flag caught10 during these trials are: bottle is left open so that the bottle will fill with StateANNEX 24–03/A water after being pulled under water. This allows 9 Where the number of birds caught is defined in the plastic bottle to be re-used rather than being SC-CAMLR-XXII, Annex 5, paragraphs 6.214 to 10 Subject to a license being issued by the Flag crushed by water pressure. 6.217. StateANNEX 24–03/A

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(i) 50 Antarctic petrels; and/or night, only the minimum ship’s lights attachment point to the vessel such that (ii) 20 individuals of all other non- necessary for safety shall be used. in crosswinds the aerial extent of the albatross or non-giant petrel species; 5. The dumping of offal is prohibited streamer line is over the hookline. and/or while longlines are being set. The 4. Branched streamers, each (iii) any one of either of the giant dumping of offal during the haul shall comprising two strands of a minimum petrel species or any one of any be avoided. Any such discharge shall of 3 mm diameter brightly colored albatross species. take place only on the opposite side of plastic tubing6 or cord, shall be attached CONSERVATION MEASURE 25–02 the vessel to that where longlines are no more than 5 m apart commencing 5 (2003)11,12 hauled. For vessels or fisheries where m from the point of attachment of the there is not a requirement to retain offal streamer line to the vessel and thereafter Minimization of the Incidental Mortality on board the vessel, a system shall be along the aerial extent of the line. of Seabirds in the Course of Longline implemented to remove fish hooks from Streamer length shall range between Fishing or Longline Fishing Research in offal and fish heads prior to discharge. minimums of 6.5 m from the stern to 1 the Convention Area 6. Vessels which are so configured m for the seaward end. When a streamer The Commission, that they lack on-board processing line is fully deployed, the branched Noting the need to reduce the facilities or adequate capacity to retain streamers should reach the sea surface incidental mortality of seabirds during offal on board, or the ability to discharge in the absence of wind and swell. longline fishing by minimizing their offal on the opposite side of the vessel Swivels or a similar device should be attraction to fishing vessels and by to that where longlines are hauled, shall placed in the streamer line insuch a way preventing them from attempting to not be authorized to fish in the as to prevent streamers being twisted seize baited hooks, particularly during Convention Area. around the streamer line. Each branched the period when the lines are set, and 7. A streamer line shall be deployed streamer may also have a swivel or other Recognizing that in certain subareas and during longline setting to deter birds device at its attachment point to the divisions of the Convention Area there from approaching the hookline. streamer line to prevent fouling of is also a high risk that seabirds will be Specifications of the streamer line and individual streamers. caught during line hauling, its method of deployment are given in 5. Vessels are encouraged to deploy a Adopts the following measures to the appendix to this measure. second streamer line such that streamer reduce the possibility of incidental 8. A device designed to discourage lines are towed from the point of mortality of seabirds during longline birds from accessing baits during the attachment each side of the hookline. fishing. haul of longlines shall be employed in The leeward streamer line should be of 1. Fishing operations shall be those areas defined by CCAMLR as similar specifications (in order to avoid conducted in such a way that average-to-high or high (Level of Risk 4 entanglement the leeward streamer line 13 hooklines sink beyond the reach of or 5) in terms of risk of seabird by-catch. may need to be shorter) and deployed seabirds as soon as possible after they These areas are currently Subareas 48.3, from the leeward side of the hookline. are put in the water. 58.6 and 58.7 and Divisions 58.5.1 and 2. Vessels using autoline systems 58.5.2. CONSERVATION MEASURE 25–03 should add weights to the hookline or 9. Every effort should be made to (2003)16 use integrated weight hooklines while ensure that birds captured alive during Minimization of the Incidental Mortality deploying longlines. Integrated weight longlining are released alive and that of Seabirds and Marine Mammals in the (IW) longlines of a minimum of 50 g/m wherever possible hooks are removed Course of Trawl Fishing in the or attachment to non-IW longlines of 5 without jeopardizing the life of the bird Convention Area kg weights at 50 to 60 m intervals are concerned. recommended. The Commission, 3. Vessels using the Spanish method APPENDIX TO CONSERVATION Noting the need to reduce the of longline fishing should release MEASURE 25–02 incidental mortality of or injury to weights before line tension occurs; 1. The aerial extent of the streamer seabirds and marine mammals from weights of at least 8.5 kg mass shall be line, which is the part of the line fishing operations, used, spaced at intervals of no more supporting the streamers, is the effective Adopts the following measures to than 40 m, or weights of at least 6 kg seabird deterrent component of a reduce the incidental mortality of or mass shall be used, spaced at intervals streamer line. Vessels are encouraged to injury to seabirds and marine mammals of no more than 20 m. optimize the aerial extent and ensure during trawl fishing. 4. Longlines shall be set at night only that it protects the hookline as far 1. The use of net monitor cables on (i.e. during the hours of darkness eastern of the vessel as possible, even in vessels in the CCAMLR Convention between the times of nautical crosswinds. Area is prohibited. twilight14,15. During longline fishing at 2. The streamer line shall be attached 2. Vessels operating within the to the vessel such that it is suspended Convention Area should at all times 11 Except for waters adjacent to the Kerguelen and arrange the location and level of lighting Crozet Islands from a point a minimum of 7 m above 12 Except for waters adjacent to the Prince Edward the water at the stern on the windward so as to minimize illumination directed Islands side of the point where the hookline out from the vessel, consistent with the 13 Hookline is defined as the groundline or enters the water. safe operation of the vessel. mainline to which the baited hooks are attached by 3. The streamer line shall be a 3. The discharge of offal shall be snoods. minimum of 150 m in length and prohibited during the shooting and 14 The exact times of nautical twilight are set forth in the Nautical Almanac tables for the relevant include an object towed at the seaward hauling of trawl gear. latitude, local time and date. A copy of the end to create tension to maximize aerial 4. Nets should be cleaned prior to algorithm for calculating these times is available coverage. The object towed should be shooting to remove items that might from the Secretariat. All times, whether for ship operations or observer reporting, shall be referenced maintained directly behind the attract birds. to GMT. 15 Wherever possible, setting of lines should be reduce loss of bait to/catches of white-chinned 16 Except for waters adjacent to the Kerguelen and completed at least three hours before sunrise (to petrels). Crozet Islands

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5. Vessels should adopt shooting and east of 79°20’E and outside the EEZ to subarea is carried out, its results hauling procedures that minimize the the west of 79°20’E from 1 December reported to and analyzed by the time that the net is lying on the surface 2003. This prohibition shall apply until Working Group on Fish Stock of the water with the meshes slack. Net at least such time that a survey of the Assessment (WG-FSA) and a decision maintenance should, to the extent Dissostichus eleginoides stock in this that the fishery be reopened is made by possible, not be carried out with the net division is carried out, its results the Commission based on the advice of in the water. reported to and analyzed by the the Scientific Committee; or a research 6. Vessels should be encouraged to Working Group on Fish Stock plan for an exploratory fishery is develop gear configurations that will Assessment and a decision that the submitted and approved by the minimize the chance of birds fishery be reopened is made by the Scientific Committee consistent with encountering the parts of the net to Commission based on the advice of the Conservation Measure 24–01. which they are most vulnerable. This Scientific Committee. CONSERVATION MEASURE 33–02 could include increasing the weighting CONSERVATION MEASURE 32–15 (2003) or decreasing the buoyancy of the net so (2003) that it sinks faster, or placing colored Limitation of By-catch in Statistical streamers or other devices over Prohibition of Directed Fishing for Division 58.5.2 in the 2003/04 Season particular areas of the net where the Dissostichus spp. in Statistical Subarea 1. There shall be no directed fishing mesh sizes create a particular danger to 88.2 North of 65° South for any species other than Dissostichus birds. Taking of Dissostichus spp., other eleginoides and Champsocephalus CONSERVATION MEASURE 32–09 than for scientific research purposes in gunnari in Statistical Division 58.5.2 in (2003) accordance with Conservation Measure the 2003/04 fishing season. 24–01, is prohibited in Statistical 2. In directed fisheries in Statistical Prohibition of Directed Fishing for Subarea 88.2 north of 65° South from 1 Division 58.5.2 in the 2003/04 season, Dissostichus spp. Except in accordance December 2003. This prohibition shall the by-catch of Channichthys with Specific Conservation Measures in apply until at least such time that a rhinoceratus shall not exceed 150 tons, the 2003/04 SeasonThe Commission survey of the Dissostichus spp. stock in the by-catch of Lepidonotothen hereby adopts the following this subarea is carried out, its results squamifrons shall not exceed 80 tons, conservation measure in accordance reported to and analyzed by the the by-catch of Macrourus spp. shall not with Article IX of the Convention: Working Group on Fish Stock exceed 360 tons and the by-catch of Directed fishing for Dissostichus spp. Assessment (WG-FSA) and a decision skates and rays shall not exceed 120 in Statistical Subarea 48.5 is prohibited tons. For the purposes of this measure, that the fishery be reopened is made by from 1 December 2003 to 30 November ’Macrourus spp.’ and ’skates and rays’ the Commission based on the advice of 2004. should each be counted as a single the Scientific Committee. species. CONSERVATION MEASURE 32–13 CONSERVATION MEASURE 32–16 3. The by-catch of any fish species not (2003) (2003) mentioned in paragraph 2, and for Prohibition of Directed Fishing for which there is no other catch limit in Dissostichus eleginoidesin Statistical Prohibition of Directed Fishing for force, shall not exceed 50 tons in Division 58.5.1 outside Areas of Dissostichus spp. in Statistical Subarea Statistical Division 58.5.2. National JurisdictionTaking of 88.3 4. If, in the course of a directed Dissostichus eleginoides, other than for Taking of Dissostichus spp., other fishery, the by-catch in any one haul of scientific research purposes in than for scientific research purposes in Channichthys rhinoceratus, accordance with Conservation Measure accordance with Conservation Measure Lepidonotothen squamifrons, 24–01, is prohibited in Statistical 24–01, is prohibited in Statistical Macrourus spp. or skates and rays is Division 58.5.1 outside areas of national Subarea 88.3 from 1 December 2003. equal to, or greater than 2 tons, then the jurisdiction from 1 December 2003. This This prohibition shall apply until at fishing vessel shall not fish using that prohibition shall apply until at least least such time that a survey of the method of fishing at any point within 5 such time that a survey of the Dissostichus spp. stock in this subarea n miles17 of the location where the by- Dissostichus eleginoides stock in this is carried out, its results reported to and catch exceeded 2 tons for a period of at division is carried out, its results analyzed by the Working Group on Fish least five days18. The location where the reported to and analyzed by the Stock Assessment (WG-FSA) and a by-catch exceeded 2 tons is defined as Working Group on Fish Stock decision that the fishery be reopened is the path followed by the fishing vessel Assessment and a decision that the made by the Commission based on the from the point at which the fishing gear fishery be reopened is made by the advice of the Scientific Committee. was first deployed from the fishing Commission based on the advice of the vessel to the point at which the fishing CONSERVATION MEASURE 32–17 Scientific Committee. gear was retrieved by the fishing vessel. (2003) 5. If, in the course of a directed CONSERVATION MEASURE 32–14 Prohibition of Directed Fishing for fishery, the by-catch in any one haul of (2003) Electrona carlsbergi in Statistical any other by-catch species for which by- Prohibition of Directed Fishing for Subarea 48.3 catch limitations apply under this conservation measure is equal to, or Dissostichus eleginoides in Statistical Taking of Electrona carlsbergi, other Division 58.5.2 East of 79°20’E and than for scientific research purposes in 17 outside the EEZ to the West of 79°20’E This provision concerning the minimum accordance with Conservation Measure distance separating fishing locations is adopted Taking of Dissostichus eleginoides, 24–01, is prohibited in Statistical pending the adoption of a more appropriate other than for scientific research Subarea 48.3 from 1 December 2003. definition of a fishing location by the Commission. 18The specified period is adopted in accordance purposes in accordance with This prohibition shall apply until at with the reporting period specified in Conservation Conservation Measure 24–01, is least such time that a survey of the Measure 23–01, pending the adoption of a more prohibited in Statistical Division 58.5.2 Electrona carlsbergi stock in this appropriate period by the Commission.

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greater than 1 ton, then the fishing the point at which the fishing gear was catch limit, and of the closure of that vessel shall not fish using that method retrieved by the fishing vessel. SSRU when that limit is reached. Upon of fishing at any point within 5 n such notification from the Secretariat, CONSERVATION MEASURE 41–01 miles19 of the location where the by- all fishing gear shall be hauled (2003) 24,25 catch exceeded 1 ton for a period of at immediately. No part of a trawl path least five days20. The location where the General Measures for Exploratory may lie within a closed SSRU and no by-catch exceeded 1 ton is defined as Fisheries for Dissostichus spp. in the part of a longline may be set within a the path followed by the fishing vessel Convention Area in the 2003/04 Season closed SSRU. from the point at which the fishing gear The Commission hereby adopts the 4. The by-catch in each exploratory was first deployed from the fishing following conservation measure: fishery shall be regulated as in vessel to the point at which the fishing 1. This conservation measure applies Conservation Measure 33–03. gear was retrieved by the fishing vessel. to exploratory fisheries using the trawl 5. The total number and weight of or longline methods except for such Dissostichus eleginoides and CONSERVATION MEASURE 33–03 Dissostichus mawsoni discarded, (2003)21 fisheries where the Commission has given specific exemptions to the extent including those with the ‘jellymeat’ Limitation of By-catch in New and of those exemptions. In trawl fisheries, condition, shall be reported. 6. Each vessel participating in the Exploratory Fisheries in the 2003/04 a haul comprises a single deployment of exploratory fisheries for Dissostichus Season the trawl net. In longline fisheries, a spp. during the 2003/04 season shall 1. This conservation measure applies haul comprises the setting of one or have one scientific observer appointed to new and exploratory fisheries in all more lines in a single location. in accordance with the CCAMLR areas containing small-scale research 2. Fishing should take place over as Scheme of International Scientific units (SSRUs) in the 2003/04 season large a geographical and bathymetric Observation, and where possible one except where specific by-catch range as possible to obtain the additional scientific observer, on board conservation measures apply. information necessary to determine throughout all fishing activities within 2. The catch limits for all by-catch fishery potential and to avoid over- concentration of catch and effort. To the fishing season. species are set out in Annex 33–03/A. 7. The Data Collection Plan (Annex this end, fishing in any small-scale Within these catch limits, the total catch 41–01/A), Research Plan (Annex 41–01/ research unit (SSRU) shall cease when of by-catch species in any SSRU shall B) and Tagging Program (Annex 41–01/ the reported catch reaches the specified not exceed the following limits: C) shall be implemented. Data collected • catch limit 26 and that SSRU shall be skates and rays 5% of the catch limit pursuant to the Data Collection and closed to fishing for the remainder of of Dissostichus spp. or 50 tons Research Plans for the period up to 31 the season. whichever is greater; August 2004 shall be reported to • 3. In order to give effect to paragraph Macrourus spp 16% of the catch CCAMLR by 30 September 2004 so that limit for Dissostichus spp. or 20 tons, 2 above: (i) the precise geographic position of the data will be available to the meeting whichever is greater; of the Working Group on Fish Stock • a haul in trawl fisheries will be all other species combined 20 tons. Assessment (WG-FSA) in 2004. Such 3. For the purposes of this measure determined by the mid-point of the path between the start-point and end-point of data taken after 31 August shall be ’Macrourus spp.’ and ’skates and rays’ reported to CCAMLR not later than should each be counted as a single the haul for the purposes of catch and effort reporting; three months after the closure of the species. fishery, but, where possible, submitted 4. If the by-catch of any one species (ii) the precise geographic position of a haul/set in longline fisheries will be in time for theconsideration of WG-FSA. is equal to or greater than 1 ton in any 8. Members who choose not to one haul or set, then the fishing vessel determined by the center-point of the line or lines deployed for the purposes participate in the fishery prior to the shall move to another location at least commencement of the fishery shall 5 n miles22 distant. The fishing vessel of catch and effort reporting; (iii) the vessel will be deemed to be inform the Secretariat of changes in shall not return to any point within 5 n their plans no later than one month miles of the location where the by-catch fishing in any SSRU from the beginning of the setting process until the before the start of the fishery. If, for exceeded 1 ton for a period of at least whatever reason, Members are unable to five days23. The location where the by- completion of the hauling of all lines; (iv) catch and effort information for participate in the fishery, they shall catch exceeded 1 ton is defined as the inform the Secretariat no later than one path followed by the fishing vessel from each species by SSRU shall be reported to the Executive Secretary every five week after finding that they cannot the point at which the fishing gear was participate. The Secretariat will inform first deployed from the fishing vessel to days using the Five-Day Catch and Effort Reporting System set out in all Contracting Parties immediately after Conservation Measure 23–01; such notification is received. 19 Except for waters adjacent to the Kerguelen and Crozet Islands (v) the Secretariat shall notify ANNEX 41–01/A 20 Contracting Parties participating in The specified period is adopted in accordance DATA COLLECTION PLAN FOR with the reporting period specified in Conservation these fisheries when the total catch for Measure 23–01, pending the adoption of a more Dissostichus eleginoides and EXPLORATORY FISHERIES appropriate period by the Commission Dissostichus mawsoni combined in any 1. All vessels will comply with the 21 Except for waters adjacent to the Kerguelen and Crozet Islands SSRU is likely to reach the specified Five-day Catch and Effort Reporting 22 This provision concerning the minimum System (Conservation Measure 23–01) distance separating fishing locations is adopted 24 Except for waters adjacent to the Kerguelen and and Monthly Fine-scale Catch, Effort pending the adoption of a more appropriate Crozet Islands and Biological Data Reporting Systems definition of a fishing location by the Commission. 25 Except for waters adjacent to the Prince Edward (Conservation Measures 23–04 and 23– 23 The specified period is adopted in accordance Islands with the reporting period specified in Conservation 26 Unless otherwise specified, the catch limit for 05). Measure 23–01, pending the adoption of a more Dissostichus spp. shall be 100 tons in any SSRU 2. All data required by the CCAMLR appropriate period by the Commission. except in respect of Subarea 88.2. Scientific Observers Manual for finfish

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fisheries will be collected. These ’third series’ which will result in a total although larger toothfish should be include: of 20 research hauls being made in all tagged if necessary in order to meet the (i) position, date and depth at the start three series. The third series of hauls tagging requirement of one toothfish per and end of every haul; shall be completed during the same visit ton of green weight catch. All released (ii) haul-by-haul catch and catch per as the first and second series in a SSRU. toothfish should be double-tagged and effort by species; (iv) On completion of 20 research releases should cover as broad a (iii) haul-by-haul length frequency of hauls the vessel may continue to fish geographical area as possible. common species; within the SSRU. (iii) All tags shall be clearly imprinted (iv) sex and gonad state of common (v) In SSRUs A, B, C, E, and G in with a unique serial number and a species; Statistical Subarea 88.1 where fishable return address so that the origin of tags (v) diet and stomach fullness; seabed area is less that 15 000km2, can be traced in the case of recapture of (vi) scales and/or otoliths for age paragraphs 3(ii), 3(iii) and 3(iv) do not the tagged toothfish. All relevant tag determination; apply and on completion of 10 research data and any tag recaptures of toothfish (vii) number and mass by species of hauls the vessel may continue to fish in the fishery shall be reported by-catch of fish and other organisms; within the SSRU. electronically to the CCAMLR Data (viii) observation on occurrence and 4. To be designated as a research haul: Manager within two months of the (i) each research haul must be incidental mortality of seabirds and vessel departing these fisheries. mammals in relation to fishing separated by not less than 5 n miles operations. from any other research haul, distance CONSERVATION MEASURE 41–02 3. Data specific to longline fisheries to be measured from the geographical (2003) mid-point of each research haul; will be collected. These include: Limits on the Fishery for Dissostichus (i) position and sea depth at each end (ii) each haul shall comprise: for longlines, at least 3 500 hooks and no eleginoides in Statistical Subarea 48.3 of every line in a haul; in the 2003/04 Season (ii) setting, soak, and hauling times; more than 10 000 hooks; this may (iii) number and species of fish lost at comprise a number of separate lines set The Commission hereby adopts the surface; in the same location; for trawls, at least following conservation measure in (iv) number of hooks set; 30 minutes effective fishing time as accordance with Conservation Measure (v) bait type; defined in the Draft Manual for Bottom 31–01: (vi) baiting success (%); Trawl Surveys in the Convention Area Access 1. The fishery for Dissostichus (vii) hook type; (SC-CAMLR-XI), eleginoides in Statistical Subarea 48.3 (viii) sea and cloud conditions and Annex 5, Appendix H, Attachment E, shall be conducted by vessels using phase of the moon at the time of setting paragraph 4); longlines and pots only.Catch limit 2. the lines. The total catch of Dissostichus (iii) each haul of a longline shall have eleginoides in Statistical Subarea 48.3 in ANNEX 41–01/B a soak time of not less than six hours, the 2003/04 season shall be limited to measured from the time of completion RESEARCH PLAN FOR EXPLORATORY 4 420 tons.Season 3. For the purpose of of the setting process to the beginning FISHERIES the longline fishery for Dissostichus of the hauling process. 1. Activities under this research plan 5. All data specified in the Data eleginoides in Statistical Subarea 48.3, shall not be exempted from any Collection Plan (Annex 41–01/A) of this the 2003/04 season is defined as the conservation measure in force. conservation measure shall be collected period from 1 May to 31 August 2004, 2. This plan applies to all small-scale for every research haul; in particular, all or until the catch limit is reached, research units (SSRUs) as defined in fish in a research haul up to 100 fish are whichever is sooner. For the purpose of Table 1 and Figure 1. to be measured and at least 30 fish the pot fishery for Dissostichus 3. Any vessel undertaking prospecting sampled for biological studies eleginoides in Statistical Subarea 48.3, or commercial fishing in any SSRU (paragraphs 2(iv) to 2(vi) of Annex 41– the 2003/04 season is defined as the must undertake the following research 01/A)). Where more than 100 fish are period from 1 December 2003 to 30 activities: caught, amethod for randomly November 2004, or until the catch limit (i) On first entry into a SSRU, the first subsampling the fish should be applied. is reached, whichever is sooner. The 10 hauls, designated ’first series’, season for longline fishing operations whether by trawl or longline, shall be ANNEX 41–01/C may be extended to 14 September 2004 designated ’research hauls’ and must TAGGING PROGRAM FOR for any vessel which has demonstrated satisfy the criteria set out in paragraph EXPLORATORY FISHERIES full compliance with Conservation 4. Measure 25–02 in the 2002/03 season. (i) Each longline vessel participating (ii) The next 10 hauls, or 10 tons of This extension to the season will also be in exploratory fisheries for Dissostichus catch for longlining, whichever trigger subject to a catch limit of three (3) spp. shall tag and release 27Dissostichus level is achieved first, or 10 tons of seabirds per vessel. If three seabirds are spp. at a rate of one toothfish per ton of catch for trawling, are designated the caught during the season extension, green weight catch throughout the ’second series’. Hauls in the second fishing shall cease immediately for that season. Vessels shall only discontinue series can, at the discretion of the vessel. By-catch 4. The by-catch of crab tagging after they have tagged 500 master, be fished as part of normal shall be counted against the catch limit toothfish, or leave the fishery having exploratory fishing. However, provided in the crab fishery in Statistical Subarea tagged one toothfish per ton of green they satisfy the requirements of 48.3. weight caught. paragraph 4, these hauls can also be 5. The by-catch of finfish in the (ii) The program should target small designated as research hauls. fishery for Dissostichus eleginoides in toothfish under 100 cm in total length, (iii) On completion of the first and Statistical Subarea 48.3 in the 2003/04 second series of hauls, if the master 27 In accordance with the CCAMLR Tagging season shall not exceed 221 tons for wishes to continue to fish within the Protocol for exploratory fisheries which is available skates and rays and 221 tons for SSRU, the vessel must undertake a from theSecretariat. Macrourus spp. For the purpose of these

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by-catch limits, skates and rays shall be CONSERVATION MEASURE 41–04 on board throughout all fishing counted as a single species. (2003) activities within the fishing period. 6. If the by-catch of any one species Data: Limits on the Exploratory Fishery for catch/effort is equal to or greater than 1 ton in any Dissostichus spp. in Statistical Subarea 9. For the purpose of implementing one haul or set, then the fishing vessel 48.6 in the 2003/04 Season this conservation measure in the 2003/ shall move to another location at least The Commission hereby adopts the 04 5 n miles1 distant. The fishing vessel following conservation measure in season, the following shall apply: shall not return to any point within 5 n accordance with Conservation Measure (i) the Five-day Catch and Effort miles of the location where the by-catch 21–02: Reporting System set out in exceeded 1 ton for a period of at least Access 1. Fishing for Dissostichus Conservation Measure 23–01; five days2. The location where the by- spp. in Statistical Subarea 48.6 shall be (ii) the Monthly Fine-scale Catch and catch exceeded 1 ton is defined as the limited to the exploratory longline Effort Reporting System set out path followed by the fishing vessel from fishery by Argentina, Japan, Namibia, in Conservation Measure 23–04. Fine- the point at which the fishing gear was New Zealand, Spain and South Africa. scale data shall be submitted on a haul- first deployed from the fishing vessel to The fishery shall be conducted by by-haul basis. 10. For the purpose of Conservation the point at which the fishing gear was Argentine, Japanese, Namibian, New Zealand, Spanish and South African Measures 23–01 and 23–04, the target retrieved by the fishing species is Dissostichus spp. and by- vessel.Mitigation 7. The operation of flagged vessels using longlines only. No more than one vessel per country shall catch species are defined as any species this fishery shall be carried out in other than Dissostichus spp. accordance with Conservation Measure fish at any one time. Catch limit 2. The total catch of Data: 25–02 so as to minimize the incidental Dissostichus spp. in Statistical Subarea biological mortality of seabirds in the course of 48.6 in the 2003/04 season shall not 11. Fine-scale biological data, as fishing. Observers 8. Each vessel exceed a precautionary catch limit of required under Conservation Measure participating in this fishery shall have at 455 tons north of 60°S and 455 tons 23–05, shall be collected and recorded. least one scientificobserver appointed in south of 60°S. Such data shall be reported in accordance with the CCAMLR Scheme Season 3. For the purpose of the accordance with the Scheme of of International Scientific Observation, exploratory longline fishery for International Scientific Observation. and where possible one additional Dissostichus spp. in Statistical Subarea Research scientific observer, on board throughout 48.6, the 2003/04 season is defined as 12. Each vessel participating in this all fishing activities within the fishing the period from 1 March to 31 August exploratory fishery shall conduct period.Data: catch/effort 2004 north of 60°S and the period from fishery-based research in accordance 15 February to 15 October 2004 south of 9. For the purpose of implementing with the Research Plan and Tagging 60°S. In the event that either limit is this conservation measure in the 2003/ Program described in Conservation reached, the relevant fishery shall be 04 season, the following shall apply: Measure 41–01, Annex B and Annex C closed.By-catch 4. The by-catch in this respectively. (i) the Five-day Catch and Effort fishery shall be regulated as set out in Reporting System set out in Conservation Measure 33–03. CONSERVATION MEASURE 41–05 Conservation Measure 23–01; Mitigation 5. The exploratory longline (2003) fishery for Dissostichus spp. in (ii) the Monthly Fine-scale Catch and Limits on the Exploratory Fishery for Effort Reporting System set out in Statistical Subarea 48.6 shall be carried out in accordance with the provisions of Dissostichus spp. in Statistical Division Conservation Measure 23–04. Fine-scale 58.4.2 in the 2003/04 Season data shall be submitted on a haul-by- Conservation Measure 25–02, except The Commission hereby adopts the haul basis. paragraph 3 (night setting). Prior to entry into force of the license and prior following conservation measure in 10. For the purpose of Conservation to entering the Convention Area, each accordance with Conservation Measure Measures 23–01 and 23–04, the target vessel shall demonstrate its capacity to 21–02, and notes that this measure species is Dissostichus eleginoides and comply with experimental line- would be for one year and that data by-catch species are defined as any weighting trials as approved by the arising from these activities would be species other than Dissostichus Scientific Committee and described in reviewed by the Scientific Committee in eleginoides. Conservation Measure 24–02 and such 2004: 11. The total number and weight of data shall be reported to the Secretariat Access 1. Fishing for Dissostichus Dissostichus eleginoides discarded, immediately. spp. in Statistical Division 58.4.2 shall be limited to the exploratory longline including those with the ’jellymeat’ 6. Longlines may be set during fishery by Argentina, Australia, Ukraine, condition, shall be reported. These fish daylight hours only if the vessels are demonstrating a consistent minimum Russia and the USA. The fishery shall will count towards the total allowable line sink rate of 0.3 m/s. Any vessel be conducted by Argentine, Australian, catch. catching a total of three (3) seabirds Ukrainian, Russian and US flagged Data: shall immediately revert to night setting vessels using longlines only.Catch limit biological in accordance with Conservation 2. The total catch of Dissostichus spp. in Measure 25–02. Statistical Division 58.4.2 in the 2003/ 12. Fine-scale biological data, as 7. There shall be no offal discharge in 04 season shall not exceed a required under Conservation Measure this fishery.Observers 8. Each vessel precautionary catch limit of 500 tons, of 23–05, shall be collected and recorded. participating in the fishery shall have at which no more 100 tons shall be taken Such data shall be reported in least two scientific observers, one of in any one of the five small-scale accordance with the Scheme of whom shall be an observer appointed in research units (SSRUs) defined in International Scientific Observation. accordance with the CCAMLR Scheme Conservation Measure 41–01, Annex B of International Scientific Observation, for Division 58.4.2.

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3. In order to distribute effort demonstrate its capacity to comply with accordance with Conservation Measure throughout the division, to ensure that experimental line-weighting trials as 21–02: sufficient data are collected from approved by the Scientific Committee Access 1. Fishing for Dissostichus toothfish populations in various areas, and described in Conservation Measure spp. on Elan Bank (Statistical Division and also to afford some protection to the 24–02 and such data shall be reported 58.4.3a) outside areas of national benthic communities, either the eastern to the Secretariat immediately. jurisdiction shall be limited to the or western half (5° of longitude) of each 10. In Statistical Division 58.4.2, exploratory fishery by Argentina, SSRU in which fishing takes place will longlines may be set during daylight Australia, Ukraine, Russia and the USA. be defined as ’open’ at the discretion of hours only if the vessel demonstrates a The fishery shall be conducted by a ’designating vessel’s’ master according consistent minimum line sink rate of 0.3 Argentine, Australian, Ukrainian, to the actions specified below. The other m/s in accordance with Conservation Russian and US flagged vessels using half of the SSRU shall remain closed to Measure 24–02. Should a total of three longlines only and one Australian fishing. (3) seabirds be caught, the vessel shall flagged vessel using trawl only. No more 4. On entry to an SSRU a vessel must: immediately revert to night setting in than one vessel per country shall fish at (i) notify the Secretariat that is has accordance with Conservation Measure any one time.Catch limit 2. The total entered that SSRU with an intention to 25–02. catch of Dissostichus spp. on Elan Bank fish before exiting; 11. There shall be no offal discharge (StatisticalDivision 58.4.3a) outside (ii) seek notification from the in this fishery.Observers 12. Each vessel areas of national jurisdiction in the Secretariat of which half of the SSRU is participating in the fishery shall have at 2003/04 season shall not exceed a open or that the SSRU remains to be least two scientific observers, one of precautionary catch limit of 250 tons. designated according to the steps below; whom shall be an observer appointed in Season 3. For the purpose of the (iii) determine from the Secretariat accordance with the CCAMLR Scheme exploratory longline fishery for whether it is the first vessel to enter that of International Scientific Observation, Dissostichus spp. on Elan Bank SSRU and therefore establishes a on board throughout all fishing (Statistical Division 58.4.3a) outside ’designating vessel right’ to determine activities within the fishing areas of national jurisdiction, the 2003/ which half of the SSRU will be open; period.Research 13. Each vessel 04 season is defined as the period from (iv) should the vessel be the participating in this exploratory fishery 1 May to 31 August 2004, or until the ’designating vessel’ in that SSRU then shall conduct fishery-based research in catch limit is reached, whichever is (a) it should choose which half is to accordance with the Research Plan and sooner. 4. For the purpose of the trawl fishery be open; Tagging Program described in for Dissostichus spp. on Elan (b) immediately notify the Secretariat Conservation Measure 41–01, Annex B Bank(Statistical Division 58.4.3a) of its choice prior to its first line being and Annex C respectively. outside areas of national jurisdiction, set; Data: the 2003/04 season is defined as the (v) if a ’designating vessel’ for an catch/effort period from 1 December 2003 to 30 SSRU exits that SSRU without fishing 14. For the purpose of implementing November 2004, or until the catch limit then it should notify immediately the this conservation measure in the 2003/ is reached, whichever is sooner.By- Secretariat and forfeit the right as a 04 season, the following shall apply: ’designating vessel’ for that SSRU; (i) the Five-day Catch and Effort catch 5. The by-catch in this fishery (vi) if the vessel is not the ’designating Reporting System set out in shall be regulated as set out in vessel’ then it must not fish until the Conservation Measure 23–01; Conservation Measure 33–03. Mitigation 6. The operation of this ’designating vessel’ has selected the half (ii) the Monthly Fine-scale Catch and fishery shall be carried out in of the SSRU to be opened. Season 5. For Effort Reporting System set out in accordance with Conservation Measure the purpose of the exploratory longline Conservation Measure 23–04. Fine-scale 25–02 so as to minimize the incidental fishery for Dissostichus spp. in data shall be submitted on a haul-by- mortality of seabirds in the course of Statistical Division 58.4.2, the 2003/04 haul basis. fishing. season is defined as the period from 1 15. For the purpose of Conservation December 2003 to 30 November 2004. 7. The fishery on Elan Bank Measures 23–01 and 23–04, the target (Statistical Division 58.4.3a) outside Fishing operations species is Dissostichus spp. and by- areas ofnational jurisdiction, may take catch species are defined as any species 6. The exploratory longline fishery for place outside the prescribed season other than Dissostichus spp. Dissostichus spp. in Division 58.4.2 (paragraph 3) provided that, prior to Data: shall be carried out in accordance with entry into force of the license and prior biological the provisions of Conservation Measure to entering the Convention Area, each 16. Fine-scale biological data, as 41–01, except paragraph 6. vessel shall demonstrate its capacity to required under Conservation Measure 7. Fishing will be prohibited in comply with experimental line- 23–05, shall be collected and recorded. depths less than 550 m in order to weighting trials as approved by the Such data shall be reported in protect benthic communities. By-catch Scientific Committee and described in accordance with the Scheme of 8. The by-catch in this fishery shall be Conservation Measure 24–02 and such International Scientific Observation. regulated as set out in Conservation data shall be reported to the Secretariat Measure 33–03. CONSERVATION MEASURE 41–06 immediately. Mitigation 9. The exploratory longline (2003) 8. Should a total of three (3) seabirds fishery for Dissostichus spp. in be caught by a vessel outside the normal Statistical Division 58.4.2 shall be Limits on the Exploratory Fishery for season (defined in paragraph 3), the carried out in accordance with the Dissostichus spp. on Elan Bank vessel shall cease fishing immediately provisions of Conservation Measure 25– (Statistical Division 58.4.3a) outside and shall not be permitted to fish 02, except paragraph 3 (night setting) Areas of National Jurisdiction in the outside the normal fishing season for shall not apply. Prior to entry into force 2003/04 Season the remainder of the 2003/04 fishing of the license and prior to entering the The Commission hereby adopts the season.Observers 9. Each vessel Convention Area, each vessel shall following conservation measure in participating in this fishery shall have at

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least one scientific observer appointed (Statistical Division 58.4.3b) outside (i) the Five-day Catch and Effort in accordance with the CCAMLR areas of national jurisdiction in the Reporting System set out in Scheme of International Scientific 2003/04 season shall not exceed a Conservation Measure 23–01; Observation, and where possible one precautionary catch limit of 300 tons. (ii) the Monthly Fine-scale Catch and additional scientific observer, on board Season 3. For the purpose of the Effort Reporting System set out in throughout all fishing activities within exploratory longline fishery for Conservation Measure 23–04. Fine-scale the fishing period. Dissostichus spp. on BANZARE Bank data shall be submitted on a haul-by- Data: (Statistical Division 58.4.3b) outside haul basis. catch/effort areas of national jurisdiction, the 2003/ 10. For the purpose of Conservation 10. For the purpose of implementing 04 season is defined as the period from Measures 23–01 and 23–04, the target this conservation measure in the 2003/ 1 May to 31 August 2004, or until the species is Dissostichus spp. and by- 04 season, the following shall apply: catch limit is reached, whichever is catch species are defined as any species (i) the Five-day Catch and Effort sooner. other than Dissostichus spp. Reporting System set out in 4. For the purpose of the trawl fishery Data: Conservation Measure 23–01; for Dissostichus spp. on BANZARE biological (ii) the Monthly Fine-scale Catch and Bank (Statistical Division 58.4.3b) 11. Fine-scale biological data, as Effort Reporting System set out in outside areas of national jurisdiction, required under Conservation Measure Conservation Measure 23–04. Fine-scale the 2003/04 season is defined as the 23–05, shall be collected and recorded. data shall be submitted on a haul-by- period from 1 December 2003 to 30 Such data shall be reported in haul basis. November 2004, or until the catch limit accordance with the Scheme of 11. For the purpose of Conservation is reached, whichever is sooner.By- International Scientific Observation. Measures 23–01 and 23–04, the target catch 5. The by-catch in this fishery Research 12. Each vessel participating species is Dissostichus spp. and by- shall be regulated as set out in in this exploratory fishery shall conduct catch species are defined as any species Conservation Measure 33–03. fishery based research in accordance with the Research Plan and Tagging other than Dissostichus spp. Mitigation 6. The operation of this Program described in Conservation Data: fishery shall be carried out in Measure 41–01, Annex B and Annex C biological accordance with Conservation Measure respectively. 12. Fine-scale biological data, as 25–02 so as to minimize the incidental required under Conservation Measure mortality of seabirds in the course of CONSERVATION MEASURE 41–08 23–05, shall be collected and recorded. fishing. (2003) Such data shall be reported in accordance with the Scheme of 7. The fishery on BANZARE Bank Limits on the fishery for Dissostichus International Scientific Observation. (Statistical Division 58.4.3b) outside eleginoides in Statistical Division 58.5.2 areas of national jurisdiction, may take in the 2003/04 Season Research place outside the prescribed season (paragraph 3) provided that, prior to Access 1. The fishery for Dissostichus 13. Each vessel participating in this eleginoides in Statistical Division 58.5.2 exploratory fishery shall conduct fishery entry into force of the license and prior to entering the Convention Area, each shall be conducted by vessels using based research in accordance with the trawls or longlines only.Catch limit 2. Research Plan and Tagging Program vessel shall demonstrate its capacity to comply with experimental line- The total catch of Dissostichus described in Conservation Measure 41– eleginoides in Statistical Division 58.5.2 01, Annex B and Annex C respectively. weighting trials as approved by the Scientific Committee and described in in the 2003/04 season shall be limited ° CONSERVATION MEASURE 41–07 Conservation Measure 24–02 and such to 2 873 tons west of 79 20’E. Season 3. (2003) data shall be reported to the Secretariat For the purpose of the trawl fishery for Dissostichus eleginoides in Statistical Limits on the Exploratory Fishery for immediately. 8. Should a total of three (3) seabirds Division 58.5.2, the 2003/04 season is Dissostichus spp. On BANZARE Bank defined as the period from 1 December (Statistical Division 58.4.3b) outside be caught by a vessel outside the normal season (defined in paragraph 3), the 2003 to 30 November 2004, or until the Areas of National Jurisdiction in the catch limit is reached, whichever is 2003/04 Season vessel shall cease fishing immediately and shall not be permitted to fish sooner. For the purpose of the longline The Commission hereby adopts the outside the normal fishing season for fishery for Dissostichus eleginoides in following conservation measure in the remainder of the 2003/04 fishing Statistical Division 58.5.2, the 2003/04 accordance with Conservation Measure season. season is defined as the period from 1 21–02: May to 31 August 2004, or until the Observers 8. Each vessel participating Access 1. Fishing for Dissostichus catch limit is reached, whichever is in this fishery shall have at least one spp. on BANZARE Bank (Statistical sooner. The season for longline fishing scientific observer appointed in Division 58.4.3b) outside areas of operations may be extended to 14 accordance with the CCAMLR Scheme national jurisdiction shall be limited to September 2004 for any vessel which of International Scientific Observation, the exploratory fishery by Argentina, has demonstrated full compliance with and where possible one additional Australia, Ukraine, Russia and the USA. Conservation Measure 25–02 in the scientific observer, on board throughout The fishery shall be conducted by 2002/03 season. This extension to the all fishing activities within the fishing Argentine, Australian, Ukrainian, season will also be subject to a catch period. Russian and US flagged vessels using limit of three (3) seabirds per vessel. If longlines only and one Australian Data: three seabirds are caught during the flagged vessel using trawl only. No more catch/effort season extension, fishing shall cease than one vessel per country shall fish at 9. For the purpose of implementing immediately for that vessel.By-catch 4. any one time. this conservation measure in the 2003/ Fishing shall cease if the by-catch of any Catch limit 2. The total catch of 04 species reaches its by-catch limit as set Dissostichus spp. on BANZARE Bank season, the following shall apply: out in Conservation Measure 33–02.

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Mitigation 5. The operation of this (iii) a report must be submitted by Access 1. Fishing for Dissostichus fishery shall be carried out in every Contracting Party taking part in spp. in Statistical Subarea 88.1 shall be accordance with Conservation Measures the fishery for each reporting period for limited to the exploratory longline 25–02 and 25–03 so as to minimize the the duration of the fishery, even if no fishery by Argentina, Japan, Republic of incidental mortality of seabirds in the catches are taken; Korea, New Zealand, Norway, Russia, course of fishing. (iv) the catch of Dissostichus South Africa, Spain, Ukraine, UK, USA Observers 6. Each vessel participating eleginoides and of all by-catch species and Uruguay. The fishery shall be in this fishery shall have at least one must be reported; conducted by a maximum in the season scientific observer, and may include one (v) such reports shall specify the of two (2) Argentine, one (1) Japanese, appointed in accordance with the month and reporting period (A, B and two (2) Korean, six (6) New Zealand, CCAMLR Scheme of International C) to which each report refers; one (1) Norwegian, two (2) Russian, two Scientific Observation, on board (vi) immediately after the deadline (2) South African, two (2) Spanish, three throughout all fishing activities within has passed for receipt of the reports for (3) Ukrainian, one (1) UK, two (2) US the fishing period. each period, the Executive Secretary and two (2) Uruguayan flagged vessels Data: shall notify all Contracting Parties using longlines only. catch/effort engaged in fishing activities in the Catch limit 2. The total catch of 7. For the purpose of implementing division of the total catch taken during Dissostichus spp. in Statistical Subarea this conservation measure in the 2003/ the reporting period and the total 88.1 in the 2003/04 season shall not 04 season, the following shall apply: aggregate catch for the season to date; exceed a precautionary catch limit of 3 (i) the Ten-day Catch and Effort (vii) at the end of every three 250 tons. Catch limits for each of the Reporting System set out in Annex 41– reporting periods, the Executive SSRUs, as defined in Conservation 08/A; Secretary shall inform all Contracting Measure 41–01, Annex B for Subarea (ii) the Monthly Fine-scale Catch and Parties of the total catch taken during 88.1, shall be as follows: A - 0 tons; B Effort Reporting System set out in the three most recent reporting periods - 80 tons; C - 223 tons; D - 0 tons; E -57 Annex 41–08/A. Fine-scale data shall be and the total aggregate catch for the tons; F - 0 tons; G - 83 tons; H - 786 tons; submitted on a haul-by-haul basis. season to date. 8. For the purpose of Annex 41–08/A, A fine-scale catch, effort and I - 776 tons; J - 316 tons; K - 749 tons; the target species is Dissostichus biological data reporting system shall be L - 180 tons. eleginoides and by-catch species are implemented: Season 3. For the purpose of the defined as any species other than (i) the scientific observer(s) aboard exploratory longline fishery for Dissostichus eleginoides. each vessel shall collect the data Dissostichus spp.in Statistical Subarea 9. The total number and weight of required to complete the CCAMLR fine- 88.1, the 2003/04 season is defined as Dissostichus eleginoides discarded, scale catch and effort data form C1, the period from 1 December 2003 to 31 including those with the ’jellymeat’ latest version. These data shall be August 2004. condition, shall be reported. These fish submitted to the CCAMLR Secretariat Fishing operations will count towards the total allowable not later than one month after the vessel catch. returns to port; 4. The exploratory longline fishery for Data: (ii) the catch of Dissostichus Dissostichus spp. in Statistical Subarea biological eleginoides and of all by-catch species 88.1 shall be carried out in accordance 10. Fine-scale biological data, as must be reported; with the provisions of Conservation required under Annex 41–08/A, shall be (iii) the numbers of seabirds and Measure 41–01, except paragraph 6.By- collected and recorded. Such data shall marine mammals of each species caught catch 5. The by-catch in this fishery be reported in accordance with the and released or killed must be reported; shall be regulated as set out in Scheme of International Scientific (iv) the scientific observer(s) aboard Conservation Measure 33–03. Observation. each vessel shall collect data on the Mitigation 6. The exploratory longline ANNEX 41–08/A length composition from representative fishery for Dissostichus spp. in samples of Dissostichus eleginoides and Statistical Subarea 88.1 shall be carried DATA REPORTING SYSTEM by-catch species: out in accordance with the provisions of A ten-day catch and effort reporting (a) length measurements shall be to Conservation Measure 25–02, except system shall be implemented: the nearest centimeter below; paragraph 3 (night setting) shall not (i) for the purpose of implementing (b) representative samples of length apply. Prior to entry into force of the this system, the calendar month shall be composition shall be taken from each license and prior to entering the ° divided into three reporting periods, fine-scale grid rectangle (0.5 latitude by Convention Area, each vessel shall ° viz: day 1 to day 10, day 11 to day 20 1 longitude) fished in each calendar demonstrate its capacity to comply with and day 21 to the last day of the month. month; experimental line-weighting trials as The reporting periods are hereafter (v) the above data shall be submitted approved by the Scientific Committee referred to as periods A, B and C; to the CCAMLR Secretariat not later and described in Conservation Measure (ii) at the end of each reporting than one month after the vessel returns 24–02 and such data shall be reported period, each Contracting Party to port. to the Secretariat immediately. participating in the fishery shall obtain CONSERVATION MEASURE 41–09 7. In Statistical Subarea 88.1, from each of its vessels information on (2003) longlines may be set during daylight total catch and total days and hours hours only if the vessels are fished for that period and shall, by Limits on the Exploratory Fishery for demonstrating a consistent minimum cable, telex, facsimile or electronic Dissostichus spp. in Statistical Subarea line sink rate of 0.3 m/s in accordance transmission, transmit the aggregated 88.1 in the 2003/04 Season with Conservation Measure 24–02. Any catch and days and hours fished for its The Commission hereby adopts the vessel catching a total of three (3) vessels so as to reach the Executive following conservation measure in seabirds shall immediately revert to Secretary no later than the end of the accordance with Conservation Measure night setting in accordance with next reporting period; 21–02: Conservation Measure 25–02.

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8. There shall be no offal discharge in (v) sewage within 12 n miles of land 24–02, and such data shall be reported this fishery. or ice shelves, or sewage while the ship to the Secretariat immediately. Observers 9. Each vessel participating is traveling at a speed of less than 4 7. In Statistical Subarea 88.2, in the fishery shall have at least two knots. longlines may be set during daylight scientific observers, one of whom shall hours only if the vessels are be an observer appointed in accordance Additional elements demonstrating a consistent minimum with the CCAMLR Scheme of 17. No live poultry or other living line sink rate of 0.3 m/s in accordance International Scientific Observation, on birds shall be brought into Statistical with Conservation Measure 24–02. Any board throughout all fishing activities Subarea 88.1 and any dressed poultry vessel catching a total of three (3) within the fishing period. not consumed shall be removed from seabirds shall immediately revert to VMS 10. Each vessel participating in Statistical Subarea 88.1. night setting in accordance with this exploratory longline fishery shall be 18. Fishing for Dissostichus spp. in Conservation Measure 25–02. required to operate a VMS at all times, Statistical Subarea 88.1 shall be 8. There shall be no offal discharge in in accordance with Conservation prohibited within 10 n miles of the this fishery. Observers 9. Each vessel Measure 10–04. coast of the Balleny Islands. participating in the fishery shall have at CDS 11. Each vessel participating in least two scientific observers, one of CONSERVATION MEASURE 41–10 this exploratory longline fishery shall be whom shall be an observer appointed in (2003) required to participate in the Catch accordance with the CCAMLR Scheme Documentation Scheme for Dissostichus Limits on the Exploratory Fishery for of International Scientific Observation, spp., in accordance with Conservation Dissostichus spp. in Statistical Subarea on board throughout all fishing Measure 10–05. 88.2 in the 2003/04 Season activities within the fishing period. Research 12. Each vessel participating The Commission hereby adopts the VMS 10. Each vessel participating in in this exploratory fishery shall conduct this exploratory longline fishery shall be fishery-based research in accordance following conservation measure in accordance with Conservation Measure required to operate a VMS at all times, with the Research Plan and Tagging in accordance with Conservation Program described in Conservation 21–02: Access 1. Fishing for Dissostichus Measure 10–04. Measure 41–01, Annex B and Annex C CDS 11. Each vessel participating in respectively. spp. in Statistical Subarea 88.2 shall be limited to the exploratory longline this exploratory longline fishery shall be Data: required to participate in the Catch catch/effort fishery by Argentina, Republic of Korea, New Zealand, Norway, Russia, South Documentation Scheme for Dissostichus 13. For the purpose of implementing spp., in accordance with Conservation this conservation measure in the 2003/ Africa and Ukraine. The fishery shall be conducted by a maximum in the season Measure 10–05. 04 Research 12. Each vessel participating of two (2) Argentine, two (2) Korean, six season, the following shall apply: in this exploratory fishery shall conduct (i) the Five-day Catch and Effort (6) New Zealand, one (1) Norwegian, fishery-based research in accordance Reporting System set out in two (2) Russian, two (2) South African with the Research Plan and Tagging Conservation Measure 23–01; and three (3) Ukrainian flagged vessels Program described in Conservation (ii) the Monthly Fine-scale Catch and using longlines only.Catch limit 2. The Measure 41–01, Annex B and Annex C Effort Reporting System set out in total catch of Dissostichus spp. in respectively. Conservation Measure 23–04. Fine-scale Statistical Subarea 88.2 south of 65°S in Data: data shall be submitted on a haul-by- the 2003/04 season shall not exceed a catch/effort haul basis. precautionary catch limit of 375 tons. 13. For the purpose of implementing 14. For the purpose of Conservation Season 3. For the purpose of the this conservation measure in the 2003/ Measures 23–01 and 23–04, the target exploratory longline fishery for 04 season, the following shall apply: species is Dissostichus spp. and by- Dissostichus spp. in Statistical Subarea (i) the Five-day Catch and Effort catch species are defined as any species 88.2, the 2003/04 season is defined as Reporting System set out in other than Dissostichus spp. the period from 1 December 2003 to 31 Conservation Measure 23–01; Data: August 2004. biological (ii) the Monthly Fine-scale Catch and 4. The exploratory longline fishery for Effort Reporting System set out in 15. Fine-scale biological data, as Dissostichus spp. in Statistical Subarea required under Conservation Measure Conservation Measure 23–04. Fine-scale 88.2 shall be carried out in accordance data shall be submitted on a haul-by- 23–05, shall be collected and recorded. with the provisions of Conservation Such data shall be reported in haul basis. Measure 41–01, except paragraph 6.By- 14. For the purpose of Conservation accordance with the Scheme of catch 5. The by-catch in this fishery International Scientific Observation28. Measures 23–01 and 23–04, the target shall be regulated as set out in species is Dissostichus spp. and by- Discharge 16. All vessels participating Conservation Measure 33–03. in this exploratory fishery shall be catch species are defined as any species Mitigation 6. The exploratory longline other than Dissostichus spp. prohibited from discharging: fishery for Dissostichus spp. in (i) oil or fuel products or oily residues Data: Statistical Subarea 88.2 shall be carried into the sea, except as permitted in biological out in accordance with the provisions of Annex I of MARPOL 73/78; 15. Fine-scale biological data, as (ii) garbage; Conservation Measure 25–02, except required under Conservation Measure (iii) food wastes not capable of paragraph 3 (night setting) shall not 23–05, shall be collected and recorded. passing through a screen with openings apply. Prior to entry into force of the Such data shall be reported in no greater than 25 mm; license and prior to entering the accordance with the Scheme of (iv) poultry or parts (including egg Convention Area, each vessel shall International Scientific Observation. shells); or demonstrate its capacity to comply with Discharge experimental line-weighting trials as 16. All vessels participating in this 28 As notified to the Secretariat in accordance approved by the Scientific Committee exploratory fishery shall be prohibited with Conservation Measure 21–02, paragraph 2(iv). and described in Conservation Measure from discharging:

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(i) oil or fuel products or oily residues Fishing operations Data: biological into the sea, except as permitted 5. The exploratory longline fishery for 14. Fine-scale biological data, as in Annex I of MARPOL 73/78; Dissostichus spp. in Division 58.4.1 required under Conservation Measure (ii) garbage; shall be carried out in accordance with 23–05, shall be collected and recorded. the provisions of Conservation Measure (iii) food wastes not capable of Such data shall be reported in 41–01, except paragraph 6. By-catch 6. passing through a screen with openings accordance with the Scheme of The by-catch in this fishery shall be no greater than 25 mm; International Scientific Observation. (iv) poultry or parts (including egg regulated as set out in Conservation shells); or Measure 33–03. CONSERVATION MEASURE 42–01 Mitigation 7. The exploratory longline (2003) (v) sewage within 12 n miles of land fishery for Dissostichus spp. in or ice shelves, or sewage while the ship Limits on the Fishery for Statistical Division 58.4.1 shall be is traveling at a speed of less than 4 Champsocephalus gunnari in Statistical carried out in accordance with the knots. Subarea 48.3 in the 2003/04 Season provisions of Conservation Measure 25– Additional elements 02, except paragraph 2 (night setting) The Commission hereby adopts the shall not apply. Prior to entry into force following conservation measure in 17. No live poultry or other living of the license and prior to entering the accordance with Conservation Measure birds shall be brought into Statistical Convention Area, each vessel shall 31–01: Subarea 88.2 and any dressed poultry demonstrate its capacity to comply with Access 1. The fishery for not consumed shall be removed from experimental line-weighting trials as Champsocephalus gunnari in Statistical Statistical Subarea 88.2. approved by the Scientific Committee Subarea 48.3 shall be conducted by CONSERVATION MEASURE 41–11 and described in Conservation Measure vessels using trawls only. The use of (2003) 24–02 and such data shall be reported bottom trawls in the directed fishery for to the Secretariat immediately. Champsocephalus gunnari in Statistical Limits on the Exploratory Fishery for 8. In Statistical Division 58.4.1, Subarea 48.3 is prohibited. Dissostichus spp. in Statistical Division longlines may be set during daylight 2. Fishing for Champsocephalus 58.4.1 in the 2003/04 Season hours only if the vessel demonstrates a gunnari shall be prohibited within 12 n miles of the coast of South Georgia The Commission hereby adopts the consistent minimum line sink rate of 0.3 during the period 1 March to 31 May following conservation measure in m/s in accordance with Conservation (spawning period). accordance with Conservation Measure Measure 24–02. Should a total of three Catch limit 3. The total catch of 21–02, and notes that this measure (3) seabirds be caught, the vessel shall Champsocephalus gunnari in Statistical would be for one year and that data immediately revert to night setting in Subarea 48.3 in the 2003/04 season shall arising from these activities would be accordance with Conservation Measure be limited to 2 887 tons. The total catch reviewed by the Scientific Committee in 25–02. of Champsocephalus gunnari taken in 2004: 9. There shall be no offal discharge in the period 1 March to 31 May shall be Access 1. Fishing for Dissostichus this fishery. Observers 10. Each vessel participating in the fishery shall have at limited to 722 tons. spp. in Statistical Division 58.4.1 shall 4. Where any haul contains more than be limited to the exploratory longline least two scientific observers, one of whom shall be an observer appointed in 100 kg of Champsocephalus gunnari, fishery by Argentina, Australia and the and more than 10% of the USA. The fishery shall be conducted by accordance with the CCAMLR Scheme of International Scientific Observation, Champsocephalus gunnari by number Argentine, Australian and US flagged are smaller than 240 mm total length, vessels using longlines only. on board throughout all fishing activities within the fishing period. the fishing vessel shall move to another Catch limit 2. The total catch of Research 11. Each vessel participating fishing location at least 5 n miles Dissostichus spp. in Statistical Division in this exploratory fishery shall conduct distant1. The fishing vessel shall not 58.4.1 in the 2003/04 season shall not fishery-based research in accordance return to any point within 5 n miles of exceed a precautionary catch limit of with the Research Plan and Tagging the location where the catch of small 800 tons, of which no more than 200 Program described in Conservation Champsocephalus gunnari exceeded 29 tons shall be taken in any one of the Measure 41–01, Annex B and Annex C 10%, for a period of at least five days . four small-scale research units (SSRUs) respectively. The location where the catch of small identified in paragraph 3. Data: Champsocephalus gunnari exceeded 3. Division 58.4.1 shall be divided catch/effort 10% is defined as the path followed by into eight SSRUs as detailed in Annex 12. For the purpose of implementing the fishing vessel from the point at B of Conservation Measure 41–01. Of this conservation measure in the 2003/ which the fishing gear was first these eight SSRUs, A, C, E and G shall 04 season, the following shall apply: deployed from the fishing vessel to the have a catch limit of 200 tons of (i) the Five-day Catch and Effort point at which the fishing gear was Dissostichus spp. SSRUs B, D, F and H Reporting System set out in retrieved by the fishing vessel. shall have a catch limit of zero tons of Conservation Measure 23–01; Season 5. For the purpose of the trawl Dissostichus spp. In addition, fishing (ii) the Monthly Fine-scale Catch and fishery for Champsocephalus gunnari in will be prohibited in depths less than Effort Reporting System set out Statistical Subarea 48.3, the 2003/04 550 m in all SSRUs in order to protect in Conservation Measure 23–04. Fine- season is defined as the period from 1 the benthic communities. scale data shall be submitted on a haul- December 2003 to 30 November 2004, or Season 4. For the purpose of the by-haul basis. until the catch limit is reached, exploratory longline fishery for 13. For the purpose of Conservation whichever is sooner. Dissostichus spp. in Statistical Division Measures 23–01 and 23–04, the target 29 This provision concerning the minimum 58.4.1, the 2003/04 season is defined as species is Dissostichus spp. and by- distance separating fishing locations is adopted the period from 1 December 2003 to 30 catch species are defined as any species pending the adoption of a more appropriate November 2004. other than Dissostichus spp. definition of a fishing location by the Commission.

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By-catch 6. The by-catch in this Data: CONSERVATION MEASURE 42–02 fishery shall be regulated as set out in biological (2003) Conservation Measure 33–01. If, in the Limits on the Fishery for course of the directed fishery for 12. Fine-scale biological data, as Champsocephalus gunnari in Statistical Champsocephalus gunnari, the by-catch required under Conservation Measure Division 58.5.2 in the 2003/04 Season in any one haul of any of the species 23–05, shall be collected and recorded. named in Conservation Measure 33–01. Such data shall be reported in Access 1. The fishery for •is greater than 100 kg and exceeds accordance with the Scheme of Champsocephalus gunnari in Statistical 5% of the total catch of all fish by International Scientific Observation. Division 58.5.2 shall be conducted by weight, or Research 13. Each vessel operating in vessels using trawls only. • 2. For the purpose of this fishery for is equal to or greater than 2 tons, this fishery during the period 1 March Champsocephalus gunnari, the area then the fishing vessel shall move to to 31 May 2004 shall conduct twenty another location at least 5 n miles open to the fishery is defined as that (20) research trawls in the manner portion of Statistical Division 58.5.2 that distant1. The fishing vessel shall not described in Annex 42–01/A. return to any point within 5 n miles of lies within the area enclosed by a line: (i) starting at the point where the the location where the by-catch of ANNEX 42–01/A ° species named in Conservation Measure meridian of longitude 72 15’E intersects RESEARCH TRAWLS DURING 33–01 exceeded 5% for a period of at the Australia-France Maritime Delimitation Agreement Boundary then least five days30. The location where the SPAWNING SEASON south along the meridian to its by-catch exceeded 5% is defined as the 1. All fishing vessels taking part in the intersection with the parallel of latitude path followed by the fishing vessel from fishery for Champsocephalus gunnari in 53°25’S; the point at which the fishing gear was Statistical Subarea 48.3 between 1 (ii) then east along that parallel to its first deployed from the fishing vessel to March and 31 May shall be required to intersection with the meridian of the point at which the fishing gear was conduct a minimum of 20 research longitude 74°E; retrieved by the fishing vessel. hauls, to be completed during that (iii) then northeasterly along the Mitigation 7. The operation of this period. Twelve research hauls shall be geodesic to the intersection of the fishery shall be carried out in ° carried out in the Shag Rocks-Black parallel of latitude 52 40’S and the accordance with Conservation Measure meridian of longitude 76°E; 25–03 so as to minimize the incidental Rocks area. These shall be distributed between the four sectors illustrated in (iv) then north along the meridian to mortality of seabirds in the course of the its intersection with the parallel of Figure 1: four each in the NW and SE fishery. latitude 52°S; 8. Should any vessel catch a total of sectors, and two each in the NE and SW (v) then northwesterly along the 20 seabirds, it shall cease fishing and sectors. A further eight research hauls geodesic to the intersection of the shall be excluded from further shall be conducted on the northwestern parallel of latitude 51°S with the participation in the fishery in the 2003/ shelf of South Georgia over water less meridian of longitude 74°30’E; 04 season. than 300 m deep. (vi) then southwesterly along the Observers 9. Each vessel participating 2. Each research haul must be at least geodesic to the point of commencement. in this fishery shall have at least one 5 n miles distant from all others. The 3. A chart illustrating the above scientific observer appointed in spacing of stations is intended to be definition is appended to this accordance with the CCAMLR Scheme such that both areas are adequately conservation measure (Annex 42–02/A). Areas in Statistical Division 58.5.2 of International Scientific Observation, covered in order to provide information and where possible one additional outside that defined above shall be on the length, sex, maturity and weight scientific observer, on board throughout closed to directed fishing for composition of Champsocephalus all fishing activities within the fishing Champsocephalus gunnari. gunnari. period. Catch limit 4. The total catch of Data: 3. If concentrations of fish are located Champsocephalus gunnari in Statistical catch/effort en route to South Georgia, they should Division 58.5.2 in the 2003/04 season 10. For the purpose of implementing be fished in addition to the research shall be limited to 292 tons. this conservation measure in the 2003/ hauls. 5. Where any haul contains more than 100 kg of Champsocephalus gunnari, 04 season, the following shall apply: 4. The duration of research hauls (i) the Five-day Catch and Effort and more than 10% of the must be of a minimum of 30 minutes Champsocephalus gunnari by number Reporting System set out in with the net at fishing depth. During the Conservation Measure 23–01; are smaller than the specified minimum day, the net must be fished close to the (ii) the Monthly Fine-scale Catch and legal total length, the fishing vessel shall bottom. Effort Reporting System set out in move to another fishing location at least Conservation Measure 23–04. Fine-scale 5. The catch of all research hauls shall 5 n miles distant31. The fishing vessel data shall be submitted on a haul-by- be sampled by the international shall not return to any point within 5 n haul basis. scientific observer on board. Samples miles of the location where the catch of 11. For the purpose of Conservation should aim to comprise at least 100 fish, small Champsocephalus gunnari Measures 23–01 and 23–04, the target sampled using standard random exceeded 10% for a period of at least 32 species is Champsocephalus gunnari sampling techniques. All fish in the five days . The location where the and by-catch species are defined as any sample should be at least examined for species other than Champsocephalus 31 This provision concerning the minimum length, sex and maturity determination, distance separating fishing locations is adopted gunnari. and where possible weight. More fish pending the adoption of a more appropriate should be examined if the catch is large definition of a fishing location by the Commission. 30§ The specified period is adopted in accordance and time permits. 32 The specified period is adopted in accordance with the reporting period specified in Conservation with the reporting period specified in Conservation Measure 23–01, pending the adoption of a more Measure 23–01, pending the adoption of a more appropriate period by the Commission. appropriate period by the Commission.

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catch of small Champsocephalus viz: day 1 to day 10, day 11 to day 20 eachfine-scale grid rectangle (0.5° gunnari exceeded 10% is defined as the and day 21 to the last day of the month. latitude by 1° longitude) fished in each path followed by the fishing vessel from The reporting periods are hereafter calendar month; the point at which the fishing gear was referred to as periods A, B and C; (v) the above data shall be submitted first deployed from the fishing vessel to (ii) at the end of each reporting to the CCAMLR Secretariat not later the point at which the fishing gear was period, each Contracting Party than one month after the vessel returns retrieved by the fishing vessel. From the participating in the fishery shall obtain to port. 1 December 2003 to 30 April 2004 the from each of its vessels information on CONSERVATION MEASURE 43–02 minimum legal total length shall be 240 total catch and total days and hours (2003) mm. From 1 May 2004 to 30 November fished for that period and shall, by 2004 the minimum legal length shall be cable, telex, facsimile or electronic Limits on the Exploratory Fishery for 290 mm. transmission, transmit the aggregated Macrourus spp. on Elan Bank Season 6. For the purpose of the trawl catch and days and hours fished for its (Statistical Division 58.4.3a) outside fishery for Champsocephalus gunnari in vessels so as to reach the Executive Areas of National Jurisdiction in the Statistical Division 58.5.2, the 2003/04 Secretary no later than the end of the 2003/04 Season season is defined as the period from 1 next reporting period; The Commission hereby adopts the December 2003 to 30 November 2004, or (iii) a report must be submitted by following conservation measure in until the catch limit is reached, every Contracting Party taking part in accordance with Conservation Measure whichever is sooner. By-catch 7. Fishing the fishery for each reporting period for 21–02: shall cease if the by-catch of any species the duration of the fishery, even if no Access 1. Fishing for Macrourus spp. reaches its by-catch limit as set out in catches are taken; on Elan Bank (Statistical Division Conservation Measure 33–02. (iv) the catch of Champsocephalus 58.4.3a) outside areas of national Mitigation 8. The operation of this gunnari and of all by-catch species must jurisdiction shall be limited to the fishery shall be carried out in be reported; exploratory trawl fishery by Australia. accordance with Conservation Measure (v) such reports shall specify the The fishery shall be conducted by one 25–03 so as to minimize the incidental month and reporting period (A, B and Australian flagged vessel. mortality of seabirds in the course of C) to which each report refers; Catch limit 2. The total catch of fishing.Observers 9. Each vessel (vi) immediately after the deadline Macrourus spp. on Elan Bank participating in this fishery shall have at has passed for receipt of the reports for (Statistical Division 58.4.3a) outside least one scientific observer, and may each period, the Executive Secretary areas of national jurisdiction in the include one appointed in accordance shall notify all Contracting Parties 2003/04 season shall not exceed a with the CCAMLR Scheme of engaged in fishing activities in the precautionary catch limit of 26 tons. International Scientific Observation, on division of the total catch taken during Season 3. For the purpose of the board throughout all fishing activities the reporting period and the total exploratory trawl fishery for Macrourus within the fishing period. aggregate catch for the season to date; spp. on Elan Bank (Statistical Division Data: (vii) at the end of every three 58.4.3a) outside areas of national catch/effort reporting periods, the Executive jurisdiction, the 2003/04 season is 10. For the purpose of implementing Secretary shall inform all Contracting defined as the period from 1 December this conservation measure in the 2003/ Parties of the total catch taken during 2003 to 30 November 2004 , or until the 04 season, the following shall apply: the three most recent reporting periods catch limit is reached, whichever is (i) the Ten-day Catch and Effort and the total aggregate catch for the sooner. Reporting System set out in Annex 42– season to date. By-catch 4. The by-catch in this 02/B; A fine-scale catch, effort and fishery shall be regulated as set out in (ii) the Monthly Fine-scale Catch and biological data reporting system shall be Conservation Measure 33–03. Effort Reporting System set out in implemented: Mitigation 5. The operation of this Annex 42–02/B. Fine-scale data shall be (i) the scientific observer(s) aboard fishery shall be carried out in submitted on a haul-by-haul basis. each vessel shall collect the data accordance with Conservation Measure 11. For the purpose of Annex 42–02/ required to complete the CCAMLR fine- 25–03 so as to minimize the incidental B, the target species is scale catch and effort data form C1, mortality of seabirds in the course of Champsocephalus gunnari and by-catch latest version. fishing. species are defined as any species other These data shall be submitted to the Observers 6. Each vessel participating than Champsocephalus gunnari. CCAMLR Secretariat not later than in this fishery shall have at least one Data: onemonth after the vessel returns to scientific observer appointed in biological port; accordance with the CCAMLR Scheme 12. Fine-scale biological data, as (ii) the catch of Champsocephalus of International Scientific Observation, required under Annex 42–02/B, shall be gunnari and of all by-catch species must and where possible one additional collected and recorded. Such data shall be reported; scientific observer, on board throughout (iii) the numbers of seabirds and be reported in accordance with the all fishing activities within the fishing marine mammals of each species caught Scheme of International Scientific period. and released or killed must be reported; Observation. Data: (iv) the scientific observer(s) aboard catch/effort ANNEX 42–02/B each vessel shall collect data on the 7. For the purpose of implementing length composition from representative this conservation measure in the 2003/ DATA REPORTING SYSTEM samples of Champsocephalus gunnari 04 season, the following shall apply: A ten-day catch and effort reporting and by-catch species: (i) the Five-day Catch and Effort system shall be implemented: (a) length measurements shall be to Reporting System set out in (i) for the purpose of implementing the nearest centimeter below; Conservation Measure 23–01; this system, the calendar month shall be (b) representative samples of length (ii) the Monthly Fine-scale Catch and divided into three reporting periods, composition shall be taken from Effort Reporting System set out in

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Conservation Measure 23–04. Fine-scale Observers 6. Each vessel participating Catch limit 2. The total catch of all data shall be submitted on a haul-by- in this fishery shall have at least one species in the 2003/04 season shall not haul basis. scientific observer appointed in exceed a precautionary catch limit of 2 8. For the purpose of Conservation accordance with the CCAMLR Scheme 000 tons. Measures 23–01 and 23–04, the target of International Scientific Observation, 3. The catch of Chaenodraco wilsoni species is Macrourus spp. and by-catch and where possible one additional in the 2003/04 season shall be taken by species are defined as any species other scientific observer, on board throughout the midwater trawl method only, except than Macrourus spp. Any catch of all fishing activities within the fishing for the research program on shallow- Dissostichus spp. shall be subtracted period. water bottom trawling specified in from the catch limit for Dissostichus Data: paragraph 4 of Annex 43–04/A of this spp. specified in Conservation Measure catch/effort conservation measure, and shall not 41–06. 7. For the purpose of implementing exceed 1 000 tons. Data: this conservation measure in the 2003/ 4. The catches of Lepidonotothen biological 04 season, the following shall apply: kempi, Trematomus eulepidotus and 9. Fine-scale biological data, as (i) the Five-day Catch and Effort Pleuragramma antarcticum in the 2003/ required under Conservation Measure Reporting System set out in 04 season shall be taken by the 23–05, shall be collected and recorded. Conservation Measure 23–01; midwater trawl method only, except for Such data shall be reported in (ii) the Monthly Fine-scale Catch and the research program on shallow-water accordance with the Scheme of Effort Reporting System set out in bottom trawling specified in paragraph International Scientific Observation. Conservation Measure 23–04. Fine-scale 4 of Annex 43–04/A of this conservation Research data shall be submitted on a haul-by- measure, and shall not exceed 500 tons 10. Each vessel participating in this haul basis. for any one species. exploratory fishery shall conduct fishery 8. For the purpose of Conservation 5. Any Dissostichus spp. or based research in accordance with the Measures 23–01 and 23–04, the target Macrourus spp. caught during the research plan described in Conservation species is Macrourus spp. and by-catch directed fishery for the above species Measure 41–01, Annex B. species are defined as any species other shall be deducted from the catches of CONSERVATION MEASURE 43–03 than Macrourus spp. Any catch of these species authorized in (2003) Dissostichus spp. shall be subtracted Conservation Measure 41–05. from the catch limit for Dissostichus Season 6. For the purpose of the Limits on the Exploratory Fishery for spp. specified in Conservation Measure exploratory trawl fishery for Macrourus spp. On BANZARE Bank 41–07. Chaenodraco wilsoni, Lepidonotothen (Statistical Division 58.4.3b) outside Data: kempi, Trematomus eulepidotus and Areas of National Jurisdiction in the biological 9. Fine-scale biological data, as Pleuragramma antarcticum in Statistical 2003/04 Season Division 58.4.2, the 2003/04 season is The Commission hereby adopts the required under Conservation Measure 23–05, shall be collected and defined as the period from 1 December following conservation measure in recorded. Such data shall bereported in 2003 to 30 November 2004, or until the accordance with Conservation Measure accordance with the Scheme of catch limit is reached, whichever is 21–02: sooner. Access 1. Fishing for Macrourus spp. International Scientific Observation. Research 10. Each vessel participating By-catch 7. The by-catch in this on BANZARE Bank (Statistical Division in this exploratory fishery shall conduct fishery shall be regulated as set out in 58.4.3b) outside areas of national fishery-based research in accordance Conservation Measure 33–03. jurisdiction shall be limited to the with the research plan described in Mitigation 8. The operation of this exploratory trawl fishery by Australia. Conservation Measure 41–01, Annex B. fishery shall be carried out in The fishery shall be conducted by one accordance with Conservation Measure Australian flagged vessel. Conservation Measure 43–04 (2003) 25–03 so as to minimize the incidental Catch limit 2. The total catch of Limits on the Exploratory Fishery for mortality of seabirds in the course of Macrourus spp. on BANZARE Bank Chaenodraco wilsoni, Lepidonotothen fishing. (Statistical Division 58.4.3b) outside Observers 9. The vessel participating kempi, Trematomus eulepidotus and areas of national jurisdiction in the in this fishery shall have at least one Pleuragramma antarcticum in 2003/04 season shall not exceed a scientific observer appointed in Statistical Division 58.4.2 in the 2003/04 precautionary catch limit of 159 tons. accordance with the CCAMLR Scheme Season Season 3. For the purpose of the of International Scientific Observation, exploratory trawl fishery for Macrourus The Commission hereby adopts the and where possible one additional spp. on BANZARE Bank (Statistical following conservation measure in scientific observer, on board throughout Division 58.4.3b) outside areas of accordance with Conservation Measure all fishing activities within the fishing national jurisdiction, the 2003/04 21–02, and notes that this measure period. season is defined as the period from 1 would be for one year and that data Data: December 2003 to 30 November 2004, or arising from these activities would be catch/effort until the catch limit is reached, reviewed by the Scientific Committee in 10. For the purpose of implementing whichever is sooner. 2004: this conservation measure in the 2003/ By-catch 4. The by-catch in this Access 1. Fishing for Chaenodraco 04 season, the following shall apply: fishery shall be regulated as set out in wilsoni, Lepidonotothen kempi, (i) the Five-day Catch and Effort Conservation Measure 33–03. Trematomus eulepidotus and Reporting System set out in Mitigation 5. The operation of this Pleuragramma antarcticum in Statistical Conservation Measure 23–01; fishery shall be carried out in Division 58.4.2 shall be limited to the (ii) the Monthly Fine-scale Catch and accordance with Conservation Measure exploratory trawl fishery by Russia.The Effort Reporting System set out in 25–03 so as to minimize the incidental fishery shall be conducted by one Conservation Measures 23–03. Fine- mortality of seabirds in the course of Russian-flagged vessel using trawls scale data shall be submitted on a haul- fishing. only. by-haul basis.

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11. For the purpose of Conservation activities must commence immediately three months in advance of starting Measures 23–01 and 23–03, the target the trigger levels have been reached and fishing of the name, type, size, species are Chaenodraco wilsoni, must be completed before the vessel registration number, radio call sign, and Lepidonotothen kempi, Trematomus leaves the SSRU. research and fishing operations plan of eulepidotus and Pleuragramma 4. In each SSRU and in locations the vessel that the Member has antarcticum and by-catch species are where the bottom depth is 280 m or less: authorized to participate in the crab defined as any species other than these (i) a maximum total of 20 commercial fishery. species. bottom trawls may be conducted in no Catch limit 4. The total catch of crab Data: more than 10 locations, but with no in Statistical Subarea 48.3 in the 2003/ biological more than four bottom trawls in any one 04 season shall not exceed a 12. Fine-scale biological data, as location; precautionary catch limit of 1 600 tons. required under Conservation Measure (ii) each location must be at least 5 n 5. The crab fishery shall be limited to 23–05 shall be collected and recorded. miles distant from any other location; sexually mature male crabs - all female Such data shall be reported in (iii) at each location trawled, three and undersized male crabs caught shall accordance with the System of separate samples will be taken with a be released unharmed. In the case of International Scientific Observation. beam trawl in the vicinity of the Paralomis spinosissima and Paralomis Research 13. The vessel participating commercial trawl track to assess the formosa, males with a minimum in this exploratory fishery shall conduct benthos present and compare with the carapace width of 94 mm and 90 mm, fishery-based research in accordance benthos brought up in the commercial respectively, may be retained in the with the Research and Data Collection trawl; catch. Plans described in Annex 43–04/A. The (iv) catches from this program will not Season 6. For the purpose of the pot results shall be reported to CCAMLR not count towards the value that triggers the fishery for crab in Statistical Subarea later than three months after the closure 20 research shots in an SSRU as defined 48.3, the 2003/04 season is defined as of the fishery. in paragraph 2 above. the period from 1 December 2003 to 30 5. The following data and material November 2004, or until the catch limit ANNEX 43–04/A will be collected from research and is reached, whichever is sooner. RESEARCH AND DATA COLLECTION commercial hauls, as required by the By-catch 7. The by-catch of PLANS CCAMLR Scientific Observers Manual: Dissostichus eleginoides shall be counted against the catch limit in the 1. The small-scale research units (i) position, date and depth at the start fishery for Dissostichus eleginoides in (SSRUs) for this fishery will be those and end of every haul; (ii) haul-by haul catch and catch per Statistical Subarea 48.3. specified in Annex B of Conservation Observers 8. Each vessel participating Measure 41–01. effort by species; (iii) haul-by haul length frequency of in this fishery shall have at least one 2. The vessel undertaking prospecting scientific observer appointed in or commercial fishing in any SSRU common species; (iv) sex and gonad state of common accordance with the CCAMLR Scheme must undertake the following research of International Scientific Observation, activities once 10 tons of any one species; (v) diet and stomach fullness; and where possible one additional species have been caught, irrespective of scientific observer, on board throughout the number of hauls required: (vi) scales and/or otoliths for age determination; all fishing activities within the fishing (i) a minimum of 20 hauls must be period. Scientific observers shall be made within the SSRU and must (vii) by-catch of fish and other organisms; afforded unrestricted access to the catch collectively satisfy the criteria specified for statistical random sampling prior to, in subparagraphs (ii) to (iv); (viii) observations on the occurrence of seabirds and mammals in relation to as well as after, sorting by the crew. (ii) each haul must be separated by Data: not less than 5 n miles from any other fishing operations, and details of any incidental mortality of these animals. catch/effort haul, distance to be measured from the 9. For the purpose of implementing geographical mid-point of each haul; CONSERVATION MEASURE 52–01 this conservation measure in the 2003/ (iii) each haul shall comprise at least (2003) 04 season, the following shall apply: 30 minutes effective fishing time as Limits on the Fishery for Crab in (i) the Ten-day Catch and Effort defined in the Draft Manual for Bottom Reporting System set out in Trawl Surveys in the Convention Statistical Subarea 48.3 in the 2003/04 Season Conservation Measure 23–02; Area(SC-CAMLR-XI, Annex 5, (ii) the Monthly Fine-scale Catch and Appendix H, Attachment E, paragraph The Commission hereby adopts the Effort Reporting System set out in 4); following conservation measure in Conservation Measure 23–04. Fine-scale (iv) all data specified in the paragraph accordance with Conservation Measure data shall be submitted on a haul-by- 4 of this annex shall be collected for 31–01: haul basis. every research haul; in particular, all Access 1. The fishery for crab in 10. For the purpose of Conservation fish in a research haul up to 100 fish are Statistical Subarea 48.3 shall be Measures 23–02 and 23–04 the target to be measured and biological conducted by vessels using pots only. species is crab and by-catch species are characteristics obtained from 30 fish, The crab fishery is defined as any defined as any species other than crab. where more than 100 fish are caught, a commercial harvest activity in which Data: method for randomly subsampling the the target species is any member of the biological fish should be applied. crab group (Order Decapoda, Suborder 11. Fine-scale biological data, as 3. The requirement to undertake the Reptantia). required under Conservation Measure above research activities applies 2. The crab fishery shall be limited to 23–05, shall be collected and recorded. irrespective of the period over which one vessel per Member. Such data shall be reported in the trigger levels of 10 tons of catch in 3. Each Member intending to accordance with the Scheme of any SSRU are achieved during the 2003/ participate in the crab fishery shall International Scientific Observation. 04 fishing season. The research notify the CCAMLR Secretariat at least Research

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12. Each vessel participating in this CONSERVATION MEASURE 52–02 4. For the purposes of implementing exploratory fishery shall conduct (2003) normal fishing operations after completion of the experimental harvest fishery-based research in accordance Experimental Harvest Regime for the regime, the Ten-day Catch and Effort with the data requirements described in Crab Fishery in Statistical Subarea 48.3 Reporting System set out in Annex 52–01/A and the experimental in the 2003/04 Season harvest regime described in Conservation Measure 23–02 shall Conservation Measure 52–02. Data The following measures apply to all apply. collected for the period up to 31 August crab fishing within Statistical Subarea 5. Vessels that complete experimental 2004 shall be reported to CCAMLR by 48.3 in the 2003/04 fishing season. harvest regime shall not be required to 30 September 2004 so that the data will Every vessel participating in the crab conduct experimental fishing in future be available to the meeting of the fishery in Statistical Subarea 48.3 shall seasons. However, these vessels shall Working Group on Fish Stock conduct fishing operations in abide by the guidelines set forth in Assessment in 2004. Such data collected accordance with an experimental Conservation Measure 52–01. 6. Fishing vessels shall participate in after 31 August shall be reported to harvest regime as outlined below: the experimental harvest regime CCAMLR not later than three months 1. Vessels shall conduct the independently (i.e. vessels may not after the closure of the fishery. experimental harvest regime in the 2003/04 season at the start of their first cooperate to complete phases of the ANNEX 52–01/A season of participation in the crab experiment). 7. Crabs taken by any vessel for DATA REQUIREMENTS ON THE CRAB fishery and the following conditions shall apply: research purposes will be considered as FISHERY IN STATISTICAL SUBAREA part of any catch limits in force for each 48.3 (i) every vessel when undertaking an experimental harvesting regime shall species taken, and shall be reported to CCAMLR as part of the annual Catch and Effort Data: expend its first 200 000 pot hours of STATLANT returns. Cruise Descriptions effort within a total area delineated by 8. All vessels participating in the twelve blocks of 0.5° latitude by 1.0° cruise code, vessel code, permit experimental harvest regime shall carry longitude. For the purposes of this number, year. at least one scientific observer on board conservation measure, these blocks shall Pot Descriptions during all fishing activities. be numbered A to L. In Annex 52–02/ diagrams and other information, A, the blocks are illustrated (Figure 1), CONSERVATION MEASURE 61–01 including pot shape, dimensions, mesh and the geographic position is denoted (2003) size, funnel by the coordinates of the northeast Limits on the Exploratory Fishery for position, aperture and orientation, corner of the block. For each string, pot number of chambers, presence of an Martialia hyadesi in Statistical Subarea hours shall be calculated by taking the 48.3 in the 2003/04 Season escape port. total number of pots on the string and Effort Descriptions multiplying that number by the soak The Commission hereby adopts the date, time, latitude and longitude of time (in hours) for that string. Soak time following conservation measure in the start of the set, compass bearing of shall be defined for each string asthe accordance with Conservation Measures the set, total number of pots set, spacing time between start of setting and start of 21–02 and 31–01: Access 1. Fishing for Martialia of pots on the line, number of pots lost, hauling; hyadesi in Statistical Subarea 48.3 shall depth, soak time, bait type. (ii) vessels shall not fish outside the ° be limited to the exploratory jig fishery Catch Descriptions area delineated by the 0.5 latitude by 1.0° longitude blocks prior to by notifying countries. The fishery shall retained catch in numbers and weight, completing the experimental harvesting be conducted by vessels using jigs only. Catch limit 2. The total catch of by-catch of all species (see Table 1), regime; incremental record number for linking Martialia hyadesi in Statistical Subarea (iii) vessels shall not expend more with sample information. 48.3 in the 2003/04 season shall not than 30 000 pot hours in any single exceed a precautionary catch limit of 2 Biological Data: block of 0.5° latitude by 1.0° longitude; For these data, crabs are to be 500 tons. (iv) if a vessel returns to port before Season 3. For the purpose of the sampled from the line hauled just prior it has expended 200 000 pot hours in exploratory jig fishery for Martialia to noon, by collecting the entire the experimental harvesting regime the hyadesi in Statistical Subarea 48.3, the contents of a number of pots spaced at remaining pot hours shall be expended 2003/04 season is defined as the period intervals along the line so that between before it can be considered that the from 1 December 2003 to 30 November 35 and 50 specimens are represented in vessel has completed the experimental 2004, or until the catch limit is reached, the subsample. harvesting regime; whichever is sooner. Cruise Descriptions (v) after completing 200 000 pot hours Observers 4. Each vessel participating cruise code, vessel code, permit of experimental fishing, it shall be in this fishery shall have at least one number. considered that vessels have completed scientific observer appointed in the experimental harvesting regime and Sample Descriptions accordance with the CCAMLR Scheme they shall be permitted to commence of International Scientific Observation, date, position at start of the set, fishing in a normal fashion. compass bearing of the set, line number. and where possible one additional 2. Data collected during the scientific observer, on board throughout Data experimental harvest regime up to 30 all fishing activities within the fishing species, sex, length of at least 35 June 2004 shall be submitted to period. individuals, presence/absence of CCAMLR by 31 August 2004. Data: rhizocephalan parasites, record of the 3. Normal fishing operations shall be catch/effort destination of the crab (kept, discarded, conducted in accordance with the 5. For the purpose of implementing destroyed), record of the pot number regulations set out in Conservation this conservation measure in the 2003/ from which the crab comes. Measure 52–01. 04 season, the following shall apply:

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(i) the Ten-day Catch and Effort Documentation Scheme for Dissostichus DEPARTMENT OF STATE Reporting System set out in spp., as set out in Conservation Measure [Public Notice 4559] Conservation Measure 23–02; 10–05, continue to trade in Dissostichus (ii) the Monthly Fine-scale Catch and spp.; Bureau of Educational and Cultural Effort Reporting System set out in Recognizing that these Acceding Affairs Request for Grant Proposals: Conservation Measure 23–04. Fine-scale States and non-Contracting Parties thus Benjamin A. Gilman International data shall be submitted on a haul-by- do not participate in the landing Scholarship Program haul basis. procedures for Dissostichus spp. 6. For the purpose of Conservation accompanied by Dissostichus Catch SUMMARY: The Office of Global Measures 23–02 and 23–04, the target Documents; Educational Programs of the Bureau of species is Martialia hyadesi and by- Urges Contracting Parties, Educational and Cultural Affairs catch species are defined as any species When licensing a vessel to fish for announces an open competition to other than Martialia hyadesi. Dissostichus spp. either inside the administer the Benjamin A. Gilman Data: Convention Area under Conservation International Scholarship Program. biological Measure 10–02, or on the high seas, to Public and private non-profit 7. Fine-scale biological data, as require, as a condition of that license, organizations meeting the provisions required under Conservation Measure that the vessel should land catches only described in Internal Revenue Code 23–05, shall be collected and recorded. in States that are fully implementing the section 26 U.S.C. 501(c)(3) may submit Such data shall be reported in CDS; and to attach to the license33 a list proposals for the purpose of accordance with the Scheme of of all Acceding States and non- administering a scholarship program for International Scientific Observation. Contracting Parties that are fully academic study by Americans outside of Research 8. Each vessel participating implementing the Catch Documentation the United States. in this exploratory fishery shall collect Scheme. Important Note: This Request for Grant data in accordance with the Data Proposals contains language in the Collection Plan described in Annex 61– RESOLUTION 20/XXII ‘‘Shipment and Deadline for Proposals’’ 01/A. Ice-Strengthening Standards in High- section that is significantly different from Data collected pursuant to the plan for Latitude Fisheries34 that used in the past. Please pay special the period up to 31 August 2004 shall The Commission attention to procedural changes as outlined. be reported to CCAMLR by 30 Recognizing the unique circumstances Program Information September 2004 so that the data will be in high-latitude fisheries, especially the available to the meeting of the Working extensive ice coverage which can pose This program provides grants to Group on Fish Stock Assessment in a risk to fishing vessels operating in enable U.S. citizen undergraduate 2004. those fisheries, students of limited financial means to pursue academic studies abroad. Such ANNEX 61–01/A Recognizing also that the safety of fishing vessels, crew and CCAMLR foreign study is intended to expand DATA COLLECTION PLAN FOR scientific observers is a significant understanding of other countries and EXPLORATORY SQUID (MARTIALIA concern of all Members, cultures among U.S. students, expose HYADESI) FISHERIES IN STATISTICAL Further recognizing the difficulties of citizens of other countries to Americans SUBAREA 48.3 search and rescue response in high- from diverse backgrounds, and better prepare U.S. students to assume 1. All vessels will comply with latitude fisheries, significant roles in an increasingly conditions set by CCAMLR. These Concerned that collisions with ice global economy. include data required to complete the could result in oil spills and other data form (Form TAC) for the Ten-day adverse consequences for Antarctic Overview marine living resources and the pristine Catch and Effort Reporting System, as It is anticipated that, pending specified by Conservation Measure 23– Antarctic environment, Considering that vessels fishing in appropriation of funds, this grant will 02; and data required to complete the provide an assistance award of CCAMLR standard fine-scale catch and high-latitude fisheries should be suitable for ice conditions, approximately $1,600,000 for the effort data form for a squid jig fishery purpose of recruiting, selecting, and (Form C3). This includes numbers of Urges Members to license to fish in high-latitude fisheries only those of issuing grants of up to $5,000 to seabirds and marine mammals of each individuals who meet the eligibility species caught and released or killed. their flag vessels with a minimum ice classification standard of ICE–1C35 requirements listed below toward the 2. All data required by the CCAMLR cost of up to one academic year of Scientific Observers Manual for squid which will remain current for the duration of the planned fishing activity. undergraduate study abroad. Subject to fisheries will be collected. These the availability of funding and to include: Dated: December 10, 2003. satisfactory performance of the (i) vessel and observer program details Margaret F. Hayes, organization selected, this assistance (Form S1); Director, Office of Oceans Affairs, Bureau award may be renewable for two (ii) catch information (Form S2); of Oceans, International Environmental and subsequent fiscal years. (iii) biological data (Form S3). Scientific Affairs, Department of State. The intent of the authorizing RESOLUTION 15/XXII [FR Doc. 03–31229 Filed 12–17–03; 8:45 am] legislation for the Benjamin A. Gilman BILLING CODE 3510–22–S International Scholarship Program is to Use of Ports not Implementing the Catch broaden the U.S. student population Documentation Scheme for Dissostichus 33 Includes permits and authorizations that participates in study abroad by spp. 34 Subareas and divisions south of 60°S and focusing on those students who might The Commission, adjacent to the Antarctic continent. not otherwise study outside the U.S. 35 As defined in the Det Norske Veritas (DNV) Noting that a number of Acceding Rules for Classification of Ships or an equivalent due to financial constraints. States and non-Contracting Parties not standard of certification as defined by a recognized The Bureau also seeks to encourage participating in the Catch classification authority. participating students and their

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institutions to choose non-traditional and type and location of home Please refer to the Solicitation study-abroad locations and to help institution. Preference should be given Package for complete budget guidelines under-represented U.S. institutions offer to applicants with no previous study and formatting instructions. and promote study-abroad opportunities abroad experience. Announcement Title and Number for their students. These objectives Reporting: should also be addressed in grant The grantee organization will submit All correspondence with the Bureau proposals. quarterly reports on the number of concerning this RFGP should reference the above title and number ECA/A/S/A– Guidelines applicants, the number of participants selected, the names of the institutions of 04–14. The administering organization higher education in the United States FOR FURTHER INFORMATION CONTACT: The should be prepared to announce the that applicants and awardees were Office of Global Educational Programs, program and solicit applications as soon attending at the time of application, the Educational Information and Resources as possible upon receipt of grant names of institutions sponsoring the Branch (ECA/A/S/A), Room 349, U.S. notification and to award scholarships study programs abroad, the names and Department of State, 301 4th Street, to U.S. students to enable them to begin locations of the institutions of higher SW., Washington, DC 20547; telephone overseas study in the fall semester of education outside the United States that 202–619–5434; fax 202–401–1433; e- 2004. participants attended during their study mail [email protected] to request a Student Eligibility: To apply for a program abroad, the fields of study of Solicitation Package. The Solicitation scholarship, an applicant must: Package contains detailed award • participants, and attrition rates. Because Be a citizen of the United States. diversity is an important program goal, criteria, required application forms, Permanent residents of the United the grantee should attempt to collect specific budget instructions, and States are not eligible. age, ethnic, gender, and disability data standard guidelines for proposal • Be an undergraduate student in from applicants and from those selected preparation. Please specify Bureau good standing at an institution of higher for awards, in keeping with Federal Branch Chief Phillip Ives on all other education in the United States guidelines on the solicitation of such inquiries and correspondence. (including both two-year and four-year information. Additionally, the Bureau of Please read the complete Federal institutions). Educational and Cultural Affairs may Register announcement before sending • Be a recipient of federal Pell Grant request other periodic and ad hoc inquiries or submitting proposals. Once funding during the academic term of reports. the RFGP deadline has passed, Bureau his/her application. • staff may not discuss this competition Be applying to, or accepted for a Budget Guidelines with applicants until the proposal program of study abroad eligible for Grants awarded to eligible review process has been completed. credit from the student’s home organizations with less than four years institution. Proof of program acceptance To Download a Solicitation Package via of experience in conducting is required for final award Internet international exchange programs are disbursement. The entire Solicitation Package may • Not study in a country currently limited by Bureau policy to $60,000. The Bureau intends to make one award be downloaded from the Bureau’s Web under a Travel Warning issued by the site at http://exchanges.state.gov/ United States Department of State. not to exceed $1,600,000. Accordingly, institutions with less than four years education/RFGPs. Please read all Travel Warnings are issued when the information before downloading. State Department recommends that experience are not encouraged to apply. Americans avoid a certain country. To The Bureau encourages applicants to New OMB Requirement provide maximum levels of cost-sharing find a list of these countries, please see An OMB policy directive published in and funding from private sources in http://travel.state.gov/ the Federal Register on Friday, June 27, support of its programs. warnings_list.html. 2003, requires that all organizations Recruitment, Application and Applicants must submit a applying for Federal grants or Selection: comprehensive budget for the entire cooperative agreements must provide a (1) Outreach will be made by the program. Applicants should budget the Dun and Bradstreet (D&B) Data grantee organization to accredited maximum possible amount for Universal Numbering System (DUNS) institutions of higher education in the scholarships and keep administrative number when applying for all Federal United States for the purpose of and overhead costs to a minimum. grants or cooperative agreements on or publicizing the scholarship competition. There must be a summary budget as after October 1, 2003. The complete This can be achieved through direct well as breakdowns reflecting both OMB policy directive can be referenced contacts with these institutions and administrative and program budgets. at http://www.whitehouse.gov/omb/ through participation in major Applicants may provide separate sub- fedreg/062703_grant_identifier.pdf. education conferences and events. budgets for each program component, Please also visit the ECA Web site at Emphasis will be on reaching out to a phase, location, or activity to provide http://exchanges.state.gov/education/ diverse pool of institutions and clarification. rfgps/menu.htm for additional programs within those institutions. Allowable costs for the program information on how to comply with this (2) The selection process shall be include the following: new directive. carried out through a committee which (1) Administrative: Salaries and includes representatives of accredited benefits and other direct administrative Shipment and Deadline for Proposals institutions of higher education in the expenses such as postage, phone, United States. printing and office supplies. Important Note: The deadline for this competition is Friday, February 6, 2004. In (3) In ranking eligible applicants for (2) Program: Participant expenses, light of recent events and heightened security scholarships, consideration should be which may include institutional fees, measures, proposal submissions must be sent given to academic excellence, financial travel expenses, tuition; expenses via a nationally recognized overnight need, diversity of the applicant pool, related to review panels, including delivery service (i.e., DHL, Federal Express, fields of study, proposed destination, travel and per-diem. UPS, Airborne Express, or U.S. Postal Service

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Express Overnight Mail, etc.) and be shipped Adherence to All Regulations substance, precision, and relevance to no later than the above deadline. The Governing the J Visa the Bureau’s mission. delivery services used by applicants must 2. Program planning: Detailed agenda have in-place, centralized shipping Please note: The following is being and relevant work plan should identification and tracking systems that may communicated for informational purposes demonstrate substantive undertakings be accessed via the Internet and delivery only and does not directly apply to this and logistical capacity. Agenda and plan people who are identifiable by commonly solicitation or program. The Bureau of should adhere to the program overview recognized competition. Proposals shipped Educational and Cultural Affairs is placing and guidelines described above. The renewed emphasis on the secure and proper after the established deadlines are ineligible work plan should specify target dates for consideration under this competition. It is administration of Exchange Visitor (J visa) Programs and adherence by grantees and for objectives such as application each applicant’s responsibility to ensure that sponsors to all regulations governing the J deadlines, notifications, and provision each package is marked with a legible visa. Therefore, proposals should of funds to participants. tracking number and to monitor/confirm demonstrate the applicant’s capacity to meet 3. Ability to achieve program delivery to ECA via the Internet. Delivery of all requirements governing the objectives: Objectives should be proposal packages may not be made via local administration of Exchange Visitor Programs reasonable, feasible, and flexible. courier service or in person for this as set forth in 22 CFR 6Z, including the Proposals should clearly demonstrate competition. Faxed documents will not be oversight of Responsible Officers and how the institution will meet the accepted at any time. Only proposals Alternate Responsible Officers, screening and program’s objectives and plan. submitted as stated above will be considered. selection of program participants, provision 4. Multiplier effect/impact: Proposed of pre-arrival information and orientation to Applicants must follow all participants, monitoring of participants, programs should strengthen long-term instructions in the Solicitation Package. proper maintenance and security of forms, mutual understanding, including The original and 15 copies of the record-keeping, reporting and other maximum sharing of information and application should be sent to: U.S. requirements. establishment of long-term institutional and individual linkages. Department of State, SA–44, Bureau of A copy of the complete regulations Educational and Cultural Affairs, Ref.: 5. Support of Diversity: Proposals governing the administration of should demonstrate substantive support ECA/A/S/A–04–14, Program Exchange Visitor (J) programs is Management, ECA/EX/PM, Room 534, of the Bureau’s policy on diversity. available at http://exchanges.state.gov Achievable and relevant features should 301 4th Street, SW., Washington, DC or from: United States Department of 20547. be cited in both program administration State, Office of Exchange Coordination and program content. Proposals should Diversity, Freedom and Democracy and Designation, ECA/EC/ECD—SA–44, demonstrate the recipient’s commitment Guidelines Room 734, 301 4th Street, SW., to promoting the awareness and Washington, DC 20547. Telephone: understanding of diversity, including, Pursuant to the Bureau’s authorizing (202) 401–9810. FAX: (202) 401–9809. but not limited to diversity in applicant legislation, programs must maintain a Review Process pool, type and location of home non-political character and should be institution, study destinations, and balanced and representative of the The Bureau will acknowledge receipt fields of study. diversity of American political, social, of all proposals and will review them 6. Institutional Capacity: Proposed and cultural life. ‘‘Diversity’’ should be for technical eligibility. Proposals will personnel and institutional resources interpreted in the broadest sense and be deemed ineligible if they do not fully should be adequate and appropriate to encompass differences including, but adhere to the guidelines stated herein achieve the program or project’s goals. not limited to ethnicity, race, gender, and in the Solicitation Package. All Electronic databases should be religion, geographic location, socio- eligible proposals will be reviewed by compatible with the Bureau’s systems. economic status, and physical the program office, as well as the Public 7. Institution’s Record/Ability: challenges. Applicants are strongly Diplomacy section overseas, where Proposals should demonstrate an encouraged to adhere to the appropriate. Eligible proposals will be institutional record of successful advancement of this principle both in subject to compliance with Federal and exchange programs, including program administration and in program Bureau regulations and guidelines and responsible fiscal management and full content. Please refer to the review forwarded to Bureau grant panels for compliance with all reporting criteria under the ‘‘Support for advisory review. Proposals may also be requirements for past Bureau grants as Diversity’’ section for specific reviewed by the Office of the Legal determined by Bureau Grant Staff. The suggestions on incorporating diversity Adviser or by other Department Bureau will consider the past into the total proposal. Public Law 104– elements. Final funding decisions are at performance of prior recipients and the 319 provides that ‘‘in carrying out the discretion of the Department of demonstrated potential of new programs of educational and cultural State’s Assistant Secretary for applicants. exchange in countries whose people do Educational and Cultural Affairs. Final 8. Follow-on Activities: Proposals not fully enjoy freedom and technical authority for assistance should provide a plan for continued democracy,’’ the Bureau ‘‘shall take awards (grants or cooperative follow-on activity such as alumni appropriate steps to provide agreements) resides with the Bureau’s tracking and programming. opportunities for participation in such Grants Officer. 9. Project Evaluation: Proposals programs to human rights and should include a plan to evaluate the Review Criteria democracy leaders of such countries.’’ activity’s success, both as the activities Public Law 106–113 requires that the Technically eligible applications will unfold and at the end of the program. A governments of the countries described be competitively reviewed according to draft survey questionnaire or other above do not have inappropriate the criteria stated below. These criteria technique plus description of a influence in the selection process. are not rank ordered and all carry equal methodology to use to link outcomes to Proposals should reflect advancement of weight in the proposal evaluation: original project objectives is these goals in their program contents, to 1. Quality of the program idea: recommended. Successful applicants the full extent deemed feasible. Proposals should exhibit originality, will be expected to submit intermediate

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reports after each project component is Dated: December 10, 2003. information collection should be concluded or quarterly, whichever is C. Miller Crouch, addressed to the OMB reviewer listed less frequent. Principal Deputy Assistant Secretary, Bureau and to the Treasury Department 10. Cost-effectiveness: The overhead of Educational and Cultural Affairs, Clearance Officer, Department of the and administrative components of the Department of State. Treasury, Room 11000, 1750 proposal, including salaries and [FR Doc. 03–31230 Filed 12–17–03; 8:45 am] Pennsylvania Avenue, NW., honoraria, should be kept as low as BILLING CODE 4710–05–P Washington, DC 20220. possible. All other items should be DATES: Written comments should be necessary and appropriate. received on or before January 20, 2004 11. Cost-sharing: Proposals should DEPARTMENT OF STATE to be assured of consideration. maximize cost-sharing through other [Public Notice #4530] Internal Revenue Service (IRS) private sector support as well as institutional direct funding Overseas Buildings Operations; OMB Number: 1545–0240. contributions. Industry Advisory Panel: Meeting Form Number: IRS Form 6118. Notice Type of Review: Extension. Authority Title: Claim for Refund of Income Tax Overall grant making authority for The Industry Advisory Panel of Return Preparer Penalties. this program is contained in the Mutual Overseas Buildings Operations will Description: Form 6118 is used by Educational and Cultural Exchange Act meet on Thursday, January 15, 2004 preparers to file for a refund of penalties of 1961, Public Law 87–256, as from 9:45 until 11:45 a.m. and 1 until incorrectly charged. The information amended, also known as the Fulbright- 3:30 p.m. Eastern Standard Time. The enables the IRS to process the claim and Hays Act. The purpose of the Act is ‘‘to meeting will be held in conference room have the refund issued to the tax return enable the Government of the United 1105 at the Department of State, 2201 C preparer. States to increase mutual understanding Street, NW. (entrance on 23rd Street), Respondents: Individuals or between the people of the United States Washington, DC. The purpose of the households, Business or other for-profit. and the people of other countries * * *; meeting is to discuss new technologies Estimated Number of Respondents/ to strengthen the ties which unite us and successful management practices Recordkeeping: 10,000. with other nations by demonstrating the for design, construction, security, Estimated Burden Hours Respondent/ educational and cultural interests, property management, emergency Recordkeeper: developments, and achievements of the operations, the environment, and people of the United States and other planning and development. An agenda Recordkeeping ...... 13 min. nations * * * and thus to assist in the will be available prior to the meeting. Learning about the law or the 17 min. The meeting will be open to the form. development of friendly, sympathetic Preparing the form ...... 11 min. and peaceful relations between the public, however, seating is limited. Prior notification and a valid photo ID Copying, assembling, and 20 min. United States and the other countries of sending the form to the IRS. the world.’’ The funding authority for are mandatory for entry into the building. Members of the public who the program above is provided through Frequency of Response: On occasion. plan to attend must notify Luigina the International Academic Opportunity Estimated Total Reporting/ Pinzino at (703) 875–7109 before Act of 2000. Recordkeeping Burden: 10,400 hours. Wednesday, January 7th, to provide date Notice OMB Number: 1545–0951. of birth, Social Security number, and Form Number: IRS Forms 5434 and Funding for this program is subject to telephone number. 5434–A. final Congressional action and the FOR FURTHER INFORMATION CONTACT: Type of Review: Extension. appropriation of FY–2004 funds. The Luigina Pinzino (703) 875–7109. Title: Form 5434: Application for actual level of funding for the Gilman Dated: December 8, 2003. Enrollment; and Form 5434–A: Program was $1.5 million in FY–2002 Charles E. Williams, Application for Renewal of Enrollment. and $1,575,000 in FY–2003. Awards Director/Chief Operating Officer, Overseas Description: The information relates made will be subject to periodic Buildings Operations, U.S. Department of to the granting of enrollment status to reporting and evaluation requirements. State. actuaries admitted (licensed) by the The terms and conditions published in [FR Doc. 03–31231 Filed 12–17–03; 8:45 am] Joint Board for the Enrollment of this RFGP are binding and may not be BILLING CODE 4710–24–P Actuaries to perform actuarial services modified by any Bureau representative. under the Employee Retirement Income Explanatory information provided by Security Act of 1974. the Bureau that contradicts published DEPARTMENT OF THE TREASURY Respondents: Individuals or language will not be binding. Issuance households. of the RFGP does not constitute an Submission for OMB Review; Estimated Number of Respondents/ award commitment on the part of the Comment Request Recordkeepers: 6,000. Government. The Bureau reserves the Estimated Burden Hours Respondent/ right to reduce, revise, or increase December 3, 2003. Recordkeeper: 27 minutes. proposal budgets in accordance with the The Department of the Treasury has Frequency of Response: Other (once needs of the program and the submitted the following public every 3 years). availability of funds. information collection requirement(s) to Estimated Total Reporting/ OMB for review and clearance under the Recordkeeping Burden: 3,800 hours. Notification Paperwork Reduction Act of 1995, OMB Number: 1545–1858. Final awards cannot be made until Public Law 104–13. Copies of the Notice Number: Notice 2003–67. funds have been appropriated by submission(s) may be obtained by Type of Review: Extension. Congress, allocated and committed calling the Treasury Bureau Clearance Title: Notice on Information Reporting through internal Bureau procedures. Officer listed. Comments regarding this for Payments in Lieu of Dividends.

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Description: This notice provides OMB Reviewer: Joseph F. Lackey, Jr., Clearance Officer, Department of the guidance to brokers and individuals (202) 395–7316, Office of Management Treasury, Room 11000, 1750 regarding provisions in the Jobs and and Budget, Room 10235, New Pennsylvania Avenue, NW., Growth Tax Relief Reconciliation Act of Executive Office Building, Washington, Washington, DC 20220. 2003. The notice provides rules for DC 20503. DATES: Written comments should be brokers to use in determining honorable Lois K. Holland, received on or before January 20, 2004 shares and rules for allocating Treasury PRA Clearance Officer. to be assured of consideration. transferred shares for purposes of determining payments in lieu of [FR Doc. 03–31204 Filed 12–17–03; 8:45 am] Internal Revenue Service (IRS) BILLING CODE 4830–01–P dividend reportable to individuals to OMB Number: 1545–0236. individuals. These rules require brokers Form Number: IRS Form 11–C. to comply with certain recordkeeping DEPARTMENT OF THE TREASURY Type of Review: Extension. requirements to use the favorable rules Title: Occupational Tax and for determining loanable shares and for Submission for OMB Review; Registration Return for Wagering. allocating transferred shares that may Comment Request give rise to payments in lieu of Description: Form 11–C is used to dividends. December 8, 2003. register persons accepting wagers Respondents: Business or other for- The Department of the Treasury has (Internal Revenue Code section 4412). profit. submitted the following public IRS uses this form to register the Estimated Number of Recordkeepers: information collection requirement(s) to respondent, collect the annual stamp tax 600. OMB for review and clearance under the (Internal Revenue Code section 4411), Estimated Burden Hours Paperwork Reduction Act of 1995, and to verify that the tax on wagers is Recordkeeper: 100 hours. Public Law 104–13. Copies of the reported on Form 730. Estimated Total Recordkeeping submission(s) may be obtained by Respondents: Business or other for- Burden: 60,000 hours. calling the Treasury Bureau Clearance profit, individuals or households, farms. Clearance Officer: R. Joseph Durbala, Officer listed. Comments regarding this Estimated Number of Respondents/ (202) 622–3634, Internal Revenue information collection should be Recordkeeping: 11,500. Service, Room 6411, 1111 Constitution addressed to the OMB reviewer listed Estimated Burden Hours Respondent/ Avenue, NW., Washington, DC 20224. and to the Treasury Department Recordkeeper:

Recordkeeping ...... 8 hr., 35 min. Learning about the law or the form ...... 57 min. Preparing the form ...... 11 min. 2 hr., 4 min. Copying, assembling, and sending the form to the IRS ...... 16 min.

Frequency of Response: Annually. Description: Form 8816 is used by claimed and to insure the proper Estimated Total Reporting/ insurance companies claiming an amount of special estimated tax was Recordkeeping Burden: 126,175 hours. additional deduction under Internal computed and deposited. OMB Number: 1545–1130. Revenue Code (IRC) section 847 to Respondents: Business or other for- reconcile their special loss discount and profit. Form Number: IRS Form 8816. special estimated tax payments, and to Type of Review: Revision. determine their tax benefit associated Estimated Number of Respondents/ Title: Special Loss Discount Account with the deduction. The information is Recordkeepers: 3,000. and Special Estimated Tax Payment for needed by the IRS to determine that the Estimated Burden Hours Respondent/ Insurance Companies. proper additional deduction was Recordkeeper:

Recordkeeping ...... 4 hr., 18 min. Learning about the law or the form ...... 1 hr., 5 min. Preparing, copying, assembling, and sending the form to the IRS ...... 1 hr., 12 min.

Frequency of Response: Annually. Description: Under Internal Revenue taxpayer can claim the proper interest Estimated Total Reporting/ Code section 135, if an individual exclusion. Recordkeeping Burden: 19,830 hours. redeems U.S. Savings Bonds issued after Respondents: Individuals or OMB Number: 1545–1151. 1989 and pays qualified higher households. Form Number: IRS Form 8818. education expenses during the year, the Type of Review: Extension. Estimated Number of Respondents/ interest on the bonds is excludable from Title: Optional Form to Record Recordkeepers: 25,000. Redemption of Series EE and I U.S. income. Form 8818 can be used to keep Estimated Burden Hours Respondent/ Savings Bonds Issued After 1989. a record of the bonds cashed so that the Recordkeeper:

Recordkeeping ...... 13 min. Learning about the law or the form ...... 4 min. Preparing the form ...... 13 min.

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Frequency of Response: On occasion. Copying, assembling, and sending Provided by Qualified Retirement Plans Estimated Total Reporting/ the form to the IRS—1 hr., 3 min. after Annuity Starting Dates. Recordkeeping Burden: 32,000 hours. Frequency of Response: Annually. Description: The collection of Clearance Officer: R. Joseph Durbala, Estimated Total Reporting/ information requirement in sections (202) 622–3634, Internal Revenue Recordkeeping Burden: 1,475 hours. 1.417(e)–1(b)(3)(iv)(B) and 1.417(e)– Service, Room 6411, 1111 Constitution OMB Number: 1545–1559. 1(3)(v)(A) is required to ensure that a Avenue, NW., Washington, DC 20224. Revenue Procedure Number: Revenue participant and the participant’s spouse OMB Reviewer: Joseph F. Lackey, Jr., Procedures 98–46 and 97–44. consent to a form of distribution from a (202) 395–7316, Office of Management Type of Review: Extension. qualified plan that may result in and Budget, Room 10235, New Title: LIFO Conformity Requirement. reduced periodic payments. Executive Office Building, Washington, Description: Revenue Procedure 97– Respondents: Individuals or DC 20503. 44 permits automobile dealers that households, Business or other for-profit, Not-for-profit institutions. Lois K. Holland, comply with the terms of the revenue procedure to continue using LIFO Estimated Number of Respondents: Treasury PRA Clearance Officer. inventory method despite previous 50,000. [FR Doc. 03–31205 Filed 12–17–03; 8:45 am] violations of the LIFO conformity Estimated Burden Hours Respondent: BILLING CODE 4830–01–P requirements of section 472(c) or (e)(2). 15 minutes. Revenue Procedure 98–46 modifies Frequency of Response: On occasion. Revenue Procedure 97–44 by allowing Estimated Total Reporting Burden: DEPARTMENT OF THE TREASURY medium- and heavy-duty truck dealers 12,500 hours. Submission for OMB Review; to take advantage of the favorable relief OMB Number: 1545–1726. Comment Request provided in Revenue Procedure 97–44. Regulation Project Number: REG– Respondents: Business or other for- 111835–99 NPRM. December 10, 2003. profit. Type of Review: Extension. The Department of Treasury has Estimated Number of Respondents/ Title: Regulations Governing Practice submitted the following public Recordkeepers: 5,000. before the Internal Revenue Service. information collection requirement(s) to Estimated Burden Hours Respondent/ Description: These regulations affect OMB for review and clearance under the Recordkeeper: 20 hours. individuals who are eligible to practice Paperwork Reduction Act of 1995, Frequency of Response: Annually. before the Internal Revenue Service. Public Law 104–13. Copies of the Estimated Total Reporting/ These regulations also authorize the submission(s) may be obtained by Recordkeeping Burden: 100,000 hours. Director of Practice to act upon calling the Treasury Bureau Clearance OMB Number: 1545–1719. applications for enrollment to practice Officer listed. Comments regarding this Regulation Project Number: REG– before the Internal Revenue Service. The information collection should be 106446–98 Final. Director of Practice will use certain addressed to the OMB reviewer listed Type of Review: Extension. information to ensure that: (1) Enrolled and to the Treasury Department Title: Relief from Joint and Several agents properly complete continuing Clearance Officer, Department of the Liability. education requirements to obtain Treasury, Room 11000, 1750 Description: The regulation under renewal; (2) practitioners properly Pennsylvania Avenue, NW., section 6015 provides guidance obtain consent of taxpayers before Washington, DC 20220. regarding relief from the joint and representing conflicting interests; and DATES: Written comments should be several liability imposed by section (3) practitioners do not use e-commerce received on or before January 20, 2004, 6013(d)(3). The regulations provide to make misleading solicitations. to be assured of consideration. specific guidance on the three relief Respondents: Business or other for- provisions of section 6015 and on how profit. Internal Revenue Service (IRS) taxpayers would file a claim for such Estimated Number of Recordkeepers: OMB Number: 1545–0016. relief. In addition, the regulations 56,000. Form Number: IRS Form 706–A. provide guidance regarding Tax Court Estimated Burden Hours Type of Review: Revision. review of certain types of claims for Recordkeeper: 53 minutes. Title: United States Additional Estate relief, as well as information regarding Estimated Total Recordkeeping Tax Return. the rights of the non-requesting spouse. Burden: 50,000 hours. Description: Form 706–A is used by The regulations also clarify that, under OMB Number: 1545–1732. individuals to compute and pay the section 6013, a return is not a joint Regulation Project Number: REG– additional estate taxes due under Code return if one of the spouses signs the 105946–00 Final. section 2032A9(c). IRS uses the return under duress. Type of Review: Extension. information to determine that the taxes Respondents: Individuals or Title: Mid-Contract Change in have been properly computed. The form households. Taxpayer. is also used for the basis election of Estimated Number of Respondents: 1. Description: The information is section 1016(c)(1). Estimated Burden Hours Respondent: needed by taxpayers who assume the Respondents: Individuals or 1 hour. obligation to account for the income households. Frequency of Response: On occasion. from long-term contracts as the result of Estimated Number of Respondents/ Estimated Total Reporting Burden: 1 certain nontaxable transactions. Recordkeeping: 180. hour. Respondents: Business or other for- Estimated Burden Hours Respondent/ OMB Number: 1545–1724. profit. Recordkeeper: Regulation Project Number: REG– Estimated Number of Respondents: Recordkeeping—3 hr., 17 min. 109481–99 Final. 5,000. Learning about the law or the Type of Review: Extension. Estimated Burden Hours Respondent: form—2 hr., 11 min. Title: Special Rules Under section 2 hours. Preparing the form—1 hr., 39 min. 417(a)(7) for Written Explanations Frequency of Response: On occasion.

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Estimated Total Reporting Burden: Taxpayer Advocacy Panel will be held 8 a.m. to 9 a.m. for the discussion of 10,000 hours. Monday, January 12, 2004, from 3 to 4 administrative matters, the general Clearance Officer: R. Joseph Durbala, p.m. Central time via a telephone status of the program and the (202) 622–3634, Internal Revenue conference call. You can submit written administrative details of the review Service, Room 6411, 1111 Constitution comments to the panel by faxing to process. On January 27, from 9 a.m. Avenue, NW., Washington, DC 20224. (718) 488–2062, or by mail to Taxpayer through January 28, the meeting will be OMB Reviewer: Joseph F. Lackey, Jr., Advocacy Panel, 10 Metro Tech Center, closed for the Board’s review of research (202) 395–7316, Office of Management 625 West Fulton Street, Brooklyn, NY and development applications. and Budget, Room 10235, New 11201. Public comments will also be This review involves oral comments, Executive Office Building, Washington, welcome during the meeting. Please discussion of site visits, staff and DC 20503. contact Audrey Jenkins at 1–888–912– consultant critiques of proposed 1227 or (718) 488–2085 for more Lois K. Holland, research protocols, and similar information. Treasury PRA Clearance Officer. The agenda will include the analytical documents that necessitate [FR Doc. 03–31206 Filed 12–17–03; 8:45 am] following: Various IRS issues. the consideration of the peresonal BILLING CODE 4830–01–P qualifications, performance and Dated: December 11, 2003. competence of individual research Bernard Coston, investigators. Disclosure of such DEPARTMENT OF THE TREASURY Director, Taxpayer Advocacy Panel. information would constitute a clearly [FR Doc. 03–31240 Filed 12–17–03; 8:45 am] unwarranted invasion of personal Internal Revenue Service BILLING CODE 4830–01–P privacy. Disclosure would also reveal Open Meeting of the Area 5 Taxpayer research proposals and research Advocacy Panel (Including the States underway which could lead to the loss of Iowa, Kansas, Minnesota, Missouri, DEPARTMENT OF VETERANS of these projects to third parties and Nebraska, North Dakota, Oklahoma, AFFAIRS thereby frustrate future agency research efforts. South Dakota, and Texas) Rehabilitation Research and Thus, the closing is in accordance AGENCY: Internal Revenue Service (IRS), Development Service Scientific Merit with 5 U.S.C. 552b(c)(6), and (c)(9)(B) Treasury. Review Board; Notice of Meeting and the determination of the Secretary ACTION: Notice. The Department of Veterans Affairs of the Department of Veterans Affairs SUMMARY: An open meeting of the Area gives notice under Pub. L. 92–463 under sections 10(d) of Pub. L. 92–463 5 Taxpayer Advocacy Panel will be (Federal Advisory Committee Act) that as amended by section 5(c) of Pub. L. conducted (via teleconference). The a meeting of the Rehabilitation Research 94–409. and Development Service Scientific Taxpayer Advocacy Panel is soliciting Those who plan to attend the open public comment, ideas, and suggestions Merit Review Board will be held on January 27–28, 2004, at the J.W. Marriott session should contact Ms. Victoria on improving customer service at the Mongiardo, Program Analyst, Internal Revenue Service. Hotel, 1331 Pennsylvania Avenue, NW., Washington, DC. The sessions are Rehabilitation Research and DATES: The meeting will be held scheduled to begin at 8 a.m. and end at Development Service (122P), Monday, January 12, 2004, at 3 p.m., 5:30 p.m. each day. Department of Veterans Affairs, 810 Central Time. The purpose of the Board is to review Vermont Ave., NW., Washington, DC FOR FURTHER INFORMATION CONTACT: rehabilitation research and development 20420, at (202) 254–0054. Audrey Jenkins at 1–888–912–1227, or applications for scientific and technical Dated: December 11, 2003. (718) 488–2085. merit and to make recommendations to By Direction of the Secretary: SUPPLEMENTARY INFORMATION: Notice is the Director, Rehabilitation Research E. Philip Riggin, hereby given pursuant to section and Development Service, regarding 10(a)(2) of the Federal Advisory their funding. Committee Managegment Officer. Committee Act, 5 U.S.C. App. (1988) The meeting will be open to the [FR Doc. 03–31178 Filed 12–17–03; 8:45 am] that an open meeting of the Area 5 public for the January 27 session from BILLING CODE 8320–01–M

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Corrections Federal Register Vol. 68, No. 243

Thursday, December 18, 2003

This section of the FEDERAL REGISTER DEPARTMENT OF THE TREASURY November 10, 2003, make the following contains editorial corrections of previously corrections: published Presidential, Rule, Proposed Rule, Internal Revenue Service and Notice documents. These corrections are § 1.6031(a)–1 [Corrected] prepared by the Office of the Federal 26 CFR Part 1 1. On page 63734, in the first column, Register. Agency prepared corrections are in § 1.6031(a)–1(f), in the fourth line, issued as signed documents and appear in [TD 9094] ‘‘that’’’ should read ‘‘that–’’. the appropriate document categories elsewhere in the issue. RIN 1545–BC01 § 1.6031(a)–1T [Corrected] Return of Partnership Income 2. On the same page, in the same column, in § 1.6031(a)–1T(a)(3)(ii), in Correction the fourth line, ‘‘§ 601.601(d)(2)(ii)(b)’’ In rule document 03–28190 beginning should read ‘‘§ 601.601(d)(2)(ii)(b)’’. on page 63733 in the issue of Monday, [FR Doc. C3–28190 Filed 12–17–03; 8:45 am] BILLING CODE 1505–01–D

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Part II

Department of Transportation Federal Railroad Administration

49 CFR Parts 222 and 229 Use of Locomotive Horns at Highway-Rail Grade Crossings; Interim Final Rule

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DEPARTMENT OF TRANSPORTATION online instructions for submitting E. Community Reaction to the Proposed comments. Rule Federal Railroad Administration Instructions: All submissions must F. Methodology/inventory Data include the agency name and docket G. ‘‘Chicago Anomaly’’ 49 CFR Parts 222 and 229 A. Safety Trend Lines name and docket number or Regulatory I. Accident-free and Low Risk Jurisdictions [Docket No. FRA–1999–6439, Notice No. 8] Identification Number (RIN) for this J. Impracticality rulemaking. For detailed instructions on K. Costs RIN 2130–AA71 submitting comments and additional L. Time for Implementation information on the rulemaking process, 15. E.O. 15 Status Use of Locomotive Horns at Highway- see the Public Participation heading of 16. Section-by-Section Analysis Rail Grade Crossings the SUPPLEMENTARY INFORMATION section 17. Regulatory Impact of this document. Note that all A. Executive Order 12866 and Dot AGENCY: Federal Railroad Regulatory Policies and Procedures Administration (FRA), Department of comments received will be posted B. Regulatory Flexibility Act Transportation (DOT). without change to http://dms.dot.gov, C. Paperwork Reduction Act ACTION: Interim final rule. including any personal information D. Environmental Impact provided. Please see the Privacy Act E. Federalism Implications SUMMARY: FRA is issuing rules to require heading under Regulatory Notices. F. Compliance with the Unfunded that a locomotive horn be sounded Docket: For access to the docket to Mandates Reform Act of 1995 while a train is approaching and read background documents or G. Energy Impact entering a public highway-rail crossing. comments received, go to http:// 18. Privacy Act Statement The rules also provide for an exception dms.dot.gov at any time or to Room PL– 19. List of Subjects to the above requirement in 401 on the plaza level of the Nassif 1. Background circumstances in which there is not a Building, 400 Seventh Street, SW., significant risk of loss of life or serious Washington, DC between 9 a.m. and 5 On January 13, 2000, FRA published personal injury, use of the locomotive p.m., Monday through Friday, except a Notice of Proposed Rulemaking horn is impractical, or safety measures Federal holidays. (NPRM) in the Federal Register (65 FR fully compensate for the absence of the FOR FURTHER INFORMATION CONTACT: Ron 2230) addressing the use of locomotive warning provided by the horn. This rule Ries, Office of Safety, FRA, 1120 horns at public highway-rail grade is required by law. Vermont Avenue, NW.,Washington, DC crossings. This rulemaking was DATES: The effective date is December 20590 (telephone: 202–493–6299); or mandated by Public Law 103–440, 18, 2004. Kathryn Shelton or Mark Tessler, Office which added section 20153 to title 49 of Written Comments: Comments must of Chief Counsel, FRA, 1120 Vermont the United States Code. The statute be received by February 17, 2004. Avenue, NW., Washington, DC 20590 requires the Secretary of Transportation Comments received after that date will (telephone: 202–493–6038). (whose authority in this area has been delegated to the Federal Railroad be considered to the extent possible SUPPLEMENTARY INFORMATION: without incurring additional expense or Administrator (49 CFR 1.49), to issue delay. Table of Contents for Supplementary regulations to require the use of Public Hearing: FRA intends to hold Information locomotive horns at public grade a public hearing in Washington, DC to crossings, but gives the agency the allow interested parties the opportunity 1. Background authority to make reasonable for oral comment on issues addressed in 2. Who is at Risk in a Grade Crossing exceptions. Collision In accordance with the the interim final rule. The date and 3. FRA’S Study of Florida’s Whistle Ban specific location of the hearing will be 4. FRA’S Nationwide Study of Whistle Bans Administrative Procedure Act (5 U.S.C. set forth in a forthcoming notice that 5. Statutory Mandate 553), FRA solicited written comments will be published in the Federal 6. Issuance of Interim Final Rule from the public. By the close of the Register and posted on FRA’s Web site 7. Effective Date of This Rule public comment period on May 26, (http://www.fra.dot.gov). 8. Rule Summary 2000, almost 3,000 comments had been 9. Overview of the Interim Final Rule; filed with the agency regarding this rule ADDRESSES: You may submit comments Principles, Strategies and Major Outcomes identified by DOT DMS Docket Number and its associated Draft Environmental A. Usefulness of the Train Horn Impact Statement. As is FRA’s practice, FRA–1999–6439 by any of the following B. Incompatibility of Horn Noise with methods: Community Needs FRA held the public docket open for • Web site: http://dms.dot.gov. C. Crafting Exceptions to the Use of the late filed comments and considered Follow the instructions for submitting Train Horn them to the extent possible. comments on the DOT electronic docket D. Alternatives Considered Because the NPRM was the subject of site. E. Implementing the Interim Final Rule substantial and wide-ranging public • Fax: 1–202–493–2251. F. Existing Bans and New Quiet Zones interest, FRA took unprecedented steps G. Requirements for the Train Horn and its • Mail: Docket Management Facility; to ensure that the views of the affected Use public would be heard and considered U.S. Department of Transportation, 400 H. Post-NPRM Ban Impact Studies Seventh Street, SW., Nassif Building, 10. Funding in development of this interim final Room PL–401, Washington, DC 20590– 11. Liability rule. FRA conducted a series of public 001. 12. Wayside Horn hearings throughout the United States in • Hand Delivery: Room PL–401 on 13. Horn Sound Level and Directionality which local citizens, local and State the plaza level of the Nassif Building, 14. Chicago Regional Issues officials, and members of the U.S. House 400 Seventh Street, S.W., Washington, A. Introduction of Representatives and Senate testified. B. Legislative and Administrative Actions Twelve hearings were held DC between 9 a.m. and 5 p.m., Monday in Illinois through Friday, except Federal C. Actual Practice Sounding Train Horns in (Washington, DC; Fort Lauderdale, Holidays. the Chicago Region Florida; Pendleton, Oregon; San • Federal e-Rulemaking Portal: Go to D. Current Chicago Region Whistle Ban Bernadino, California; Chicago, Illinois http://www.regulations.gov. Follow the Status (four hearings in the greater Chicago

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area); Berea, Ohio; South Bend, Indiana; to confront the compelling facts Bourbonnais, Illinois, in 1999, eleven Salem, Massachusetts; and Madison, surrounding grade crossing collisions. passengers died in their sleeper car Wisconsin) at which more than 350 In 1990, as part of FRA’s crossing following a collision with a truck at a people testified. The extent of public safety program, the agency studied the highway-rail crossing. In addition, since comment and testimony throughout the impact of train whistle bans (i.e., State approximately one-half of all collisions country is evidence of the wide-ranging or local laws prohibiting the use of train occur at grade crossings that are not public interest in this rulemaking. horns or whistles at crossings) on safety fully equipped with warning devices, Because the vast majority of people in Florida. (In this document the terms some of the drivers involved in these reading this document will not have the ‘‘whistle’’ and ‘‘horn’’ are used collisions may have been unaware of the benefit of having the NPRM at hand, a interchangeably to refer to the air approaching train. portion of the ‘‘Background’’ section powered locomotive audible warning Property owners living near railroad which appeared in the proposed rule is device required to be installed on rights-of-way can also be at risk. For being repeated here (with updated data, locomotives by 49 CFR 229.129, and to example, on December 1, 1992, in where appropriate) in order to provide steam whistles required to be installed Hiebert, Alabama, a freight train the necessary perspective in which to on steam locomotives by 49 CFR collided with a lumber truck. Three view Congress’ mandate and the 230.121. These terms do not refer to a locomotives and nine rail cars were resulting rule. locomotive bell, which has value as a derailed, releasing 10,000 gallons of Approximately 4,000 times per year, a warning to pedestrians but which is not sulfuric acid into a nearby water supply. train and a highway vehicle collide at designed to provide a warning over long Residents living near the derailment site one of this country’s 251,000 public and distances.) FRA had previously had to be evacuated because of the private highway-rail grade crossings. Of recognized the locomotive horn’s chemical spill. Even where the those crossings, more than 153,000 are contribution to rail safety by requiring locomotive consist is not derailed in the public at-grade crossings—those that lead locomotives be equipped with initial collision with the highway crossings in which a public road crosses an audible warning device, 49 CFR vehicle, application of the train’s railroad tracks at grade. During the years 229.129, and exempting the use of emergency brake can result in 1997 through 2001, there were 17,601 whistles from Federal noise emission derailment and harm to persons and grade crossing collisions in the United standards ‘‘when operated for the property along the right-of-way. Law-abiding motorists can also be States. These collisions are one of the purpose of safety.’’ 49 CFR 210.3(b)(3). The Florida study, which is discussed endangered in crossing collisions. On greatest causes of death associated with below (and which has been filed in the March 17, 1993, an Amtrak train railroading, resulting in more than 400 docket), documented how failing to use collided with a tanker truck in Fort deaths each year. For example, in the locomotive horns can significantly Lauderdale, Florida. Five people died 1997–2001 period, 2,140 people died in increase the number of collisions. when 8,500 gallons of burning fuel from these collisions. Another 6,615 people the tanker truck engulfed cars waiting were injured. Approximately 50 percent 2. Who Is at Risk in a Grade Crossing behind the crossing gates. of collisions at highway-rail Collision? Highway passengers can also be intersections occur at those Many people, including a number of victims. On December 14, 1995, in intersections equipped with active commenters to the NPRM, have Ponchatoula, Louisiana, five people warning devices such as bells, flashing expressed the view that highway drivers were killed when their truck was hit by lights, or gates (approximately 62,000 who disobey the law and try to beat a an Amtrak train. Among the dead were crossings). train through a crossing should not be three children who were passengers in Compared to a collision between two protected at the expense of the peace the truck. highway vehicles, a collision with a and quiet of communities that parallel In making a decision on the use of train is forty times more likely to result railroad tracks. FRA agrees that drivers locomotive horns, all of the competing in a fatality. The average freight who unlawfully enter grade crossings interests must be reasonably considered. locomotive weighs between 140 and 200 should be punished in accordance with Those whose interests will be affected tons, compared to the average car appropriate traffic laws. However, by this rule include those who may be weight of one to two tons. Many freight strong public policy reasons argue in disturbed by the sounding of locomotive trains weigh in excess of ten thousand favor of reasonable measures to protect horns and all of those who may suffer tons. Any highway vehicle, even a large all who are put at risk at grade in the event of a collision: pedestrians truck, would be crushed when struck by crossings, even drivers who disregard using the crossing, the motor vehicle a moving train. The laws of physics warning devices. driver and passengers, those in adjacent compound the likelihood that a motor Overlooked in this debate are the vehicles, train crews, and those living or vehicle will be crushed in a collision many innocent victims of crossing working nearby. with a moving train. The train’s weight, collisions, including automobile and when combined with the likelihood that railroad passengers and railroad crews 3. FRA’s Study of the Florida Train the train will not be able to stop to avoid who, despite performing their duties Whistle Ban a collision, results in the potential for correctly, are usually unable to avoid Effective July 1, 1984, Florida severe injury or death in virtually every the collisions. Nationally, from 1994 to authorized local governments to ban the collision (it takes a one-hundred car 1998, eight railroad crewmembers died nighttime use of whistles by intrastate train traveling 30 miles per hour in collisions at highway-rail crossings, trains approaching highway-rail grade approximately half a mile to stop—at 50 and 570 crewmembers were injured. A crossings equipped with flashing lights, miles an hour that train’s stopping number of locomotive engineers have bells, crossing gates, and highway signs distance increases to one and a third commented that they or their colleagues that warned motorists that train whistles miles). have had to deal with the trauma would not be sounded at night. Fla. Stat. FRA is responsible for ensuring that associated with helplessly watching section 351.03(4)(a) (1984). After America’s railroads are safe for both people being killed beneath their trains. enactment of this Florida law, many railroad employees and the public. FRA Two hundred railroad passengers were local jurisdictions passed whistle ban shares with the public the responsibility also injured and two died. In ordinances.

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In August 1990, FRA issued a study emergency situation involving a hazard train after the whistling locomotive had of the effect of the Florida train whistle of death or injury.’’ 49 U.S.C. 20104. long passed through the crossing. After ban up to the end of 1989. The study FRA acted after updating its study with the ban took effect, highway traffic hit compared the number of collisions at 1990 and initial 1991 collision records the train much closer to the now silent crossings subject to bans with four and finding that another twelve people locomotive—at the 12th car. The control groups. FRA was trying to had died and thirteen were injured in number of motor vehicles hitting the determine the impact of the whistle nighttime collisions at whistle ban sides of trains also increased nearly bans and to eliminate other possible crossings. During this time, a smaller threefold after the ban was established. causes for any increase or decrease in study, conducted by the Public Utility FRA also considered collisions collisions. Commission of Oregon, corroborated involving double-tracked grade Using the first control group, FRA FRA’s findings and led to the cessation crossings where two trains might compared collision records for time of State efforts to initiate a whistle ban approach at the same time. Since a periods before and during the bans. FRA in Oregon. driver’s view of the second train might found there were almost three times FRA’s emergency order required that be blocked, hearing the second train’s more collisions after the whistle bans trains operated by the FEC sound their whistle could be the only warning were established, a 195 percent whistles when approaching public available to an impatient driver. FRA’s increase. If collisions continued to occur highway-rail grade crossings. This order Florida study found the number of at the same rate as before the bans began preempted State and local laws that second train collisions for the pre-ban taking effect, it was estimated that 49 permitted the nighttime ban on the use period was zero, while four were post-ban collisions would have been of locomotive horns. reported for the period the bans were in expected. However, 115 post-ban Twenty communities in Florida effect. collisions occurred, leaving 66 crossing petitioned for a review of the emergency Several Florida communities asked collisions statistically unexplained. order. During this review, FRA studied whether train speed increased Nineteen people died and 59 people other potential causes for the collision collisions. FRA research has well were injured in the 115 crossing increase. FRA’s closer look at the issue established, as discussed below, that collisions. Proportionally, 11 of the strengthened the conclusion that train speed is not a factor in fatalities and 34 of the injuries could be whistle bans were the likely cause of the determining the likelihood of a traffic attributed to the 66 unexplained increase. collision at highway-rail crossings collisions. For example, FRA subtracted equipped with active warning devices In the second control group, FRA collisions that whistles probably would that include gates and flashing lights. found that the daytime collision rates not have prevented from the collision Speed, however, is a factor in remained virtually unchanged for the totals. Thirty-five collisions where the determining the severity of a collision. same highway-rail crossings where the motor vehicle was stopped or stalled on FRA also considered population whistle bans were in effect during the crossing were removed from the growth in Florida, but found it was not nighttime hours. totals. Eighteen of these collisions a factor. Daytime collision rates were The third control group showed that occurred before and 17 were recorded not increasing at the very same nighttime collisions increased only 23 during the bans. When these figures crossings that had whistle bans at night. percent along the same rail line at were excluded, the number of collisions If population was a factor, then the crossings with no whistle ban. in the pre-ban period changed from 39 daytime numbers should have increased Finally, FRA compared the 1984 to 21, and the number of collisions in dramatically as well. FRA also reviewed through 1989 accident record of the the post-ban period decreased from 115 the number of fatal highway collisions, Florida East Coast Railway Company to 98. Collisions which whistles could and registered drivers and motor (FEC), which, because it was considered have prevented, therefore, totaled 98 vehicles and found no increases that an ‘‘intrastate’’ carrier under Florida collisions as compared to 21 collisions either paralleled or explained the rise in law, was required to comply with local in the pre-ban period; this represents a nighttime crossing collisions. whistle bans, with that of the parallel 367 percent increase, compared to the In the first two years after July 1991, rail line of interstate carrier, CSX 195 percent increase initially calculated. when FRA issued its emergency order Transportation Company (CSX), which Similarly, if collisions where the prohibiting whistle bans in Florida, was not subject to the whistle ban law. motor vehicle hit the side of the train collision rates dropped dramatically to By December 31, 1989, 511 of the FEC’s were also excluded (nine in the pre-ban pre-ban levels. In the two years before 600 gate-equipped crossings were period and 26 in the post-ban period) as the emergency order, there were 51 affected by whistle bans. Collision data being unlikely to have been prevented nighttime collisions. In the two years from the same period were available for by train whistles, the pre-ban collision after, there were only 16. Daytime 224 similarly equipped CSX crossings in count became 12 versus 72 in the collisions dropped slightly from 34 the six counties in which both railroads whistle ban period. The increase in collisions in the two years before the operate. As noted above, FRA found that collisions caused by the lack of whistles emergency order, to 31 in the following FEC’s nighttime collision rate increased then became 500 percent. two years. 195 percent after whistle bans were FRA’s data, however, showed that, imposed. At similarly equipped CSX before the ban, highway vehicles on 4. FRA’s Nationwide Study of Train crossings, the number of collisions average, struck the sides of trains at the Whistle Bans increased 67 percent. 37th train car behind the locomotive. FRA’s Florida study raised the On July 26, 1991, FRA issued an After the ban took effect, 26 vehicles concern that whistle bans could be emergency order to end whistle bans in struck trains, and on average, struck the increasing collisions in other locations. Florida. Notice of that emergency order twelfth train car behind the locomotive. Given the wide difference between (Emergency Order No. 15) was This indicated that motor vehicles are grade crossing conditions from one published in the Federal Register at 56 more cautious at crossings if a community to another, FRA did not FR 36190. FRA is authorized to issue locomotive horn is sounding nearby. assume that the Florida results would be emergency orders where an unsafe Before the whistle bans, highway true at every whistle ban crossing. FRA condition or practice creates ‘‘an vehicles tended to hit the side of the began a nationwide effort to locate grade

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crossings subject to whistle bans and TABLE 1.—COLLISION INJURIES AND information by the horn about the study collision information for those FATALITIES BY TYPE OF PERSON IN- proximity, speed, and direction of the crossings. The Association of American VOLVED train. Railroads (AAR) joined the FRA in that FRA’s study indicated that the effort. Fatali- installation of automatic traffic gates at Type of person involved Injuries ties crossings with whistle bans was more The AAR surveyed the rail industry than twice the national average. Forty and found 2,122 public grade crossings Motorist ...... 258 56 percent of the whistle ban crossings had subject to whistle bans for some period Pedestrian ...... 17 41 gates compared to 17 percent nationally. of time between January 1988 and June Railroad employee ...... 56 0 FRA found 831 crossings where 30, 1994. This total did not include the whistle sounding had at one time been 511 public crossings that were subject to The types of collisions which took in effect, but where the practice had whistle bans in Florida that FRA had place at whistle ban crossings and the changed during the January 1988 already studied.1 The study also did not resulting casualties are shown in Table through June 1994 study period. In 87 include crossings on small, short line 2 (casualty figures in this table exclude percent of the cases, bans were no railroads, and certain regional railroads casualties to railroad employees). It is longer in effect. A ‘‘before-and-after’’ interesting to note that the mean train which did not report to the AAR. The analysis comparing collision rates speed (train speed is positively nationwide survey found whistle bans showed an average of 38 percent fewer correlated with fatalities) varies by type collisions when whistles were sounded in 27 States that affected 17 railroads. of collision. Of the injuries and fatalities FRA studied collisions occurring indicating that resuming use of the shown in Table 2, 11 injuries and 5 whistles had a .38 effectiveness rate in between January 1988, and June 30, deaths occurred when the vehicle was 1994. reducing collisions. This finding hit by a second train. paralleled the Florida experience. Two thousand and four of the FRA also rated whistle ban grade crossings were subject to 24-hour TABLE 2.—TYPE OF COLLISION crossings according to an ‘‘Accident whistle bans. Another 118 grade Prediction Formula.’’ The formula crossings were subject to nighttime-only Mean predicts the statistical likelihood of Type of collision Inju- Fatali- train bans. The States with the largest number ries ties speed having a collision at a given highway- of whistle ban crossings were Illinois, rail grade crossing. The physical Wisconsin, Kentucky, New York, and Motor vehicle struck characteristics of each crossing were Minnesota. More than half of the train ...... 51 8 15.5 considered in the formula, including the crossings were on three railroads: CSX, Train struck motor number of tracks and highway lanes, vehicle ...... 224 89 25.4 Consolidated Rail Corporation (Conrail), types of warning devices, urban or rural and Soo Line. A report covering the location, and whether the roadway was The driver was killed in the collision paved. Also considered were nationwide study was issued in April in 42 instances (5.3 percent of 1995. FRA found that whistle ban operational aspects, such as, the number collisions), the remaining 55 fatalities of highway vehicles, and the number, crossings averaged 84 percent more were either passengers or pedestrians. type, time of day, and maximum speed collisions than similar crossings with no The driver passed standing vehicles to of trains using the crossing. The formula bans. There were 948 collisions at go over the crossing in 37 of the was developed using data from whistle ban crossings during the period collisions (4.7 percent). The driver was thousands of collisions spanning many studied. Sixty-two people died in those more likely to be killed when moving years. FRA then ranked the 167,000 collisions and 308 were injured. over the crossing at the time of the public crossings in the national Collisions occurred on every railroad collision (35 of the driver fatalities), inventory at that time in an identical with crossings subject to whistle bans, rather than when the vehicle was manner. Both the whistle ban crossings and in 25 of the 27 States where bans stopped or stalled at the crossing, and and the national inventory crossings were in effect. in most of the collisions (69.9 percent) were then placed into one of ten groups Since the 1995 study, FRA continued at whistle-ban crossings the driver was ranging from low-risk to high-risk. to analyze relevant data. Over the period moving over the crossing. Additionally, FRA compared the number of in almost every collision (97 percent), a of 1992–1996, there were 793 collisions collisions occurring within each of the warning device (either active or passive) at 2,366 crossings subject to whistle ten groups of crossings, over a five year was located on the vehicle’s side of the period from 1989 through 1993, and bans. These collisions resulted in the crossing. This supports the theory that found that for nine out of the ten risk fatalities and injuries displayed in Table the warning given by the train horn groups, the whistle ban crossings had 1, as well as more than $2 million in could deter the motorist from entering significantly higher collision rates than motor vehicle damages. the crossing. the crossings with no whistle bans. On Collisions which took place when the average, the risk of a collision was motorist was moving over the crossing 1 The FEC crossings comprised virtually all of the found to be 84 percent greater at whistle ban crossings in Florida. For simplicity, were more likely to be fatal (72 percent crossings where train horns were FRA elected to remove all Florida crossings from of the fatalities). This type of collision silenced. Another way to interpret this the national study. Since it became apparent from was also more likely to result in injury difference would be to say that this initial national review that the FEC experience with 209 of the 258 motorist injuries locomotive horns had a .46 effectiveness represented the high end of ban impacts, and since occurring under these circumstances. rate in reducing the rate of collisions. those impacts had been mitigated by E.O. 15 with These are the types of collisions the FRA was concerned about the higher respect to the later study period, FRA continued to proposed rule is designed to prevent. risk disclosed by the nationwide study. remove both Florida ban crossings and Florida train Motorists that fail to notice or heed the horn crossings from all subsequent studies. Florida From its vantage point, FRA was able to public crossings represent 2.6 percent of public warning devices in place at a crossing see the elevated risk associated with crossings, so this omission should not materially may be deterred by the sound of a train whistle bans, which might not be affect the national analysis. horn. The motorist is also given apparent to local communities. While

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crossing collisions are infrequent events (or railcar). FRA also excluded events Another 18 percent of the collisions at individual crossings, the nationwide where pedestrians were struck. occurred while motorists were stopped study, and the experience in Florida, Pedestrians, compared to vehicle on the crossings, probably waiting for showed they were much less infrequent operators, have a greater opportunity to vehicles ahead to move forward. There when train horns were not sounded. see and recognize an approaching train were smaller percentages of collisions FRA conducted an outreach program because they can look both ways from involving stalled and abandoned in order to promptly share this the edge of the crossing, closer than the vehicles. Suicides are not included in information with all communities where motorist sitting at least a car hood the collision counts. At crossings bans were in effect. In addition to length or more back from the edge. They equipped with flashing signal lights issuing press releases and sending can also stop or reverse their direction and/or other active warning devices, but informational letters to various parties, more quickly than a motorist if they not gates, collisions occurred 119 FRA met with community officials and have second thoughts about crossing percent more often at crossings subject participated in town meetings. Along safely. to bans. A distinction should be made with the study’s findings, information Data for the five-year time period from between the two circumstances. In the about the upcoming rule requiring the 1992 through 1996 were used for the case of lowered gates, it is the motorist’s sounding of train horns was presented, updated analysis in place of the older decision to circumvent a physical including provisions for Supplemental data of the 1995 Nationwide Study. For barrier to take a clearly unsafe and Safety Measures (SSMs) that could be the updated analysis, the collision rate unlawful action that can result in a implemented by communities to for whistle ban crossings in each device collision. However, in the case of compensate for silenced train horns and category was compared to similar crossings with flashing light signals allow bans to remain in effect. crossings in the national inventory and/or other active devices, collisions From the outreach effort, FRA gained using the ten-range risk level method may be more the result of a motorist’s a clearer understanding of local used in the original study. error in judgment rather than a concerns and issues. Many of those The analysis showed that an average deliberate violation of the State’s motor concerns were expressed in person and of 62 percent more collisions occurred vehicle laws. The ambiguity of flashing others were submitted in writing to at whistle ban crossings equipped with lights at crossings, which in other traffic FRA’s train horn docket. Another result automatic gates and flashing lights than control situations indicate that the of the outreach effort was the at similarly equipped crossings across motorist may proceed after stopping, identification by communities and State the nation without bans. For purposes of when safe to do so, coupled with the and local governmental agencies of 664 the NPRM, FRA used this value as the difficulty of correctly judging the rate of additional crossings that were increased risk associated with whistle approach of a large object such as a purportedly subject to whistle bans, but bans instead of the 84 percent cited in locomotive, may contribute to this not included in the nationwide study. the Nationwide Study of Train Whistle phenomenon. FRA’s collision data About 95 percent of these were located Bans released in April 1995. FRA suggested that the added warning in the city and suburbs of Chicago, determined that 62 percent was provided by the train horn is most Illinois. Many carry a high volume of appropriate because it represents the critical at crossings without gates but commuter rail traffic. elevated risk associated with crossings which are equipped with other types of Prior to issuing the NPRM, FRA with automatic gates and flashing lights, active warning devices. updated its analysis of safety at whistle which is the only category of crossings By separating crossings according to ban crossings, expanding it to include that will be eligible under this rule for the different categories of warning data for all the Chicago Region crossings new ‘‘quiet zones’’ (except for certain devices installed, FRA was better able to as well as for a few other newly crossings where train speeds do not identify the level at which locomotive identified locations. exceed 15 miles per hour). horns increase safety at gated crossings FRA also refined its procedure by The updated analysis also indicated and thus the level at which substitutes conducting separate analyses for three that whistle ban crossings without gates, for the horn must be effective in order different categories of warning devices but equipped with flashing light signals to fully compensate for the lack of a in place at the crossings (e.g., automatic and/or other types of active warning horn at those crossings. gates with flashing lights; flashing lights devices, on average, experienced 119 For crossings with passive signs as the or other active devices without gates; percent more collisions than similarly only type of warning device, the and passive devices only, such as equipped crossings without whistle updated study indicated an average of ‘‘crossbucks’’ or other signs). By bans. This finding made clear that the 27 percent more collisions for crossings separating crossings according to the train horn was highly effective in subject to whistle bans. This is the different categories of warning devices deterring collisions at non-gated smallest difference identified between installed, FRA was better able to crossings equipped only with flashing crossings with and without whistle identify the level at which locomotive lights. The only exception to this bans. These crossings account for about horns increase safety at crossings with finding was in the Chicago Region one fourth of the crossings with whistle different types of warning devices and where collisions appeared from bans. Typically, they are the crossings thus the level at which substitutes for available data to be 16 percent less with the lowest aggregate risk of the horn must be effective in order to frequent. This will be discussed in collision because the installation of fully compensate for the lack of a horn greater detail below. active warning devices usually follows at those crossings. In addition, FRA In comparing the collision differences a sequence where the highest risk excluded from the analysis certain at crossings with gates and those crossings are equipped first. Two collisions where the sounding of the without gates, FRA found that about 55 determinants of crossing risk are the train horn would not have been a percent of the collisions at crossings amount of train traffic and highway deterrent to the collisions. These with gates occurred when motorists traffic at a crossing. Often, crossings included cases where there was no deliberately drove around lowered with only passive warning devices are driver in the vehicle and collisions gates. These collisions occurred 128 located on seldom used sidings and where the vehicle struck the side of the percent more often at crossings with industrial tracks and/or on roadways train beyond the fourth locomotive unit whistle bans than at other crossings. with relatively low traffic levels. FRA

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believes this may be the reason that the ‘‘(a) Definitions.—As used in this excepted from the requirement of this difference in the numbers of collisions section— section. at whistle ban and non-ban crossings is ‘‘(1) the term ‘‘highway-rail grade ‘‘(d) Application for Waiver or so much less than for the other crossing crossing’’ includes any street or Exemption.—Notwithstanding any other categories. For crossings with passive highway crossing over a line of railroad provision of this subchapter, the warnings where trains do not exceed 15 at grade; Secretary may not entertain an miles per hour and where railroad ‘‘(2) the term ‘‘locomotive horn’’ refers application for waiver or exemption of personnel use flags to warn motorists of to a train-borne audible warning device the regulations issued under this section the approach of a train, whistle bans meeting standards specified by the unless such application shall have been would entail a small risk of a collision Secretary of Transportation; and submitted jointly by the railroad carrier resulting in an injury. However, at ‘‘(3) the term ‘‘supplementary safety owning, or controlling operations over, crossings with passive warnings and measure’’ (SSM) refers to a safety system the crossing and by the appropriate with higher train speeds, motorists or procedure, provided by the traffic control authority or law would have no warning of the approach appropriate traffic control authority or enforcement authority. The Secretary of a train if the train horn were banned. law enforcement authority responsible shall not grant any such application At such crossings, in order to ensure for safety at the highway-rail grade unless, in the judgment of the Secretary, their safety, motorists must search for crossing, that is determined by the the application demonstrates that the and recognize an approaching train, and Secretary to be an effective substitute for safety of highway users will not be then visually judge whether it is the locomotive horn in the prevention of diminished. moving, and if so, estimate its arrival highway-rail casualties. A traffic control ‘‘(e) Development of Supplementary time at the crossing, all based only on arrangement that prevents careless Safety Measures.—(1) In order to visual information which may be movement over the crossing (e.g., as promote the quiet of communities impaired by hills, structures, vegetation, where adequate median barriers prevent affected by rail operations and the track curvature, and road curvature as movement around crossing gates development of innovative safety well as by sun angle, weather extending over the full width of the measures at highway-rail grade conditions, or darkness. The driver’s lanes in the particular direction of crossings, the Secretary may, in decision to stop must be made at a point travel), and that conforms to standards connection with demonstration of sufficiently in advance of reaching the prescribed by the Secretary under this proposed new SSMs, order railroad crossing to accommodate the vehicle’s subsection, shall be deemed to carriers operating over one or more stopping distance. If other vehicles are constitute an SSM. The following do crossings to cease temporarily the following, a sudden decision to stop not, individually or in combination, sounding of locomotive horns at such could result in a rear-end collision with constitute SSMs within the meaning of crossings. Any such measures shall have the vehicle being pushed into the path this subsection: standard traffic control been subject to testing and evaluation of the train. While FRA’s data indicated devices or arrangements such as and deemed necessary by the Secretary that the smallest increase in collision reflectorized crossbucks, stop signs, prior to actual use in lieu of the frequency is associated with whistle flashing lights, flashing lights with gates locomotive horn. bans at passive crossings, logic that do not completely block travel over ‘‘(2) The Secretary may include in suggested that the banning of train the line of railroad, or traffic signals. regulations issued under this subsection horns at passive crossings could entail ‘‘(b) Requirement.—The Secretary of special procedures for approval of new a much more significant safety risk per Transportation shall prescribe SSMs meeting the requirements of unit of exposure (vehicle crossings per regulations requiring that a locomotive subsection (c)(1) of this section train movement). Without the audible horn shall be sounded while each train following successful demonstration of train horn warning, motorists would is approaching and entering upon each those measures. have no indication of the imminent public highway-rail grade crossing. ‘‘(f) Specific Rules.—The Secretary arrival of a train beyond what they ‘‘(c) Exception.—(1) In issuing such may, by regulation, provide that the could determine visually. For motorists regulations, the Secretary may except following crossings over railroad lines unfamiliar with whistle bans who from the requirement to sound the shall be subject, in whole or in part, to encounter passive crossings where locomotive horn any categories of rail the regulations required under this horns are not sounded, there would be operations or categories of highway-rail section: an even greater risk. grade crossings (by train speed or other ‘‘(1) Private highway-rail grade 5. Statutory Mandate factors specified by regulation)— crossings. ‘‘(A) that the Secretary determines not ‘‘(2) Pedestrian crossings. After reviewing FRA’s Florida study, to present a significant risk with respect ‘‘(3) Crossings utilized primarily by Congress addressed the issue. On to loss of life or serious personal injury; nonmotorized vehicles and other special November 2, 1994, Congress passed ‘‘(B) for which use of the locomotive vehicles. Public Law 103–440 (‘‘Act’’) which horn as a warning measure is ‘‘(g) Issuance.—The Secretary shall added § 20153 to title 49 of the United impractical; or issue regulations required by this States Code. (Subsections (I) and (j) ‘‘(C) for which, in the judgment of the section pertaining to categories of were added on October 9, 1996 when Secretary, SSMs fully compensate for highway-rail grade crossings that in the § 20153 was amended by Public Law the absence of the warning provided by judgment of the Secretary pose the 104–264.) The Act requires the use of the locomotive horn. greatest safety hazard to rail and locomotive horns at public grade ‘‘(2) In order to provide for safety and highway users not later than 24 months crossings, but gives FRA the authority to the quiet of communities affected by following the date of enactment of this make reasonable exceptions. Section train operations, the Secretary may section. The Secretary shall issue 20153 of title 49 of the United States specify in such regulations that any regulations pertaining to any other Code states as follows: SSMs must be applied to all highway- categories of crossings not later than 48 ‘‘Section 20153. Audible warning at rail grade crossings within a specified months following the date of enactment highway-rail grade crossings. distance along the railroad in order to be of this section.

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‘‘(h) Impact of Regulations.—The Accident Prediction Formula (APF). FRA has specifically included in the Secretary shall include in regulations However, the interim final rule adds a rule sufficient time for those prescribed under this section a concise level of further sophistication to the communities to conform to any changes statement of the impact of such formula by considering collision that may be made to the interim final regulations with respect to the operation severity and permitting quiet zones in rule in order to enable them to retain of section 20106 of this title (national part based on a corridor’s relationship to their whistle-free crossings. uniformity of regulation). a national crossing risk index derived However, we don’t believe Congress ‘‘(I) Regulations.—In issuing from this severity-weighted APF. A intended that FRA delay administrative regulations under this section, the large number of commenters actions such as working with public Secretary— complained that FRA did not authorities and reviewing applications ‘‘(1) shall take into account the sufficiently take into consideration for quiet zones in order to permit interest of communities that— safety history at the crossing. While the communities to institute quiet zones at (A) have in effect restrictions on the APF does take into consideration such the earliest possible date after the one sounding of a locomotive horn at past record, the interim final rule builds year required delay has elapsed. highway-rail grade crossings; or on the NPRM and resulting comments Accordingly, FRA will accept quiet zone (B) have not been subject to the by placing more weight on the safety applications from public authorities routine (as defined by the Secretary) record at crossings within a corridor and during the one year delay period. While sounding of a locomotive horn at permitting exceptions based on that this interval should enable public highway-rail grade crossings; safety record. The result—that some authorities to begin planning, they ‘‘(2) shall work in partnership with quiet zones may be established without should also be aware that the final rule affected communities to provide the need to implement SSMs or ASMs may contain changes based on technical assistance and shall provide a if the corridor does not pose a comments to this interim final rule. reasonable amount of time for local significant risk based on a national Because of this uncertainty, FRA will communities to install SSMs, taking standard—flows logically from the make every effort to issue a final rule into account local safety initiatives NPRM’s use of the APF and the expeditiously after the close of the (such as public awareness initiatives commenters’ clear request to make the comment period. and highway-rail grade crossing traffic entire rule more risk based. 8. Rule Summary law enforcement programs) subject to Even though this rule could be issued such terms and conditions as the as a final rule, FRA has determined that The following very brief summary of Secretary deems necessary, to protect the public should have an opportunity this interim final rule is provided for the public safety; and to comment on the rule as changed. reader’s convenience. Because this is ‘‘(3) may waive (in whole or in part) Because the language in some sections merely a summary, it should not be any requirement of this section (other has been revised, FRA, and the final relied on for definitive information than a requirement of this subsection or rule, will benefit from the input of the regarding compliance with this rule. • subsection (j)) that the Secretary public; FRA has found in the past that This rule applies to all railroads determines is not likely to contribute public comments often contain that operate on the general railroad significantly to public safety. suggestions that can improve a system of transportation. The rule does ‘‘(j) Effective Date of Regulations.— regulatory document. Therefore, not apply to freight railroads and tourist Any regulations under this section shall comments are being solicited on all and scenic railroads which are not on not take effect before the 365th day aspects of this rule [see ‘‘Public the general railroad system. It does not following the date of publication of the Participation’’ section]. FRA will review apply to rapid transit systems in urban final rule.’’ the comments and reserves the right to areas that are not connected to the general railroad system of 6. Issuance of Interim Final Rule make revisions when issuing a final rule. transportation. Rapid transit operations FRA is issuing today’s rule as an sharing tracks with general system interim final rule, rather than as a final 7. Effective Date of This Rule railroads at crossings, or sharing rule. An interim final rule has the same Because this interim final rule has all crossings with general system railroads force and effect as a final rule, but the legal attributes of a final rule, the are connected to the general system at differs from a final rule in one principal effective date of this rule will be the crossings and are thus subject to part way—when an interim final rule is December 18, 2004. Congress 222; however, rapid transit operations issued, comments are solicited and the specifically provided for this one year are not subject to the horn volume agency reserves the right to make delay; subsection (j) of § 20153, which requirements of part 229. changes to the rule in response to the was added to the basic rulemaking • Locomotive horns must be sounded comments received. Because the rule mandate in 1996, provides that any while approaching and entering upon issued today is a logical outgrowth of regulations issued under that section each public highway-rail grade crossing. the NPRM, FRA could have issued it as shall not take effect before the 365th day The horn sound level must be a a final rule. Both the NPRM and interim following the date of publication of the minimum of 96 dB(A) and no louder final rule issued today permit final rule. Issuing this interim final rule than 110 dB(A) measured 100 feet in exceptions to the use of the locomotive rather than a final rule will not penalize front of the locomotive and 15 feet horn, address the need to mitigate the those communities which have waited a above the rail. All locomotives must risk associated with lack of the number of years for issuance of a rule sound the horn in the standard locomotive horn, provide for permitting the creation of quiet zones. sequence of two longs, one short, and implementation of SSMs and ASMs, They will still be able to establish quiet one long starting at least 15 seconds, but and address mitigation of risk on a zones on the same schedule as if a final no more than 20 seconds before corridor-wide, rather than individual rule were issued today. Alternatively, reaching the grade crossing, however, in grade crossing basis. Like one major issuance of this rule in the form of an no case may the horn be sounded more provision of the NPRM, the interim final interim final rule will not have a than 1⁄4 mile before the crossing. rule bases the determination of a significant negative effect on those • A railroad may, with certain corridor’s risk mitigation goal on FRA’s communities with present whistle bans. exceptions, decide to not sound the

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locomotive horn at a crossing if the establish a quiet zone using a months and implements such SSMs or locomotive speed is 15 miles per hour combination of SSMs, or ASMs (which ASMs within three years. or less and train crew members or includes modified SSMs). As in quiet • Wayside horns may be installed equipped flaggers flag the crossing to zone designation, the public authority within a quiet zone if the public provide warning of the approaching has discretion as to which SSMs or authority determines that it is train to motorists. ASMS to apply and where they are to appropriate to do so. Wayside horns • A quiet zone is at least 1⁄2 mile in be applied. However, in this case, the may also be used outside of quiet zones length, although Pre-Rule Quiet Zones public authority’s proposal is reviewed in lieu of locomotive horns at crossings may continue unchanged. Except for by FRA. If FRA determines that the equipped with automatic flashing lights certain exceptions listed in the rule, safety improvements will compensate and gates. (Wayside horns have not yet each public crossing within a New for the absence of the locomotive horn been classified by FHWA as traffic Quiet Zone must at a minimum be or that the safety improvements will control devices. If FHWA does classify equipped with flashing lights, gates, and reduce risk to a level at, or below the them as traffic control devices, the signs warning of the absence of Nationwide Significant Risk Threshold, wayside horn must also be approved in locomotive horns. Each public crossing a quiet zone may be established. the Manual on Uniform Traffic Control within a Pre-Rule Quiet Zones may • A Pre-Rule Quiet Zone will be Devices (MUTCD) or FHWA must retain, but must not downgrade the considered approved and may remain in approve experimentations pursuant to warning systems in place. effect if the quiet zone could qualify for section 1A.10 of the MUTCD.) • This rule does not cover horn use quiet zone designation if it were a New 9. Overview of the Interim Final Rule: at private crossings outside of quiet Quiet Zone based on having a Quiet zones. Their use will continue to be Principles, Strategies, and Major Zone Risk Index at, or below, the Outcomes governed by State and local laws and Nationwide Significant Risk Threshold private agreements. However, if a or if there haven’t been any relevant A. Usefulness of the Train Horn private crossing is within a quiet zone, collisions at the public crossings within This rulemaking was mandated by horn use is restricted at that crossing. the quiet zone for the past 5 years and • The rule provides for two types of law, but its impetus derives from a the Quiet Zone Risk Index was less than quiet zones—Pre-Rule Quiet Zones clearly defined safety need. A majority twice the Nationwide Significant Risk (consecutive crossings where horns of the States and all railroads have Threshold. mandated use of the train horn to were silenced by State or local law or by • formal or informal agreement, and If a Pre-Rule Quiet Zone cannot provide an audible warning at highway- which were in existence as of October comply with the requirements for a rail crossings. FRA research and 9, 1996 and on December 18, 2003, and quiet zone designation as discussed analysis, both prior to institution of this New Quiet Zones (quiet zones above, the existing horn restrictions may rulemaking and during its pendency, established under the terms of this rule continue on an interim basis. The has confirmed the beneficial safety and which do not qualify as Pre-Rule restrictions may continue for five years impact of the train horn. The National Quiet Zones). if within, three years after publication of Transportation Safety Board (NTSB) has • A quiet zone may be established this rule, the public authority files with also supported the need for this warning using SSMs, or in certain cases, ASMs, FRA a detailed plan for maintaining the to motorists. in two ways: (a) By designation by a Pre-Rule Quiet Zone (or establishing a FRA understands the point made by public authority (which is the public New Quiet Zone). Horn restrictions may commenters that the horn cannot be entity responsible for safety and continue for an additional three years relied on to prevent every accident, and maintenance of the roadway crossing beyond the five-year period if the the data confirm that. Nevertheless, the the railroad tracks at a public highway- appropriate State agency provides FRA horn is one cue that is often available to rail grade crossing); or (b) by application with a comprehensive statewide the motorist at the decision point; and to FRA. implementation plan and physical it should not be withheld absent serious • A quiet zone may be designated if improvements are made within the thought about the consequences. There (a) supplementary safety measures are quiet zone, or in a quiet zone elsewhere are some circumstances (e.g., restricted applied to every public grade crossing within the State, within three years and view) in which the train horn may be within the quiet zone; (b) the Quiet four years after publication respectively. the best, and most convincing, warning Zone Risk Index is at, or below, the • FRA will annually review every to the motorist. Each year a good portion Nationwide Significant Risk Threshold; quiet zone established by comparing the of the accidents at crossings occur when or (c) supplementary safety measurers Quiet Zone Risk Index to the motorists are not convinced by even are instituted which reduce the Quiet Nationwide Significant Risk Threshold. flashing warning lights and downed Zone Risk Index to a level at, or below, If the Quiet Zone Risk Index as last gates, and they drive around the gates the Nationwide Significant Risk calculated by FRA is at, or above, twice and are struck by the train they neither Threshold, or to the risk level which the Nationwide Significant Risk saw nor heard. The train horn, which would exist if locomotive horns Threshold, or if the Quiet Zone Risk announces that there is, in fact, a train sounded at all crossings within the quiet Index is above the Nationwide coming now (not switching cars down zone. The public authority has Significant Risk Threshold, but is lower the track somewhere out of danger) may discretion as to how the Quiet Zone than twice the Nationwide Significant often be the most effective warning. Risk Index is reduced, and may choose Risk Threshold and a relevant collision FRA understands the sense of the type of SSM to be applied and the occurred at a crossing within the quiet frustration among law-abiding citizens crossings at which they are to be zone within the preceding five calendar who feel that they should not be applied in complying with either (a), years, the quiet zone will terminate six burdened by train horn noise (or the (b), or (c). months after the date of receipt of cost of alternatives) because other • If a public authority, for whatever notification from FRA of the Nationwide citizens violate traffic laws at highway- reason, cannot comply with the Significant Risk Threshold level, unless rail crossings equipped with flashing requirements of quiet zone designation, the public authority files plans to lights and gates. FRA is a strong it may apply to FRA for approval to implement SSMs or ASMs within six proponent of law enforcement at

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highway-rail crossings. However, the to transfer all costs to the driver who train horn on the extremely active rail statute clearly contemplates that fails to obey the law, even if that were lines in that region. motorists will be given the additional, a desirable thing. Unfortunately, there is no known often final warning that the train horn In general, these principles appear to strategy for providing audible warning provides (or that other safety measures be accepted outside of whistle ban to motorists without also spreading will be instituted), even where warning jurisdictions. Train horns continue to unwanted noise into communities. (The systems employing flashing lights and sound today at over 98 percent of public wayside horn can reduce the amount of gates are present. Further, as a matter of highway-rail crossings, and over 9 unwanted noise, but not eliminate it policy, FRA believes that it is million Americans living and working entirely.) Future research may permit appropriate to protect even the unwise along rail lines are incidentally exposed refinement of the multi-frequency from the consequences of their to the ‘‘noise’’ from this source. Most pattern of contemporary train horns, but misdeeds where those consequences are communities and residents appear to FRA has no present information that especially severe—and where society as tolerate these interruptions reasonably suggests a means of providing a clearly a whole may bear the burden of those well. identifiable and urgent signal in a motor consequences. vehicle using a sound that is pleasing to B. Incompatibility of Horn Noise With As noted elsewhere in this preamble, nearby residents. victims of collisions at highway-rail Community Needs crossings are not limited to reckless or However, two general trends appear C. Crafting Exceptions to Use of the intoxicated drivers. Indeed, in many to have converged in a manner that is Train Horn cases victims are innocent passengers antithetical to community acceptance of The statute provides direction for who have had no control whatsoever train horn noise under certain adjusting the competing interests of over the driver’s behavior. conditions. First, as a Nation we are safety and community quiet. Although Even though collisions at highway- becoming more sensitive to disruptive the statute says unequivocally, ‘‘The rail crossings are far more severe in their sources of noise in our environment. Secretary of Transportation shall consequences than the average highway This reflects success in building quieter prescribe regulations requiring that a accident, most victims survive. Many communities and in engineering noise locomotive horn shall be sounded while incur substantial medical bills and out of daily life (through zoning, each train is approaching and entering require extended rehabilitation. Costs building codes, better design of motor upon each public highway-rail grade are borne by the general public through vehicles, etc.). Second, as a result of the crossing,’’ most of the language of the health and disability insurance consolidation of the national rail system statute has the effect of explaining how arrangements, and through higher costs since the 1970s, rail traffic has been exceptions might be crafted. The statute of goods and services provided by concentrated on fewer lines, resulting in continues: employers who must extend sick leave more train movements through those (1) In issuing such regulations, the and other benefits. In this regard, many communities where main lines continue Secretary may except from the costs associated with casualties that to be operated. Particularly when the requirement to sound the locomotive occur in whistle ban jurisdictions are in train horn is sounded, the number of horn any categories of rail operations or effect hidden taxes on persons outside train movements is clearly a significant categories of highway-rail grade those communities over which these factor in the ‘‘noise load’’ imparted to crossings (by train speed or other factors costs are spread. From an economic the community. specified by regulation)— standpoint, the community enjoys its For various reasons, there has been a (A) that the Secretary determines not quiet and, unless measures have been growth in the number of ordinances and to present a significant risk with respect taken to compensate for the silencing of arrangements under which train horns to loss of life or serious personal injury; the horn, someone else pays for most of are silenced (‘‘whistle bans’’). Further, (B) for which use of the locomotive it. in many communities where State law horn as a warning measure is Finally, there can be victims on the currently does not permit whistle bans, impractical; or trains and in the general community, as relief from the noise associated with (C) for which, in the judgment of the well. Collisions between trucks and train horns is being actively sought by Secretary, SSMs fully compensate for heavy trains can cause the injury or residents and their elected the absence of the warning provided by even death of train crew members. Some representatives. Fear of losing existing the locomotive horn. collisions at crossings cause trains to bans, and the desire to silence train The last of these exceptions— derail (the risk is significant when a horns in some areas without existing substitution of supplementary (or heavy truck is involved), and cars bans, have combined to create alternative) safety measures—was at the containing hazardous materials are significant public interest in this heart of the NPRM and remains the best found in a high percentage of trains. proceeding. means of reconciling safety and Release of hazardous materials in a The situation of existing whistle ban community quiet. As explained below, community can result in evacuations, communities is particularly vexing, this interim final rule seeks to make the property damage and even injury or because public and private planning list of other safety measures as flexible death. When the collision involves a decisions have been made with the and cost effective as possible. passenger train, the potential exists for assumption that horns will be banned. The second exception, which refers to a determination of impracticability, is a harm to passengers, as well as crew Commenters in the Chicago Region 2 criterion of limited application. It is members. Commenters were correct in also called attention to the conflict impractical to provide effective warning noting that such events are rare, but the between sound urban planning, which by sounding the horn if it is necessary potential for catastrophic event is real; promotes construction of high density to back a mile-long train over a crossing and an important role for safety housing near a commuter railroad (so the crossing needs to be flagged), regulation is to anticipate and mitigate stations, and very frequent use of the these sorts of risks. and it is impractical to provide a In summary, we all have a stake in 2 The Chicago area, or Chicago Region, is warning of suitable duration prior to the preventing collisions at highway-rail comprised of 6 counties: Cook, DuPage, Lake, Kane, train’s arrival in the case of a 110 mph crossings; and there is no practical way McHenry, and Will. passenger train (so active warning

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devices and a ‘‘sealed corridor’’ strategy In this interim final rule FRA has The strength of the formula is in its are strongly recommended, whether or sought to afford greater recognition to ability to combine empirically-derived not the horn is used). But in most other situations where the risk of serious insights about risk, based on common scenarios, the train horn will serve its injury is low. In so doing, FRA has been characteristics of crossings and the purpose if sounded. Some commenters conscious of the need to ensure public accident history of the individual invited FRA to consider the cost of funds are expended on improvements crossings under study. As such, it is SSMs as a test of impracticability, but that have significant value in holding reasonably successful in predicting that is really a policy or political down casualty risk. FRA has also been where accidents will occur. As with any objection, not one going to the conscious of the fact that there may be, model of this type designed to study practicability of sounding the train horn at least in the short term, an relatively rare events, the model is more and thereby alerting the motorist. FRA ‘‘opportunity cost’’ associated with the successful in predicting results for a believes that the suggested reading of decision to spend scarce tax dollars on group of crossings with at least some ‘‘impractical’’ is not appropriate and SSMs in order to maintain community similar characteristics (e.g., several would result in an enormous increase in quiet, rather than other uses. (In crossings in a proposed quiet zone) than safety risk by permitting train horns to acknowledging this point, FRA notes for a single crossing. be banned routinely without the need to that this is not a zero sum exercise Risk is defined as the product of take compensating measures. because the avoidance of accident probability (frequency) and severity The first exception, absence of consequences is an economic benefit to (consequences), so the APF prediction ‘‘significant risk with respect to loss of the community.) of the likely number of accidents by life or serious personal injury,’’ was FRA recognizes that there is no way itself is not enough. However, the suite relied upon in the NPRM only with to achieve what would be perceived as of APF tools includes calculations that respect to very limited circumstances perfect justice for communities in this permit estimations of the likelihood that (but comments were solicited regarding proceeding, any more than it is possible a predicted accident will result in injury other options). As a result of testimony to eliminate all risk to persons. or death to one or more persons. FRA and written comments received from the However, FRA has concluded that the has taken advantage of these tools to public, including elected and appointed risk assessment method selected for this estimate the likely frequency of relevant representatives of State and local proceeding should— (casualty-producing) collisions. To governments, FRA has reviewed in • Permit exceptions to use of the train determine the likely number of injuries and fatalities in predicted accidents, some detail whether this criterion horn based on absence of significant FRA has employed the averages from should be given greater effect in the risk, in most cases avoiding historical accidents. In order to combine final rule. The statute clearly does not expenditures that would not be the consequences of non-fatal and fatal require the exclusion of all risk, and recovered through accident and casualty injury, FRA has used relational values FRA agrees that it is best to interpret reduction; derived from cost-benefit practice (in and implement this exception, if • Require use of the train horn where which the avoidance of a fatality is possible, in a manner that is not in risk is clearly significant, unless SSMs assigned a societal value based on conflict with the general approach taken and ASMs are implemented to abate the established government guidelines, and by the Congress and the Department of excess risk associated with silencing the both less serious and more serious non- Transportation (DOT) with respect to train horn; and • fatal casualties are then assigned a value other safety laws and regulations Respond to changes in rail proportional to the value of avoiding a addressing public safety. operations and communities as data fatality). The result is a risk index value In general, DOT and other Executive becomes available to update the relevant for each crossing. Branch departments and agencies must computations. From the inception of this rulemaking consider costs and benefits before The particular means chosen by FRA (indeed, beginning with the issuance of issuing regulations. This is true even to identify significant risk is the creation Emergency Order 15 in 1991), FRA has where statutes have mandated that rules of a risk index by which prospective sought to address the issue of quiet on particular topics be issued, because quiet zones can be rated in relation to zones (contiguous rail corridors of in most cases the Congress has left the one another and in relation to selected reasonable length having one or more means of implementation to the criteria. The method (which is more crossings) rather than individual agencies. The present rulemaking fully explained below) is applicable to crossings. FRA has noted that a involves a much more specific mandate quiet zones created both where there are crossing-by-crossing approach would than typically embodied in safety existing bans and elsewhere. In not serve community interests, given the legislation. Nevertheless, FRA did considering how to approach this distance over which the horn must be consider costs and benefits in crafting problem, FRA elected to start with the sounded and given the proximity of the proposed rule (and found that, current Accident Prediction Formula crossings in most communities. Corridor overall, investments in safety systems (APF), which uses data elements planning permits risk reduction to be used as a substitute for the horn would available from the national inventory of taken at the lowest possible cost, and it be recovered). However, in the NPRM, highway-rail crossings and the FRA encourages consolidation of crossings FRA did not focus sharply on the costs Railroad Accident-Incident Reporting through closure of redundant or very and benefits for those communities System. The APF was developed by the hazardous crossings. Further, where the underlying risk of a casualty- Volpe National Transportation Systems locomotive engineers have increasingly producing collision is comparatively Center for FRA and the Federal demanding jobs and should not be low. Some commenters in areas with Highway Administration, and it is distracted by the task of picking out existing bans responded with the maintained in current form to support individual crossings along their route criticism to the effect that, while some initial identification of crossings that are where the horn must or must not be other community might recover its candidates for safety improvements used. There were no comments in this costs, for the particular community the using Federal funds. Many States use proceeding that effectively questioned existing risk at crossings is very low and this formula or similar formulas to rank this rationale, and there was substantial no expenditure is warranted. crossings for this purpose. support for it.

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As a result, FRA has adhered to the referred to in this rule as the required to make investments to abate corridor approach in this interim final Nationwide Significant Risk Threshold. risk, while those below would not. To rule, so use of the risk index is specified This measure provides a statistical simulate the safety impacts of this to be at the corridor (quiet zone) level. tipping point by which crossings approach, FRA analyzed the effect based The basic logic of the method is as nationwide can be compared to on an artificial rule issuance date of follows: determine the significance of the risk January 1, 1995, with an effective date • Estimate the probability of injuries present. FRA’s rationale for selecting of January 1, 1996. FRA then analyzed or fatalities at each crossing using the this threshold as a basis of comparison actual collision history for the crossings APF formulas; was that if certain proposed quiet zones in each category for the period 1996 • Aggregate the risk from all crossings pose less risk (even when adjusted for through 2000. in the proposed quiet zone; and the absence of the train horn) than the The results (reported in detail below • Divide the risk by the number of average corridor where the train horn is and on the FRA Web site) were then crossings, sounded, then the risk of not sounding compared with the Nationwide • Yielding a risk estimate for the the train horn in those locations might Significant Risk Threshold and a value proposed quiet zone. reasonably be characterized as equal to two times the Nationwide This approach must be adjusted if the insignificant. Significant Risk Threshold (2xNSRT) proposed quiet zone was not subject to During the public comment cycle, (determined as of January 1, 1996) to an historical whistle ban, since the FRA also heard repeatedly from existing evaluate the distribution of potential effect of silencing the train horn would whistle ban communities where, it was quiet zones derived from existing bans. be to drive up risk. As more fully reported, there had been no accidents FRA posited that jurisdictions above the explained below, with limited for many years (or none likely relevant thresholds (i.e., those above the exceptions the adjustments necessarily attributable to the absence of an audible Nationwide Significant Risk Threshold rely on national averages of train horn warning). FRA recognized that, since with relevant collisions in the preceding effectiveness. highway-rail crossing accidents are rare five years, or with no relevant collisions This risk index approach permits an events, the absence of accidents within but above twice the Nationwide objective comparison of the situations in a period of a few years might say little Significant Risk Threshold) would be various communities, taking into about underlying risk. At the same time, required to make investments in SSMs account the actual accident experience FRA was aware that some communities or ASMs in order to abate excess risk, to date. FRA is aware that there are have made a real effort to stress law while those below the thresholds would limitations to the method. For instance, enforcement and public awareness; and not. (i) the APF does not take into it seemed desirable to provide some The analysis effectively validated the consideration every possible factor additional flexibility to communities risk assessment method, demonstrating relevant to risk, (ii) data driving the that have not experienced a recent that for the subject period it would have predictions are largely from the great accident of the kind relevant to the focused public resources on whistle ban majority of crossings where the horn is circumstances addressed in this corridors where the investments would used, (iii) a significant component of rulemaking. So FRA posited that it have been well spent (with resulting risk inherent in the formula outputs is should be reasonable to subject reductions in injuries and fatalities). It not as relevant to evaluation of train accident-free existing whistle ban showed that in the five-year period that horn risk (i.e., pedestrian casualties), jurisdictions to a test that might be a would have followed implementation of and (iv) adjustments to the index based multiple of the Nationwide Significant the rule, as of January 1, 1996, 69 on excess risk associated with silencing Risk Threshold (NSRT). A multiple of percent of the casualties resulting from the horn will understate risk in some two was selected for analysis. the relevant collisions that occurred at cases and overstate risk in other cases. In order to determine the implications whistle ban crossings would have However, FRA is not aware of a more of this methodology, including the two occurred in quiet zones that initially useful methodology for evaluating proposed thresholds, FRA applied the would have had to make safety comparative risks at grade crossings, risk index method to existing whistle improvements to retain the whistle bans and none of the limitations appears to ban jurisdictions (WBJs) retrospectively. (see table below). Those safety substantially vitiate its value for this Employing accident data for 1990 improvements would have substantially purpose. through 1994 and grade crossing mitigated the casualties at those In examining options for this interim inventory information as of January 1, crossings. final rule, FRA applied this 1995, FRA categorized these WBJs by By the end of the five-year period, the methodology to known whistle ban Crossing Corridor Risk Indices (CCRI) communities where 24 collisions crossings, grouping them by railroad relative to the two thresholds: (1) CCRI resulting in 16 casualties occurred and political jurisdiction pairs, with less than NSRT, (2) CCRI greater than would have had to implement safety some segmentation to recognize that the NSRT with relevant collisions measures to reduce their corridor more than one rail line was present or between 1990 and 1994, (3) CCRI crossing risk indexes to permissible that operational characteristics of the between the product of one and two levels in order to retain their whistle railroad changed markedly (e.g., at a times the NSRT and no relevant bans. By the end of this five-year period, junction). As reported in more detail collisions between 1990 and 1994, (4) only 32 percent of the relevant below, the results show that there are CCRI greater than the product of two collisions and 21 percent of the material differences in corridor risk times the NSRT and no relevant casualties would have occurred in among the existing ‘‘whistle ban collisions between 1990 and 1994. FRA communities that would not have had to jurisdictions’’ (on an average per- posited that jurisdictions above the implement safety measures. crossing basis). relevant thresholds (i.e., those above the Injuries resulting from collisions FRA then performed the same Nationwide Significant Risk Threshold involving trains traveling at speeds of 25 calculation for all train horn crossings with relevant collisions in the preceding mph or less are on average moderate in the nation that are equipped with five years, or with no relevant collisions compared to the critical nature of flashing lights and gates and derived an but above twice the Nationwide injuries that tend to result when train average for those crossings, which is Significant Risk Threshold) would be speeds are higher. By the end of the

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five-year period, only seven percent of 1995. The second data column presents As is more fully developed below, the the more severe casualties would have the number of relevant collisions (those CCRI refers to the Crossing Corridor occurred in communities that would not that FRA believes could have been Risk Index (the average risk for have had to implement safety measures. prevented by sounding the train horn) crossings in a potential quiet zone) and The following table presents the that occurred in the five-year period that the NSRT refers to the Nationwide distribution of crossings, collisions, and would have followed implementation of Significant Risk Threshold (which is the resulting casualties. The first data the rule. The next two columns present average risk at gated train horn column presents the number of the resulting casualties (fatalities and crossings). crossings that would have fallen into injuries combined). each quiet zone category on January 1,

January 1995 January 1, 1996 through December 31, 2000 Casualties ex- cluding injuries Crossings in Relevant colli- Casualties where max WBJs sions train speed < 25 mph

CCRI > NSRT with relevant collisions ...... 865 208 109 94 (36%) (59%) (64%) (78%) CCRI > 2 * NSRT (no collisions 2000–2005) ...... 72 10 8 8 (3%) (3%) (5%) (7%) CCRI Between NSRT & 2 * NSRT (no collisions 2000–2005) ...... 236 24 16 10 (10%) (7%) (9%) (8%) CCRI < NSRT ...... 1,242 113 36 9 (51%) (32%) (21%) (7%)

Total ...... 2,415 355 169 121 (100%) (100%) (100%) (100%)

Therefore, FRA concluded that use of D. Alternatives Considered Changes from the NPRM provisions a methodology that compares the known related to the actual sounding of the FRA considered several other risk in a current or prospective quiet horn and maximum sound levels could alternatives in determining how to craft zone to the average risk level at be accommodated within this option. exceptions to train horn use. In Advantages: This option has the crossings across the nation where train reviewing the comments on the NPRM horns are sounded (the Nationwide advantage of simplicity. It would result and Draft Environmental Impact in a high level of safety at highway-rail Significant Risk Threshold) provides a Statement, FRA identified five very rational basis for determining crossings, and the costs of additional alternatives for determining administration would be negligible. where silencing the train horn presents where train horns must sound. All of Disadvantages: This approach is not a significant risk. Moreover, FRA these alternatives involve the same basic responsive to the statutory command to concluded that considering an existing environmental effects and benefits of consider the interests of communities whistle ban’s actual accident history in this interim final rule: wherever the with existing train horn bans because that methodology (by making greater train horn sounds, the noise impacts FRA can devise a regulatory regime allowances for accident-free and safety benefits will be the same; permitting communities to reduce noise jurisdictions) provides an even better wherever the train horn is silenced, the by substituting other safety measures for approximation of risk than does simple benefits in terms of noise reduction will the sounding of train horns and this reliance on comparing the quiet zone’s be the same and the same safety risks option fails to address the issue. Aside projected risk level with the Nationwide will be presented unless compensated from the statutory command, providing Significant Risk Threshold. by the addition of gates and lights, a means for communities to quiet train Subsequent to completion of this SSMs, or ASMs. Upon examination, horns has been urged on FRA by the FRA concluded that these alternatives validation effort, FRA determined that a great majority of commenters and their are not reasonable options given the number of the crossings previously elected representatives (including many agency’s purpose and need for the who supported the proposed rule as a identified as being in ‘‘no whistle’’ action and dismissed them from further status in the Chicago Region should, in good means of achieving community consideration. These alternatives are quiet and safety). It is simply untenable fact, be removed from that list based on described below. to say that the final rule should provide elections (largely by freight railroads) to No Exceptions no alternative to a high noise load for sound the horn. FRA has not repeated communities on rail lines with high this analysis with the smaller data set This alternative would implement the train counts. Taking this course would because (1) its purpose was to determine non-discretionary command of the also create unnecessary conflict between the usefulness of the method to sort statute by requiring trains horns to be commuter rail service and the corridors with greater risk from those sounded at all public highway-rail grade communities served, potentially with lesser risk and (2) whether train crossings. This would be what the compromising this important element of horns are sounded at the crossings in statute would require if FRA were a balanced transportation system in question is not critical to the analysis unable to devise a workable means of many major metropolitan areas. (particularly since the counter measures providing for quiet zones that satisfies Had this alternative not been involved are equally useful at both the statute. FRA would set a maximum eliminated on statutory grounds, the categories of crossings). sound level for locomotive horns. environmental effects of this alternative

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would not require separate analysis. very low (or would be projected to be and requiring local authorities to Analysis of the effects of the ‘‘no action’’ low even after the horn was silenced). expend funds on improvements for alternative shows the effect of sounding The result of maintaining that which the safety pay-back could not be train horns at highway-rail grade requirement would have been poor cost- reasonably assured at the system level; crossings across the Nation and the benefit tradeoffs for many communities. it would permit communities with bans effects of permitting the continuation of Staying with the literal text of the to transfer costs to the society at large existing train horn bans. This alternative NPRM would also have missed through insurance, public health and would differ only in the elimination of opportunities for refinement of SSMs/ welfare programs, and court judgments; the existing train horn bans, resulting in ASMs and would not have captured and administration of the approach is the known effects of sounding the train noise reductions associated with the not technically feasible. FRA noted that horn in those locations as well, shift from distance- to time-based horn factors other than silencing the train including the known safety benefits use. horn would typically be responsible for flowing from sounding the train horn. The environmental effects of the the growth in calculated risk in the NPRM were analyzed thoroughly in the subject communities (e.g., increase in Make the NPRM Final DEIS and taken into account by the FRA motor vehicle traffic as a result of The Notice of Proposed Rulemaking in framing the proposed action residential or commercial development required trains horns to be sounded at represented by the interim final rule, in an adjoining jurisdiction; growth in all public grade crossings; set a which is a logical outgrowth of the rail traffic). It did not seem sensible to maximum sound level for locomotive NPRM. permit excess risk to continue, provided horns; and provided an opportunity for nothing changes in a community, while any community to establish a quiet zone Grandfather All Whistle Bans Existing as of 10/9/96 requiring new increments of risk in where all public grade crossings are other communities to be addressed equipped with gates and lights and data This alternative would allow without regard to whether the current and analysis show that implementation communities that had whistle bans in level of risk is excessive (i.e., FRA will reduce risk in the quiet zone to effect on October 9, 1996 to retain those realized that this option did not address sufficiently compensate for the absence bans as long as the level of risk does not the right question). of the horn sounding: by implementing increase. Risk would be calculated using The environmental effects of this one or more Supplementary Safety the APF for the entire whistle ban option were not analyzed further Measures (SSM) at each crossing (does corridor. FRA would essentially be because this was not a reasonable option not require FRA approval); or by accepting the level of risk the to pursue. implementing a combination of SSMs or community itself has determined to be Alternative Safety Measures (ASM) at acceptable—and would hold the Grandfather All Whistle Bans Existing some or all crossings within a proposed community to that same level of risk. If as of 10/9/96—Combine Collision-Free quiet zone with FRA approval. a whistle ban community exceeded its Exemption With Severity-Weighted Communities with present whistle bans risk threshold, it would have three years Single Threshold would have up to three years in which to implement changes (e.g. install SSMs) This very complex option was a to implement SSMs and ASMs. sufficient to reduce risk to below its risk precursor to the path taken in the Crossings with track speeds of 15 mph threshold. Changes related to use of interim final rule. It took a much or less at which people bearing flags train horns, including the maximum different approach to Pre-Rule and New warn motorists of the passage of a train sound level, could be accommodated Quiet Zones. It would allow would not need SSMs. within this option. communities with whistle bans in effect Advantages: Pursuing this option Advantages: This approach would on October 9, 1996 to retain those for would serve the interest of safety and have avoided conflict with current the first 5 years following publication of community quiet. It would be less whistle ban communities and, in theory, the interim final rule. Thereafter such complex than the option selected. might have capped the negative safety communities could retain bans as long Disadvantages: FRA found this option impacts of bans. As under the proposed as: there have been no collisions within to be unacceptable because it rule, New Quiet Zones would be the past 5 calendar years or risk has not insufficiently tailored the rule’s burdens instituted without any loss of safety. increased above a pre-established according to risk and would be Disadvantages: This option was threshold calculated using the APF for unresponsive to hundreds of rejected for the following reasons, any the past 5 years; and at least flashing commenters who strongly urged one of which is independently lights and gates have been provided at improvements in the rule before its sufficient: It is unresponsive to the all such crossings. The option included adoption. Many of those commenters purpose of the statute to the extent a severity element in the risk live in or represent communities where excess risk associated with existing bans computation for the threshold. A the train horn is not now sounded, so would be allowed to continue unabated; corridor risk index and national being unresponsive to them would it does not directly take into account threshold would be used, as in the arguably be unresponsive to the predicted accident severity, and interim final rule. The option provided statutory direction to take into account therefore does not truly consider risk further flexibility for retaining whistle the interest of those communities. FRA (frequency times severity); the bans during the transition period as agrees with those commenters that the Administrator could not have made the follows: A State Department of proposed rule offered insufficient time statutorily required determination that Transportation (or other authorized for implementation and would have these exceptions would not ‘‘present a state-level body) could request extended made the situation particularly difficult significant risk with respect to loss of implementation beyond the 5-year for public authorities and railroads in life or serious personal injury;’’ it would period on the basis that the State is regions where impacts would be most not provide a uniform level of safety assisting local jurisdictions in substantial. FRA agrees with the tenor of across the Nation; it did not afford New implementing quiet zones and requires many comments that the proposed rule Quiet Zones the same exceptions additional time due to funding and/or would have required compensation for allowed for Pre-Rule Quiet Zones, thus administrative constraints. The loss of the train horn even where risk is undermining uniformity of application following would apply: Each project

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must be the subject of a filing with FRA policed in an environment where local low risk. It defined risk uniformly for all (i.e., the rule otherwise applies as authorities would find it necessary to crossings and all jurisdictions. It is revised); actual implementation of move to a large extent on their own relatively simple. It defined significant initial projects will begin not later than schedules (albeit in some cases with risk very clearly: equal to or greater than year four; consistent with efficient State assistance). FRA also concluded one predicted collision every 20 years. completion of required work and that excepting Pre-Rule Quiet Zones It captured a high percentage of corridor-related safety considerations, from the requirement to make safety predicted casualties, i.e., it would have improvements will be implemented at improvements solely on the basis of no addressed a high proportion of the risk the most hazardous crossings first accident history (with necessarily presented by whistle bans. (where risk reduction opportunities are limited exposure) could not be Disadvantages: This option was greatest) and then proceed to less supported as based on sound safety rejected because: it does not directly hazardous crossings; no less than 25 analysis (and opted, instead, for a take into account predicted accident percent of identified excess risk must be limited exception based on both severity, and therefore does not truly abated by the end of year five, 50 accident history and underlying consider risk (frequency times severity); percent by the end of year six, 75 estimated risk). it does not permit sufficient flexibility percent by the end of year seven, and This option was rejected as to reduce risk within a quiet zone by 100 percent by the end of year eight; unreasonable and its environmental dealing with crossings other than ones and this relief will expire eight years effects would be very similar to the with the highest APF values and, following publication of the interim proposed action. therefore, does not adequately take into account the interest of communities final rule (seven years from the effective Require Horns or SSMs at Highest Risk with existing whistle bans; and it is not date). If a community exceeded the Crossings Within Each State severity threshold in any annual review in harmony with the corridor thereafter, actions would be taken as This alternative would have required improvement concept underlying the necessary to fall back below the that train horns be sounded at all grade proposed rule. The statute addresses all threshold within a three-year period or crossings except those where (1) crossings, not merely the most the train horn would be required to maximum train speed is 15 mph or less hazardous. The option focuses more on sound; or actions sufficient to and flaggers are provided or (2) a absolute risk rather than compensation compensate for the loss of the train horn whistle ban permitted under the rule is for loss of the train horn (the focus of would have to be taken. Communities in effect. Existing whistle bans could the law). A crossing-by-crossing establishing New Quiet Zones would be continue provided high risk crossings approach to horn use would abandon required to follow the standards set are addressed within three years. New the corridor approach to crossing safety forth in the NPRM (and would not be whistle bans could be created only if improvements advocated by the U.S. able to take advantage of low baseline crossings within them were equipped DOT for many years (including risk, even after adjustment for loss of the with gates and lights. No whistle ban eliminating the incentive for train horn). could include a grade crossing consolidation of redundant crossings), Advantages: This option would take categorized as high risk, except and it could result in very uneven into consideration the interests of crossings within existing whistle bans results in terms of community quiet, communities with existing bans in a that are remedied within three years. depending on local implementation. manner similar to interim final rule, High risk crossings are those with an The option could result in a patchwork except flashing lights and gates would APF greater than or equal to .05 (i.e., a of ban areas, adding to burden on be required where not present. It would five percent chance of an accident locomotive engineers to pick out, set a requirement of flashing lights and occurring at that crossing in the next 12 crossing by crossing, where the horn gates for all crossings where the train months). Where train horns are now must be sounded. This option could be horn is silenced, enhancing safety. It sounded, the crossing’s APF would be more costly per unit of risk reduced would also avoid any negative flow of increased by 44 percent to account for because the community is required to safety benefits related to toleration of the absence of the train horn. Within take risk reduction at specified crossings new unabated risk in New Quiet Zones. one year of the rule’s issuance, any rather than where means and need best Disadvantages: FRA rejected this community with an existing whistle ban correspond (e.g., foreclosing the option option principally because it did not would have to certify that it has of putting in medians at two moderate- afford New Quiet Zones the same reviewed FRA data on effectiveness of risk crossings for a total cost of $40,000 exceptions allowed for Pre-Rule Quiet horns, whistle ban effects, and relative rather than installing four-quadrant Zones, thus undermining uniformity of merits of SSMs and consulted with gates at one higher risk crossing for an application and requiring local affected railroads and state officials incremental cost of $75,000–$150,000, authorities to expend funds on about possible safety improvements. even though the resulting risk reduction improvements for which the safety pay- Any community imposing a new is the same). back could not be reasonably assured at whistle ban must first provide the same This alternative was not considered the system level. Further, FRA noted certification. Communities with existing reasonable. If the environmental effects that the costs of flashing lights and gates whistle bans may continue to include of this option were to be considered, the in existing ban areas would be crossings lacking gates and lights unless noise impact of sounding a train horn at substantial, in some cases potentially and until the crossing has an APF of .05 a crossing would be the same as it resulting in loss of quiet zone status or more. Once a whistle ban is in effect, would be for the preferred option and (with resulting disruption of settled any crossing that reaches an APF of .05 the safety benefits of sounding the train expectations) due to financial inability must be remedied within two years. horn or fully compensating for the of communities. Again, in many cases Advantages: This option was viewed absence of the train horn would be the costs might not be fully recovered as attractive because it would have same as for the preferred option. through safety benefits. FRA also mandated safety improvements at very After considering all of these discarded the rigid implementation high risk crossings within a relatively alternatives, FRA settled on the risk- schedule for Pre-Rule Quiet Zones on short time and provided categorical based methodology adopted in this the ground it could not be effectively relief for crossings deemed relatively interim final rule. FRA believes this

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methodology best embodies Congress’ implemented some form of education or existing whistle bans and those that intent, i.e., to permit exceptions to the enforcement program. This interim final wish to establish them in the future, use of the train horn only where doing rule, by contrast, allows five years from while recognizing legitimate differences. so demonstrably does not present a its publication (four years from the The rule puts both types of communities significant risk, or where the significant effective date of the requirement to use on the same footing, as follows: risk has been compensated for by other the train horn) for implementation by • The rule starts from the premise means. individual communities. Communities that after a certain time the train horn had complained that the requirements will sound unless an appropriate E. Implementing the Interim Final Rule of State and local budget cycles required exception is satisfied, regardless of prior FRA is aware that this interim final more time for planning and securing practice. rule has the disadvantage of some funding. Further, it was noted that • Both the ‘‘haves’’ and the ‘‘have degree of complexity. Designing engineering improvements may require nots’’ may establish quiet zones by corridor improvements that meet substantial lead time and that railroads implementing SSMs and ASMs community needs and the criteria set may have limited staffing in relation to sufficient to compensate for loss of the forth in this rule will be hard work. In a compressed schedule for installing train horn; and both may take their risk this case, FRA has sought to provide new warning systems in a number of reduction at the corridor level, normally some relief from the burdens perceived communities on their lines. FRA agrees without making improvements at every in the NPRM by marrying a that an extended schedule is warranted. crossing. conceptually simple notion (the Further, FRA has recognized that • The rule allows establishment of probability that a vehicle occupant will some States (notably Illinois and quiet zones even without SSMs and be injured or killed) with a risk Wisconsin) have large numbers of ASMs if— assessment method that is fully whistle bans and that some exist in (I) In the case of an existing whistle accessible only to those with some communities of concern with respect to ban corridor, risk is shown to be at, or statistical skills who work hard to environmental justice. In situations below the Nationwide Significant Risk understand it. Maintaining a current such as this, it may be imperative for Threshold or be below twice that level inventory of affected crossings will also some Federal funds to be allocated by and the corridor has had no relevant require significant attention to detail. sources for which engineering collisions during the preceding five In taking this course, however, FRA improvements are eligible (e.g., the years; or has also recognized its obligation to Surface Transportation Program and the (ii) In the case of a New Quiet Zone, prepare user-friendly tools for use by National Highway System program). risk (after adjustment to account for local planners. These tools are now These allocations would be made by the silencing the train horn) is shown to be available for beta testing on FRA’s Web State departments of transportation at or below the Nationwide Significant site, and FRA has also provided the based on plans developed through the Risk Threshold. results of the preliminary calculations metropolitan planning organizations, a • If a community avoids expenditures for communities with existing bans process that can require several years. related to creation of a quiet zone based on existing inventory data (as Because of competition for uses of these because it falls below the Nationwide well as the assumption that the funds, a State may not be able to Significant Risk Threshold and risk community will elect to include all allocate Federal funds for these increases to above the threshold, the crossings in a New Quiet Zone). purposes in a single fiscal period. community is required to compensate In FRA’s experience, State and local Similar considerations would for that increase in risk within a period government personnel such as city presumably apply to distribution of any of three years, or the railroad will be managers and county engineers are funds made available from State required to sound the train horn. extremely capable professionals who are sources. Accordingly, in order to create • All communities are subject to the very unlikely to be daunted by the an incentive for State participation in same filing and inventory maintenance preparations required under this rule. meeting these needs (through allocation requirements. Further, FRA crossing safety managers of Federal or State funds), FRA has Some differences in approach to in each of FRA’s eight regions will be allowed a full eight years for existing whistle ban jurisdictions and available to work with communities and communities with existing whistle bans New Quiet Zones have been necessary, ‘‘walk them through’’ the necessary to complete quiet zone improvements if as well. We have already said that analysis, as well as participate in (i) the State steps forward with a plan existing whistle ban jurisdictions are diagnostic teams established by State to provide assistance, and (ii) actual different, as a practical matter, because and local governments to evaluate improvements in at least one public and private planners (e.g., zoning options for safety improvements where community within the State are effected officials, citizens purchasing residences, they are required. No community will before the end of the fourth year. businesses locating shops) have made have to ‘‘go it alone,’’ because FRA will FRA is acutely aware that this choices in reliance on the belief that the provide technical assistance. extended implementation cycle could train horns will not sound. The statute Finally, FRA has provided a be subject to abuse. Accordingly, FRA enjoins us to take their interests into substantial extension of time for has included in the rule procedures to consideration, and the grace periods communities with existing whistle bans ensure that good faith progress is made provided under the rule (five and eight to convert their corridors into quiet toward completion of improvements years) maintain community quiet well zones without intervening disruption that communities promise to undertake. ahead of community actions that would caused by the train horn. In response to Where that does not occur, FRA will otherwise warrant that result. the statute’s direction to ‘‘take into notify the railroad to sound the train The fact that existing whistle ban account the interest of communities’’ horn as the rule requires. jurisdictions have known accident with existing bans, the proposed rule records under circumstances where the would have allowed a maximum of F. Existing Bans and New Quiet Zones horn is not sounded also permits some three years from issuance for FRA has endeavored to fashion a final additional latitude. FRA has noted implementation, with the third year rule that establishes as much parity as significant variation in the outcomes available to communities that had possible between communities with where whistle bans have been enacted

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or observed. Although some of this State of Wisconsin, where only passive coupled with further research variation is the result of limited signage or only flashing lights are conducted in response to those exposure to rare events, some of it likely provided. There is now risk data comments, have provided a good reflects the existence of circumstances specific to those situations. Further, the foundation for resolving these issues. that are different in the communities statute asks us to give ‘‘special The first group of issues has to do (nighttime vs. 24-hour bans, strong or consideration to the needs’’ of with the horn itself. FRA had hoped to weak law enforcement, generally good communities where these crossings are describe engineering characteristics of sight lines or poor ones, etc.). Over time, located, and public and private planners the horn that would mitigate the the presence or absence of such factors have made decisions in reliance on the dispersal of noise into the community will be revealed in the accident rate. An status quo. Finally, FRA will have (in railroad parlance, ‘‘to the field’’). important feature of the interim final achieved the principal safety objective This issue has been presented primarily rule creates an exception for existing of this rulemaking if significant risk to due to the relocation of horns to the whistle ban communities with no recent persons associated with the absence of center of the locomotive roof, a choice horn-relevant accidents but with risk the train horn has been abated. made by railroads to reduce crew levels that are above the Nationwide Accordingly, FRA has determined occupational noise exposure. At FRA’s Significant Risk Threshold but below a that it is appropriate to allow technical conference on acoustical value equal to two times that threshold. conversion of existing whistle ban issues, the major railroads arranged a This exception remains until the corridors into Pre-Rule Quiet Zones presentation by a recognized expert who community experiences a horn-relevant without requiring that flashing lights described a ‘‘shadow effect’’ produced accident, after which it is judged by the and gates be provided at all crossings. by the locomotive profile that results in same standards as other communities FRA has further provided that, where misleadingly low sound level readings (with a 3-year grace period if it elects to the proposed Pre-Rule Quiet Zone at the location specified in FRA’s adopt SSMs or ASMs). exceeds the relevant risk threshold current test procedure. The point of The issue of whether flashing lights (making it necessary to compensate for calling attention to this was to and gates should be required as a absence of the train horn), the emphasize that in terms of actual baseline condition for a quiet zone has community may credit the risk dispersal of noise the noise levels to the similar characteristics. In the NPRM, reduction associated with installation of field do not, in fact, exceed those to the FRA specified that all crossings in any flashing lights and gates toward the front (as might be suggested by readings quiet zone should have flashing lights required effort. In many cases this will taken just 100 feet directly in front of and gates based on the following not result in all crossings being so the locomotive at only four feet above practical considerations: equipped, but it will encourage use of the track). The overall lesson FRA was • At passively signed crossings, the the most important single safety asked to take from the presentation is motorist is expected to ‘‘yield’’ to improvement available in the highway- that while center-mounted horns are not oncoming trains. But the only warning rail crossing toolbox. louder to the field than to the front, of a train’s approach is provided by the neither can they be made highly G. Requirements for the Train Horn and train itself, including the headlight and directional. Its Use auxiliary alerting lights, and the train A secondary lesson from this horn (if used). On the effective date of that portion presentation and a subsequent field • Because of obstacles in the ‘‘sight of this rule which mandates use of the study is that, by testing the horn at roof triangle,’’ track curvature, angle of train horn, State laws concerning use of height (which under the noise models intersection, or adverse weather, there the train horn at highway-rail crossings actually is more proportional to the are some circumstances where only the will be preempted. This rule will also noise received at the crossing), it may be horn may be effective in aiding the require the modification of railroad possible to ‘‘turn down’’ some roof motorist’s decision. operating rules that are in conflict with mounted horns. As a result, FRA adopts • It is unfair to place a burden on the it. FRA already has in place a rule that a new test procedure in this interim motorist to yield without providing the sets a minimum horn loudness of 96 final rule that retains the 100 foot best available information to inform the dB(A) at 100 feet in front of the train. distance but places the sound level decision. The method for conducting that test, a meter receptor at roof height (i.e., out of • Crossings equipped with flashing possible maximum level for the horn, the locomotive’s ‘‘shadow’’). lights but no gates are similarly situated, and the manner in which the horn is Another objective of this rulemaking except that the motorist is expected to sounded have been issues in this has been to set a maximum sound level stop but under most State laws may rulemaking. In approaching this for the horn. The NPRM proposed proceed if ‘‘safe’’ to do so. In many cases complex of issues FRA has tried to consideration of two values—104 dB(A) motorists are left with ambiguous balance several considerations, (which was seen as more appropriate for information regarding the appropriate specifically— actively signed crossings) and 111 dB(A) response. • The need to make it possible for (which was viewed as more appropriate Accordingly, FRA continues to be motorists to be warned within their for passively signed crossings). convinced that, with respect to quiet vehicles, with windows closed, at a Although FRA’s general rationale was zones where the train horn is silenced point on their approach to the crossing reasonably well received by some for the first time, flashing lights and where the information is useful; and commenters, many others appeared gates should be provided at all public • The need to limit dispersal of horn convinced that train horns are too loud crossings. Motorists using such noise into the community (other than at and should be significantly reduced in crossings will for the first time be the crossing and its approaches) to the volume. FRA has continued to evaluate deprived of auditory warnings, which extent feasible. the issues identified in research referred would place them at significant peril if Although FRA can foresee the to in the NPRM, including refined no additional warnings are provided. possibility of further refinements in analysis using signal detection theory, However, FRA recognizes that a these decisions over the next few years and is persuaded that a maximum value significant number of whistle ban as information becomes available, the of 110 dB(A) should be sufficient to crossings exist today, particularly in the comments received in this rulemaking, alert motorists in most situations,

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including a small margin of error limitations of the train horn should help Analysis of Train Whistle Bans’’ associated with test instrumentation and clarify the need to implement of active (January 2000). Chicago area setup. Accordingly, the interim final warning systems where they are not commenters (Hafeez and Laffey) also rule requires that railroads progressively already provided as funding becomes performed an independent study of the test their locomotives and reduce the air available. effects of whistle bans in the Chicago pressure (or alter the aperture) on all The final issue concerns the manner Region and concluded that whistle bans horns to produce a maximum volume of in which the horn is sounded. The do not affect accident frequency in the no more than 110 dB(A) as measured actual pattern of ‘‘two long, a short and Chicago Region. Commenters from 100 feet in front of the locomotive at a long’’ is well established, and FRA Wisconsin indicated that there were a roof height. FRA expects that most finds no reason to alter it. It is necessary significant number of whistle ban freight railroads and Amtrak, whose to sustain the warning provided by the crossings in Wisconsin that did not have locomotives operate over a variety of horn through a period of 15 to 20 active warning devices but had good highway-rail crossings across the seconds prior to arrival of the train at safety records. Nation, will set their horns near the the crossing in order to reach motorists FRA therefore contracted with Westat, maximum allowed to provide effective situated at various points on the Inc., a nationally respected statistical warning at passively signed crossings. roadway under varying angles of research firm. The purpose of the Westat FRA expects that commuter authorities intersection and differing vehicle and Inc., contract was to: (1) Revise the 2000 which operate primarily over crossings train speeds. It is not possible to just FRA analysis of whistle bans to reflect with flashing lights and gates may set give a ‘‘toot,’’ as suggested by some, and the more accurate data received post horns in the lower portion of the still provide the unmistakable and publication of the NPRM, (2) obtain allowed range. This overall process, by persuasive warning needed to deter independent, expert review regarding enforcing a maximum below the known risky motorist behavior. FRA’s methodology, and if necessary, sound level of some center-mounted FRA did note in the NPRM, however, recommendations as to ways to improve horns, may modestly reduce noise in that the traditional practice of requiring it; and (3) evaluate the points raised by some communities. that the horn be sounded approximately representatives from the Chicago Region It should be noted that FRA did not one-quarter mile before the crossing is and the State of Wisconsin by find it possible to do as the NTSB excessive when train speeds are well performing regional studies of the suggested in its comments to the docket, under about 45 miles per hour. effects of whistle bans in the two areas. Accordingly, FRA proposed that it which was to ‘‘select a sound level that Westat—2002 will maximize safety at all highway-rail might be possible to use a time-rather grade crossings.’’ To reach every driver than distance-based criterion. In the initial effort, Westat, Inc., with the horn (including each driver Representatives of the Brotherhood of utilized the same study period as FRA’s with a stereo turned up to maximum Locomotive Engineers (BLE) seized update (1992–1996) (Zador, Paul L., volume under all conditions of traffic upon this suggestion in their testimony, April 1, 2002). The methodology conditions, pavement surface, weather, affirming that this could be employed was a refinement on FRA’s etc.) would require a volume so great accomplished. Accordingly, the interim stratified method comparing accident that the effects on communities and final rule requires that the horn must histories of crossings with similar crew members would be clearly begin to be sounded between 15 and 20 predicted risk. Westat concluded that on unacceptable. However, in selecting the seconds prior to the arrival of the train a nationwide basis (excluding Florida), maximum level FRA has taken into on the crossing and while the lead adverse whistle ban effects were consideration the NTSB’s findings from locomotive is moving over the crossing, statistically significant at levels well its study of passive crossings. Further, but for a distance no greater than one- below the conventional significance FRA has completed additional work on quarter mile (1,320 feet). This time- level of 5 percent, regardless of warning sound detectability that suggests more based approach should reduce device class. All three classifications of favorable results at actively signed unwanted noise without compromising warning devices experienced a higher crossings where the driver has a the usefulness of the warning provided. accident rate in whistle ban areas as heightened awareness of the possible Sounding the horn over a distance follows (National data excluding Florida presence of a train and where a very greater than one-quarter mile would add only and excluding Florida and the high signal-to-noise value should not be no value, since the loss of volume Chicago Region): required. Dissemination of NTSB and associated with the distance involved Percent difference FRA studies should put railroads in a would almost certainly prevent any effective warning. FRA expects that Warning device favorable posture to determine horn class (with (excluding loudness appropriate to their operating railroads will leave existing whistle Chicago) Chicago) conditions, achieving the lion’s share of boards in place to assist engineers in estimating where to begin sounding the the potential risk reduction.3 Further, Passive ...... 52.6 64.2 horn, given the speed of the train Flashing Lights 43.2 69.1 our heightened understanding of the approaching the particular crossing. Gates ...... 44.4 57.6 3 The NTSB’s Passive Crossing Study has been H. Post-NPRM Ban Impact Studies FRA had asked Westat to attempt construed by some as an attack on the safety value of the train horn because it cited examples of Following publication of the NPRM, regional analysis where the crossings situations at passively signed crossings in which various commenters indicated they had appeared to be sufficiently numerous to the horn’s signal-to-noise ratio likely did not meet more accurate data and information permit at least some comparisons (i.e., a pre-established criterion. Neither the NTSB’s Wisconsin and the Chicago Region). report nor its comments in this docket question regarding which crossings are subject to whether the horn is effective in preventing some whistle bans. The Wisconsin Rail Data for Wisconsin generally indicated accidents. Rather, the NTSB has ventured the Commissioner, the Maine DOT, and the an increase in accident risk for each conclusion that certain accidents have occurred at City of Chicago DOT provided a type of warning device with bans in passively signed crossings where the horn did not place, whether the Wisconsin whistle provide a sufficient warning given the background sufficient amount of new data with noise and other factors. FRA’s position in this respect to affected crossings to warrant ban crossings were compared with other rulemaking is consistent with this conclusion. a revision to the FRA ‘‘Updated similar Wisconsin crossings or with

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similar crossings nationally. Westat inherently safer than others. Further, whistle bans was not included. This found, that in Wisconsin, due to the FRA noted that a growing body of regression yielded a revised version of relatively small sample sizes, estimates information supported the conclusion the APF. Then, the crossings were for ban effects were not statistically that several hundred crossings initially divided into two groups (with and significant at the conventional 5 percent believed to be impacted by a no-whistle without whistle bans), and each group level, with one exception. The accident policy either had never been in that was divided into ten strata using the rate for passively marked whistle ban status or had not been for several years. revised version of the APF. Finally, crossings in Wisconsin was 84 percent (How this occurred is more fully using Poisson-Normal regressions, the higher than for passively marked discussed under ‘‘Chicago Region’’ two groups were compared and the crossings nationwide (excluding Florida below.) Accordingly, FRA effect of the whistle ban was estimated. and the Chicago Region) where train commissioned Westat to do further On a nation-wide basis, the third horns were sounded. This result was work, resulting in the final study on the method produced the most precise statistically significant. However, model impact of train horn bans (Zador, Paul estimates for the effect of the whistle fit was determined to be poor. H., June 2003). The design for this study ban, so FRA has selected this method as In reviewing the data for the Chicago differed in three important respects the basis for its evaluation. Region, Westat found several from the earlier work: Once again, all three classifications of unexpected results. Comparisons of 1. The set of Chicago Region ‘‘no warning devices experienced a higher Chicago train horn and ‘‘whistle ban’’ 4 whistle’’ crossings was corrected to a accident rate in whistle ban areas as crossings within Chicago indicated much lower number based upon docket follows (National data excluding Florida higher accident rates at crossings where filings from the Illinois Commerce only and excluding Florida and the the train horn was used, but the data did Commission, the AAR and Metra. Chicago Region): not fit the model well (with the upper 2. The study period was brought confidence limits for two of warning forward to address the most recent Percent difference complete accident data Warning device types well into the positive range). class (with (excluding When Chicago Region ‘‘whistle ban’’ contemporaneous with known crossing Chicago) Chicago) crossings were compared with similar status (1997–2001). crossings in the Nation where train 3. Rather than simply employing the Passive ...... 71.6 74.9 horns sound, results for passive and previous FRA method with refinements, Flashing Lights 21.7 30.9 flashing lights categories again showed Westat was asked to apply whatever Gates ...... 43.4 66.8 lower accident rates at ban crossings; statistical techniques it thought The results for the Nation without however, estimates for the effects of no- appropriate to derive the most valid Chicago provided the most reliable data. whistle policies were not statistically results. The results for passive and gated significant at the conventional 5 percent FRA received the Westat final report crossings were statistically significant level. The accident rate for gated whistle in May of 2003. In an attempt to well below the conventional 5 percent ban crossings in the Chicago Region was determine the most meaningful level. The model offered less confidence 34 percent higher than for gated explanation of the data, Westat applied for crossings with flashing lights (Prob crossings nationwide (excluding Florida four distinct statistical methods, with > [t] = 0.08), but the estimate is and the Chicago Region) where train certain variations within the methods: • consistent with the results of FRA horns are sounded, and this result was The first method divided the studies for the earlier period and statistically significant. crossings into two groups: one group represents the best information available With respect to the gated crossing with whistle bans and the other regarding the effect of bans on the estimate for Chicago, Westat stated that without. FRA’s basic Accident accident rate. Accordingly, FRA has the weight of this evidence was Prediction Formula (APF) was applied employed the results for the Nation weakened by the fact that the model did to each crossing and then each group excluding Chicago as the national not fit the data well. Specifically, in the was sorted by the results of the APF. estimates of effectiveness for crafting Shapiro-Wilks test for normality of Then each group was stratified into ten this interim final rule. deviance residuals, the normal categories with each stratum having the same accident count for the 1997–2001 The 2003 Westat report also hypothesis was rejected for gates based attempted to derive results for the State on comparisons with the Continental study period. Finally, using both Poisson and Poisson-Normal of Wisconsin. Results differed U.S., Florida and Chicago Region substantially between intra-State and Excluded. regressions, the two groups were compared and the effect of the whistle Wisconsin-to-national comparisons, Westat—2003 (Final Study) ban was estimated. even though all values showed a • FRA found the results of the 2002 The second method is the same as positive effect from the train horn and Westat study appeared to reinforce the first except six strata were used two of the three warning device instead of ten. categories had significant results in each inferences FRA was deriving from other • information related to the Chicago The third method did not divide the of the analyses. FRA sees no basis for picture that may explain the Chicago data into two groups and stratify them. deviating from the national averages for data. In particular, FRA had noted that Instead, a Poisson regression analysis the warning device categories without a significant ‘‘discretionary selection’’ had was applied to the entire data set. The better qualitative understanding of any occurred in the Chicago Region with regression included all the variables underlying differences in risk profiles. The Chicago Region results are briefly respect to the crossings at which ‘‘no used by the APF plus others including 1 summarized here and then discussed in whistle’’ policies would be a ⁄10 flag for whistle bans. The full context and at greater length below. implemented. That is, horns were being regression coefficient for the whistle ban The no-whistle crossing set provided to silenced primarily at crossings that were was used to estimate the effect. • For the fourth method, a Poisson Westat included only 21 crossings with flashing lights and 21 passively signed 4 As noted below, this is really a misnomer. There regression analysis was applied to the are no train horn bans in the Chicago Region, only entire data set in a manner similar to the crossings. As Westat noted, that is too exemptions that railroads may utilize if they wish. third method except the 1⁄10 flag for few crossings from which to derive

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statistically meaningful results, and expected, since railroads in the Chicago noted that ‘‘the ban effect in the Chicago none were determined. FRA will apply Region have been free to select which Region is significantly different from the the national estimates of ban-induced exemptions to observe and which to ban effect in the rest of the nation.’’ accident increases for passive crossings ignore. Taking note of this finding and other and flashers-only crossings to the However, Chicago gated no-whistle information discussed below, FRA will Chicago Region. crossings experienced 17.3 percent more apply a 17.3 percent estimate of ban- Westat’s calculations for the Chicago accidents when compared with the induced excess risk to gated crossings in Region once again showed a negative national gated crossings where the train Chicago Region Pre-Rule Quiet Zones. effect from use of the train horn at gated horn sounded. This result was not FRA will apply the national average for crossings when only Chicago Region statistically significant at the gated crossings (Chicago excluded) to crossings were included in the analysis, conventional 5 percent level, but it is but results were not statistically more likely than not that the value is New Quiet Zones in the Chicago Region. significant. For reasons more fully positive (P > [t] = 0.312). Comparing this The rationale for this decision is more developed below, this result was result with the national data, Westat fully developed below.

BAN EFFECTS/TRAIN HORN EFFECTIVENESS [Summary Table]

Effect of ban (includ. no- Reduction required from whistle policy) on acci- ban risk to retain Pre- Warning type 1 Comment dent frequency (percent Rule QZ (percent reduc- increase) 2 tion and factor) 3

Nation (Except Florida East Coast Ry./and Chicago Region)

Passive ...... 74.9 43 (.43) Flashers only ...... 30.9 27 (.27) Flashers with gates ...... 66.8 40 (.40)

Chicago Region

Passive ...... 74.9 43 (.43) From national avg. Flashers only ...... 30.9 27 (.27) From national avg. Flashers with gates ...... 17.3 15 (.15) Regional estimate.

Florida East Coast Railway (FEC) 4

Flashers with gates ...... To be determined Not applicable Regional estimate subject to review. Table Notes: 1 These are the primary warning device types. FRA is aware that a variety of arrangements are in place at individual crossings and will provide guidance for association of the various arrangements with these benchmark values. 2 This is the amount by which accident frequency has been estimated to increase when the horn is silenced. 3 This is the reduction in collision frequency that must be achieved in order to restore crossings impacted by a ban to the level they would ex- perience if the horn sounded. To simplify, if 10 accidents of equal severity were expected in a ban area with gated crossings, a reduction of .40 would be required—to a level of 6 accidents—in order to retain the Pre-Rule Quiet Zone (unless a smaller reduction in accidents would place the Quiet Zone Risk Index below the NSRT). As a matter of technical practice, the factor is applied to the crossing’s risk index. 4 Crossings on the FEC are currently subject to Emergency Order No. 15. FRA had found an alarmingly large increase in the accident rate when nighttime bans were imposed at crossings with flashing lights and gates.

10. Funding Several individuals and local quiet zones should be shared among the governments, citing local budget Federal government, railroads and local A number of commenters expressed constraint concerns, suggested that if communities. One of these commenters concern that the NPRM was silent as to the Federal government is going to further recommended that because the potential funding sources for require additional safety measures at rail system is a national resource, the implementation of the proposed rule. highway-rail crossings, then the Federal resulting noise impacts are a national Generally, commenters indicated that government should provide the funds issue. Accordingly, this commenter without additional funding being made for such measures. One individual suggested that communities available, quiet zone implementation representing a group of Massachusetts disproportionately affected by railroad would be beyond the financial reach of families suggested that the costs of noise should not have to provide a many communities. Several commenters safety at highway-rail crossings should disproportionate amount of funding to suggested that the Federal government not be the sole burden of communities solve the problem of railroad noise. This should provide the funding necessary to abutting the railroad, because the commenter recommended the implement quiet zones, while other general public uses highway-rail development of a formula to effectively commenters suggested that the crossings. This individual suggested normalize the amount of funding operating railroads should provide the that the NPRM effectively proposes a tax communities would be required to funding or that the costs should be on innocent citizens to protect those contribute to the implementation of shared among some or all interested who willfully violate traffic laws by quiet zones within their jurisdictions, parties (including Federal, State, and illegally proceeding around grade based on norms present throughout the local governments, as well as railroads, crossing safety devices in attempts to United States. shippers, and other users of the rail ‘‘beat the train.’’ A few individuals Other individuals commented that system). suggested that the costs of implementing because the impact necessitating the

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proposed rule has resulted from railroad expressed the belief that funding for most improvements undertaken under operations and the railroads are the projects in connection with the this rule would withstand the priority parties that profit from rail operations, establishment of quiet zones should not ranking requirements for safety projects any mitigation measures should be the come at the expense of the State’s under Federal-aid highway programs, responsibility of the railroads ongoing grade crossing safety programs. since the improvements may be themselves. In addition, one local OPUC stated that ‘‘[g]rade crossing approximately neutral with respect to Sacramento, California business safety must not be compromised at some safety (as compensation is made for the suggested that implementation of quiet crossings in exchange for relative peace additional risk associated with silencing zones would result in lower insurance and quiet at a handful’’ of other the train horn). However, those funds and litigation costs for railroads, and crossings. Thus, OPUC argued that constitute only 10 percent of one of the thus, railroads should share in the costs funds already committed to traditional two major programs. Further transfer of implementation. grade crossing safety programs should between the two programs may be Although most local governments not be used to fund quiet zone projects. possible. Further detail on Federal-aid indicated that due to existing budget Likewise, the Illinois Commerce programs follows: constraints, implementation of quiet Commission stated that the proposed The Transportation Equity Act for the zones would be very difficult without rule would distort the State’s multi-year 21st Century (TEA–21) was enacted the allocation of additional Federal grade crossing safety enhancement June 9, 1998 as Public Law 105–178. funds, some local governments did planning process and force the State to TEA–21 authorizes the Federal surface provide ideas for alternative sources of redirect needed funding from important transportation programs for highways, funding. For example, the City of safety projects to what the agency highway safety, and transit for the 6- Moorhead, Minnesota has set up a described as ‘‘Federally mandated noise year period 1998–2003. TEA–21 is the special downtown taxing district to suppression projects.’’ current legislation that funds both the fund the safety measures necessary to In addition, explaining that the cost of Surface Transportation Program and the implement a quiet zone. The City of SSMs will be prohibitive to many State National Highway System Program. The Miami Springs, Florida, proposed DOTs and many communities, the North Surface Transportation Program consists imposing a user fee, similar to that of Dakota DOT suggested that the proposed of a 10 percent safety set-aside and the airlines, for both passenger and freight rule would increase demand for already balance of the program, which is rail traffic. Other local governments limited Federal safety funds if such intended for general transportation proposed imposing local property taxes funds are made available to finance the improvements off the National Highway on railroad right-of-ways to help fund installation of safety measures under the System. safety improvements in order to proposed rule. Accordingly, the North The requirements for the Highway- implement quiet zones (a measure that Dakota DOT specifically recommended Rail Grade Crossings and Hazard would be prohibited by 49 U.S.C. 11501 against the use of Federal safety funds Elimination Programs are defined in which bans discriminatory taxation of to implement quiet zones. The New sections 130 and 152, respectively, of railroads). York DOT, on the other hand, requested Title 23, United States Code. Projects Two Colorado municipalities, the City that additional Federal safety funds be funded with ‘‘Section 130’’ funds (23 of Brighton and the City of Fort Collins, made available to implement projects U.S.C. 130) are intended to reduce the requested confirmation that quiet zone under the proposed rule. number and severity of train collisions crossing safety measures qualify for Railroad industry participants with vehicles and pedestrians at Federal Highway Administration expressed the view that railroads should highway-rail grade crossings. Typical (‘‘FHWA’’) funding. Another Colorado not be responsible for the costs of projects include active warning devices municipality, the City of Winter Park, installing, maintaining, or repairing, the (e.g. flashing lights and gates), signing requested that either new Federal additional safety measures required to and pavement markings, illumination, funding for implementation of quiet implement quiet zones under the crossing surface improvements, grade zones be made available or the current proposed rule. These commenters separations, sight distance Federal crossing safety program be suggested that funds be made available improvements, geometric improvements expanded to include crossing through the relevant highway to roadway approaches, and the closing improvements necessary to implement authorities or the FHWA. One and/or consolidation of crossings. All quiet zones. commenter, the American Public public grade crossing safety Although every commenting State Transportation Association, specifically improvements are eligible for funding also expressed concern regarding requested that FRA address this issue in under this program, but obligation of potential funding sources, citing a a joint rulemaking with FHWA. funds is subject to strict requirements general lack of availability of State Despite the wishes of the commenters, for ranking the priority of projects on a funds, some States specifically Federal funds have neither been State-wide basis. Although use of recommended against allocating Federal authorized nor appropriated specifically section 130 funds for projects under this safety funds to finance the for implementing this rule. Indeed, 49 rule will be warranted only where those implementation of quiet zones under U.S.C. 20153(A)(3) specifically provides improvements exceed the minimum the proposed rule. Specifically, both the that SSMs are ‘‘provided by the targets for risk reduction set by this rule North Carolina Department of appropriate traffic control authority and where the projects are legitimately Transportation (‘‘DOT’’) and the Ohio responsible for safety at the highway- ranked as top priorities within the State, Public Utilities Commission (‘‘OPUC’’) rail grade crossing * * *.’’ While there it is important to remember that the indicated that the proposed rule is are no dedicated funds set aside for the bulk of the approximately $4.1 billion directed at quality of life issues, not costs incurred in developing and expended under the section 130 highway-rail grade crossing safety. implementing a quiet zone under this program since 1974 has been used to Accordingly, each agency strongly rule, there are several categories of improve crossing safety on city and recommended against the use of Federal transportation funding available that county roads across the Nation, safety funds to finance safety measures may be used by States and localities for including in whistle ban jurisdictions. necessary to implement quiet zones. In this purpose. FRA wishes to emphasize Indeed, the automatic warning systems its comments, OPUC specifically that at the outset that it is unlikely that required by several States as a predicate

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for whistle bans-—and which are part of the overall high speed corridor been to ensure, to the extent practicable, required in this rule for New Quiet improvement project. Given the that any expenses attributed to Zones—were in most cases installed relatively small amount of funding establishing Quiet Zones are no greater with primarily Federal funds. Thus available under section 1103(c), it is than necessary to maintain safety. prior Federal funding has already perhaps unlikely that any quiet zone As this interim final rule was being assisted local governments to some improvements would rise to the top of drafted, the Congress and the extent in preserving Pre-Rule Quiet the list on any such corridor. However, Administration were preparing to Zones and creating New Quiet Zones. note that there is a strong compatibility address the reauthorization of surface ‘‘Section 152 funds’’ (23 U.S.C. 152 between the kind of safety transportation programs (extending or (Hazard Elimination Program) are improvements desired for high-speed replacing TEA–21). That process was intended to implement safety rail corridors (‘‘sealed corridor’’ being complicated by reduced revenues, improvement projects to reduce the treatments) and the supplementary confirming FRA’s conviction that this number and severity of crashes at safety measures identified in this rule. interim final rule should allow hazardous highway locations, sections, Transfers of funds from other additional time for implementation of and elements on any public road. categories into the STP are permitted, the rule. Although it is possible that the Typical projects include intersection and any such transfers are not subject to program structure outlined above may improvements (channelization, traffic STP set-asides or suballocations. be reorganized significantly in new signals, and sight distance); pavement • Up to 50 percent of National legislation, FRA does not expect any and shoulder widening; guardrail and Highway System (NHS) apportionments resulting reduction in the flexibility barrier improvements; installation of may be transferred to the STP; indeed, afforded to the States (working with crash cushions; modification of roadway up to 100 percent of NHS funds may be local Metropolitan Planning alignment; signing, pavement marking, transferred to STP if approved by the Organizations) to affect the utilization of and delineation; breakaway utility poles Secretary of Transportation, and if Federal transportation funds. and sign supports; pavement grooving sufficient notice and opportunity for 11. Liability and skid resistant overlays; shoulder public comment is given. rumble strips; and minor structure • Up to 50 percent of Interstate Several commenters noted that the replacements or modifications. It is Maintenance apportionments may be NPRM was silent as to the issue of important to note that grade crossing transferred to STP. liability when an accident occurs at a improvements can be funded under • Up to 50 percent of Bridge highway-rail grade crossing within a section 152 if they are identified in a Replacement funds may be transferred quiet zone established in accordance State’s hazardous location survey. to STP. with the rule. The New Jersey The difference between the sum of the • Funds apportioned to the Department of Transportation (‘‘DOT’’) funding levels for sections 130 and 152 Congestion Mitigation and Air Quality explained that consideration should be and the overall 10 percent safety set- (CMAQ) Program may also be given to how liability issues presented aside in STP is in a category called transferred to STP, subject to the by the rulemaking will affect public ‘‘Optional Safety Funds’’ and is eligible following conditions. Up to 50 percent safety. Several commenters suggested for use in either section 130 or section of the amount by which the CMAQ that legislation was necessary to 152. In FY 2000, there was a total of apportionment for the fiscal year prohibit lawsuits by anyone injured $368 million available in Optional exceeds the amount that would have while circumventing highway-rail grade Safety Funds, but only $21 million (or been apportioned to CMAQ for that crossing safety devices within quiet 6 percent) was used on section 130 fiscal year if the program had been zones. The Massachusetts town of grade crossing safety enhancement. funded at $1.35 billion annually may be Manchester-by-the-Sea commented that Clearly this is an area where States can transferred to STP. Transferred CMAQ the NPRM appeared to be a paternalistic be encouraged to change the mix of funds may only be used in air quality effort directed towards those who safety projects advanced using this non-attainment and maintenance areas. willfully violate traffic laws and funding to accommodate more grade Finally, please note that, with respect illegally proceed around grade crossing crossing safety improvements. to roadways on the National Highway safety devices. This commenter also It should be noted that 90 percent of System, improvements would be expressed concern that railroads may be the STP funds are available for general eligible for funding out of the NHS. reluctant to agree to implementation of use. Local Metropolitan Planning The subject matter of this regulatory quiet zones under the rule for fear that Organizations, working with the State proceeding is the use of the train horn it would increase their risk of liability departments of transportation, help at highway-rail crossings, not the if an accident did occur at a crossing determine how those funds should be development of appropriations requests. within a quiet zone where the railroads allocated. As FRA was advised by Accordingly, FRA neither endorses nor did not routinely sound their commenters in this proceeding, argues against earmarked Federal locomotive horns. Manchester-by-the- community transportation needs differ. funding for this purpose. FRA does note Sea suggested that when there is willful Without question, engineering that, in general, State and local conduct by a motorist or pedestrian that improvements under this rule would governments have argued against jeopardizes his life or those of others, constitute eligible projects deserving of categorical transportation programs and e.g., proceeding through activated gate consideration for use of this 90 percent in favor of broad block grants over crossing devices, railroads and local share. which recipients could exercise full communities should not be subject to Under section 1103(c) of TEA 21, an control. As reflected above, to a large liability if an accident occurs. amount of $5,250,000 per year was set extent that has become Federal policy. Accordingly, the Town recommended aside from STP funds, and this funding Whether any deviation from that policy that FRA work with Congress to codify is to be used for projects on designated is warranted by the fiscal impacts limits to the liability of railroads and high speed passenger rail corridors. claimed to be associated with this rule communities when those who willfully Should a quiet zone be desired on a is a matter for review in other forums. violate traffic or trespassing laws are portion of such a designated high speed Accordingly, FRA’s principal response injured at rail crossings within a quiet corridor, such funds could be used as a to those arguing for Federal funding has zone. Similarly, a Wisconsin State

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legislative representative suggested that clearly provides that establishment of a conducted an initial evaluation of two local communities should not be liable quiet zone created no legal duty to wayside horn installations at Gering, for accidents occurring at grade sound the horn in emergency situations. Nebraska in 1995 (Field Evaluation of a crossings within quiet zones established Because the rule clearly covered the Wayside Horn at a Highway-Railroad under the rule. subject matter of such a duty, it would Grade Crossing, Final Report, June The North Carolina DOT suggested have prevented State laws imposing 1998). This evaluation noted that use of that communities pursuing quiet zones such a duty. FRA does not expect that the wayside horn in lieu of the train in their jurisdictions should enter into lawsuits will never arise over collisions horn reduced net community noise agreements with the relevant State and which may occur at crossings within impacts. The evaluation also showed a operating railroads agreeing to hold quiet zones, nor should FRA attempt to 52 percent reduction in the number of harmless the State and railroads for any prohibit such suits since the cause of incidents in which motorists continued accidents or injuries that occur as a such collision may in fact be due to to drive over the crossing after the direct result of these quiet zones. This factors other than the lack of an audible warning device’s gate arms had started same commenter emphasized that the warning. However, this rule is intended to descend as compared to the baseline communities implementing quiet zones to remove failure to sound the horn as data collected with the train horn should assume all of the risk associated a cause of action in such lawsuits sounding. There was no significant with the quiet zones. involving crossings within a quiet zone. difference between train horns and Commenters from the railroad We expect that the courts will wayside horns for motorists that drove industry strongly advocated that determine liability issues based on the around lowered gates. While the report municipalities seeking the facts of each case and after reviewing indicated improved driver behavior establishment of quiet zones under the the nature of this rule and its Federal with the wayside horn, the report also rule should assume liability for all requirements. contains analysis that suggests questions accidents that occur at crossings within We expect that courts, following regarding the effectiveness of that the quiet zones. Citing the historical Norfolk Southern v. Shanklin, 529 U.S. particular installation in alerting sounding of locomotive horns as a safety 344 (2000) and CSX v. Easterwood, 507 motorists that should be answered feature of railroads for the past century, U.S. 658 (1993), will conclude that this before implementing wayside horns as a the Florida East Coast Railway argued regulation substantially subsumes the substitute for train-borne horns. Further, that if a community insists that it cease subject matter of whether trains must this evaluation did not contain adequate the sounding of the locomotive horns sound warning devices at highway-rail data or analysis to permit a when traveling through its jurisdiction, grade crossings and, therefore, preempts determination of whether a wayside then that community should be willing state law on that subject. horn could fully substitute for a train- to accept the liability associated with FRA perceives no reason why borne audible warning and additional the decision. The American Public establishment of quiet zones under this evaluations at other sites should be Transportation Association projected rule should result in higher insurance performed. The NPRM suggested three that passage of a rule permitting quiet premium costs for railroads. In fact, a questions related to the effectiveness of zones as proposed in the NPRM would quiet zone under this rule should be the wayside horn: probably lead to increased insurance evaluated as much less of an 1. Does the particular system provide premiums for railroads. underwriting risk than a current whistle the same quality of warning, determined Another concern raised by several ban. by loudness at appropriate frequencies, railroad industry participants, as well as within the motor vehicle while it is 12. Wayside Horn an individual locomotive engineer, was approaching the motorist’s decision the fact that State law often imposes During FRA’s initial outreach process point? liability on individual members of train prior to issuing the NPRM, several 2. As currently conceived, a single crews and their employers when a train commenters asked whether placement stationary horn cannot give the motorist does not sound its horn at a highway- of a wayside horn (a horn at the crossing a cue as to the direction of approach of rail crossing and an accident occurs. and directed at oncoming motorists) the train or trains. To what extent does These commenters contended that might be entertained as a supplementary this lack of directionality detract from nothing in the NPRM would remove safety measure. FRA also received the effectiveness of the warning? Can liability from individual train crew comments in the docket and at the wayside installation design be altered to members or their employers for failure public hearings on this subject. It is compensate? to sound the locomotive horn in the apparent that there is interest in using 3. To what extent will the stationary event of an accident in a quiet zone such a device as an alternative means of horn suffer from the lack of credibility established pursuant to the rule. A providing an audible warning to the sometimes associated with automated representative of the Wisconsin Central motorist of an approaching train. warning devices, due to the fact that it System suggested that the rule should A wayside horn system would is activated by the same means? Over clearly state that failure to sound the typically consist of horns mounted on what period of time may this problem locomotive horn in a FRA approved poles that are placed at the crossing. A arise, if at all? quiet zone could not serve as a basis for horn would be directed towards each Since the installation of the original imposing civil liability on either the direction of oncoming vehicular traffic. wayside horn system in Gering, NE, train crew or the employing railroad. The system would be activated by the several other communities have FRA appreciates the legitimate same track circuits used to detect the installed wayside horns. These sites concern of the commenters regarding train’s approach for purposes of other include: Ames, Iowa, Parsons, Kansas, liability issues surrounding creation of automated warning devices at the Wichita, Kansas and Richardson, Texas. quiet zones under this rule. We note crossing (flashing lights and gates) and Additionally, other communities have that the proposed rule would have had would produce a sound similar to the had temporary test installations of the the effect of relieving individual train horn signal given by an approaching wayside horns. crew members and their employers from train. This topic generated a number of liability for failure to sound the At FRA’s direction, the Volpe comments from various parties. locomotive horn. The proposed rule National Transportation Systems Center Additionally, the departments of

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transportation from Iowa, Nevada, non-engineering measures included in detracts from the effectiveness of the Missouri and Florida all supported the the NPRM as alternative safety warning—commenters supporting the inclusion of wayside horns as measures. In support of its assertion, the use of wayside horns generally agreed substitutes for train horns. The AAR submitted a copy of its report that the apparent lack of directionality Brotherhood of Railway Signalmen entitled Wayside Horn Sound Radiation does not detract from the effectiveness (BRS) cited design flaws as an and Motorist Audibility Evaluation that of these audible warnings. Wichita impediment to the effectiveness of found that the latest model of wayside pointed out that as motorists approach wayside horns. The BRS also stated that horn was louder than previous versions rail crossings they often hear train horns if wayside horns were permitted by and concluded that wayside horns are a from nearby crossings on different rail FRA, it would be imperative that the viable alternative to locomotive horns lines so it is not clear from which track circuits be used to detect the for audible warnings at highway-rail direction the train is coming anyway. train’s approach. The BLE stated that it grade crossings. However, recognizing The Kansas DOT suggested that the felt that additional testing should be FRA’s misgivings about the wayside issue of direction is moot since wayside required before acceptance of the horn noted in the NPRM, the AAR horns are used in combination with wayside horn. suggested that if FRA could not other automated warning devices (i.e., Generally, commenters voiced strong definitively determine the effectiveness gates, flashing lights) and that when support for the inclusion of wayside of the wayside horn prior to issuance of crossing gates are down, motorists are horns as a supplementary safety the final rule, FRA should permit use of supposed to stop and wait for the train measure under the rule. States and local the horns as supplementary safety to pass, regardless of the direction in governments in particular, with the measures at grade crossings subject to which the train is traveling. The exception of the California Public two conditions: (1) Concurrence of the Missouri Department of Economic Utilities Commission (CPUC), were in railroads operating at the crossings, and Development suggested that wayside favor of including wayside horns as a (2) demonstration of the efficacy of the horns would encourage motorists’ supplementary safety measure. In horns at each crossing at which they compliance because drivers cannot tell support of their positions, these would be installed. how far away from the crossing the train commenters cited the Volpe Center The CPUC, however, asserted that is by the sound of the wayside horn. study and an Iowa Department of there is currently insufficient evidence Only one commenter responded Transportation study, both of which that the wayside horn can provide directly to FRA’s third question— have shown reductions in gate violation protection comparable to locomotive whether the wayside horn would suffer frequency with use of wayside horns. horns and opposed the use of wayside from the lack of credibility sometimes The cities of Gering, Ames, and Wichita horns as a supplementary safety associated with automated warning all supported inclusion of wayside measure until further data on the devices due to false activations of the horns as a substitute for locomotive effectiveness of the horns is collected. signal system. Wichita suggested that horns. They expressed the view that Other commenters voicing opposition to the annoyance associated with a there was great community support for the use of wayside horns for the same wayside horn sounding in connection wayside horns and felt that safety was reason included the BLE and the BRS. with an active warning system’s false improved. Ames, Iowa wrote ‘‘*** it In response to FRA’s first specific activation may cause earlier public [wayside horn] has tremendously question posed in the NPRM—whether reporting, and thus quicker railroad improved the quality of life and safety wayside horns provide the same quality response to the problem location. for our residents.’’ It is noted that Ames of warning within the motor vehicle as Several additional studies have been has installed wayside horn systems at a locomotive horn while a train is conducted on the wayside horn since three additional crossings. The city approaching the motorist’s decision the initial study in Gering, NE. Ames, administrator for Gering, Nebraska also point—a few commenters suggested that Iowa. One study (Evaluation of an wrote that he had never received so the wayside horn gives equal or greater Automated Horn Warning System at many unsolicited ‘‘thank you’’ calls and audible warning. For example, the City Three Highway-Railroad Grade letters from citizens as he had over the of Wichita, Kansas, suggested that a Crossings in Ames, Iowa, by Gent, Logan installation of wayside horns. These wayside horn provides a uniform and Evans, 2003) documented the same commenters, along with at least quality of warning within a motor reduced noise impact to the community, one representative of the railroad vehicle because while wind, public acceptance of the horn system industry, also indicated that they neighboring buildings, houses, fences through surveys of residents and believed that wayside horns provide a and trees all affect the quality of motorist, and locomotive engineer more cost-effective alternative to train warning of the locomotive horn on a opinions that the system was safe or horns, than some of the other motorist at a crossing, only wind would safer than the locomotive horn (obtained supplementary safety measures have an effect on the quality and through surveys). No data on actual included in the NPRM. The Florida uniformity of the warning of a wayside driver behavior at the crossings were Department of Transportation (‘‘DOT’’) horn. Other commenters suggested that collected in this study. This study did suggested that wayside horns be used in wayside horns provide consistent not analytically address any of the three instances where it is impossible or decibel levels directed exactly where questions posed by the Volpe study. impractical to install the supplemental motorists are driving (i.e., at the The Wayside Horn Sound Radiation safety measures articulated in the crossings, not down the tracks). The and Approaching Motorists Audibility NPRM. The Florida DOT, however, did City of Roseville, California, cited a Evaluation (Mike Fann and Associates, not elaborate on the rationale for local wayside horn test that showed May 2000) examined the sound levels limiting the use of wayside horns to consistently higher audible warnings and frequencies emitted by the wayside situations where the installation of the directed at the crossing, while reducing horn. This research collected data that identified supplemental safety measures the noise impact to the surrounding showed that system that was tested is impractical or impossible. communities. provided a sound level of 98 dB at 100 The AAR suggested that there is more In response to FRA’s second feet from the wayside horn. The sound certainty regarding the effectiveness of question—whether the lack of level that was produced met FRA’s the wayside horn than there is for the directionality from a wayside horn regulation for a locomotive horn that

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requires a minimum sound level of 96 the crossings. TTI’s study that revisited crossings equipped with automatic dB at 100 feet from the front of the the original Gering, NE study after six flashing lights and gates. See § 222.59. locomotive. The study also measured years of wayside horn use indicates that Although clearly a wayside horn the frequency content of the wayside the wayside horn at that location is still produces sound, because of its lower horn and using signal detection theory as effective as the locomotive horns noise impact on the surrounding indicated that 99 percent of drivers with used during the baseline period. community, it may be installed within only a partial anticipation of a train The Northwestern University Center a quiet zone if the public authority event should hear the warning. No data for Public Safety evaluated the determines that it is appropriate to do were collected on actual driver effectiveness of the wayside horn at so. If used within a quiet zone, the risk behavior. This study provides three crossings in Mundelein, Illinois. at a crossing equipped with wayside information towards answering the first The study, entitled, Evaluation of the horns will not be included in question suggested by the Volpe study. Automated Wayside Horn System in calculating the Quiet Zone Risk Index or The sound level measured for the Mundelein, IL (Raub, Lucke, January Crossing Corridor Risk Index. It also wayside horn meets FRA sound level 2003), utilized video monitoring of should be noted that wayside horns requirement. Signal detection theory driver behavior, sound level have not yet been classified by FHWA and measurement of the frequencies measurements and survey instruments as traffic control devices. If FHWA does contained in the wayside horn indicate to: (1) Assess the impact of wayside classify them as traffic control devices, that the driver should be able to hear the horns on the behavior of drivers; (2) the wayside horn must also be approved wayside horn. Neither the Ames nor measure loudness of train horns and the in the Manual on Uniform Traffic Fann study addresses questions two and wayside horns in neighborhoods; (3) Control Devices (MUTCD) or FHWA three concerning directionality and obtain the opinions of locomotive must approve experimentations credibility of the warning. engineers on perceived changes in pursuant to section 1A.10 of the Texas Transportation Institute of driver behavior; and (4) obtain the MUTCD. Texas A&M University, was engaged by opinions of residents on the differences a manufacturer of a wayside horn between locomotive horns and wayside 13. Horn Sound Level and system to revisit one of the crossings in horns. The Village of Mundelein, Directionality Gering, NE to assess the level of driver located 35 miles north of Chicago, has Train horns are clearly a major source compliance with the warning system 40 to 50 trains per day passing through. of unwanted noise in communities after approximately six years of A baseline of driver behavior was through which active railroad lines operation. Video data of driver behavior collected for three months during which pass. FRA included in the NPRM at the crossing was collected for 16 there were 10,382 gate activations. provisions designed to limit the days. Driver compliance with the There were 367 incidents of drivers dispersal of horn noise into the warning devices was then analyzed in disregarding the active warning devices community where the sound does not the same manner as the 1995 Volpe (flashing lights and gates) during this serve its warning purpose. These study. The study, entitled A Safety period. Locomotive horn use was then provisions were a maximum limit on Evaluation of the RCL Automated Horn discontinued, and the use of the horn sound output and a limit to sound System (Roop, May 2000), showed that wayside horns was instituted. Data was emanating to the side of the locomotive. after six years of operation of the not collected until four months had FRA has a long history of working with wayside horn that driver compliance passed to allow for the novelty effect of the railroad industry to improve with the automatic warning devices at the wayside horns to pass. Video data locomotive cab working conditions and the crossing (flashing lights with gates) was then collected for three months has been sensitive in this rulemaking to was slightly better than the baseline during which there were only 97 balance the need to reduce noise driver behavior observed when the incidents observed during the 8,683 gate exposure to operating crews with locomotive train horn was used. It activations. The study results indicated community noise concerns. With the should be noted that there was a a 70 percent decrease in the number of release of the NPRM and accompanying noticeable decrease in driver times drivers disregarded the warning Draft Environmental Impact Statement, compliance with the use of the wayside devices. Additionally, noise levels in FRA gave needed consideration to the horn from 1995 to 2000. However, residential and business areas located mitigation of locomotive horn noise on driver behavior in 2000 with the near the tracks decreased by 80 percent. communities. wayside horn was still slightly better As in the Ames, Iowa study, there was The NPRM proposed limiting the than the 1995 driver behavior with train acceptance of the system by both the horn sound emanating to the side of the horns. This research goes towards public and locomotive engineers. Ten locomotive to no more than the sound answering question number three. out of the 12 locomotive engineers measured to the front, and FRA had After review of the accumulated surveyed felt that the wayside horn was anticipated that this might cause experience with the use of wayside as safe, or safer, than the use of the railroads to modify their horns to reduce horns, FRA has determined that the use locomotive horn. This study contributes some of the unwanted noise. Many of wayside horns at crossings equipped towards answering question 2 by commenters supported these provisions with automatic flashing lights and gates providing additional data on the and strongly favored reducing as a replacement for train horns has effectiveness of wayside horns in maximum horn sound output levels merit under certain well-defined reducing incidents of driver disregard of from the high levels in general use. The conditions. It has been clearly shown the warning devices. While the study NPRM discussed a maximum sound that wayside horns significantly reduce does not quantitatively study question level from horns of 104dB(A) for the noise footprint that a community 2, it can be inferred from the data that crossings with active warning devices would experience when compared to the lack of directionality does not and 111dB(A) for passively signed the routine sounding of train horns. At contribute to an increase in incidents of crossings. Communities generally locations where wayside horns have driver disregard of the warning devices. commented in favor of using the lower been installed, community acceptance The interim final rule issued today sound level in all cases. On the other has been great and city officials cite that provides that wayside horns may be hand, the NTSB commented that there there has been no decrease in safety at used in lieu of locomotive horns at is a need for high sound levels to

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overcome vehicle noise and to provide location was compared in these tests are approaching the crossing at speed. adequate warning at passive crossings with the center of the locomotive body In this case the model suggests that a where significant responsibility and horn location which is current practice, high likelihood of detection will occur discretion is left to the driver. The BLE the difference in location produced no when the horn is producing 108dB(A) at preferred a variable horn that would meaningful change in community noise the measurement location, 100 feet in allow the engineer to decide when the exposure nor in the warning signal front of the locomotive and at 15 feet in high horn level was needed. projected beyond the immediate shadow height. FRA added a margin to this level Because this issue presented complex of the locomotive body. Horns located to account for variability in the sound questions that were not likely to be on the locomotive nose produced less level meters and other factors and set emphasized in testimony on the objectionable community noise but also the maximum level at 110dB(A). extensive NPRM, and because FRA resulted in weaker warning signals and Although FRA employed the best sought to put detailed questions to the resulted in higher noise levels in the available tools and knowledge to arrive railroad industry regarding the horn, engineer’s cab. FRA learned that at this level, additional research may, FRA held a Technical Conference on Transport Canada recently sponsored over time, suggest a different maximum Locomotive Horns during the comment moving tests of locomotive horns, which level. period. The conference was attended by showed meaningful differences in the This interim final rule requires railroads, the AAR, locomotive builders effectiveness of the warning signal railroads to comply with the maximum General Electric and General Motors, provided by horns mounted on the cab horn level of 110dB(A) using the new and other industry representatives. In roof versus those mounted on the center measurement procedures to certify their the conference, AAR made FRA aware of the locomotive body. The research locomotives. Compliance with the that the testing procedures set forth in indicated that horns mounted at the provision is required for new 49 CFR 229.129 were causing a front of the locomotive on the cab roof locomotives upon the effective date of misperception regarding center produced a more effective warning this rule which is one year after the date mounted horns. Because the existing signal. Because the results of the of publication of this rule. Additionally, § 229.129 requires measurement of stationary tests and the technical each existing locomotive shall be tested horns 100 feet in front of the locomotive conference did not justify the provision within five years of this publication date and 4 feet above the rail, it was claimed for a maximum sound limit to the side and when rebuilt as determined that an acoustical shadow is cast on the of the locomotive, it has been pursuant to 49 CFR 232.5. FRA also measurement device by the locomotive eliminated from this interim final rule. anticipates that whenever repairs or body when center mounted horns are However, because the Canadian modifications are performed to sounded. This acoustical shadow research indicates that horn location locomotives that affect the performance dissipates quickly as one moves further may be a factor in the effectiveness of of the horn system, the railroad will re- away or to the side of the locomotive. the warning signal, further research is certify the locomotive horn to comply It was suggested that the testing needed before any regulatory changes with § 229.129. procedures were giving the impression are made. With the establishment of the that center mounted horns were louder FRA has determined that by changing maximum sound level for locomotive to the side than to the front. Conference the measurement procedures in horns, FRA has also eliminated a plus participants complained that the § 229.129, the effect of the shadow can and minus tolerance in making proposal limiting the horn sound be removed from horn measurement. compliance measurements of horns. emanating to the side of the locomotive FRA believes that this simple change, FRA anticipates that railroads will set would force them to relocate horns onto with the additional requirement of their horns to be somewhat louder than the cab from the center of the remaining below a maximum sound the minimum and quieter than the locomotive, and would increase crew level, will have the effect of normalizing maximum to account for the minor noise exposure. The use of shrouds or the sound output of all horns. The inaccuracies of the Type II sound level shields had been tried by railroads in interim final rule requires that horns be meters currently available. While FRA attendance, and they did not consider measured at the familiar location, 100 currently uses Type II sound level them practical. The technical feet in front of the locomotive, however meters to test for compliance with part conference also helped FRA understand the sound level meter receptor is to be 229.129, FRA may use Type I sound the railroads’ strong commitment to mounted at 15 feet above the rail (i.e. level meters in the future. remain using compressed air warning out of the locomotive’s ‘‘shadow’’). Considerable effort has been device systems and the many FRA also continued to review and expended to establish and quantify both difficulties involved in equipping and refine the signal detection theory the significant risk reduction from maintaining horn systems. application previously developed by the regular use of locomotive horns and also After reviewing the results of the FRA Office of Research and the level of sound that needs to be technical conference and comments on Development and reported by the Volpe delivered to be detectable. FRA the horn provisions, FRA decided to Center (Railroad Horn Systems continues to study these issues and may conduct further tests to quantify the Research, USDOT FRA/VNTSC, January revise these requirements as new effects of horn placement and the 1999) using newly gathered horn information becomes available. influence of variations in available air measurement data. While lower sound FRA also gave serious consideration horn models. A series of stationary tests levels would reduce community noise to the option of requiring a two-level were performed by the Volpe National impact, an understanding of the horn selectable by the locomotive Transportation Systems Center (VNTSC) relationship between horn sound level engineer. This approach might allow a at the Transportation Test Center in and its detection by motorists is needed lower sound level for actively signed Pueblo, Colorado from April 10 to 12, to preserve the safety function of the crossings. Historically, horns had been 2001. The results of these tests showed horn. The detectability model was fitted with modulating valves that did that the shadow effect is very applied to the most critical safety provide some latitude for adjustment of pronounced at the measurement condition at passive crossings where no the sound level, and communities location specified in existing § 229.129. other audible or visual warning device exposed to today’s automatic When the traditional cab roof horn is present and where vehicles typically sequencing horns have expressed

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concern at the results. However, there This section of the preamble describes sound the horn at crossings under State are a variety of practical considerations the regulation of horn use at the State law). that FRA would need to consider that level in Illinois, explores its By contrast, Metra service operated by have not been fully developed in this implications for horn use and safety at freight railroads as contractors to Metra, proceeding before any mandatory the Chicago regional level, reports the and Metra service provided over lines standard could be issued (e.g., the comments from Chicago Region and controlled by freight operators, has been difficulties created by passively- and State officials in this proceeding, subject to the State law and the actively-signed crossings in close discusses the difficulties in obtaining jurisdiction of the Commission. Under proximity to one another). FRA will reliable and consistent data on where Docket No. T88–0050 the ICC addressed continue a dialogue with railroads and Chicago Region whistle bans were crossings on the lines of Metra’s freight communities on this issue. The rule actually in effect at a given time and partners. The Commission initially does not foreclose this approach where how FRA has attempted to resolve those found all crossings meeting the basic it fits local conditions, and FRA will difficulties and data anomalies, and requirements (active warning and fewer encourage railroads using locomotives explains the actions FRA has taken in than 3 accidents in 5 years) to be that are dedicated to particular line the interim final rule to respond to ‘‘reasonably and adequately protected’’ segments to explore this option. Chicago-area concerns. with the exception of two crossings. The Commission further found 16 Steam Locomotives B. Legislative and Administrative crossings ‘‘adequately protected’’ Actions in Illinois despite the occurrence of (in one case) FRA has elected not to address horn The recent history of train horn use in up to 5 accidents in the previous 5 sound levels on steam locomotives in the Region has been reported to FRA as years, stating that ‘‘at least part of that the rulemaking. Steam locomotives follows. Historically, the State of Illinois finding is based on a commitment by or constitute a small fraction of the tolerated local ordinances banning on behalf of the named governmental locomotive fleet and are mainly whistles, and it appears railroads had units to increase enforcement of State concentrated on tourist and scenic observed them to a substantial extent. laws as they apply to motorists obeying railroad operations with infrequent On July 29, 1988, Illinois Public Act 85– automatic flashing light signals and service in a largely rural area. Given the 1144 (625 ILCS 5/18c–7402) became gates. * * * ’’ The Commission went on strained financial circumstances of effective, requiring that the horn be to require reports referencing many museum and tourist operations, sounded by registered rail carriers at all enforcement and awareness programs at and the limited noise impact the small public highway-rail crossings.5 the 16 crossings, stating in effect that it number of steam locomotives have on Railroads complied, resulting in a expected to see an increase in safety local communities, FRA has not, at this substantial public outcry and court enforcement activity (Interim Order of time, elected to apply the maximum action. August 31, 1988 at 3). Notations sound level limits to steam locomotives. The Illinois Commerce Commission attached to the copy of this order It should be noted, however, that a (ICC) responded by excusing provided by the Commission indicated railroad operating a steam locomotive (exempting) all registered carriers from that, in addition to the said 16 crossings, within a quiet zone must silence its sounding horns at all highway-rail 29 crossings were initially identified for steam whistle in accordance with this crossings which (i) were provided with exemption under this order. In a rule. automatic flashing light signals, or subsequent interim order of September 14. Chicago Regional Issues flashing light signals and gates, and (ii) 8, 1988, the Chicago and Northwestern had experienced less than three was excused from sounding the horn at A. Introduction accidents involving a train and a vehicle the Nagle Avenue crossing, again based within the prior 5 years.6 In general, to on a commitment for law enforcement The six-county Chicago Region is host and education. to the largest rail terminal area in the qualify for being exempted, it appears that the crossing was required to have The final order in this docket Nation, and it accounts for the biggest provided by the Commission was dated concentration of ‘‘whistle bans’’ and had the same type of warning system in place over the past 3 years. ICC Docket October 12, 1988. In this order the associated casualties. Chicago Commission revised its express communities and Chicago industries Nos. T88–0050 (orders of August 31, 1988; September 8, 1988; and October decisional criteria as to at least the have grown up with and around the Nagle Avenue crossing, stating that extensive rail complex, and the 12, 1988) and T88–0053 (orders of August 31, 1988; October 12, 1988; and certain of the accidents at that crossing metropolitan area has benefitted greatly ‘‘were the result of persons deliberately from an extensive commuter rail system January 25, 1989). Notably, the Northeast Illinois ignoring the flashing lights and driving established by the State and funded by 7 Regional Commuter Railroad their automobiles around the gates.’’ the State and region with Federal The commission also provided relief for assistance. Chicago’s Union Station is Corporation (Metra) was not a named party in the ICC proceedings. Metra is two named crossings where warning also a major hub for Amtrak intercity systems had been recently upgraded service. The most voluminous and many not regulated as a registered carrier due to its status as a public benefit (notwithstanding the previous accident of the most spirited comments we history). The net effect of these actions received came from Chicago Region corporation of the State of Illinois (and accordingly is also not required to appeared to have left the majority of the organizations and residents who wished roughly 565 crossings on the Metra to maintain existing whistle bans. The 5 A copy of the Illinois code provision, and copies system subject to the requirement that train horn issue has a unique history in of major Commission orders, have been placed in the region that has contributed to the the docket of this proceeding. This material was 7 This constitutes the leading cause of collisions need for different treatment with respect provided by the Commission at FRA request. sought to be prevented by this rulemaking, although to the impact of no-whistle policies at 6 Three accidents at a single crossing within 5 the horn also has value to the motorist who has years in a very large multiple of the typical accident misunderstood the message sought to be conveyed gated crossings. For these reasons, we experience among public crossings. Most individual by the traffic control device, has stalled on the provide considerable detail on train crossings will not experience a single accident over crossing and needs to vacate the vehicle, or who is horn issues in the Chicago Region. a 10-year or greater period. faced with an activation failure.

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the train horn sound (or left them 0082. The Commission’s order of 1994 order listed 53 crossings at which unaddressed from the point of view of February 24, 1994, summarized its carriers were not excused under the new State law due to Metra’s unique self- actions to that point as follows: order (39 older crossings and 14 new governing status). However, that may After hearings and by orders in those crossings). There is little overlap not have been the case, as FRA has not dockets the Commission excused registered between the crossings in this list and had the opportunity to review the entire rail carriers from whistling at crossings under those specified as not excused in the file of the proceeding; and inquiries to the terms and conditions as set forth commission order in the previous the Commission to clarify this point hereinabove; at additional crossings where a docket. were complicated by the passage of time review of the type of accident at a specific The Commission subsequently and turnover of rail leadership. As crossing indicated that whistling would not entered an amendatory order in Docket noted below, if that was the case it was have prevented the accident and at other No. T91–0082 (dated July 20, 1994) swiftly altered by proceedings in crossings where governmental authorities making various adjustments to the prior agreed to increase their enforcement order. The major effect was to cut back another docket. activities of existing statutes governing rail Highway-rail crossings off the Metra crossings, increase safety programs/ the list of new crossings with system were subject to ICC Docket No. presentations to the public regarding same, insufficient exposure to 4 from 14 (so T–88–0053. The ICC initially entered an and report to the Commission at six month that carriers were excused at another 10 emergency order excusing the sounding intervals those enforcement/presentation crossings). of the horn under the basic criteria activities for a period of two (2) years. The Commission actions of 1994, previously described (August 31, 1988). which were based on accident data The Commission went on to indicate A total of 113 crossings with automated through June 1, 1991, apparently had that the present order was intended to warning devices were identified for the effect of excusing most of the Metra take into account the accident history continued sounding of the horn based system crossings operated or dispatched since the initial orders, as well as upon the occurrence of 3 or more by contract carriers, with the exception changes in crossing status. In reporting accidents between June 1, 1983, and of 5 Soo Line crossings. However, 14 the findings of hearings and letters in June 1, 1988. On October 12, 1988, the additional Chicago Region crossings this docket, the Commission noted that Commission entered an interim order without commuter trains were not a number of Chicago-area railroads, carrying forth this pattern, but adding excused. including Norfolk Southern, Illinois exemptions for crossings that had In its 1994 orders, the Commission Central, CSX and Chicago Northwestern experienced recent safety was silent with respect to the wisdom improvements. It appears that the list of (for crossings outside its suburban of continuing to excuse crossings with not excused crossings was reduced to commuter territory) indicated that they fewer than 3 accidents in a specified 5- 50, with another 9 crossings set for would sound horns at all crossings even year window in the past. The movement exemption upon completion of planned if excused. Order at 3. Though most of in the pattern of exemptions from 1988 improvements. the communities participating in the to 1994 was significant. If the The final order in ICC Docket No. proceeding sought exemptions for Commission considered the possibility T88–0053 was entered on January 25, crossings within their borders, the City that (i) sounding the train horns may 1989. It incorporated 2 crossings on a of Chicago stated it had no objection to have reduced the risk of collision in the Soo Line Metra route (previously use of the horn. period 1989–1991 for crossings that had omitted from T88–0050) which were The Commission consolidated the previously experienced 3 or more identified as not excused. The previous dockets under the new collisions within the overlapping Commission order stated that Appendix number, rescinded previous orders and previous period and (ii) excusing 1 listed all crossings where sounding entered findings that made adjustments compliance with the train horn at those the horn was not excused under both based on experience, including excusing crossings might drive the risk back up, dockets (T88–0050 and T88–0053). use of the whistle at additional the record available to FRA is silent Appendix 1 8 was a list of 53 crossings crossings that were ‘‘reasonably and with respect to such consideration. said to be ‘‘not excused,’’ 9 of which sufficiently protected.’’ In one instance were to be excused upon completion of sounding the horn was excused at a C. Actual Practice Sounding Train improvements and one of which is crossing were ‘‘a driver ignored Horns in the Chicago Region separately marked as not excused under operating gates and was hit and It is clear that, particularly prior to docket T88–0050. Of the 53 crossings citations for violating the gates were 1994, ICC orders excusing the use of the not excused, 23 were in the Chicago issued to that driver. * * *’’ Id. at 5. locomotive horn contained significant Region. Accordingly, by early 1989 the But the Commission indicated that exceptions, and certain exceptions great majority of crossings in the Region carriers would be required to sound the (applicable to largely different were excused, but 23 with the highest horn at new highway-rail crossings that crossings) apparently continue to date. number of recent accidents remained had not been in service for 5 years, even While the ongoing rationale for not excused. though equipped with automatic Commission decisions is apparently not After its initial actions in the 1988– warning systems. consonant with the principles later 1989 period, the Commission evidently The Commission was explicit in applied in Federal legislation leading to adjusted the terms of the exemptions stating that the statute ‘‘does not give this rulemaking, Commission orders over time, but the basic practice the Commission any authority to without question have tended to remained in place. In 1994, the prohibit the sounding of such whistle withhold relief from use of the horn for Commission conducted a review of the warnings. * * *’’ Id. at 5. The order a significant number of crossings that train horn issue under Docket No. T91– notes that, in fact, if communities are very high risk. In some cases, wanted carriers to sound the horn they communities may have been stimulated 8 The attachment FRA received from the could request that they do so despite to engage in enforcement or education Commission did not bear the docket caption, but exemptions; but there is no suggestion efforts in order to support exemptions. the Manager of the Railroad Safety Section of the Commission confirmed that FRA had received the that local jurisdictions could require It is also apparent that freight correct item and that the caption had been obscured railroads to honor exemptions by railroads have taken disparate points of during copying. running silent. Attachment 1 to this July view with respect to exemptions, with

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some electing to blow the horn at all discretion in whether to sound horns, a total of 255. The AAR noted that crossings and others taking a more even where exemptions from the State ‘‘none of these railroads operates at selective approach. mandate existed, based upon safety public crossings in Chicago without Much of the highway-rail crossing concerns and community quiet sounding the whistle unless the safety exposure in the Chicago Region is concerns. Given FRA’s knowledge of crossings are equipped with gates or found on the Metro commuter rail safety programs, FRA believes that trains operate at speeds under 10 network, which includes the following: Metra has likely tended to emphasize m.p.h.’’ At approximately the same time • Lines over which Metra has safety where risk is known to be Metra informed FRA that 130 crossings operated service directly and subject to relatively high based on factors such as on their property were no-whistle its own rules throughout the period crossing characteristics (angle of crossings. Between the year 2000 and 1988 to date (the Rock Island District, intersection, complexity of the roadway 2002 some of these crossings were South Shore Line, Southwest Service, geometry including nearby roadway reported in the inventory as being and the Electric District); intersections, history of accidents, crew closed or no longer public. When • Lines on which Metra operates in reports of near hits, and other factors). combined and checked against year effect as a tenant, with the freight According to the ICC, Metra has also 2002 inventory records some 304 railroad imposing operating rules and utilized some time-of-day partial bans to Chicago Region crossings were providing dispatching (Milwaukee address infrequent train movements considered no-whistle based upon AAR District West and North lines (Soo Line) during early morning hours. While and Metra sources. and the Heritage Corridor (CN)); freight railroads in the Chicago Region In November of 2002, the ICC • New service established using have apparently run silent as commuter provided an updated listing of crossings Metra crews over Wisconsin Central in operators over crossings where horn in the State of Illinois indicating current 1996 (North Central Service); and • sounding was excused, they have been whistle status (based on actual practice). Freight lines over which the freight much more likely to use the horn when railroads provide Metra service as It showed 278 no-whistle crossings in operating freight trains for their own the Chicago Region and, of those, 226 contract operators (UP North Line, UP accounts. Northwest Line, Wisconsin Central corresponded with the 304 provided by North Central Service, and BNSF Aurora D. Current Chicago Region Whistle Ban AAR and Metra. FRA also learned of 29 line service). Status additional quiet crossings in some other suburban Chicago communities for a Most of these lines carry significant Quite obviously, the fact that the ICC total of 385. freight volumes, as well as significant excused use of the horn does not mean numbers of daily commuter trains. that trains are running silent over the To the extent that the ICC and AAR Throughout the period Metra has crossing. The current total number of may not have queried all railroads, enjoyed discretion with respect to crossings in no-whistle status in the particularly smaller short line and whether to sound the locomotive horn Chicago Region is apparently regional railroads, a few crossings may at crossings where it provides service significantly smaller than the original have been omitted from these counts. directly, and Metra’s host railroads and 846 identified by the AAR and others in The AAR and ICC filings are also contract freight operators have also the early 1990’s. As of August 3, 2000, notable in omitting lines directly enjoyed significant latitude as a result of the ICC was estimating only 23 no- operated by Metra, which is an AAR the ICC exemption policy. Metra whistle freight-only crossings, all on the member. However, it is clear from the testimony and filings in this docket Indiana Harbor Belt, and 320 crossings AAR’s filing, as well as representations indicate that 69 percent of the 565 used by passenger and freight trains made by railroads to the Commission in public grade crossings on the Metra (Metra system), for a total of 343 no- 1994 and recent lists provided by the route system were no-horn crossings as whistle crossings. Of this number, 13 Commission, that the horn has been of spring 2000. It follows that Metra were affected by bans only during part sounded at the vast preponderance of trains sounded horns at about 175 of the day (e.g., nighttime or off-peak), freight-only crossings in the Chicago crossings and did not sound the horn at and the remainder were 24-hour bans. Region since at least the 1994 time about 390 crossings during that time Information provided by the AAR on period. period, but the picture may have been October 24, 2000 indicated a total of 28 The following table summarizes the somewhat different during earlier no-whistle freight-only crossings in the available data for the mid-2000 period, periods. FRA concludes that Metra and Chicago Region and 227 no-whistle including both partial and 24-hour bans its contractor operators have exercised crossings on the Metra route system for for the Chicago Region:

No-whistle Total Cross- FRA Updated crossings per No-whistle No-whistle No-whistle ings in Region Nationwide 8/23/2000 crossings per crossings per crossings as (2002) Study (Jan. CATS esti- 10/24/2000 ICC 11/19/ of 2002 (FRA 2002) mates AAR letter 2002 reconciliation)

Commuter ...... 320 227 ...... 347 Other ...... 23 28 ...... 38 Total ...... 1,671* 846** 343 255 278 385 * Current total from FRA inventory with adjustments for known closures. ** Based on early AAR survey and crossings identified during outreach largely prior to the NPRM.

FRA’s reconciliation in effect adds no- included the no-whistle crossings on possible that these counts omit a few whistle crossings on Metra’s home lines Union Pacific, BNSF, and Wisconsin no-whistle crossings, possibly those on to the AAR estimates and the Central property, but not on Metra railroads not surveyed by the parties. information from the ICC. AAR had owned and operated routes. Again, it is

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E. Community Reaction to the Proposed the Subcommittee on Ground the ICC required use of the train horn Rule Transportation of the Committee on at some of most hazardous crossings Testimony from public officials Transportation and Infrastructure, U.S. during at least portions of the FRA representing the Chicago Region was House of Representatives, on July 18, study period; and, even when the reasonably consistent in content. The 2000 (‘‘Implementation of the Federal Commission excused use of the train major Chicago Region groups argued Railroad Administration Grade-Crossing horn, Metra and freight railroads often that the collision rate at grade crossings Whistle Ban Law,’’ No. 106–101), which elected to use the horn notwithstanding in the Chicago Region is lower than the focused heavily on the Chicago Region. public opposition, if any. FRA endeavored to fairly evaluate the It is also necessary to understand nation—even with whistle bans. They claim of special circumstances, as well some basic information regarding the argued that FRA’s Inventory data were as to take the specific points into data that FRA has available to work outdated, that the rule is too costly, and account in relation to the National issue with. Accident/incident data used in that it would take much longer to posed in this proceeding. What follows this rulemaking are reported to FRA by implement than FRA had proposed to is a discussion of FRA’s findings, the railroads under regulations having allow. Chicago commenters also comparing FRA’s data and the force and effect of Federal law (49 postulated that the Chicago area will be methodologies with those in CFR Part 225). The data are available on the most impacted by the rule. The submissions by Chicago-area groups. We FRA’s public Web site at the individual general conclusion suggested by most of also discuss further the statistical crossing level, so local officials have the the commenters was that the Chicago analysis reported above with respect to opportunity to call any problems to the Region (or Illinois as a whole) should be its significance for the final rule. We agency’s attention. In general, FRA has excluded from the final rule and left to conclude that many comments from the every reason to believe that these data implement its own programs, which are Chicago Region have valid application are accurate, with the exception that a said to be better suited to local when tempered by other available recently-added field to identify the conditions. This testimony was information, and we call attention to presence of a whistle ban appears to be supported by State-level officials. aspects of this rule that reduce the eliciting information of questionable FRA is familiar with the efforts of the impact of the rule at no-whistle gated quality (and FRA has not relied on that Illinois Commerce Commission, the crossings in the region. As described field in this proceeding). Illinois Department of Transportation, above, FRA also developed a risk-based The characteristics of crossings Metra, freight railroads, and many method for excepting many (number of tracks, trains, motor vehicle counties and cities to improve safety at communities from the train horn traffic, etc.) are determined by reference highway-rail crossings in Illinois, and requirement. Moreover, this interim to the Department of Transportation’s specifically in the Chicago Region. final rule provides significantly more national Inventory of highway-rail These efforts are presently well led and time for implementation than did the crossings, which is maintained by FRA well coordinated, and the State NPRM. on behalf of all users. This is a contributes significant resources. voluntary data collection effort, and the Nevertheless, in the year prior to the F. Methodology/Inventory Data degree of cooperation in maintaining its testimony on the proposed rule, Illinois As noted above, Chicago Region currency varies from year to year and led the Nation in fatalities at highway- commenters generally viewed the grade among contributors. Substantially all rail crossings. The State regularly places crossing safety record in the region as highway-rail crossings have been second or third in that category, even good. Many commenters suggested that assigned Inventory numbers. Both the though collisions and casualties the train horn could not be an effective State departments of transportation (for declined over the decade of the 1990s warning device in the Chicago setting public crossings) and the railroads (for (as they did in the Nation). because of the number of train public and private crossings) are This record is driven to a significant movements (motorists would become requested to contribute updates to the extent by the very heavy exposure in the inured to the warning). Thus, it was felt Inventory whenever circumstances Chicago Region, where every weekday that there was no difference in safety change. Since State departments of over a thousand trains compete with performance between crossings where transportation receive Federal-aid millions of motor vehicles at almost the horn is sounded and those where it highway funds for crossing safety and 2,000 highway-rail crossings. Collisions is not sounded. (By contrast, the ICC other highway improvements, and since on major Chicago-area lines are more implicitly recognized the usefulness of under the ‘‘section 130’’ program States likely to result in serious injuries or the train horn but argued more are required to maintain a ranking of fatalities because of relatively high train widespread use of the train horn would crossings by degree of hazard in order speeds associated with commuter not be accepted by the public and was to plan allocation of funds reserved for service. FRA calls attention to this issue not necessary given existing crossing safety purposes, it is reasonable not to be critical in any way, but rather administrative standards.) FRA has to ask the States to share data needed to to note the importance of sustained responded to the comments by analyze crossing risk at the National effort by all responsible parties to meet thoroughly reviewing the underlying level. It is also reasonable to ask this continuing safety challenge. data as well as conclusions derived from railroads to provide these data, since FRA thoroughly reviewed all studies, the data in the NPRM. they have an interest in avoiding testimony and comments submitted by To understand the controversy over collisions at crossings, as well as Chicago-area commenters, including the Chicago data it is necessary to recall liability associated with such collisions. Speaker of the House of Representatives, several points regarding the Chicago FRA has actively promoted other Members of Congress, the Chicago Region at the outset. First, virtually all participation in maintaining the Area Transportation Study (CATS), of the crossings identified during public Inventory for the benefit of all users.9 Northwest Municipal Council (NWMC), contacts as of concern to Chicago Dupage Mayors and Managers, and the residents with respect to termination of 9 In 1999, and again in 2002, the Department of City of Chicago, Department of existing horn exemptions are equipped Transportation transmitted to the Congress draft legislation that would make submission of current Transportation, among others. FRA also with flashing lights and gates (‘‘gated data to the Inventory mandatory for both States and took official notice of testimony before crossings’’). Second, as discussed above, railroads.

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Some States, and some railroads, are signed and flashers-only crossings that further inquiry into the distribution of more aggressive than others in FRA had published to complete the ‘‘no whistle crossings’’ with the providing updated data for the public record but had noted might be conclusions recited above. FRA then Inventory. When FRA examined the unreliable). provided the corrected set to Westat for Inventory in the summer of the year Most Chicago-area commenters were further analysis. Recognizing that the 2000, FRA found that the average age of convinced that the whistle ban grade current no-whistle status could not be the most recent Inventory updates for crossing collision rate in Chicago is assumed to be valid for the earlier the State of Illinois was nine years. lower than the rate throughout the rest period, during which substantial ICC Except as noted below, FRA’s attempts of the nation, and many contended that and railroad decision making had no to elicit more recent information from the train horn is wholly ineffective. In doubt resulted in major changes in State authorities during the pendency of short, they doubted the conclusion status, FRA also provided a more recent this proceeding have been largely stated in FRA’s Updated Analysis of accident data set (1997–2001). unsuccessful. Train Whistle Bans (January 2000) that, As noted above, the result was that, Until recently, the Inventory did not on average, gated whistle ban crossings for gated crossings (by far the largest contain a field for the presence of a in the Chicago Region experienced 58 component of the Chicago Region issue), whistle ban, and FRA has not found percent more collisions than gated it was determined that no-whistle notations in the current inventory to be crossings with similar predicted risk of policies resulted in an increase of 17.3 sufficiently complete or reliable. The a collision at which train horns percent in accidents. This value was not issue of which crossings have been sounded. Two studies by associations of supported by a very high level of subject to bans or exemptions during local governments, discussed below, statistical confidence. Accordingly, FRA particular periods of time has been seemed to indicate different results. was left with three options: resolved through two means. First, in As noted above in the discussion of 1. Elect to determine that the Chicago preparing the National Study relied the Westat reports, FRA initially analysis was inconclusive, that the upon in the NPRM, FRA relied to a responded to the comments and statute requires FRA to find that the significant extent upon a survey analysis by contracting with that train horn has been fully compensated conducted by the AAR (survey statistical firm to regenerate the national for, and that the logical alternative was information received in 1992) and on study, using the best available to employ national averages (with or information received during outreach in information for the study period 1992– without inclusion of the Chicago data). anticipation of this rulemaking. 1996, to maintain comparability with 2. Take note of the negative impact Second, FRA has asked commenters the earlier work and to avoid what results yielded by the comparison of in this proceeding to provide the best might be temporary effects from the Chicago train horn and Chicago no- information that they have available, extensive publicity associated with this whistle crossings, and determine the including a direct request to AAR to rulemaking. FRA provided the best impact of no-whistle policies in the update its earlier survey of crossings available information regarding the Chicago Region to be zero, at least for (response received in October of 2000). status of crossings in Chicago during the pre-rule no-whistle crossings; or 3. Note the Westat finding that the Third, FRA has directly approached study period, along with other necessary Chicago crossings are in fact different in public authorities in the Chicago Region data. Westat reviewed the prior FRA their characteristics and accept the most asking for information. Finally, in the method (which it found useful and recent Westat estimate (17.3 percent) of case of some crossings for which the appropriate), made some improvements the effect of whistle bans on accident status was clearly questionable (both as in the method, and computed national rates at gated Chicago Region crossings, to whistle ban status and other data results which are reported above. With elements), FRA has reviewed railroad either for all quiet zones, or for Pre-Rule respect to gated crossings in the Chicago documents and conducted site visits. Quiet Zones only. Region, Westat found as follows: Given the discrepancies pointed out The first option of using national in the NPRM, FRA has sought to obtain For grade crossings with gates, the estimated averages for the entire Nation, including updated Inventory and ban information effect of a whistle ban depended on the Chicago, would have been employed by from the City of Chicago, but that had comparison group in the Chicago area. * * * FRA if the Chicago Regional data were Using the Continental U.S., Florida and not occurred more than two years after Chicago area excluded, as the comparison not available or their use inappropriate. the requests were made and as this group, grade crossings with gates without a FRA could have rationally decided that interim final rule was being completed. ban had a significantly lower accident rate the limited significance of the Chicago (Attempting to resolve this data problem than grade crossings with a ban, whereas Region statistical conclusions did not has caused significant delay in this using the Chicago area grade crossings with require reliance on those conclusions. rulemaking, as FRA has endeavored to no ban for comparison, there was no This would have resulted in a fully use the best available and most credible statistically significant effect associated with functional and appropriate interim final information in preparing this interim a ban. rule consistent with the Act; a rule FRA final rule. However, given the policy Zador, Paul L. at 6 (April 1, 2002). would not have hesitated issuing. choices FRA has made in this interim Stated differently, during the study However acceptable this option was, it final rule, a comprehensive resolution of period Chicago Region gated whistle would have necessitated according little the data problem has not proven ban crossings experienced an average of weight to a sizable body of testimony necessary.) 34 percent more accidents than similar from the Chicago Region together with Commenters on the NPRM questioned crossings in the Nation where the train statistical analysis and qualitative FRA’s data, which FRA had horn was sounded. The results were knowledge of the Chicago Region’s characterized as finding a significant statistically significant but as noted unique characteristics (discussed further effect from silencing the train horn at above a further statistical test indicated below). gated crossings in the Chicago Region. poor model fit. The second option would require FRA Some of this criticism was direct Accordingly, as FRA endeavored to to ignore the reality of discretionary (challenging the relevant FRA data on bring together the various sources of selection and the strong evidence based gated crossings), and other criticism was information and analysis in preparation on other national data (memorialized in indirect (challenging data on passively of this interim final rule, FRA made the statute giving rise to this rulemaking

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as well as the laws of most States, at individual crossings excepted from supported empirically or judgmentally. including Illinois), that the train horn train horn sounding. Accordingly, FRA will apply the can make a positive contribution at the • Following their interest in safety national estimate of ban impacts to New margin. FRA believes this option would and limitation of liability, overall Quiet Zones in the Chicago Region. not have been a rational choice. railroads likely have elected to use the FRA recognizes the potential down FRA has chosen the third option, and train horn where risk is higher or have side of qualifying Pre-Rule Quiet Zones has further determined that the lower exacted responsive action from using a lower estimate of ban effects. It estimate of ban impacts should be communities to compensate for use of is possible that some or all of the applied only to crossings in Pre-Rule the train horn. difference in performance has to do Quiet Zones. The need to determine the • The most extensive use of no- with factors that are beyond the control impact of no-whistle policies on whistle policies has been made on of this interim final rule. For instance, accident rates derives from the statutory commuter lines where many trains are the extensive coverage of this definition of supplementary safety scheduled, train counts are high, and rulemaking by the Chicago media will measures. The statute permits certain motorists are thus more likely to expect end as the rule is implemented, and that crossings to be excepted from the a train. Although the absolute effect of may result in future motorist behavior requirement to sound the train horn, silencing the horn at these crossings is that is less favorable than in the past. including crossings ‘‘for which, in the still a matter of substantial concern Changes in local risk to which railroads judgment of the Secretary, given the high exposure at these might previously have reacted by supplementary safety measures fully crossings, the proportional effect of resuming use of the train horn may compensate for the absence of the silencing the train horn is lower (again, become a source of concern, given the warning provided by the locomotive because motorists are conditioned to mandate of the rule to run silent horn [emphasis supplied].’’ As delegate believe the train will come, most trains through Pre-Rule Quiet Zones that have of the Secretary, FRA makes this are very conspicuous with two forms of been qualified under the new judgment in light of the following alerting lights, and—on lines where procedures. Accordingly, FRA will considerations: commuter trains are predominant— monitor results in the region and • Utilizing an estimate of motorist tolerance of delays is reduced consider further action as indicated. approximately 17 percent, despite the by the expectation that the train will limited statistical significance of the clear the crossing rapidly). Note on Intra-Regional Comparisons estimate, takes advantage of the best and FRA believes that the combination of Commenters in the proceeding also most current analysis available and fully these various factors provides a fully asked FRA to compare Chicago ban recognizes the conclusion of the Westat rational basis for selecting this option crossings to Chicago crossings where the report that the ‘‘ban effect for gated over the equally rational first option and train horn sounds, and FRA charged crossings was significantly different in the unsupportable second option, Westat with including that element in the Chicago area. * * *’’ described above. FRA notes that the its analysis. As noted above, Westat • Not only was the input data set of application of this lower effectiveness reported that no statistically significant no-whistle crossings for the final Westat rate for the train horn to pre-rule, no- effect from the train horn was found study much improved from the prior whistle gated Chicago Region crossings when Chicago Region gated crossings, work, but the time period of the study does not mean that the acceptable risk where the train horn sounds, are included the period when several at those crossings will be measured compared with the Chicago Region Chicago-area jurisdictions were making differently. To the contrary, those whistle ban crossings. This is neither special efforts to address crossing risk, crossings will be subject to the same surprising nor in conflict with the particularly where no-whistle policies Nationwide Significant Risk Threshold hypothesis that the train horn is useful. were in place. Reliance on the lower as all other pre-rule, no-whistle No accident prediction formula can estimate has the practical effect of crossings. The unique effectiveness rate, capture all factors present at individual rewarding effort already expended, which applies only at Chicago Region crossings, and in Illinois railroads have taking into account scores of comments gated crossings, determines only the the latitude under law to sound the horn by Chicago area officials and residents amount of reduction that may be at exempt crossings. It is logical to as well as the ‘‘interests’’ of required to meet this national risk expect that railroads would as a matter communities wishing to retain existing standard. FRA believes that a reduced of discretion elect to sound the horn at no-whistle policies. estimate of ban-induced accidents at crossings with very high known • The recent study takes into grade crossings is appropriate for accident potential (given factors such as consideration other variables that may existing (pre-rule) no-whistle crossings. roadway geometry, accident history and have closed the risk gap in the region, However, a reduced estimate would not observed motorist behavior), at least in particularly completion of the retrofit of be appropriate for current crossings in those cases where community auxiliary alerting lights, as well as the Chicago Region where the train horn objections to noise are not sufficiently special efforts made in the region (e.g., presently sounds, should those strenuous to convince them otherwise. Metra’s election to utilize both low- communities desire New Quiet Zones. Further, in those cases where the mounted ‘‘ditch lights’’ and oscillating Even on the commuter rail network, the railroads did not make this election and lights, rather than just ditch lights). risk characteristics of those crossings the accident counts rose significantly, • Use of the lower estimate is fully may be substantially different (e.g., the ICC could eventually be expected to consistent with what FRA understands more difficult geometry or sight intervene. Neither the railroads nor the regarding the application of no-whistle distances, less local commitment to ICC could be expected to go too far in policies, i.e., enforcement, etc.) Indeed, the the direction of discretionary use of the • Discretionary selection has almost comparisons between train horn and no- train horn, however, given vocal certainly occurred in the region. Under whistle crossings in the region confirm community objections. current State law (which will be that a reduced estimate at the 17 percent The result has been, FRA believes, preempted by this interim final rule), level would not be appropriate for those that the train horn is sounded as a railroads have the latitude to sound the crossings. Nor can FRA say that there is matter of discretion at many (but by no horn or refrain from sounding the horn an intermediate level which is well means all) of the very riskiest crossings

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in the region that may technically have normally distributed, but rather follow a likely shifted a disproportionate number been considered whistle ban crossings Poisson distribution. The CATS study of the most hazardous exempt crossings due to an exemption from the State applied a technique designed for use into the train horn category and other mandate to use the horn; and, even with normally distributed data that does confounding variables may apply. though the risk is reduced by the train not work well for data that are not The NWMC analysis concludes the horn, these crossings nevertheless normally distributed. The result of whistle ban is likely a spurious variable remain among the riskiest in the applying this model was residuals that in the FRA analysis. It argues the factors region.10 This discretionary selection were not normally distributed. used in the APF, such as train and has indeed had the effect of abating According to Westat, the omissions of automobile traffic, account for current significant risk in the region, but it factors known to affect collision rates accident levels rather than the whistle follows from this discussion that the coupled with an improper technique ban because the APF accounts for resulting statistical pattern within the rendered the model poor for the purpose almost 80 percent of the variation in region does not in any way call into of analyzing the effect of whistle bans accidents. FRA’s current approach question the potential for risk reduction on collision rates. adjusts for these effects. It is based on at the remaining crossings where the Disagreements about methods a Poisson regression that includes the horn is silenced. To the contrary, FRA notwithstanding, Hafeez and Laffey factors used in the APF along with the anticipates that requiring that the train come to essentially the same conclusion whistle ban. as the Westat analysis—i.e., Chicago horn be sounded at remaining whistle Implications of the Various Studies ban crossings in Chicago would reduce Region no-whistle crossings may be accident risk at those crossings, on safer on average than Chicago Region This interim final rule endeavors to average, about 15 percent.11 train horn crossings, at least when only ensure that, to the extent practicable, certain factors are controlled in the these decisions are made based on Studies Provided by Commenters analysis. As we have explained above, safety rather than economic or political In response to the NPRM, CATS this is not a surprising outcome when influence, with the important additional (Hafeez and Laffey) performed a discretionary selection is considered. difference that communities have the separate study of the effects of whistle Further, given the analytical methods option of insisting that the horn be bans in the Chicago area and concluded used and the small data sets available silenced where supplementary or that whistle bans have no effect on the for analysis, it would be as easy for alternative safety measures are put in collision frequency in the Chicago area. confounding variables to mask any place (or where no ‘‘significant risk’’ is Following receipt of the CATS study, differences as it is alleged by determined for the corridor). FRA asked Westat to review that report commenters to be for such variables to Again, FRA is keenly aware of the and provide an evaluation. generate specious differences. Consider, hazard that a spurious variable can The CATS study used a statistical for instance, that most of the Chicago- confound statistical analysis and technique called Analysis of Variance area no-whistle crossings are on the designed the stratified/matched pair (ANOVA) to determine if grade commuter rail network, while most of method used in the national studies crossings that had a whistle ban the train horn crossings are on lines specifically in an effort to avoid that experienced a higher collision rate in used exclusively or almost exclusively effect. FRA has also performed comparison to grade crossings where for freight. (Hafeez and Laffey also used longitudinal studies, as reflected in the train horns are routinely sounded. This the same, inflated data set of no-whistle Florida report and case studies method tested the statistical significance crossings that FRA had used in its embodied in the Nationwide report. In of the effect of a whistle ban on collision earlier analysis, which was the best every case where FRA has had sufficient frequency using the interaction between available at the time. It contained large valid data points to draw meaningful device type and whistle ban. Westat numbers of freight-only crossings where conclusions, the effect of the train horn found that, besides warning device the train horn was likely sounded has been confirmed, lending empirical class, this method failed to account for during much of the period.) confirmation of the following: the any of the other factors that are known The Northwest Municipal Conference judgment implicit in ICC exemption to affect collision rates, such as daily (NWMC) also filed comments in this management (that restoring use of the train and traffic frequencies, train speed, docket and attempted a statistical re- train horn can lower risk); human number of highway lanes, and number analysis of accident risk within its factors research; State laws requiring of tracks. Furthermore, grade crossing territory using the FRA method as use of the horn; the opinions of railroad collisions are rare event that are not reported in the NPRM and Nationwide professionals who are exposed to studies. This analysis also compared motorist behavior on a daily basis; and 10 Many of these very high risk train horn local area train horn crossings with the assumptions Congress made in crossings would also benefit substantially from exempt crossings where railroads have enacting the law that required FRA to safety improvements such as four-quadrant gates, traffic channelization, or photo enforcement; and elected to run silent. It concluded that issue this rule. public investments would be recovered through train horn crossings are no safer than In any event, FRA strongly agrees reduced loss of life and injuries avoided. FRA will no-whistle crossings, whether one with the NWMC comment that it is best continue to encourage use of these techniques compares all crossings or just gated to utilize a method that is responsive to wherever they may be useful. While that is not the subject of this proceeding, the pendency of this crossings. FRA determined that demonstrable regional differences, proceeding has the benefit of calling attention to NWMC’s analysis did not follow the where possible; and the interim final these possibilities for risk reduction that cannot be FRA procedure appropriately, rule follows this pattern. The result is a achieved using ‘‘standard’’ crossing safety particularly as to stratification of the significant reduction in effort that measures. 11 A 17.3 percent increase to a base amount yields sample. Nevertheless, as noted above, would need to be expended to institute a value of 117.3 percent (risk after implementation FRA has determined that comparisons, quiet zones in the Chicago Region. of a no-whistle policy). Restoring use of the horn between Chicago train horn crossings In conclusion, the comments related would reduce the risk to a level 100 percent of the and no-whistle crossings, cannot to safety at gated crossings, taken prior level. Seventeen and three-tenths is 14.7 percent of 117, so restoring the inflated value to the properly evaluate train horn usefulness together with subsequent statistical base amount is a 15 percent reduction to the no- within the context of the Chicago analysis, support reconciliation of FRA whistle state, after rounding. Region, since discretionary selection has safety concerns with the strenuously

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argued representations of the State and requests. FRA did, however, test its on improved warning systems, local and local jurisdictions that they are actively thesis that the data set is not suitable for National public awareness efforts promoting safety at highway-rail analysis by checking crossing status sponsored by a variety of parties crossings. The bottom line is that directly with railroads and through site (including U.S. DOT and the States Chicago-area railroads and the ICC have visits to a representative sample of through Operation Lifesaver, Inc.), acted to employ the train horn at many crossings. The result is that, based on improved engineering of highway-rail of the most hazardous crossings, but it current conditions many of the crossing and related traffic control is very probable (in FRA’s judgment) crossings identified in the Inventory systems, installation of alerting lights on that excess risk continues to be have long since been closed (over half locomotives and cab cars, general efforts unabated at many no-whistle crossings of the passive crossings and almost a devoted to improving highway safety where the train horn is silenced. This third of flashers-only crossings) or the (e.g., seat belt campaigns, impaired interim final rule offers the region type of warning device has changed. It driver campaigns, etc.), closure of automatic approval of the demonstrably is logical to assume that the remaining redundant crossings, and targeted law safest quiet zones and, for quiet zones crossings have experienced other enforcement in some local jurisdictions exhibiting higher degrees of risk, a changes since the last inventory records supported by a 1995 Illinois State law mechanism for implementing that may have further confounded the imposing a high monetary penalty for supplementary and alternative safety analysis. disregarding warning systems at measures, over a longer period of time More importantly, when post-NPRM crossings. It is also possible that freight and at lower cost than originally filings from the ICC, AAR and Metra railroads operating in Illinois have been proposed, with the result that existing were examined and compared with more aggressive in sounding the horn quiet can be preserved and New Quiet declarations in the ICC proceeding since the publication of FRA’s Florida Zones can be established with a during the period 1988–1994, it became and National studies (as they have been reasonable degree of confidence. evident that there likely were very few in other jurisdictions where permitted passively-signed and flashers-only to do so by repeal of bans or as a result G. ‘‘Chicago Anomaly’’ crossings that were in no-whistle status of favorable Federal court rulings). In the NPRM at page 2234, FRA during the most of the study period As noted above, FRA has further reported results of the Updated Analysis 1992–1996. Certainly there are very few updated its safety analysis to capture of Train Whistle Bans, January 2000, today—too few to yield meaningful developments in the period 1997–2001. which examined data for the five year comparative data towards a regional The result is a much lower estimate for period from 1992 through 1996 estimate. current ban-induced risk at Chicago (Updated Nationwide Study). The most As explained above, FRA finds no gated crossings—the great majority of widely cited passage in that analysis reason to apply estimates other than the no-whistle crossings in the regions. reads as follows: national averages to these categories of crossings. Since the crossings equipped I. Accident-Free and Low Risk The updated analysis also indicated that with flashing lights only or passive Jurisdictions whistle ban crossings without gates, but Chicago-area commenters, including equipped with flashing light signals and/or devices are generally low-train-speed other types of active warning devices, on and single-track crossings, FRA knows the Northwest Municipal Conference, average, experienced 119 percent more of no supportable reason why there were prominent among those arguing collisions than similarly equipped crossings should be a special effect in the Chicago that extended periods of safe outcomes without whistle bans. This finding made it Region at those crossings. Indeed, since at local crossings should be recognized. clear that the train horn was highly effective the ICC did not excuse use of the train As explained elsewhere in this in deterring collisions at non-gated crossings horn at passive crossings, it is likely that preamble, the interim final rule equipped only with flashing lights. The only no bans have been observed at those provides a conditional exclusion for exception to this finding was in the Chicago existing whistle bans where all area where collisions were 16 percent less crossings during the period or—as frequent. This is a puzzling anomaly. One suggested by the AAR in its October crossings in the jurisdiction have been possible explanation for this result is that 2000 filing—that this has occurred only collision-free for the past 5 years, more than 200 crossings (approximately one at crossings where train speeds were provided the projected risk is below the third of the crossings in Chicago) still less than 10 mph, which is typical only product of two times the Nationwide included in the DOT/AAR National within yards and on track approaching Significant Risk Threshold. The interim Inventory have in all likelihood been closed. industries. Accordingly, National final rule employs a risk-based approach They would continue to be included in the averages are appropriate for use under that credits good safety results. In fact, Inventory until reported closed by State or this interim final rule for both passive some existing whistle ban jurisdictions railroad officials. (At this time submission of grade crossing Inventory data to FRA is crossings and flashers-only crossings. may be able to avoid additional costs indefinitely provided their safety record voluntary on the part of States and railroads.) H. Safety Trend Lines FRA believes this could contribute to the low stays within the required parameters collision count for Chicago area crossings Chicago-area and other Illinois outlined in the interim final rule. without gates. Collisions cannot occur at respondents asked FRA to consider the crossings that have been closed. The improving safety record at grade J. Impracticability retention of closed crossings in the Inventory crossings before imposing a train horn Many Chicago-area commenters were would, therefore, have the effect of requirement. CATS noted that collisions particularly strong in making the point incorrectly reducing the calculated collision at crossings in Northeast Illinois had that several of the identified rate for the Chicago area crossings. declined 59 percent since 1988. FRA supplementary and alternative safety The Nationwide study showed a similar recognizes that the safety record at measures would not work in their local unexpected result for passively signed Chicago Region crossings has improved communities. Although many of these crossings in the Chicago Region. markedly during the last several comments are discussed in other Over three years after this analysis decades, and this is also true for the portions of this preamble, it is was published, FRA still has not State of Illinois and for the Nation as a appropriate to call attention to three received a full update of the Inventory whole. These gains have resulted from safety alternatives to the horn which for the City of Chicago, despite frequent expenditure of Federal and State funds were cited as impractical due to local

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conditions in the Chicago area or in run parallel to rail lines, either on one that the proposed safety measures are Illinois generally. side or on both sides of the rail line. unworkable. First, FRA was told that four-quadrant FRA has noted these circumstances in To test these criticisms, FRA gate systems were not permitted by the visits to the communities, and FRA conducted a preliminary cost analysis Illinois Commerce Commission. Since concurs that median barriers as associated with implementation of quiet that testimony, the MUTCD, which is specified for supplementary safety zones in several Chicago-area issued by the Federal Highway measures in the NPRM will not work at communities. The site-specific analysis Administration and supported by a many locations. FRA has responded by was conducted at 12 highway-rail grade national committee of traffic control making the requirements for crossings in the communities of experts, has been amended to specify channelization more explicitly flexible LaGrange, Western Springs and criteria for four-quadrant gates as a in the appendix language describing Hinsdale, and in each instance standard warning system at highway- alternative safety measures. FRA has employed a corridor approach. rail crossings. This action signals the made it clear, for instance, that The analysis revealed that in some acceptance of this safety system by channelization on one side of the rail cases, public education efforts and professional traffic safety experts. line—or for a shorter distance than the increased enforcement of existing Further, the Illinois Department of 60–100 feet nominally desired—could highway-rail crossing laws can be used Transportation has funded installation qualify for a risk reduction credit. FRA in place of engineering solutions. At of a large number of four-quadrant gates has also recognized that at many crossings where engineering at crossings on the designated high- locations channelization is not feasible, improvements would be the most speed rail corridor between Chicago and and this has been taken into practical approach, the study found the St. Louis via Springfield, with ICC consideration as the costs and benefits costs of implementing a variety of participation. The ICC has also stepped of the interim final rule have been SSM’s would be significantly less than forward to demonstrate a low-cost assessed. Chicago commenters estimated. Based vehicle presence detection system for Finally, FRA has taken seriously the upon the earlier estimates for effects of use with four-quadrant gates. FRA concerns expressed with respect to the no-whistle policies in the Chicago believes that the Illinois Commerce cost associated with verifying risk Region, it was estimated that by Commission will continue to respond reduction following implementation of utilizing the corridor risk reduction appropriately to identified needs for public education and enforcement approach and utilizing engineering four-quadrant gate systems. programs. FRA has joined forces with improvements at selected crossings that Second, FRA was told that photo the ICC and local communities to the total construction cost for these enforcement is not authorized under implement the Public Education and corridors would be $360,000 with an Illinois law at highway-rail crossings. Photo enforcement for red-light running Enforcement Research Study (PEERS) annual maintenance cost of $37,000. (and to a lesser extent for excessive program. This education and outreach This is much less than estimates speed) is becoming standard practice in effort will be evaluated for effectiveness received from some commenters who a growing number of jurisdictions at the community level and, if erroneously assumed that four-quadrant nationwide. After some initial successful, could have potential for gates would be required at each difficulties related to program design application across the region. Although crossing. Actual costs under this rule and judicial acceptance, a photo FRA cannot state specifically how this should be even lower, since on many enforcement project in the Chicago approach might be integrated into this corridors, the required risk reduction of Region is continuing with the promise rule until results are known, it does 15 percent can be taken at a single of positive results. There are currently offer an additional possibility for crossing. four crossings in the Chicago Region achieving the safety goals of the In light of the greater flexibility of the that are equipped with photo rulemaking at relatively low cost. interim final rule with respect to existing whistle bans, and the menu of enforcement (Downers Grove, K. Costs Naperville, Wood Dale and Winfield engineering options, costs to convert each have one crossing so equipped). Chicago respondents testified that the existing whistle bans into quiet zones, The Naperville installation has been in cost of installing Supplemental Safety or even create New Quiet Zones will be effect since July 2000. There has been an Measures (SSMs) or implementing significantly less than most Chicago 87 percent reduction in violations of the Alternative Safety Measures (ASMs) that commenters estimated in responding to warning devices at the crossings, and will permit the creation of quiet zones the NPRM. In instances where an there has been a 98.5 percent conviction far exceeds cost estimates developed by existing quiet zone falls below the rate of the citations issued. The Wood FRA and represents an unfunded Nationwide Significant Risk Threshold, Dale installation, which has been in Federal mandate. The City of Chicago, the only costs that would be incurred service since December 1999, showed a Department of Transportation would be for maintenance of the 47 percent reduction in violations as commented the rule would force the Inventory data and posting of ‘‘No Train reported in September 2000. Both the installation of four-quadrant gates at 237 Horn’’ signs at crossings. Downers Grove and Winfield systems crossings in the City. The Chicago Area FRA understands the concern of are relatively recent but the initial Transportation Study estimated that the commenters that paying for SSMs or reports are favorable. The timetable set cost to implement quiet zones in the ASMs where necessary to preserve or forth in this rule allows ample time for CATS region would be $200 million. create a quiet zone may pose some fiscal results of the current demonstration to However, these arguments stem from hardships for some communities. be communicated to the legislature and the presumption that all crossings Although this rule will not cost in for the legislature to authorize photo within a quiet zone will need to be excess of $100 million in any year, and enforcement. equipped with four-quadrant gate thus is not subject to the assessment Third, FRA heard from many systems. Other SSM’s were dismissed requirements of the Unfunded Mandates jurisdictions in the Chicago Region that by Chicago commenters as impractical Reform Act of 1995, FRA has made median barriers would not work in their for a variety of reasons. CATS Council every effort to limit the burdens that this settings because of major roadways that of Mayors Executive Committee argued rule imposes and to concentrate those

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burdens where the safety rationale is that corridor because information and (3) rapid transit operations within most compelling. gathered in response to the NPRM was an urban area that are not connected to not sufficient to make such estimate and the general railroad system of L. Time for Implementation because the actual rate of increase transportation. Chicago respondents also argued that experienced during the period studied In the NPRM, FRA proposed to not the time frame proposed for prior to issuance of E.O. 15 requires re- apply the rule to plant railroads and implementation of quiet zones was too examination to determine whether it freight railroads which are not part of short. The Illinois Commerce remains valid in light of changed the general railroad system of Commission projected that it would take circumstances. FRA will determine transportation. FRA noted that these ten years to implement the required whether to apply a regional estimate as operations are typically low speed with safety measures. CATS Council of to the effect of silencing the train horn small numbers of rail cars permitting Mayors Executive Committee’s estimate at E.O. 15 crossings based on comments relatively short stopping distances. was as long as 15 years. They argued submitted in response to this interim Additionally, these operations typically that the time it would take to do the final rule or through supplementary fact involve roadway crossings with work in more than 200 communities in finding prior to the rescission of E.O. 15. relatively low speed vehicular traffic. the Chicago Region alone would FRA will issue the necessary finding These reasons, together with FRA’s overburden the railroad industry, tax well before the effective date of this historical basis for not making its Federal resources beyond their capacity interim final rule. regulations applicable to plant and non- to deliver, and be more of a burden than general-system freight railroads led FRA the railroad construction industry could 16. Section-by-Section Analysis to propose not to apply the rule to such handle within the required time frame. Section 222.1 What Is the Purpose of operations. Since use of the locomotive These arguments were generally based This Regulation? horn is a matter within the scope of on the presumption that all crossings railroad operating rules (see 49 CFR Part would need to be equipped with four- This section describes the purpose of 217), maintaining reasonably consistent quadrant gate systems. Nevertheless, this regulation—to provide for safety at policies of inclusion and exclusion FRA gave careful consideration to this public highway rail grade crossings by appeared sensible. Omitting plant concern, and has provided significant regulating locomotive horn use at those railroads from the scope of the section additional time to implement quiet crossings. In addition to regulating is intended to leave State authorities zones while also attempting to reduce locomotive use at the crossings, the with continuing jurisdiction over the the number of corridors for which regulation provides an opportunity for subject matter of the appropriate audible supplementary or alternative safety the cessation of routine use of the warnings to be used by such railroads. measures will be required. locomotive horn at those crossings, In the NPRM, FRA also discussed its while maintaining, at a minimum, the basis for proposing to make the rule 15. E.O. 15 Status same level of safety as exists when applicable to ‘‘scenic’’ or ‘‘tourist’’ Emergency Order 15, issued in 1991, horns are used. railroads which are not part of the requires the FEC to sound locomotive general system of railroad horns at all public grade crossings. The Section 222.3 What Areas Does This Regulation Cover? transportation. FRA took the position Emergency Order preempted state and that since the rule deals directly with local laws that permitted nighttime bans This section describes the areas, or public grade crossings, it should apply on the use of locomotive horns. scope, of the regulation. The regulation to all tourist and scenic railroads with Amendments to the Order did, however, prescribes standards for sounding of public grade crossings irrespective of permit establishment of quiet zones if locomotive horns when locomotives whether they are part of the general supplementary safety measures were approach and pass through public system of railroad transportation. FRA implemented at every crossing within a highway-rail grade crossings. The took a similar position in its rule on proposed quiet zone. The regulation also addresses standards grade crossing signal system safety, supplementary safety measures under which locomotive horns are not which applies to tourist and excursion specified in the Order, although similar, sounded when locomotives approach railroads outside of the general system are not the same as those contained in and cross public crossings. The if they have attributes that make them this Interim Final Rule. The SSMs and regulation does not cover the use of non-insular, such as public grade the conditions on their implementation horns at private crossings except when crossings. See 49 CFR 234.3(c). The contained in this rule, provide those private crossings are within a Association of Railway Museums, in communities substantially greater quiet zone. For a further discussion of opposing the inclusion of tourist and flexibility in creating quiet zones than private crossings, see § 222.25. scenic railroads in what it termed as ‘‘a those in the Order. So as not to general system rulemaking,’’ stated that Section 222.5 What Railroads Does adversely affect Florida communities ‘‘[i]f the operating characteristics which This Regulation Apply To? along FEC tracks by imposing different FRA has ascribed to plant and private standards for establishing quiet zones This section describes the railroads to freight railroads are sufficient to justify than along other Florida rail lines or which this regulation applies. The different treatment under the rule, they elsewhere in the Nation, FRA will regulation applies to every railroad with are certainly sufficient to justify rescind E.O. on December 18, 2004, the a number of listed exceptions. The different treatment of tourist/historic effective date of this rule. At that time, regulation does not apply to (1) railroads.’’ The commenter pointed out the provisions of this rule will apply to railroads exclusively operating freight that FRA is required by statute to all grade crossings within the State of trains only on track which is not part of consider differences between tourist Florida. Some communities along the the general railroad system of railroads and general system railroads, FEC (communities subject to E.O. 15) transportation; (2) passenger railroads whereas there is no similar statutory may wish to establish New Quiet Zones that operate only on track which is not requirement applicable to plant and following the effective date of this rule. part of the general railroad system of ‘‘private freight railroads.’’ FRA is not at this time calculating the transportation and which operate at a FRA believes that there are significant effect of silencing the train horn along maximum speed of 15 miles per hour; differences between industrial railroads

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and tourist railroads that warrant corridor but do not share track were governs the sound levels of locomotive exclusion of the former and inclusion of sufficient connections to the general horns on general system railroads. FRA the latter in this rule. The primary and system to warrant FRA’s exercise of seeks comment on what standards may obvious difference, of course, is the jurisdiction over the rapid transit be appropriate for the audible warning presence of passengers in tourist operation at the point of connection. 65 devices used by rapid transit systems operations, which increases the number FR 42541. FRA pointed out that the subject to part 222. Other impacts of of people at risk of injury in highway- rapid transit operation would be applying the rule would include the rail accidents. The operating expected to observe FRA’s rules need to involve yet another entity in the environments are also quite different, concerning grade crossings that were creation and enforcement of quiet zones. with tourist operations more likely to then in effect, i.e., the rules on grade However, true quiet could not be achieve higher speeds and encounter crossing signals and ditch lights. Id. achieved without the involvement of all higher speed highway traffic than plant (FRA’s proposed policy statement had entities that operate trains over those railroads. Moreover, FRA has made this same point; see 64 FR 59058 crossings. historically not applied its rules to plant (1999).) FRA’s policy statement explains Given the questions surrounding railroads (see the discussion of FRA’s the logic behind this determination: application of the rule in the shared policy on the exercise of its jurisdiction Certain types of connections the general corridor context, FRA solicits comments in these circumstances, 49 CFR, part railroad system will cause FRA to exercise on this issue. Should FRA leave the 209, appendix A) for reasons not jurisdiction over the rapid transit line to the applicability provisions of parts 222 and applicable to tourist operations. extent it is connected. FRA will exercise 229 as they are, i.e., inclusive of rapid However, as a result of the comments, jurisdiction over the portion of a rapid transit transit operations in shared corridors? operation that is conducted as a part of or Or, should FRA amend the applicability FRA has reviewed this section and is over the lines of the general system. * * * persuaded that low speed passenger provisions of part 222 and 229 to [W]here transit operations share highway-rail exclude rapid transit operations that service (i.e., at 15 miles per hour, or grade crossings with conventional railroads, less) not on the general railroad system FRA expects both systems to observe its share highway-rail grade crossings with does not constitute a significant risk. signal rules. For example, FRA expects both conventional operations but do not Low speed service, together with railroads to observe the provision of its rule share trackage? If so, how can the rule’s relatively short trains, and on grade crossing signals that requires central purpose of achieving adequate comparatively light passenger cars prompt reports of warning system train horn warnings at grade crossings malfunctions. See 49 CFR part 234. FRA be achieved, if those rapid transit permit significantly shorter stopping believes these connections present sufficient distances than fast, long, heavy freight operations would not be subject to the intermingling of the rapid transit and general mandate to sound their horns? How trains. These conditions convinced FRA system operations to pose significant hazards that such operations do not require the to one or both operations and, in the case of would communities that have or wish to sounding of locomotive horns at this highway-rail grade crossings, to the motoring establish quiet zones achieve their goals time. However, it should be noted that public. The safety of highway users of if the rapid transit operations operating FRA may amend the rule in the future highway-rail grade crossings can best be over shared corridors are not subject to protected if they get the same signals the rule? to include plant railroads or tourist concerning the presence of any rail vehicles railroads in the event that it determines at the crossing and if they can react the same Section 222.7 What Is This that safety requires such action. way to all rail vehicles (65 FR 42545; 49 CFR Regulation’s Effect on State and Local Paragraph (3) of this section addresses part 209, app. A). Laws and Ordinances? the extent to which rapid transit This same logic clearly applies to This section informs the public as to operations are governed by this part. audible warnings at highway-rail grade FRA’s intention regarding the Under the Federal railroad safety laws, crossings: motorists are best protected if preemptive effect of this interim final FRA has jurisdiction over all railroads they receive the same warnings rule. While the presence or absence of except ‘‘rapid transit operations in an concerning the presence of rail vehicles such a section does not conclusively urban area that are not connected to the at a crossing regardless of whether those establish the preemptive effect of a final general railroad system of vehicles are rapid transit or or interim final rule, it informs the transportation.’’ 49 U.S.C. 20102. Like conventional rail. In light of FRA’s July public concerning the statutory the proposed rule, the interim final rule 2000 interpretive guidance that provisions which govern the preemptive tracks the statutory provision, excluding considers these crossings sufficient effect of the rule and FRA’s intentions from the rule’s reach only those rapid connections to warrant exercise of its concerning preemption. Paragraph (a) transit operations not subject to FRA’s jurisdiction, this interim final rule, points out the preemptive provision jurisdiction, i.e., those not connected to which uses the same relevant language contained in 49 U.S.C. 20106, which the general system. However, shortly as the proposed rule, will apply to rapid provides that all regulations prescribed after issuance of the proposed rule, FRA transit operations that share grade by the Secretary relating to railroad issued an interpretive statement that crossings with conventional railroads in safety preempt any State law, explains what FRA believes ‘‘connected a common corridor, as well as to rapid regulation, or order covering the same to the general railroad system’’ means. transit operations that share track with subject matter, except a provision Statement of Agency Policy, 65 FR conventional railroads. necessary to eliminate or reduce an 42529 (2000); 49 CFR part 209, However, applying this rule to rapid essentially local safety hazard that is not appendix A. FRA made clear that a transit operations may pose certain incompatible with a Federal law, passenger operation, even if rapid problems. The horns in use on such regulation or order and that does not transit in nature, that shares the same rapid transit trains may not be able to unreasonably burden interstate track as a conventional railroad is meet the standards for audible warning commerce. With the exception of a subject to FRA jurisdiction on all shared devices in 49 CFR 229.129. Accordingly, provision directed at an essentially local track. FRA also made clear that new subsection (d) to § 222.129 safety hazard that is not inconsistent highway-rail grade crossings traversed excludes rapid transit operations from with a Federal law, regulation or order by a rapid transit operation and a the ‘‘audible warning device’’ and that does not unreasonably burden conventional railroad that share a requirements of that section, which interstate commerce, 49 U.S.C. 20106

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will preempt any State statutory or Governments wants the rule so as to be crossings. All ASMs and SSMs listed as common law, local ordinance or State or able to establish quiet zones. Counsel approved in appendices A and B have local regulatory agency rule covering the for the League of Wisconsin been approved by the Administrator. same subject matter as the regulations Municipalities, representing all of the Section 222.55 addresses how new contained in this interim final rule. See cities and most of the villages in SSMs and ASMs are approved. Such Norfolk Southern v. Shanklin, 529 U.S. Wisconsin, stated that municipalities in new SSMs and ASMs are approved by 344 (2000) and CSX v. Easterwood, 507 Wisconsin are granted broad home rule the Associate Administrator. U.S. 658 (1993). powers and thus are concerned about ‘‘Alternative safety measure’’ should Paragraph (b) makes clear the the preemption of their authority to be read in conjunction with the intention of FRA that by including regulate the use of train horns within definition of an SSM. Both SSMs and SSMs and ASMs in this regulation (or their communities. Wisconsin State ASMs are safety systems or procedures by approving additional SSMs or ASMs Representative Miller expressed similar determined to be an effective substitute subsequent to issuance of this interim views. The County Commissioner of for the locomotive horn in the final rule), FRA does not intend to Olmstead County, Minnesota, testified prevention of highway rail casualties at preempt State law regarding use of those to his opposition to additional highway-rail grade crossings. SSMs measures for traffic control. Individual preemption of State and local authority. have been determined by the States may, consistent with Federal While the commenters representing Administrator in appendix A to be Highway Administration regulations local government may prefer to have no effective substitutes for the horn at any and the MUTCD, continue to determine regulation of their ability to institute grade crossing to which they are whether specific SSMs or ASMs are quiet zones, the decision as to the applied. Thus, the Administrator has appropriate for traffic control. State law regulatory body has already been made determined that if, for example, four- and local ordinances concerning by Congress. The issue raised in the quadrant gates are appropriately sounding of train horns in relation to NPRM, however, is whether, despite installed at a grade crossing, the the use of conventional crossing safety issuance of this rule, States may warning and protections provided will systems, SSMs and ASMs are, however, prohibit or permit localities to establish at least equal that provided by the preempted. Thus, if a specific quiet zones. FRA is rejecting the view locomotive horn. Because these safety engineering improvement is approved posited in the NPRM that the rule does measures will compensate for the lack as an SSM for purposes of this rule, and not confer authority on localities to of the locomotive horn wherever they consistent with FHWA regulations and establish quiet zones if State law does are used, FRA has not required prior the MUTCD, a State has the discretion not otherwise permit such actions. A approval for their use at specific whether to accept its use for traffic close review of the statutory language locations. ASMs differ from SSMs in control purposes. If a State decides that leads to the conclusion that Congress that they are capable of being an such SSM cannot be used within the intended that local communities be the effective substitute for the locomotive State, such decision is not meant to be primary parties in establishing quiet horn, but can only be determined to be preempted by this rule—this interim zones as long as this is done in effective on a crossing-by-crossing basis. final rule would not force State accordance with Federal rules. Because of that limitation, use of such acceptance of an SSM. However, any Moreover, there can be no doubt that ASMs requires prior approval of the State law or regulation relating the use such State laws would clearly be within Associate Administrator. Appendix B lists ASMs currently of train horns to the SSM would be the subject matter covered by this rule, accepted for the Associate preempted by this rule. and would therefore be preempted. The interim final rule published today Administrator’s review on an individual permits localities to establish quiet Section 222.9 Definitions crossing-by-crossing basis. zones irrespective of any State law This section defines various terms ‘‘Associate Administrator’’ means the regarding sounding of train horns or which are not widely understood or Associate Administrator for Safety of the Federal Railroad Administration. establishment of whistle bans and quiet which, for purposes of this rule, have The term also includes the Associate zones. This view differs from that which very specific definitions. This section Administrator’s delegate. FRA stated in the preamble to the defines the following terms: NPRM—that the proposed rule ‘‘does ‘‘Channelization device’’ means one not confer authority on localities to ‘‘Administrator’’ of a continuous series of highly visible This definition makes clear that when establish quiet zones if state law does vertical markers placed between the term ‘‘Administrator’’ is used in the not otherwise permit such actions.’’ opposing highway lanes designed to rule, it refers to the Administrator of the Both the CPUC and the Florida alert or guide traffic around an obstacle Department of Transportation expressed Federal Railroad Administration. It also or to direct traffic in a particular the view that the rule should allow provides that the Administrator may direction. This term was defined in States to impose more stringent delegate authority under this rule to more detail in the NPRM—minimum requirements for establishing quiet other Federal Railroad Administration height and distance requirements were zones. Expressing an opposite view, the officials. listed. Rather than dictating such detail mayor of Middleburg Heights, Ohio is in ‘‘Alternative safety measure’’ to the community installing the devices, favor of ‘‘empower[ing] the local elected This term was not included in the the present definition states that design officials to make the best decisions for definition section of the NPRM. It is specifications are determined by the their community. Local officials on the included in this section because of its standard design specifications used by scene are more capable of judging any unique meaning within this rule. The the governmental entity constructing the internal budgetary, safety or quality of term ‘‘alternative safety measure’’ refers channelization device. However, any life issues.’’ The representative of the to a safety system or procedure channelization device used shall Metropolitan Council of Governments, established in accordance with this rule comply with the MUTCD and should be representing two cities in Minnesota and which has been determined to be an in compliance with applicable and two cities in North Dakota, points effective substitute for the locomotive guidelines of the American Association out that because North Dakota currently horn in the prevention of highway-rail of State Highway and Transportation prohibits quiet zones, the Council of casualties at specific highway-rail grade Officials. The definition thus makes

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explicit that ‘‘tubular markers’’ and between zero and one which represents proceeding. Since they are conservative ‘‘vertical panels’’ as described in the reduction of the probability of a in nature, reliance upon them in the sections 6F.57 and 6F.58, respectively, collision at a public highway-rail grade context of application of SSMs to all of the MUTCD, are acceptable crossing as a result of the installation of crossings in a quiet zone should be channelization devices for purposes of a safety measure when compared to the entirely appropriate in virtually every this part. This change is consistent with same crossing equipped only with case. The individual judgments of local a comment submitted by Winter Park, conventional gates and lights. An public authorities or State level officials Colorado in which the community effectiveness rate of zero indicates that cannot be assumed, a priori, to be requested more flexibility in the the safety measure provides no superior to these benchmarks, definition/design of channelization reduction in the probability of collision. particularly where the personnel devices. The safety measure is not effective at all. involved have no experience in the use ‘‘Crossing Corridor Risk Index’’ is a At the other extreme, a safety measure of particular safety measures (many of number reflecting the relative risk to of one indicates that the safety measure which are new to the realm of highway- motorists at grade crossings within a is totally effective in reducing rail crossing safety).12 Balancing these grade crossing corridor in which collisions. Grade separation would fall concerns, FRA has attempted to craft a locomotive horns are routinely sounded. into the latter category—separating structure that fosters consistency while This number is derived by calculating railroad tracks from the roadway is inviting attention to project-specific the number of predicted collisions per totally effective in reducing grade considerations and enabling the use of year at each public grade crossing crossing collisions. Values between zero professional engineering judgment within a corridor of crossings. A risk and one reflect the percentage by which where warranted. index reflecting the predicted likelihood the safety measure reduces the ‘‘FRA’’ means the Federal Railroad and severity of casualties resulting from probability of a collision. For example, Administration. those collisions for each crossing is then if a safety measure has an effectiveness ‘‘Grade Crossing Inventory Form’’ calculated. An average risk index for the rate of .75, it reduces the probability of means the U.S. DOT National Highway- entire group of crossings within the a collision at the crossing by 75 percent. Rail Grade Crossing Inventory Form, corridor is then calculated (by summing Conversely, if a safety measure has only FRA Form F6180.71. This form is the risk index for each crossing and an effectiveness rate of .05, it would available through the FRA’s Office of dividing the total by the number of reduce the probability of a collision by Safety, or on FRA’s Web site at http:// crossings within the corridor). This only 5 percent. www.fra.dot.gov. average risk is the Crossing Corridor The few comments FRA received on ‘‘Locomotive’’ means a piece of on- Risk Index. It reflects the present risk this topic were negative. The Illinois track equipment other than hi-rail, associated with a crossing corridor, Commerce Commission, while not specialized maintenance, or other before the level of risk changes due to objecting to the definition itself or similar equipment—(1) With one or silencing of locomotive horns or concept, complained that the ‘‘ratios are more propelling motors designed from implementation of SSMs or ASMs. arbitrary guesses which have little moving other equipment; (2) with one or Details on determining the Crossing empirical value.’’ The CPUC similarly more propelling motors designed to Corridor Risk Index are provided in felt that there are insufficient data to carry freight or passenger traffic or both; Appendix D of this part. assign effectiveness rates. They stated or (3) without propelling motors but ‘‘Diagnostic team’’ means a group of that instead ‘‘[t]he effectiveness of an with one or more control stands. This knowledgeable representatives of parties SSM * * * should be evaluated by the definition is being added as a result of in interest in a highway-rail grade applicant, the railroad, and the a suggestion from the AAR. crossing, organized by the public regulating state agency for each ‘‘Locomotive horn’’ means a authority responsible for, or funding individual crossing in a quiet zone.’’ locomotive air horn, steam whistle, or improvements at, the crossing, who, FRA recognizes that, to the extent similar audible warning device mounted using crossing safety management effectiveness estimates have been on a locomotive or control cab car. The principles, evaluate conditions at a derived from limited data, they should terms ‘‘locomotive horn’’, ‘‘train grade crossing to make determinations not be treated as sacrosanct. Further, whistle’’, ‘‘locomotive whistle’’, and and recommendations for the public individual crossing characteristics may ‘‘train horn’’ are used interchangeably authority concerning safety needs at that be more or less compatible with by many people to denote the audible crossing. A diagnostic team can consist realizing the benefits of particular safety warning device mounted on a of the local traffic or highway engineer, measures. Accordingly, the concept of locomotive or control cab car. and representatives of various parties alternative safety measures is ‘‘Median’’ means the portion of a including the local public works incorporated into this rule with the divided highway separating the travel department, the railroad whose tracks expectation that diagnostic teams will ways for traffic in opposite directions. are crossed, the State department of be able to estimate effectiveness with a ‘‘MUTCD’’ means the Manual on transportation, local law enforcement, higher degree of refinement, working (as Uniform Traffic Control Devices issued and emergency responders. The relevant) from the benchmark levels by the Federal Highway Administration. diagnostic team, ideally having provided for supplementary safety ‘‘Nationwide Significant Risk representatives of major interested measures. The expertise available at the Threshold’’ means a number, calculated parties, can evaluate a crossing from State level will contribute to this on a nationwide basis, which reflects many perspectives and can make process of refinement. On the other the average level of risk at public recommendations as to the safety needs hand, FRA is not comfortable with the at the crossing. idea of proceeding without benchmark 12 See Report to Congress entitled North Carolina ‘‘Effectiveness rate’’ is a number values. Far from being arbitrary guesses, ‘‘Sealed Corridor’’ Phase I U.S. DOT Assessment which indicates the effectiveness of a the benchmark values take into Report (FRA Office of Railroad Development, safety measure in reducing the consideration and reflect substantial September 2001), which describes most of the pioneering work undertaken by the State of North probability of a collision at a public information available at the national Carolina and the Norfolk Southern Railroad (with highway-rail grade crossing. level, and they have been exposed to the FRA funding assistance) in support of the State’s Effectiveness rate is defined as a number scrutiny of public comments in this high-speed rail program.

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highway-rail grade crossings equipped situated one, or a number of consecutive governmental jurisdiction having with lights and gates and at which public or private highway-rail crossings responsibility for motor vehicle safety at locomotive horns are sounded. For at which State statutes or local the crossing. purposes of this rule, a risk level above ordinances restricted the routine ‘‘Public highway-rail grade crossing’’ the Nationwide Significant Risk sounding of locomotive horns, or at means, for purposes of this part, a Threshold represents a significant risk which locomotive horns did not sound location where a public highway, road, with respect to loss of life or serious due to formal or informal agreements or street, including associated sidewalks personal injury. The Nationwide between the community and the or pathways, crosses one or more Significant Risk Threshold is calculated railroad or railroads, and such statutes, railroad tracks at grade. In the event a in accordance with the procedures in ordinances or agreements were in place public authority maintains the roadway Appendix D of this part. In determining and enforced or observed as of October on at least one side of the crossing, the this risk threshold, FRA determines the 9, 1996 and on December 18, 2003. As crossing is considered a public crossing average level of risk at public highway- proposed, this definition includes quiet for purposes of this part. The second rail grade crossings equipped with lights zones enforced or observed as of the sentence of this definition is often and gates and at which locomotive date of passage of Public Law 104–264, included in a definition of public grade horns are sounded. This data pool in which amended 49 U.S.C. 20153 to crossing, but was inadvertently omitted essence provides the starting point for require the Secretary to take into from the NPRM. References in this rule communities in establishing quiet account the interest of communities that to ‘‘public grade crossing’’ or ‘‘public zones. Because every grade crossing in ‘‘have in effect’’ restrictions on the crossing’’ refer to a public highway-rail a New Quiet Zone must, at a minimum, sounding of a locomotive horn at grade crossing. be equipped with conventional lights highway-rail grade crossings or have not ‘‘Quiet Zone’’ means a segment of a and gates, a community will be able to been subject to the routine sounding of rail line, within which is situated one or determine the risk level associated with a locomotive horn at highway-rail grade a number of consecutive public or the crossings within the proposed quiet crossings. FRA reads the statute as private highway-rail crossings at which zone. requiring FRA to be particularly locomotive horns are not routinely ‘‘New Quiet Zone’’ means a segment solicitous of communities that had sounded. This definition has been of rail line within which is situated one, restrictions in effect at the time of the modified slightly from that proposed in or a number of consecutive public 1996 enactment. FRA has added the the NPRM. The phrase ‘‘locomotive highway-rail crossings at which routine requirement that the ordinance or horns may not be routinely sounded’’ sounding of locomotive horns is agreement was observed or enforced as has been changed to ‘‘locomotive horns restricted pursuant to this part and of the date of publication of this interim are not routinely sounded’’ to more which does not qualify as a Pre-Rule final rule because it would make little effectively indicate the non-permissive Quiet Zone. sense to reinstate a ban abandoned by nature of the ban on routine sounding ‘‘Non-traversable curb’’ means a the community (or determined to be of horns within the quiet zone. highway curb designed to discourage a inconsistent with State law) and Additionally, ‘‘private crossings’’ has motor vehicle from leaving the roadway. because use of information from the been added to the definition in FRA is not specifying design details for more recent date will permit FRA to recognition that a quiet zone may have such curbs beyond requiring, that they achieve greater certainty as to the status a combination of both public and be at least six inches but not more than of bans and eligibility for Pre-Rule Quiet private crossings at which routine horn nine inches high. Such curbs are often Zone status. In particular, FRA has use is prohibited. combined with median islands at least noted some year-to-year variability in ‘‘Quiet Zone Risk Index’’ means a two feet wide. If the curbs are not the no-whistle policies observed in measure of risk to the motoring public equipped with reboundable, Illinois during the 1990s; and achieving which reflects the Crossing Corridor reflectorized vertical markers, paint and certainty as to the status of individual Risk Index for a quiet zone, after reflective beads should be applied to the line segments has proven much more adjustment to account for (1) increased curb for night visibility. Additional difficult than FRA anticipated in issuing risk due to lack of locomotive horn use design specifications are determined by the proposed rule. at the crossings within the quiet zone (if the standard traffic design specifications ‘‘Private highway-rail grade crossing’’ horns are presently sounded at the used by the governmental agency means, for purposes of this part, a crossings), and (2) reduced risk due to constructing the curb. The term ‘‘non- highway-rail at grade crossing which is implementation, if any, of SSMs and traversable curb’’ is replacing the term not a public highway-rail grade ASMs within the quiet zone. The Quiet ‘‘barrier curb’’ as proposed in the NPRM crossing. When viewed in light of the Zone Risk Index is calculated in due to its greater acceptance in the definition of public highway-rail grade accordance with the procedures in highway community. FRA has also crossings, a private crossing is a Appendix D of this part. The Quiet Zone deleted from the rule the definition of crossing where a private roadway Risk Index is thus a measure of risk at ‘‘mountable curb’’ because that term is crosses one or more railroad tracks at crossings within the quiet zone after all not being used in the rule. grade, and at which a public authority adjustments to risk have been made. ‘‘Power-out indicator’’ means a device does not maintain the roadway on either This measure is necessary in comparing which is capable of indicating to trains side of the crossing. References in this the risk level to the Nationwide approaching a grade crossing equipped rule to ‘‘private grade crossing’’ or Significant Risk Threshold. with an active warning system whether ‘‘private crossing’’ refer to a private ‘‘Railroad’’ means any form of non- commercial electric power is activating highway-rail grade crossing. highway ground transportation that runs the warning system at that crossing. ‘‘Public authority’’ means the public on rails or electromagnetic guideways This term includes remote health entity responsible for safety and and any entity providing such monitoring of grade crossing warning maintenance of the roadway that crosses transportation, including: systems if such monitoring system is the railroad tracks at a public highway- (1) Commuter or other short-haul equipped to indicate power status. rail grade crossing. This term includes railroad passenger service in a ‘‘Pre-Rule Quiet Zone’’ means a the traffic control authority or law metropolitan or suburban area and segment of a rail line within which is enforcement authority, or the commuter railroad service that was

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operated by the Consolidated Rail FRA. Essentially, any person who Section 222.15 How Does One Obtain Corporation on January 1, 1979; and violates any requirement of this part or a Waiver of a Provision of This (2) High speed ground transportation causes the violation of any such Regulation? systems that connect metropolitan areas, requirement will be subject to a civil without regard to whether those systems penalty of at least $500 and not more This section governs the process for use new technologies not associated than $11,000 per violation. Civil obtaining a waiver from a provision of this regulation. There was confusion on with traditional railroads; but does not penalties may be assessed against the part of some commenters regarding include rapid transit operations in an individuals only for willful violations, urban area that are not connected to the the meaning and purpose of waivers. and where a grossly negligent violation general railroad system of Some commenters incorrectly or a pattern of repeated violations transportation. considered waivers to be synonymous ‘‘Relevant collision’’ means a collision creates an imminent hazard of death or with exceptions from the requirement to at a highway-rail grade crossing between injury to persons, or causes death or sound the horn. In an effort to further a train and a motor vehicle, excluding injury, a penalty not to exceed $22,000 clarify this section, FRA has added the following: a collision resulting from per violation may be assessed. In ‘‘waiver’’ to the list of defined terms in an activation failure of an active grade addition, each day a violation continues section 222.9. It is defined as ‘‘a crossing warning system; a collision in will constitute a separate offense. temporary or permanent modification of which there is no driver in the motor (Maximum penalties of $11,000 and some or all of the requirements of this vehicle; or a collision where the $22,000 are required by the Federal part as they apply to a specific party highway vehicle struck the side of the Civil Penalties Inflation Adjustment Act under a specific set of facts. Waiver does train beyond the fourth locomotive unit of 1990 (Pub.L. 101–410) (28 U.S.C. not refer to the process of establishing or rail car. The term ‘‘relevant collision’’ 2461 note), as amended by the Debt quiet zones or approval of quiet zones has been included in this rule to Collection Improvement Act of 1996 in accordance with the provisions of provide a basis for reviewing the safety (Pub.L. 104–134, 110 Stat. 1321–373) this part.’’ history at a crossing while ensuring that which requires each agency to regularly FRA has historically entertained collisions not relevant to the direct issue adjust certain civil monetary penalties of motorist decision-making are omitted waiver petitions from parties subject to in an effort to maintain their remedial an FRA regulation. In many instances, a from the analysis. impact and promote compliance with ‘‘Supplementary safety measure’’ regulation, or specific section of a the law.) Furthermore, a person may be (SSM) means a safety system or regulation, while appropriate for the procedure established in accordance subject to criminal penalties under 49 general regulated community, may be with this part which is provided by the U.S.C. 21311 for knowingly and inappropriate when applied to a specific appropriate traffic control authority or willfully falsifying reports required by entity. Circumstances may make law enforcement authority responsible these regulations. FRA believes that the application of the regulation to the for safety at the highway-rail grade inclusion of penalty provisions for entity counter-productive; an extension crossing, that is determined by the failure to comply with the regulations is of time to comply with a regulatory Administrator to be an effective important in ensuring that compliance provision may be needed; or substitute for the locomotive horn in the is achieved. The interim final rule technological advancements may result prevention of highway-rail casualties. includes a schedule of civil penalties as in a portion of a regulation being Appendix A to this part lists such Appendix G to this part. Because the inappropriate in a certain situation. In supplementary safety measures. penalty schedule is a statement of such instances, FRA may grant a waiver ‘‘Waiver’’ means a temporary or agency policy, notice and comment was from its regulations. The rules governing permanent modification of some or all not required prior to its issuance. See 5 FRA’s waiver process are found in 49 of the requirements of this part as they U.S.C. 553(b)(3)(A). CFR part 211. In summary, after a apply to a specific party under a specific petition for a waiver is received by FRA, New Jersey DOT requested that FRA set of facts. Waiver does not refer to the a notice of the waiver request is clarify this section ‘‘to assure one that process of establishing quiet zones or published in the Federal Register, an approval of quiet zones in accordance the application of a safety measure such opportunity for public comment is with the provisions of this part. as an audible warning device is not provided, and an opportunity for a ‘‘Wayside horn’’ means a stationary subject to civil or criminal penalties.’’ hearing is afforded the petitioning or horn (or device designed to produce a While the meaning of this comment is other interested party. FRA, after sound resembling a horn) located at a not clear, FRA intends that the routine reviewing information from the highway rail grade crossing, designed to sounding of a locomotive horn in a quiet petitioning party and others, will grant provide, upon the approach of a zone will subject the railroad to civil or deny the petition. In certain locomotive or train, audible warning to penalties, as would not sounding the circumstances, conditions may be oncoming motorists of the approach of horn at a public crossing outside of a imposed on the grant of a waiver if FRA a train. quiet zone. concludes that the conditions are necessary to assure safety or if they are Section 222.11 What Are the Penalties Section 222.13 Who Is Responsible for in the public interest. Because this for Failure To Comply With This Compliance? regulation’s affected constituency is Regulation? broader than most of FRA’s rail safety This section is intended to make clear This section, which has not changed regulations, the waiver process is from that proposed in the NPRM, that any person, including but not proposed to be somewhat different. identifies the civil penalties that FRA limited to a railroad, contractor for a Paragraphs (a) and (b) address the may impose upon any person, including railroad, or a local or State aspects which are different than FRA’s a railroad that violates any requirement governmental entity that performs any customary waiver process. However, as of this part. The penalty provision function covered by this part, must paragraph (c) makes clear, once an parallels penalty provisions included in perform that function in accordance application is made pursuant to either many other safety regulations issued by with this part. paragraph (a) or (b), FRA’s normal

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waiver process, as specified in 49 CFR paragraph also requires that sounding of the majority of railroad engineers in the part 211, applies. the horn be in the pattern of two long, country, testified that engineers did not Paragraph (a) of this section addresses one short, and one long blast be need variably-placed whistle boards to jointly submitted waiver petitions as initiated at the place specified in indicate the proper location at which to specified by 49 U.S.C. 20153(d). Such a paragraph (b) of the section and that the sound horns. The BLE testified that petition must be submitted by both any pattern be repeated or prolonged until engineers could provide a time-based railroad whose tracks cross the highway the locomotive or train occupies the warning if asked to do so. As a result, and by the appropriate traffic control crossing. This paragraph also states that FRA has revised paragraph (b) to simply authority or law enforcement authority the pattern may be varied as necessary provide a range of time between which which has jurisdiction over the roadway where crossings are spaced closely the locomotive horn must be sounded in crossing the railroad tracks. Although together. advance of a grade crossing, while section 20153(d) requires that a joint FRA proposed to adopt the industry retaining the outside limit of 1⁄4 mile. application be made before a waiver of standard pattern for sounding of horns As noted above, FRA proposed that a provision of this regulation is granted, at grade crossings. FRA received a the horn be sounded at least 20, but not FRA, in paragraph (b), addresses the number of requests that we define what more than 24 seconds, before the situation that may occur if the two ‘‘long’’ and ‘‘short’’ horn blasts are. The locomotive enters the crossing. This parties can not reach agreement to file apparent intent of the commenters is to proposal generated a number of a joint petition. Section 20153(i)(3) gives ensure that the locomotive horn not be comments, the majority of which the Secretary (and, by delegation, the sounded excessively when entering a objected that the proposal required the Administrator) the authority to waive in grade crossing. It is clear that some horn to be sounded for an excessive whole or part any requirement of engineers at some times ‘‘lean on the period of time. Missouri’s Division of section 20153 (with certain limited horn’’ for longer periods than is Motor Carrier and Railroad Safety stated exceptions) if it is determined not to common in the industry. Despite this, that the ‘‘range of 20 to 24 seconds will contribute significantly to public safety. the vast majority of engineers apply the be difficult for engineers to determine FRA thus has decided to accept locomotive horn appropriately. when not traveling near maximum individually filed waiver applications Imposing strict time requirements for authorized speed.’’ The agency (under certain conditions) as well as the sound pattern would impose recommended a minimum of 15 jointly filed applications. In an effort to unrealistic limits on engineers and add seconds, which provides, according to encourage the traffic control authority to their already full workload. The the agency, a 10 second margin. The and the railroad to agree on the Florida East Coast Railway Commissioner of the City of Aventura, substance of the waiver request, FRA recommended that the horn pattern be Florida stated that 20 seconds may be requires that the filing party specify the left up to the individual railroad. While acceptable during the day, but is steps it has taken in an attempt to reach some locomotive horns can be unreasonable at night. The agreement with the other party. preprogrammed with specific horn Commissioner suggested 10 seconds of Additionally, the filing party must also sequences, FRA will not be requiring warning during nighttime hours. The provide the other party with a copy of such horns, nor has a need for them yet Florida East Railway said that it wasn’t the petition filed with the FRA. been shown. FRA is thus retaining the aware of technology to enable a train It is clear that FRA prefers that proposed language of ‘‘long’’ and’short’’ moving at less than maximum petitions for waiver reflect the blasts. FRA is also leaving to the authorized speed to properly blow the agreement of both entities controlling railroad or individual engineer the horn within 20 to 24 seconds. The FEC the two transportation modes at the decision as to how to vary the horn recommended further thought on the crossing. If agreement is not possible, pattern when crossings are spaced subject. The FEC further stated that if however, FRA will entertain a petition closely together. Such decisions have FEC train speed is 60 miles per hour, for waiver, but only after the two parties been made by these parties for many the one-quarter mile limit only provides have attempted to reach an agreement years, and there has been no showing for 15 seconds warning rather than 20 on the petition. that there is a need to alter those to 24 seconds warning. The FEC is Paragraph (c) provides that each determinations. correct, and as noted below, that is the petition for a waiver must be filed in the Paragraph (b) of the NPRM addressed desired result. manner required by 49 CFR part 211. the location at which the locomotive As a result of comments received and Paragraph (d) provides that the horn needs to begin being sounded. The the results of its research on this issue, Administrator may grant the waiver if basic premise of this section as FRA has revised the proposal to provide the Administrator finds that it is in the proposed in the NPRM was that the that the locomotive horn be sounded at public interest and that safety of locomotive horn should be sounded no least 15 seconds, but no more than 20 highway and railroad users will not be less than 20, nor more than 24 seconds seconds, before the locomotive enters diminished. The Administrator may in advance of a grade crossing, but in no the crossing, but in no event shall a grant the waiver subject to any event could the horn be sounded more locomotive horn sounded in accordance necessary conditions required to than 1⁄4 mile in advance of the crossing. with paragraph (a) be sounded more maintain public safety. Research has shown that the effect of than one-quarter mile in advance of a a locomotive horn sounded at a distance public highway-rail grade crossing. This Section 222.21 When Must a 1 greater than ⁄4 mile from a crossing is provision as revised recognizes that Locomotive Horn Be Used? attenuated to the extent that it does not establishing only a set location at which Paragraph (a) of this section addresses provide warning to the motorist. The horns must be sounded (as is the case the duty to sound the locomotive horn NPRM relied on the presence of whistle under many present State laws), has the when approaching and passing through boards to notify the engineer when to potential to disrupt local communities a public highway-rail grade crossing. sound the horn. Thus the proposal went without affecting the warning provided The locomotive horn shall be sounded into great detail regarding the present to the motorist. Because a fixed location when such locomotive or lead car is location of whistle boards and adjusting for sounding of a horn results in approaching and passes through each the location of whistle boards in the differing periods of warning depending public highway-rail grade crossing. This future. However, the BLE, representing on the speed of the train, FRA chose to

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eliminate the traditional fixed point at length of time a horn may be sounded, Paragraph (a)(2) is intended to make which the locomotive horn needs to be are not intended to prevent the engineer clear that while the rule does not sounded. Rather, the length of time of from using his or her discretion in preclude the sounding of the locomotive the warning is the operative factor as to emergency situations. CPUC horn in emergency situations, the rule when to begin sounding the horn. FRA recommended that FRA add ‘‘or at the also does not impose a legal duty to is providing the locomotive engineer a discretion of the locomotive engineer’’ sound the locomotive horn in such range of 15 to 20 seconds in advance of at the end of this paragraph because it situations. It is FRA’s intent that this the crossing in which to sound the horn. is claimed that the proposed language section, and the rule as a whole, This provision will prevent much places a burden on the engineer to prove subsume the subject matter of sounding unnecessary disruption to surrounding that an emergency situation existed the locomotive horn at public grade communities. Under present law in which would have resulted in imminent crossings, including the sounding of many States, a train traveling at 15 miles injury, death or property damage. FRA locomotive horns within quiet zones per hour would sound its horn for 60 agrees that the engineer should not have during emergency and non-emergency seconds (over a full quarter mile) if the burden to prove that an emergency situations. Absent the paragraph, it is required to initiate the sounding one- existed. We believe the present language conceivable that a railroad or engineer quarter mile in advance of the crossing. is sufficiently clear to relieve the or both, could be found liable for Under this rule, such a train traveling at engineer of that burden. The BLE damages resulting from a collision with 15 miles per hour would sound its horn expressed ‘‘complete agreement’’ with an automobile at a grade crossing under for 15 to 20 seconds, but would only the proposed language, as does the the theory that the horn should have sound it over a distance of from 330 feet Mayor of Boca Raton, Florida. With the been sounded even though the crossing to 440 feet. Ample warning is provided exception of minor proposed language is within a quiet zone. It is the intent of the motorist while preventing change, the AAR also agrees with the FRA, that once a public authority unnecessary noise among the proposal. creates a quiet zone pursuant to this surrounding community. At the other The AAR suggested that the phrase part, the railroad and locomotive crew end of the spectrum, a train traveling at ‘‘[N]othing in this part’’ be replaced are relieved from any legal duty to 79 miles per hour travels more than four with ‘‘A railroad shall not be prohibited sound the locomotive horn in an tenths of a mile in 20 seconds, and thus or restricted from using’’ in paragraph emergency situation. The rule’s dual would only sound its horn for less than (b). The AAR claims that ‘‘FRA does not purpose of ensuring safety and reducing 12 seconds under this rule. It is clear go far enough in addressing the train horn noise where safety can that excessive horn noise would be railroads’ need to sound horns for reasonably be assured without horn use generated if the horn were to be purposes other than to warn the public would be defeated if railroads felt sounded for a full 20 seconds, since the of trains approaching grade crossings or compelled to make liberal use of the horn sound is not effective as a warning to warn roadway workers. Locomotive train horn in quiet zones merely to beyond one-quarter mile. Thus, as engineers use horns in other avoid being sued for not using it. proposed in the NPRM, FRA is limiting circumstances, such as when Moreover, railroads and their crews the sounding of the horn to a maximum approaching passenger stations and to would be placed in an untenable legal of one-quarter mile in advance of a alert railroad employees to the pending position, being prohibited from routine crossing, regardless of train speed. movement of a train. It would be unsafe sounding of the horn but possibly being Sound diminishes at a rate of to prohibit the use of locomotive horns held liable for not sounding the horn if approximately 7.5 dB(A) for each for such purposes. Consequently, FRA a collision does occur in a quiet zone doubling of distance. Thus, the sound should specifically prevent States and and a plaintiff argues that the horn from a locomotive horn registering localities from restricting railroads from should have been sounded. Of course, 100dB(A) at 100 feet in front of the sounding the locomotive horn for we are confident that railroads and their locomotive will have diminished to railroad operating purposes.’’ While the engineers, given their very strong roughly 75 dB(A) at one-quarter mile in substance of AAR’s proposal has merit, interest in avoiding crossings accidents, front of the locomotive. That distance is will err on the side of caution in using near the outer margin of utility in terms the scope of this rulemaking is limited their discretion to determine which of alerting the motorist to oncoming to locomotive horn use at grade situations are truly emergencies trains at that crossing. crossings. Extending the regulatory framework beyond this limited area warranting use of the horn. Section 222.23 How Does This would require further rulemaking. To In paragraph (b), the NPRM provided Regulation Affect Sounding of a Horn avoid misunderstanding regarding the that nothing in this part restricts the use During an Emergency or Other subject matter subsumed by the rule, of the locomotive horn to announce the Situations? however, FRA has added the words, ‘‘or approach of the train to roadway Paragraph (a)(1) of this section is where required for other purposes under workers in accordance with a program meant to make clear that a locomotive the railroad operating rules’’ at the end adopted under part 214 of this Chapter engineer may sound the locomotive of this section. or where active warning devices have horn in emergency situations. This paragraph has been further malfunctioned and use of the horn is Notwithstanding any other provisions of changed slightly from the NPRM. The required by either 49 CFR 234.105 the rule, a locomotive engineer may phrase, ‘‘including establishment of (activation failure), 234.106 (partial sound the locomotive horn to provide a quiet-zones, or limits on the length of activation), or 234.107 (false activation). warning to vehicle operators, time in which a horn may be sounded’’ This makes clear that locomotive horns pedestrians, trespassers or crews on has been added to this paragraph to must still be sounded in accordance other trains in an emergency situation if, make clear that nothing in the rule, with the listed regulations irrespective in the engineer’s sole judgment, such including the creation of quiet zones, or or the existence of a quiet zone. Such action is appropriate in order to prevent rules setting limits on where and when provisions have been established to imminent injury, death or property horns are sounded, shall prevent an provide warning to railroad employees damage. Thus, establishment of a quiet engineer from using the horn as a working on and along the track and to zone and the limits established on the warning in an emergency situation. motorists when grade crossing warning

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systems malfunction. The BRS public crossings, with free access by horns must be sounded at such expressed their support for this anyone at any time of the day. crossings will remain subject to State paragraph, stating that it is ‘‘imperative Accordingly, the New York DOT law (if any) and agreements between the that this remain unchanged. An suggested that the proposed rule apply railroad and the holder of crossing important element of safety for roadway to high-risk private crossings, as well as rights.’’ As noted by the CPUC, workers is the warning conveyed by the public crossings. The agency suggested California State law requires use of engineer.’’ With the exception of the that the determination of whether a horns at private crossings. We note that additional language pertaining to private crossing was a high risk crossing FRA, by not applying this rule to private railroad operating rules discussed could be based on a calculation similar crossings which are not in quiet zones, above, the paragraph remains to the New Hampshire Index, an has left States free to require the unchanged from the NPRM. analysis of train and highway volume. sounding of locomotive horns if it is Alternatively, the agency suggested that determined by the appropriate State Section 222.25 How Does This Rule a more complex review considering authority that it is appropriate given the Affect Private Highway-Rail Grade additional factors such as highway and circumstances within that State. Crossings? train speed, as well as the type of Similarly, to the extent they are not This section clarifies the manner in railroad operations involved (e.g., constrained by Federal law (within a which this rule affects private crossings. intercity, commuter, freight, etc.) might quiet zone) or State law, railroads (Section (f) of the Act explicitly gives be appropriate. remain free to elect whether to sound discretion to the Secretary as to the The UTU indicated it has ‘‘a problem the horn at private crossings. question of whether to subject private with not requiring improved protection An FRA requirement to sound the highway-rail grade crossings to the for private crossings in a quiet zone.’’ horn at all private crossings would in regulation.) FRA has determined that The UTU expressed the view ‘‘that not some respects have more impact than exercising its jurisdiction in a limited to require a private crossing or crossings the requirement to sound the horn at manner regarding these crossings is the within the quiet zone to be similarly public crossings. By requiring the latter, appropriate course of action. equipped as a public crossing will allow Congress merely Federalized what had Although the subject of private an unsafe condition to exist.’’ Similarly, been uniform practice throughout the crossings was discussed in the preamble the CPUC is in favor of ‘‘applying the United States. Horns have sounded at to the NPRM, a specific regulatory standards to all railroads, public, public crossings for many decades section was not included. In an effort to private, plant, because the motoring throughout the country, first by railroad clearly set out the manner in which the public cannot distinguish these rules, and later based on State law. Horn rule affects private crossings, this new categories.’’ use at private crossings, has, however, § 222.25 is included in the rule. Although not recommending that the generally not been regulated by the Although only a relatively small proposed rule apply to private crossings States (presumably because there was number of commenters addressed the in the same manner as public crossings, less need for such requirement at issue of the rule’s applicability to two local governments suggested that to private crossings), and horn use has private crossings, the majority of ensure private crossings in quiet zones thus been left up to railroads. Thus, if commenters suggested that the rule are safe, the rule should require advance FRA were to require horn use at each of should apply to private crossings to warning signs advising users of the the more than 98,000 private crossings some extent. For example, both the crossings that train horns will not be throughout the nation, the Missouri Department of Economic sounded. In addition, these environmental impact in terms of Development (MDED) and the CPUC commenters, the City of Moorhead, increased noise would be significant. It recommended that the proposed rule Minnesota, and the City of Fargo, North is unclear at this time, based on the data apply to private crossings in the same Dakota, suggested that the provision of available, if there would be a manner as public crossings. The MDED the proposed rule addressing corresponding increase in safety as a explained that many private highway- implementation of quiet zones, be result. Therefore, other than its effect on rail grade crossings, especially those in revised to specifically indicate that private crossings within quiet zones, the rural areas where trains usually travel at railroad operations in established quiet rule is not meant to affect present State speeds near the maximum authorized, zones should cease routine use of horns laws or orders, or private contractual or have hardly any warnings indicating the at private crossings, as well as public other arrangements regarding the presence of the crossings. The CPUC crossings. routine sounding of locomotive horns at explained that some private crossings FRA understands the concern private highway-rail grade crossings. carry very high volumes of truck or expressed by those commenters See § 222.7. employee automobile traffic at recommending that private crossings be FRA does agree that evaluation of the particular times. The CPUC also pointed addressed in the same manner as public use of the train horn at private crossings out that California law on the use of crossings. FRA remains unconvinced merits further study. Because private locomotive horns at crossings applies to that private crossings at this time should crossings are generally not controlled by all crossings, both public and private, be subject to Federally imposed State transportation or regulatory and that no empirical data exists that mandatory sounding of horns. In officials, the current national inventory justifies reduced protection for private expressing this view in the NPRM, FRA does not provide details regarding key crossings in quiet zones. Accordingly, stated that ‘‘[A]lthough some private data elements required to evaluate the CPUC also recommended that crossings experience heavy rail and safety at individual private crossings to entities seeking to establish quiet zones motor vehicle use, we do not have the same extent possible at public should be required to provide notice of sufficient information as to present crossings. Clearly, further information is their intent to all owners of private practices, the number and type of such needed concerning the potential utility property within the proposed zone. diverse crossings, and the impacts of of using train horns at private crossings Similarly, the New York Department locomotive horns at such crossings. and the collateral issues such a policy of Transportation explained that almost Thus, FRA will not at this time require might entail (including the effects on half the grade crossings in New York are that the locomotive horn be sounded at crew noise dose). FRA will pursue these private, but many function essentially as private highway-rail crossings. Whether issues in the context of a forthcoming

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review of safety at private highway-rail conditions at the grade crossing to make any existing contractual arrangements crossings. determinations and recommendations between them.) In the case of a failure There was also general agreement concerning safety needs at that crossing. of parties to agree on new arrangements, among commenters of the need to The diagnostic team can evaluate a the public authority might elect to adopt consider safety at private crossings crossing from many perspectives and the roadway (using condemnation located within proposed quiet zones. can make recommendations as to what authority as necessary), in which case We agree. Although many private improvements might be needed to the crossing would be treated as public crossings do not present high risk in compensate for the lack of a train horn in nature. comparison with active public crossings at the crossing. FRA will expect that the Paragraph (c) of this section (e.g., entrances to individual residences; results of diagnostic review will be establishes that the private crossings lightly used agricultural crossings), reflected in the filings submitted under within a quiet zone must at a minimum other private crossings may present § 222.39, so that FRA can determine the be equipped with crossbucks and considerable risk. In some cases, appropriateness of the proposed action. ‘‘STOP’’ signs conforming to MUTCD railroads instruct crews to sound the The following options should be standards together with advance horn at particular private crossings available if the diagnostic team warning signs in compliance with where risk is perceived to be high; in determines that the private crossing § 222.35(c). other cases train horns provide effective could experience increased significant Section 222.33 Can Locomotive Horns warning as an accident of geography risk as a result of quiet zone Be Silenced at an Individual Public (i.e., where the private crossing is implementation: (1) The public Highway-Rail Grade Crossing Which Is sandwiched between two nearby public authority ‘‘adopts’’ the crossing by Not Within a Quiet Zone? crossings). Although, as noted, the agreement with the holder or through statute does not mandate that FRA condemnation and the crossing is then This section addresses the situation in require use of the train horn at private included in the corridor-based risk- which locomotive horns need not be crossings, it is imperative that actions to reduction program; (2) the crossing is sounded even though the crossing is not facilitate establishment of quiet zones closed; or (3) safety improvements are part of a quiet zone. A railroad operating not significantly increase risk at these implemented that address increased risk over an individual public highway-rail crossings, and that their presence in the at that crossing, as evaluated by the grade crossing may, at its discretion, midst of public crossings not be allowed diagnostic team. cease the sounding of locomotive horns to defeat the purpose of a quiet zone. FRA does not believe it is necessary under certain conditions. Locomotive This section specifically states that to specify a means of resolving any horns need not be sounded when the this rule does not require the routine differences within the diagnostic team. locomotive speed is 15 miles per hour sounding of locomotive horns at private In the event of disagreement, the or less and train crewmembers or highway-rail grade crossings. Although contrasting views can be documented properly equipped flaggers (as defined FRA has jurisdiction over locomotive and included in the public authority’s by 49 CFR 234.5) provide warning to horn use at private crossings based on submission to FRA. If necessary, FRA motorists. These limited types of rail both 49 U.S.C. 20153 and 49 U.S.C. will undertake additional fact finding operations do not present a significant 20103, it has not exercised that before accepting or rejecting the risk of loss of life or serious personal jurisdiction at this time except as to the proposed course of action. FRA expects injury and thus, under the Act, may be use of horns at private crossings within public authorities to make these exempted from the requirement to quiet zones. determinations in the first instance; sound the locomotive horn. Locomotive Paragraph (a) of this section provides FRA’s role is to determine whether horns will still be required to be that private highway-rail grade crossings these authorities have considered the sounded if automatic warning systems may be included in a quiet zone. To do grade crossing safety issues set forth in have malfunctioned and the crossing is otherwise would defeat the purpose of the appendix and have stated an being flagged pursuant to 49 CFR such a quiet zone. Paragraph (b) accurate and reasonable basis for their 234.105, 234.106, or 234.107. Horns will provides that private grade crossings determinations. still be required in these limited which allow access to the public, or This rule does not specify the circumstances in order to offset the which provide access to active financial responsibility of parties for temporary loss of the active warning industrial or commercial sites, may be safety improvements at private which motorists have presumably come included in a quiet zone only if a crossings. Responsibility will be to rely on. diagnostic team evaluates the crossing determined under normal principles of This section is an exception to the to determine whether the institution of property law and based upon whatever requirement that silencing of locomotive the quiet zone will significantly increase contracts and cooperative agreements horns must include all crossings within risk at the private crossing. The crossing may be entered into by the parties. At a designated quiet zone. This section must then be equipped or treated in private crossings, the holder of the right permits a railroad, on its own initiative, accord with the recommendations of to cross has normal common law to silence its horns at individual such team. A diagnostic team is obligations regarding the safe passage of crossings under certain circumstances composed of a group of knowledgeable employees and guests; and the in which the safety risk is low. FRA representatives of the parties of interest community as a whole has an interest in anticipates that this section will be used in a grade crossing. Typically, the team a quiet environment. It is expected that primarily at crossings located in would be composed of railroad the private crossing holder and the industrial areas where substantial personnel, public safety or law public authority would cooperate to switching occurs, and thus would avoid enforcement representatives, and effect any necessary improvements, unnecessary noise impacts on those engineering personnel for the public with the railroad assuming practical railroad personnel working on the authority. In appendix F, FRA has set responsibility for maintenance of any ground in very close proximity to the forth crossing safety issues for the automated warning systems at the locomotive horn. This section also has diagnostic team to consider. The crossing. (Allocation of expense the potential to reduce noise impacting diagnostic team, using crossing safety between the railroad and the crossing residences and businesses near management principles, should evaluate holder might be further influenced by crossings where railroad switching

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occurs. This section recognizes that We agree, however, that is a less Because locomotive horns must be under the noted conditions, public and significant an issue in this case because sounded in advance of the crossing, the railroad safety do not require the flagging is required to provide an horn being sounded at one crossing will sounding of locomotive horns—a alternative methods of warning. Further, effectively negate a large measure of the railroad is thus free to eliminate them. careful review of accident data shows benefit of the prohibition elsewhere Since the primary beneficiary of this that, even if the flagger’s warning is not along the rail line. Imposition of a horn section is not nearby residences, the heeded, the likely severity of a collision prohibition on a corridor basis will reasoning for the establishment of quiet will be much lower than at higher eliminate excessive and unnecessary zones rather than individual quiet speeds. workload demands on the engineer, crossings would not be applicable here. Another railroad industry commenter, permitting greater attention to other There is no additional burden placed on the Florida East Coast Railway locomotive operating requirements. an engineer in this situation since the Company, stated that it interpreted Without a zone prohibition, the flagger will generally be a member of the proposed § 222.31 as leaving it to the engineer will be faced with the need to train crew itself, and the engineer will discretion of railroads to decide whether constantly be aware of which crossings not be placed in the position of having to sound the locomotive horn or not are, or are not, subject to a prohibition. to determine when horns must be when the specified conditions are Paragraph (a) addresses the length of silenced or sounded as would be the present. The commenter is correct that quiet zones. Unlike the NPRM, which case if horns could be silenced on an if all the conditions are met under this required an across the board one-half individual crossing basis. Additionally, section, the railroad may, but is not mile length irrespective of when the prevention of noise spill-over from a required to forgo sounding the horn. quiet zone was established, this Interim crossing would not be a consideration in The reason for leaving significant Final Rule provides for a minimum these situations. discretion with the railroad in this length for New Quiet Zones and permits instance is that in many cases highly Pre-Rule Quiet Zones to retain their FRA received a number of comments restricted sight distances and complex length under specified conditions. on the equivalent section in the NPRM traffic patterns may complicate the Paragraph (a)(1) provides that the (§ 222.31). The representative of Miami flagger’s job and make use of the horn minimum length of a New Quiet Zone Springs, Florida felt that if train speed virtually mandatory. established under this part shall be one- is less than 15 miles per hour, local half mile along the length of railroad authorities can decide if an exemption Section 222.35 What Are the Minimum right-of-way. This is consistent with the for the horn is appropriate. The Requirements for Quiet Zones? NPRM, which as stated, required that all representative did not think flaggers are This section details the minimum quiet zones to be at least one-half mile needed in this situation. The AAR requirements for quiet zones established long. This provision did not generate a recommended that the decision to flag in conformity with this part. It large number of comments; however, be left to railroads. In addition, this addresses the minimum length of a the concept of a minimum length was AAR representative pointed out that quiet zone, minimum level of active generally supported. The communities proposed § 222.31 identified the warning to be provided, and minimum of Moorhead, Minnesota, Fargo, North threshold speed of 15 miles per hour as type of signage required. Dakota, and Rocky River, Ohio the maximum authorized operating The requirements of this section supported the one-half mile length. New speed established by the railroad, not appeared in the NPRM in proposed Jersey Department of Transportation the actual operating speed. This § 222.33, ‘‘Establishment of quiet pointed out that the purpose of a quiet commenter suggested that the maximum zones.’’ Because of the breadth of that zone and the requirement for minimum authorized speed is not the critical proposed section, in this interim final length may not be met throughout the factor and recommended that the rule, it has been broken down into entire length of a quiet zone ‘‘because of maximum speed identified in § 222.31 smaller sections for ease of use and stations, private grade crossings, curves be revised to refer to actual operating reference. Thus, this § 222.35 addresses and points where the locomotive horn speed. FRA agrees with this suggestion minimum physical requirements, would routinely be sounded regardless and has changed this provision § 222.37 addresses who may establish a of its proximity to public grade accordingly. However, FRA will retain quiet zone, and § 222.39 addresses how crossings. * * * The definition and the requirement to flag the crossing in a quiet zone is established. minimum length of a quiet zone * * * the absence of the horn. To do otherwise In the NPRM, FRA discussed the may need additional refinement would put the traveling public at risk, rationale for requiring quiet zones rather regarding non-grade crossing safety in that the motorist could not be certain than permitting a ban on locomotive points on the rail segment.’’ While New of the warning to be provided at the horns on a crossing-by crossing basis. A Jersey DOT’s points are well taken, it crossing. If a train passes through at 20 quiet zone is defined in this rule as a remains a local decision as to whether miles an hour, a horn would sound, but segment of a rail line, within which is to implement a quiet zone. It is true that at 15 miles per hour a horn would not situated one or a number of consecutive sounding of locomotive horns at stations sound. Only if actual warning is public highway-rail crossings at which and around curves would not be provided by the horn at train speeds locomotive horns are not routinely affected by this rule (although horn use greater than 15 miles per hour and by sounded. FRA believes that if at private crossings within quiet zones a flagger at speeds of 15 miles per hour locomotive horns are to be prohibited is regulated by this rule (see § 222.25)), or less would the motorist consistently along a segment of track, the underlying but if a community determines that it receive warning of the train’s approach. purpose of the prohibition will not be wishes to reduce train noise even if it The BLE provided the general comment served unless the prohibition is effective can not be totally eliminated, it may do that the assumption on which proposed on a corridor basis. Without a quiet so under this rule. The CPUC § 221.31 is based, that slow moving zone, the sounding of horns may be recommended that minimum length not trains or less frequent train movements prohibited at one crossing, required at be codified in the rule, but should be lead to a diminished safety risk, must be the next few crossings and then determined by the railroad and carefully evaluated and must be prohibited at another crossing perhaps applicant and approved by the State supported by substantial relevant data. one-quarter mile down the tracks. agency. The Illinois Commerce

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Commission agrees with the one-half may retain the original length of the highway-rail grade crossing in a New mile length but argues that it should not quiet zone. This provision will prevent Quiet Zone must be equipped, no later be binding since shorter lengths may be disruption in communities with than the implementation date of the appropriate. FRA believes that established and effective whistle bans. New Quiet Zone, with active grade establishment of a minimum length of FRA has determined that the addition of crossing warning devices comprising one-half mile is appropriate. It is, any crossing to a Pre-Rule Quiet Zone both flashing lights and gates which however, a local community decision as will end the grandfathered status of that control traffic over the crossing. Such to whether to establish a quiet zone and quiet zone. Such additional crossing devices must conform to the standards it is the community which, after will change the status of a Pre-Rule contained in the MUTCD issued by the weighing the costs, can best determine Quiet Zone to a New Quiet Zone. To do Federal Highway Administration. As where a quiet should be established. otherwise would confer additional noted in the general discussion above, FRA understands that there may be benefits to those communities with flashing lights and gates alone provide situations in which a quiet zone must, existing whistle bans not contemplated an unambiguous warning to the motorist for legitimate reasons, be shorter than by the statutory directive to take into of the arrival of the train. Removing the one-half mile. In any such situation, the account existing restrictions on the active warning provided by the train community may apply for a waiver from sounding of the horn. Additionally, the horn without providing flashing lights this requirement under the waiver Pre-Rule Quiet Zone has a safety record and gates would put the motorist in the provisions of § 222.15, showing special while horns did not sound, and position of relying exclusively on visual circumstances. presumably the ban had been continued sighting of the train to make a decision, The Florida Department of because it met certain safety standards. which is impractical under many Transportation recommended that FRA There is no such safety record for the circumstances (e.g., permanently or establish a minimum distance between new crossing to be added to the quiet temporarily obscured sight lines, quiet zones because without a specified zone. Therefore, because new and compromised night vision, adverse distance between quiet zones, the actual additional risk is added by the new weather and other factors that create separation may be as short as 50–100 crossings added to the Pre-Rule Quiet visual clutter). feet. The agency claimed that the lack of Zone, risk needs to be calculated for the Such warning devices shall be a specified distance would violate the entire quiet zone. The resulting quiet equipped with power-out indicators. A spirit of the one-half mile requirement. zone must therefore comply with the power-out indicator is a device which is While a short distance between quiet requirements for New Quiet Zones and capable of indicating to trains zones may not be ideal in that the train thus must be at least one-half mile in approaching a grade crossing equipped horn may sound at a crossing within length. with an active warning system whether that distance, the horns will still be Paragraph (a)(2) further states that the commercial electric power is activating silenced within the minimum one-half deletion of any crossing from a Pre-Rule the warning system at that crossing. mile length, which should provide relief Quiet Zone, with the exception of a Presence of such power-out indicator to residents and businesses within that grade separation or crossing closure, adds another level of protection at the segment. FRA expects that there will must result in a quiet zone of at least crossing in that it helps the railroad indeed be situations in which a number one-half mile in length in order to retain know as soon as possible if electric of quiet zones are established in Pre-Rule Quiet Zone status. Of course, power is out at the crossing. While all accordance with this section which will in addition to not qualifying for Pre- crossing warning systems are equipped result in some crossings not included in Rule Quiet Zone status, the resulting with back-up battery power, it is quiet zones created on both sides of proposed quiet zone, if less than one- essential that the railroad know as soon them. We anticipate that communities half mile, would also not qualify for as possible if the system is operating on will calculate the Quiet Zone Risk Index New Quiet Zone status. reserve battery power rather than for a number of different combinations Paragraph (a)(3) makes clear that a commercial power in order to allow the of crossings in order to establish the quiet zone may extend beyond the railroad to take appropriate action right mix of crossings and anticipated boundaries of a political jurisdiction. before the battery fails. (Of course, costs. It is perfectly acceptable for a This will permit the establishment of because all grade crossing warning community to create two quiet zones quiet zones reflective of the needs of the systems are designed on the ‘‘fail-safe’’ (each at least one-half mile long) with a nearby residents and businesses rather principle, if a warning system does lose segment between them at which horns than of artificial political boundaries. A all power, the gates will descend across will sound. FRA believes that such a quiet zone may thus extend for its full the roadway. However, no additional decision on the local level best reflects appropriate length, rather than being visible warning is provided; and it is not the needs and views of local residents broken into two or three separate quiet uncommon for gates to be broken off by and businesses. In such a situation FRA zones. Of course, if more than one motor vehicles under such will not substitute its judgment for that public authority is involved due to the circumstances, leaving the crossing a of the local authorities. fact that the quiet zone extends into potential trap for motorists subsequently Paragraph (a)(2) provides that the more than one political jurisdiction, the seeking to cross.) length of a Pre-Rule Quiet Zone may different public authorities must agree Paragraph (b)(2) addresses active continue unchanged from that which to the establishment of the quiet zone, warning devices at crossings within Pre- existed as of October 9, 1996. FRA chose and must jointly, or by delegation Rule Quiet Zones. Such quiet zones to exempt Pre-Rule Quiet Zones from provided to one of the authorities, take must retain the grade crossing safety the minimum one-half mile requirement necessary actions under this rule. See warning devices which existed at the in order to fairly take into consideration § 222.34(a). crossing as of the date of publication of the interests of communities with Paragraph (b) addresses the need for this rule. Such warning systems may be existing whistle bans. While FRA does the presence of active grade crossing upgraded, but in no event may the not believe there are many Pre-Rule warning devices at crossings within warning system be downgraded from Quiet Zones less than one-half mile in quiet zones. Paragraph (b)(1) addresses that which was in existence as of this length, those that otherwise qualify to active warning devices at crossings date. This provision is consistent with continue quiet zones under this rule within New Quiet Zones. Each public the statutory mandate that FRA take into

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consideration the interest of Section 222.37 Who May Establish a public crossing safety and thus would communities which had existing horn Quiet Zone? be appropriately involved in safety restrictions in place. Permitting quiet This section addresses which entities evaluations for proposed quiet zones. zones with crossings not equipped with may establish quiet zones. In the NPRM, Comments from local governments both flashing lights and gates, is FRA proposed that a local political tended to support the view that appropriate since the safety history, and jurisdiction, in addition to a State, have localities are in the best position to thus the risk level, is known at such authority to establish a quiet zone. apply for quiet zones, however some crossings. For existing quiet zones, Additionally, in the preamble to the communities favored State agency where the risk level without locomotive NPRM, FRA stated that ‘‘FRA does not involvement. Brighton, Colorado horns can be determined, the risk level, intend that the proposed rule confer expressed the view that local political subdivisions should establish quiet rather than the equipment level, will authority on localities to establish quiet zones. Carrollton, Texas favors local determine whether an existing quiet zones if State law does not otherwise government’s role, as does Fort Collins, permit such actions. Local political zone qualifies as a Pre-Rule Quiet Zone. Colorado and Fargo, North Dakota. jurisdictions are creations of their While this approach may strike one as Chicago encourages ‘‘FRA to allow state respective states and their powers are inconsistent with the approach of and local governments to agree to the thus limited by their individual State paragraph (b)(1), which requires both most appropriate procedure for flashing lights and gates, the law or constitution.’’ Understandably, this provision managing quiet zone implementation determining distinction is the lack of and maintenance.’’ generated many comments from State non-horn safety history at New Quiet FRA notes that Congress, in and local governments. Of those States Zones. In such circumstances, FRA is mandating issuance of this rule, not willing to permit elimination of the commenting, the consistent view was established the criteria and parameters train horn when active warning systems that States should have the primary role under which the rule would be issued. in establishing quiet zones and in are absent. This distinction also further Congress did not specifically provide a administering a quiet zone program. reflects the statutory mandate that this State role in managing the quiet zone Florida DOT strongly supported the rule take into account the interest of program,13 and FRA has not provided view that a State agency should be the communities with existing bans. one either. Thus, despite suggestions to only governmental entity to designate or the contrary, FRA will not delegate to Paragraph (c) addresses the apply for quiet zone approval, individual States any of its authority to requirement for advance warning signs comparing that process with the State manage this program. FRA did, at crossings within a quiet zone. agency’s role in prioritizing grade however, solicit suggestions as to which Paragraph (c)(1) requires that each crossing projects and administering is the appropriate party to establish highway approach to every public and Federal funds. Florida DOT suggested quiet zones under the provisions of this private highway-rail grade crossing that there needs to be ‘‘uniformity rule. Commenters claiming that State within a Pre-Rule Quiet Zone or New within a given State for the treatment oversight would provide consistency Quiet Zone shall be equipped with an applied to the crossings to permit quiet and only State agencies have the advance warning sign which advises the zones’ and thus the only way to achieve experience evaluating crossings from a motorist that train horns are not this is for a State agency to be the only safety standpoint are accurate to some sounded at the crossing. Such sign shall party to designate or apply to the FRA extent. However, this rule has been conform to the standards contained in for a quiet zone. New Jersey DOT crafted to provide a level of consistency the MUTCD issued by the Federal similarly felt that all designations and while at the same time providing a Highway Administration. Paragraph (2) applications should come from a State range of options for quiet zone provides a period of three years from agency which would provide more implementation. The ‘‘consistency’’ is this date of publication for such signs to consistent and systematic approach found within the boundaries of this be installed at public and private within each State. The State also felt rule. Application of the same provisions crossings in a Pre-Rule Quiet Zone. This that having a single contact per State throughout the State and nation will three-year interval tracks the period would lessen the burden on FRA. provide the needed level of consistency, during which existing quiet zones may Washington DOT also felt that it is without unduly preventing be continued without the necessity of a simpler to have one contact per State implementation of quiet zones under commitment by the public authority to rather than have each community deal various situations. Similarly, reliance on continue the quiet zones as Pre-Rule with the issue individually. California a State agency’s expertise in grade Quiet Zones. Without this three-year DOT echoed these views and added the crossing safety will be helpful to public exception, those communities with suggestion that States should be free to authorities in determining which among existing quiet zones with no advance provide more stringent protections various alternatives should be followed, warning signs would be forced to install above the Federal floor. The State but this expertise should not determine recommended that references in the rule such signs even if they were to which public body should make the to ‘‘state or local government’’ should be discontinue the quiet zones within that ultimate decision. We encourage the use replaced with ‘‘State agency.’’ three-year grace period. We note that, of diagnostic teams (such teams are Missouri’s Division of Motor Carrier and although we strongly encourage such required if specified categories of Railroad Safety suggested that the State signs wherever use of locomotive horns private crossings are proposed for agency with regulatory authority over inclusion in a quiet zone (See § 222.25)), are prohibited, lack of signs is only grade crossings should process quiet being permitted for a short period of but using diagnostic teams or others zone applications, thereby removing a with safety expertise should not affect time, and only where they are not burden on FRA. North Carolina already in use. who the ultimate decision making Department of Transportation (NCDOT) authority should be. After reviewing Paragraph (d) requires that all private suggested that each State DOT serve as public comments and testimony, and grade crossings within a quiet zone a clearinghouse for quiet zone requests must be treated in accordance with this to FRA since these agencies have 13 By contrast, see 49 U.S.C. 20105 and 49 CFR section and with § 222.25. already been charged with evaluating part 212 (State Safety Participation).

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further review of § 20153, FRA has jurisdiction over the highway have the transition to functioning under this determined that the public entity with authority to implement quiet zones interim final rule.14 safety authority over the roadway that involving those crossings. Paragraph (a) of this section provides crosses the railroad is the appropriate FRA wishes to emphasize that it that a public authority may establish public body to determine whether quiet expects to participate in a broad quiet zones which are consistent with zones should be established. As the cooperative effort involving States, local the provisions of this part. If a proposed authority over the roadway, that body is public authorities, and railroads that quiet zone includes public grade the logical entity to make such will identify the dimensions of potential crossings under the authority and decisions. That authority, as the public quiet zones, staff diagnostic teams, control of more than one public entity responsible for safety and identify funding sources, and help authority (such as a county road and a maintenance of the roadway (be it State, resolve any technical issues related to State highway crossing the railroad city, county or township), already has issues such as effectiveness rates for tracks at different crossings), both the legal authority over the roadway and proposed ASMs. In this context, the public authorities must agree to therefore ostensibly has the necessary strong participation of State establishment of the quiet zone, and expertise or judgment to make decisions departments of transportation and must jointly, or by delegation provided regarding that roadway. To the extent a regulatory commissions will be crucial to one of the authorities, take such State agency retains control over to project success, particularly since in actions as are required by this part. We engineering decisions at highway-rail many States the primary expertise for anticipate that many quiet zones will crossings, nothing in this rule should be grade crossing safety issues resides at encompass roadways under the control of more than one political jurisdiction, read to compromise that authority. It is the State level. only the conditions under which the thereby requiring cooperation among train horn will sound or be silenced that FRA appreciates the offers made by the various jurisdictions in order to is reserved for resolution under this several State-level departments and establish a quiet zone. We recognize that rule. agencies to manage the implementation under this scenario one jurisdiction A review of section 20153 indicates a of this rule within their States. Although could prevent the establishment of a clear Congressional preference that FRA does recognize that these agencies quiet zone, but the alternative of one decision-makers be the ‘‘traffic control will need to play a strong role in jurisdiction imposing its will on another authority or law enforcement authority implementation of the rule, FRA has not in such decisions is unacceptable. If a responsible for safety at the highway- chosen to grant to State governments multi-jurisdictional quiet zone is rail grade crossing.’’ The statute refers to final approval functions for several established, the various jurisdictions are SSMs being provided by such body. reasons, any one of which is free to make whatever arrangements are Similarly, in the event a waiver from the independently sufficient as a decisional administratively helpful to those regulation is desired, the statute criterion. entities. The entities may, by agreement, requires that such application be from First, the obvious objective of the delegate all decision-making and the traffic control authority or law statute is to create a uniform and administrative actions, such as enforcement authority responsible for consistent pattern nationwide with notifications and official contact with safety at the highway-rail grade respect to the conditions under which FRA, to one body. On the other hand, crossing. The statute also requires that use of the train horn will and will not the entities may decide to act as a group, FRA take into account the interest of occur. It would be virtually impossible with each entity being involved in each ‘‘communities’’ and that FRA ‘‘work in for FRA to ensure that a variety of State activity throughout the application and partnership with affected communities agencies were consistently applying the implementation process. Thus, how, to provide technical assistance and regulation; in fact, the burden of doing and to what extent the entities organize, proved a reasonable amount of time for so could exceed the burden of is left up to the individual jurisdictions local communities to install SSMs.’’ administering the regulation directly. within the proposed quiet zone. Nowhere does the statute refer to State Congress did not direct that the States Paragraph (b) of this section provides agencies. The focus of the statute, and play any specific role in this regard. that a public authority may establish thus the focus of this rule is on the Second, as a practical matter it is not quiet zones irrespective of State laws public bodies that are the ‘‘traffic clear that State agencies are authorized covering the subject matter of sounding control authority or law enforcement to take on this duty; and the delays or silencing locomotive horns at public authority responsible for safety at the inherently involved in obtaining this highway-rail grade crossings. It is highway-rail grade crossing.’’ Yet States authority from legislatures could defeat unlikely that a State would attempt to do have an interest in this issue, and the expectations of communities seeking restrict a community’s freedom to create will of course play an important role as to preserve or establish quiet zones. a quiet zone after issuance of this rule. the discussion of paragraph (b) below However, were a State to impose such Third, unlike many other situations details. a restriction and be upheld in doing so, where existing State programs are There are many different roadways the other provisions of this rule would incorporated into a new Federal effort, crossing railroad tracks. Some are roads be left intact. This would mean that the this is not a field where State innovation maintained by a small local jurisdiction, mandate of § 222.21 would go into such as a town or village, and some are has provided the model for Federal State highways maintained by the State. action. Although certain States have 14 This is not a criticism, but merely an We do not expect, nor do we think it distinguished themselves in providing observation. Until the studies undertaken by FRA advisable, that a small political for safety at crossings by insisting on beginning in the 1990s, there was insufficient data use of the train horn, and others have available to anyone to fairly evaluate the actual jurisdiction, such as a township desiring impact of silencing the train horn. By the same a quiet zone, have authority under this been responsive to local concerns by token, supplementary and alternative safety rule to determine what the State installs providing exceptions to its use, perhaps measures emerged as a credible alternative to the on its State highway within the borders no more than one or two States has train horn only as a result of innovation and settled on an approach that appears to research that flowered in the 1990s as a result of of that town or village. Therefore, we broad partnerships at the State and Federal levels, have crafted this rule to provide that the adequately balance the two interests and with strong participation by passenger and freight political entity having safety provide a foundation for a ready railroads.

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effect, but the community’s authority to determining on a crossing-by-crossing FRA, along with registered Professional create an exemption to that mandate basis whether or not to sound the horn; Engineers, review the underlying would not. Nothing in this part, and enable grade crossing safety diagnostic process undertaken by the however, is meant to affect any other initiatives to be focused on specific requesting agency when reviewing applicable role of State agencies or the areas within the quiet zone. applications to establish quiet zones. Federal Highway Administration in In the NPRM, FRA proposed two The Oregon DOT expressed the belief decisions regarding funding or different methods of establishing quiet that the establishment of quiet zones construction priorities for grade crossing zones, depending on local should require more than just installing safety projects, selection of traffic circumstances. In one method (set forth FRA pre-approved SSMs as articulated control devices, or engineering in proposed § 222.33(a)), every public in § 222.33(a). The Oregon DOT standards for roadways or traffic control grade crossing within the proposed suggested that some sort of safety review devices. quiet zone would have an SSM applied should be required before quiet zones This section (along with § 222.5 to the crossing and the governmental are designated. The CPUC similarly ‘‘Preemption’’) makes clear that State entity establishing the quiet zone would agreed that States should review each laws covering the subject of locomotive only need to designate perimeters of the crossing proposed for inclusion in a horn use at public highway-rail grade quiet zone, install the SSMs, and quiet zone under proposed § 222.33(a), crossing are preempted by this rule and comply with various notice and even if FRA requires no further review. thus are of no effect. State laws which information requirements set forth in The New Jersey DOT suggested that any establish minimum distances in the rule. The second proposed method rule providing for quiet zones needs to advance of a public crossing at which (set forth in § 222.33(b)) would provide address other non-highway-rail locomotive horns must be sounded are a governmental entity greater flexibility crossings in areas near railroad stations, thus preempted. Also preempted by this in using SSMs or ASMs to address curves, or at other points along rail lines rule are State laws which establish problem crossings. The second method where views may be obscured and the criteria for the prohibition of horn use would allow FRA to consider a quiet locomotive horn would normally be at public crossings, as are State laws zone that does not have a supplemental sounded. While FRA does not require a which prohibit the creation of whistle safety measure at every crossing as long diagnostic team to review a proposed ban crossings or quiet zones. This as implementation of the proposed quiet zone (with the exception of paragraph also makes clear that the rule SSMs and ASMs in the quiet zone as a reviewing improvements to private does not affect the traditional role of whole would cause a reduction in risk crossings), we anticipate that in most State agencies, or the Federal Highway to compensate for the lack of locomotive instances, such a team will be utilized. Administration, in their role of funding horn. Because the success of ASMs in FRA is not requiring such a review and constructing grade crossing safety compensating for the lack of the because, in the case of SSMs, such projects, the selection of traffic control locomotive horn is dependent on the measures have already been found to be devices, or engineering standards for level of time and effort expended by the effective in compensating for the lack of roadways or traffic control devices. governmental entity, and because a horn. FRA believes that a public Paragraph (c) of this section makes estimates of effectiveness for ASMs will authority will use the best talent clear that State agencies may provide entail a degree of judgment, FRA available to determine the appropriate administrative and technical services to retained a review and approval function manner of establishing a quiet zone. public authorities by advising them, where the governmental entity proposed Railroad industry commenters voiced acting on their behalf, or acting as a less than using SSMs at every crossing. strong disagreement with the proposed central contact point in dealing with Regardless of the method used, the rule in that it does not provide for FRA, however, any public authority proposed rule contemplated that both railroad participation in the process of eligible to establish a quiet zone under State and local governments would have establishing quiet zones. Specifically, this part may do so. authority to establish quiet zones. Some the American Short Line and Regional State commenters recommended that Railroad Association (ASLRRA) and the Section 222.39 How Is a Quiet Zone authority to establish quiet zones should Florida East Coast Railway Company Established? be limited to State agencies, and thus (FEC) emphasized that including This section addresses the manner in recommended that FRA revise the railroads in the process of establishing which a New Quiet Zone is established. language of § 222.33 to remove all quiet zones is a logical and practical FRA chose to use a quiet zone as a basis references to local governments. The necessity. Both ASLRRA and FEC for this rule. While it would be possible CPUC recommended that State agencies insisted that railroads must have the to approve a locomotive horn ban on a retain the primary authority for review right to review and respond to any crossing-by-crossing basis, the desired and approval of quiet zones. The North request for a quiet zone that may affect result of less disruption to the Carolina Department of Transportation the railroads’ operations. In support of surrounding community by locomotive (NCDOT) similarly expressed the view its position, FEC cited its previous horn noise would be minimal. Because that it is essential that State experience with whistle bans a locomotive horn must be sounded in transportation agencies serve as established in Florida that led to advance of a grade crossing, the noise clearinghouses for quiet zone numerous lawsuits against the spill-over from a crossing not subject to designations and applications to FRA company. FRA notes that Florida’s a ban could still disrupt the residents since these agencies are the whistle ban law, which led to and businesses near a crossing where administrators of the Section 130 imposition of FRA Emergency Order No. horns are banned. As a result, the Federal safety program. The NCDOT 15, only required that crossings subject concept of a quiet zone was developed, further recommended that the criteria to the ban be equipped with gates and which is meant to fulfill the following for establishment of quiet zones should flashing lights—it did not provide for purposes: ensure that banning of strongly encourage States to perform the extensive set of safeguards which locomotive horns would have the Traffic Separation Studies in order to are the subject of this rule. As discussed greatest impact in terms of noise identify additional safety devices that earlier, collisions increased dramatically reduction; ease the added burden on may be required at particular crossings. during the whistle ban period, which locomotive crews of the necessity of The NCDOT also recommended that naturally resulted in increased lawsuits.

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This rule is crafted specifically to avoid ultimate decision as to establishment of this approach that does not have a such increased risk at subject crossings. quiet zones. FRA anticipates that public supplemental safety measure at every One local government commenter, authorities will work closely with State crossing as long as implementation of however, expressed concern over the agencies with expertise in the area and the proposed SSMs and ASMs on [sic] potential inclusion of railroads in the with State funding agencies, but, as in the quiet zone as a whole will cause a process of establishing quiet zones. This a public authority’s relationship with a reduction in risk to compensate for the commenter emphasized the necessity of railroad, the ultimate decision must be lack of a locomotive horn. If the communities being able to take left to the public authority. aggregate reduction in predicted unilateral action to implement quiet In additional comments from railroad collision risk for the quiet zone as a zones. industry participants, the BRS voiced whole is sufficient to compensate fore FRA appreciates the role that general support for the two methods of the lack of a horn, a quiet zone may be railroads must play in establishing quiet establishing quiet zones in proposed established.’’ zones, from possible installation of four- § 222.33, but a representative of the This interim final rule continues the quadrant gates to providing information Wisconsin Central System expressed concept of viewing risk on a corridor- for the National Grade Crossing concern about FRA’s ability to analyze wide basis, however the rule includes Inventory. We also anticipate that, with and process quiet zone petitions in a measurements of risk that reflect or without use of diagnostic teams, timely manner. In comments commenters’ suggestions that FRA railroads will play an integral role with specifically relevant to passenger should give greater weight to the safety public authorities in designing the most operations, the National Railroad history and circumstances locally. Thus, effective and most cost effective quiet Passenger Corporation (Amtrak) FRA will permit quiet zones where risk zones. Despite the clear need for expressed concern about the exposure of has been addressed in one of three railroad involvement, FRA does not train passengers to the dangers of ways: one is the reduction of risk by intend that railroads have a veto power accidents at highway-rail grade compensating for the lack of the over the establishment of quiet zones. crossings. Amtrak suggested that locomotive horn by implementation of The decision to establish such zones communities seeking to establish quiet SSMs at every crossing within a quiet resides with the public authority. Once zones should be required to provide for zone; second, by reducing the risk level a public authority establishes a quiet the re-routing of heavy commercial within the quiet zone to a level at least zone under the terms of this rule, the motor vehicles away from crossings that equal to the average risk level railroad is legally prohibited from appear to have dangerous characteristics nationwide at crossings equipped with routinely sounding the locomotive horn or that have a history of violations or flashing lights and gates and at which at crossings within the quiet zone. As accidents. Amtrak also suggested that horns are sounded; or third, by discussed earlier, such prohibition diagnostic teams reviewing crossings for implementation of safety measures that preempts local ordinances and State potential inclusion in quiet zones will cause the risk level within the quiet laws regarding sounding of locomotive should focus on heavy truck traffic zone to fall to or below the risk level horns at public crossings and private because such vehicles pose the greatest which would exist if locomotive horns crossings within quiet zones. We expect risk of accidents. FRA appreciates sounded at all crossings within the quiet court decisions will reflect that reality Amtrak’s concerns, however, quiet zone. and will not hold the railroad liable zones will only be established under Paragraph (a)—Public Authority based on a cause of action of failure to this rule where there is compensation Designation sound a locomotive horn. Please see for the lack of a locomotive horn. also § 222.7 ‘‘What is this regulations’s Specifically, the requirement that Paragraph (a) of this section addresses effect on State and local laws and flashing lights and gates be provided at the situations in which the public ordinances?’’ and § 222.23 ‘‘How does each crossing in a New Quiet Zone, authority may designate a quiet zone this regulation affect sounding of a horn together with other requirements of the without the need for formal application during any emergency or other rule, should limit any possibility that to, or approval by, FRA. Paragraph situation?’’ this rule will adversely affect safety on (a)(1), which is similar to proposed Other railroad industry commenters Amtrak routes. (In fact, the exposure § 222.33(a), provides that a quiet zone agreed with State commenters as to the provided to innovative safety measures may be established by implementing at necessity of either limiting the authority during this rulemaking and prior public every public highway-rail grade crossing to establish quiet zones to State outreach has already had a beneficial within the quiet zone one or more SSMs agencies, or at least mandating the effect on emerging corridors.) However, identified in Appendix A. Because each inclusion of State agencies in the FRA does recognize the possibility that of those SSMs have been determined to process. The AAR voiced support for passenger risk may be susceptible to have an effectiveness rate which is at the position of CPUC that only States special analysis as this rule is revised in least equivalent to that of a locomotive should have the authority to establish future years based on the results of horn, and there is an SSM at every quiet zones. The BLE, on the other research. public crossing, FRA can be assured that hand, felt that the language of § 222.33 In this rule, FRA has retained the there is compensation for the lack of a giving State and local governments the basic framework as proposed in the locomotive horn in the quiet zone. authority to establish quiet zones was NPRM, but has modified it in response FRA’s role in this situation is thus appropriate, but that the relevant State to the many comments pertaining to the minimal. The public authority would governmental agency should always be perceived inflexibility of the proposal. only need to designate the extent of the included in the process in order to The NPRM was crafted in order to quiet zone and comply with the provide a consistent and efficient provide flexibility to the local information and notice requirements of approach. FRA continues to believe the communities. As stated in the NPRM at § 222.43. best approach, and the approach page 2246, ‘‘In this more flexible Paragraph (a)(2) permits quiet zones if consistent with the statutory mandate, approach, risk will be viewed in terms the risk level is, or can be made to be, requires that public authorities with of the quiet zone as a whole, rather than no higher than a national standard of safety authority over the roads and at each individual grade crossing. Thus, risk where train horns are used. The highways within a quiet zone make the FRA would consider a quiet zone under section compares the risk level at

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crossings within the quite zone to the SSMs as listed in Appendix A. Because the Nationwide Significant Risk average risk level on a nationwide basis of this, FRA does not need to review the Threshold. at crossings equipped with flashing proposal. The safety measures have Paragraph (b)(2) addresses approval lights and gates, and at which already been reviewed individually by by the Associate Administrator. If, in locomotive horns are sounded. Thus, if FRA in determining their effectiveness the Associate Administrator’s judgment, the Quiet Zone Risk Index is at, or rates and the risk levels have been also the public authority is in compliance below, the Nationwide Significant Risk been determined in accord with the with paragraph (b)(1) and has Threshold, the risk at crossings within Appendix D, ‘‘Determining Risk satisfactorily demonstrated that the the quiet zone would be at least equal Levels.’’. SSMs and ASMs proposed by the public to the risk level at the average crossing authority result in a Quiet Zone Risk Paragraph (b)—Public Authority where horns are sounded. Paragraph Index which is at or below the risk level Application to FRA (a)(2)(i) provides that a quiet zone may which would exist if locomotive horns be established if the Quiet Zone Risk Paragraph (b) addresses the sounded at all crossings in the quiet Index is already at, or below, the circumstances in which a quiet zone zone, or is at, or below, the Nationwide Nationwide Significant Risk Threshold. may be established after application to, Significant Risk Threshold, the quiet If so, there is no need to implement and approval by, FRA. This paragraph is zone will be approved. Because of the SSMs. intended to provide greater flexibility to greater flexibility and the greater Paragraph (a)(2)(ii) provides that a the public authority to use ASMs, ASMs variation in possible risk reduction, quiet zone can be established if SSMs and SSMs at different crossings, and FRA’s role is much greater than when a are implemented which are sufficient to variations of SSMs, such as a median public authority designates a quiet zone; reduce the Quiet Zone Risk Index to a shorter than is required when it is used thus, the Associate Administrator may level at, or below, the Nationwide as an SSM. (An ‘‘SSM’’ which does not include in any decision of approval Significant Risk Threshold. Under this fully comply with the requirements of such conditions as may be necessary to provision, there is no requirement to Appendix A is considered to be an ensure that the proposed safety implement SSMs at every public ASM.) This paragraph is based on improvements are effective. The crossing within the quiet zone. The proposed § 222.33(b). As in the Associate Administrator may also not public authority has discretion both as proposal, not every public crossing approve the quiet zone, in which case to which crossing or crossings will be within a quiet zone necessarily needs to the reasoning behind the rejection will equipped with an SSM and which type be treated with an SSM or ASM. be provided to the public authority. of SSM to use. FRA will provide the However, sufficient data must be § 222.57. A decision disapproving a basic calculations to the public submitted to the Associate request for approval may be challenged authority. Such information will be Administrator to demonstrate that by filing a petition for reconsideration available on FRA’s Web site at http:// implementation of the measures will with the Associate Administrator. The www.fra.dot.gov. Additionally, software cause a reduction in the Quiet Zone petitioner will have the opportunity for and technical assistance will be Risk Index to, or below either the risk an informal hearing. available from FRA’s Regional Grade level which would exist if locomotive Proposed § 222.33(c) and Proposed Crossing Managers. The general idea horns sounded at all crossings in the Appendix C—Quiet Zones in Which behind paragraph (a)(2) and the quiet zone or to a risk level at, or below SSMs or ASMs Are Not Necessary Nationwide Significant Risk Threshold the Nationwide Significant Risk is that communities desiring quiet zones Threshold. Proposed § 222.33(c) addressed the should not be required to achieve a Paragraph (b)(1) provides that a public limited circumstances in which a quiet higher degree of safety than the average authority may apply to the Associate zone could be established without the level of risk at public crossings with Administrator for approval of a quiet need for SSMs or ASMs. The limited lights and gates where the horn is zone that does not meet the standards conditions under which such a quiet sounded. This can relieve some for public authority designation under zone could be established were communities of the need to make paragraph (a). The application must proposed in Appendix C of the NPRM. expensive improvements to eliminate contain a proposal to implement one or FRA proposed five criteria that must be risk below the significant level. more SSMs or ASMs and must contain met for a quiet zone to be established Paragraph (a)(3) provides an sufficient detail concerning the present under § 222.339(c): (1) Train speed does additional manner of establishing quiet and proposed safety measures at the not exceed 15 miles per hour; (2) trains zones by designation. A public authority public and private crossings within the travel between traffic lanes of a public may implement SSMs which reduce the proposed quiet zone. The paragraph also street or on an essentially parallel Quiet Zone Risk Index to a level at or requires that the membership and course within 30 feet of the street; (3) below the risk level which would exist recommendations of a diagnostic team, signs are posted at every grade crossing if locomotives horns sounded at all if used, must be included in the indicating that locomotive horns do not public crossings within the quiet zone. application. FRA is requiring that a sound; (4) unless the railroad is actually This permits quiet zones to exist even diagnostic team be used only when situated on the surface of the public if the level of risk will be above the private grade crossings are to be street, traffic on all crossing streets is national average for train horn crossings included in a quiet zone, although their controlled by STOP signs or traffic as long as measures are taken to ensure use elsewhere is highly recommended. lights which are interconnected with risk in the quiet zone does not increase The public authority must also commit automatic crossing warning devices; and when the horn is silenced. The quiet to implement the proposed safety (5) the locomotive bell is rung when zone is viewed in the aggregate to measures and demonstrate through data approaching and traveling through the determine if there has been and analysis that implementation of crossing. compensation for the lack of the these measures will reduce the Quite The Oregon Department of locomotive horn. Zone Risk Index to, or below the risk Transportation expressed strong It is important to note that under any level which would exist if locomotive disagreement with FRA’s inclusion in of the alternatives within this section horns sounded at all crossings in the proposed Appendix C of slow moving any additional safety measures must be quiet zone or to a risk level at, or below trains running within a street right-of-

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way. The Oregon DOT claimed that each other with only a small distance to silence the horn. Providing this although crossings where slow moving separating the two. This commenter exception to the proposed rule was trains run within a street right-of-way explained that even if a train is appropriate given the structure of the could qualify for a quiet zone, such operating at slow speed, it is very NPRM. However, because the actions situations should not be globally exempt difficult for a motorist driving parallel required of public authorities in creating from the requirement to sound the and close to the track to see a train quiet zones under this interim final rule locomotive horn. The Town of Andover, coming up from behind when the are based to a much greater extent on Massachusetts, recommended that the motorist is at an intersection and about risk at those crossings, there is no longer Appendix C criteria be expanded to take to turn and cross the track. a need to retain this proposed provision. into account the volume of traffic at a Several commenters, unable to Communities which would have likely crossing and historical accident data determine whether specific crossings in qualified under the proposed section and safety measures in place at the their communities would meet the will likely qualify for a quiet zone crossing. Recognizing that Appendix C requirements of Appendix C, requested pursuant to § 222.39(a) (public authority as written would require that all five of clarification of the listed criteria. designation) by being below the NSRT the listed conditions be present in order Specifically, some commenters were and thus will not need to apply SSMs to establish a quiet zone, another local unclear as to whether all five of the or ASMs to retain a quiet zone. If a quiet government commenter, Jefferson conditions must be present together or zone meeting the conditions of the Parish, Louisiana, suggested a more if the requirements must only be met proposed section does not qualify under flexible approach to identifying individually. In addition, one local § 222.39(a), it is likely that certain situations which should qualify as quiet government commenter specifically conditions are present which add to the zones without any additional safety requested clarification of the risk level. In such unlikely measures. Specifically, Jefferson Parish requirement that trains be traveling circumstance, an SSM or ASM might be explained that many residential areas between or parallel to traffic lanes of a appropriate, or the public authority may are located directly adjacent to railroad public street, and what was meant by wish to apply for a waiver. rights-of-way, with no intervening the phrase ‘‘railroad is actually situated Based on the above, and the public streets. Thus, even if crossings in on the surface of a public street.’’ comments calling into question its these areas meet all of the conditions One commenter, representing the City provisions, FRA is deleting proposed listed in Appendix C except for close of Saint Paul, Minnesota, expressed Appendix C and is not carrying forward proximity to a public street, these areas support for the inclusion of train speed to this interim final rule language of would never be able to qualify as quiet as a factor in Appendix C. The City of proposed § 222.33(c). zones. Jefferson Parish therefore Saint Paul expressed the opinion that as compared to fast moving trains, slow Section 222.41 How Does This Rule suggested that either some flexibility be Affect Pre-Rule Quiet Zones? allowed on the criterion pertaining to moving trains greatly reduce the safety the distance of the track from a parallel risk involved with train-auto collisions. This section addresses the effect of street, or to require that areas meet some However, this commenter also noted this rule on Pre-Rule Quiet Zones. A percentage of the criteria (e.g., four out that because slow moving trains take a Pre-Rule Quiet Zone is a segment of a of five) listed in Appendix C in order to longer time to travel through the same rail line within which is situated one, or be designated a quiet zone with no amount of track as fast moving trains, a number of consecutive public additional safety measures necessary. slow moving trains lead to greater noise highway-rail grade crossings at which The Northern Indiana Commuter disturbances if required to sound their State statutes or local ordinances Transportation District recommends a horns at every crossing. restricted the routine sounding of new categorical exclusion for an Other commenters indicated that the locomotive horns, or at which intersection of two streets, one of which NPRM’s Appendix C required revision locomotive horns did not sound due to has railroad tracks, a highway speed or that the Appendix should be formal or informal agreements between limit of 25 miles per hour and railroad eliminated altogether. One commenter the community and the railroad or speed limit of 15 with passive warnings. speaking at the Salem, Massachusetts, railroads, and such statutes, ordinances In support of this exclusion, the public hearing suggested that the or agreements were in place and Transportation District cited 17 ‘‘non- criteria listed in Appendix C do not enforced or observed as of October 9, serious’’ accidents at its crossings address safety. Instead, this commenter 1996 and on the date this rule was during a recent eight year period. Given suggested that the listed criteria address published. the limited information regarding this a certain pattern of railroad and In the NPRM, FRA proposed to type of operation, it would not be roadway coexistence, which pattern is provide communities with pre-existing appropriate to provide a categorical not exclusive of other safe conditions. whistle bans with a three-year grace exclusion. This commenter suggested that in lieu period for compliance with the final One commenter testifying at the of the proposed Appendix C, FRA rule. To take advantage of this three- Salem, Massachusetts, public hearing, should adopt performance based criteria year grace period, the NPRM would expressed the view that the Appendix which do not exempt single crossings, require that these communities initiate should be eliminated in its entirety. but instead exempt collections of or increase highway-rail grade crossing This commenter, a locomotive engineer, crossings within an area that already safety public awareness initiatives and explained that while some situations have a demonstrated safety record. FRA grade crossing traffic law enforcement may exist which require no safety notes that essentially performance based programs within two years after the date measures to offset the lack of use of the criteria have in fact been adopted in of issuance of the final rule if no quiet locomotive horn, such situations are response to public comments. zone was yet designated or accepted for rare and should be dealt with on an The proposed language addressed a its jurisdiction in accordance with the individual case-by-case basis after local very specific, limited, situation which, rule. public hearings. This commenter also in FRA’s judgment, was of inherently FRA received numerous comments expressed concern regarding the low risk. It was FRA’s judgment that regarding its proposal from State and inclusion of crossings where the such low risk crossings need not be local governments, as well as railroad and a highway run parallel to required to have SSMs or ASMs in order representatives of the railroad industry.

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Most local governments commented that § 222.39(d) apply to crossings with pre- Zones inasmuch as Florida State the three-year grace period was existing quiet zones. statutes and local ordinances permitting insufficient, citing lack of adequate The AAR was the only commenter to whistle bans were not enforced or funding and the costs involved with specifically oppose the blanket observed as of October 9, 1996, having installing the approved SSMs. Most grandfathering of pre-existing quiet been preempted by the Emergency local governments felt that it would take zones for any period of time. Order in 1991. Therefore, any quiet 5–10 years to arrange funding and Specifically, the AAR recommended zones to be established in Florida would actually install the approved SSMs. One that FRA examine the crossings within need to qualify as New Quiet Zones Illinois municipality suggested that these pre-existing quiet zones to ensure under this rule. even with adequate funding, bringing that additional safety measures are not FRA recognizes the strong feelings the State’s quiet zones into compliance needed. The AAR suggested a number of associated with the issues raised by this with the rule could take up to 15 years. specific prerequisites to the granting of provision. As noted, some commenters On the other hand, the Washington quiet-zone status to communities where recommended a longer grandfathering Department of Transportation suggested locomotive horns have not historically period while others recommended that a three-year grace period is too long been sounded. First, the AAR suggested substantially shorter periods. FRA, after and indicated that communities with that all public crossings within pre- considering the comments, and existing quiet zones should be able to existing quiet-zones be equipped with reviewing the statutory mandate that comply with the rule within one year of gates and lights, and signs warning of FRA take into account the interest of the issuance of the final rule. Several the existence of the quiet zone should communities that have in effect railroad industry commenters also be placed at the approach to each restrictions on the sounding of a suggested that the three-year grace crossing. Second, the AAR locomotive horn at highway-rail grade period for communities with pre- recommended that notices of quiet zone crossings, has determined that extension existing whistle bans is excessive. The implementation or termination be of the grandfathering period is United Transportation Union suggested published in the Federal Register. appropriate. FRA has also considered a six-month grace period, while the BRS Third, reasoning that the ability of a that budgetary cycles and funding recommended two years as an local community to institute a quiet planning may require more time than appropriate period. zone has historically been dependent on was proposed in the NPRM. As approval of the State, the AAR discussed further below, the Most State commenters emphasized recommended that only States be grandfathering period will extend from the importance of grandfathering permitted to apply for quiet zone status. three to eight years from the publication existing quiet zones where substantial Next, the AAR recommended that States date of this rule in the Federal Register. investment has already been made by have the burden of demonstrating the The determining factor as to how long State transportation agencies, railroads, safety of grade crossings, and diagnostic within that period a community has will and affected communities. The Illinois teams should be used to analyze depend on the actions taken by that Commerce Commission suggested that crossing issues before any quiet zone is community and the appropriate State all crossings in communities with pre- instituted. Finally, the AAR agency. FRA agrees with Oregon DOT existing whistle bans be grandfathered recommended that only crossings where and has crafted the rule in such a under the rule until the responsible locomotive horns have not sounded for manner that the public authority does State oversight agency establishes a the previous five years should be not need to expend construction or recognized quiet zone for the area. eligible for grandfathered status. program funds (other than for planning Likewise, the Oregon DOT noted that In comments specifically relevant to and application purposes) until it has requiring a community with a pre- railroad operations and highway-rail determined, and has had approved existing whistle ban to initiate or grade crossings within the State of when necessary, the actions to be taken. increase both highway-rail grade Florida, the Florida East Coast Railway FRA has also provided for State crossing safety public awareness Company (‘‘FEC’’) noted that the NPRM involvement to the extent that if a initiatives and crossing traffic law does not address the pre-existing public authority wishes to take enforcement programs, if no quiet zone restrictions on the sounding of advantage of the entire eight-year is designated or accepted under the final locomotive horns that were preempted grandfathered period, the plans of the rule within two years, imposes a new by Emergency Order No. 15 in 1991 public authority must be part of a State- financial burden on the community. In which required FEC to sound warning wide implementation plan. Thus, the particular, the Oregon DOT questioned devices at grade crossings and required appropriate State agency will be the efficacy of this requirement in that FEC revoke operating rules and involved in working with public situations where a community has had bulletins to the contrary. In its authorities in resolving planning and a whistle ban in place for several years comments, FEC explained that it funding issues. with no reported accident history that considers all local ordinances Paragraph (a) of § 222.41 addresses would be impacted by the additional preempted by Emergency Order No. 15 Pre-Rule Quiet Zones which qualify for initiatives or enforcement. null and void and understands that for automatic approval. A Pre-Rule Quiet In its comments, the BLE recognized purposes of the final rule, the subject Zone will be considered to be the past efforts and investments of crossings will not be viewed as being automatically approved if (in addition communities regarding the issue of within pre-existing quiet zones. FEC, to compliance with §§ 222.35 and locomotive horn noise. However, citing however, requested that FRA 222.43) the quiet zone is in compliance concerns that crossings in localities specifically address the status of the with one of a number of conditions. The with pre-existing quiet zones which are affected crossings in the final rule so as quiet zone may remain in effect if there grandfathered from the requirements of to avoid any confusion among affected are SSMs at every public highway-rail the final rule could continue to exist jurisdictions. The status of such affected grade crossing within the quiet zone without appropriate safety measures, crossings is in fact addressed in this (paragraph (a)(1)). Similarly, the quiet the BLE requested that the final rule rule. Florida crossings subject to zone may continue automatically if the explicitly state that the provisions for Emergency Order No. 15 do not fall Quiet Zone Risk Index as last published termination of quiet zones set forth in within the definition of Pre-Rule Quite by FRA is at, or below, the Nationwide

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Significant Risk Threshold (paragraph decide to continue Pre-Rule Quiet Zones which do not qualify for automatic (a)(2)). FRA has added this provision in on an interim basis under the provisions approval. The improvements must, recognition of the many comments that of this paragraph. It is important, when implemented, enable the Pre-Rule emphasized the need for FRA to look at however, to note that this paragraph Quiet Zones to qualify for a quiet zone the safety record at individual crossings only provides interim authority to under this rule. Before the expiration of and quiet zones rather than impose a continue a quiet zone. Continuation of four years after publication, physical standard that required SSMs regardless a quiet zone beyond the periods improvements must be initiated at least of an extremely good safety record. specified in this paragraph will require one of the crossings within the quiet Comparing the Quiet Zone Risk Index to implementation of SSMs or ASMs as zone, or the State agency must have the Nationwide Significant Risk though the quiet zone is a New Quiet participated in quiet zone Threshold does in fact address safety Zone (in accord with § 222.39 (‘‘How is improvements in one or more history at crossings within the quiet a quiet zone established?’’)). jurisdictions elsewhere in the State. zone because the accident history is one Paragraph (b)(2) provides that a public In summation, paragraph (b)(2) component of the Quiet Zone Risk authority may continue a quiet zone for permits a quiet zone to be extended for Index. That is why this provision five years from the date of publication three years without any action taken by applies to both New Quiet Zones and of this rule. This period will ensure that the public authority. If, however, the Pre-Rule Quiet Zones. the public authority has adequate time public authority files a detailed plan for While the preceding conditions for planning and implementation of implementation of SSMs or ASMs permitting continuation of a quiet zone SSMs or ASMs. The five-year extension within that three-year period, the quiet essentially track the provisions for period is dependent on the public zone will be extended to five years to automatic approval for New Quiet authority filing with the Associate permit implementation of those plans. Zones, paragraph (a)(3) is unique to Pre- Administrator a detailed plan for Paragraph (b)(3) permits a quiet zone to Rule Quiet Zones. A quiet zone may be establishing a quiet zone under this be extended for an additional three continued automatically if the Quiet part. If the quiet zone will require years (for a total of eight years) if the Zone Risk Index as last published by approval under § 222.39(b), the plan State files a comprehensive State-wide FRA is above the Nationwide must include all the required elements implementation plan and funding Significant Risk Threshold but is less of filings under that paragraph together commitment within three years of than twice the Nationwide Significant with a timetable for implementation of publication of this rule, and if, within Risk Threshold and there have been no safety improvements. The plan must be four years of publication, improvements relevant collisions at any public grade filed within three years of the date of are made to a crossing within the quiet crossing within the quiet zone for the publication of this rule. FRA zone, or to another crossing in another five years preceding the date of understands that, in some cases, plans quiet zone elsewhere in the State. publication of this rule. filed within this period will be Paragraph (4) merely recommends This provision goes a step further in contingent on funding arrangements that if the improvements planned by the recognizing situations where train horn that may not be complete as of that date public authority require FRA approval bans have been in place for a (particularly where State-level under § 222.39(b), application for considerable period with no untoward participation has been requested). FRA approval should be filed no later than effects. We accommodate such is seeking a good faith filing, which thirty months after publication of this impressive facts by giving the accident normally would be tendered by the rule. This will provide sufficient time history greater weight than that the executive head of the relevant public for FRA to review the proposal prior to overall risk index. In determining the authority or authorities involved. the end of the three-year extension risk level resulting from silencing horns Thus, the practical implication of this period. in New Quiet Zones, FRA can only timetable is that a Pre-Rule Quiet Zone Section 222.43 What Notices and project the safety implications from may continue for three years from the Other Information Are Required To silencing the horn—by definition there date of publication of this rule without Establish a New Quiet Zone or To is no empirical evidence at those any action taken by the public authority. Continue a Pre-Rule Quiet Zone? crossings of the safety implications of However, at the expiration of that three- silencing the horn. On the other hand, year period locomotive horns will This section governs the type and Pre-Rule Quiet Zones present direct resume sounding at all public crossings timing of notification and information empirical evidence of the safety effect of within the former quiet zone unless the that must be provided to various parties. silencing the horn at those crossings public authority has filed a plan for The intent of this section is to ensure within the quiet zone. Thus, FRA completing the necessary that interested parties are made aware in includes paragraph (a)(3) in recognition improvements. Thereafter, if the public a timely manner of the establishment or that, although statistically the quiet authority wishes to establish a quiet continuation of quiet zones and, if zone may present a higher safety risk zone, it will need to comply with the necessary, of their termination. This (Quiet Zone Risk Index is greater than requirements for New Quiet Zones section also details the information that the Nationwide Significant Risk contained in this rule. must be provided to FRA. FRA received Threshold) due to risk factors such as Paragraph (b)(3) provides that if a small number of comments regarding traffic volume, experience shows that, certain conditions are met, locomotive the notice and information requirements for whatever reason, the lack of a horn restrictions may continue for three of the proposed rule. Although most locomotive horn at those crossings has years beyond the five-year period commenters acknowledged the not resulted in appreciably unsafe permitted in paragraph (b)(2). Before the necessity of notification procedures conditions. (Of course, the occurrence of expiration of three years after ensuring that all interested parties are an accident will eliminate this special publication, the appropriate State aware of the existence of quiet zones, a exception.) Paragraph (b) addresses agency must provide to the Associate few commenters suggested that the those Pre-Rule Quiet Zones which do Administrator a comprehensive State- specific notice and information not qualify for automatic approval wide implementation plan and funding requirements of the proposed rule under paragraph (a). Paragraph (b)(1) commitment for implementing would be administratively burdensome provides that a public authority may improvements at Pre-Rule Quiet Zones and impractical. First, the BLE

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expressed the opinion that a 14-day quiet zone; the highway or traffic Paragraph (b)(5) requires each chief period between designation or FRA control authority or law enforcement executive officer of each public approval of a quiet zone and actual authority having control over vehicular authority establishing or continuing a implementation is insufficient. The BLE traffic at crossings within the quiet quiet zone under this part, to certify that recommended that this provision be zone; the landowner having control over responsible officials of the public modified to provide that a railroad has any private crossings within the quiet authority have reviewed documentation an affirmative duty to notify each zone; the State agency or agencies prepared by or for FRA sufficient to employee of the establishment of a quiet responsible for highway and railroad make an informed decision regarding zone via the railroad’s usual means of safety; and the Associate Administrator. the advisability of establishing the quiet communication with its employees. While it is likely that most of these zone. This paragraph provides reference FRA agrees with the BLE that 14 days parties will be aware of the to the docket of this proceeding and to may not be sufficient and has therefore establishment of a quiet zone, this FRA’s web page for documents which lengthened the 14 day period to 21 days. provision ensures complete and timely may be of interest to the chief executive However, despite the BLE’s request for notification. In order to ensure that all or to the reviewing responsible officials. a regulatory requirement that railroads parties have notice and sufficient time This provision is included in notify their employees of the to prepare for the change at the recognition of the differing views as to establishment of a quiet zone, FRA is crossings, all notices required under this the efficacy of banning the routine use confident that railroads will indeed so section must be provided by certified of locomotive horns at grade crossings notify their employees without the mail, return receipt requested. and of the fact that establishment of necessity of such a requirement, if for Paragraph (a)(2) requires that the quiet zones is not required by this rule, no other reason, than the railroad would notice shall specify the grade crossings but is purely voluntary on the part of be in violation of this regulation if horns within the quiet zone, identified by both public authorities. were to routinely sound within quiet the U.S. DOT National Highway-Rail Section 222.45 When Is a Railroad zone limits. Grade Crossing Inventory Number and Other commenters explained that Required To Cease Routine Use of street or highway and the specific date Locomotive Horns at Crossings? because FRA accepts updates to the upon which routine locomotive horn This section addresses the AAR Inventory only from States and use at grade crossings shall cease. With railroads, the requirement for requirement imposed on a railroad to the exception of Pre-Rule Quiet Zones cease routine use of the locomotive horn designating entities to submit the continuing under § 222.41, the cessation Inventory Forms is impractical. The upon receipt of notice of establishment date shall not be earlier than 21 days Oregon Department of Transportation of a quiet zone. After a railroad receives after mailing of the notification. (‘‘DOT’’) explained that the State does notification from a public authority that Paragraph (a)(3) details the requirement not have the staff or resources to update a quiet zone is being established, the to reference the regulatory provision the Inventory as the proposed rule railroad, upon the date specified by the under which the quiet zone is being would require. The Oregon DOT also public authority, shall cease routine use established or continued. In those questioned whether railroads would be of the locomotive horn at all public and instances in which the public authority willing to expend their resources to private highway-rail grade crossings is relying on risk calculations provided update the Inventory as proposed. The identified by the public authority. After by FRA, this paragraph requires that a City of Fargo, North Dakota, and the receipt of such a notice, a railroad is City of Moorhead, Minnesota, echoed copy of the FRA web page containing prohibited from routine use of the the Oregon DOT’s concern in this regard the quiet zone data be included in the locomotive horn at the crossing after the and suggested three alternatives: (1) notice. In this way, all parties will date specified in the notice. While the That communities be allowed to update understand the basis for establishment most extensive use of the horn in the Inventory for crossings within quiet or continuation of the quiet zone. railroad operations is to provide routine zones, (2) that railroads be required to Paragraph (b) addresses the warning at highway-rail crossings, it has update the Inventory when installing requirement that Grade Crossing many other purposes as an audible the safety measures necessary to Inventory Forms be filed with the signal. As stated in § 222.23(b), this implement the quiet zone, or (3) that Associate Administrator for each public prohibition does not prevent a railroad FRA incorporate the information and private highway-rail grade crossing from use of the horn for other purposes, contained in the quiet zone notification within the quiet zone. This paragraph e.g., to warn railroad employees into the Inventory. FRA is aware of the requires two Grade Crossing Inventory working near the track of an problem associated with updating the Forms for each crossing. One must be approaching train, or to warn motorists Inventory. However, an up-to-date dated within six months prior to of the approaching train in the event of Inventory is critical to the success of designation or FRA approval of the a grade crossing safety system any quiet zone program. FRA needs quiet zone. This filing will permit FRA malfunction. This is not an all-inclusive accurate up-to-date data upon which to to calculate risk based on current grade list of the uses that this rule does not base its calculations of risk. FRA agrees crossing information, and thus the affect (e.g., use of horn to signal during in part with the Cities of Fargo and public authority will be able to make switching operations; use of horn to Moorhead that communities should be planning decisions based on accurate alert pedestrians entering stations or to allowed to update the inventory and has data. The second Grade Crossing communicate within crews while addressed the issue in § 222.49, ‘‘Who Inventory Form must reflect the SSMs leaving stations, etc.) Nor does this may file Grade Crossing Inventory and ASMs in place upon establishment section prohibit emergency use of the Forms?’’ of the quiet zone. This paragraph also horn, which is expressly permitted by Paragraph (a)(1) of this section requires that the Associate § 222.23, and which is, by definition, provides that information pertaining to Administrator be furnished the name, not routine. the establishment or continuation of title, and contact information of the The form of the notice which triggers quiet zones must be provided to: all public official responsible for the cessation of routine horn use is railroads operating over the public monitoring compliance with the specified in § 222.43. Section 222.43 highway-rail grade crossings within the requirements of the regulation. also requires that the notice be mailed,

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by certified mail, to every railroad zone continue to conform to the above. As in paragraph (a), an up-to- operating over the grade crossing subject requirements of Appendix A of this date, accurate, and complete Grade to the New Quiet Zone. part. This requirement merely ensures Crossing Inventory Form for each public that the original basis for establishment and private highway-rail grade crossing Section 222.47 What Periodic Updates of the quiet zone continues to exist. within the quiet zone is required. Are Required? Copies of the affirmation must be sent This section details the periodic Section 222.49 Who May File Grade to the same parties which received the Crossing Inventory Forms? updates required of public authorities original notice of establishment of quiet after a quiet zone is established. The zone (§ 222.43(a)): all railroads This section addresses filing of Grade NPRM, at proposed § 222.39(a), (b), and operating over the public highway-rail Crossing Inventory Forms. The U.S. (c), contained provisions generally grade crossings within the quiet zone; DOT National Highway-Rail Grade similar to those in this section. the highway or traffic control authority Crossing Inventory provides the basic However, rather than divide the section or law enforcement authority having database by which FRA compiles based on SSMs and ASMs as was done control over vehicular traffic at the information pertaining to characteristics in the NPRM, this section distinguishes crossings within the quiet zone; the of both public and private highway-rail among quiet zones with SSMs at each landowner having control over any grade crossings. The data collected public crossing (§ 222.39(a)(1)), and private crossings within the quiet zone; includes information on the railroad those quiet zones which do not have the State agency responsible for operating over the crossing, such as: the SSMs at each public crossing highway and road safety; and FRA. The name of the railroad; maximum (§§ 222.39(a)(2) and 222.39(b)). affirmation and copies must be provided authorized speed of trains which cross There were few comments on to the required parties by certified mail, the roadway; type of warning system at proposed periodic updates. The City of return receipt requested. In addition, the the crossing; train traffic at the crossing; Fargo, North Dakota commented that the public authority must file with the type of railroad signal system, if any, at periodic written affirmation Associate Administrator an up-to-date, the crossing; and the number of tracks requirements of § 222.39 are excessive. accurate, and complete Grade Crossing crossing the roadway. Similarly, the Fargo suggested that FRA’s reservation Inventory Form for each public and inventory contains information about in § 222.39(d) of the right to review at private highway-rail grade crossing the roadway and motor vehicle traffic at any time the status of any quiet zone is within the quiet zone. the crossing, such as: the type of road sufficient to assure that the SSM and surface; number of lanes; and speed ASM in place at crossings within the Paragraph (b) of this section governs limit. quiet zone fully compensate for the periodic information updates for quiet It is essential that the inventory be up- absence of the warning provided by the zones which do not have an SSM at to-date, accurate and complete in order locomotive horn under the conditions each public crossing (those quiet zones that FRA’s safety analyses are based on then present at the crossings within the established pursuant to §§ 222.39(a)(2) the best data. While filing of Inventory quiet zone. Likewise, to limit the and (a)(3), § 222.39(b) and Forms has been voluntary, this Interim reporting burden of the requirement for §§ 222.41(a)(2) and (a)(3)). FRA is Final Rule requires the filing of such periodic quiet zone affirmations in the providing for a shorter period between forms for each grade crossing within a proposed rule, the City of Chicago, affirmations because of the greater quiet zone. Illinois, recommended that State possibility that changed circumstances Paragraph (a) of this section provides agencies responsible for railroad safety will affect either the level of risk within that if the State or railroad do not file should be designated to monitor quiet zones where no SSMs or ASMs were Grade Crossing Inventory Forms with zone grade crossing accidents under necessary due to low risk or the the Associate Administrator, in their existing procedures. FRA does not effectiveness of the safety measures put accordance with §§ 222.43 and 222.47, agree that an update every three or five in place in the quiet zone. Because the the public authority may do so. Those years is burdensome. FRA needs to be safety measures instituted at crossings sections require that forms be filed informed of the current status of the subject to the three-year affirmation when a quiet zone is established quiet zone and when viewed in light of cycle are dependent on local (§ 222.43) and when periodic updates the safety interest and minimal circumstances and local effort, review are filed with the Associate inconvenience to the public authority, on a more frequent basis is appropriate. Administrator (§ 222.47). Providing the periodic updates on the schedule Thus, the period between updates for public authority with the authority to proposed is being retained. these quiet zones is three years, rather file Grade Crossing Inventory Forms Paragraph (a) of this section governs than the five years for quiet zones prevents the public authority from being periodic information updates for quiet provided in paragraph (a). The required powerless if either the State or railroad zones with SSMs at each public crossing information must be filed with the fails to provide such needed (those quiet zones established pursuant Associate Administrator between 21⁄2 information due, for instance, to the to §§ 222.39(a)(1) and 222.41(a)(1)). This and 3 years after the initial workload issues identified by section requires the public authority to implementation notice required by commenters. provide to FRA updated information § 222.43 and every 21⁄2 to 3 years Paragraph (b) requires that, upon the every five years, with a six month thereafter. This section requires the request of the public authority, the window during which the information public authority to affirm in writing to railroad owning the line of railroad that must be filed. Thus, the rule states that the Associate Administrator that all includes public or private highway-rail the required information must be filed SSMs and ASMs implemented within grade crossings within the quiet zone, or between 41⁄2 and 5 years after the initial the quiet zone continue to conform to within the proposed quiet zone, shall implementation notice required by the requirements of Appendices A and provide sufficient current information to § 222.43 and every 41⁄2 to 5 years B of this part, and the terms, if any, of the State and public authority regarding thereafter. This section requires the FRA’s quiet zone approval. The method the grade crossing and its operations to public authority to affirm in writing to of notice and the parties to which the enable the State and public authority to the Associate Administrator that the copies of the affirmation must be sent complete the Grade Crossing Inventory SSMs implemented within the quiet mirror the requirements in paragraph (a) Form. FRA is requiring that railroads

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provide such information because it is for those quiet zones because the risk Associate Administrator for information that, in many cases, is level has been reduced to a level which continuation of the quiet zone. known only by the railroad. For fully compensates for the absence of the Procedures for such approval process instance, maximum authorized speed, horn. Any subsequent safety variations are those set forth in § 222.39(b). FRA is track class, and type of railroad signal would be due to factors other than only requiring that the public authority system at the crossing is not public absence of the horn. reduce the risk index to either of the knowledge and is not information that Paragraph (a)(1) of this § 222.51 two risk levels (Nationwide Significant would be readily available to the public provides that for those quiet zones Risk Threshold or the risk level that authority. FRA is declining in this rule which are subject to annual risk reviews fully compensates for the absence of the to require the State to provide such (those quiet zones established pursuant train horn). However, there are long information, except to the extent the to §§ 222.39(a)(2) and 222.39(b)(2)(ii)), term benefits in reducing the risk to the State is a cooperating public authority FRA will notify each public authority of level that fully compensates for the in a quiet zone project (i.e., where a the Quiet Zone Risk Index for the absence of the train horn, rather than State highway is involved). While it is preceding calendar year. A Quiet Zone reducing the risk level to a level at, or of course desirable that a State, and Risk Index above the Nationwide below, the Nationwide Significant Risk indeed, the railroad, cooperate in Significant Risk Threshold signifies an Threshold. If the Quiet Zone Risk Index furnishing this important data, unacceptable increase in risk at is reduced to a level that fully information that would be provided by crossings within the quiet zone. compensates for the absence of the train a State, such as roadway type and traffic Paragraph (a)(2) addresses the actions horn, the quiet zone will be considered volume at the crossing, is readily that need to be taken by a public to have been established pursuant to available to the public authority. authority to retain a New Quiet Zone in § 222.39(a)(3) and thus subsequent the event the Quiet Zone Risk Index is annual risk reviews will not be Section 222.51 Under What Conditions above the Nationwide Significant Risk conducted for that quiet zone. Annual Will FRA Review and Terminate Quiet Threshold. risk reviews are not necessary for those Zone Status? Paragraph (a)(2)(i) provides that quiet zones because the risk level has This provision is intended to ensure unless the public authority takes certain been reduced to a level which fully that quiet zones, while providing for specified actions to reduce the risk compensates for the absence of the horn. quiet at grade crossings, also continue to level, the quiet zone will terminate six Any subsequent safety variations would provide the level of safety for motorists months after the public authority be due to factors other than absence of and rail employees and passengers that receives notice that the Quiet Zone Risk the horn. existed before the quiet zones were first Index is above the Nationwide Paragraph (a)(2)(iii) provides that established, or in the alternative, the Significant Risk Threshold. If the public failure of the public authority to comply level of safety reached by the average authority wishes to retain the quiet with paragraph (a)(1) (commitment to public grade crossing where locomotive zone, it must, within that six month lower the risk level) shall result in the horns sound. In order to ensure this period, provide to the Associate termination of the quiet zone six months level of safety, FRA will review safety Administrator a written commitment to after the date of receipt of notification data on at least an annual basis. lower the potential risk to the traveling from FRA of the Quiet Zone Risk Index. Paragraph (a) addresses FRA’s annual public at the crossings within the quiet This paragraph also provides that failure risk reviews of New Quiet Zones, while zone, by reducing the risk level to a of the public authority to comply with paragraph (b) addresses FRA’s annual level at, or below, the Nationwide paragraph (a)(2) (implementation of risk reviews of Pre-Rule Quiet Zones. Significant Risk Threshold or to a level safety measures) shall result in the Paragraph (c) provides for a review of fully compensating for the absence of termination of the quiet zone three years quiet zone status at the initiative of the train horn. As part of this after the date of receipt of notification FRA. commitment, the public authority must from FRA of the Quiet Zone Risk Index. provide a discussion of the specific Paragraph (a)—New Quiet Zones steps the authority plans to take to Paragraph (b)—Pre-Rule Quiet Zones Paragraph (a) addresses annual increase safety at the crossings within Paragraph (b) of this section addresses reviews of risk levels at crossings within the quiet zone. Taking these actions will annual reviews of risk levels at New Quiet Zones. This paragraph preserve the quiet zone for three years crossings within Pre-Rule Quiet Zones. provides that FRA will annually from the date of FRA notification— Certain categories of Pre-Rule Quiet calculate the Quiet Zone Risk Index for sufficient time for the public authority Zones are not subject to annual risk each New Quiet Zone established based to implement safety measures at the reviews, i.e., those Pre-Rule Quiet Zones on risk comparison with the Nationwide quiet zone. which met the requirements for public Significant Risk Threshold Paragraph (a)(2)(ii) provides that in authority designation by implementing (§ 222.39(a)(2)) and quiet zones addition to complying with paragraph SSMs at each public grade crossing established based on application to, and (a)(2)(i) (commitment and discussion of within the quiet zone (§ 222.41(a)(1)). approval of, FRA and that reduce risk to steps to be taken), within three years Annual risk reviews are not necessary a level at, or below, the Nationwide after the public authority receives for those quiet zones because the risk Significant Risk Threshold notification from FRA that the Quiet level has been reduced to a level which (§ 222.39(b)(2)(ii)). Routine annual risk Zone Risk Index exceeds the fully compensates for the absence of the reviews will not be conducted for quiet Nationwide Significant Risk Threshold, horn. Any subsequent safety variations zones established by having an SSM at the public authority must complete would be due to factors other than every public crossing within the quiet implementation of SSMs or ASMs absence of the horn. zone (§ 222.39(a)(1)) and quiet zones sufficient to reduce the Quiet Zone Risk Paragraph (b)(1) provides that FRA established based on the risk level Index to a level at, or below, the will annually calculate the Quiet Zone having been reduced to a level fully Nationwide Significant Risk Threshold, Risk Index for two types of Pre-Rule compensating for the absence of the or to a level that fully compensates for Quiet Zones: each Pre-Rule Quiet Zone train horn (§ 222.39(a)(3) and (b)(2)(i)). the absence of the train horn. The public that qualified for automatic approval Annual risk reviews are not necessary authority must receive approval of the pursuant to § 222.41(a)(2) (quiet zones

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with a Quiet Zone Risk Index below the than twice the Nationwide Significant year. Thus, the quiet zone may continue Nationwide Significant Risk Threshold) Risk Threshold and a relevant collision if the conditions which qualified the and those that qualified for automatic occurred at a crossing within the quiet quiet zone in the first place have approval pursuant to § 222.41(a)(3) (Pre- zone during the five years preceding the remained essentially unchanged. Rule Quiet Zones that originally annual risk review, the quiet zone will Paragraph (b)(3)(ii) addresses the qualified for automatic approval terminate six months after receipt of situation in which conditions have because the Quiet Zone Risk Index was FRA’s notification. changed. If the Quiet Zone Risk Index above the Nationwide Significant Risk Subsequent annual reviews of such as last calculated by FRA is above twice Threshold but was below twice the quiet zones will be subject to paragraph the Nationwide Significant Risk Nationwide Significant Risk Threshold (3), i.e., the quiet zones will be Threshold, or if a relevant collision has and no relevant collisions had occurred considered to have been established occurred at a public grade crossing within the five year qualifying period. under § 222.41(a)(3), which permits within the quiet zone during the Paragraph (b)(1) also provides that FRA quiet zones if the Quiet Zone Risk Index previous calendar year, the quiet zone will notify each public authority of the is above the Nationwide Significant Risk will terminate six months after the date Quiet Zone Risk Index for the preceding Threshold but less than twice the of notification from FRA, unless the calendar year for each such quiet zone Nationwide Significant Risk Threshold public authority takes the actions in its jurisdiction. In addition, FRA will and there have been no relevant specified in paragraph (b)(4). notify each public authority if a relevant collisions at any public grade crossing Paragraph (b)(4) addresses the actions collision occurred at a grade crossing within the quiet zone for the last five that need to be taken by the public within the quiet zone during the years. Paragraph (a)(2)(ii) requires that authority to retain a quiet zone. This preceding calendar year. the public authority must, within three paragraph, which governs Pre-Rule Paragraph (b)(2) addresses how the years after FRA notification, complete Quiet Zones, is similar to paragraph Quiet Zone Risk Index affects Pre-Rule implementation of SSMs or ASMs (a)(2) which governs such situations Quiet Zones which were approved sufficient to reduce the Quite Zone Risk involving New Quiet Zones. Paragraph under § 222.41(a)(2)—those quiet zones Index to a level at, or below, the (b)(4)(i) provides that if the public which qualified because their Quiet Nationwide Significant Risk Threshold authority wishes to retain the quiet Zone Risk Index was at, or below, the or to a level that fully compensates for zone, it must take certain actions during Nationwide Significant Risk Threshold. the absence of the train horn. Of course, the six month period following Paragraph (b)(2)(i) provides that the as in other provisions of this rule, safety notification by the FRA of the most quiet zone may continue if the Quiet measures other than implementation of recent Quiet Zone Risk Index. The Zone Risk Index, as last calculated by SSMs at every public crossing require public authority must provide to the FRA, continues to be at, or below, the approval by the Associate Associate Administrator a written Nationwide Significant Risk Threshold. Administrator. commitment to lower the potential risk Paragraph (b)(2)(ii) addresses the Rather than reducing the Quiet Zone to the traveling public at the crossings situation which occurs if the annual risk Risk Index to a level at, or below, the within the quiet zone, by reducing the review indicates that the Quiet Zone Nationwide Significant Risk Threshold, risk level to a level below the Risk Index is above the Nationwide the public authority may decide that it Nationwide Significant Risk Threshold Significant Risk Threshold, but is less is more effective to reduce the risk level or to a level fully compensating for the than twice the Nationwide Significant to a level that fully compensates for the absence of the train horn. As part of this Risk Threshold. In this situation, the absence of the train horn. If this action commitment, the public authority must quiet zone may continue only if there is taken, the quiet zone will be provide a discussion of the specific have not been any relevant collisions at considered to have been established steps the authority plans to take to public grade crossings within the quiet pursuant to § 222(a)(3) and subsequent increase safety at the crossings within zone for five years preceding the annual annual risk reviews will not be the quiet zone. Taking these actions will risk review. That is, a Pre-Rule Quiet conducted, although the quiet zone, like preserve the quiet zone for three years Zone initially established on the basis all quiet zones, is subject to reviews at from the date of FRA notification— that the Quiet Zone Risk Index fell the initiative of FRA. If either of the sufficient time for the public authority below the NSRT may be continued actions specified by paragraph (b)(4) are to implement safety measures at the without further action by the public not taken, the quiet zone will terminate quiet zone. authority only if it would have initially six months after the date of notification Paragraph (b)(4)(ii) requires that the qualified based on the no relevant from FRA. public authority must, within three accident criterion and only if the quiet Paragraph (b)(3) governs annual risk years after FRA notification, complete zone has been free of relevant collisions reviews of risk levels at crossings within implementation of SSMs or ASMs thereafter. quiet zones established under sufficient to reduce the Quiet Zone Risk Paragraph (b)(2)(iii) addresses the § 222.41(a)(3)—quiet zones which Index to a level below the Nationwide situation in which the conditions for originally qualified for automatic Significant Risk Threshold or to a level continuation of a quiet zone under approval because the Quiet Zone Risk that fully compensates for the absence (b)(2)(ii) do not apply, resulting in the Index was below twice the Nationwide of the train horn. As in other provisions quiet zone will terminating six months Significant Risk Threshold and no of this rule, safety measures other than after receipt of notification from FRA of relevant collisions had occurred within implementation of SSMs at every public the Nationwide Significant Risk the five year qualifying period. crossing require approval by the Threshold. Explained differently, if the Paragraph (b)(3)(i) provides that a quiet Associate Administrator. Quiet Zone Risk Index is at, or above zone may continue unchanged if the Paragraph (b)(4)(iii) provides that twice the Nationwide Significant Risk Quiet Zone Risk Index as last calculated failure of the public authority to comply Threshold, the quiet zone will terminate by FRA remains below twice the with paragraph (a)(1) (commitment to six months after receipt of FRA’s Nationwide Significant Risk Threshold lower the risk level) shall result in the notification. Similarly, if the Quiet Zone and no relevant collisions occurred at a termination of the quiet zone six months Risk Index is above the Nationwide public grade crossing within the quiet after the date of receipt of notification Significant Risk Threshold but is lower zone during the preceding calendar from FRA of the Quiet Zone Risk Index.

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This paragraph also provides that failure crossing or quiet zone could pose such use of a new SSM, notice of that of the public authority to comply with an imminent hazard that such a approval will be published in the paragraph (a)(2) (implementation of protracted process may be contrary to Federal Register. Paragraph (d) has been safety measures) shall result in the public safety. Thus, paragraph (c) makes revised to provide that the Associate termination of the quiet zone three years clear that the paragraph is not intended Administrator may impose any after the date of receipt of notification to limit the Administrator’s emergency conditions or limitation on use of the from FRA. order authority under 49 U.S.C. 20104 SSMs which the Associate Paragraph (c)—Review at FRA Initiative and 49 CFR part 211. That statutory Administrator deems necessary in order authority provides the Administrator to provide the level of safety at least Paragraph (c) provides that the authority to immediately issue equivalent to that provided by the Associate Administrator may, at any emergency orders ‘‘when an unsafe locomotive horn. The standard of a level time, review the status of any quiet condition or practice, or a combination of safety ‘‘at least equivalent to that zone. This section is included in the of unsafe conditions and practices, provided by the locomotive horn’’ is rule to enable the Associate causes an emergency situation involving more appropriate and consistent with Administrator to deal with unforeseen a hazard of death or personal injury.’’ the rest of the rule than the former safety situations which may arise in the standard of ‘‘the highest level of safety.’’ Paragraph (d)—Public Authority future. Under this provision, if the Paragraph (d) has also been revised to Responsibility Associate Administrator makes a provide that the Associate preliminary determination that safety Paragraph (d) provides that if a quiet Administrator, rather than approving a systems and measures do not fully zone is terminated under a provision of proposed safety measure as an SSM, compensate for the absence of the this section, the public authority has the may approve it as an ASM. locomotive horn, or that there is responsibility to notify all parties listed Paragraph (b) provides that interested significant risk with respect to loss of in § 222.43(a) of the termination. The parties may demonstrate proposed new life or serious personal injury, (e.g., if manner of such notification shall be in SSMs or ASMs to determine if they are the collision history in the quiet zone accordance with § 222.43(a). an effective substitute for the indicates that removal of the train horn locomotive horn in the prevention of has resulted in a dramatically higher Paragraph (e)—Railroad Responsibility highway-rail grade crossing casualties. than expected increase in risk similar to Paragraph (e) provides that upon Paragraph (c) provides that the the FEC experience) he or she will notification from either the public Associate Administrator may order provide a written notice of that authority, or from FRA, that the quiet railroad carriers operating over a determination to the public authority zone is being terminated, the railroads crossing or crossings to temporarily and other parties originally provided shall, within seven days, sound the cease the sounding of locomotive horns notice under § 222.43. FRA appreciates locomotive horn when approaching and the comment of the MDEC which at such crossings to demonstrate passing through all public highway-rail proposed new SSMs or ASMs. This pointed out that the original language in crossings within the former quiet zone. proposed § 222.39(d) limited actual paragraph reflects statutory language notice of such preliminary Section 222.53 What Are the and requires that proposed new SSMs determination to the public authority. Requirements for Supplementary and (and ASMs) have been subject to prior MDEC commented that limiting notice Alternative Safety Measures? testing and evaluation before such an of FRA’s preliminary determination to This section, through reference to order is issued. The Administrator’s publication in the Federal Register is Appendices A and B, lists acceptable order to the railroads to temporarily insufficient. Accordingly, FRA has SSMs and ASMs. Paragraph (a) states cease sounding of horns may contain modified the notification procedures to that approved SSMs are listed in any conditions or limitations deemed include notification of those parties Appendix A, while paragraph (b) states necessary in order to provide the originally receiving notification of the that Appendix B lists those ASMs that highest level of safety. These provisions establishment of the quiet zone under may be included in a request for FRA provide an opportunity for the testing § 222.43. approval of a quiet zone under and introduction of new grade crossing The Associate Administrator will also § 222.39(b). safety technology which would provide publish a notice in the Federal Register. Paragraph (c) states that standard a sufficient level of safety to enable The public authority and other traffic control device arrangements such locomotive horns to be silenced. interested parties will have the as reflectorized crossbucks, STOP signs, Paragraph (d) provides that upon the opportunity to provide comments to the flashing lights, or flashing lights with successful completion of a Associate Administrator before any gates that do not completely block travel demonstration of proposed SSMs or action is taken by the Associate over the line of railroad, or traffic ASMs, interested parties may apply for Administrator. After the comment signals are not considered SSMs or their approval. This section requires period, the Associate Administrator may ASMs. This provision is consistent with certain information to be included in require that additional safety measures the statutory definition of an SSM (49 every application for approval. be taken or that the quiet zone be U.S.C. 20153(a)(3)). Paragraphs (e) and (f) provide that if terminated. If the public authority the Associate Administrator is satisfied wishes the decision to be reconsidered, Section 222.55 How Are New that the proposed SSM fully it may petition the Associate Supplementary Safety Measures compensates for the absence of the Administrator for reconsideration under Approved? locomotive horn, its use as an SSM the provisions of § 222.57(b). Upon the This section addresses the manner in (with any conditions or limitations filing of such a petition, the Associate which new SSMs are demonstrated and deemed necessary) will be approved Administrator will give the petitioner an approved for use. This section is similar and it will be added to Appendix A. opportunity to submit additional to the NPRM’s proposed § 222.43, with Rather than approving the proposed materials and an opportunity for an three exceptions. Paragraph (e) has been safety measure as an SSM, the Associate informal hearing. Although very revised to provide that when the Administrator may approve it as an unlikely, conditions at any particular Associate Administrator approves the ASM. The applicant is notified and a

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notice of such approval is published in must specify the grounds for the Appendices A and B the Federal Register. requested relief, be filed within 60 days Appendix A lists those SSMs which Paragraph (g) provides an opportunity of the decision to be reconsidered, and FRA has determined effectively to appeal a decision of the Associate be served upon all parties identified in compensate for the lack of a locomotive Administrator for Safety. The party § 222.43 (a). The Associate horn. Because each SSM in this applying for approval of an SSM or Administrator will then provide the appendix fully compensates for the lack ASM may appeal to the Administrator a petitioner an opportunity to submit of a locomotive horn, a quiet zone may decision by the Associate Administrator additional materials and an opportunity be established without specific FRA rejecting a proposed SSM or ASM or the for an informal hearing. Upon review of approval. Appendix B lists those ASMs conditions or limitations imposed on its the additional materials and completion which may compensate for the lack of use. of any hearing requested, the Associate a locomotive horn depending on the Section 222.57 Can Parties Seek Administrator will issue a decision on extent of implementation of the safety Review of the Associate Administrator’s the petition. This decision will be measure. Because of the many possible Actions? administratively final. variations, FRA acceptance of the proposed implementation plan is This new section has been added to Section 222.59 When May a Wayside required. The introduction to Appendix explicitly detail the right of parties to Horn Be Used? seek review of the Associate A discusses the issues and actions that Administrator’s actions. Paragraph (a) The effectiveness of wayside horns as State and local governments should be addresses decisions by the Associate compensating for the lack of a aware of in determining how to proceed Administrator granting or denying locomotive horn has been addressed in implementing quiet zones. It is meant approval of a new SSM or ASM under earlier in this notice. This section to assist in the community’s decision- § 222.55. A public authority or other addresses the circumstances in which making process in determining whether interested party may petition the wayside horns may be used in lieu of to designate a quiet zone under Administrator for review of a decision the locomotive horn. § 222.39(a) or to apply for approval of a by the Associate Administrator quiet zone under § 222.39(b). Paragraph (a) provides that a wayside approving or denying such an Appendix A application. This paragraph requires horn conforming to the requirements of that the petition be filed within 60 days Appendix E may be used in lieu of a This Appendix lists those SSMs of the decision to be reviewed. The locomotive horn at any highway-rail which FRA has determined effectively petition must specify the grounds for grade crossing equipped with an active compensate for the lack of a locomotive the requested relief, and be served on all warning system consisting of, at a horn. Included in the discussion of each parties identified in § 222.43(a) (all minimum, flashing lights and gates. SSM is an ‘‘effectiveness’’ figure for that railroads operating over the public Thus, installation of wayside horns are measure. That figure indicates the highway-rail grade crossings within the not limited to quiet zones, but may be effectiveness of the SSM in reducing the quiet zone, the highway or traffic used at any grade crossing equipped probability of a collision at a highway- control authority or law enforcement with at least gates and lights. rail grade crossing. authority having control over vehicular Paragraph (b) addresses use of As discussed earlier, effectiveness traffic at the crossings within the quiet wayside horns within quiet zones. rates are based on actual experience zone, the landowner having control over Wayside horns conforming to the showing how much each SSM has any private crossings within the quiet requirements of Appendix E may be reduced the probability of a collision. The issue of what should constitute an zone, and the State agency responsible installed within a quiet zone. FRA is SSM or ASM generated a number of for highway and road safety). Filing of fully aware that in one sense, the comments to the NPRM. Generally, a petition under this paragraph does not purpose of a quiet zone may be communities expressed displeasure stay the effectiveness of the action considered to be defeated if horns still with the proposed list of SSMs. sought to be reviewed unless the sound to indicate the approach of a Administrator specifically provides Railroads, however, expressed general train, irrespective of whether the horn is otherwise and either gives notice to the satisfaction with the suggested SSMs. stationary or is located on a locomotive. petitioner or publishes a notice in the The majority of public comments However, the choice is left up to the Federal Register to that effect. The focused on communities’ dissatisfaction Administrator may reaffirm, modify, or public authority. That entity may find with the proposed SSMs because they revoke the decision of the Associate the wayside horn, with a horn sounding are thought to be: (1) Prohibitively Administrator without further in a less obtrusive manner, to be expensive to implement; (2) proceedings and shall notify the preferable to installation of SSMs. The impracticable, unfeasible or petitioner and other interested parties in presence of a wayside horn will be inapplicable to their particular writing or by publishing a notice in the considered to be the same as a crossing community’s street grid; and (3) Federal Register. treated with an SSM in determining the incompatible with the three-year Paragraph (b) addresses reviews of length of a quiet zone. Thus, a crossing implementation period proposed in the decisions by the Associate equipped with a wayside horn may be NPRM. The cost of installation and Administrator: denying an application in the middle of a one-half mile long maintenance is of particular concern to for approval of a quiet zone; requiring quiet zone without jeopardizing the communities. State Senator Patrick J. additional safety measures at crossings establishment of the quiet zone. In those O’Malley of Illinois predicted that the within a quiet zone; or terminating a situations in which the Quiet Zone Risk cost of installing SSMs will be quiet zone. This paragraph provides that Index must be calculated, any grade ‘‘enormous.’’ Selectman Attillio Paglia a public authority may challenge a crossings equipped with a wayside horn from the Town of Rawley, decision by the Associate Administrator shall not be included in such Massachusetts expressed displeasure in the above situations by filing a calculations. The risk level will thus be that local funds would have to be spent petition for reconsideration with the determined by the average risk level at implementing expensive SSMs instead Associate Administrator. The petition the remaining crossings. of funding other local concerns such as

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schools, libraries and police stations. of flexibility to the community. The moved photo enforcement to the The General Manager of Pioneer Valley public authority is best suited to category of Alternative Safety Measures. Railroad in Westfield, Massachusetts determine which SSM is appropriate for Several communities such as Arvada, noted that while the SSMs will be a specific crossing. That body, will, in Colorado; Brighton, Colorado; Fort installed at the cost of the community, addition to considering cost, consider Collins, Colorado; Wichita, Kansas; they will be maintained by the railroads. other factors as well: physical Manchester by the Sea, Massachusetts; A representative of BLAST (Beverly limitations at the crossing; aesthetics; Northfield, Minnesota; Roseville, [Massachusetts] Lobbying Against maintenance costs; and acceptance of a California; and Madison, Wisconsin Sounding of Train Horns) recommends specific safety measure by the State. suggested adding the following to the that any Federal or State funding for FRA believes that providing public list of SSMs in order to add flexibility new or improved crossings have a authorities with the choice of and reduce installation costs: (1) stipulation requiring an SSM at each implementing SSMs or alternative Wayside horns, (2) longer gates that crossing. measures, the choice of which measures cover the entire road, (3) placing Some communities were dissatisfied to implement within those categories, lighting on trains similar to that of with the proposed list of SSMs because and in many circumstances, the choice emergency vehicles, and (4) articulated the available options are claimed to be of which crossing to improve in order to gates. As noted elsewhere in this rule, too limited, since, it is argued, only one bring the quiet zone’s risk level into the wayside horns are acceptable substitutes or two of the SSMs may be applicable acceptable range, provides an almost for the locomotive horn under the to a particular community. For example, unlimited range of choices and thus a provisions of § 222.59. Long gates that State Representative Michael Festa from vast range of potential costs. FRA notes cover the entire road are acceptable in the City of Melrose in Massachusetts that the estimates of the cost of SSMs in one-way street situations. See Appendix noted that many of crossings in his the Chicago Region made by various A. FRA is not at this time aware of non- district are very busy commuting streets parties during the NPRM comment articulated gates that extend over two that are perpendicular, which makes period were notably unrealistic and opposing lanes of traffic, and it would some SSMs unfeasible. Likewise, were based on the most expensive not appear prudent to use such an Councilman Doyle Slater of LaGrand, scenario of four-quadrant gates at every arrangement in most cases given the Oregon noted that photo enforcement, crossing and construction costs based potential to entrap vehicles between the one way streets, nighttime closures and on the invalid assumption that each gates. FRA has explored the use of articulated gates that would descend medians are not practical at many crossing would be upgraded from no crossings. Moreover, communities in from a single apparatus to block the warning system to four-quadrant gates. Illinois, as expressed by the approach to the crossing in the normal Commissioner of Chicago’s Department The AAR has emphatically stated its direction of travel and continue down to of Transportation, have fewer options to position that locomotive horns should block the exit lanes from the crossing choose from because many of the only be banned at crossing that have (on one or both sides). As stated in the prescribed SSMs are not feasible or legal sufficient safety devices to substitute for NPRM, ‘‘such articulated gates appear in Illinois. Megan Swanson, a Planning the audible warning. In the view of the to be particularly attractive for two-lane Coordinator for the West Central AAR, ‘‘engineering’’ methods, such as roads where the highway-rail crossing is Municipal Conference, stated that only four-quadrant gates and closures can be at a sufficient distance from other one way streets or closures were effective substitutes for the sounding of intersections or obstructions that could applicable. An extreme case is that of horns, while the use of ‘‘non- cause traffic to back up on the crossing. the village of Hinsdale, Illinois, where engineering’’ SSMs like photo In principle, such gates should have the the President of the village, opined that enforcement, programmed enforcement, same effectiveness as other four- no SSM is possible within village limits. public awareness and education are not quadrant gate arrangements.’’ While use Illinois had particular problems with appropriate. The AAR submits that of such gates has been studied, it is the proposed SSMs because, as noted by these non-engineering measures do not apparent that they have not yet reached the Village of Winfield, the Illinois provide assurance that they sustain the a stage of reliability such that they Commerce Commission (ICC) did not same level of safety as a locomotive would be an acceptable SSM. FRA will approve the use of four-quadrant gates horn. In contrast to the AAR’s stance, continue to monitor their development or photo enforcement at crossings, METRA’s chairman suggested that non- for future acceptance as an SSM. thereby further limiting the options engineering measures such as advanced The use of longer gate arms has also available to communities. See train alert technology, grade separation been considered during the rulemaking. discussion under ‘‘Chicago Region’’ projects, stricter enforcement penalties, Longer gate arms extend beyond the above for general responses to concerns and public awareness education projects centerline of the roadway and block a related to Illinois practice. are more effective and a less expensive portion of the opposing lane of traffic. In the NPRM, and to an even greater way to improve crossing safety than This application differs from the long extent in this Interim Final Rule, FRA engineering methods. FRA has gate arms previously discussed which has provided flexibility to public considered AAR’s view along with those extend completely across the roadway authorities in the selection of SSMs to comments supporting the use of such in that the longer gate arms do not be used at crossings within a non-engineering safety measures. Such completely block the lane of a vehicle community. There are, of course, wide safety measures are only acceptable exiting from the crossing. The opening variations in costs between, for when they have resulted in documented that is left between the end of the gate example, four quadrant gates and reduction in traffic law violation rates at arm and the curb would allow room for medians. Because of those variations, crossings. In such cases, their efficacy in a vehicle to exit the crossing without and variations in the ability of reducing risk has been shown. Further becoming trapped on the crossing. The communities to pay for various monitoring of such reductions will help longer gate arms would make it more improvements, and physical limitations to ensure that they remain effective. difficult for a motorist to drive around at certain crossings limiting options, However, FRA agrees that photo the lowered gate arms. At this time there FRA crafted the NPRM and this Interim enforcement requires scrutiny on a have been few test installations of this Final Rule to provide the greatest level location-specific basis and has therefore technology, and FRA does not feel that

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there is enough experience with longer would entirely eliminate the need for gates. This overall sentiment was gate arms to include them as an SSM at horns to sound. echoed by the Missouri Division of this time. FRA will continue to monitor The AAR expressed concern regarding Motor Carrier and Railroad Safety, their development for future acceptance the potential confusion that would which objected to the term ‘‘blocked as an SSM. FRA is also aware of a occur if States and localities adopt crossing’’ being used to describe the 4Q manufacturer that has developed a gate different closure periods. Different system because the gates only ‘‘greatly arm that telescopically extends beyond closure times would mean that deter’’ a driver and do not totally the centerline and is equipped with a engineers would have to know each impede a vehicle or pedestrian from sensing mechanism which will stop the crossing’s closing period, thus placing crossing the gated tracks. The New extension if it encounters an obstacle. an extra burden on the engineer. Jersey Department of Transportation This technology has potential to be Therefore, the AAR recommended that suggested that all traffic signals within considered as an SSM but has yet to be the FRA establish uniform closure 200 feet be equipped with preemption field tested. FRA will also monitor this periods for every day of the week. circuitry. technology. Additionally, the AAR recommended Most States and communities, like California PUC’s Rail Safety and that the FRA require barriers that cannot Moorhead, Minnesota, were particularly Carrier Division advised that each be moved by the public and cannot be concerned with the danger of a car crossing in a quiet zone should be crossed by automobile or pedestrian getting trapped within the gates on the equipped with ‘‘Remote Health traffic. A comment by Wichita, Kansas tracks. Robert Guttman, a top official on Monitoring.’’ Missouri’s Division of took into account the possible side the MBTA Advisory Board believes that Motor Carrier and Railroad Safety stated effects of temporary closures. They quadrant gates should be outfitted with that each SSM should have constant noted that temporary closures may a safety mechanism to prevent vehicles warning time with redundancy. We note result in drivers speeding to beat the from being trapped. Another safety that the rule requires that all active closure time. They were also concerned measure that communities would like to grade crossing warning devices in New about the possibility of disrupting see is constant warning time circuitry. Quiet Zones be equipped with power- emergency vehicle service routes. The AAR points out, however, that this out indicators (defined to include FRA does not view the temporary system may be impractical at crossings remote health monitoring that includes closure as a solution for every crossing with three or more tracks. reporting exceptions to primary power in every situation. Commenters are One of the most controversial issues status) and (with limited exceptions) indeed correct that in some situations centered on whether to have the four- constant warning time devices. See temporary closures are impractical. quadrant gates programmed to stay up § 222.35(b). However, temporary closures can in or down during a failure of the system. FRA received a large number of some circumstances provide a legitimate Concerned with safety, the North comments addressing specific SSMs. A alternative to other SSMs. This Carolina DOT clearly stated that gates brief summary of comments received alternative is but one among a number should always fail in the down position. follows. of choices available to public authorities This position was supported by a study in developing quiet zones. FRA believes conducted in conjunction with Norfolk Temporary Closure of a Public that the MUTCD provides appropriate Southern titled ‘‘Exit Gate-Arm Fail-Safe Highway-Rail Grade Crossing standards for barriers and that train Down Test.’’ The data provided Some communities expressed concern crews can become familiar with quiet evidence that fewer vehicles traveled with the temporary closure. The zone time periods. through a failed crossing when all the communities of Orlando Park and gates were in the down position than Four-Quadrant Gate System Wilmette, both in Illinois, viewed when one or more of the gates were in closures as impractical or not feasible. Comments on the four-quadrant gate the upright position. Communities and Community representatives argued that system (‘‘4Q system’’) centered on its their representatives disagree; for most crossings are major thoroughfares, cost, potential for failure, and example, Illinois State Representative and thus closing a crossing would have dangerousness. The FRA did receive Eileen Myins stated, ‘‘What will they do a serious impact on traffic patterns. praise on this proposed SSM from some, when double gates malfunction, and Jeffrey Smelty, chairman of the including the Washington Department there is no way around them?’’ Gate Executive Committee of the Chicago of Transportation, which stated that the failure appears to be a ‘‘particularly Area Transportation Studies Council of proposal ‘‘indicated extensive thought bothersome’’ problem, as noted by Mayors, stated that closures are a and effort.’’ Others had problems with Massachusetts State Representative ‘‘viable option only in a few instances the 4Q system. The State of Illinois was Michael Cahill: ‘‘gates frequently of low volume roads.’’ The President of particularly concerned with the 4Q malfunction in the down position, the Village of Northbrook claims that system because the ICC did not allow resulting in motorists who leave their closing low volume crossings would for their use at highway-rail grade car, get on the track, and wave motorists have little effect on collisions since the crossings. The ICC had concerns about across the tracks because there is no low volume itself decreases the safety regarding trapped vehicles in the train approaching.’’ Mayor William statistical risk of an accident. Two crossing. Also, the ICC believes that it Scanlon of the city of Beverly in States, the Kansas DOT and Missouri will take more time than the FRA Massachusetts also reports frequent Division of Motor Carrier and Railroad estimates for vendors and railroads to incidents of failure where police have Safety commented that if a crossing can design, manufacture, and install the had to direct traffic around the gates. be temporarily closed part of the day, gates to meet all of the new demand. Therefore, these communities then it should be able to be closed Many comments provided suggestions recommended that the gates fail in the permanently. They were also concerned for improving the design of the 4Q upright position. with the potential for human error in system to make its overall functioning Another area of great concern with the closing and opening the roadway. In safer. The Florida Department of four quadrant gate system was the cost, contrast, the North Carolina DOT stated Transportation recommended that which Orlando Park, Illinois describes that overnight closures should be given median barriers of at least 100 feet be as ‘‘inordinately expensive.’’ A a preference in the rule because it required at crossings in addition to the representative of Chicago referred to a

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study done by the General Accounting about the use of constant warning time simply impracticable. Many Office, which stated that a single system devices in electrified territory and submissions, such as those from the equipped with sensors to detect trapped AAR’s concerns about three track Kansas Department of Transportation; cars could cost $1 million. The BRS crossings. Accordingly, FRA is requiring Chicago Department of Transportation; disagrees, estimating that vehicle constant warning time devices where Ipswich, Massachusetts; Edward Sirovy detection systems can be installed for reasonably practical. of the Dupage Railroad Safety Council; around $175,000. Gene Shannon of the Metropolitan Gates With Medians or Channelization Vehicle detection systems are used for Council of Governments; Wilmette, Devices a variety of purposes in traffic control Illinois; Mayor Jeffrey Smelty; Peter systems. They generally consist of In the NPRM, FRA proposed to Wells, City Attorney of Pendleton, inductive loops buried just beneath the require that gates with medians or Oregon; and Joan Johnson of BLAST, surface of the roadway to detect a metal channelization devices be considered noted that most of their crossings are mass over the location. Their cost will SSM if: opposing traffic lanes on both adjacent to a parallel highway vary depending upon the complexity of highway approaches to the crossing are intersection, making barriers unusable, the application. In pilot studies and separated either by medians bounded by especially if the required distance high-speed rail applications, costs of barrier curbs or medians bounded by remains 100 feet. These comments also four-quadrant gate installations with mountable curbs if equipped with noted that narrow roads would make complex vehicle presence detection channelization devices. FRA proposed installation of median barriers systems have approached $1 million; that such medians must extend at least impossible. Gene Shannon was however, it appears that much of this 100 feet from the gate, unless there is an particularly concerned that motorists cost has resulted from attempts to make intersection within that distance. If so, would be unable to access businesses if the circuitry fully fail-safe in nature. the median must extend at least 60 feet a median was installed. Communities Neither the MUTCD nor FRA from the gate, with intersections with located in the north said that medians regulations require that vehicle presence that 60 feet closed or moved. were not an option because they would detection function on a fail-safe or The median barrier option was given either prevent snow from being plowed closed circuit principle. Rather, in the positive comments by some, and off the road, or be inadvertently context of a four-quadrant gate system it constructive criticism by others. destroyed by the plow. appears that a reasonable design Communities commented that they can Another body of commentary focused objective would be a high degree of be impracticable, expensive, unsafe, and on the required length of the proposed reliability in detecting a motor vehicle. that the required median length is too medians. Most communities requested FRA believes that a typical installation long. Planning Coordinator of the West that the FRA shorten the requirement so should be feasible for costs in the range Central Municipal Conference, Megan that the barriers could be installed at of $175,000 to $250,000. Swanson and Mayor Jeffrey Smelty more locations. But the Florida FRA wishes to emphasize that use of pointed out that median barriers are Department of Transportation requested vehicle presence detection makes sense simply ‘‘aesthetically displeasing’’ or that the medians be mandated to be a only where there is reason to be have ‘‘aesthetic problems.’’ Orlando fixed height of nine inches and a length concerned about storage on the crossing Park, Illinois submitted that the of 200 feet, so that motorists would not due to cued traffic (normally as a result medians were ‘‘inordinately expensive.’’ drive around them. Of the commenters of nearby intersections). For instance, Several commentaries focused on the that believed medians should be shorter, the State of Florida has installed several possible safety hazards that may arise there was disagreement as to whether four-quadrant gate systems without when median barriers are installed. the length should be set or decided on vehicle presence detection along the Mayor William Scanlon of the City of a crossing by crossing basis. The Kansas Tri-Rail commuter line in south Florida. Beverly noted that fire apparatus would Department of Transportation stated, Those installations have functioned be inhibited when trying to pass ‘‘We encourage that the determination well. By contrast, FRA agrees that, at vehicles near the grade crossing of the length of median be made as a many Chicago Region crossings with medians. The New Jersey Department of crossing specific engineering decision nearby traffic signals and heavy traffic Transportation offered a possible and that the 100-foot distance is only a volumes, use of vehicle presence solution by suggesting that mountable recommended practice.’’ The Missouri detection to keep the exit gate arms up medians be installed to allow for Division of Motor Carriers submitted until all vehicles clear the track will be emergency vehicle access. The problem that a shorter median may be just as fully warranted. The question of with mountable devices, as the Florida effective as a longer one, and that a State whether the exit gates should fail up or and North Carolina DOTs point out, is level diagnostic team should assess the down has been resolved by amendments that they can be ‘‘high maintenance’’ particular length of each median. In to the MUTCD subsequent to the items, and may encourage drivers to contrast, Illinois ICC recommended that publication of the NPRM. These drive over the median. Others, such as FRA avoid arbitrary criteria for the amendments permit failure down only LCI Energy of Ipswich, Massachusetts, length and material of medians. in the presence of remote health were concerned about disabled vehicles FRA understands the point made by monitoring. and the driver’s ability to escape from many commenters that median length The AAR objected to FRA’s proposed the vehicle. Jefferson Parish, Louisiana may be substantially constrained by requirement that gates must be activated noted that medians may invite motorists roadway geometry. However, safety at by use of constant warning time devices. to make additional U-turns that they highway-rail crossings has already The AAR stated that ‘‘constant warning would not have otherwise made but for benefitted substantially from use of time devices are not always practical. their driveway being blocked. Another median arrangements at many crossings, For example, constant warning time safety concern brought up by David Bier and there is no reason not to fully devices may be impractical where three of LaGrange, Illinois, is that installing exploit this technique in support of or more tracks are located close to each barriers may create a secondary problem community quiet. Accordingly, FRA other. Thus, FRA should at most require of vehicles crashing into the medians. continues its approval of shorter constant warning time devices where The main body of commentary channelization arrangements and, in the practical.’’ FRA acknowledges concerns complained that median barriers are revised Appendix B, invites local

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authorities to provide estimates of economic effects may be unacceptable), need for regular monitoring drives its effectiveness that are reasonable could be useful in designing a quiet inclusion as an ASM rather than the considering the extent of deviation from zone and might help to serve other engineering solutions listed as SSMs. the nominal requirements of Appendix public purposes, such as providing Another concern expressed with A. additional on-street parking where photo enforcement (irrespective as to FRA agrees with the Florida DOT that current roadway width is a constraint whether it is an ASM or ASM) is that use of 200 foot medians will often be and addressing other local issues, such it not currently accepted in every State. recommended when practicable. as addressing particularly hazardous The Missouri Division of Motor Carrier However, FRA believes that the intersections for left turns. and Railroad Safety noted that it is not prescribed minimums of 100 and 60 feet permitted under present State law. The are consistent with the designated Photo Enforcement City Attorney of Pendleton, Oregon effectiveness rate. A public authority The comments regarding photo believes that the State constitution may that can show a higher effectiveness rate enforcement were generally negative. have to be amended to permit photo for longer medians may bring in that Most commenters objected to this either enforcement. Although not every State estimate for consideration under because it is not permitted in their State currently permits automated photo Appendix B. or because it is viewed as ineffective. enforcement, the trend is towards FRA also understands the conflict to California, Kansas and New Jersey greater acceptance of such methods for which traffic control authorities may be requested that the option be removed other traffic enforcement purposes. subject with respect to the appearance from the list because of its There is every reason to believe it can of channelization arrangements, but ineffectiveness. Additionally, there were work in the grade crossing law violation FRA does not believe that in the end complaints about the cost of photo context, especially when supported by aesthetics should be countenanced as a enforcement. public awareness efforts. It is true that bar to saving lives and preventing A significant objection expressed by some States will have to change their serious personal injury. FRA believes the Kansas DOT and the Massachusetts laws in order to take advantage of this that in many cases local public Executive Office of Transportation and alternative. FRA believes sufficient time authorities will utilize options such as Construction, is that photo enforcement has been built into the rule for that to using native stone or decorative simply does not provide a physical happen. It is important to note that use plantings to enhance the appearance of impediment to driving around gates and of photo enforcement, like every SSM median arrangements, as they have done does nothing to replace the audible and ASM, is voluntary. Thus, if a State in other settings. To the extent that warning provided by a locomotive horn. chooses not to provide for its use within roadway width does not allow for these While the deterrent effect is recognized, the State, other means for compensating treatments, and to the extent it is argued that it is minimal because, for the lack of a locomotive horn are channelization devices such as flexible as Nevada states, ‘‘It does not provide a available under this rule. delineators are viewed as unacceptable positive means of separating vehicles It is clear that the SSMs proposed in in a particular community, the and pedestrians from trains, as do other the NPRM do not receive universal incremental cost of alternative SSMs.’’ The AAR strongly opposes its acceptance among the commenters. arrangements should be evaluated as a use as an SSM, stating that ‘‘[t]he However, FRA remains convinced that cost of community beautification rather proposed non-engineering measures do the proposed SSMs are sound safety than as a cost of this rule. not provide assurance that they can strategies and provide a range of sustain the same level of safety as a realistic options from which One Way Street With Gates locomotive horn.’’ Using a speeding car communities can choose to meet their The use of one way streets with gates metaphor, Mayor Alisi, trustee of own needs. The ability to vary SSMs, received sparse comments, mostly Glencoe, pointed out that receiving a through the ASMs allowed by Appendix directed to their applicability. Illinois ticket is not a deterrent. Wichita, Kansas B, provides additional flexibility for ICC pointed out that the one way street categorized photo enforcement as an communities. is rarely, if ever acceptable to local ‘‘after the fact safety measure.’’ governments, because it would cause In contrast, the President of Traffipax, Effectiveness of Supplementary Safety major disruptions in traffic flow. The a supplier of photo enforcement Measures Missouri Division of Motor Carrier and equipment, submitted that photo The effectiveness (see definition of Railroad Safety and the Chicago enforcement is very effective, citing a 40 effectiveness rate in § 222.9) figures Department of Transportation noted that percent reduction in violation rates, discussed for each SSM are based on there is limited applicability to most even when dummy cameras are available empirical data and experience roads without violating traffic installed along with real cameras. with similar approaches. The engineering practices. This option is Another benefit that he mentioned is effectiveness figures used in Appendix considered safe, however, as noted by that the photos provide a record of A are subject to adjustment as research the BRS, who strongly support the conditions and history of violations at a and demonstration projects are option. given crossing. Supporting this view is completed and data is gathered and FRA notes that, despite the Dan Lauzon, first vice-chairman of the refined. FRA is using these estimates as protestations of several commenters, use BLE Massachusetts Legislative Board, benchmark values to determine the of one-way streets in American cities who noted that motorists are ‘‘angelic’’ effectiveness of an individual SSM and and towns is quite substantial and that, when they know they are being watched the combined effectiveness of all SSMs without further use of unidirectional by cameras. along a proposed quiet zone. traffic flows, attention to engineering of Based on the comments and FRA’s FRA’s final study of train horn existing locations would permit credit own review, photo enforcement has effectiveness indicated that collision to be taken for this SSM at very low been redesignated as an ASM rather probabilities increase an average of 66.8 cost. FRA further notes that new one- than an SSM. FRA has been persuaded percent when horns are silenced at way traffic patterns, if applied to that photo enforcement more crossings with flashing lights and gates. residential and industrial areas (not appropriately belongs in the listing of As such, the SSM should have an including retail commercial areas where ASMs. Its non-engineering nature and effectiveness of at least .40 (reducing the

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probability of a collision by at least 40 information is disseminated) and those crossings or grade separations for the percent) in order to compensate for this who are particularly inclined to purpose of estimating risk following the 66.8 percent increase. For example, if a violation of traffic laws. As such, for law silencing of train horns, unless the select group of 1,000 crossings is enforcement, education/awareness and particular ‘‘closure’’ was accomplished expected to have 100 collisions per year photo enforcement options the rate of by a grade separation. with train horns being sounded, this violations must be reduced 78 percent 2. Four-Quadrant Gate System same group of crossings would be in order to determine the effectiveness expected to have 167 collisions per year value for the ASM. A four-quadrant gate system involves once the train horn is banned if no other In contrast, engineering the installation of gates at a public safety measures are implemented and improvements such as those described highway-rail grade crossing to fully other factors remain unchanged. in Appendix A appear to work in block highway traffic from entering the Conversely, if these same crossings were synergy with existing warning systems crossing when the gates are lowered. experiencing 167 collisions per year to condition and modify motorist This system includes at least one gate while the horn was banned, it would be behavior, reducing both the number of for each direction of traffic on each expected that this number would reduce violations and the number of very close approach. A four quadrant gate system to 100 once use of the horn is re- calls (violations within a few seconds of is meant to prevent a motorist from instituted. This would equate to an the train’s arrival). Four-quadrant gates entering the oncoming lane of traffic to effectiveness of 67/167, or .40. installed to date, for instance, appear to avoid a fully lowered gate in the FRA is aware this figure is an average, have been almost completely successful motorist’s lane of traffic. Because an but it has the benefit of reflecting the in preventing collisions. Although we additional gate would also be fully broadest range of exposure available to would not expect this extraordinarily lowered in the other lane of the road, the agency. FRA is willing to consider high level of success to be sustained the motorist would be fully blocked well founded arguments that train horn over a broader range of exposure, from entering the crossing. effectiveness is heightened or reduced excellent results would be expected. FRA is requiring that all four- under specific circumstances. However, Accordingly, for engineering quadrant gate systems conform to the any such argument would need to be improvements contained in Appendix standards contained in Part 8, Section grounded in sound data and analysis. A, this rule adopts estimates of success D.05 (‘‘Four-Quadrant Gate Systems’’) of This could potentially create significant drawn from carefully monitored studies the MUTCD. These standards were difficulty in administration of the rule, of individual crossings. added by FHWA to the MUTCD since historic collision patterns over a subsequent to publication of the NPRM. 1. Temporary Closure of a Public small number of crossings are not, by Because four quadrant gates would be Highway-Rail Grade Crossing themselves, meaningful predictors of used at crossing where horns are not future exposure. This SSM has the advantage of sounded, FRA is requiring the following Much of the data available today to obvious safety and thus will more than in addition to the MUTCD requirements. evaluate the effectiveness of SSMs compensate for the lack of a locomotive a. When a train is approaching, all reflect the reduction in violation rates, horn during the periods of crossing highway approach and exit lanes on not collision rates. (Collisions are rare, closure. The required conditions for both sides of the highway-rail crossing and determination of a collision rate closure are intended to ensure that must be spanned by gates, thus denying reduction for any one SSM requires long vehicles are not able to enter the to the highway user the option of term data collection.) Only one study (in crossing. In order to avoid driver circumventing the conventional Los Angeles) has contrasted collision confusion and uncertainty, the crossing approach lane gates by switching into rates with violation rates, and out of must be closed during the same hours the opposing (oncoming) traffic lane in necessity (until additional data are every day and may only be closed order to enter the crossing and cross the available), this finding is used in these during one period each 24 hours. FRA tracks. analyses. In the Los Angeles believes that such consistency will b. Crossing warning systems must be demonstration it was noted that a avoid unnecessary automobile-to- activated by use of constant warning carefully administered and well automobile collisions in addition to time devices unless existing conditions publicized program of photo avoiding collisions with trains. at the crossing would prevent the proper enforcement reduced violation rates by Activation and deactivation of the operation of the constant warning time 92 percent, while collisions were system is the responsibility of the public devices. FRA has been made aware that reduced by only 72 percent. This ratio, authority responsible for maintenance of constant warning devices may not work 72:92 or .78, is being used to adjust the street or highway crossing the properly under certain circumstance violation rate reductions in order to railroad. Responsibility for activation such as in electrified territory. If estimate resultant reductions in and deactivation of the system may be conditions exist that would not allow collision rates for law enforcement, contracted to another party, however, constant warning time systems to work education/awareness and photo the appropriate public authority shall as intended, other appropriate types of enforcement options described in remain fully responsible for compliance control circuitry may be used. Constant Appendix B. Violations that result in with the requirements of this section. In warning time devices are not required to collisions constitute a small subset of all addition, the system must be tamper be added to existing warning systems in violations. It is reasonable to infer that and vandal resistant to the same extent Pre-Rule Quiet Zones. However, if education and legal sanctions may lack as other traffic control devices. warning systems in Pre-Rule Quiet effectiveness for several segments of the Effectiveness: Because an effective Zones are upgraded, or new warning population, including those who do not closure system prevents vehicle systems are installed, constant warning become aware of the countermeasures entrance onto the crossing, the time devices are required. (e.g., because they are not residents of probability of a collision with a train at c. Crossing warning systems must be the area, do not follow public affairs in the crossing is zero during the period equipped with power-out indicators. the media, or are difficult to reach the crossing is closed. Effectiveness Power-out indicators are not required to because they are not fluent in English or would equal 1. However, traffic would be added to existing warning systems in other principal languages in which need to be redistributed among adjacent Pre-Rule Quiet Zones. However, if

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warning systems in Pre-Rule Quiet installation of traffic channelization the railroad community as a liability Zones are upgraded, or new warning increases the effectiveness of the four risk), it also allows the possibility that systems are installed, power-out quadrant gates and should be some motorists will follow violators indicators are required. considered when looking at situations through the crossing in a steady stream, d. The gap between the ends of the where it appears that motorists may be defeating the intended warning. entrance and exit gates (on the same tempted to circumvent the warning Accordingly, where traffic side of the railroad tracks) when both devices. channelization is not provided to are in the fully lowered, or down, i. Remote monitoring (in addition to prevent this pattern, we assume a lower position must be less than two feet if no power-out indicators, which are effectiveness rate. FRA estimates that median is present. If the highway required) of the status of these crossing four-quadrant gates with presence approach is equipped with a median or systems is preferable. This is especially detection, but without traffic a channelization device between the important in those areas in which channelization, would have an approach and exit lanes, the lowered qualified railroad signal department effectiveness rate of approximately .77. gates must reach to within one foot of personnel are not readily available. By contrast, where four-quadrant the median or channelization device, Effectiveness: gates are supplemented by lengthy measured horizontally across the road FRA estimates effectiveness as traffic channelization to discourage the from the end of the lowered gate to the follows: violation minded driver, the use of Four-quadrant gates only, no presence median or channelization device or to a presence detection should make little or point over the edge of the median or detection: .82. Four-quadrant gates only, with no difference in the safety effectiveness channelization device. The gate and the of the arrangement. The North Carolina median top or channelization device do presence detection: .77. Four-quadrant gates with medians of demonstration showed that, when the not have to be at the same elevation. four-quadrant gate installation was e. ‘‘Break-away’’ channelization at least 60 feet (with or without presence detection): .92. supplemented by medians devices must be frequently monitored to (channelization devices) of at least 50 replace broken elements. The estimate of .82 for free-standing feet on each highway approach, the Additionally, FRA is recommending four-quadrant gates (no medians and no crossing experienced a 97 percent drop that new installations conform to the presence detection) is a highly following: conservative figure involving a discount in violations. Again applying a discount f. Gate timing should be established from documented experience. As noted to this illustration, FRA estimates an by a qualified traffic engineer based on above, four-quadrant gates installed in effectiveness rate of .92 for four- site specific determinations. Such the United States thus far have been quadrant gates with traffic determination should consider the need highly successful. North Carolina channelization of reasonable length. for and timing of a delay in the descent Department of Transportation (NCDOT) It is important to re-emphasize that of the exit gates (following descent of conducted a pilot study of a four use of data regarding violations to the conventional entrance gates). quadrant gate system at the Sugar Creek estimate collision risk itself involves Factors to be considered may include Road crossing in Charlotte, NC. some hazard that effectiveness will be available storage space between the Following installation of the four over- or under-estimated. FRA believes gates that is outside the fouling limits of quadrant gates, the number of violations that the likelihood is that these the track(s) and the possibility that fell by 86 percent. Traffic estimates for four-quadrant gates are traffic flows may be interrupted as a channelization was added later to the conservative, not only because of the result of nearby intersections. It should four quadrant gates, reducing violations excellent effectiveness of in-service be noted that the MUTCD recommends to an even greater extent, by 97 percent. four-quadrant installations, but also that exit gates should fail in the ‘‘up’’ During the test, the train horn was also because of the North Carolina findings. position unless a traffic engineering sounding. To account for any In the North Carolina observations, as study indicates otherwise. complementary effects of the train horn, the number of violations decreased, the g. A determination should be made as FRA uses more conservative average number of seconds prior to to whether it is necessary to provide effectiveness rates of 82 percent and 92 arrival of the train also significantly vehicle presence detectors (VPDs) to percent for four quadrant gates without increased (predicting that collisions open or keep open the exit gates until and with medians, respectively. might fall off at a faster rate than all vehicles are clear of the crossing. Four-quadrant gate installations violations). The effectiveness of four- VPDs should be installed on one or both undertaken thus far in the United States quadrant gates may thus be higher than sides of the crossing and/or in the have generally not employed vehicle the range stated above, both with and surface between the rails closest to the presence detection (VPD). However, without medians and with presence field. Among the factors that should be some future installations will detection. considered are the presence of incorporate this feature to ensure It is also true that a variety of intersecting roadways near the crossing, coordination with other traffic signals applications for these systems may the priority that the traffic crossing the and for other purposes. For instance, result in a variety of effectiveness rates. tight geometry may not allow for any railroad is given at such intersections, 3. Gates With Medians or storage space within the gates should the types of traffic control devices at Channelization Devices those intersections, and the presence queuing of traffic at a STOP sign on one and timing of traffic signal preemption. side of the crossing prevent prompt Keeping highway traffic on both h. Highway approaches on one or clearance by a motor vehicle. In such highway approaches to a public both sides of the highway-rail crossing cases, leaving the exit gates in the raised highway-rail grade crossing in the may be provided with medians or position may be elected. Installing VPD proper lane denies the highway user the channelization devices between the will cause exit gates to remain up option of circumventing gates in the opposing lanes. Medians should be indefinitely as one or more vehicles approach lanes by switching into the defined by a non-traversable curb or pass over the crossing. Although opposing (oncoming) traffic lane in traversable curb, or by reflectorized providing VPD avoids the scenario of order to drive around a lowered gate to channelization devices, or by both. The ‘‘entrapment’’ (long feared by some in cross the tracks.

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FRA therefore is requiring that the control circuitry may be used. Constant reasoning is supported by data collected following conditions be met. warning time devices are not required to in Spokane County, WA where non- a. Opposing traffic lanes on both be added to existing warning systems in traversable medians reduced violations highway approaches to the crossing Pre-Rule Quiet Zones. However, if at the University Road crossing by 92 must be separated by either: (1) Medians warning systems in Pre-Rule Quiet percent. The unusual physical and bounded by non-traversable curbs or (2) Zones are upgraded, or new warning operating characteristics of the crossing channelization devices. systems are installed, constant warning are sufficiently different from an average b. Medians or channelization devices time devices are required. crossing that FRA believes that the must extend at least 100 feet from the e. Crossing warning systems must be effectiveness rate in this study should gate arm, or if there is an intersection equipped with power-out indicators. be discounted when determining an within 100 feet of the gate, the median Power-out indicators are not required to effectiveness rate for a national rule. or channelization device must extend at be added to existing warning systems in least 60 feet from the gate arm. Pre-Rule Quiet Zones. However, if 4. One Way Street With Gates Driveways for private, residential warning systems in Pre-Rule Quiet This installation consists of one way properties (up to four units) are not Zones are upgraded, or new warning streets with gates installed so that all considered intersections in calculating systems are installed, power-out approaching highway lanes are the required median length. indicators are required. completely blocked. FRA is requiring c. Intersections of two or more streets, f. The gap between the lowered gate that the following conditions are met. or a street and an alley, that are within and the curb or channelization device a. Gate arms on the approach side of 60 feet of the gate arm must be closed must be one foot or less, measured the crossing should extend across the or relocated. Driveways for private, horizontally across the road from the road to within one foot of the far edge residential properties (up to four units) end of the lowered gate to the curb or of the pavement. If a gate is used on within 60 feet of the gate arm are not channelization device or to a point over each side of the road, the gap between considered to be intersections under the curb edge or channelization device. the ends of the gates when both are in this part and need not be closed. The gate and the curb top or the lowered, or down, position should However, consideration should be given channelization device do not have to be be no more than two feet. to taking steps to ensure that motorists at the same elevation. b. If only one gate is used, the edge exiting the driveways are not able to g. ‘‘Break-away’’ channelization of the road opposite the gate mechanism move against the flow of traffic to devices must be frequently monitored to must be configured with a non- circumvent the purpose of the median replace broken elements. traversable curb extending at least 100 and drive around lowered gates. This Effectiveness: feet. may be accomplished by the posting of FRA estimates that channelization c. Crossing warning systems must be ‘‘no left turn’’ signs or other means of devices have an effectiveness of .75 and activated by use of constant warning notification. For the purpose of this medians with non-traversable curbs time devices unless existing conditions part, driveways accessing commercial with or without channelization devices at the crossing would prevent the proper properties are considered to be have an effectiveness of .80. The operation of the constant warning time intersections and are not allowed. It installation of traffic channelization devices. FRA has been made aware that should be noted that if a public devices as part of North Carolina’s constant warning devices may not work authority cannot comply with this 60 ‘‘Sealed Corridor’’ demonstration properly under certain circumstance feet requirement, it may apply to FRA project provides empirical data upon such as in electrified territory. If for a quiet zone under § 222.39(b), which to base an effectiveness rate. conditions exist that would not allow ‘‘Public authority application to FRA.’’ Traffic channelization devices were constant warning time systems to work During the comment period FRA was installed at the Sugar Creek Road as intended, other appropriate types of made aware of many circumstances in crossing in Charlotte, NC. Prior to the control circuitry may be used. Constant which roadways parallel to the tracks traffic channelization devices being warning time devices are not required to would not physically accommodate a 60 installed, the Norfolk Southern be added to existing warning systems in feet median. It was always FRA’s intent Corporation and NCDOT counted the Pre-Rule Quiet Zones. However, if to allow public authorities to apply to number of motorists going around the warning systems in Pre-Rule Quiet FRA for consideration of SSMs that do crossing gates for twenty weeks. This Zones are upgraded, or new warning not fully comply with the provisions of data established a baseline traffic systems are installed, constant warning Appendix A. There should be many violation rate. The number of violations time devices are required. circumstances in which medians or were then counted after installation of d. Crossing warning systems must be traffic channelization of less that 60 feet the channelization devices. Comparing equipped with power-out indicators. in length may sufficiently reduce risk in the number of violations before and Constant warning time devices are not order to permit the creation of a quiet after the grade crossing treatment required to be added to existing warning zone. FRA will review such applications showed that violations decreased by 77 systems in Pre-Rule Quiet Zones. and give them due consideration. percent. As in the NPRM, FRA However, if warning systems in Pre- d. Crossing warning systems must be discounts this rate slightly for the Rule Quiet Zones are upgraded, or new activated by use of constant warning novelty effect that may occur warning systems are installed, constant time devices unless existing conditions immediately following installation of warning time devices are required. at the crossing would prevent the proper the treatment and to account for the Effectiveness: FRA does not have an operation of the constant warning time added safety benefit of the horn which empirical data source for an devices. FRA has been made aware that was sounding during the study. FRA effectiveness rate for one way streets constant warning devices may not work therefore assigns an effectiveness rate of with gates. FRA reasons that as this properly under certain circumstances 75 percent for traffic channelization SSM will fully block approach lanes to such as in electrified territory. If devices. FRA reasons that medians with the highway rail crossing, it’s conditions exist that would not allow non-traversable curbs present a greater effectiveness should be similar to other constant warning time systems to work deterrence, and estimates their measures that physically prevent a as intended, other appropriate types of effectiveness rate at 80 percent. This motorist from entering a crossing when

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the gates are activated. In this respect, effectiveness through the collection and that an effectiveness rate of .60 for a one way streets with gates functions like analysis of data collected at the traffic channelization device that is 45 four quadrant gates without medians, crossings. Periodic monitoring will be feet in length would be appropriate. The and FRA estimates an effectiveness rate required throughout the existence of the specific crossing and applied mitigation of 82 percent. quiet zone in order to show that the measure will be assessed to determine ASM is still effective. The public the effectiveness of the modified SSM. Appendix B—Alternative Safety authority must receive written FRA FRA will continue to develop and make Measures approval of the quiet zone application available effectiveness estimates and Introduction prior to the silencing of train horns. The data from actual experience under the Section 222.39(b) provides that a public authority is strongly encouraged rule. c. The following engineering types of public authority may apply to FRA for to submit the application to FRA for ASMs may be included in a proposal for approval of a quiet zone that does not review and comment before the Appendix B treatments are initiated to approval by FRA for creation of a quiet meet the standards for public authority ensure that the proposed modified zone. SSMs that are listed in Appendix designation under § 222.39(a). Under SSMs and/or non-engineering ASMs A may be used for purposes of modified § 222.39(b) a quiet zone application may will meet with FRA’s approval. If non- SSMs. If one or more of the be presented to FRA for consideration. engineering ASMs are proposed, the requirements associated with an SSM as Public authority application provides public authority may wish to confirm listed in Appendix A is revised or two unique benefits towards the with FRA that the sampling methods are deleted, data or analysis supporting the creation of a quiet zone. The first benefit appropriate. Submitting the application revision or deletion must be provided to is the ability to use SSMs that may not for review prior to implementation will FRA for review. These SSMs include: conform to all of the requirements in enable FRA to provide comments to (1) Temporary Closure of a Public Appendix A. FRA received many assist the public authority in developing Highway-Rail Grade Crossing, (2) Four- comments indicating that traffic a quiet zone plan that will be Quadrant Gate System, (3) Gates With channelization would not be practical acceptable. Medians or Channelization Devices, and due to parallel roadways that were (4) One-Way Street With Gate(s). A closer than 60 feet. Under Appendix B, Modified SSMs discussion of these safety measures may short traffic channelization devices may a. If there are unique circumstances be found in the discussion of Appendix be considered. The second benefit is the pertaining to a specific crossing or A. ability to use programmed law number of crossings which prevent the enforcement, public education and SSMs from being fully compliant with Non-Engineering ASMs awareness programs and photo all of the SSM requirements listed in The following non-engineering ASMs enforcement to reduce risk and to Appendix A, those SSM requirements may be used in the creation of a Quiet compensate for the loss of the train may be adjusted or revised. In that case, Zone. The method for determining the horn. A public authority must receive the SSM, as modified, will be treated as effectiveness of the non-engineering written FRA approval of its quiet zone an ASM under this Appendix B, and not ASMs, the implementation of the quiet application prior to the silencing of as a SSM under Appendix A, so that its zone, subsequent monitoring train horns. safety effects may be evaluated. By requirements, and provision for dealing As with quiet zones created using the using modified SSMs, a locality will be with an unacceptable effectiveness rate public authority designation method, able to tailor the use and application of are provided in paragraph b. credit will be given for closing of public various SSM-types of applications to a 1. Programmed Enforcement: highway-rail grade crossings. It will be specific set of circumstances (e.g. being Community and law enforcement necessary to adjust the baseline severity able to use traffic channelization officials commit to a systematic and risk index at other crossings by devices of less than 60 feet in length). measurable crossing monitoring and increasing traffic counts at neighboring Thus, a locality may propose a quiet traffic law enforcement program at the crossings as input data to the severity zone that contains modified SSMs at a public highway-rail grade crossing, risk formula. If nearby grade separations number of crossings, that due to specific alone or in combination with the Public are expected to carry some or all of the circumstances, could not have been Education and Awareness option. traffic, it will not be necessary. FRA treated with an Appendix A SSM and Required: Regional Managers for Grade Crossing would have to be omitted from the a. Subject to audit, a statistically valid Safety will be available to assist in proposed quiet zone. FRA will review baseline violation rate must be performing the required analysis. the proposed quiet zone, and will established through automated or Appendix B addresses two types of approve the proposal if it finds that the systematic manual monitoring or ASMs-modified SSMs and non- Quiet Zone Risk Index is reduced to the sampling at the subject crossing(s). engineering ASMs. Modified SSMs are level that would be expected with b. A law enforcement effort must be SSMs that do no fully comply with the sounding of the train horns or to the defined, established and continued provisions listed in Appendix A. Nationwide Significant Risk Threshold. along with continual or regular Depending on the resulting b. Estimates of effectiveness may be monitoring. configuration, modified SSMs may still proposed based upon adjustments from 2. Public Education and Awareness: provide a substantial reduction in risk the effectiveness levels provided in Conduct, alone or in combination with and can contribute to the creation of Appendix A or from actual field data programmed law enforcement, a quiet zones. Non-engineering ASMs are derived from the crossing sites. The program of public education and programmed law enforcement, public application should provide an estimate awareness directed at motor vehicle education and awareness programs; and for the effectiveness of the proposed drivers, pedestrians and residents near photo enforcement efforts that may be ASM and the rationale for the estimate. the railroad to emphasize the risks used to reduce risk in the creation of a For example, in Appendix A the associated with public highway-rail quiet zone. It should be noted that if effectiveness of a 60 foot traffic grade crossings and applicable non-engineering ASMs are proposed, channelization device is .75. A public requirements of state and local traffic the application must demonstrate their authority may propose for consideration laws at those crossings.

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Requirements: established through automated or FRA with its sampling methodology for a. Subject to audit, a statistically valid systematic manual monitoring or comment prior to actually collecting the baseline violation rate must be sampling at the subject crossing(s). data. This will enable FRA to provide established through automated or h. A law enforcement effort must be comments to ensure that the sampling systematic manual monitoring or defined, established and continued methodology is adequate. sampling at the subject crossing(s). along with continual or regular 2. The ASM should then be initiated b. A sustainable public education and monitoring. for each crossing in the proposed quiet awareness program must be defined, The effectiveness of non-engineering zone that is to be treated with established and continued concurrent ASMs will be determined as follows: programmed enforcement or education. with continued monitoring. This 1. The first step in assessing the During this time frame, train horns are program shall be provided and effectiveness of an ASM is to establish still being sounded. Train horns will not supported primarily through local quarterly (3 months) baseline violation be silenced until the application has resources. It is critical that programs rates for each of the crossings. A been formally approved by FRA. proposed under this appendix represent violation in this context refers to a 3. In the calendar quarter following valid new increments of effort generated motorist not complying with the initiation, a new violation rate should from the local level where quiet zone automatic warning devices at the be determined (using the same benefits will accrue. crossing (not stopping for the flashing methodology as in paragraph a) and 3. Photo Enforcement: This alternative lights and driving over the crossing after compared to the baseline violation rate entails automated means of gathering the gate arms have started to descend, for each crossing treated with an ASM. valid photographic or video evidence of or driving around the lowered gate The violation rate reduction for each traffic law violations at a public arms). A violation does not have to crossing should then be determined by highway-rail grade crossing together result in a traffic citation for the the following formula: with follow-through by law enforcement violation to be considered. Violation Violation rate reduction = (new rate— and the judiciary. data may be obtained by any method baseline rate)/baseline rate that can be shown to provide a Required: Example: The baseline rate for a crossing a. State law authorizing use of statistically valid sample. This may include the use of video cameras, other was 60 violations per 100 gate activations. photographic or video evidence both to After implementation of the ASM, the new bring charges and sustain the burden of technologies (e.g. inductive loops), or violation rate for the next quarter was 20 proof that a violation of traffic laws manual observations that capture driver violations per 100 gate activations. The concerning public highway-rail grade behavior when the automatic warning violation rate reduction would be 66 percent crossings has occurred, accompanied by devices are operating. In the event that (.66). data is not collected continuously commitment of administrative, law 4. The effectiveness rate for each during the quarter, sufficient detail must enforcement and judicial officers to crossing is then determined by be provided in the application in order enforce the law. multiplying the violation rate reduction to validate that the methodology used b. Sanction includes sufficient by .78. This converts the violation rate results in a statistically valid sample. minimum fine (e.g., $100 for a first reduction to the collision reduction rate FRA recommends that at least a offense, ‘‘points’’ toward license which is the effectiveness rate. The minimum of 600 samples (one sample suspension or revocation) to deter equals one gate activation) be collected effectiveness rate of the ASM would violations. during the baseline and subsequent then be used in the calculation of the c. Means to reliably detect violations quarterly sample periods. The sampling Quiet Zone Risk Index. (e.g., loop detectors, video imaging methodology must take measures to Example: In the above example, the technology). avoid biases in their sampling violation rate reduction of .66 would be d. Photographic or video equipment technique. Potential sampling biases multiplied by .78 which results in an deployed to capture images sufficient to could include: sampling on certain days effectiveness rate of .51. document the violation (including the of the week but not others, sampling 5. Using the effectiveness rates for face of the driver, if required to charge during certain times of the day but not each crossing treated by an ASM, or convict under state law). others, sampling immediately after determine the Quiet Zone Risk Index. If Note to d.: This does not require that each implementation of an ASM while the and when the Quiet Zone Risk Index for crossing be continually monitored. The public is still going through an the proposed the quiet zone has been objective of this option is deterrence, which adjustment period, or applying one reduced to either the risk level which may be accomplished by moving photo/video sample method for the baseline rate and would exist if locomotive horns equipment among several crossing locations, as long as the motorist perceives the strong another for the new rate. One possible sounded at all crossings in the quiet possibility that a violation will lead to approach to avoid sampling bias would zone or to a risk level below the sanctions. Each location must appear be to break a three-month observation Nationwide Significant Risk Threshold, identical to the motorist, whether or not period into many time slots and then the public authority may apply to FRA surveillance equipment is actually placed randomly selecting these slots for for approval of the quiet zone. Upon there at the particular time. Surveillance sampling. The baseline violation rate receiving written approval of the quiet equipment should be in place and operating should be expressed as the number of zone application, the public authority at each crossing at least 25 percent of each violations per gate activations in order may then proceed with notifications and calendar quarter. to normalize for unequal gate implementation of the quiet zone. e. Appropriate integration, testing and activations during subsequent data 6. Violation rates must be monitored maintenance of the system to provide collection periods. The application for the next two calendar quarters and evidence supporting enforcement. should include enough detail on the every second quarter thereafter. If after f. Public awareness efforts designed to method used to collect and assess the five years from the implementation of reinforce photo enforcement and alert data to insure that the results will the quiet zone, the violation rate for any motorists to the absence of train horns. provide a statistically valid result. quarter has never exceeded the violation g. Subject to audit, a statistically valid While not it is not mandatory, public rate used to determine the effectiveness baseline violation rate must be authorities are encouraged to provide rate that was approved by FRA,

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violation rates may be monitored for one section into conformity with the first Paragraph (d) provides that this quarter per year. sentence of § 229.53 which refers to the section of part 229 addressing audible Example: Continuing with the above location of the various brake gauges warning devices does not apply to rapid example, the periodic monitoring during the used by a locomotive engineer. FRA transit operations which are otherwise five years following implementation of the removed § 229.53’s reference to ‘‘normal subject to part 229. Rapid transit quiet zone showed that the violation rate position in the cab’’ in the final rule operations which are subject to part 222 never exceeded 20 violations per 100 gate revising the regulations governing solely because they share track or rail activations. It then would only be necessary braking systems and equipment used in corridors at public highway-rail to monitor every fourth quarter thereafter. freight and other non-passenger railroad crossings with general system railroads 7. In the event that the violation rate train operations. See 66 FR 4104, are thus not subject to this section. is ever greater than the violation rate January 17, 2001. FRA, in its response While such operations are subject to all used to determine the effectiveness rate to petitions for reconsideration, stated provisions of part 222, including the that was approved by FRA, the public that the phrase, ‘‘normal position in the requirement to sound the horn at public authority may continue the quiet zone cab’’ is unnecessary and antiquated. rail grade crossings which they share for another quarter. If, in the second FRA stated that ‘‘FRA’s intent when with general system railroads, and to quarter the violation rate used to removing the language was to ensure silence the horn within quiet zones determine the effectiveness rate that was that the gauges used by an engineer to which include such shared crossings, approved by FRA, a new effectiveness aid in the control or braking of a train they are not subject to § 229.129’s rate must be calculated and the Quiet or locomotive were located so as to be requirements, including those regarding Zone Risk Index re-calculated using the read from the engineer’s usual position locomotive horn volume and testing. new effectiveness rate. If the new Quiet when operating the locomotive, whether 17. Regulatory Impact Zone Risk Index indicates that the ASM that be in the cab of the locomotive or no longer fully compensates for the lack elsewhere. FRA’s intent when issuing A. Executive Order 12866 and DOT of a train horn, or that the risk level is the final rule was to accommodate and Regulatory Policies and Procedures equal to, or exceeds the Nationwide facilitate advanced technologies and Significant Risk Threshold, the designs.’’ See 67 FR 17562, April 10, FRA has conducted a Regulatory procedures for dealing with 2002. Because the rationale for the Evaluation of this Interim Final Rule in unacceptable effectiveness after language change as it pertains to brake accordance with Executive Order 12866. establishment of a quiet zone should be gauges applies equally well to the A copy of this document has been followed. location of horn controls, FRA has placed in the docket for this rulemaking. Following is a summary of the findings. Example: Three years after initiating the modified § 229.129 to be consistent with quiet zone cited above, the violation rate was § 229.53. Because this change was not FRA identified 1,988 existing whistle 30 violations per 100 gate activations. The proposed in the NPRM, interested ban or no-horn crossings that would quiet zone continues with monitoring. In the parties are encouraged to provide qualify for inclusion in Pre-Rule Quiet next quarter, the violation rate was still 30 comment on this aspect of the interim Zones. FRA also identified 442 potential violations per 100 gate activations. When final rule. FRA will take into New Quiet Zone crossings. Using compared to the original baseline violation thnsp; information available about the crossing rate, this represents a violation rate reduction consideration comments when of 50 percent. The new effectiveness rate is issuing the final rule. characteristics and the number of calculated by multiplying .50 by .78. The Paragraph (b) addresses the schedule persons that would be or currently are new effectiveness rate of .39 would then be of testing to determine if locomotive severely affected by the sounding of used in the calculation of a new Quiet Zone horns are in compliance with this train horns, FRA estimated the costs and Risk thnsp; Index. If the new Quiet Zone section. Locomotives built on or after benefits of the actions that communities Risk Index is no longer below the Nationwide December 18, 2004, must be tested and would take in response to this rule. FRA Significant Risk Threshold or no longer fully believes that many communities will compensates for the loss of the train horn, the brought into compliance with this provisions of 222.51 would then apply. section prior to being placed in service. take advantage of the many options Locomotives built before December 18, available to establish quiet zones. FRA Section 229.129 Audible Warning 2004, have five years from the date of also estimated the costs associated with Device this notice in which to be tested. Thus the maximum horn sound level Paragraph (a) of this section requires they must be tested and brought into requirements. Some existing whistle ban that each lead locomotive be provided compliance with this section by crossings may not be included in quiet with an audible warning device that December 18, 2008. Additionally, horns zones. produces a minimum sound level of must be tested and brought into The table below presents estimated 96dB(A) and a maximum sound level of compliance with this section whenever twenty-year monetary costs associated 110 dB(A) at 100 feet forward of the a locomotive is rebuilt (as determined in with complying with the requirements locomotive in its direction of travel. The accordance with 49 CFR 232.50). contained in the Interim Final Rule device shall be arranged so that it can Paragraph (c) specifies the testing using a 7 percent discount rate. Given be conveniently operated from the requirements and measurement the high prevalence of existing whistle engineer’s usual position during procedures. The paragraph also ban crossings in the Chicago Region 15 operation of the locomotive. The phrase specifies that the railroad must maintain and the significant level of interest ‘‘usual position during operation of the records sufficient to show the date, commenters from this area have shown locomotive’’ replaces ‘‘normal position manner and result of locomotive horn regarding this rulemaking, costs are in the cab.’’ This change, which was not testing conducted in compliance with presented separately from the rest of the proposed in the NPRM, will bring this this part. nation where applicable.

15 The Chicago area is comprised of the following six counties: Cook, Du Page, Kane, Lake, McHenry, and Will.

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TOTAL TWENTY-YEAR COSTS (PV, 7%)

Nationwide Chicago Rest of nation

Maximum Horn Sound Level ...... $2,902,478 (2) (2) Relocations Due to Horn Noise 1 ...... 1,724,590 $47,927 $1,676,663 Establish/Maintain Pre-Rule Quiet Zones ...... 15,275,946 4,008,013 11,267,933 Establish/Maintain New Quiet Zones ...... 21,501,796 (2) (2) FRA Administrative Costs ...... 25,426 (2) (2) 1 Due to resumption of horn sounding. 2 Not applicable.

Total Twenty-Year Costs associated establishment of quiet zones. In such where locomotive horns are sounded with implementation of this rule are cases, this rule may be merely regularly; or (3) the effectiveness of estimated to be $41,430,236 (PV, 20 accelerating implementation and the horns is compensated for in rail Years, 7%). rate of expenditures. corridors where train horns do not In general there has been a downward The direct safety benefit of this sound. trend in collisions at grade crossings interim final rule is the reduction in FRA has reviewed trends in collision nationwide due to the implementation casualties that result from collisions rates for whistle ban crossings going of various private and public safety between trains and highway users at back to 1980 and believes that collision initiatives such as Operation Lifesaver public at-grade highway-rail crossings. rates over the twenty-years that this and other public education and Implementation of this rule will ensure analysis covers will be no higher than awareness campaigns. Costs presented that (1) locomotive horns are sounded to 4 percent. The following table presents in this analysis may be overstated to the warn highway users of approaching anticipated twenty-year safety benefits extent that such initiatives would lead trains; or (2) rail corridors where train expressed in monetary terms assuming to the eventual implementation of some horns do not sound will have a level of that collisions decline at an average rate of the same or equivalent safety risk that is no higher than the average of 4 percent annually and using a 7 measures that this rule requires for the risk level at gated crossings nationwide percent discount rate.

TOTAL TWENTY-YEAR SAFETY BENEFITS MONETIZED (PV, 7%) [Declining collision rate (4% annual decline)]

Casualties prevented Nationwide Chicago Rest of nation

Cancellation of W-Bans ...... $6,102,371 $291,582 $5,810,789 Pre-Rule Quiet Zones: ...... 48,794,232 22,371,706 26,422,526 New Quiet Zones ...... 21,976,553 (1) (1)

Total ...... 76,873,156 (1) (1) 1 Not applicable.

In terms of collisions and casualties, Some of the unquantified benefits of Another unquantified benefit of this over the next twenty years, FRA this interim final rule include rule is elimination of some locomotive anticipates implementation of this rule reductions in freight and passenger train horn noise disruption to some railroad will result in the prevention of 123 delays, both of which can be very employees and those who may reside collisions, 13 fatalities, and 60 injuries. significant when grade crossing near industrial areas served by railroads. In addition to the prevention of collisions occur, and collision Locomotive horns will no longer have to casualties, FRA estimates that, over the investigation efforts. Although these be sounded at individual highway-rail next twenty years, this collision benefits are not quantified in this grade crossings at which the maximum prevention will result in a reduction of analysis, their monetary value is authorized operating speed for that approximately $400,000 in highway significant. segment of track is 15 miles per hour or vehicle, railroad equipment, and track Because such events are rare, FRA has less and properly equipped flaggers (as damage. not attempted to estimate the value of defined in by 49 CFR 234.5, but who for This analysis covers the first twenty avoiding events in which a highway-rail purposes of this rule can also be crew years of the rule and includes some collision results in a derailment, with members) provide warning to motorists. compliance costs that will be incurred harm to persons on the train or release This rule will allow engineers, who towards the end of the period. Unlike of hazardous materials into the were probably already exercising some the benefits associated with costs community. level of discretion as to the duration and incurred in the early years of the rule, Maximum horn sound level sound level of locomotive horn much of the twenty-year stream of requirements will limit community sounding, to stop sounding the horn benefits associated with these costs is disruption by not allowing horns to be under these circumstances at no not captured in this analysis. Safety sounded any louder than necessary to additional cost. benefits are understated to the extent provide motorists with adequate This analysis does not quantify the that many years of safety benefits warning of a train’s approach. The benefit of eliminating community resulting from safety measures benefit in noise reduction due to this disruption caused by the sounding of implemented in out-years are not change in maximum horn loudness is train horns, nor does it quantify costs included. not readily quantifiable. from increased noise at crossings where

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horns will sound where they were explanations for the lack of effect on airports compared to property values of previously silent. property values. First, those buying residences that are still very close to In an effort to determine the costs to property within the audible range of a highways and airports yet not adjacent. a community associated with the highway-rail grade crossing likely Since there generally is no incentive to locomotive horn, FRA examined the consider the possibility that train residing near highway-rail at-grade effects of sounding of locomotive horns whistles may be sounded at the crossing crossings (unless there happens to be a on property values. This effort was in the future. Second, the railroad’s commuter rail station nearby) the based on the assumption that property action generated dynamic changes in difference in property values between values reflect concerns of property the composition of residents that served residences immediately adjacent to owners that are often subjective and to mitigate the initial impact of the grade crossings and those a little further otherwise difficult to quantify. For a full action. Residents most sensitive to the away is probably not as great. discussion of the effects of sounding sounding of locomotive horns moved Studies of airport and highway noise locomotive horns on property values, away and were replaced with those less compare property values of residences see Appendix A to the Regulatory sensitive to such sounding. adjacent to the source of noise to Evaluation. The Chaddick Institute study property values of residences that are Research shows that residential evaluated the probable costs of the noise near but not adjacent to the source of property markets are influenced by a generated by locomotive horns at grade noise. To isolate the effect of the noise variety of factors including structural crossings in the Chicago area. The study itself and thereby make these studies features of the property, local fiscal concluded that the region would more relevant to the highway-rail grade conditions, and neighborhood experience significant losses in property crossing context, the effect of the characteristics. Hedonic housing price value from sounding of horns at incentive for residing nearby, versus models treat a property as a bundle of crossings currently subject to whistle adjacent to, would have to be removed characteristics, with each individual bans. The study also concluded that from the studies of airport and highway characteristic generating an influence on even if property values do not fall, noise. Given the differences in (1) types the price of the property. For example, homeowners that are forced to move of noise produced by highway vehicles additional structural characteristics away may incur other real economic and aircraft versus locomotive horns such as bathrooms, bedrooms, interior costs. For the reasons discussed in and (2) effects of highways and airports or exterior square footage increase the Appendix A to the Regulatory on nearby property values versus effects value of residential properties. Evaluation, FRA has concluded that it is of grade crossings on property values, Likewise, neighborhood characteristics not likely that the overall costs FRA believes that results from hedonic are expected to influence property associated with sounding the horns studies of airport and highway noises on prices. For example, homes that are in where they are not currently sounded property values are not directly relatively close proximity to noxious will be as high as the Chaddick Institute transferable to locomotive horn noise activities such as hazardous waste sites, study concludes. effects on property values. incinerators, etc. have been shown to Although there are airport and It is important to note that since this have lower values, other things equal. highway hedonic property value rule is permissive as to the Thus, a carefully designed hedonic studies, FRA has not applied them to establishment of quiet zones, model can be used to implicitly value grade crossings for a number of reasons. communities will establish quiet zones locational attributes that have no The types of noise experienced by to the extent that the perceived benefit explicit market price. residents near highways and airports of elimination of the train horn The effects of the sounding of can be different from that experienced disruption coupled with the safety locomotive horns on property values by residents near highway-rail grade benefit of any safety enhancements have been studied recently in response crossings. Highways and airports where exceeds the costs of compliance to the NPRM. While initial results are noise is an issue have higher daily associated with the requirements for available, unfortunately they are not volumes of motor vehicle and aircraft establishing New Quiet Zones. conclusive. David E. Clark performed traffic than grade crossings with whistle FRA is confident that the benefits in one study for the FRA, and bans. The noise produced by locomotive terms of lives saved and injuries Schwieterman and Baden of the horns at crossings is also generally more prevented will exceed the costs imposed Chaddick Institute performed the other. intermittent than that produced at on society by this rule. According to Clark, the study performed airports and highways. for FRA was ‘‘just a first step in The effect of highways and airports on B. Regulatory Flexibility Act understanding how train whistles nearby property values can also be very The Regulatory Flexibility Act of 1980 influence local property values.’’ different than that of highway-rail at- (5 U.S.C. 601 et seq.) requires a review Schwieterman and Baden of the grade crossings on nearby property of final rules to assess their impact on Chaddick Institute emphasize that their values. For instance, airports are a small entities unless the Secretary ‘‘report is a preliminary assessment of a source of employment for residents in certifies that a final rule will not have complex issue. Some of our findings are the community. Although airport a significant economic impact on a speculative in nature.’’ Those who have employees may not desire to reside in substantial number of small entities. studied the issue agree that further properties immediately adjacent to Data available to FRA indicates that this study is needed to reach a better airports, they probably want to reside rule may have minimal economic understanding of the true effects of relatively close by. Few highway users impact on a substantial number of small locomotive horn sounding on property desire to reside in properties entities (railroads) and possibly a values. Clark concluded that there is immediately adjacent to highways, significant economic impact on a few little indication that the decision of a however many probably want to reside small entities (government jurisdictions railroad to ignore whistle bans (and thus close enough to have easy access to and small businesses). However, there is sound the locomotive horn) had any highways. Such situations may greatly no indication that this rule will have a permanent and appreciable influence on influence the magnitude of difference significant economic impact on a the housing values in the three between property values of residences substantial number of small entities. communities analyzed. Clark offers two immediately adjacent to highways and The Small Business Administration

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(SBA) did not submit comments to the routinely sounded. If a community whistle to be blown. This alternative has docket for this rulemaking in response elects to implement sufficient safety no direct costs associated with it for the to the Initial Regulatory Flexibility measures to comply with the governmental jurisdiction. Other Assessment that accompanied the requirements for establishing a quiet alternatives include ‘‘gates with median NPRM. FRA certifies that this rule will zone, then the governmental jurisdiction barriers’’ which are estimated to cost not have a significant economic impact will be impacted by the cost of such $13,000 for a mountable curb with on a substantial number of small program or system. To the extent that frangible delineators and ‘‘Photo entities. potential quiet zone crossing corridors enforcement’’ which is estimated to cost FRA has performed a Regulatory already have average risk levels $28,000–$65,500 per crossing, and have Flexibility Assessment (RFA) on small permissible under this rule, and, in the annual maintenance costs of $6,600– entities that potentially can be affected case of New Quiet Zones, every crossing $24,000 per crossing. Finally, FRA has by this interim final rule. The RFA is is equipped with gates and flashing not limited compliance to the lists summarized in this preamble as lights, communities will only incur provided in Appendix A or Appendix B required by the Regulatory Flexibility administrative costs associated with of the rule. The rule provides for Act. The full RFA is included in the establishing and maintaining quiet supplementary safety measures that Regulatory Evaluation, which is zones. might be unique or different. For such available in the public docket of this The costs of implementing this an alternative, an analysis would have proceeding. interim final rule will predominately be to accompany the option that would This is essentially a safety rule that on the governmental jurisdictions of demonstrate that the number of implements as well as minimizes the communities some of which are ‘‘small motorists that violate the crossing is potential negative impacts of a governmental jurisdictions.’’ As defined equivalent of less than that of blowing Congressional mandate to blow train by the SBA this term means the whistle. FRA intends to rely on the whistles and horns at all public governments of cities, counties, towns, creativity of communities to formulate crossings. Some communities believe townships, villages, school districts, or solutions which will work for that that the sounding of train whistles at special districts with a population of community. every crossing is excessive and an less than fifty thousand. The most FRA does not know how many small infringement on community quality of significant impacts from this rule will businesses are located within a distance life, and therefore have enacted ‘‘whistle be on about 260 governmental of the affected highway-rail crossings bans’’ that prevent the trains from jurisdictions whose communities where the noise from the whistle sounding their whistles entirely, or currently have either formal or informal blowing could be considered to be during particular times (usually at whistle bans in place. FRA estimates nuisance and bad for business. Concerns night). Some communities would like to that approximately 70 percent (i.e. 193 have been advanced by owners and establish ‘‘quiet zones’’ where train communities) of these governmental operators of hotels, motels and some horns would not be routinely sounded, jurisdictions are considered to be small other establishments as a result of but are awaiting issuance of this rule to entities. numerous town meetings and other do so. FRA is concerned that with the FRA has recently published final a outreach sessions in which FRA has increased risk at grade crossings where policy which establishes ‘‘small entity’’ participated during development of this train whistles are not sounded, or as being railroads which meet the line rule. If supplementary safety measures another means of warning utilized, haulage revenue requirements of a Class are implemented to create a quiet zone collisions and casualties may increase III railroad. As defined by 49 CFR then such small entities should not be significantly. The rule contains low risk 1201.1–1, Class III railroads are those impacted. FRA held 12 public hearings based provisions for communities to railroads who have annual operating nationwide following issuance of the establish quiet zones. Some crossing revenues of $20 million per year or less. NPRM and requested comments to the corridors may already be at risk levels Hazardous material shippers or docket from small businesses that feel that are permissible under this rule and contractors that meet this income level they will be adversely impacted by the would not need to reduce risk levels any will also be considered as small entities. requirements contained in the NPRM. further to establish quiet zones. FRA is using this definition of small FRA received no comments in response. Otherwise, communities establishing entity for this rulemaking. The RFA Pre-Rule Quiet Zones may implement believes that approximately 640 small C. Paperwork Reduction Act sufficient safety measures along whistle- railroads would be minimally impacted The information collection ban corridors to reduce risk to by train horn sound level testing requirements in this interim final rule permissible levels. In addition to having requirements contained in this rule. In have been submitted for approval to the permissible risk levels, all crossings in addition, some small businesses that Office of Management and Budget New Quiet Zones will have to be operate along or nearby rail lines that (OMB) under the Paperwork Reduction equipped with gates and flashing lights. currently have whistle bans in place Act of 1995, 44 U.S.C. 3501 et seq. The If a community elects to simply follow that potentially may not after the sections that contain the new the mandate, horn sounding will resume implementation of this rule, could be information collection requirements and and there will be a noise impact on moderately impacted. the estimated time to fulfill each small businesses that exist along Alternative options for complying requirement are as follows: crossings where horns are not currently with this rule include allowing the train BILLING CODE 4910–06–P

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BILLING CODE 4910–06–C All estimates include the time for existing data sources; gathering or reviewing instructions; searching maintaining the needed data; and

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reviewing the information. Pursuant to announced by separate notice in the determine prospectively the number of 44 U.S.C. 3506(c)(2)(B), FRA solicits Federal Register. New Quiet Zones and their comments concerning: whether these establishment date; however, FRA’s best D. Environmental Impact information collection requirements are estimate is that there will likely be necessary for the proper performance of FRA has evaluated this interim final approximately 107 New Quiet Zones. the function of FRA, including whether rule in accordance with its procedures Copies of the FEIS are being the information has practical utility; the for ensuring full consideration of the distributed to organizations and accuracy of FRA’s estimates of the environmental impact of FRA actions, individuals who filed comments on the burden of the information collection as required by the National Draft environmental impact statement. requirements; the quality, utility, and Environmental Policy Act (42 U.S.C. The FEIS is also available on FRA’s Web clarity of the information to be 4321 et seq.), other environmental site (www.fra.dot.gov), or from the FRA collected; and whether the burden of statutes, Executive Orders, and DOT at the following address: Office of collection of information on those who Order 5610.1c. FRA has prepared a final Safety, FRA, 1120 Vermont Avenue, are to respond, including through the environmental impact statement (FEIS) NW, (Mail Stop 25), Washington, DC use of automated collection techniques analyzing the environmental impacts 20590. associated with this rule. The FEIS is or other forms of information E. Federalism Implications technology, may be minimized. For being issued concurrently with this information or a copy of the paperwork interim final rule. The principal Executive Order 13132, entitled, package submitted to OMB, contact environmental effect and potentially ‘‘Federalism,’’ issued on August 4, 1999, Robert Brogan at 202–493–6292. significant impact of the interim final requires that each agency ‘‘in a FRA believes that soliciting public rule is reduced horn noise in aggregate separately identified portion of the comment will promote its efforts to at approximately 150,000 public at- preamble to the regulation as it is to be reduce the administrative and grade crossings and additional horn issued in the Federal Register, provides paperwork burdens associated with the noise at some crossings where whistle to the Director of the Office of collection of information mandated by bans currently exist. Management and Budget a Federalism Federal regulations. In summary, FRA The application of the requirement to summary impact statement, which reasons that comments received will provide an audible warning at existing consists of a description of the extent of advance three objectives: (i) Reduce whistle ban crossings has been the agency’s prior consultation with reporting burdens; (ii) ensure that it substantially modified in the interim State and local officials, a summary of organizes information collection final rule. Provisions have been made the nature of their concerns and the requirements in a ‘‘user friendly’’ format that would qualify certain existing agency’s position supporting the need to to improve the use of such information; whistle bans for quiet zone status issue the regulation, and a statement of and (iii) accurately assess the resources according to their risk levels. This is the extent to which the concerns of expended to retrieve and produce expected to result in the continued State and local officials have been met. information requested. See 44 U.S.C. absence of train horns at many Pre-Rule ***’’ 3501. Quiet Zones and would reduce the FRA has complied with E.O. 13132 in Comments must be received no later potential for additional horn noise issuing this rule. FRA consulted than [60 days after the date of impacts. Train horns will continue to be extensively with State and local officials publication]. Organizations and silenced at other Pre-Rule Quiet Zones prior to issuance of the NPRM, and we individuals desiring to submit through implementation of have taken very seriously the concerns comments on the collection of supplemental or alternative safety and views expressed by State and local information requirements should direct measures. Thus, additional horn noise officials as expressed in written them to Robert Brogan, Federal Railroad impact is unlikely to approach the comments and testimony at the various Administration, RRS–21, Mail Stop 17, levels that would occur if horns were to public hearings throughout the country. 1120 Vermont Ave., NW., MS–17, sound where all whistle bans now exist. FRA staff provided briefings to many Washington, DC 20590. This rule contains provisions that State and local officials and OMB is required to make a decision would reduce existing train horn noise organizations during the comment concerning the collection of information exposure over time. The provision period to encourage full public requirements contained in this interim limiting the distance for regular horn participation in this rulemaking. As final rule between 30 and 60 days after sounding would reduce the total discussed earlier in this preamble, publication of this document in the amount of horn noise generated. This because of the great interest in this Federal Register. Therefore, a comment provision would reduce existing horn subject throughout various areas of the to OMB is best assured of having its full noise impacts by approximately 27 country, FRA was involved in an effect if OMB receives it within 30 days percent. The provision for a maximum extensive outreach program to inform of publication. The final rule will horn sound level would reduce horn communities which presently have respond to any OMB or public noise for some particularly loud whistle bans of the effect of the Act and comments on the information collection locomotives and would reduce existing the regulatory process. Since the requirements contained in this proposal. horn noise impacts by approximately 14 passage of the Act, FRA headquarters FRA cannot impose a penalty on percent. It is estimated that the and regional staff has met with a large persons for violating information combined effect of these two provisions number of local officials. FRA also held collection requirements which do not would reduce horn noise impacts by a number of public meetings to discuss display a current OMB control number, approximately 38 percent. the issues and to receive information if required. FRA intends to obtain Finally, the interim final rule contains from the public. In addition to local current OMB control numbers for any provisions that would make it possible citizens, both local and State officials new information collection for the creation of quiet zones in many attended and participated in the public requirements resulting from this communities that are currently exposed meetings. Additionally, FRA took the rulemaking action prior to the effective to train horn noise. The potential benefit unusual step of establishing a public date of a final rule. The OMB control from these New Quiet Zones is docket before formal initiation of number, when assigned, will be indeterminate, as it is impossible to rulemaking proceedings in order to

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enable citizens and local officials to and ordinances, see § 222.7 and its proposed rulemaking that is likely to comment on how FRA might implement accompanying discussion. result in promulgation of any rule that the Act and to provide insight to FRA. As noted, this rulemaking is required includes any Federal mandate that may FRA received comments from by 49 U.S.C. 20153. The statute both result in the expenditure by State, local, representatives of Portland, Maine; requires that the Department issue this and tribal governments, in the aggregate, Maine Department of Transportation; rule and sets out clear guidance as to the or by the private sector, of $100,000,000 Acton, Massachusetts; Wisconsin’s structure of such rule. The statute or more (adjusted annually for inflation) Office of the Commissioner of Railroads; clearly and unambiguously requires the in any 1 year, and before promulgating a Wisconsin State representative; a Department to issue rules requiring any final rule for which a general notice Massachusetts State senator; the Town locomotive horns to be sounded at every of proposed rulemaking was published, public grade crossing. The Department of Ashland, Massachusetts; Bellevue, the agency shall prepare a written has no discretion in as to this aspect of Iowa; and the mayor of Batavia, Illinois. statement * * *’’ detailing the effect on the rule. The statute also makes clear Since passage of the Act in 1994, FRA State, local and tribal governments and has consulted and briefed that the Federal government must have a leading role in establishing the the private sector. The rule issued today representatives of the American will not result in the expenditure, in the Association of State Highway and framework for providing exceptions to the requirement that horns sound at aggregate, of $100,000,000 or more in Transportation Officials (AASHTO), the any one year, and thus preparation of a National League of Cities, National every public crossing. While some statement is not required. Association of Regulatory Utility States and communities expressed Commissioners, National Conference of opposition to Federal involvement in G. Energy Impact State Legislatures, and others. this area which historically has been Additionally we have provided subject to State regulation, the majority Executive Order 13211 requires extensive written information to all of State and local community Federal agencies to prepare a Statement United States Senators and a large commenters recognized and accepted of Energy Effects for any ‘‘significant number of Representatives with the the statutorily required Federal energy action.’’ 66 FR 28355 (May 22, expectation that the information would involvement. Of concern to many of 2001). Under the Executive Order, a be shared with interested local officials these commenters, however, was the ‘‘significant energy action’’ is defined as and constituents. issue as to whether States or local any action by an agency (normally communities should have primary Prior to issuance of the NPRM, FRA published in the Federal Register) that responsibility for creation of quiet had been in close contact with, and has promulgates or is expected to lead to the zones. As further discussed in the received many comments from Chicago promulgation of a final rule or section-by-section analysis of § 222.37, area municipal groups representing regulation, including notices of inquiry, ‘‘Who may establish a quiet zone?’’, suburban areas in which, for the most advance notices of proposed States generally felt that they should part, locomotive horns are not routinely have a primary role in establishing quiet rulemaking, and notices of proposed sounded. The Chicago area Council of zones and in administering a quiet zone. rulemaking: (1)(i) That is a significant Mayors, which represents over 200 Comments from local governments regulatory action under Executive Order cities and villages with over 4 million tended to support the contrary view that 12866 or any successor order, and (ii) is residents outside of Chicago, provided local political subdivisions should likely to have a significant adverse effect valuable information to FRA as did the establish quiet zones. A review of on the supply, distribution, or use of West Central Municipal Conference and § 20153 indicates a clear Congressional energy; or (2) that is designated by the the West Suburban Mass Transit preference that decision-makers be local Administrator of the Office of District, both of suburban Chicago. authorities. This Interim Final Rule Information and Regulatory Affairs as a Another association of suburban provides non-Federal parties extensive significant energy action. FRA has Chicago local governments, the DuPage involvement in decision-making evaluated this Interim Final Rule in [County] Mayors and Managers pertaining to the creation of quiet zones. accordance with Executive Order 13211 Conference, provided comments and However, given the nature of the and has determined that this Final Rule information. Additionally, FRA officials competing interests of State and local is not likely to have a significant met with many Members of Congress, governments in this area, FRA could not adverse effect on the supply, who have invited FRA to their districts fully meet the concerns of both groups. distribution, or use of energy. and have provided citizens and local For the reasons detailed in the above Consequently, FRA has determined that officials with the opportunity to express section-by-section analysis, the this regulatory action is not a their views on this rulemaking process. concerns of local communities have ‘‘significant energy action’’ within the These exchanges, and others conducted been substantially met. meaning of Executive Order 13211. directly through FRA’s regional crossing managers, have been very valuable in F. Compliance With the Unfunded 18. Privacy Act Statement identifying the need for flexibility in Mandates Reform Act of 1995 preparing the proposed rule. Pursuant to the Unfunded Mandates Anyone is able to search the Under 49 U.S.C. 20106, issuance of Reform Act of 1995 (Pub. L. 104–4) each electronic form of all comments this regulation preempts any State law, Federal agency ‘‘shall, unless otherwise received into any of our dockets by the rule, regulation, order, or standard prohibited by law, assess the effects of name of the individual submitting the covering the same subject matter, except Federal Regulatory actions on State, comment (or signing the comment), if a provision necessary to eliminate or local, and tribal governments, and the submitted on behalf of an association, reduce an essentially local safety private sector (other than to the extent business, labor union, etc.). You may hazard, that is not incompatible with that such regulations incorporate review DOT’s complete Privacy Act Federal law or regulation and does not requirements specifically set forth in Statement in the Federal Register unreasonably burden interstate law).’’ Sec. 201. Section 202 of the Act published on April 11, 2000 (volume 65, commerce. For further discussion of the further requires that ‘‘before Number 70; Pages 19477–78) or you effect of this rule on State and local laws promulgating any general notice of may visit http://dms.dot.gov.

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List of Subjects 222.53 What are the requirements for regulation, or order covering the same supplementary and alternative safety subject matter, except an additional or 49 CFR Part 222 measures? more stringent law, regulation, or order Administrative practice and 222.55 How are new supplementary or that is necessary to eliminate or reduce procedure, Penalties, Railroad safety, alternative safety measures approved? 222.57 Can parties seek review of the an essentially local safety hazard; is not Reporting and recordkeeping Associate Administrator’s actions? incompatible with a law, regulation, or requirements. 222.59 When may a wayside horn be used? order of the United States government; 49 CFR Part 229 Appendix A to Part 222—Approved and does not unreasonably burden Supplementary Safety Measures interstate commerce. However, except Locomotives, Penalties, Railroad Appendix B to Part 222—Alternative Safety as provided in § 222.25, this part does safety. Measures not cover the subject matter of the ■ In consideration of the foregoing, FRA Appendix C to Part 222—Guide to routine sounding of locomotive horns at is amending chapter II, subtitle B of title Establishing Quiet Zones Appendix D to Part 222—Determining Risk private highway-rail grade crossings. 49, Code of Federal Regulations as Levels (b) Inclusion of SSMs and ASMs in follows: Appendix E to Part 222—Requirements for this part or approved subsequent to ■ 1. Part 222 is added to read as follows: Wayside Horns issuance of this part does not constitute Appendix F to Part 222—Diagnostic Team federal preemption of State law PART 222—USE OF LOCOMOTIVE Considerations regarding whether those measures may HORNS AT PUBLIC HIGHWAY-RAIL Appendix G to Part 222—Schedule of Civil be used for traffic control. Individual GRADE CROSSINGS Penalties states may continue to determine Subpart A—General Authority: 49 U.S.C. 20103, 20107, 20153, whether specific Supplementary Safety 21301, 21304; 49 CFR 1.49. Sec. Measures (SSMs) or Alternative Safety Measures (ASMs) are appropriate traffic 222.1 What is the purpose of this Subpart A—General regulation? control measures for that State, 222.3 What areas does this regulation § 222.1 What is the purpose of this consistent with Federal Highway cover? regulation? Administration regulations and the 222.5 What railroads does this regulation The purpose of this part is to provide Manual on Uniform Traffic Control apply to? for safety at public highway-rail grade Devices (MUTCD). However, inclusion 222.7 What is this regulation’s effect on crossings by requiring locomotive horn of SSMs and ASMs in this part does State and local laws and ordinances? 222.9 Definitions. use at public highway-rail grade constitute federal preemption of State 222.11 What are the penalties for failure to crossings except in quiet zones law concerning the sounding of train comply with this regulation? established and maintained in horns in relation to the use of those 222.13 Who is responsible for compliance? accordance with this part. measures. 222.15 How does one request a waiver of a provision of this regulation? § 222.3 What areas does this regulation § 222.9 Definitions. cover? As used in this part— Subpart B—Use of Locomotive Horns This part prescribes standards for Administrator means the 222.21 When must a locomotive horn be sounding locomotive horns when Administrator of the Federal Railroad used? locomotives approach and pass through Administration or the Administrator’s 222.23 How does this regulation affect public highway-rail grade crossings. delegate. sounding of a horn during an emergency This part also provides standards for the Alternative safety measures (ASM) or other situations? 222.25 How does this rule affect private creation and maintenance of quiet zones means a safety system or procedure, highway-rail grade crossings? within which locomotive horns need other than an SSM, established in not be sounded. accordance with this part which is Subpart C—Exceptions to the Use of the provided by the appropriate traffic Locomotive Horn § 222.5 What railroads does this regulation control authority or law enforcement apply to? 222.31 [Reserved] authority and which, after individual This part applies to all railroads Silenced Horns at Individual Crossings review and analysis by the Associate except: Administrator, is determined to be an 222.33 Can locomotive horns be silenced at (a) A railroad that exclusively effective substitute for the locomotive an individual public highway-rail grade operates freight trains only on track horn in the prevention of highway-rail crossing which is not within a quiet which is not part of the general railroad zone? casualties at specific highway-rail grade system of transportation; Silenced Horns at Groups of Crossings— (b) Passenger railroads that operate crossings. Appendix B to this part lists Quiet Zones only on track which is not part of the such measures. Associate Administrator means the general railroad system of transportation 222.35 What are minimum requirements for Associate Administrator for Safety of quiet zones? and which operate at a maximum speed 222.37 Who may establish a quiet zone? of 15 miles per hour; and the Federal Railroad Administration or 222.39 How is a quiet zone established? (c) Rapid transit operations within an the Associate Administrator’s delegate. 222.41 How does this rule affect Pre-Rule urban area that are not connected to the Channelization device means one of a Quiet Zones? general railroad system of series of highly visible vertical markers 222.43 What notices and other information transportation. See 49 CFR part 209, placed between opposing highway lanes are required to establish a quiet zone? designed to alert or guide traffic around 222.45 When is a railroad required to cease appendix A for the definitive statement of the meaning of the preceding an obstacle or to direct traffic in a routine use of locomotive horns at particular direction. ‘‘Tubular markers’’ crossings? sentence. 222.47 What periodic updates are required? and ‘‘vertical panels’’ as described in 222.49 Who may file Grade Crossing § 222.7 What is this regulation’s effect on sections 6F.57 and 6F.58, respectively, Inventory Forms? State and local laws and ordinances? of the MUTCD, are acceptable 222.51 Under what conditions will FRA (a) Under 49 U.S.C. 20106, issuance of channelization devices for purposes of review and terminate quiet zone status? this part preempts any State law, rule, this part. Additional design

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specifications are determined by the (3) Without propelling motors but Pre-Rule Quiet Zone means a segment standard traffic design specifications with one or more control stands. of a rail line within which is situated used by the governmental entity Locomotive horn means a locomotive one or a number of consecutive public constructing the channelization device. air horn, steam whistle, or similar highway-rail crossings at which State Crossing Corridor Risk Index means a audible warning device (see 49 CFR statutes or local ordinances restricted number reflecting a measure of risk to 229.129) mounted on a locomotive or the routine sounding of locomotive the motoring public at public grade control cab car. The terms ‘‘locomotive horns, or at which locomotive horns did crossings along a rail corridor, horn’’, ‘‘train whistle’’, ‘‘locomotive not sound due to formal or informal calculated in accordance with the whistle’’, and ‘‘train horn’’ are used agreements between the community and procedures in appendix D of this part, interchangeably in the railroad industry. the railroad or railroads, and at which representing the average risk at each Median means the portion of a such statutes, ordinances or agreements public crossing within the corridor. This divided highway separating the travel were in place and enforced or observed risk level is determined by averaging ways for traffic in opposite directions. as of October 9, 1996 and on December among all public crossings within the MUTCD means the Manual on Traffic 18, 2003. corridor, the product of the number of Control Devices published by the Private highway-rail crossing means, predicted collisions per year and the Federal Highway Administration. for purposes of this part, a highway-rail Nationwide Significant Risk predicted likelihood and severity of at grade crossing which is not a public Threshold means a number reflecting a casualties resulting from those highway-rail grade crossing. measure of risk, calculated on a collisions at each public crossing within Public authority means the public nationwide basis, which reflects the the corridor. entity responsible for safety and average level of risk to the motoring maintenance of the roadway crossing Diagnostic team as used in this part, public at public highway-rail grade means a group of knowledgeable crossings equipped with flashing lights the railroad tracks at a public highway- representatives of parties of interest in and gates and at which locomotive rail grade crossing. This term includes a highway-rail grade crossing, organized horns are sounded. For purposes of this the traffic control authority or law by the public authority responsible for rule, a risk level above the Nationwide enforcement authority, or the that crossing, who, using crossing safety Significant Risk Threshold represents a governmental jurisdiction having management principles, evaluate significant risk with respect to loss of responsibility for motor vehicle safety at conditions at a grade crossing to make life or serious personal injury. The the crossing. determinations or recommendations for Nationwide Significant Risk Threshold Public highway-rail grade crossing the public authority concerning safety is calculated in accordance with the means, for purposes of this part, a needs at that crossing. procedures in Appendix D of this part. location where a public highway, road, Effectiveness rate means a number Unless otherwise indicated, references or street, including associated sidewalks between zero and one which represents in this part to the Nationwide or pathways, crosses one or more the reduction of the likelihood of a Significant Risk Threshold reflect its railroad tracks at grade. In the event a collision at a public highway-rail grade level as last published by FRA. public authority maintains the roadway crossing as a result of the installation of New Quiet Zone means a segment of on at least one side of the crossing, the an SSM or ASM when compared to the a rail line within which is situated one crossing is considered a public crossing same crossing equipped with or a number of consecutive public for purposes of this part. conventional active warning systems of highway-rail crossings at which routine Quiet zone means a segment of a rail flashing lights and gates. Zero sounding of locomotive horns is line, within which is situated one or a effectiveness means that the SSM or restricted pursuant to this part and number of consecutive public highway- ASM provides no reduction in the which does not qualify as a Pre-Rule rail crossings at which locomotive horns probability of a collision, while an Quiet Zone. are not routinely sounded. effectiveness rating of one means that Non-traversable curb means a Quiet Zone Risk Index means a the SSM or ASM is totally effective in highway curb designed to discourage a measure of risk to the motoring public reducing collisions. Measurements motor vehicle from leaving the roadway. which reflects the Crossing Corridor between zero and one reflect the Such curb used where highway speeds Risk Index for a quiet zone, after percentage by which the SSM or ASM do not exceed 40 miles per hour, is adjustment to account for increased risk reduces the probability of a collision. more than six inches but not more than due to lack of locomotive horn use at FRA means the Federal Railroad nine inches high. If not equipped with the crossings within the quiet zone (if Administration. reboundable, reflectorized vertical horns are presently sounded at the Grade Crossing Inventory Form means markers, paint and reflective beads crossings), and reduced risk due to the U.S. DOT National Highway-Rail should be applied to the curb for night implementation, if any, of SSMs and Grade Crossing Inventory Form, FRA visibility. Additional design ASMs within the quiet zone. The Quiet Form F6180.71. This form is available specifications are determined by the Zone Risk Index is calculated in through the FRA’s Office of Safety, or on standard traffic design specifications accordance with the procedures in FRA’s Web site at http:// used by the governmental entity Appendix D of this part. www.fra.dot.gov. constructing the curb. Railroad means any form of non- Locomotive means a piece of on-track Power-out indicator means a device highway ground transportation that runs equipment other than hi-rail, which is capable of indicating to trains on rails or electromagnetic guideways specialized maintenance, or other approaching a grade crossing equipped and any entity providing such similar equipment— with an active warning system whether transportation, including: (1) With one or more propelling commercial electric power is activating (1) Commuter or other short-haul motors designed for moving other the warning system at that crossing. railroad passenger service in a equipment; This term includes remote health metropolitan or suburban area and (2) With one or more propelling monitoring of grade crossing warning commuter railroad service that was motors designed to carry freight or systems if such monitoring system is operated by the Consolidated Rail passenger traffic or both; or equipped to indicate power status. Corporation on January 1, 1979; and

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(2) High speed ground transportation under 49 U.S.C. 21311. Appendix G locomotive enters the crossing, but in no systems that connect metropolitan areas, contains a schedule of civil penalty event shall a locomotive horn sounded without regard to whether those systems amounts used in connection with this in accordance with paragraph (a) of this use new technologies not associated part. section be sounded more than one- with traditional railroads; but does not quarter mile (1,320 feet) in advance of include rapid transit operations in an § 222.13 Who is responsible for compliance? the nearest public highway-rail grade urban area that are not connected to the crossing. general railroad system of Any person, including but not limited transportation. to a railroad, contractor for a railroad, or § 222.23 How does this regulation affect Relevant collision means a collision at a local or State governmental entity that sounding of a horn during an emergency or other situations? a highway-rail grade crossing between a performs any function covered by this train and a motor vehicle, excluding the part, must perform that function in (a)(1) Notwithstanding any other following: a collision resulting from an accordance with this part. provision of this part, a locomotive engineer may sound the locomotive activation failure of an active grade § 222.15 How does one obtain a waiver of crossing warning system; a collision in a provision of this regulation? horn to provide a warning to vehicle which there is no driver in the motor operators, pedestrians, trespassers or (a) Except as provided in paragraph crews on other trains in an emergency vehicle; or a collision in which the (b), two parties must jointly file a highway vehicle struck the side of the situation if, in the locomotive engineer’s petition (request) for a waiver. They are sole judgment, such action is train beyond the fourth locomotive unit the railroad owning or controlling or rail car. appropriate in order to prevent operations over the railroad tracks imminent injury, death or property Supplementary safety measure (SSM) crossing the public highway-rail grade means a safety system or procedure damage. crossing and the public authority which (2) Notwithstanding any other established in accordance with this part has jurisdiction over the roadway which is provided by the appropriate provision of this part, including crossing the railroad tracks. provisions addressing the establishment traffic control authority or law (b) If the railroad and the public of quiet zones, limits on the length of enforcement authority responsible for authority cannot reach agreement to file time in which a horn may be sounded, safety at the highway-rail grade a joint petition, either party may file a or installation of wayside horns within crossing, that is determined by the request for a waiver; however, the filing quiet zones, this part does not preclude Associate Administrator to be an party must specify in its petition the the sounding of locomotive horns in effective substitute for the locomotive steps it has taken in an attempt to reach emergency situations, nor does it horn in the prevention of highway-rail agreement with the other party. The impose a legal duty to sound the casualties. Appendix A to this part lists filing party must also provide the other locomotive horn in such situations. such SSMs. party with a copy of the petition filed (b) Nothing in this part restricts the Waiver means a temporary or with FRA. permanent modification of some or all (c) Each petition for waiver must be use of the locomotive horn where active of the requirements of this part as they filed in accordance with 49 CFR part warning devices have malfunctioned apply to a specific party under a specific 211. and use of the horn is required by one set of facts. Waiver does not refer to the (d) If the Administrator finds that a of the following sections of this Chapter: process of establishing quiet zones or waiver of compliance with a provision §§ 234.105; 234.106; or 234.107, or approval of quiet zones in accordance of this part is in the public interest and where warning systems are temporarily with the provisions of this part. consistent with the safety of highway out of service during inspection, Wayside horn means a stationary horn and railroad users, the Administrator maintenance, or testing. Nothing in this located at a highway rail grade crossing, may grant the waiver subject to any part restricts the use of the locomotive designed to provide, upon the approach conditions the Administrator deems horn for purposes other than highway- of a locomotive or train, audible necessary. rail crossing safety (e.g., to announce the warning to oncoming motorists of the approach of the train to roadway approach of a train. Subpart B—Use of Locomotive Horns workers in accordance with a program adopted under part 214 of this Chapter, § 222.11 What are the penalties for failure § 222.21 When must a locomotive horn be or where required for other purposes to comply with this regulation? used? under the railroad’s operating rules). Any person who violates any (a) Except as provided in this part, the requirement of this part or causes the locomotive horn on the lead locomotive § 222.25 How does this rule affect private violation of any such requirement is of a train, lite locomotive consist, highway-rail grade crossings? subject to a civil penalty of least $500 individual locomotive, or lead cab car This rule does not require the routine and not more than $11,000 per shall be sounded when such locomotive sounding of locomotive horns at private violation, except that: penalties may be or lead car is approaching and passes highway-rail grade crossings. Except as assessed against individuals only for through each public highway-rail grade specified in this section, this part is not willful violations, and, where a grossly crossing. Sounding of the locomotive meant to address the subject of private negligent violation or a pattern of horn with two long, one short, and one grade crossings and is not intended to repeated violations has created an long blast shall be initiated at a location affect present State or local laws or imminent hazard of death or injury to so as to be in accord with paragraph (b) orders, or private contractual or other persons, or has caused death or injury, of this section and shall be repeated or arrangements regarding the routine a penalty not to exceed $22,000 per prolonged until the locomotive or train sounding of locomotive horns at private violation may be assessed. Each day a occupies the crossing. This pattern may highway-rail grade crossings. violation continues shall constitute a be varied as necessary where crossings (a) Private highway-rail grade separate offense. Any person who are spaced closely together. crossings may be included in a quiet knowingly and willfully falsifies a (b) The locomotive horn shall begin to zone. record or report required by this part be sounded at least 15 seconds, but no (b) Private highway-rail grade may be subject to criminal penalties more than 20 seconds, before the crossings which are located in New

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Quiet Zones and which allow access to the New Quiet Zone resulting from the (e) All public crossings within the the public, or which provide access to addition of one or more crossings to a quiet zone must be in compliance with active industrial or commercial sites, Pre-Rule Quiet Zone shall be at least requirements of the MUTCD. may be included in a quiet zone only if one-half mile in length and shall a diagnostic team evaluates the crossing comply with all requirements applicable § 222.37 Who may establish a quiet zone? and the crossing is equipped or treated to New Quiet Zones. The deletion of any (a) A public authority may establish in accord with the recommendations of crossing from a Pre-Rule Quiet Zone, quiet zones that are consistent with the such diagnostic team. with the exception of a grade separation provisions of this part. If a proposed (c)(1) At a minimum, every private or crossing closure, must result in a quiet zone includes public grade highway-rail grade crossing within a quiet zone of at least one-half mile in crossings under the authority and New Quiet Zone shall be marked by a length in order to retain Pre-Rule Quiet control of more than one public crossbuck and a ‘‘STOP’’ sign, each of Zone status. authority (such as a county road and a State highway crossing the railroad which shall conform to the standards (3) A quiet zone may include tracks at different crossings), both contained in the MUTCD, and shall be highway-rail grade crossings on a public authorities must agree to equipped with advance warning signs in segment of rail line crossing more than establishment of the quiet zone, and compliance with § 222.35(c). one political jurisdiction. (2) At a minimum, every private must jointly, or by delegation provided (b) Active grade crossing warning highway-rail grade crossing within a to one of the authorities, take such devices. (1) Each public highway-rail Pre-Rule Quiet Zone shall, by December actions as are required by this part. grade crossing in a New Quiet Zone 18, 2006, be marked by a crossbuck and (b) A public authority may establish established under this subpart must be a ‘‘STOP’’ sign, each of which shall quiet zones irrespective of State laws equipped, no later than the conform to the standards contained in covering the subject matter of sounding implementation date of the New Quiet the MUTCD, and shall be equipped with or silencing locomotive horns at public Zone, with active grade crossing advance warning signs in compliance highway-rail grade crossings. Nothing in warning devices comprising both with § 222.35(c) this part, however, is meant to affect any flashing lights and gates which control other applicable role of State agencies or Subpart C—Exceptions to the Use of traffic over the crossing and that the Federal Highway Administration in the Locomotive Horn conform to the standards contained in decisions regarding funding or the MUTCD. Such warning devices shall construction priorities for grade crossing § 222.31 [Reserved] be equipped with constant warning time safety projects, selection of traffic Silenced Horns at Individual Crossings devices, if reasonably practical, and control devices, or engineering power-out indicators. standards for roadways or traffic control § 222.33 Can locomotive horns be silenced (2) Pre-Rule Quiet Zones must retain, devices. at an individual public highway-rail grade and may upgrade the grade crossing (c) A State agency may provide crossing which is not within a quiet zone? safety warning system which existed as administrative and technical services to (a) A railroad operating over an of December 18, 2003. Any such public authorities by advising them, individual public highway-rail crossing, upgrade shall include constant warning acting on their behalf, or acting as a may, at its discretion, cease the time devices, where reasonably central contact point in dealing with sounding of the locomotive horn if the practical, and power-out indicators. In FRA; however, any public authority locomotive speed is 15 miles per hour no event may the grade crossing safety eligible to establish a quiet zone under or less and train crew members, or warning system which existed as of this part may do so. appropriately equipped flaggers, as December 18, 2003, be downgraded. defined in 49 CFR 234.5, flag the Risk reduction resulting from upgrading § 222.39 How is a quiet zone established? crossing to provide warning of to flashing lights or gates may be (a) Public authority designation. This approaching trains to motorists. credited in calculating the quiet zone’s paragraph (a) describes how a quiet (b) This section does not apply where Quiet Zone Risk Index. zone may be designated by a public active grade crossing warning devices authority without the need for formal have malfunctioned and use of the horn (c) Advance warning signs. (1) Subject to paragraph (c)(2) of this section, each application to, and approval by FRA. If is required by 49 CFR 234.105, 234.106, a public authority complies with either or 234.107. highway approach to every public and private highway-rail grade crossing paragraph (a)(1), (2), or (3) of this Silenced Horns at Groups of within a Pre-Rule Quiet Zone or New section, and complies with the Crossings—Quiet Zones Quiet Zone shall be equipped with an information and notification provisions advance warning sign which advises the of § 222.43, a public authority may § 222.35 What are minimum requirements designate a quiet zone without the for quiet zones? motorist that train horns are not sounded at the crossing. Such sign shall necessity for FRA review and approval. The following requirements apply to (1) A quiet zone may be established conform to the standards contained in quiet zones established in conformity by implementing, at every public the MUTCD issued by the Federal with this part. highway-rail grade crossing within the Highway Administration. (a) Minimum length. (1) The quiet zone, one or more SSMs identified minimum length of a New Quiet Zone (2) Each highway approach to every in Appendix A of this part. established under this part shall be one- public and private highway-rail grade (2) A quiet zone may be established if half mile along the length of railroad crossing in a Pre-Rule Quiet Zone shall the Quiet Zone Risk Index is at, or right-of-way. be equipped with such advance warning below, the Nationwide Significant Risk (2) The length of a Pre-Rule Quiet signs described in paragraph (c)(1) of Threshold, as follows: Zone may continue unchanged from this section by December 18, 2006. (i) If the Quiet Zone Risk Index is that which existed as of October 9, 1996. (d) All private crossings within the already at, or below, the Nationwide Because the addition of any crossing to quiet zone must be treated in Significant Risk Threshold without a Pre-Rule Quiet Zone ends the accordance with this section and being reduced by implementation of grandfathered status of that quiet zone, § 222.25. SSMs; or

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(ii) If SSMs are implemented which public authority is in compliance with this paragraph will require are sufficient to reduce the Quiet Zone paragraph (b)(1) of this section and has implementation of SSMs or ASMs in Risk Index to a level at, or below, the satisfactorily demonstrated that the accord with § 222.39. Nationwide Significant Risk Threshold. SSMs and ASMs proposed by the public (2) In order to provide time for the (3) A quiet zone may be established if authority result in a Quiet Zone Risk public authority to plan for and SSMs are implemented which are Index which is either: implement quiet zones which are in sufficient to reduce the Quiet Zone Risk (A) At or below the risk level which compliance with the requirements of Index to a level at or below the risk level would exist if locomotive horns this part, a public authority may which would exist if locomotive horns sounded at all crossings in the quiet continue locomotive horn restrictions at sounded at all public crossings in the zone or Pre-Rule Quiet Zones which do not quiet zone. (B) At, or below, the Nationwide qualify for automatic approval for a (b) Public authority application to Significant Risk Threshold. period of five years from December 18, FRA. (1) A public authority may apply (ii) The Associate Administrator may 2003, provided that, the public to the Associate Administrator for include in any decision of approval authority has, within three years of approval of a quiet zone which does not such conditions as may be necessary to December 18, 2003, filed with the meet the standards for public authority ensure that the proposed safety Associate Administrator a detailed plan designation under paragraph (a) of this improvements are effective. If the for establishing a quiet zone under this section, but in which it is proposed that Associate Administrator does not part, including, in the case of a plan one or more safety measures be approve the quiet zone, the Associate requiring approval under § 222.39(b), all implemented. Such proposed quiet zone Administrator describes in the decision of the required elements of filings under may include only ASMs, or a the basis upon which the decision was that paragraph together with a timetable combination of ASMs and SSMs at made. A decision denying approval may for implementation of safety various crossings within the quiet zone. be reviewed as provided in § 222.57(b). improvements. Note that an ‘‘SSM’’ which does not (c) Appendix C contains guidance on (3) Locomotive horn restrictions may fully comply with the requirements for how to create a quiet zone. continue for an additional three years an SSM under Appendix A, is beyond the five year period permitted considered to be an ASM. The public § 222.41 How does this rule affect Pre-Rule Quiet Zones? by paragraph (b)(2) of this section, if, authority’s application must: (i) Prior to December 18, 2006, the (i) Contain an accurate, complete and (a) Pre-Rule Quiet Zones which appropriate State agency provides to the current Grade Crossing Inventory Form qualify for automatic approval. A Pre- Associate Administrator: a for each public and private highway-rail Rule Quiet Zone will be considered comprehensive State-wide grade crossing within the proposed automatically approved and may remain implementation plan and funding quiet zone; in effect, subject to § 222.51, if the Pre- commitment for implementing (ii) Contain sufficient detail Rule Quiet Zone is in compliance with improvements at Pre-Rule Quiet Zones concerning the present safety measures § 222.35 (minimum requirements for which do not qualify for automatic at the public highway-rail grade quiet zones) and § 222.43 (notice and approval under paragraph (a) of this crossings proposed to be included in the information requirements, with the section, which, when implemented, quiet zone to enable the Associate exception of providing advance notice) would enable them to qualify for a quiet Administrator to evaluate their and the Pre-Rule Quiet Zone: zone under this part; and effectiveness; (1) Has at every public highway-rail (ii) Prior to December 18, 2007, either (iii) Contain detailed information as to grade crossing within the quiet zone, physical improvements are initiated at a which SSMs or ASMs are proposed to one or more SSMs identified in portion of the crossings within the quiet be implemented and at which public or Appendix A of this part; or zone, or the appropriate State agency private highway-rail grade crossings (2) The Quiet Zone Risk Index as last has participated in quiet zone within the proposed quiet zone, published by FRA is at, or below, the improvements in one or more including membership and Nationwide Significant Risk Threshold; jurisdictions elsewhere within the State. recommendations of the diagnostic or (4) In the event that the safety team, if any, which reviewed the (3) The Quiet Zone Risk Index as last improvements planned for the quiet proposed quiet zone; published by FRA is above the zone require approval of FRA under (iv) Contain a commitment to Nationwide Significant Risk Threshold § 222.39(b), the public authority should implement the proposed safety but less than twice the Nationwide apply for such approval prior to June 19, measures within the proposed quiet Significant Risk Threshold and there 2006, to assure that FRA has ample time zone; have been no relevant collisions at any in which to review such application (v) Demonstrate through data and public grade crossing within the quiet prior to the end of the extension period. analysis that the proposed zone for the five years preceding implementation of these measures will December 18, 2003. § 222.43 What notices and other cause a reduction in the Quiet Zone (b) Pre-Rule Quiet Zones which do not information are required to establish a quiet Risk Index to, or below, either the risk qualify for automatic approval. (1) If a zone? level which would exist if locomotive Pre-Rule Quiet Zone does not qualify for (a) (1) Upon compliance with horns sounded at all crossings in the automatic approval under paragraph (a) §§ 222.39(a) or 222.39(b) resulting in the quiet zone or to a risk level at, or below, of this section, existing restrictions may, establishment or approval of a quiet the Nationwide Significant Risk at the public authority’s discretion, zone, or of its continuation under Threshold; and remain in place on an interim basis § 222.41, the public authority shall (vi) Be provided to the parties listed under the provisions of this paragraph provide written notice, by certified mail, in § 222.43(a)(1) in the manner specified (b) and upon compliance with § 222.43 return receipt requested, of the quiet in that section. (notice and information requirements, zone implementation to: all railroads (2)(i) The Associate Administrator with the exception of providing advance operating over the public highway-rail will approve the quiet zone if, in the notice). Continuation of a quiet zone grade crossings within the quiet zone; Associate Administrator’s judgment, the beyond the interim periods specified in the highway or traffic control authority

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or law enforcement authority having with the requirements of this part and public crossing. This paragraph control over vehicular traffic at the the manner in which that person can be addresses quiet zones established crossings within the quiet zone; the contacted; pursuant to §§ 222.39(a)(2) and (a)(3), landowner having control over any (4) A list of all parties notified in § 222.39(b) and §§ 222.41(a)(2) and (a)(3) private crossings within the quiet zone; accordance with paragraph (a) of this (quiet zones which do not have an SSM the State agency responsible for section, together with copies of the at every public crossing within the quiet highway and road safety; and the certificates of service showing to whom zone). Between 21⁄2 and 3 years after the Associate Administrator. and by what means the notice was date of the original quiet zone (2)(i) Notice of the establishment of a provided; and implementation notice provided by the quiet zone established under the (5) A statement signed by the chief public authority to the FRA and relevant provisions of § 222.39 (New Quiet executive officer of each public railroads under § 222.43(a), and between Zones) shall provide the date upon authority establishing or continuing a 21⁄2 and 3 years after the last affirmation which routine locomotive horn use at quiet zone under this part, in which the under this section, the public authority grade crossings shall cease, but in no official shall certify that responsible must: event shall the date be earlier than 21 officials of the public authority have (1) Affirm in writing to the Associate days after the date of mailing of such reviewed documentation prepared by or Administrator that all SSMs and ASMs written notification. for FRA, and filed in Docket No. FRA– implemented within the quiet zone (ii) Notice of the continuation of a 1999–6439, sufficient to make an continue to conform to the requirements quiet zone under §§ 222.41(a) and (b) informed decision regarding the of Appendices A and B of this part or (Pre-Rule Quiet Zone) shall be served no advisability of establishing the quiet the terms of the Quiet Zone approval. later than December 18, 2004. zone. FRA documents which may be of Copies of such notification must be (3) The notice shall list the grade interest are found on FRA’s Web site at provided to the parties identified in crossings within the quiet zone, http://www.fra.dot.gov. § 222.43(a)(1) by certified mail, return identified by both U.S. DOT National receipt requested; and Highway-Rail Grade Crossing Inventory § 222.45 When is a railroad required to (2) Must provide to the Associate Number and street or highway name. cease routine use of locomotive horns at crossings? Administrator an up-to-date, accurate, The notice shall also include specific and complete Grade Crossing Inventory reference to the regulatory provision After notification from a public Form for each public and private which provides the basis for authority, pursuant to § 222.43, that a highway-rail grade crossing within the establishment or continuation of the quiet zone is being established, a quiet zone. quiet zone, citing as appropriate, either railroad shall cease routine use of the § 222.39(a)(1), 222.39(a)(2)(i), locomotive horn at all public and § 222.49 Who may file Grade Crossing 222.39(a)(2)(ii), 222.39(a)(3), 222.39(b), private highway-rail grade crossings Inventory Forms? or 222.41. Reference to §§ 222.39(a)(1), identified by the public authority upon (a) Grade Crossing Inventory Forms (2), or (3) shall include a copy of the the date set by the public authority. required to be filed with the Associate FRA web page containing the quiet zone Administrator in accordance with data upon which the public authority § 222.47 What periodic updates are required? §§ 222.43 and 222.47 may be filed by relies. Reference to § 222.39(b) shall the public authority if, for any reason, include a copy of FRA’s notification of (a) Quiet zones with SSMs at each such forms are not timely submitted by approval. Reference to § 222.41 shall public crossing. This paragraph the State and railroad. include a statement as to how the quiet addresses quiet zones established (b) Within 30 days after receipt of a zone is in compliance with the pursuant to § 222.39(a)(1) and written request of the public authority, requirements of that section and, if § 222.41(a)(1) (quiet zones with an SSM the railroad owning the line of railroad appropriate, shall include a copy of the implemented at every public crossing that includes public or private highway 1 FRA web page containing the quiet zone within the quiet zone). Between 4 ⁄2 and rail grade crossings within the quiet data upon which the public authority 5 years after the date of the original zone or proposed quiet zone shall relies. The notice shall be accompanied quiet zone implementation notice provide to the State and public by a certificate of service showing to provided by the public authority to the authority sufficient current information whom and by what means the notice FRA and relevant railroads under regarding the grade crossing and the 1 was provided. § 222.43(a), and between 4 ⁄2 and 5 years railroad’s operations over the grade (b) The following must be submitted after the last affirmation under this crossing to enable the State and public to the Associate Administrator together section, the public authority must: authority to complete the Grade with the notification required in (1) Affirm in writing to the Associate Crossing Inventory Form. paragraph (a) of this section: Administrator that the SSMs (1) An accurate and complete Grade implemented within the quiet zone § 222.51 Under what conditions will FRA Crossing Inventory Form for each public continue to conform to the requirements review and terminate quiet zone status? and private highway-rail grade crossing of Appendix A of this part. Copies of (a) New Quiet Zone—Annual risk within the quiet zone, dated within six such affirmation must be provided to review. (1) FRA will annually calculate months prior to designation or FRA the parties identified in § 222.43(a) by the Quiet Zone Risk Index for each quiet approval of the quiet zone; certified mail, return receipt requested; zone established pursuant to (2) An accurate, complete and current and §§ 222.39(a)(2) (quiet zones established Grade Crossing Inventory Form (2) Provide to the Associate based on comparison with Nationwide reflecting SSMs and ASMs in place Administrator an up-to-date, accurate, Significant Risk Threshold), and upon establishment of the quiet zone. and complete Grade Crossing Inventory 222.39(b)(2)(ii) (quiet zones established SSMs or ASMs that cannot be fully Form for each public and private based on approval of FRA and that described on the Inventory Form shall highway-rail grade crossing within the reduce risk to a level at, or below, the be separately described; quiet zone. Nationwide Significant Risk Threshold). (3) The name and title of the person (b) Quiet zones which do not have a Annual risk reviews will not be responsible for monitoring compliance supplementary safety measure at each conducted for quiet zones established

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pursuant to §§ 222.39(a)(1) (quiet zones section shall result in the termination of (§ 222.41(a)(3)), the quiet zone may established by having an SSM at every the quiet zone three years after the date continue unchanged if the Quiet Zone public crossing within the quiet zone) of receipt of notification from FRA that Risk Index as last calculated by FRA and §§ 222.39(a)(3) and (b)(2)(i) (quiet the Quiet Zone Risk Index exceeds the remains below twice the Nationwide zones established based on the risk level Nationwide Significant Risk Threshold. Significant Risk Threshold and no having been reduced to a level fully (b) Pre-Rule Quiet Zone—Annual risk relevant collisions occurred at a public compensating for the absence of the review. (1) FRA will annually calculate grade crossing within the quiet zone train horn by use of SSMs). FRA will the Quiet Zone Risk Index for each Pre- during the preceding calendar year. notify each public authority of the Quiet Rule Quiet Zone that qualified for (ii) If the Quiet Zone Risk Index as Zone Risk Index for the preceding automatic approval pursuant to last calculated by FRA is at, or above, calendar year for each such quiet zone §§ 222.41(a)(2) and (a)(3). FRA will twice the Nationwide Significant Risk in its jurisdiction. notify each public authority of the Quiet Threshold, or if a relevant collision (2) Actions to be taken by public Zone Risk Index for the preceding occurred at a public grade crossing authority to retain quiet zone. If the calendar year for each such quiet zone within the quiet zone during the Quiet Zone Risk Index is above the in its jurisdiction. FRA will also notify preceding calendar year, the quiet zone Nationwide Significant Risk Threshold, each public authority if a relevant will terminate six months after the date the quiet zone will terminate six months collision occurred at a grade crossing of receipt of notification from FRA that from the date of receipt of notification within the quiet zone during the the Quiet Zone Risk Index is at, or from FRA that the Quiet Zone Risk preceding calendar year. exceeds twice the Nationwide Index exceeds the Nationwide (2) Pre-Rule Quiet Zone authorized Significant Risk Threshold or that a Significant Risk Threshold, unless the under § 222.41(a)(2). (i) If a Pre-Rule relevant collision occurred at a crossing public authority takes the following Quiet Zone originally qualified for within the quiet zone, unless the public actions: automatic approval because the Quiet authority takes the actions specified in (i) Within six months after the date of Zone Risk Index was at, or below, the paragraph (b)(4) of this section. receipt of notification from FRA that the Nationwide Significant Risk Threshold (4) Actions to be taken by the public Quiet Zone Risk Index exceeds the (§ 222.41(a)(2)), the quiet zone may authority to retain a quiet zone. (i) Nationwide Significant Risk Threshold, continue unchanged if the Quiet Zone Within six months after the date of FRA provide to the Associate Administrator Risk Index as last calculated by FRA notification, the public authority shall a written commitment to lower the remains at, or below, the Nationwide provide to the Associate Administrator potential risk to the traveling public at Significant Risk Threshold. a written commitment to lower the the crossings within the quiet zone to a (ii) If the Quiet Zone Risk Index as potential risk to the traveling public at level at, or below, the Nationwide last calculated by FRA is above the Significant Risk Threshold or to a level Nationwide Significant Risk Threshold, the crossings within the quiet zone by fully compensating for the absence of but is lower than twice the Nationwide reducing the Quiet Zone Risk Index to the train horn. Included in the Significant Risk Threshold and no a level at, or below, the Nationwide commitment statement shall be a relevant collisions have occurred at Significant Risk Threshold or to a level discussion of the specific steps to be crossings within the quiet zone within that fully compensates for the absence taken by the public authority to increase the five years preceding the annual risk of the train horn. Included in the safety at the crossings within the quiet review, then the quiet zone may commitment statement shall be a zone; and continue as though it originally received discussion of the specific steps to be (ii) Within three years after the date automatic approval pursuant to taken by the public authority to increase of receipt of notification from FRA that § 222.41(a)(3). safety at the public crossings within the the Quiet Zone Risk Index exceeds the (iii) If the Quiet Zone Risk Index as quiet zone; and Nationwide Significant Risk Threshold, last calculated by FRA is at, or above, (ii) Within three years of the date of complete implementation of SSMs or twice the Nationwide Significant Risk FRA notification, the public authority ASMs sufficient to reduce the Quiet Threshold, or if the Quiet Zone Risk shall complete implementation of SSMs Zone Risk Index to a level at, or below, Index is above the Nationwide or ASMs sufficient to reduce the Quiet the Nationwide Significant Risk Significant Risk Threshold, but is lower Zone Risk Index to a level at, or below, Threshold, or to a level that fully than twice the Nationwide Significant the Nationwide Significant Risk compensates for the absence of the train Risk Threshold and a relevant collision Threshold, or to a level that fully horn, and receive approval from the occurred at a crossing within the quiet compensates for the absence of the train Associate Administrator, under the zone within the preceding five calendar horn, and receive approval from the procedures set forth in § 222.39(b), for years, the quiet zone will terminate six Associate Administrator, under the continuation of the quiet zone. If the months after the date of receipt of procedures set forth in § 222.39(b), for Quiet Zone Risk Index is reduced to a notification from FRA of the Nationwide continuation of the quiet zone. If the level that fully compensates for the Significant Risk Threshold level, unless Quiet Zone Risk Index is reduced to a absence of the train horn, the quiet zone the public authority takes the actions level that fully compensates for the will be considered to have been specified in paragraph (b)(4) of this absence of the train horn, the quiet zone established pursuant to § 222.39(a)(3) section. will be considered to have been and subsequent annual risk reviews will (3) Pre-Rule Quiet Zone authorized established pursuant to § 222.39(a)(3) not be conducted for that quiet zone. under § 222.41(a)(3). (i) If a Pre-Rule and subsequent annual risk reviews will (iii) Failure to comply with paragraph Quiet Zone originally qualified for not be conducted for that quiet zone. (a)(2)(i) of this section shall result in the automatic approval because the Quiet (iii) Failure to comply with paragraph termination of the quiet zone six months Zone Risk Index was above the (b)(4)(i) of this section shall result in the after the date of receipt of notification Nationwide Significant Risk Threshold termination of the quiet zone six months from FRA that the Quiet Zone Risk but was below twice the Nationwide after the date of receipt of notification Index exceeds the Nationwide Significant Risk Threshold and no from FRA. Failure to comply with Significant Risk Threshold. Failure to relevant collisions had occurred within paragraph (b)(4)(ii) of this section shall comply with paragraph (a)(2)(ii) of this the five year qualifying period result in the termination of the quiet

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zone three years after the date of receipt standards to appendix B of this part level of safety at least equivalent to that of notification from FRA. when the Associate Administrator provided by the locomotive horn. (c) Review at FRA’s initiative. The determines that such measures or (f) If the Associate Administrator Associate Administrator may, at any standards are an effective substitute for approves a new SSM or ASM, the time, review the status of any quiet the locomotive horn in the prevention of Associate Administrator will: notify the zone. If the Associate Administrator collisions and casualties at public applicant, if any; publish notice of such makes a preliminary determination that highway-rail grade crossings. action in the Federal Register; and add (b) Interested parties may apply for safety systems and measures do not the measure to the list of approved approval from the Associate fully compensate for the absence of the SSMs or ASMs. locomotive horn, or that there is a Administrator to demonstrate proposed significant risk with respect to loss of new SSMs or ASMs to determine (g) A public authority or other life or serious personal injury, the whether they are effective substitutes for interested party may appeal to the Associate Administrator will provide the locomotive horn in the prevention of Administrator from a decision by the written notice to the public authority collisions and casualties at public Associate Administrator granting or and all parties listed in § 222.43(a) and highway-rail grade crossings. denying an application for approval of will publish notice of the determination (c) The Associate Administrator may, a proposed SSM or ASM or the in the Federal Register. After providing after notice and opportunity for conditions or limitations imposed on its an opportunity for comment, the comment, order railroad carriers use in accordance with § 222.57 . Associate Administrator may require operating over a public highway-rail grade crossing or crossings to § 222.57 Can parties seek review of the that additional safety measures be taken Associate Administrator’s actions? or that the quiet zone be terminated. temporarily cease the sounding of The Associate Administrator’s decision locomotive horns at such crossings to (a) A public authority or other may be challenged in accordance with demonstrate proposed new SSMs or interested party may petition the § 222.57(b). Nothing in this section is ASMs, provided that such proposed Administrator for review of any intended to limit the Administrator’s new SSMs or ASMs have been subject decision by the Associate Administrator emergency authority under 49 U.S.C. to prior testing and evaluation. In granting or denying an application for 20104 and 49 CFR part 211. issuing such order, the Associate approval of a new SSM or ASM under (d) Notification of termination. In the Administrator may impose any § 222.55. The petition must be filed event that a quiet zone is terminated conditions or limitations on such use of within 60 days of the decision to be under the provisions of this section, it the proposed new SSMs or ASMs which reviewed, specify the grounds for the shall be the responsibility of the public the Associate Administrator deems requested relief, and be served upon all authority to notify all parties listed in necessary in order to provide the level parties identified in § 222.43(a). Unless § 222.43(a) and in the manner specified of safety at least equivalent to that the Administrator specifically provides in § 222.43(a), of such termination. provided by the locomotive horn. otherwise, and gives notice to the (e) Requirement to sound the (d) Upon completion of a petitioner or publishes a notice in the locomotive horn. Upon receipt of demonstration of proposed new SSMs Federal Register, the filing of a petition notification pursuant to paragraph (d), or ASMs, interested parties may apply under this paragraph does not stay the or upon receipt of notification from FRA to the Associate Administrator for their effectiveness of the action sought to be that the quiet zone is being terminated, approval. Applications for approval reviewed. The Administrator may railroads shall, within seven days, and shall be in writing and shall include the reaffirm, modify, or revoke the decision in accordance with the provisions of following: of the Associate Administrator without this part, sound the locomotive horn (1) The name and address of the further proceedings and shall notify the when approaching and passing through applicant; petitioner and other interested parties in every public highway-rail grade crossing (2) A description and design of the writing or by publishing a notice in the within the former quiet zone. proposed new SSM or ASM; Federal Register. (3) A description and results of the § 222.53 What are the requirements for demonstration project in which the (b) A public authority may challenge supplementary and alternative safety proposed SSMs or ASMs were tested; a decision by the Associate measures? (4) Estimated costs of the proposed Administrator to deny an application by (a) Approved SSMs are listed in new SSM or ASM; and that authority for approval of a quiet appendix A of this part. (5) Any other information deemed zone, or to require additional safety (b) Additional ASMs that may be necessary. measures, or that a quiet zone be included in a request for FRA approval (e) If the Associate Administrator is terminated, by filing a petition for of a quiet zone under § 222.39(b) are satisfied that the proposed safety reconsideration with the Associate listed in appendix B of this part. measure fully compensates for the Administrator. The petition must (c) The following do not, individually absence of the warning provided by the specify the grounds for the requested or in combination, constitute SSMs or locomotive horn, the Associate relief, be filed within 60 days of the ASMs: Standard traffic control device Administrator will approve its use as an decision to be reconsidered, and be arrangements such as reflectorized SSM to be used in the same manner as served upon all parties identified in crossbucks, STOP signs, flashing lights, the measures listed in Appendix A of § 222.43(a). Upon receipt of a timely and or flashing lights with gates that do not this part, or the Associate proper petition, the Associate completely block travel over the line of Administrator, may approve its use as Administrator will provide the railroad, or traffic signals. an ASM to be used in the same manner petitioner an opportunity to submit as the measures listed in Appendix B of additional materials and for an informal § 222.55 How are new supplementary or this part. The Associate Administrator hearing. Upon review of the additional alternative safety measures approved? may impose any conditions or materials and completion of any hearing (a) The Associate Administrator may limitations on use of the SSMs or ASMs requested, the Associate Administrator add new SSMs and standards to which the Associate Administrator shall issue a decision on the petition appendix A and new ASMs and deems necessary in order to provide the that will be administratively final.

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§ 222.59 When may a wayside horn be the probability of a collision with a train at devices and power-out indicators are not used? the crossing is zero during the period the required to be added to existing warning (a) Notwithstanding any provisions in crossing is closed. Effectiveness would systems in Pre-Rule Quiet Zones. However, if this part to the contrary: therefore equal 1. However, analysis should warning systems in Pre-Rule Quiet Zones are take into consideration that traffic would upgraded, or new warning systems are (1) A wayside horn conforming to the need to be redistributed among adjacent installed, constant warning time devices, if requirements of Appendix E of this part crossings or grade separations for the purpose reasonably practical, and power-out may be used in lieu of a locomotive of estimating risk following the silencing of indicators are required. horn at any highway-rail grade crossing train horns, unless the particular ‘‘closure’’ d. The gap between the ends of the equipped with an active warning system was accomplished by a grade separation. entrance and exit gates (on the same side of consisting of, at a minimum, flashing Required: the railroad tracks) when both are in the fully lights and gates; and a. The closure system must completely lowered, or down, position must be less than (2) A wayside horn conforming to the block highway traffic from entering the two feet if no median is present. If the crossing. highway approach is equipped with a requirements of Appendix E of this part b. The crossing must be closed during the may be installed within a quiet zone. median or a channelization device between same hours every day. the approach and exit lanes, the lowered For purposes of calculating the length of c. The crossing may only be closed during gates must reach to within one foot of the a quiet zone, the presence of a wayside one period each 24-hours. median or channelization device, measured horn at a highway-grade crossing within d. Barricades and signs used for closure of horizontally across the road from the end of a quiet zone shall be considered in the the roadway shall conform to the standards the lowered gate to the median or same manner as a grade crossing treated contained in the MUTCD. channelization device or to a point over the with an SSM. A grade crossing e. Daily activation and deactivation of the edge of the median or channelization device. equipped with a wayside horn shall not system is the responsibility of the public The gate and the median top or authority responsible for maintenance of the be considered in calculating the Quiet channelization device do not have to be at street or highway crossing the railroad. The the same elevation. Zone Risk Index or Crossing Corridor entity may provide for third party activation e. ‘‘Break-away’’ channelization devices Risk Index. and deactivation; however, the public must be frequently monitored to replace (b) A public authority installing a authority shall remain fully responsible for broken elements. wayside horn at a grade crossing within compliance with the requirements of this Recommendations for new installations a quiet zone shall identify by both the part. only: U.S. DOT National Highway-Rail Grade f. The system must be tamper and vandal f. Gate timing should be established by a Crossing Inventory Number and street or resistant to the same extent as other traffic qualified traffic engineer based on site control devices. specific determinations. Such determination highway name the grade crossing Recommended: equipped with such wayside horn in its should consider the need for and timing of Signs for alternate highway traffic routes a delay in the descent of the exit gates notice to railroads and other parties should be erected in accordance with (following descent of the conventional required by § 222.43. MUTCD and State and local standards and entrance gates). Factors to be considered may (c) A public authority installing a should inform pedestrians and motorists that include available storage space between the wayside horn at a grade crossing outside the streets are closed, the period for which gates that is outside the fouling limits of the a quiet zone shall provide written notice they are closed, and that alternate routes track(s) and the possibility that traffic flows to the Associate Administrator and to must be used. may be interrupted as a result of nearby 2. Four-Quadrant Gate System: Install gates intersections. each railroad operating over the grade at a crossing sufficient to fully block highway crossing that a wayside horn is being g. A determination should be made as to traffic from entering the crossing when the whether it is necessary to provide vehicle installed and the date on which the gates are lowered, including at least one gate presence detectors (VPDs) to open or keep wayside horn will be operational. The for each direction of traffic on each approach. open the exit gates until all vehicles are clear grade crossing shall be identified by Effectiveness: of the crossing. VPD should be installed on both the U.S. DOT National Highway- Four-quadrant gates only, no presence one or both sides of the crossing and/or in Rail Grade Crossing Inventory Number detection: .82. the surface between the rails closest to the and street or highway name. The public Four-quadrant gates only, with presence field. Among the factors that should be authority shall provide notification of detection: .77. considered are the presence of intersecting Four-quadrant gates with traffic roadways near the crossing, the priority that the operational date at least 21 days in channelization of at least 60 feet (with or advance. the traffic crossing the railroad is given at without presence detection): .92. such intersections, the types of traffic control (d) A railroad operating over a grade Required: devices at those intersections, and the crossing equipped with an operational Four-quadrant gate systems shall conform presence and timing of traffic signal wayside horn installed within a quiet to the standards for four-quadrant gates preemption. zone pursuant to this section shall cease contained in the MUTCD, and shall in h. Highway approaches on one or both routine locomotive horn use at the grade addition comply with the following: sides of the highway-rail crossing may be crossing. A railroad operating over a a. When a train is approaching, all highway provided with medians or channelization grade crossing equipped with an approach and exit lanes on both sides of the devices between the opposing lanes. Medians highway-rail crossing must be spanned by should be defined by a non-traversable curb operational wayside horn installed gates, thus denying to the highway user the outside of a quiet zone may cease or traversable curb, or by reflectorized option of circumventing the conventional channelization devices, or by both. routine locomotive horn use by approach lane gates by switching into the i. Remote monitoring (in addition to agreement with the public authority. opposing (oncoming) traffic lane in order to power-out indicators, which are required) of enter the crossing and cross the tracks. the status of these crossing systems is Appendix A to Part 222—Approved b. Crossing warning systems must be Supplementary Safety Measures preferable. This is especially important in activated by use of constant warning time those areas in which qualified railroad signal 1. Temporary Closure of a Public Highway- devices unless existing conditions at the department personnel are not readily Rail Grade Crossing: Close the crossing to crossing would prevent the proper operation available. highway traffic during designated quiet of the constant warning time devices. 3. Gates with Medians or Channelization periods. c. Crossing warning systems must be Devices: Install medians or channelization Effectiveness: 1.0. equipped with power-out indicators. devices on both highway approaches to a Because an effective closure system Note: Requirements b and c apply only to public highway-rail grade crossing denying prevents vehicle entrance onto the crossing, New Quiet Zones. Constant warning time to the highway user the option of

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circumventing the approach lane gates by channelization device do not have to be at proposed modified SSMs and/or non- switching into the opposing (oncoming) the same elevation. engineering ASMs will meet with FRA’s traffic lane in order to drive around lowered g. ‘‘Break-away’’ channelization devices approval. If non-engineering ASMs are gates to cross the tracks. must be frequently monitored to replace proposed, the public authority may wish to Effectiveness: broken elements confirm with FRA that the sampling methods Channelization devices—.75 4. One Way Street with Gate(s): Gate(s) are appropriate. Non-traversable curbs with or without must be installed such that all approaching channelization devices—.80. highway lanes to the public highway-rail I. Modified SSMs Required: grade crossing are completely blocked. a. If there are unique circumstances a. Opposing traffic lanes on both highway Effectiveness: .82. pertaining to a specific crossing or number of approaches to the crossing must be separated Required: crossings which prevent SSMs from being by either: (1) Medians bounded by non- a. Gate arms on the approach side of the fully compliant with all of the SSM traversable curbs or (2) channelization crossing should extend across the road to requirements listed in Appendix A, those devices. within one foot of the far edge of the SSM requirements may be adjusted or b. Medians or channelization devices must pavement. If a gate is used on each side of revised. In that case, the SSM, as modified extend at least 100 feet from the gate arm, or the road, the gap between the ends of the by the pubic authority, will be treated as an if there is an intersection within 100 feet of gates when both are in the lowered, or down, ASM under this Appendix B, and not as an the gate, the median or channelization device position must be no more than two feet. SSM under Appendix A. FRA will review the must extend at least 60 feet from the gate b. If only one gate is used, the edge of the safety effects of the modified SSMs and the arm. road opposite the gate mechanism must be proposed quiet zone, and will approve the c. Intersections of two or more streets, or configured with a non-traversable curb proposal if it finds that the Quiet Zone Risk a street and an alley, that are within 60 feet extending at least 100 feet. Index is reduced to the level that would be of the gate arm must be closed or relocated. c. Crossing warning systems must be expected with the sounding of the train horns Driveways for private, residential properties activated by use of constant warning time or to a level at, or below the Nationwide (up to four units) within 60 feet of the gate devices unless existing conditions at the Significant Risk Threshold, whichever is arm are not considered to be intersections crossing would prevent the proper operation greater. under this part and need not be closed. of the constant warning time devices. b. A public authority may provide However, consideration should be given to d. Crossing warning systems must be estimates of effectiveness based upon taking steps to ensure that motorists exiting equipped with power-out indicators. Note: adjustments from the effectiveness levels the driveways are not able to move against Requirements c and d apply only to New provided in Appendix A or from actual field the flow of traffic to circumvent the purpose Quiet Zones. Constant warning time devices data derived from the crossing sites. The of the median and drive around lowered and power-out indicators are not required to specific crossing and applied mitigation gates. This may be accomplished by the be added to existing warning systems in Pre- measure will be assessed to determine the posting of ‘‘no left turn’’ signs or other means Rule Quiet Zones. However, if warning effectiveness of the modified SSM. FRA will of notification. For the purpose of this part, systems in Pre-Rule Quiet Zones are continue to develop and make available driveways accessing commercial properties upgraded, or new warning systems are effectiveness estimates and data from are considered to be intersections and are not installed, constant warning time devices, if experience under the final rule. allowed. It should be noted that if a public reasonably practical, and power-out c. If one or more of the requirements authority can not comply with the 60 feet or indicators are required. associated with an SSM as listed in 100 feet requirement, it may apply to FRA for Appendix B to Part 222—Alternative Appendix A is revised or deleted, data or a quiet zone under § 222.39(b), ‘‘Public Safety Measures analysis supporting the revision or deletion authority application to FRA.’’ Such must be provided to FRA for review. The arrangement may qualify for a risk reduction Introduction following engineering types of ASMs may be credit in calculation of the Quiet Zone Risk A public authority seeking approval of a included in a proposal for approval by FRA Index. Similarly, if a public authority finds quiet zone under public authority application for creation of a quiet zone: (1) Temporary that it is feasible to only provide to FRA (§ 222.39(b)) may include in its Closure of a Public Highway-Rail Grade channelization on one approach to the proposal ASMs listed in this appendix. Crossing, (2) Four-Quadrant Gate System, (3) crossing, it may also apply to FRA for Credit will be given for closing of public Gates With Medians or Channelization approval under § 222.39(b). Such an highway-rail grade crossings provided the Devices, and (4) One-Way Street With arrangement may also qualify for a risk baseline severity risk index at other crossings Gate(s). reduction credit in calculation of the Quiet is appropriately adjusted by increasing traffic II. Non-Engineering ASMs Zone Risk Index. counts at neighboring crossings as input data d. Crossing warning systems must be to the severity risk formula (except to the A. The following non-engineering ASMs activated by use of constant warning time extent that nearby grade separations are may be used in the creation of a Quiet Zone: devices unless existing conditions at the expected to carry that traffic). FRA Regional (The method for determining the crossing would prevent the proper operation Managers for Grade Crossing Safety can assist effectiveness of the non-engineering ASMs, of the constant warning time devices. in performing the required analysis. the implementation of the quiet zone, e. Crossing warning systems must be Appendix B addresses two types of ASMs: subsequent monitoring requirements, and equipped with power-out indicators. Note: Modified SSMs and non-engineering ASMs. provision for dealing with an unacceptable Requirements b and c apply only to New Modified SSMs are SSMs that do not fully effectiveness rate is provided in paragraph B. Quiet Zones. Constant warning time devices comply with the provisions listed in 1. Programmed Enforcement: Community and power-out indicators are not required to appendix A. Depending on the resulting and law enforcement officials commit to a be added to existing warning systems in Pre- configuration, non-compliant SSMs may still systematic and measurable crossing Rule Quiet Zones. However, if warning provide a substantial reduction in risk and monitoring and traffic law enforcement systems in Pre-Rule Quiet Zones are can contribute to the creation of quiet zones. program at the public highway-rail grade upgraded, or new warning systems are Non-engineering ASMs are programmed crossing, alone or in combination with the installed, constant warning time devices, if enforcement, public education and Public Education and Awareness ASM. reasonably practical, and power-out awareness, and photo enforcement that may Required: indicators are required. be used to reduce risk in the creation of a a. Subject to audit, a statistically valid f. The gap between the lowered gate and quiet zone. The public authority must receive baseline violation rate must be established the curb or channelization device must be written FRA approval of the quiet zone through automated or systematic manual one foot or less, measured horizontally across application prior to the silencing of train monitoring or sampling at the subject the road from the end of the lowered gate to horns. The public authority is strongly crossing(s); and the curb or channelization device or to a encouraged to submit the application to FRA b. A law enforcement effort must be point over the curb edge or channelization for review and comment before the appendix defined, established and continued along device. The gate and the curb top or B treatments are initiated to ensure that the with continual or regular monitoring that

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provides a statistically valid violation rate through automated or systematic manual sounded at all crossings in quiet zone or to that indicates the effectiveness of the law monitoring or sampling at the subject a risk level below the Nationwide Significant enforcement effort. crossing(s); and Risk Threshold, the public authority may 2. Public Education and Awareness: h. A law enforcement effort must be apply to FRA for approval of the quiet zone. Conduct, alone or in combination with defined, established and continued along Upon receiving written approval of the quiet programmed law enforcement, a program of with continual or regular monitoring. zone application from FRA, the public public education and awareness directed at B. The effectiveness of an ASM will be authority may then proceed with motor vehicle drivers, pedestrians and determined as follows: notifications and implementation of the quiet residents near the railroad to emphasize the 1. Establish the quarterly (3 months) zone. risks associated with public highway-rail baseline violation rates for each crossing in 7. Violation rates must be monitored for grade crossings and applicable requirements the proposed quiet zone. the next two calendar quarters and every of state and local traffic laws at those a. A violation in this context refers to a second quarter thereafter. If after five years crossings. motorist not complying with the automatic from the implementation of the quiet zone, Requirements: warning devices at the crossing (not stopping the violation rate for any quarter has never a. Subject to audit, a statistically valid for the flashing lights and driving over the exceeded the violation rate that was used to baseline violation rate must be established crossing after the gate arms have started to determine the effectiveness rate that was through automated or systematic manual descend, or driving around the lowered gate approved by FRA, violation rates may be monitoring or sampling at the subject arms). A violation does not have to result in monitored for one quarter per year. crossing(s); and a traffic citation for the violation to be 8. In the event that the violation rate is ever b. A sustainable public education and considered. greater than the violation rate used to awareness program must be defined, b. Violation data may be obtained by any determine the effectiveness rate that was established and continued along with method that can be shown to provide a approved by FRA, the public authority may continual or regular monitoring that provides statistically valid sample. This may include continue the quiet zone for another quarter. a statistically valid violation rate that the use of video cameras, other technologies If, in the second quarter the violation rate is indicates the effectiveness of the law (e.g. inductive loops), or manual observations still greater than the rate used to determine enforcement effort. This program shall be that capture driver behavior when the the effectiveness rate that was approved by provided and supported primarily through automatic warning devices are operating. FRA, a new effectiveness rate must be local resources. c. If data is not collected continuously calculated and the Quiet Zone Risk Index re- 3. Photo Enforcement: This ASM entails during the quarter, sufficient detail must be calculated using the new effectiveness rate. If automated means of gathering valid provided in the application in order to the new Quiet Zone Risk Index indicates that photographic or video evidence of traffic law validate that the methodology used results in the ASM no longer fully compensates for the violations at a public highway-rail grade a statistically valid sample. FRA recommends lack of a train horn, or that the risk level is crossing together with follow-through by law that at least a minimum of 600 samples (one equal to, or exceeds the Nationwide enforcement and the judiciary. sample equals one gate activation) be Significant Risk Threshold, the procedures Required: collected during the baseline and subsequent for dealing with unacceptable effectiveness a. State law authorizing use of quarterly sample periods. after establishment of a quiet zone should be photographic or video evidence both to bring d. The sampling methodology must take followed. charges and sustain the burden of proof that measures to avoid biases in their sampling a violation of traffic laws concerning public technique. Potential sampling biases could Appendix C to Part 222—Guide to highway-rail grade crossings has occurred, include: sampling on certain days of the Establishing Quiet Zones accompanied by commitment of week but not others; sampling during certain Introduction administrative, law enforcement and judicial times of the day but not others; sampling officers to enforce the law; immediately after implementation of an ASM This Guide to Establishing Quiet Zones b. Sanction includes sufficient minimum while the public is still going through an (Guide) is divided into four sections in order fine (e.g., $100 for a first offense, ‘‘points’’ adjustment period; or applying one sample to address the variety of methods and toward license suspension or revocation) to method for the baseline rate and another for conditions that affect the establishment of deter violations; the new rate. quiet zones under this rule. c. Means to reliably detect violations (e.g., e. The baseline violation rate should be Section I of the Guide provides an loop detectors, video imaging technology); expressed as the number of violations per overview of the different ways in which a d. Photographic or video equipment gate activations in order to normalize for quiet zone may be established under this deployed to capture images sufficient to unequal gate activations during subsequent rule. This includes a brief discussion on the document the violation (including the face of data collection periods. safety thresholds that must be attained in the driver, if required to charge or convict f. All subsequent quarterly violation rate order for train horns to be silenced and the under state law). calculations must use the same methodology relative merits of each. It also includes the as in this paragraph unless FRA authorizes two general methods that may be used to Note: This does not require that each reduce risk in the proposed quiet zone, and crossing be continually monitored. The another methodology. 2. The ASM should then be initiated for the different impacts that the methods have objective of this option is deterrence, which on the quiet zone implementation process. may be accomplished by moving photo/video each crossing. Train horns are still being sounded during this time period. Section II of the Guide provides equipment among several crossing locations, information on establishing New Quiet as long as the motorist perceives the strong 3. In the calendar quarter following initiation of the ASM, determine a new Zones. A New Quiet Zone is one at which possibility that a violation will lead to train horns are currently being sounded at sanctions. Each location must appear quarterly violation rate using the same methodology as in paragraph (1) above. crossings. The Public Authority Designation identical to the motorist, whether or not and Public Authority Application to FRA surveillance equipment is actually placed 4. Determine the violation rate reduction for each crossing by the following formula: methods will be discussed in depth. there at the particular time. Surveillance Section III of the Guide provides equipment should be in place and operating Violation rate reduction = (new ¥ information on establishing Pre-Rule Quiet at each crossing at least 25 percent of each rate baseline rate)/baseline rate Zones. A Pre-Rule Quiet Zone is one where calendar quarter. 5. Determined the effectiveness rate of the train horns were not routinely sounded as of e. Appropriate integration, testing and ASM for each crossing by multiplying the October 9, 1996 and December 18, 2003. The maintenance of the system to provide violation rate reduction by .78. differences between New and Pre-Rule Quiet evidence supporting enforcement; 6. Using the effectiveness rates for each Zones will be explained. Public Authority f. Public awareness efforts designed to crossing treated by an ASM, determine the Designation and Public Authority reinforce photo enforcement and alert Quiet Zone Risk Index. If and when the Quiet Application to FRA methods also apply to motorists to the absence of train horns; Zone Risk Index for the proposed quiet zone Pre-Rule Quiet Zones. g. Subject to audit, a statistically valid has been reduced to either the risk level Section IV of the Guide deals with the baseline violation rate must be established which would exist if locomotive horns required notifications that must be provided

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by public authorities when establishing both cost to implement a quiet zone under the (§ 222.39(a)) involves the use of SSMs (see New and continuing Pre-Rule Quiet Zones. second or third scenario may be lower than appendix A) at some or all crossings within Section V of the Guide provides examples the other options, these scenarios also carry the quiet zone. The use of only SSMs to of quiet zone implementation. a degree of uncertainty about the quiet zone’s reduce risk will allow a public authority to continued existence. designate a quiet zone without approval from Section I—Overview The use of the first or fourth scenarios FRA. If the public authority installs SSM’s at In order for a quiet zone to be qualified reduces the risk level to at least the level that every crossing within the quiet zone, it need under this rule, it must be shown that the would exist if train horns were sounding in not demonstrate that they will reduce the risk lack of the train horn does not present a the quiet zone. These methods may have sufficiently in order to qualify under the rule significant risk with respect to loss of life or higher initial costs because more safety since FRA has already assessed the ability of serious personal injury, or that the significant measures may be necessary in order to the SSMs to reduce risk. However, if only risk has been compensated for by other achieve the needed risk reduction. Despite SSMs are installed within the quiet zone, but means. The rule provides four basic ways in the possibility of greater initial costs, there not at every crossing, the public authority which a quiet zone may be established. are several benefits to these methods. The must calculate that sufficient risk reduction Creation of both New Quiet Zones and Pre- installation of SSMs at every crossing will will be accomplished by the SSMs. Once the Rule Quiet Zones are based on the same provide the greatest safety benefit of any of improvements are made, the public authority general guidelines; however, there are a the methods that may be used to initiate a must make the required notifications, and the number of differences that will be noted in quiet zone. With both of these methods (first quiet zone may be implemented. FRA does the discussion on Pre-Rule Quiet Zones. and fourth scenarios), the public authority not need to approve the plan as it has already will never need to be concerned about the assessed the ability of the SSMs to reduce A. Qualifying Conditions Nationwide Significant Risk Threshold, risk. One of the following four conditions or annual reviews of the Quiet Zone Risk Index, 2. Public Authority Application to FRA scenarios must be met in order to show that or failing to be qualified because the Quiet (ASMs)—The Public Authority Application the lack of the train horn does not present a Zone Risk Index is higher than the to FRA method (§ 222.39(b)) involves the use significant risk, or that the significant risk Nationwide Significant Risk Threshold. of ASMs (see appendix B). ASMs include has been compensated for by other means: Public authorities are strongly encouraged to both modified SSMs that do not fully comply 1. One or more SSMs as identified in carefully consider both the pros and cons of with the provisions found in Appendix A Appendix A are installed at each public all of the methods and to choose the method (e.g. shorter than required traffic crossing in the quiet zone; or that will best meet the needs of its citizens channelization devices), and non-engineering 2. The Quiet Zone Risk Index is equal to, by providing a safer and quieter community. ASMs such as programmed law enforcement. or less than, the Nationwide Significant Risk For the purposes of this Guide, the term If the use of ASMs (or a combination of Threshold without implementation of ‘‘Risk Index with Horns’’ is used to represent ASMs, SSMs, and modified SSMs) is elected additional safety measures at any crossings in the level of risk that would exist if train to reduce risk, then the public authority must the quiet zone; or horns were sounded at every public crossing apply to FRA for approval of the quiet zone. 3. Additional safety measures are in the proposed quiet zone. If a public The application must contain sufficient data implemented at selected crossings resulting authority decides that it would like to fully and analysis to confirm that the proposed in the Quiet Zone Risk Index being reduced compensate for the lack of a train horn and ASMs do indeed provide the necessary risk to a level equal to, or less than, the not install SSMs at each public crossing in reduction. FRA will review the application Nationwide Significant Risk Threshold; or the quiet zone, it must reduce the Quiet Zone and will issue a formal approval if it 4. Additional safety measures are taken at Risk Index to a level that is equal to, or less determines that risk is reduced to a level that selected crossings resulting in the Quiet Zone than, the Risk Index with Horns. The Risk is necessary in order to comply with the rule. Risk Index being reduced to at least the level Index with Horns is similar to the Once FRA approval has been received and of risk that would exist if train horns were Nationwide Significant Risk Threshold in the safety measures fully implemented, the sounded at every public crossing in the quiet that both are targets that must be reached in public authority would then proceed to make zone. order to establish a quiet zone under the rule. the necessary notifications, and the quiet It is important to consider the implications Quiet zones that are established by reducing zone may be implemented. The use of non- of each approach before deciding which one the Quiet Zone Risk Index to at least the level engineering ASMs will require continued to use. If a quiet zone is qualified based on of the Nationwide Significant Risk Threshold monitoring and analysis throughout the reference to the Nationwide Significant Risk will be reviewed annually by FRA to existence of the quiet zone to ensure that risk Threshold (i.e. the Quiet Zone Risk Index is determine if it still qualifies under the rule continues to be reduced. 3. Calculating Risk Reduction—The equal to, or less than, the Nationwide to retain the quiet zone. Quiet zones that are following should be noted when calculating Significant Risk Threshold—see the second established by reducing the Quiet Zone Risk risk reductions in association with the and third scenarios above), then an annual Index to at least the level of the Risk Index establishment of a quiet zone. This review will be done by FRA to determine if with Horns will not be subject to annual information pertains to both New Quiet the Quiet Zone Risk Index remains equal to, reviews. Zones and Pre-Rule Quiet Zones and to the or less than, the Nationwide Significant Risk The use of FRA’s web-based Quiet Zone Public Authority Designation and Public Threshold. Since the Nationwide Significant Calculator is recommended to aid in the Authority Application to FRA methods. Risk Threshold and the Quiet Zone Risk decision making process (http:// Crossing closures: If any public crossing Index may change from year to year, there is www.fra.dot.gov/Content3.asp?P=1337). The no guarantee that the quiet zone will remain within the quiet zone is proposed to be Quiet Zone Calculator will allow the public closed, include that crossing when qualified. The circumstances that cause the authority to consider a variety of options in calculating the Risk Index with Horns. Do not disqualification may not be subject to the determining which SSMs make the most include the crossing to be closed when control of the public authority. For example, sense. It will also perform the necessary calculating the Quiet Zone Risk Index since an overall national improvement in safety at calculations used to determine the existing the crossing will no longer exist. This will gated crossings may cause the Nationwide risk level and whether enough risk has been reflect the fact that the risk associated with Significant Risk Threshold to fall. This may mitigated in order to create a quiet zone the crossing has been eliminated entirely. cause the Quiet Zone Risk Index to become under this rule. However, be sure to increase the traffic greater than the Nationwide Significant Risk counts at other crossings within the quiet Threshold. If the quiet zone is no longer B. Risk Reduction Methods zone and recalculate the risk indices for qualified, then the public authority will have FRA has established two general methods those crossings that will handle the traffic to take additional measures, and may incur to reduce risk in order to have a quiet zone diverted from the closed crossing. additional costs that might not have been qualify under this rule. The method chosen budgeted, to once again lower the Quiet Zone impacts the manner in which the quiet zone Example: A proposed New Quiet Zone Risk Index to at least the Nationwide is implemented. contains four crossings: A, B, C and D streets. Significant Risk Threshold in order to retain 1. Public Authority Designation (SSMs)— A, B and D streets are equipped with flashing the quiet zone. Therefore, while the initial The Public Authority Designation method lights and gates. C Street is a passive

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crossbuck crossing with a traffic count of 400 Horns. Increase the risk indices for A, B and horns are not sounded at the crossing. vehicles per day. It is decided that C Street D streets by 66.8 percent and average the (§ 222.35(c)(1) and 222.25(c)(2)) will be closed as part of the project. Compute results. This is the initial Quiet Zone Risk B. New Quiet Zones—Public Authority the risk indices for all four streets. The Index for the proposed quiet zone. calculation for C Street will utilize flashing Designation lights and gates as the warning device. Section II—New Quiet Zones Once again it should be remembered that Calculate the Crossing Corridor Risk Index by FRA has established several approaches all public crossings must be equipped with averaging the risk indices for all four of the that may be taken in order to establish a New automatic warning devices consisting of crossings. This value will also be the Risk Quiet Zone under this rule. Please see the flashing lights and gates in accordance with Index with Horns since train horns are preceding discussions on ‘‘Qualifying § 222.35(b). In addition, one of the following currently being sounded. To calculate the Conditions’’ and ‘‘Risk Reduction Methods’’ conditions must be met in order for a public Quiet Zone Risk Index, first re-calculate the to assist in the decision-making process on authority to designate a new quiet zone risk indices for B and D streets by increasing which approach to take. This following without FRA approval: the traffic count for each crossing by 200. discussion provides the steps necessary to • One or more SSMs as identified in (Assume for this example that the public establish New Quiet Zones and includes both Appendix A are installed at each public authority decided that the traffic from C the Public Authority Designation and Public crossing in the quiet zone (§ 222.39(a)(1)); or Street would be equally divided between B Authority Application to FRA methods. It • The Quiet Zone Risk Index is equal to, and D streets.) Increase the risk indices for must be remembered that in a New Quiet or less than, the Nationwide Significant Risk A, B and D streets by 66.8 percent and Zone all public crossings must be equipped Threshold without SSMs installed at any average the results. This is the initial Quiet with flashing lights and gates. crossings in the quiet zone (§ 222.39(a)(2)(i)); Zone Risk Index and accounts for the risk or reduction caused by closing C Street. A. Requirements for Both Public Authority • SSMS’s are installed at selected Designation and Public Authority crossings resulting in the Quiet Zone Risk Grade Separation: Grade separated Application crossings that were in existence before the Index being reduced to a level equal to, or creation of a quiet zone are not included in The following steps are necessary when less than, the Nationwide Significant Risk establishing a New Quiet Zone. This Threshold (§ 222.39(a)(2)(ii)); or any of the calculations. However, any public • crossings within the quiet zone that are information pertains to both the Public SSMS’s are installed at selected proposed to be treated by grade separation Authority Designation and Public Authority crossings resulting in the Quiet Zone Risk should be treated in the same manner as Application to FRA methods. Index being reduced to a level of risk that crossing closures as explained above. 1. Determine all public and private at-grade would exist if the horn were sounded at Highway traffic that may be diverted from crossings that will be included within the every crossing in the quiet zone (i.e. the Risk other crossings within the quiet zone to the quiet zone. Also determine any existing Index with Horns) (§ 222.39(a)(3)). new grade separated crossing should be grade-separated crossings that fall within the Steps necessary to establish a New Quiet considered when computing the Quiet Zone quiet zone. Each crossing must be identified Zone using the Public Authority Application Risk Index. by the US DOT Crossing Inventory number to FRA method: and street or highway name. If a crossing 1. If one or more SSMs as identified in Example: A proposed New Quiet Zone does not have a US DOT crossing number, appendix A are installed at each public contains four crossings: A, B, C and D streets. then contact FRA’s Office of Safety (202– crossing in the quiet zone, the requirements All streets are equipped with flashing lights 493–6299) for assistance. for a public authority designation quiet zone and gates. C Street is a busy crossing with a 2. Ensure that the quiet zone will be at have been met. It is not necessary for the traffic count of 25,000 vehicles per day. It is decided that C Street will be grade separated least one-half mile in length. (§ 222.35(a)(1)) same SSM to be used at each crossing. Once as part of the project. Compute the risk 3. A complete and accurate Grade Crossing the necessary improvements have been indices for all four streets. Calculate the Inventory Form must be on file with FRA for installed, notifications may take place and Crossing Corridor Risk Index, which will also all crossings (public and private) within the the quiet zone implemented in accordance be the Risk Index with Horns, by averaging quiet zone. These must be dated within six with the rule. If SSMs are not installed at the risk indices for all four of the crossings. months prior to the designation of the quiet each crossing, proceed on to Step 2 and use To calculate the Quiet Zone Risk Index, first zone. An inspection of each crossing in the the risk reduction method. re-calculate the risk indices for B and D proposed quiet should be performed and the 2. To begin, calculate the risk index for streets by decreasing the traffic count for Grade Crossing Inventory Forms updated to each public crossing within the quiet zone each crossing by 1,200. (The public authority reflect the current conditions at each (See appendix D. FRA’s web-based Quiet decided that 2,400 motorists will decide to crossing. Zone Calculator may be used to do this use the grade separation at C Street in order 4. Every public crossing within the quiet calculation). If flashing lights and gates have to avoid possible delays caused by passing zone must be equipped with active warning to be installed at any public crossings, trains.) Increase the risk indices for A, B and devices comprising both flashing lights and calculate the risk indices for such crossings D streets by 66.8 percent and average the gates. The warning devices must be equipped as if lights and gates were installed. (Note: results. This is the initial Quiet Zone Risk with power out indicators. Constant warning Flashing lights and gates must be installed Index and accounts for the risk reduction time circuitry is also required unless existing prior to initiation of the quiet zone.) If the caused by the grade separation at C Street. conditions would prevent the proper Inventory record does not reflect the actual operation of the constant warning time conditions at the crossing, be sure to use the Wayside Horns: Crossings with wayside circuitry. The plans for the quiet zone may conditions that currently exist when horn installations will be treated as a one for be made assuming that flashing lights and calculating the risk index. Note: Private one substitute for the train horn and are not gates are at all public crossings; however the crossings are not included when computing to be included when calculating the Crossing quiet zone may not be implemented until all the risk for the proposed quiet zone. Corridor Risk Index, the Risk Index with public crossings are actually equipped with 3. The Crossing Corridor Risk Index is then Horns or the Quiet Zone Risk Index. the flashing lights and gates. (§ 222.35(b)(1)) calculated by averaging the risk index for Example: A proposed New Quiet Zone 5. Private crossings must have cross-bucks each public crossing within the proposed contains four crossings: A, B, C and D streets. and ‘‘STOP’’ signs on both approaches to the quiet zone. Since train horns are routinely All streets are equipped with flashing lights crossing. Private crossings with public being sounded for crossings in the proposed and gates. It is decided that C Street will have access, industrial or commercial use must quiet zone, this value is also the Risk Index a wayside horn installed. Compute the risk have a diagnostic team review and be treated with Horns. indices for A, B and D streets. Since C Street according to the team’s recommendations. 4. In order to calculate the initial Quiet is being treated with a wayside horn, it is not (§§ 222.25(b) and (c)) Zone Risk Index, first adjust the risk index included in the calculation of risk. Calculate 6. Each highway approach to every public at each public crossing to account for the the Crossing Corridor Risk Index by and private crossing must have an advanced increased risk due to the absence of the train averaging the risk indices for A, B and D warning sign (in accordance with the horn. The absence of the horn is reflected by streets. This value is also the Risk Index with MUTCD) that advises motorists that train an increased risk index of 66.8 percent at

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gated crossings. (New Quiet Zones within the with Horns instead of the Nationwide 4. Calculate the initial Quiet Zone Risk Chicago Region will reflect an increased risk Significant Risk Threshold. Once this risk Index as directed in Step 4—Public Authority index of 17.3 percent.) The initial Quiet Zone level is attained, the quiet zone has qualified Designation. Risk Index is then calculated by averaging for the public authority designation method, 5. Begin to reduce the Quiet Zone Risk the increased risk index for each public and notification may take place once all the Index through the use of ASMs and SSMs. crossing within the proposed quiet zone. At necessary improvements have been installed. Follow the procedure provided in Step 6— this point the Quiet Zone Risk Index will One important distinction with this option is Public Authority Designation until the Quiet equal the Risk Index with Horns multiplied that the public authority will never need to Zone Risk Index has been reduced to equal by 1.668. be concerned with the Nationwide to, or less than, either the Nationwide 5. Compare the Quiet Zone Risk Index to Significant Risk Threshold or the Quiet Zone Significant Risk Threshold or the Risk Index the Nationwide Significant Risk Threshold. If Risk Index. The rule’s intent is to make the with Horns. (Remember that the public the Quiet Zone Risk Index is equal to, or less quiet zone as safe as if the train horns were authority may choose which level of risk than, the Nationwide Significant Risk sounding. If this is accomplished, the public reduction is the most appropriate for its Threshold, then the public authority may authority may designate the crossings as a community.) Effectiveness rates for ASMs decide to designate a quiet zone and proceed quiet zone and need not be concerned with should be provided as follows: with the notification process. With this possible fluctuations in the Nationwide a. Modified SSMs—Estimates of approach, FRA will annually recalculate the Significant Risk Threshold or annual risk effectiveness for modified SSMs may be Nationwide Significant Risk Threshold and proposed based upon adjustments from the reviews. the Quiet Zone Risk Index. If the Quiet Zone effectiveness rates provided in appendix A or Risk Index for the quiet zone is above the C. New Quiet Zones—Public Authority from actual field data derived from the Nationwide Significant Risk Threshold, FRA Application to FRA crossing sites. The application should will notify the Public Authority so that A public authority must apply to FRA for provide an estimated effectiveness rate and appropriate measures can be taken. (See approval of a quiet zone under two the rationale for the estimate. § 222.51(a).) conditions. First, if any of the SSMs selected b. Non-engineering ASMs—Effectiveness 6. If the Quiet Zone Risk Index is greater for the quiet zone do not fully conform to the rates are to be calculated in accordance with than the Nationwide Significant Risk the provisions of appendix B, paragraph 2(b). design standards set forth in appendix A. Threshold, then select an appropriate SSM 6. Once it has been determined through These are referred to as modified SSMs in for a crossing. Reduce the inflated risk index analysis that the Quiet Zone Risk Index has appendix B. Second, when programmed law calculated in Step 4 for that crossing by the been reduced to equal to, or less than, either enforcement, public education and effectiveness rate of the chosen SSM. (See the Nationwide Significant Risk Threshold or awareness programs, or photo enforcement is appendix A for the effectiveness rates for the the Risk Index with Horns, the public used to reduce risk in the quiet zone, these various SSMs.) Recalculate the Quiet Zone authority may make application to FRA for are referred to as non-engineering ASMs in Risk Index by averaging the revised inflated a quiet zone under § 222.39(b). FRA will appendix B. It should be remembered that risk index with the inflated risk indices for review the application to determine the non-engineering ASMs will require periodic the other public crossings. If this new Quiet appropriateness of the proposed effectiveness monitoring as long as the quiet zone is in Zone Risk Index is equal to, or less than, the rates, and whether or not the proposed Nationwide Significant Risk Threshold, the existence. Please see appendix B for detailed application demonstrates that the quiet zone quiet zone would qualify for public authority explanations of ASMs and the periodic meets the requirements of the rule. When designation. If the Quiet Zone Risk Index is monitoring of non-engineering ASMs. submitting the application to FRA for still higher than the Nationwide Significant The public authority is strongly approval, the application must contain the Risk Threshold, treat another public crossing encouraged to submit the application to FRA following (§ 222.39(b)(1)): with an appropriate SSM and repeat the for review and comment before the appendix • Sufficient detail concerning the present process until the Quiet Zone Risk Index is B treatments are initiated. This will enable safety measures at the public crossings equal to, or less than, the Nationwide FRA to provide comments on the proposed within the proposed quiet zone. This Significant Risk Threshold. Once this is modified SSMs or non-engineering ASMs to includes current and accurate crossing obtained the quiet zone has qualified for the help guide the application process. If non- inventory forms. public authority designation method, and engineering ASMs are proposed, the public • Detailed information on the SSMS’s or notification may take place once all the authority also may wish to confirm with FRA ASM’s that are proposed to be implemented necessary improvements have been installed. that the methodology it plans to use to and at which public crossings within the With this approach, FRA will annually determine the effectiveness rates of the proposed quiet zone. recalculate the Nationwide Significant Risk proposed ASMs is appropriate. A quiet zone • Membership and recommendations of Threshold and the Quiet Zone Risk Index. If that utilizes a combination of SSMs from the diagnostic team (if any) that reviewed the the Quiet Zone Risk Index for the quiet zone appendix A and ASMs from appendix B must proposed quiet zone. is above the Nationwide Significant Risk make a Public Authority Application to FRA. • A commitment to implement the Threshold, FRA will notify the public A complete and thoroughly documented proposed safety measures. authority so that appropriate measures can be application will help to expedite the • Demonstrate through data and analysis taken. (See § 222.51(a).) approval process. that the proposed measures will reduce the 7. If the public authority wishes to reduce The following discussion is meant to Quiet Zone Risk Index to equal, to or less the risk of the quiet zone to the level of risk provide guidance on the steps necessary to than, either the Nationwide Significant Risk that would exist if the horn were sounded at establish a new quiet zone using the Public Threshold or the Risk Index with Horns. every crossing within the quiet zone, the Authority Application to FRA method. Once • A copy of the application must be public authority should calculate the initial again it should be remembered that all public provided to the parties listed under Required Quiet Zone Risk Index as in Step 4. The crossings must be equipped with automatic Notifications. objective is to now reduce the Quiet Zone warning devices consisting of flashing lights 7. Upon receiving written approval from Risk Index to the level of the Risk Index with and gates in accordance with § 222.35(b). FRA of the quiet zone application, the public Horns by adding SSMs at the crossings. The 1. Gather the information previously authority may then proceed with difference between the Quiet Zone Risk mentioned in the section on ‘‘Requirements notifications and implementation of the quiet Index and the Risk Index with Horns is the for both Public Authority Designation and zone. If the quiet zone is qualified by amount of risk that will have to be reduced Public Authority Application.’’ reducing the Quiet Zone Risk Index to at the in order to fully compensate for lack of the 2. Calculate the risk index for each public least the level of the Nationwide Significant train horn. The use of the Quiet Zone crossing as directed in Step 2—Public Risk Threshold, FRA will annually Calculator will aid in determining which Authority Designation. recalculate the Nationwide Significant Risk SSMs may be used to reduce the risk 3. Calculate the Crossing Corridor Risk Threshold and the Quiet Zone Risk Index. If sufficiently. Follow the procedure stated in Index, which is also the Risk Index with the Quiet Zone Risk Index for the quiet zone Step 6, except that the Quiet Zone Risk Index Horns, as directed in Step 3—Public is above the Nationwide Significant Risk must be equal to, or less than, the Risk Index Authority Designation. Threshold, FRA will notify the public

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authority so that appropriate measures can be zone (i.e. the Risk Index with Horns) or to a train horns had been routinely sounded. taken. (See § 222.51(a)). risk level equal to, or less than, the These revised risk levels then will be used Note: The provisions stated above for Nationwide Significant Risk Threshold. Pre- to calculate the Risk Index with Horns. This crossing closures, grade separations and Rule Quiet Zones must meet these calculation is necessary to determine how wayside horns apply for Public Authority requirements by December 18, 2008 much risk must be eliminated in order to Application to FRA as well. (§ 222.41(b)(2)). There are four differences in compensate for the lack of the train horn. the requirements between Pre-Rule Quiet This will allow the public authority to have Section III—Pre-Rule Quiet Zones Zones and New Quiet Zones that must be the choice to reduce the risk to at least the noted. Pre-Rule Quiet Zones are treated slightly level of the Nationwide Significant Risk First, since train horns have not been Threshold or to fully compensate for the lack differently from New Quiet Zones in the rule. routinely sounded in the Pre-Rule Quiet of the train horn. This is a reflection of the statutory Zone, it is not necessary to increase the risk To calculate the Risk Index with Horns, the requirement to ‘‘take into account the interest indices of the public crossings to reflect the first step is to divide the existing severity risk of communities that have in effect additional risk caused by the lack of a train restrictions on the sounding of a locomotive horn. Since the train horn has already been index for each crossing by the appropriate horn at highway-rail grade crossings * * *’’ silenced, the added risk caused by the lack value as shown in Table 1. This process It also recognizes the historical experience of of a horn is reflected in the actual collision eliminates the risk that was caused by the train horns not being sounded at Pre-Rule history at the crossings. Collision history is absence of train horns. The table takes into Quiet Zones. an important part in the calculation of the account that the train horn has been found severity risk indices. In other words, the to produce different levels of effectiveness in Overview Quiet Zone Risk Index is calculated by preventing collisions depending on the type Pre-Rule Quiet Zones that do not meet the averaging the existing risk index for each of warning device at the crossing. (Note: requirements for automatic approval (see public crossing without the need to increase FRA’s web based Quiet Zone Calculator will discussion that follows) must meet the same the risk index by 66.8 percent. For Pre-Rule perform this computation automatically for requirements as New Quiet Zones as Quiet Zones, the Crossing Corridor Risk pre-rule quiet zones.) The Risk Index with provided in § 222.39. In other words, risk Index and the initial Quiet Zone Risk Index Horns is the average of the revised risk must be reduced through the use of SSMs or have the same value. indices. The difference between the ASMs so that the Quiet Zone Risk Index for Second, since train horns have been calculated Risk Index with Horns and the the quiet zone has been reduced to either the silenced at the crossings, it will be necessary Quiet Zone Risk Index is the amount of risk risk level which would exist if locomotive to mathematically determine what the risk that would have to be reduced in order to horns sounded at all crossings in the quiet level would have been at the crossings if fully compensate for the lack of train horns.

TABLE 1.—RISK INDEX DIVISOR VALUES

Lights and Passive Flashing lights gates

U.S. except Chicago ...... 1.749 1.309 1.668 Chicago Region ...... N/A N/A 1.173

Note: The Chicago Region includes the reduction that is attributable to warning out indicators; however, when the warning Illinois counties of: Cook, DuPage, Lake, device upgrades. devices are upgraded, constant warning time Kane, McHenry and Will. Pre-Rule Quiet For Pre-Rule Quiet Zones, the Risk Index and power out indicators will be required if Zones in the Chicago Region are able to use with Horns is calculated from the initial risk reasonably practical (§ 222.35(b)(2)). Advance a lower adjustment factor at crossings indices which use the warning devices that warning signs that notify the motorist that equipped with gates due to data that indicate are currently installed. If a public authority train horns are not sounded and STOP signs that the collision rate for Pre-Rule Quiet Zone elects to upgrade an existing warning device and crossbucks at private crossings do not crossings that were equipped with flashing as part of its quiet zone plan, the accident have to be installed until December 18, 2006, lights and gates in the Chicago Region had an prediction value for that crossing will be re- which allows three years to install the increased collision rate of 17.3 percent when calculated based on the upgraded warning required signage. device. (Once again, FRA’s web-based Quiet compared to similar gated crossings in the A. Requirements for Both Public Authority Nation where horns were sounded. Gated Zone Calculator can do the actual computation.) The new accident prediction Designation and Public Authority crossings in Pre-Rule Quiet Zones outside of Application—Pre-Rule Quiet Zones the Chicago Region had an increased value is then used in the severity risk index collision rate of 66.8 percent when compared formula to determine the risk index for the These following is necessary when crossing. This adjusted risk index is then establishing a Pre-Rule Quiet Zone. This to similar crossings in the Nation where used to compute the new Quiet Zone Risk information pertains to Automatic Approval, horns were sounded. Passive and flashing Index. This computation allows the risk the Public Authority Designation and Public lights crossings in the Chicago Region use the reduction attributed to the warning device Authority Application to FRA methods. ‘‘U.S. except Chicago’’ values in Table 1. upgrades to be used in establishing a quiet 1. Determine all public and private at-grade The third difference is that credit is given zone. crossings that will be included within the for the risk reduction that is brought about The fourth difference is that pre-rule quiet quiet zone. Also determine any existing grade through the upgrading of the warning devices zones have different minimum requirements separated crossings that fall within the quiet at public crossings (§ 222.35(b)(2)). For New under § 222.35. A pre-rule quiet zone may be zone. Each crossing must be identified by the Quiet Zones, all crossings must be equipped less than one-half mile in length if that was U.S. DOT Crossing Inventory number and with automatic warning devices consisting of its length as of October 9, 1996. A pre-rule street name. If a crossing does not have a U.S. flashing lights and gates. Crossings without quiet zone does not have to have automatic DOT crossing number then contact FRA for gates must have gates installed. The severity warning devices consisting of flashing lights assistance. risk index for that crossing is then calculated and gates at every public crossing 2. Document the length of the quiet zone. to establish the risk index that is used in the (§ 222.32(b)(2)). The existing crossing safety It is not necessary that the quiet zone be at Risk Index with Horns. The Risk Index with warning systems in place as of December 18, least one-half mile in length. Pre-Rule Quiet Horns is then increased by 66.8 percent to 2003, may be retained but cannot be Zones may be shorter than one-half mile. adjust for the lack of the train horn. The downgraded. It also is not necessary for the However, the addition of a new crossing to adjusted figure is the initial Quiet Zone Risk automatic warning devices to be equipped a quiet zone nullifies its pre-rule status, and Index. There is no credit received for the risk with constant warning time devices or power the resulting New Quiet Zone must be at least

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one-half mile. The deletion of a crossing from 1. All of the items listed in Requirements Threshold and the Quiet Zone Risk. If the a Pre-Rule Quiet Zone (except through for both Public Authority Designation and Quiet Zone Risk Index for the quiet zone is closure or grade separation) must result in a Public Authority Application—Pre-Rule above two times the Nationwide Significant quiet zone that is a least one half mile in Quiet Zones previously mentioned are to be Risk Threshold, or a relevant collision has length. accomplished. Remember that a Pre-Rule occurred during the preceding year, FRA will 3. A complete and accurate Grade Crossing Quiet Zone may be less than one-half mile in notify the public authority so that Inventory Form must be on file with FRA for length if that was its length as of October 9, appropriate measures can be taken (See all crossings (public and private) within the 1996. Also, a Pre-Rule Quiet Zone does not § 222.51(b)(3)). quiet zone. These must be dated within six have to have automatic warning devices If the Pre-Rule Quiet Zone does not qualify months prior to the designation of the quiet consisting of flashing lights and gates at for automatic approval, continuation of the zone. An inspection of each crossing in the every public crossing. quiet zone beyond the interim three year proposed quiet should be performed and the 2. If one or more SSMs as identified in period will require implementation of SSMs Grade Crossing Inventory Forms updated to Appendix A are installed at each public or ASMs so that the Quiet Zone Risk Index reflect the current conditions at each crossing in the quiet zone, the quiet zone for the quiet zone has been reduced to a risk crossing. qualifies and notification should take place. level equal to, or below, either the risk level 4. Pre-Rule Quiet Zones must retain, and If the Pre-Rule Quiet Zone does not qualify which would exist if locomotive horns may upgrade, the existing grade crossing by this step, proceed on to the next step. sounded at all crossings in the quiet zone (i.e. safety warning systems. Unlike New Quiet 3. Calculate the risk index for each public the Risk Index with Horns) or the Nationwide Zones, it is not necessary that every public crossing within the quiet zone (See appendix Significant Risk Threshold. This is the same crossing within a Pre-Rule Quiet Zone be D). Be sure that the risk index is calculated methodology used to create New Quiet Zones equipped with active warning devices using the formula appropriate for the type of with the exception of the four differences comprising both flashing lights and gates. warning device that is actually installed at previously noted. A review of the previous Existing warning devices need not be the crossing. Unlike New Quiet Zones, it is discussion on the two methods used to equipped with power out indicators and not necessary to calculate the risk index establish quiet zones may prove helpful in constant warning time circuitry. If warning using flashing lights and gates as the warning determining which would be the most devices are upgraded to flashing lights, or device. (FRA’s web-based Quiet Zone beneficial to use for a particular Pre-Rule flashing lights and gates, the upgraded Calculator may be used to simplify the Quiet Zone. equipment must include, as is required for calculation process). If the Inventory record C. Pre-Rule Quiet Zones—Public Authority New Quiet Zones, power out indicators and does not reflect the actual conditions at the Designation constant warning time devices (if reasonably crossing, be sure to use the conditions that practical). currently exist when calculating the risk The following discussion is meant to 5. By December 18, 2006, private crossings index. provide guidance on the steps necessary to must have cross-bucks and ‘‘STOP’’ signs on 4. The Quiet Zone Risk Index is then establish a Pre-Rule Quiet Zone using the both approaches to the crossing. Private calculated by averaging the risk index for Public Authority Designation method. crossings with public access, industrial or each public crossing within the proposed 1. All of the items listed in ‘‘Requirements commercial use must have a diagnostic team quiet zone. (Note: The initial Quiet Zone Risk for both Public Authority Designation and review and be treated according to the team’s Index and the Crossing Corridor Risk Index Public Authority Application—Pre-Rule recommendations unless the quiet zone are the same for Pre-Rule Quiet Zones.) Quiet Zones’’ previously mentioned are to be qualifies for automatic approval. A diagnostic 5. Compare the Quiet Zone Risk Index to accomplished. Remember that a Pre-Rule team review of private crossings is not the Nationwide Significant Risk Threshold. If Quiet Zone may be less than one-half mile in necessary for Pre-Rule Quiet Zones that the Quiet Zone Risk Index is equal to, or less length if that was its length as of October 9, qualify for Automatic Approval. than, the Nationwide Significant Risk 1996. Also, a Pre-Rule Quiet Zone does not 6. By December 18, 2006, each highway Threshold, then the quiet zone qualifies for have to have automatic warning devices approach to every public and private crossing automatic approval, and the public authority consisting of flashing lights and gates at must have an advanced warning sign (in may proceed with the notification process. every public crossing. accordance with the MUTCD) that advises With this approach, FRA will annually 2. Calculate the risk index for each public motorists that train horns are not sounded at recalculate the Nationwide Significant Risk crossing within the quiet zone as in Step 3— the crossing. Threshold and the Quiet Zone Risk. If the Pre-Rule Quiet Zones—Automatic Approval. Quiet Zone Risk Index for the quiet zone is 3. The Crossing Corridor Risk Index is then B. Pre-Rule Quiet Zones—Automatic above the Nationwide Significant Risk calculated by averaging the risk index for Approval Threshold, FRA will notify the public each public crossing within the proposed In order for a Pre-Rule Quiet Zone to be authority so that appropriate measures can be quiet zone. Since train horns are not being automatically approved as a quiet zone under taken (See § 222.51(b)(2)). If the pre-rule sounded for crossings, this value is actually this rule (§ 222.41(a)), one of the following quiet zone does not qualify by this step, the initial Quiet Zone Risk Index. conditions must be met: proceed on to the next step. 4. Calculate Risk Index with Horns by the • One or more SSMs as identified in 6. If the Quiet Zone Risk Index is above the following: appendix A are installed at each public Nationwide Significant Risk Threshold but a. For each public crossing, divide the risk crossing in the quiet zone; or less than twice the Nationwide Significant index that was calculated in Step 2 by the • The Quiet Zone Risk Index is equal, to Risk Threshold and there have been no appropriate value in Table 1. This produces or less, than the Nationwide Significant Risk relevant collisions at any public grade the risk index that would have existed had Threshold; or crossing within the quiet zone for the the train horn been sounded. • The Quiet Zone Risk Index is above the preceding five years, then the quiet zone b. Average these reduced risk indices Nationwide Significant Risk Threshold but qualifies for automatic approval, and the together. The resulting average is the Risk less than twice the Nationwide Significant public authority may proceed with the Index with Horns. Risk Threshold and there have been no notification process. Note: A relevant 5. Begin to reduce the Quiet Zone Risk relevant collisions at any public grade collision means a collision at a highway-rail Index through the use of SSMs or by crossing within the quiet zone for the grade crossing between a train and a motor upgrading existing warning devices. Follow preceding five years. vehicle, excluding the following: a collision the procedure provided in Step 6—Public Additionally, it must be in compliance resulting from an activation failure of an Authority Designation until the Quiet Zone with the minimum requirements for quiet active grade crossing warning system; a Risk Index has been reduced to a level equal zones (§ 222.35) and the notification collision in which there is no driver in the to, or less than, either the Nationwide requirements in § 222.43. motor vehicle; or a collision where the Significant Risk Threshold or the Risk Index The following discussion is meant to highway vehicle struck the side of the train with Horns. A public authority may elect to provide guidance on the steps necessary to beyond the fourth locomotive unit or rail car. upgrade an existing warning device as part of determine if a Pre-Rule Quiet Zone qualifies With this approach, FRA will annually its Pre-Rule Quiet Zone plan. When for automatic approval. recalculate the Nationwide Significant Risk upgrading a warning device, the accident

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prediction value for that crossing must be re- Follow the procedure the provided in Step equal to, or less than, the Nationwide calculated for the new warning device. 6—Public Authority Designation until the Significant Risk Threshold, FRA will Determine the new risk index for the Quiet Zone Risk Index has been reduced to annually recalculate the Nationwide upgraded crossing by using the new accident a level equal to, or less than, either the Significant Risk Threshold and the Quiet prediction value in the severity risk index Nationwide Significant Risk Threshold or the Zone Risk. If the Quiet Zone Risk Index for formula. This new risk index is then used to Risk Index with Horns. A public authority the quiet zone is above the Nationwide compute the new Quiet Zone Risk Index. may elect to upgrade an existing warning Significant Risk Threshold, FRA will notify (Remember that FRA’s web-based Quiet zone device as part of its Pre-Rule Quiet Zone the public authority so that appropriate Calculator will be able to do the actual plan. When upgrading a warning device, the measures can be taken (See § 222.51(a)). computations.) Once the Quiet Zone Risk accident prediction value for that crossing Note: The provisions stated above for Index has been reduced to equal to, or less must be re-calculated for the new warning crossing closures, grade separations, and than, either the Nationwide Significant Risk device. Determine the new risk index for the wayside horns apply for Public Authority Threshold or the Risk Index with Horns, the upgraded crossing by using the new accident Application to FRA as well. quiet zone has qualified for the Public prediction value in the severity risk index Authority Designation method, and formula. (Remember that FRA’s web-based Section IV—Required Notifications notification may take place once all the quiet zone risk calculator will be able to do A. The public authority responsible for the necessary improvements have been installed. the actual computations.) This new risk creation of a New Quiet Zone or the If quiet zone is established by reducing the index is then used to compute the new Quiet continuation of a Pre-Rule Quiet Zone, is Quiet Zone Risk Index to equal to, or less Zone Risk Index. Effectiveness rates for required to provide notification to parties than, the Nationwide Significant Risk ASMs should be provided as follows: that will be affected by the quiet zone. The Threshold, FRA will annually recalculate the a. Modified SSMs—Estimates of notification process is to ensure that Nationwide Significant Risk Threshold and effectiveness for modified SSMs may be interested parties are made aware in a timely the Quiet Zone Risk Index. If the Quiet Zone proposed based upon adjustments from the manner of the establishment or continuation Risk Index for the quiet zone is above the benchmark levels provided in Appendix A or of quiet zones. Specific information is to be Nationwide Significant Risk Threshold, FRA from actual field data derived from the provided so that the crossings in the quiet will notify the public authority so that crossing sites. The application should zone can be identified. The method used to appropriate measures can be taken (See provide an estimated effectiveness rate and qualify or continue the quiet zone is to be § 222.51(a)). the rationale for the estimate. given. The notification process also includes Note: The provisions stated above for b. Non-engineering ASMs—Effectiveness additional information that must be provided crossing closures, grade separations, and rates are to be calculated in accordance with to FRA. Once the rule becomes effective, wayside horns apply for Public Authority the provisions of appendix B, paragraph 2(b). railroads will be obligated to sound train Designation. 6. Once it has been determined through horns when approaching all public crossings analysis that the Quiet Zone Risk Index has unless notified in accordance with the rule D. Pre-Rule Quiet Zones—Public Authority been reduced to a level equal to, or less than, that a New Quiet Zone has been established Application to FRA either the Nationwide Significant Risk or that a Pre-Rule Quiet Zone is being The following discussion is meant to Threshold or the Risk Index with Horns, the continued. provide guidance in the steps necessary to public authority may make application to The time frames for the notification establish a Pre-Rule Quiet zone using the FRA for a quiet zone under § 222.39(b). FRA process is as follows: • Public Authority Application to FRA will review the application to determine the New Quiet Zones—Notification of the method. appropriateness of the proposed effectiveness establishment of a New Quiet Zone under 1. All of the items listed in ‘‘Requirements rates, and whether or not the proposed § 222.39 must be mailed at least 21 days for both Public Authority Designation and application demonstrates that the quiet zone before the routine sounding of train horns for Public Authority Application—Pre-Rule meets the requirements of the rule. When public crossings is to cease (§ 222.43(a)(2)(i)). Quiet Zones’’ previously mentioned are to be submitting the application to FRA for The routine use of train horns at public accomplished. Remember that a Pre-Rule approval, it should be remembered that the crossings will not cease unless the proper Quiet Zone may be less than one-half mile in notification has been given. application must contain the following • length if that was its length as of October 9, (§ 222.39(b)(1)): Pre-Rule Quiet Zones—Notification of the continuation of a Pre-Rule Quiet Zone 1996. Also, a Pre-Rule Quiet Zone does not a. Sufficient detail concerning the present have to have automatic warning devices under § 222.41 must be served no later than safety measures at the public crossings consisting of flashing lights and gates at December 18, 2004 (§ 222.43(a)(2)(ii)). Failure within the proposed quiet zone. This every public crossing. to provide the required notice will result in includes current and accurate crossing 2. Calculate the risk index for each public the commencement of the sounding of train inventory forms. crossing within the quiet zone (See Appendix horns at public crossings on this date. D. FRA’s web-based Quiet Zone Calculator b. Detailed information on the SSMS’s, may be used to simplify the calculation ASM’s, or upgraded warning devices that are B. Parties To Be Notified process). If the Inventory record does not proposed to be implemented and at which The public authority that is implementing reflect the actual conditions at the crossing, public crossings within the proposed quiet a New Quiet Zone or is continuing a Pre-Rule be sure to use the conditions that currently zone. Quiet Zone must provide notification of the exist when calculating the risk index. c. Membership and recommendations of quiet zone by certified mail, return receipt 3. The Crossing Corridor Risk Index is then the diagnostic team (if any) that reviewed the requested, to the following (see calculated by averaging the risk index for proposed quiet zone. § 222.43(a)(1)): each public crossing within the proposed d. A commitment to implement the • All railroads operating over the crossings quiet zone. Since train horns are not being proposed safety measures. within the quiet zone. sounded for crossings, this value is actually e. Demonstrate through data and analysis • The highway or traffic control authority, the initial Quiet Zone Risk Index. that the proposed measures will reduce the or law enforcement authority having control 4. Calculate Risk Index with Horns by the Quiet Zone Risk Index to, or below, either the over vehicular traffic at crossings within the following: Nationwide Significant Risk Threshold or the quiet zone. a. For each public crossing, divide its risk Risk Index with Horns. • The State agency responsible for index that was calculated in Step 2 by the f. A copy of the application must be highway and road safety. appropriate value in Table 1. This produces provided to the parties listed under Required • All landowners owning a private the risk index that would have existed had Notifications. crossing within the quiet zone. the train horn been sounded. 7. Upon receiving written approval from • The Associate Administrator. b. Average these reduced risk indices FRA of the quiet zone application, the public together. The resulting average is the Risk authority may then proceed with C. Required Information Index with Horns. notifications and implementation of the quiet The quiet zone implementation 5. Begin to reduce the Quiet Zone Risk zone. If the quiet zone is established by notification should contain the following Index through the use of ASMs and/or SSMs. reducing the Quiet Zone Risk Index to a level information (§ 222.43(a)(3)):

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1. A list all grade crossings within the quiet may be obtain on FRA Web site The tables that follow show the street name zone by both the U.S. DOT crossing number (www.fra.dot.gov). in the first column, and the existing risk and the street or highway name. This 2. An accurate, complete and current Grade index for each crossing with the horn includes public, private and grade separated Crossing Inventory Form reflecting SSMs or sounding (‘‘Crossing Risk Index w/Horns’’) in crossings. ASMs in place upon establishment of the the second. The third column, ‘‘Crossing Risk 2. The specific date upon which routine quiet zone. SSMs or ASMs that cannot be Index w/o Horns’’, is the risk index for each use of the train horn will cease at crossings fully described on the Inventory form must crossing after it has been inflated by 66.8% within the quiet zone. The date for New be fully described in writing. to account for the lack of train horns. The Quiet Zones shall be no earlier than 21 days 3. The name and title of the person fourth column, ‘‘SSM Eff’’, is the after mailing of written notification. responsible for monitoring compliance with effectiveness of the SSM at the crossing. A 3. The notice should state which section the requirements of this part, and the manner zero indicates that no SSM has been applied. contained in the rule is used as the basis for in which that person can be contacted. The last column, ‘‘Crossing Risk Index w/o establishment or continuation of the quiet 4. A list of all parties that received Horns Plus SSM’’, is the inflated risk index zone. for the crossing after being reduced by the 4. Reference to § 222.39(a)(1), (2), or (3) notification of the establishment or implementation of the SSM. At the bottom of shall include a copy of the FRA web page continuation of the quiet zone together with the table are two values. The first is the Risk containing the quiet zone data upon which copies of the certificates of service showing the public authority relies. to whom and by what means the notice was Index with Horns (‘‘RIWH’’) which 5. Reference to § 222.39(b) shall include a provided. represents the average initial amount of risk copy of FRA’s notification of approval. 5. A statement signed by the CEO of each in the proposed quiet zone with the train 6. Reference to § 222.41 shall include a public authority establishing or continuing a horn sounding. The second is the Quiet Zone statement as to how the quiet zone is in quiet zone that certifies that responsible Risk Index (‘‘QZRI’’) and is the average risk compliance with that section. If appropriate, officials of the public authority have in the proposed quiet zone taking into it shall include a copy of the FRA web page reviewed documentation provided by FRA consideration the increased risk caused by containing the quiet zone data upon which sufficient to make an informed decision the lack of train horns and reductions in risk the public authority relies. regarding the advisability of establishing the attributable to the installation of SSMs. For 7. A certificate of service showing to whom quiet zone. this example it is assumed that the and by what means the notice was provided. Nationwide Significant Risk Threshold is D. In addition to the above required Section V—Examples of Quiet Zone 15,424. In order for the proposed quiet zone information, the notification to the Associate Implementations to qualify under the rule, the Quiet Zone Risk Index must be reduced to at least either the Administrator also must include the Example 1—New Quiet Zone following (§ 222.43(b)): Nationwide Significant Risk Threshold 1. An accurate and complete Grade A public authority wishes to create a New (15,424) or to the Risk Index with Horns. Crossing Inventory Form for each public and Quiet Zone over four public crossings. All of Table 1 shows the existing conditions in private highway-rail grade crossing within the crossings are equipped with flashing the proposed quiet zone. SSMs have not yet the quiet zone, dated within six months prior lights and gates, and the length of the quiet been installed. The Risk Index with Horns for to designation or approval by FRA of the zone is 0.75 mile. There are no private the proposed quiet zone is 11,250. The Quiet quiet zone. Copies of the inventory forms crossings within the proposed zone. Zone Risk Index without any SSMs is 18,765.

TABLE 1

Crossing risk Crossing risk Crossing risk index w/o Street index w/horns index w/o SSM EFF horns, plus horns SSM

A ...... 12000 20016 0 20016 B ...... 10000 16680 0 16680 C ...... 8000 13344 0 13344 D ...... 15000 25020 0 25020 RIWH QZRI 11250 18765

The public authority decides to install of traffic channelization devices is 0.75. reduced to 14,073.75. This reduction in risk traffic channelization devices at D Street. Table 2 shows the changes in the proposed would qualify the quiet zone as the risk has Reducing the risk at the crossing that has the quiet zone corridor that would occur when been reduced lower than the Nationwide highest severity risk index will provide the traffic channelization devices are installed at Significant Risk Threshold which is 15,424. greatest reduction in risk. The effectiveness D Street. The Quiet Zone Risk Index has been

TABLE 2

Crossing risk Crossing risk Crossing risk index w/o Street index w/ horns index w/o SSM EFF horns plus horns SSM

A ...... 12000 20016 0 20016 B ...... 10000 16680 0 16680 C ...... 8000 13344 0 13344 D ...... 15000 25020 0.75 6255 RIWH QZRI 11250 14073.75

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The public authority realizes that Risk Threshold (14,074 to 15,424), there is a by the use of traffic channelization devices at authorizing the quiet zone by lowering the reasonable chance that the Quiet Zone Risk A Street. Table 3 shows the results of this risk to below the Nationwide Significant Risk Index may some day exceed the Nationwide change. The Quiet Zone Risk Index is now Threshold will result in an annual re- Significant Risk Threshold. This would result 10,320.75 which is less than the Risk Index calculation of the Quiet Zone Risk Index and in the quiet zone no longer being qualified with Horns of 11,250. The quiet zone now comparison to the Nationwide Significant and additional steps would have to be taken qualifies by fully compensating for the loss Risk Threshold. As the Quiet Zone Risk to keep the quiet zone. Therefore, the public of train horns and will not have to undergo Index is close to the Nationwide Significant authority decides to reduce the risk further annual reviews of the Quiet Zone Risk Index.

TABLE 3

Crossing risk Crossing risk Crossing risk index w/o Street index w/horns index w/o SSM EFF horns plus horns SSM

A ...... 12000 20016 0.75 5004 B ...... 10000 16680 0 16680 C ...... 8000 13344 0 13344 D ...... 15000 25020 0.75 6255 RIWH QZRI 11250 10320.75

Example 2—Pre-Rule Quiet Zone Index w/ Horns’’, is the risk index for each taking into consideration the increased risk A public authority wishes to qualify a Pre- crossing after it has been adjusted to reflect caused by the lack of train horns and Rule Quiet Zone which did not meet the what the risk would have been had train reductions in risk attributable to the requirements for Automatic Approval horns been sounding. This is mathematically installation of SSMs. Once again it is because the Quiet Zone Risk Index is greater done by dividing the existing risk index for assumed that the Nationwide Significant Risk than twice the Nationwide Significant Risk the three gated crossing by 1.668. The risk at Threshold is 15,424. The Quiet Zone Risk Threshold. There are four public crossings in the passive crossing at Z Street is divided by Index must be reduced to either the the Pre-Rule Quiet Zone. Three of the 1.749. (See the above discussion in ‘‘Pre-Rule Nationwide Significant Risk Threshold crossings are equipped with flashing lights Quiet Zones—Establishment Overview’’ for (15,424) or to the Risk Index with Horns in more information.) The fourth column, ‘‘SSM and gates, and the fourth (Z Street) is order to qualify under the rule. EFF’’, is the effectiveness of the SSM at the passively signed with a STOP sign. The Table 4 shows the existing conditions in crossing. A zero indicates that no SSM has length of the quiet zone is 0.6 mile, and there the proposed quiet zone. SSMs have not yet are no private crossings within the proposed been applied. The last column, ‘‘Crossing been installed. The Risk Index with Horns for zone. Risk Index w/o Horns Plus SSM’’, is the risk the proposed quiet zone is 18,705.83. The The tables that follow are very similar to index without horns for the crossing after the tables in Example 1. The street name is being reduced for the implementation of the Quiet Zone Risk Index without any SSMs is shown in the first column, and the existing SSM. At the bottom of the table are two 31,375. Since the Nationwide Significant risk index for each crossing (‘‘Crossing Risk values. The first is the Risk Index with Horns Risk Threshold is less than the calculated Index w/o Horns’’) in the second. This is a (RIWH) which represents the average initial Risk Index with Horns, the public authority’s change from the first example because the amount of risk in the proposed quiet zone goal will be to reduce the risk to at least risk is calculated without train horns with the train horn sounding. The second is value of the Risk Index with Horns. This will sounding because of the existing ban on the Quiet Zone Risk Index (‘‘QZRI’’) and is qualify the Pre-Rule Quiet Zone under the whistles. The third column, ‘‘Crossing Risk the average risk in the proposed quiet zone rule.

TABLE 4

Crossing risk Crossing risk Crossing risk index w/o Street index w/o index w/horns SSM EFF horns plus horns SSM

W ...... 35000 20983.21 0 35000 X ...... 42000 25179.86 0 42000 Y ...... 33500 20083.93 0 33500 Z ...... 15000 8576.33 0 15000 RIWH QZRI 18705.83 31375

The Z Street crossing is scheduled to have achieved by the improvement from a passive after including the warning device upgrade at flashing lights and gates installed as part of STOP sign crossing to a crossing equipped Z Street. Note that the Risk Index with Horns the state’s highway-rail grade crossing safety with flashing lights and gates. Unlike New and the Crossing Risk Index With Horns for improvement plan (section 130). While this Quiet Zones, upgrades to warning devices in Z Street do not change. The Quiet Zone Risk upgrade is not directly a part of the plan to Pre-Rule Quiet Zones do contribute to the Index has been reduced to 29,500. authorize a quiet zone, the public authority risk reduction necessary to qualify under the may take credit for the risk reduction rule. Table 5 shows the quiet zone corridor

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TABLE 5

Crossing risk Crossing risk Crossing risk index w/o Street index w/o index w/horns SSM EFF horns plus horns SSM

W ...... 35000 20983.21 0 35000 X ...... 42000 25179.86 0 42000 Y ...... 33500 20083.93 0 33500 Z ...... 7500 8576.33 0 7500 RIWH QZRI 18705.83 29500

The public authority elects to install four- detection at X Street. As shown in Table 6, 20,890. This risk reduction is not sufficient quadrant gates without vehicle presence this reduces the Quiet Zone Risk Index to to quality as quiet zone under the rule.

TABLE 6

Crossing risk Crossing risk Crossing risk index w/o Street index w/o index w/horns SSM EFF horns plus horns SSM

W ...... 35000 20983.21 0 35000 X ...... 42000 25179.86 0.82 7560 Y ...... 33500 20083.93 0 33500 Z ...... 7500 8576.33 0 7500 RIWH QZRI 18705.83 20890

The public authority next decides to use is now reduced to 14,327.5. This risk with Horns. The quiet zone is qualified under traffic channelization devices at W Street. reduction fully compensates for the loss of the rule. Table 7 shows that the Quiet Zone Risk Index the train horn as it is less than the Risk Index

TABLE 7

Crossing risk Crossing risk Crossing risk index w/o Street index w/o index w/horns SSM EFF horns plus horns SSM

W ...... 35000 20983.21 0.75 8750 X ...... 42000 25179.86 0.82 7560 Y ...... 33500 20083.93 0 33500 Z ...... 7500 8576.33 0 7500 RIWH QZRI 18705.83 14327.5

Appendix D to Part 222—Determining Risk permissible risk for quiet zones gates with flashing lights, (2) flashing Levels established under this rule. lights with no gates, and (3) passive The Crossing Corridor Risk Index Introduction warning devices. represents the average severity weighted The prediction formulas can be used The Nationwide Significant Risk collision risk for all public highway-rail to derive the following for each Threshold, the Crossing Corridor Risk grade crossings along a defined rail crossing: Index, and the Quiet Zone Risk Index corridor. 1. PC which is the predicted are all measures of collision risk at The Quiet Zone Risk Index represents collisions. | public highway-rail grade crossings that the average severity weighted collision 2. P(FC C) which is the probability of are weighted by the severity of the risk for all public highway-rail grade a fatal collision given that a collision associated casualties. Each crossing can crossings that are part of a quiet zone. occurs. 3. P(CC|C) which is the probability of be assigned a risk index. The Prediction Formulas a casualty collision given that a The Nationwide Significant Risk The Prediction Formulas were collision occurs. Threshold represents the average developed by DOT as a guide for The following factors are the severity weighted collision risk for all allocating scarce traffic safety budgets at determinants of the number of predicted public highway-rail grade crossings the State level. They allow users to rank collisions per year: equipped with lights and gates candidate crossings for safety • Average annual daily traffic; nationwide where train horns are improvements by collision probability. • Total number of trains per day; routinely sounded. FRA developed this There are three formulas, one for each • Number of highway lanes; index to serve as a threshold of warning device category: (1) automatic • Number of main tracks;

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• Maximum timetable train speed; For the prediction and severity index whistle ban was in place during the • Whether the highway is paved or formulas, please see the following DOT period, and (2) those that occurred at not; publications: Summary of the DOT Rail- crossings equipped with automatic gates • Number of through trains per day Highway Crossings Resource Allocation where a whistle ban was not in place. during daylight hours. Procedure—Revised, June 1987, and the Certain records were excluded. These The resulting basic prediction is Rail-Highway Crossing Resource were incidents where the driver was not improved in two ways. It is enriched by Allocation Procedure: User’s Guide, in the motor vehicle, or the motor the particular crossing’s collision Third Edition, August 1987. Both vehicle struck the train beyond the 4th history for the previous five years and documents are in the docket for this locomotive or rail car that entered the it is calibrated by resetting normalizing rulemaking and also available through crossing. FRA believes that sounding constants. The normalizing constants the National Technical Information the train horn would not be very are reset so that the sum of the predicted Service located in Springfield, Virginia effective at preventing such incidents.1 accidents in each warning device group 22161. (passive, flashing lights, gates) for the Collisions in the group containing the top twenty percent most hazardous Risk Index gated crossings nationwide where horns crossings exactly equals the number of The risk index is basically the are routinely sounded were then accidents which occurred in a recent predicted cost to society of the identified as either fatal, injury only, or period for the top twenty percent of that casualties that are expected to result no casualty. Collisions were identified group. This adjustment factor allows the from the predicted collisions at a as fatal if one or more deaths occurred, formulas to stay current with collision crossing. It incorporates three outputs of regardless of whether or not injuries trends. The calibration also corrects for the DOT prediction formulas. The two were also sustained. Collisions were errors such as data entry errors. The components of a risk index are: identified as injury only when injuries, final output is the predicted number of but no fatalities resulted. 1. Predicted Cost of Fatalities = PC × collisions (PC). P(FC|C) × (Average Number of The collisions (incidents) selected The severity formulas answer the were summarized by year from 1997 question, ‘‘What is the chance that a Fatalities Observed In Fatal Collisions) × $3 million through 2001 (see table below). The fatality (or casualty) will happen, given × fatality rate for each year was calculated that a collision has occurred?’’ The 2. Predicted Cost of Injuries = PC (P(CC|C) ¥ P(FC|C)) × (Average by dividing the number of fatalities fatality formula calculates the (‘‘Deaths’’) by the number of fatal probability of a fatal collision given that Number of Injuries in Collisions × incidents (‘‘Number’’). The injury rates a collision occurs (i.e. the probability of Involving Injuries) $1,167,000 were calculated by dividing the number a collision in which a fatality occurs) PC, P(CC|C), and P(FC|C) are direct of injuries in injury only incidents P(FC|C). Similarly, the casualty formula outputs of the DOT prediction formulas. (‘‘Injured’’) by the number of injury only calculates the probability of a casualty The average number of fatalities collision given that a collision occurs observed in fatal collisions and the incidents (‘‘Number’’). P(CC|C). As casualties consist of both average number of injuries in collisions The following table lists the results. fatalities and injuries, the probability of involving injuries were calculated by Note that the number of injuries in the a non-fatal injury collision is found by FRA as follows. sixth column includes only those subtracting the probability of a fatal The highway-rail incident files from injuries resulting from injury only collision from the probability of a 1997 through 2001 were matched incidents, it excludes any non-fatal casualty collision. To convert the against a data file containing the list of injuries sustained in fatal incidents. probability of a fatal or casualty whistle ban crossings in existence from Non-fatal injuries sustained in fatal collision to the number of expected fatal January 1, 1997 through December 31, incidents are not included in this table. or casualty collisions, that probability is 2001 to identify two types of collisions The first line in the table presents multiplied by the number of predicted involving trains and motor vehicles (1) information in summary form for the collisions (PC). those that occurred at crossings where a five-year period.

MOTOR VEHICLE INCIDENTS AT NON WB GATED CROSSINGS

Total inci- Fatal incidents Injury incidents dents Number Deaths Rate Number Injured Rate

Total ...... 2,028 255 311 1.2196 552 739 1.3388

2001 ...... 457 70 78 1.1143 119 156 1.3109 2000 ...... 430 48 56 1.1667 109 157 1.4404 1999 ...... 395 43 59 1.3721 109 144 1.3211 1998 ...... 353 46 57 1.2391 105 131 1.2476 1997 ...... 393 48 61 1.2708 110 151 1.3727

The fatality rate and the injury rate for Per guidance from DOT, $3 million is the Advancement of Automotive the five-year period appear in bold in the value placed on preventing a Medicine categorizes injuries into six the first line. fatality. The Abbreviated Injury Scale levels of severity. Each AIS level is (AIS) developed by the Association for assigned a value of injury avoidance as

1 The data used to make these exclusions is Struck By Highway User; 28—Number of current FRA Form 6180–57 Highway-Rail Grade contained in blocks 18—Position of Car Unit in Locomotive Units; and 29—Number of Cars of the Crossing Accident/Incident Report. Train; 19—Circumstance: Rail Equipment Struck/

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a fraction of the value of avoiding a wayside horn is operating as intended in The diagnostic team should obtain all fatality. FRA rates collisions that occur sufficient time to enable the locomotive inventory information for each crossing, and at train speeds in excess of 25 mph as engineer to sound the locomotive horn for at should check while in the field to see that an AIS level 5 ($2,287,500) and injuries least 15 seconds prior to arrival at the inventory information is up-to-date and crossing in the event the wayside horn is not accurate. Outdated inventory information that result from collisions involving operating as intended; should be updated as part of the quiet zone trains traveling under 25 mph as an AIS 3. The railroad must adopt an operating development process. level 2 ($46,500). About half of grade rule, bulletin or special instruction requiring When in the field, the diagnostic team crossing collisions occur at speeds that the train horn be sounded if the wayside should take note of the physical greater than 25 mph. Therefore, FRA horn indicator is not visible approaching the characteristics of each crossing, including the estimates that the value of preventing crossing, or if this, or an equivalent system, following items: • the average injury resulting from a grade does not indicate that the system is operating Can any of the crossings within the crossing collision is $1,167,000 (the as intended; proposed quiet zone be closed, or 4. Horn system must provide a minimum consolidated with another adjacent crossing? average of an AIS–5 injury and an AIS– of 96 and a maximum of 110 dB(A) when Crossing elimination should always be the 2 injury.) | measured 100 feet from the horn in the preferred alternative, and it should be Notice that the quantity [PC*P(FC C)] direction it is installed; explored for crossings within the proposed represents the expected number of fatal 5. Horn system must sound at a minimum quiet zone. collisions. Similarly, {PC*[P(CC|C)– of 15 seconds prior to the train’s arrival at the • What is the number of lanes on each P(FC|C)]} represents the expected crossing and while the lead locomotive is highway approach? Note the pavement number of injury collisions. These are traveling across the crossing. It is permissible condition on each approach, as well as the for the horn system to begin to sound condition of the crossing itself. then multiplied by their respective • average number of fatalities and injuries simultaneously with activation of the Is the grade crossing surface smooth, flashing lights or descent of the crossing arm; well graded and free draining? (from the table above) to develop the and • Does the alignment of the railroad tracks number of expected casualties. The final 6. Horn shall be directed toward at the crossing create any problems for road parts of the expressions attach the dollar approaching traffic. users on the crossing? Are the tracks in values for these casualties. superelevation (are they banked on a curve?) The Risk Index for a Crossing is the Appendix F to Part 222—Diagnostic and does this create a conflict with the integer sum of the Predicted Cost of Team Considerations vertical alignment of the crossing roadway? • Fatalities and the Predicted Cost of For purposes of this part, a diagnostic team Note the distance to the nearest Injuries. is a group of knowledgeable representatives intersection or traffic signal on each of parties of interest in a highway-rail grade approach (if within 500 feet or so of the Nationwide Significant Risk Threshold crossing, organized by the public authority crossing, or if the signal or intersection is The Nationwide Significant Risk responsible for that crossing, who, using determined to have a potential impact on Threshold is simply an average of the crossing safety management principles, highway traffic at the crossing because of queuing or other special problems). risk indexes for all of the gated crossings evaluate conditions at a grade crossing to make determinations or recommendations for • If there is a roadway that runs parallel nationwide where train horns are the public authority concerning safety needs to the railroad tracks, and it is within 100 feet routinely sounded. FRA identified at that crossing. Crossings proposed for of the railroad tracks when it crosses an 33,879 gated non-whistle ban crossings inclusion in a quiet zone should be reviewed intersecting road that crosses the tracks, the for input to the Nationwide Significant in the field by such a diagnostic team appropriate advance warning signs should be Risk Threshold. composed of railroad personnel, public safety posted as shown in the MUTCD. The Nationwide Significant Risk or law enforcement, engineering personnel • Is the posted highway speed (on each Threshold rounds to 15,424. This value from the public agency with responsibility approach to the crossing) appropriate for the is recalculated annually. for the roadway that crosses the railroad, and alignment of the roadway, and the other concerned parties. configuration of the crossing? Crossing Corridor Risk Index This diagnostic team, using crossing safety • Does the vertical alignment of the crossing create the potential for a ‘‘hump The Crossing Corridor Risk Index is management principles, should evaluate conditions at a grade crossing to make crossing’’ where long, low-clearance vehicles the average of the risk indexes of all the determinations and recommendations might get stuck on the crossing? crossings in a defined rail corridor. concerning safety needs at that crossing. The • What are the grade crossing warning Communities seeking to establish ‘Quiet diagnostic team can evaluate a crossing from devices in place at each crossing? Flashing Zones’ should initially calculate this many perspectives and can make lights and gates are required for each public average for potential corridors. recommendations as to what safety measures crossing in a New Quiet Zone. Are all authorized by this part might be utilized to required warning devices, signals, pavement Quiet Zone Risk Index compensate for the silencing of the train markings and advance signing in place, The Quiet Zone Risk Index is the horns within the proposed quiet zone. visible and in good condition for both day and night time visibility? average of the risk indexes of all the All Crossings Within a Proposed Quiet Zone • public crossings in a Quiet Zone. It What kind of train detection is in place The diagnostic team should obtain and at each crossing? Are these systems old or takes into consideration the absence of review the following information about each outmoded; are they in need of replacement, the horn sound and any safety measures crossing within the proposed quiet zone: upgrading, or refurbishment? that may have been installed. 1. Current highway traffic volumes and • Are there sidings or other tracks adjacent Appendix E to Part 222—Requirements percent of trucks; to the crossing that are often used to store 2. Posted speed limits on all highway railroad cars, locomotives, or other for Wayside Horns approaches; equipment that could obscure the vision of Minimum requirements for wayside horn 3. Maximum allowable train speeds, both road users as they approach the crossings in use at highway-rail grade crossings: passenger and freight; the quiet zone? Clear visibility may help to 1. Highway-rail crossing must be equipped 4. Accident history for each crossing under reduce violation of automatic devices. with constant warning time device, if consideration; • Are motorists currently violating the reasonably practical, and power-out 5. School bus or transit bus use at the warning devices at any of the crossings at an indicator; crossing; and excessive rate? 2. Horn system must be equipped with an 6. Presence of U.S. DOT grade crossing • Do accident statistics for the corridor indicator or other system to notify the inventory numbers clearly posted at each of indicate any potential problems at any of the locomotive engineer as to whether the the crossings in question. crossings?

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• If school buses or transit buses use • What types of vehicles use the private • Are there any nearby crossings where crossings within the proposed quiet zone crossing? train horns sound that might also provide corridor, can they be rerouted to a use single School buses some warning at the private crossing where no horns sound? crossing within or outside of the quiet zone? Large trucks • What are the approach (corner) sight Private Crossings Within a Proposed Quiet Hazmat carriers distances? Zone Farm equipment • What is the clearing sight distance for all • In addition to the items discussed above, What is the volume, speed and type of approaches? • a diagnostic team should examine the train traffic over the crossing? What are the private roadway approach • Do passenger trains use the crossing? grades? following for any private crossings within a • proposed quiet zone: • Do approaching trains sound the horn at What are the private roadway pavement surfaces? • How often is the private crossing used? private crossings? • What kind of signing or pavement State or local law forbids or requires it? Appendix G to Part 222—Schedule of markings are in place at the private crossing? Railroad safety rule requires it? Civil Penalties 1

Section Violation Willful violation

Subpart B—Use of Locomotive Horns § 222.21 Use of locomotive horn: (a) Failure to sound horn at grade crossing ...... $5,000 $7,500 Failure to sound horn in proper pattern ...... 1,000 3,000 (b) Failure to sound horn at least 15 and no more than 20 seconds before crossing ...... 5,000 7,500 Sounding horn more than 1⁄4 mile in advance of crossing ...... 1,000 4,000 ¤ 222.33 Failure to sound horn when conditions of ¤ 222.33 are not met ...... 5,000 7,500 ¤ 222.45 Sounding locomotive horn at a grade crossing within a quiet zone ...... 1,500 5,000 ¤ 222.49 (b) Failure to provide Grade Crossing Inventory Form information ...... 2,500 5,000 ¤ 222.59 (c) Routine sounding locomotive horn at a grade crossing equipped with wayside horn ...... 5,000 7,500 1 A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $20,000 for any violation where circumstances warrant. See 49 CFR part 209, appendix A.

PART 229—[AMENDED] on such locomotive is in compliance percent inclusively; wind velocity is not with paragraph (a). more than 12 mile per hour and there ■ 2. The authority citation for part 229 (c) Testing of horn locomotive horn is no precipitation. continues to read as follows: sound level shall be in accord with the (7) The microphone shall be located following requirements: 100 feet forward of the front knuckle of Authority: 49 U.S.C. 20102–20103, 20107, (1) A properly calibrated sound level 20133, 20137–20138, 20143, 20701–20703, the locomotive, 15 feet above the top of 21301–20302, 21304; 49 CFR 149(c), (m). meter shall be used that, at a minimum, rail, at the center line of the track, and complies with the requirements of oriented with respect to the sound ■ 3. Section 229.129 is revised to read as International Electrotechnical source according to the manufacturer’s follows: Commission (IEC) Standard 61672–1 recommendations. The observer shall § 229.129 Audible warning device. (2002–05) for a Class 2 instrument. not stand between the microphone and (2) An acoustic calibrator shall be the horn. (a) Each lead locomotive shall be used that, at a minimum, complies with (8) Background noise shall be provided with an audible warning the requirements of IEC Standard 60942 minimal: the sound level at the test site device that produces a minimum sound (1997–11) for a Class 2 instrument. immediately before and after each horn level of 96dB(A) and a maximum sound (3) The manufacturer’s instructions sounding event shall be at least 10 level of 110 dB(A) at 100 feet forward pertaining to mounting and orienting dB(A) below the level measured during of the locomotive in its direction of the microphone; positioning of the the horn sounding. travel. The device shall be arranged so observer; and periodic factory that it can be conveniently operated recalibration shall be followed. (9) Measurement procedures. The from the engineer’s usual position (4) A microphone windscreen shall be sound level meter shall be set for A- during operation of the locomotive. used and tripods or similar microphone weighting with slow exponential response and shall be calibrated with (b)(1) Each locomotive built on or mountings shall be used that minimize interference with the sound being the acoustic calibrator immediately after December 18, 2004, shall be tested before and after compliance tests. Any in accordance with this section to measured. (5) The test site shall be free of large change in the before and after ensure that the horn installed on such calibration levels shall be less than 0.5 locomotive is in compliance with reflective structures, such as barriers, hills, billboards, tractor trailers or other dB. After the output from the paragraph (a) of this section. large vehicles, locomotives or rail cars locomotive horn system has reached a (2) Each locomotive built before on adjacent tracks, bridges or buildings, stable level, the A-weighted equivalent December 18, 2004, shall be tested in within 400 feet in front of the sound level (slow response) for a 20 accordance with this section before locomotive and within 200 feet to the second duration (LAeq,20s) shall be December 18, 2008, to ensure that the sides of the locomotive and obtained either directly using an horn installed on such locomotive is in microphone. The locomotive shall be integrating-averaging sound level meter, compliance with paragraph (a) of this positioned on straight, level track. or recorded once per second and section. (6) Measurements shall be taken only calculated indirectly . The arithmetic- (3) Each locomotive when rebuilt, as when ambient air temperature is average of a series of at least six such determined pursuant to 49 CFR 232.5, between 36 degrees and 95 degrees readings shall be used to determine shall be tested in accordance with this Fahrenheit inclusively; relative compliance. The standard deviation of section to ensure that the horn installed humidity is between 20 percent and 95 the readings shall be less than 1.5 dB.

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(10) The railroad shall maintain, at a locomotive horn testing conducted in Appendix B to Part 229—[Amended] location of its choice, records sufficient compliance with this part. to show the date, manner and result of (d) This section does not apply to ■ 4. The entry for § 229.129 ‘‘Audible locomotives of rapid transit operations warning devices’’ in appendix B to part which are otherwise subject to this part. 229 is revised to read as follows:

Willful Section Violation Violation

******* 229.129 Audible warning device: (a) Prescribed sound levels ...... $2,500 $5,000 Arrangement of device ...... 2,500 5,000 (b) (1), (ii) Testing ...... 2,500 5,000 (c) Test procedures ...... 2,500 5,000 (c)(10) Records of tests ...... 2,500 5,000

*******

Issued in Washington, DC, on December 5, 2003. Allan Rutter, Administrator. [FR Doc. 03–30606 Filed 12–17–03; 8:45 am] BILLING CODE 4910–06–P

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Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. 1 CFR Proposed Rules: Presidential Documents 35...... 68549 Executive orders and proclamations 741–6000 Proposed Rules: 50...... 67811 The United States Government Manual 741–6000 11...... 70191 72...... 70463 300...... 68204 Other Services 3 CFR 850...... 68276 Electronic and on-line services (voice) 741–6020 Proclamations: 851...... 68276 Privacy Act Compilation 741–6064 7529 (See Proc. Public Laws Update Service (numbers, dates, etc.) 741–6043 7741) ...... 68483 11 CFR TTY for the deaf-and-hard-of-hearing 741–6086 7576 (See Proc. 4...... 70426 7741) ...... 68483 100...... 67013, 69583 7740...... 67787 102...... 67013 ELECTRONIC RESEARCH 7741...... 68483 106...... 69583 World Wide Web 7742...... 68999 111...... 70426 7743...... 69293 114...... 69583 Full text of the daily Federal Register, CFR and other publications 7744...... 69939 9004...... 69583 is located at: http://www.access.gpo.gov/nara Executive Orders: 9034...... 69583 Federal Register information and research tools, including Public 11582 (See EO Inspection List, indexes, and links to GPO Access are located at: 13320) ...... 69295 12 CFR http://www.archives.gov/federallregister/ 13119...... 68233 3...... 70122 13183 (Amended by 5...... 70122 E-mail EO 13319)...... 68233 6...... 70122 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 13320...... 69295 7...... 70122 an open e-mail service that provides subscribers with a digital Administrative Orders: 9...... 70122 form of the Federal Register Table of Contents. The digital form Memorandums: 11...... 68489 of the Federal Register Table of Contents includes HTML and Memorandum of March 16...... 68489 PDF links to the full text of each document. 5, 2002 (See Proc. 28...... 70122 To join or leave, go to http://listserv.access.gpo.gov and select 7741) ...... 68483 34...... 70122 225...... 68493 Online mailing list archives, FEDREGTOC-L, Join or leave the list 4 CFR (orchange settings); then follow the instructions. 264b...... 68720 27...... 69297 905...... 67789 PENS (Public Law Electronic Notification Service) is an e-mail 28...... 69297 Proposed Rules: service that notifies subscribers of recently enacted laws. 29...... 69297 202...... 68786 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 205...... 68788 and select Join or leave the list (or change settings); then follow 7 CFR 213...... 68791 the instructions. 51...... 69941 226...... 68793 FEDREGTOC-L and PENS are mailing lists only. We cannot 56...... 68487 230...... 68799 respond to specific inquiries. 70...... 68487 91...... 69944 14 CFR Reference questions. Send questions and comments about the 96...... 69944 11...... 70132 Federal Register system to: [email protected] 319...... 70421 25 ...... 68499, 68501, 70133 The Federal Register staff cannot interpret specific documents or 354...... 67937 39 ...... 67018, 67020, 67021, regulations. 772...... 69948 67024, 67025, 67027, 67585, 905...... 68717 67588, 67789, 67792, 67794, 67796, 67798, 69596, 70136, FEDERAL REGISTER PAGES AND DATE, DECEMBER 1220...... 69953 1412...... 67938 70428, 70429, 70431, 70432, 67013–67356...... 1 1421...... 67938 70434 67357–67584...... 2 1901...... 69948 71 ...... 67357, 67358, 67359, 67360, 67361, 67590, 68449, 67585–67786...... 3 1951...... 69948, 69954 1942...... 69001 68503, 68504, 68505, 68506, 67787–67936...... 4 Proposed Rules: 68507, 68508, 68973, 69305, 67937–68232...... 5 275...... 70193 69597, 69598, 69599, 70137, 68233–68486...... 8 319...... 70448 70138, 70139, 70140 68487–68716...... 9 810...... 70201 91...... 70132 68717–69000...... 10 900...... 67381 97...... 67363, 69306 69001–69294...... 11 929...... 69343 135...... 69307 69295–69582...... 12 1230...... 70201 1260...... 67364 69583–69940...... 15 Proposed Rules: 8 CFR 69941–70120...... 16 25...... 68563 70121–70420...... 17 264...... 67578 39 ...... 67385, 67611, 67613, 70421–70688...... 18 67616, 67618, 67622, 67812, 10 CFR 67814, 67816, 67971, 67973, 72...... 70121, 70423 67975, 67978, 67980, 67981,

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67984, 67986, 67988, 68299, 601...... 69009 100...... 67944, 68239 408...... 69840 68301, 68304, 68306, 68308, 872...... 67365 117...... 69607, 70152 412...... 67955 68311, 68802, 69051, 69053, 882...... 70435 165 ...... 67371, 67946, 68518, 413...... 67955 69055, 69057, 69633, 70204, Proposed Rules: 69609, 69958, 70153 414...... 67960 70206, 70208, 70210, 70213, 17...... 67094 476...... 67955 70464, 70469, 70473, 70475, 872...... 67097 34 CFR 484...... 67955 70477, 70479 200...... 68698 Proposed Rules: 71 ...... 68573, 68575, 68576 22 CFR 668...... 69312 1001...... 69366 89...... 69600 674...... 69312 15 CFR 126...... 67032 682...... 69312 43 CFR 6...... 69001 303...... 68695 685...... 69312 4...... 68765 740...... 68976 Proposed Rules: 36 CFR 742...... 67030 24 CFR 4100...... 68452 743...... 68976 570...... 69580 7...... 69268 772...... 68976 891...... 67316 242...... 67595 44 CFR 774...... 67030, 68976 Proposed Rules: 64...... 67051 801...... 69955 25 CFR 7...... 69358 65 ...... 67052, 69323, 69959 806...... 67939 170...... 67941 67...... 67056, 69961 37 CFR 16 CFR Proposed Rules: 26 CFR 1...... 67805 67...... 67106, 67107 1500...... 70140 1 ...... 67595, 68511, 69020, 253...... 67045 45 CFR 17 CFR 69024, 70141, 70584 Proposed Rules: 301...... 67595 1...... 67818, 69442 31...... 70444 228...... 69204 602...... 67595, 70141 2...... 69442, 70482 1185...... 70184 229...... 69204 Proposed Rules: 10...... 69442 1604...... 67372 240...... 69204 1 ...... 69061, 69062, 70214, 11...... 69442 Proposed Rules: 249...... 69204 70482 2400...... 69980 38 CFR 270...... 69204 301...... 70214 274...... 69204 Proposed Rules: 46 CFR Proposed Rules: 27 CFR 19...... 69062 401...... 69564 143...... 69634 9...... 67367 20...... 69062 404...... 69564 200...... 68186 Proposed Rules: Proposed Rules: 201...... 68186 39 CFR 7...... 67388 501...... 67510 239...... 70402 9...... 70217 Proposed Rules: 535...... 67510 240...... 68186 25...... 67388 111...... 69066 270...... 70388 47 CFR 274...... 70402 28 CFR 40 CFR 2...... 68241, 68531 403...... 69059 Proposed Rules: 52 ...... 67045, 67598, 67805, 15...... 68531 67807, 67948, 68521, 68523, 18 CFR 901...... 67991 18...... 68531 69025, 69318, 69320, 69611, 20...... 70184 4...... 69957 29 CFR 70437 54...... 69622 5...... 69978 60...... 69029, 69036 73 ...... 67378, 67599, 67964, 11...... 67592 1626...... 70150 4011...... 67032 61 ...... 67932, 69029, 69036 68254, 68547, 69327, 69328, 35...... 69599 62...... 68738 69627 37...... 69134 4022...... 67033, 69606 4044...... 67035, 69606 63 ...... 67953, 69029, 69036, 74...... 68241, 69328 161...... 69134 69164 Proposed Rules: 76...... 67599 250...... 69134 81...... 69611 1917...... 68804 78...... 68241 284...... 69134 180...... 69322 1918...... 68804 90...... 68531 358...... 69134 271...... 68526 2510...... 68710 95...... 68531 721...... 70155 101...... 68241 19 CFR 30 CFR Proposed Rules: Proposed Rules: 4...... 68140 51...... 68805 250...... 69308 2...... 68823 10...... 67338 52 ...... 67821, 67993, 68579, 934...... 67801 15...... 68823 103...... 68140 68580, 68581, 69069, 69366, 948...... 67035, 68724 52...... 68831 113...... 68140 69637, 69640, 70484 53...... 68585 Proposed Rules: 122...... 68140 61...... 69069 54...... 69641 732...... 67776 123...... 68140 62...... 68805 64...... 68312 163...... 67338 31 CFR 63...... 69069 73 ...... 67389, 67390, 67624, 178...... 68140 81...... 69640, 70108 68833, 69648 192...... 68140 1...... 67943 180...... 68806 76...... 67624 323...... 67943 247...... 68813 20 CFR Proposed Rules: 271...... 68585 48 CFR 404...... 69003 50...... 67100 302...... 67916 Ch. 1...... 69226, 69259 416...... 69003 355...... 67916 32 CFR 1...... 69227, 69258 718...... 69930 2...... 67354, 69246 725...... 69930 706 ...... 68511, 68513, 68514, 41 CFR 4...... 69248 Proposed Rules: 68515, 68516 105–55...... 68740 6...... 69258 422...... 69978 806b...... 68517 105–56...... 68750 8...... 69249 Proposed Rules: 105–57...... 68760 9...... 67354, 69250 21 CFR 312...... 68577 301–10...... 69618 13...... 69258 1...... 69957 806b...... 68578 22...... 67354 314...... 69009 42 CFR 25...... 69258 347...... 68509 33 CFR 52a...... 69619 28...... 67354 520...... 68723 1...... 69958 102...... 70080 31...... 69246, 69251 522...... 68723 66...... 68235 403...... 69840 36...... 69227

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44...... 67354 1852...... 67995 176...... 67821 679 ...... 67086, 67379, 67964, 52 ...... 67354, 69251, 69257, 177...... 67821 68265, 69047, 69048, 69049, 69258 49 CFR 192 ...... 67128, 67129, 69368 69974 53...... 69227, 69248 195...... 67129, 69368 Proposed Rules: 171...... 67746 571...... 68319 232...... 69628, 69631 192...... 69778 216...... 67629 252...... 69628, 69631 199...... 69046 50 CFR 222...... 70219 904...... 68771 222...... 70586 223...... 68834, 70219 923...... 68771 17...... 70185 229...... 70586 100...... 67595 224...... 68834 952...... 68771 571...... 67068, 69046 223...... 69962 600...... 67636, 69070 970...... 68771 586...... 67068 229...... 69967 622...... 68854 Ch. 30 ...... 67868 1152...... 67809 300...... 67607 648...... 69373 Proposed Rules: Proposed Rules: 402...... 68254 660 ...... 67132, 67638, 67640, 8...... 69262 24...... 70342 600...... 69331 67998, 68834 31...... 69264 171...... 67821 622...... 68784 679 ...... 67390, 67642, 68002, 1809...... 67995 173...... 67821 635...... 69969 70484 1837...... 67995 174...... 67821 648...... 67609, 69970 697...... 67636

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REMINDERS Upholstered furniture; Pesticides; tolerances in food, Ports and waterways safety: The items in this list were flammability standards; animal feeds, and raw Tongass Narrows and editorially compiled as an aid comments due by 12-22- agricultural commodities: Ketchikan, AK; anchorage to Federal Register users. 03; published 10-23-03 Tebufenozide; comments ground speed limit; safety Inclusion or exclusion from [FR 03-26809] due by 12-23-03; zone; comments due by this list has no legal DEFENSE DEPARTMENT published 10-24-03 [FR 12-22-03; published 10- significance. Federal Acquisition Regulation 03-26756] 21-03 [FR 03-26554] (FAR): FARM CREDIT HOMELAND SECURITY RULES GOING INTO Commercial Items and ADMINISTRATION DEPARTMENT EFFECT DECEMBER 18, commercial components; Farm credit system: Nonimmigrant classes: subcontracts; comments 2003 Loan policies and Student and Exchange due by 12-26-03; operations, etc.— Visitor Information published 10-27-03 [FR COMMERCE DEPARTMENT Other financial institutions System; F, J, and M 03-26953] nonimmigrants; application National Oceanic and and investments in ENERGY DEPARTMENT fees; comments due by Atmospheric Administration Farmers’ notes; comments due by 12- 12-26-03; published 10- Marine mammals: Federal Energy Regulatory Commission 22-03; published 10-23- 27-03 [FR 03-26970] Commercial fishing 03 [FR 03-26729] INTERIOR DEPARTMENT operations; incidental Electric rate and corporate taking— regulation filings: GENERAL SERVICES Fish and Wildlife Service Atlantic Large Whale Take Virginia Electric & Power ADMINISTRATION Migratory bird hunting: Reduction Plan; Co. et al.; Open for Federal Acquisition Regulation Hevi-steel; nontoxic shot published 12-16-03 comments until further (FAR): material for waterfowl notice; published 10-1-03 HEALTH AND HUMAN Commercial Items and hunting; application; [FR 03-24818] SERVICES DEPARTMENT commercial components; comments due by 12-23- Federal claims collection: ENVIRONMENTAL subcontracts; comments 03; published 10-24-03 due by 12-26-03; Tax refund offset; published PROTECTION AGENCY [FR 03-26934] published 10-27-03 [FR 12-18-03 Air programs: Silvex metal; nontoxic shot 03-26953] TRANSPORTATION Air quality implementation material for waterfowl DEPARTMENT plans; approval and HEALTH AND HUMAN hunting; application; SERVICES DEPARTMENT comments due by 12-23- Federal Aviation promulgation; various 03; published 10-24-03 Administration States: Food and Drug [FR 03-26935] Airworthiness directives: Pennsylvania; comments Administration INTERIOR DEPARTMENT Boeing; published 11-13-03 due by 12-24-03; Public Health Security and published 11-24-03 [FR Bioterrorism Preparedness Pratt & Whitney; published National Park Service 03-29175] and Response Act of 2002; 12-3-03 Special regulations: Rolls-Royce Deutschland Ambient air quality Food facilities registration; Armistad National Ltd. & Co. KG; published standards, national— comments due by 12-24- Recreation Area, TX; 11-13-03 Transportation conformity; 03; published 10-10-03 personal watercraft use; 8-hour ozone and fine [FR 03-25849] comments due by 12-22- particulate matter Public Health Security and COMMENTS DUE NEXT 03; published 10-22-03 standards; criteria and Bioterrorism Preparedness [FR 03-26577] WEEK procedures; comments and Response Act of 2002; Boating and water use due by 12-22-03; implementation: activities; comments due AGRICULTURE published 11-5-03 [FR Food importation notice to by 12-24-03; published 8- DEPARTMENT 03-27372] FDA; comments due by 26-03 [FR 03-21333] Agricultural Marketing Air quality implementation 12-24-03; published 10- INTERIOR DEPARTMENT Service plans; approval and 10-03 [FR 03-25877] Livestock mandatory reporting: promulgation; various Surface Mining Reclamation Reports and guidance and Enforcement Office Lamb reporting; definitions; States: documents; availability, etc.: comments due by 12-26- Delaware; comments due by Permanent program and Evaluating safety of abandoned mine land 03; published 10-27-03 12-26-03; published 11- antimicrobial new animal [FR 03-27015] 26-03 [FR 03-29427] reclamation plan drugs with regard to their submissions: Onions grown in— Missouri; comments due by microbiological effects on Texas; comments due by 12-26-03; published 11- bacteria of human health Kentucky; comments due by 12-22-03; published 11- 26-03 [FR 03-29425] concern; Open for 12-22-03; published 11- 20-03 [FR 03-28997] 21-03 [FR 03-29060] New Jersey; comments due comments until further COMMERCE DEPARTMENT by 12-22-03; published notice; published 10-27-03 NATIONAL AERONAUTICS National Oceanic and 11-21-03 [FR 03-29181] [FR 03-27113] AND SPACE Atmospheric Administration Pennsylvania; comments HOMELAND SECURITY ADMINISTRATION Fishery conservation and due by 12-24-03; DEPARTMENT Federal Acquisition Regulation management: published 11-24-03 [FR Coast Guard (FAR): Atlantic coastal fisheries 03-29174] Pollution: Commercial Items and cooperative commercial components; Environmental statements; Ballast water discharge management— availability, etc.: subcontracts; comments standard; preventing due by 12-26-03; Atlantic striped bass; Coastal nonpoint pollution introductions and spread comments due by 12- control program— published 10-27-03 [FR of nonindigenous species; 03-26953] 22-03; published 10-20- Minnesota and Texas; environmental protection 03 [FR 03-26400] Open for comments requirement; comments NATIONAL ARCHIVES AND CONSUMER PRODUCT until further notice; due by 12-26-03; RECORDS ADMINISTRATION SAFETY COMMISSION published 10-16-03 [FR published 9-26-03 [FR 03- National Historical Publications Flammable Fabrics Act: 03-26087] 24138] and Records Commission;

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Nondiscrimination in activity; reinstatement of concern; comments due (Dec. 15, 2003; 117 Stat. Federally Assisted entitlement; comments by 12-26-03; published 2643) Programs: due by 12-26-03; 11-25-03 [FR 03-29288] H.R. 3287/P.L. 108–180 Section 504 of the published 10-27-03 [FR TREASURY DEPARTMENT To award congressional gold Rehabilitation Act of 1973; 03-26951] Alcohol and Tobacco Tax medals posthumously on implementation; comments TRANSPORTATION and Trade Bureau behalf of Reverend Joseph A. due by 12-22-03; DEPARTMENT Alcoholic beverages: DeLaine, Harry and Eliza published 10-22-03 [FR Federal Aviation Flavored malt beverages Briggs, and Levi Pearson in 03-26614] Administration Comments received; recognition of their NUCLEAR REGULATORY Airworthiness directives: Internet posting; contributions to the Nation as COMMISSION Aerostar Aircraft Corp.; comments due by 12- pioneers in the effort to Production and utilization comments due by 12-23- 23-03; published 12-2- desegregate public schools facilities; domestic licensing: 03; published 10-28-03 03 [FR 03-29905] that led directly to the Nuclear power plants; [FR 03-26833] landmark desegregation case decommissioning trust Augusta S.p.A.; comments of Brown et al. v. the Board fund provisions; comments due by 12-22-03; LIST OF PUBLIC LAWS of Education of Topeka et al. due by 12-22-03; published 10-22-03 [FR (Dec. 15, 2003; 117 Stat. published 11-20-03 [FR 03-26624] This is a continuing list of 2645) public bills from the current 03-29021] Rolls-Royce plc; comments H.J. Res. 80/P.L. 108–181 session of Congress which POSTAL SERVICE due by 12-22-03; have become Federal laws. It Appointing the day for the published 10-23-03 [FR Postage meters: may be used in conjunction convening of the second 03-26720] Manufacture and distribution; with ‘‘PLUS’’ (Public Laws session of the One Hundred authorization; comments Class E airspace; comments Update Service) on 202–741– Eighth Congress. (Dec. 15, due by 12-22-03; due by 12-22-03; published 6043. This list is also 2003; 117 Stat. 2648) published 11-20-03 [FR 11-6-03 [FR 03-27909] available online at http:// S. 459/P.L. 108–182 03-28958] Exemption petitions; summary www.nara.gov/fedreg/ Hometown Heroes Survivors and disposition; comments Postal programs: plawcurr.html. Benefits Act of 2003 (Dec. 15, due by 12-26-03; published Semipostal Stamp Program; 2003; 117 Stat. 2649) 10-27-03 [FR 03-27055] The text of laws is not comments due by 12-22- published in the Federal Last List December 17, 2003 03; published 11-20-03 TREASURY DEPARTMENT Register but may be ordered [FR 03-28957] Currency and foreign in ‘‘slip law’’ (individual SECURITIES AND transactions; financial pamphlet) form from the EXCHANGE COMMISSION reporting and recordkeeping Superintendent of Documents, Public Laws Electronic Notification Service Securities and investment requirements: U.S. Government Printing companies: USA PATRIOT Act; Office, Washington, DC 20402 (PENS) Security holder director implementation— (phone, 202–512–1808). The Burma; special measures text will also be made nominations; comments PENS is a free electronic mail imposition due to available on the Internet from due by 12-22-03; notification service of newly designation as primary GPO Access at http:// published 10-23-03 [FR enacted public laws. To money laundering www.access.gpo.gov/nara/ 03-26351] subscribe, go to http:// concern; comments due nara005.html. Some laws may listserv.gsa.gov/archives/ SOCIAL SECURITY by 12-26-03; published not yet be available. publaws-l.html ADMINISTRATION 11-25-03 [FR 03-29289] H.R. 1437/P.L. 108–178 Social Security benefits: Myanar Mayflower Bank Note: This service is strictly To improve the United States Federal old-age, survivors, and Asia Wealth Bank; for E-mail notification of new Code. (Dec. 15, 2003; 117 and disability insurance special measures laws. The text of laws is not Stat. 2637) and aged, blind, and imposition due to available through this service. disabled— designation as H.R. 1813/P.L. 108–179 PENS cannot respond to Disability benefits institutions of primary Torture Victims Relief specific inquiries sent to this terminated due to work money laundering Reauthorization Act of 2003 address.

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