7–21–09 Tuesday Vol. 74 No. 138 July 21, 2009

Pages 35763–36076

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Contents Federal Register Vol. 74, No. 138

Tuesday, July 21, 2009

Agency for International Development Comptroller of the Currency NOTICES NOTICES Meetings: Loans in Areas Having Special Flood ; Interagency Board for International Food and Agricultural Questions and Answers Regarding Flood Insurance, Development, 35840–35841 35914–35947

Agriculture Department NOTICES Consumer Product Safety Commission Solicitation for Members of the National Agricultural NOTICES Research, Extension, Education and Economics Consultation Pursuant to Section 106 of the CPSIA: Advisory Board, 35840 Request for Comments and Information, 35848–35850

Centers for Disease Control and Prevention Defense Acquisition Regulations System NOTICES RULES Agency Information Collection Activities; Proposals, Defense Federal Acquisition Regulation Supplement: Submissions, and Approvals, 35868–35871 Acquisition of Commercial Items (DFARS Case 2008– Guidelines for Proposals to Use Samples and Proposed Cost D011); Correction, 35825–35826 Schedules: National Health and Nutrition Examination Survey (NHANES) Stored Biologic Specimens, 35872–35875 Defense Department Meetings: See Defense Acquisition Regulations System Disease, Disability, and Injury Prevention and Control NOTICES Special Emphasis Panel, 35877 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 35850–35851 Coast Guard RULES Education Department 2009 Rates for Pilotage on the Great Lakes, 35812–35825 NOTICES Drawbridge Operation Regulations: Applications for Fiscal Year (FY) 2009 New Awards: Illinois Waterway, Beardstown, IL, 35802–35803 Enhancing the Health and Wellness of Individuals with Safety Zone: Arthritis, 35851–35855 Access Destinations Fireworks Display, San Diego Bay, Enhancing the Health and Wellness of Individuals with CA, 35805–35807 Neuromuscular Diseases, 35855–35858 Friends of Fireworks Celebration, Lake Huron, St. Ignace, Final Priorities: MI, 35803–35805 Rehabilitation Research and Training Centers, 35858– PROPOSED RULES 35860 Great Lakes Pilotage Ratemaking Methodology, 35838– 35839 Special Local Regulation: Energy Department Swim Across the Sound, Long Island Sound, Port See Federal Energy Regulatory Commission Jefferson, NY to Captain’s Cove Seaport, Bridgeport, NOTICES CT, 35834–35837 Energy Conservation Program for Consumer Products: NOTICES Commercial Package Water-Source Heat Pump Test Meetings: Procedure; Modification of Petition for Waiver and Baton Rouge Waterways Action Plan Annex, 35882 Interim Waiver of Mitsubishi Electric, 35860–35862 National Offshore Safety Advisory Committee; Vacancies, 35882–35883 Environmental Protection Agency PROPOSED RULES Commerce Department Approval and Promulgation of Air Quality Implementation See Industry and Security Bureau Plans: See International Trade Administration Reformulated Gasoline and Diesel Fuels; California; See National Institute of Standards and Technology Correction, 35838 See National Oceanic and Atmospheric Administration NOTICES Meetings: Committee for the Implementation of Textile Agreements Board of Scientific Counselors Executive Committee, NOTICES 35867–35868 Request for Public Comment on a Commercial Availability Protection of Stratospheric : Extension to Deadline Request under the U.S.–Bahrain Free Trade Agreement, for Critical Use Exemption Applications (for 2012), 35847–35848 35868 Commodity Futures Trading Commission NOTICES Executive Office of the President Meetings; Sunshine Act, 35848 See Presidential Documents

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Farm Credit Administration Federal Highway Administration NOTICES NOTICES Loans in Areas Having Special Flood Hazards; Interagency Final Federal Agency Actions on Proposed Highway in Questions and Answers Regarding Flood Insurance, California, 35906–35907 35914–35947 Final Federal Agency Actions on Highway 183 in Texas, 35907 Federal Aviation Administration Federal Railroad Administration RULES PROPOSED RULES Airworthiness Directives: Positive Train Control Systems, 35950–36028 Aerospatiale Model SN 601 (Corvette) Airplanes, 35769– 35772 Federal Reserve System Airbus Model A310 Series Airplanes, 35777–35780 NOTICES Airbus Model A319, A320, and A321 Series Airplanes, Loans in Areas Having Special Flood Hazards; Interagency 35774–35777 Questions and Answers Regarding Flood Insurance, Airbus Model A330–301, –321, –322, –341, and –342 35914–35947 Series Airplanes, and Airbus Model A340–211, –212, –213, –311, –312, and –313 Series Airplanes, 35785– Fish and Wildlife Service 35788 NOTICES Airbus Model A380–841, –842, and –861 Airplanes, Endangered and Threatened Wildlife and Plants: 35780–35782 Permit Application, Northern Spotted Owl, Oregon, BAE Systems (Operations) Limited Model BAe 146 and 35883–35885 146 RJ Airplanes, 35772–35774 Endangered Species Recovery Permit Applications, 35885– Boeing Model 707 Airplanes and Model 720 and 720B 35886 Series Airplanes, 35788–35789 Boeing Model 747 400 and 400D Series Airplanes, Food and Drug Administration 35789–35792 RULES Honeywell International Inc., T5313 and T5317 Series Termination and Recharter: Turboshaft Engines, 35782–35785 Advisory Committee; Risk Communication Advisory Standard Instrument Approach Procedures, and Takeoff Committee, 35801 Minimums and Obstacle Departure Procedures: NOTICES Miscellaneous Amendments, 35792–35797 Filing of Food Additive Petition: PROPOSED RULES Ajinomoto Co., Inc., 35871–35872 Airworthiness Directives: International Cooperation on Harmonisation of Technical Saab AB, Saab Aerosystems Model SAAB 2000 Airplanes, Requirements for Registration of Veterinary Medicinal 35828–35830 Products (VICH): Draft Guidance for Industry on Bracketing and Matrixing Designs for Stability Testing, etc., 35875–35876 Federal Deposit Insurance Corporation Meetings: NOTICES Risk Communication Advisory Committee, 35876 Loans in Areas Having Special Flood Hazards; Interagency Questions and Answers Regarding Flood Insurance, Foreign Assets Control Office 35914–35947 RULES Persons Contributing to the Conflict in Coˆte d’Ivoire Sanctions Regulations, 35802 Federal Emergency Management Agency NOTICES RULES Additional Designation of Individuals Pursuant to Suspension of Community Eligibility, 35809–35812 Executive Order (13224), 35907–35908 NOTICES Major Disaster and Related Determinations: General Services Administration Illinois, 35880–35881 RULES Major Disaster Declaration: Federal Travel Regulations (FTRs): South Dakota, 35881 Travel Purpose Identifier (FTR Case 2009–305), 35807– West Virginia, 35881 35809 NOTICES Agency Information Collection Activities; Proposals, Federal Energy Regulatory Commission Submissions, and Approvals, 35850–35851 PROPOSED RULES Transmission Relay Loadability Reliability Standard, 35830 Health and Human Services Department NOTICES See Centers for Disease Control and Prevention Applications: See Food and Drug Administration Soule Hydro LLC, 35862 See National Institutes of Health Combined Notice of Filings, 35862–35864 Environmental Impact Statements; Availability, etc.: Homeland Security Department East Cheyenne Gas Storage, LLC, 35864–35866 See Coast Guard Filings: See Federal Emergency Management Agency Orangeburg, SC, 35866–35867 See Transportation Security Administration Rate Election: NOTICES UGI Central Penn Gas, Inc., 35867 Privacy Act; Systems of Records, 35877–35880

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Industry and Security Bureau National Highway Traffic Safety Administration RULES NOTICES Addition and Removal of Certain Persons on the Entity List: Agency Information Collection Activities; Proposals, Addition of Persons Acting Contrary to the National Submissions, and Approvals, 35904–35905 Security or Foreign Policy Interests of the United States, etc., 35797–35801 National Institute of Standards and Technology NOTICES Interior Department Amendments to Alternative Personnel Management System, See Fish and Wildlife Service 35841–35842 See Land Management Bureau Correction to Alternative Personnel Management System, 35843 Internal Revenue Service NOTICES National Institutes of Health Agency Information Collection Activities; Proposals, Submissions, and Approvals, 35908–35911 NOTICES Quarterly Publication of Individuals, Who Have Chosen To Meetings: Expatriate (as Required by Section 6039G), 35911 National Institute of General Medical Sciences, 35877 International Trade Administration National Oceanic and Atmospheric Administration NOTICES RULES Antidumping: Fisheries of the Exclusive Economic Zone Off Alaska: Certain Tissue Paper Products from the People’s Republic Northern Rockfish in the Gulf of Alaska, 35827 of China, 35842 Magnuson–Stevens Fishery Conservation and Management Export Trade Certificate of Review, 35843–35844 Act Provisions: Extension of Time Limit for Preliminary Results of Fisheries of the Northeastern United States, etc; Closure Antidumping Duty Administrative Review: of the Limited Access General Category Scallop Certain Circular Welded Non-Alloy Steel Pipe from Fishery, 35826–35827 Mexico, 35844–35845 PROPOSED RULES Rescission of Countervailing Duty Changed Circumstances Taking of Marine Mammals Incidental to Commercial Review: Fishing Operations: Stainless Steel Sheet and Strip in Coils from the Republic Harbor Take Reduction Plan Regulations, of Korea, 35845–35847 36058–36075

Justice Department Nuclear Regulatory Commission NOTICES NOTICES Lodging of Consent Decree under the Comprehensive Applications and Amendments to Facility Operating Environmental Response, Compensation and Liability Licenses: Act (1980), 35888 Proposed No Significant Hazards Considerations and Containing Sensitive Unclassified Non-Safeguards Land Management Bureau Information, etc., 35889–35896 NOTICES Meetings: Filing of Plats of Survey: ACRS Subcommittee on the Economic Simplified Boiling Maine, 35886–35887 Water Reactor, 35897 Proposed Withdrawal and Opportunity for Public Meeting; Advisory Committee on Reactor Safeguards Arizona, 35887–35888 Subcommittee on Digital Instrumentation and Control Systems, 35896–35897 Maritime Administration Advisory Committee on Reactor Safeguards NOTICES Subcommittee on Plant Operations and Fire Environmental Impact Statements; Availability, etc.: Protection, 35896 Port Dolphin Energy LLC, Port Dolphin Energy Liquefied Advisory Committee on Reactor Safeguards Natural Gas Deepwater Port License Application, Subcommittee on Reliability and Probabilistic Risk 35905–35906 Assessment, 35897 National Aeronautics and Space Administration Meetings; Sunshine Act, 35897–35898 NOTICES Agency Information Collection Activities; Proposals, Postal Regulatory Commission Submissions, and Approvals, 35850–35851, 35888– PROPOSED RULES 35889 Periodic Reporting Rules, 35837–35838 Meetings: NOTICES Review of U.S. Human Space Flight Plans Committee, New Competitive Postal Product, 35898–35899 35889 Postal Rates; Public Forum, 35899–35902 National Credit Union Administration Presidential Documents RULES ADMINISTRATIVE ORDERS Credit Union Reporting, 35767–35769 Liberia, Former Regime of Charles Taylor; Continuation of NOTICES National Emergency (Notice of July 16, 2009), 35763– Loans in Areas Having Special Flood Hazards; Interagency 35764 Questions and Answers Regarding Flood Insurance, Supplemental Appropriations Act, 2009; Assignment of 35914–35947 Functions (Memorandum of July 17, 2009), 35765

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Small Business Administration PROPOSED RULES NOTICES Financial Crimes Enforcement Network: Agency Information Collection Activities; Proposals, Anti-Money Laundering Program and Suspicious Activity Submissions, and Approvals, 35902 Report Requirements for Non-Bank Residential Disaster Declarations: Mortgage Lenders and Originators, 35830–35834 Tennessee, 35903 Wisconsin, 35903 Veterans Affairs Department NOTICES Meetings: State Department Health Services Research and Development Service Merit NOTICES Review Board, 35912 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 35903–35904 Separate Parts In This Issue Surface Transportation Board NOTICES Part II Abandonment Exemption: Farm Credit Administration, 35914–35947 Tulare Valley Railroad Co.; Tulare County, CA, 35904 Federal Deposit Insurance Corporation, 35914–35947 Federal Reserve System, 35914–35947 Textile Agreements Implementation Committee National Credit Union Administration, 35914–35947 See Committee for the Implementation of Textile Treasury Department, Comptroller of the Currency, 35914– Agreements 35947 Treasury Department, Thrift Supervision Office, 35914– Thrift Supervision Office 35947 NOTICES Loans in Areas Having Special Flood Hazards; Interagency Part III Questions and Answers Regarding Flood Insurance, Transportation Department, Federal Railroad 35914–35947 Administration, 35950–36028 Part IV Transportation Department Homeland Security Department, Transportation Security See Federal Aviation Administration Administration, 36030–36055 See Federal Highway Administration See Federal Railroad Administration Part V See Maritime Administration Commerce Department, National Oceanic and Atmospheric See National Highway Traffic Safety Administration Administration, 36058–36075 See Surface Transportation Board See Transportation Security Administration Reader Aids Transportation Security Administration Consult the Reader Aids section at the end of this page for RULES phone numbers, online resources, finding aids, reminders, Revision of Enforcement Procedures, 36030–36055 and notice of recently enacted public laws.

Treasury Department To subscribe to the Federal Register Table of Contents See Comptroller of the Currency LISTSERV electronic mailing list, go to http:// See Foreign Assets Control Office listserv.access.gpo.gov and select Online mailing list See Internal Revenue Service archives, FEDREGTOC-L, Join or leave the list (or change See Thrift Supervision Office 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.

3 CFR Administrative Orders: Memorandums: Memo. of July 17, 2009 ...... 35765 Notices: Notice of July 16, 2009 ...... 35763 12 CFR 741...... 35767 748...... 35767 749...... 35767 14 CFR 39 (9 documents) ...... 35769, 35772, 35774, 35777, 35780, 35782, 35785, 35788, 35789 97 (2 documents) ...... 35792, 35795 Proposed Rules: 39...... 35828 15 CFR 744...... 35797 18 CFR Proposed Rules: 40...... 35830 21 CFR 14...... 35801 31 CFR 543...... 35802 Proposed Rules: 103...... 35830 33 CFR 117...... 35802 165 (2 documents) ...... 35803, 35805 Proposed Rules: 100...... 35834 39 CFR Proposed Rules: 3050...... 35837 40 CFR Proposed Rules: 52...... 35838 41 CFR Ch. 301 ...... 35807 44 CFR 64...... 35809 46 CFR 401...... 35812 Proposed Rules: 404...... 35838 48 CFR 212...... 35825 49 CFR 1503...... 36030 Proposed Rules: 229...... 35950 234...... 35950 235...... 35950 236...... 35950 50 CFR 648...... 35826 679...... 35827 Proposed Rules: 229...... 36058

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Federal Register Presidential Documents Vol. 74, No. 138

Tuesday, July 21, 2009

Title 3— Notice of July 16, 2009

The President Continuation of the National Emergency With Respect To the Former Liberian Regime of Charles Taylor

On July 22, 2004, by Executive Order 13348, the President declared a national emergency and ordered related measures, including the blocking of the property of certain persons connected to the former Liberian regime of Charles Taylor, pursuant to the International Emergency Economic Powers Act (50 U.S.C. 1701–1706). The President took this action to deal with the unusual and extraordinary threat to the foreign policy of the United States constituted by the actions and policies of former Liberian President Charles Taylor and other persons, in particular their unlawful depletion of Liberian resources and their removal from Liberia and secreting of Liberian funds and property, which have undermined Liberia’s transition to democ- racy and the orderly development of its political, administrative, and eco- nomic institutions and resources. The President further noted that the Com- prehensive Peace Agreement signed on August 18, 2003, and the related cease-fire had not yet been universally implemented throughout Liberia, and that the illicit trade in round logs and timber products was linked to the proliferation of and trafficking in illegal arms, which perpetuated the Liberian conflict and fueled and exacerbated other conflicts throughout West Africa. The actions and policies of Charles Taylor and others have left a legacy of destruction that continues to undermine Liberia’s transformation and recovery. Because the actions and policies of these persons continue to pose an unusual and extraordinary threat to the foreign policy of the United States, the national emergency declared on July 22, 2004, and the measures adopted on that date to deal with that emergency, must continue in effect beyond July 22, 2009. Therefore, in accordance with section 202(d) of the National Emergencies Act (50 U.S.C. 1622(d)), I am continuing for 1 year the national emergency declared in Executive Order 13348.

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This notice shall be published in the Federal Register and transmitted to the Congress.

THE WHITE HOUSE, July 16, 2009. [FR Doc. E9–17373 Filed 7–20–09; 8:45 am] Billing code 3195–W9–P

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Memorandum of July 17, 2009

Assignment of Reporting Functions Under the Supplemental Appropriations Act, 2009

Memorandum for the Secretary of State[,] the Secretary of Defense[,] the Attorney General[, and] the Director of National Intelligence

By the authority vested in me as President by the Constitution and the laws of the United States, including section 301 of title 3, United States Code, I hereby assign the authority to perform the functions conferred upon the President by sections 319(a), (c), and (d) and sections 14103(d), (e), and (f) of the Supplemental Appropriations Act, 2009 (Public Law 111– 32), as follows: 1. To the Attorney General, of providing to the Congress the reports specified in sections 319(a), 319(c)(1)-(3), and 14103(f), as well as the plan specified in section 14103(d); 2. To the Director of National Intelligence, in consultation with the Sec- retary of Defense, of providing to the Congress the report specified in sections 319(a), 319(c)(4)-(5), and 319(d); and 3. To the Secretary of State, in consultation with the Secretary of Defense, of providing to the Congress the information specified in section 14103(e). The Attorney General is authorized and directed to publish this memorandum in the Federal Register.

THE WHITE HOUSE, Washington, July 17, 2009.

[FR Doc. E9–17451 Filed 7–20–09; 8:45 am] Billing code 4410–19–M

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Rules and Regulations Federal Register Vol. 74, No. 138

Tuesday, July 21, 2009

This section of the FEDERAL REGISTER The Federal Credit Union Act (Act) Online Reporting Process contains regulatory documents having general grants NCUA broad authority to require NCUA is interested in increasing applicability and legal effect, most of which federally insured credit unions (FICUs), efficiency, reducing costs, enhancing are keyed to and codified in the Code of including corporate credit unions, to Federal Regulations, which is published under accuracy of data, and providing a 50 titles pursuant to 44 U.S.C. 1510. submit financial data and other secure, single access portal where credit information as required by the NCUA unions can submit, edit, and view data The Code of Federal Regulations is sold by Board (Board). 12 U.S.C. 1761, 1766, NCUA collects. The new information the Superintendent of Documents. Prices of 1781, and 1782. NCUA has management tool allows FICUs to new books are listed in the first FEDERAL implemented this authority in various submit financial reports, information REGISTER issue of each week. regulatory provisions. NCUA requires regarding officials, and other FICUs to submit financial reports, information to NCUA through a secure, Web-based system. Credit unions have NATIONAL CREDIT UNION reports of officials, and other reports. 12 access to the online system via the ADMINISTRATION CFR 704.1, 741.6, and 748.1. Section 741.6(a) prescribes the requirements for internet from NCUA’s Web site at 12 CFR Parts 741, 748 and 749 financial, statistical, and other reports http://www.ncua.gov. For credit unions and, currently, requires natural person to use the online system, they must have RIN 3133–AD56 credit unions to file a Financial and a computer, Internet connectivity, Internet Explorer 6.0 or higher, and a Credit Union Reporting Statistical Report quarterly, also referred to as a Call Report and identified as valid e-mail address. All users of the AGENCY: National Credit Union NCUA Form 5300. The provisions in online system must use a login and Administration (NCUA). § 741.6 currently do not specify the form password to access the system, and ACTION: Final rule. corporate credit unions use; corporate credit union users only have access to credit unions file Call Reports monthly their own credit union’s confidential SUMMARY: NCUA is amending its using NCUA Form 5310. Further, FICUs information. The public may obtain non-confidential information without a reporting procedures and record must file a Report of Officials, NCUA retention requirements to conform login or password. Form 4501, with NCUA annually after To ensure information is protected, regulatory provisions to its new, Web- the election of officials. 12 CFR 748.1(a). based reporting system. The rule users identify themselves using an In addition to information about a credit authentication process requiring a incorporates into the regulation a union’s main location and branches, statutory requirement on reporting unique login and password. hours of operation, and identity of and changes in senior officials resulting Authenticated users may only access the contact information for senior officials, from election or appointments and information they are authorized to view. NCUA Form 4501 also contains a clarifies requirements on when a credit Additionally, the transmission of certification of FICU compliance with union files reports with NCUA online. sensitive information between credit the requirements of Part 748, which The rule also provides alternative unions and NCUA is encrypted using reporting methods for credit unions includes catastrophic act reporting, the industry-standard Secure Sockets unable to submit online reports. suspicious activity reporting, and Layer (SSL) technology to prevent security program and Bank Secrecy Act DATES: others from intercepting and accessing The rule is effective requirements. Id. The front page of the September 1, 2009. confidential, credit union information. NCUA Form 4501 states the Report of NCUA will no longer issue software to FOR FURTHER INFORMATION CONTACT: Officials must be filed with the regional submit data; the online system permits Amber Gravius, director no later than 10 days after the credit unions to submit data to NCUA Officer, Office of Examination and election of officials. from any computer. Additionally, the Insurance, (703) 518–6360; or Moisette online system eliminates mailing and Green, Staff Attorney, the Office of Appendix A to Part 749 sets out guidelines for record retention and printing delays, missing information, General Counsel, (703) 518–6540, and damaged software CDs. The online National Credit Union Administration, identifies key operational records FICUs should retain permanently. 12 CFR Part system provides real-time warnings 1775 Duke Street, Alexandria, Virginia throughout the input process to ensure 22314. 749, Appendix A, para. E.2. NCUA Form 5300 or its equivalent is currently data integrity. NCUA is currently SUPPLEMENTARY INFORMATION: identified as an example of these key implementing the new system for natural person credit unions and Background operational records. Id. at para. E(2)(b). anticipates implementing it for NCUA has replaced the software used In March 2009, NCUA proposed corporate credit unions in 2010. to submit financial and other reports revisions to §§ 741.6 and 748.1, and All credit union data will be with an integrated, Web-based Appendix A to Part 749 to clarify online submitted and viewed through the information management system. The reporting procedures and record online Credit Union Profile and Call online system makes reporting more retention requirements, conform Report. The online profile includes efficient and cost effective, and regulatory provisions to the new online information NCUA maintains about a enhances the accuracy of credit union system, and incorporate into the credit union that infrequently changes, data. The implementation of the new regulation a statutory requirement on for example, the credit union online system requires revisions to reporting changes in senior officials. 74 address(es), phone number(s), list of reporting regulations. FR 13139 (March 26, 2009). officials, hours of operation, etc. It has

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additional information such as disaster One trade association supported the Regulatory Procedures recovery information, and information proposed adoption of an internet-based Regulatory Flexibility Act systems and technology information. reporting system, but requested NCUA After profile data are entered, conduct a comprehensive review of the The Regulatory Flexibility Act subsequent input is only required for content of the reports credit unions requires NCUA to prepare an analysis to additions, deletions, or changes to the must submit to reduce the reporting describe any significant economic impact any regulation may have on a data. burden. Another trade association substantial number of small entities. 5 For efficiency and to make reporting supported the objective to increase less burdensome, credit unions may U.S.C. 603(a). For purposes of this efficiency and ease of reporting analysis, NCUA considers credit unions have multiple users to enhance the information to NCUA, but expressed likelihood that profile information is having under $10 million in assets as concern about the training required for small entities. Interpretive Ruling and accurate and updated when necessary credit union staff to use the new online and ensure the Call Report is submitted Policy Statement 03–2, 68 FR 31949 system. It urged NCUA to allow (May 29, 2003). As of March 31, 2009, timely. Additionally, multiple users sufficient time for implementation of may access the system and complete out of 7,749 natural person, federally the new system and to permit credit different sections of the Call Report and insured credit unions, 3,168 had less unions to make necessary logistical profile simultaneously. Credit unions than $10 million in assets. NCUA unable to use the online system will use changes and train staff. estimates out of 28 corporate credit a manual process to submit their The Board expects the online system unions, one is a small entity. This rule information on a paper form. will reduce the burden on credit unions directly affects all small FICUs. and make reporting more efficient. Therefore, NCUA has determined this Comments on the Proposal rule will have an impact on a NCUA reviewed the information it NCUA received comments from one substantial number of small entities. collects from credit unions during the NCUA has determined, however, the credit union and two trade associations. development of the online system and economic impact on entities affected by The credit union supported the has reduced the associated the rule will not be significant. The rule proposed changes, but raised concerns with the various reporting requirements. will reduce the regulatory burden on about data security. It suggested using Information that had previously been FICUs that submit their financial electronic tokens or other multi-factor reported in multiple forms or reports reports, Credit Union Profile, and other authentication method in conjunction has been consolidated in the online information online. NCUA is also with strong passwords to ensure data profile. proposing alternate methods for FICUs submitted through the online system is without internet access to submit not compromised. The credit union also To assist credit unions with the transition to the online system, NCUA information. Additionally, NCUA’s recommended giving credit unions up Office of Small Credit Union Initiatives to 12 months instead of 30 days to will host training sessions, including Webcasts, workshops, and seminars, has reviewed the rule and concluded it update the online Reports of Officials would have a moderate impact on small throughout summer 2009. Information information. credit unions, but contained sufficient regarding the training sessions will be This final rule does not address data provisions to mitigate the impact and security. Credit unions can be sure posted in the Upcoming Events section would result in greater efficiencies for NCUA will maintain the online system of NCUA’s Web site, http:// all credit unions. Further, NCUA invited in accordance with federal computer www.ncua.gov. Additionally, frequently comment on the economic impact the security standards for the management asked questions are answered on rule would have in its proposal and of automated information resources. See NCUA’s Web site at http:// requested suggestions on how to Office of Management and Budget www.ncua.gov/DataServices/ minimize it. 74 FR 13139, 13141 (March Circular No. A–130. Additionally, OnlineFAQ.pdf. 26, 2009). The Board received no NCUA will encrypt sensitive The Final Rule comments on this issue. Accordingly, information during transmission using NCUA certifies the rule would not have industry-standard Secure Sockets Layer NCUA is adopting the amendments to a significant economic impact on small (SSL) technology to prevent others from Parts 741, 748, and 749 as proposed entities. intercepting and accessing confidential, without change. Section 741.6 clarifies credit union information. Paperwork Reduction Act when FICUs must update their Credit The Board believes 30 days is a In accordance with section 3512 of Union Profiles and addresses corporate reasonable time for FICUs to update the Paperwork Reduction Act of 1995, credit unions and the NCUA Form 5310. changes to the information regarding 44 U.S.C. 3501–3521 (PRA), NCUA may Additionally, the rule amends § 748.1 to their officials in the online profile. not conduct or sponsor, and the Under the Act, federal credit unions clarify the compliance report filing respondent is not required to respond must file the names and addresses of requirements for FICUs using the online to, an information collection unless it senior management officials and system and for FICUs filing reports displays a currently valid Office of volunteer officials with NCUA within manually. FICUs that cannot certify Management and Budget (OMB) control 10 days after their election or compliance online must certify number. NCUA submitted the appointment. 12 U.S.C. 1761(b). NCUA compliance in writing on the new Credit information collection requirements in needs up-to-date credit union Union Profile form, NCUA Form 4501A. this rule to OMB for review and information for many reasons, for Finally, the rule updates the record approval under section 3507 of the PRA example, member complaint resolution, retention guidelines in Appendix A of and § 1320.11 of OMB’s implementing examination completion, and disaster Part 749 and includes the new Credit regulations. 5 CFR 1320.11. The and emergency preparedness. Union Profile form as a key operational proposed rule contained a discussion of Accordingly, credit unions must ensure record that should be retained the revised information collection. 74 their profiles contain accurate permanently. FR 13139, 13141 (March 26, 2009). OMB information. approval is pending.

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Small Business Regulatory Enforcement By the National Credit Union ■ 4. Amend § 748.1 by revising Fairness Act Administration Board, on July 16, 2009. paragraph (a) to read as follows: Mary F. Rupp, § 748.1 Filing of reports. The Small Business Regulatory Secretary of the Board. Enforcement Fairness Act (SBREFA) of (a) The president or managing official ■ 1996, Public Law 104–121, provides For the reasons stated above, NCUA of each federally-insured credit union generally for congressional review of amends 12 CFR parts 741, 748 and 749 must certify compliance with the agency rules. A reporting requirement is as follows: requirements of this Part in its Credit Union Profile annually. Credit unions triggered in instances where NCUA PART 741—REQUIREMENTS FOR that cannot update their profile online issues a final rule as defined by Section INSURANCE 551 of the Administrative Procedures must certify compliance in writing in Act. 5 U.S.C. 551. The Office of ■ 1. The authority citation for part 741 accordance with the instructions on Information and Regulatory Affairs, an continues to read as follows: NCUA Form 4501 or its equivalent. The office within OMB, is reviewing this credit union president or managing Authority: 12 U.S.C. 1757, 1766(a), 1781– official must sign and date the written final rule for purposes of SBREFA, and 1790, and 1790d; 31 U.S.C. 3717. a determination is pending. certification. ■ 2. Amend § 741.6 by removing * * * * * Executive Order 13132 paragraph (d) and revising paragraph (a) to read as follows: PART 749—RECORDS Executive Order 13132 encourages PRESERVATION PROGRAM AND independent regulatory agencies to § 741.6 Financial and statistical and other APENDICES—RECORD RETENTION consider the impact of their actions on reports. GUIDELINES; CATASTROPHIC ACT state and local interests. In adherence to (a) Upon written notice from the PREPAREDNESS GUIDELINES fundamental federalism principles, Board, Regional Director, or Director of ■ NCUA, an independent regulatory the Office of Corporate Credit Unions, 5. The authority citation for part 749 agency as defined in 44 U.S.C. 3502(5), insured credit unions must file financial continues to read as follows: voluntarily complies with the executive and other reports in accordance with the Authority: 12 U.S.C. 1766, 1783, and 1789; order. The rule would not have a instructions in the notice. Credit unions 15 U.S.C. 7001(d). substantial direct effect on the states, on with the capacity to do so must use ■ 6. Amend Appendix A to Part 749 by the connection between the national NCUA’s information management revising paragraph E.2.(b) to read as government and the states, or on the system to submit their data online. If a follows: distribution of power and credit union is unable to use the responsibilities among the various information system, it must file written Appendix A to Part 749—Record levels of government. NCUA has reports in accordance with the Retention Guidelines determined this rule does not constitute instructions. * * * * * a policy that has federalism (1) Credit Union Profile. Insured E. * * * implications for purposes of the credit unions must submit to NCUA a 2. * * * executive order. Credit Union Profile, NCUA Form 4501 (b) One copy of each financial report, or its equivalent, within 10 days after an NCUA Form 5300 or 5310, or their The Treasury and General Government equivalent, and the Credit Union Profile Appropriations Act, 1999—Assessment election or appointment of senior report, NCUA Form 4501, or its equivalent as of Federal Regulations and Policies on management or volunteer officials or submitted to NCUA at the end of each Families within 30 days of any change of the quarter. information in the profile. * * * * * NCUA has determined that this rule (2) Financial and statistical report. [FR Doc. E9–17312 Filed 7–20–09; 8:45 am] would not affect family well-being Natural person credit unions must file a BILLING CODE 7535–01–P within the meaning of section 654 of the Call Report with NCUA quarterly in Treasury and General Government accordance with the instructions in the Appropriations Act, 1999, Public Law NCUA Form 5300. Corporate credit DEPARTMENT OF TRANSPORTATION 105–277, 112 Stat. 2681 (1998). unions must file a Corporate Credit Union Call Report with NCUA monthly Federal Aviation Administration List of Subjects in accordance with the instructions in 12 CFR Part 741 the NCUA Form 5310. Credit unions 14 CFR Part 39 must submit a corrected Call Report Credit unions, Reporting and upon notification or the discovery of a [Docket No. FAA–2009–0646; Directorate recordkeeping requirements, Share need for correction. Identifier 2009–NM–055–AD; Amendment 39–15974; AD 2009–15–11] insurance. * * * * * RIN 2120–AA64 12 CFR Part 748 PART 748—SECURITY PROGRAM, REPORT OF SUSPECTED CRIMES, Airworthiness Directives; Aerospatiale Credit unions, Reporting and Model SN–601 (Corvette) Airplanes recordkeeping requirements, Security SUSPICIOUS TRANSACTIONS, measures. CATASTROPHIC ACTS AND BANK AGENCY: Federal Aviation SECRECY ACT COMPLIANCE Administration (FAA), Department of 12 CFR Part 749 Transportation (DOT). ■ 3. The authority citation for part 748 ACTION: Final rule; request for Archives and records, Credit unions, continues to read as follows: Reporting and recordkeeping comments. requirements. Authority: 12 U.S.C. 1766(a), 1786(q); 15 U.S.C. 6801 and 6805(b); 31 U.S.C. 5311 and SUMMARY: We are adopting a new 5318. airworthiness directive (AD) for the

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products listed above. This AD results FOR FURTHER INFORMATION CONTACT: Dan of the unsafe condition described in the from mandatory continuing Rodina, Engineer, MCAI and service information airworthiness information (MCAI) International Branch, ANM–116, referenced above. We are issuing this originated by an aviation authority of Transport Airplane Directorate, FAA, AD because we evaluated all pertinent another country to identify and correct 1601 Lind Avenue, SW., Renton, information and determined the unsafe an unsafe condition on an aviation Washington 98057–3356; telephone condition exists and is likely to exist or product. The MCAI describes the unsafe (425) 227–2125; fax (425) 227–1149. develop on other products of the same condition as: SUPPLEMENTARY INFORMATION: type design. There are no products of this type During the landing roll a Corvette aircraft Discussion inclined to the Left Hand (LH) side as a result currently registered in the United States. of the uncoupling of the left main landing The European Aviation Safety Agency However, this rule is necessary to gear shock absorber upper and lower (EASA), which is the Technical Agent ensure that the described unsafe cylinders, leading the left wheel tire to rub for the Member States of the European condition is addressed if any of these against the left wing under surface and to Community, has issued EASA deflate, and the left wing tip fuel tank to products are placed on the U.S. Register Airworthiness Directive 2009–0041, in the future. strike the runway surface. dated February 25, 2009 (referred to The investigation showed that this Differences Between the AD and the uncoupling resulted from the loosening of after this as ‘‘the MCAI’’), to correct an the shock absorber locking system nut and its unsafe condition for the specified MCAI or Service Information associated lock washer. products. The MCAI states: We have reviewed the MCAI and * * * * * During the landing roll a Corvette aircraft related service information and, in The unsafe condition is reduced inclined to the Left Hand (LH) side as a result general, agree with their substance. But structural integrity of the main landing of the uncoupling of the left main landing we might have found it necessary to use gear, which could cause the wing tip gear shock absorber upper and lower different words from those in the MCAI fuel tank to strike the runway surface cylinders, leading the left wheel tire to rub against the left wing under surface and to to ensure the AD is clear for U.S. and potentially result in a fire. This AD deflate, and the left wing tip fuel tank to operators and is enforceable. In making requires actions that are intended to strike the runway surface. these changes, we do not intend to differ address the unsafe condition described The investigation showed that this substantively from the information in the MCAI. uncoupling resulted from the loosening of provided in the MCAI and related DATES: This AD becomes effective the shock absorber locking system nut and its service information. August 5, 2009. associated lock washer. We might also have required different This AD requires the inspection of the The Director of the Federal Register actions in this AD from those in the approved the incorporation by reference locking system of the main landing gear shock absorber and the accomplishment of MCAI in order to follow FAA policies. of a certain publication listed in the AD the associated corrective actions. Any such differences are highlighted in as of August 5, 2009. a Note within the AD. We must receive comments on this The unsafe condition is reduced AD by August 20, 2009. structural integrity of the main landing FAA’s Determination of the Effective ADDRESSES: You may send comments by gear, which could cause the wing tip Date fuel tank to strike the runway surface any of the following methods: Since there are currently no domestic • and potentially result in a fire. Required Federal eRulemaking Portal: Go to operators of this product, notice and actions include doing a general visual http://www.regulations.gov. Follow the opportunity for public comment before inspection to verify the proper position instructions for submitting comments. issuing this AD are unnecessary. • Fax: (202) 493–2251. of the lock washer and the tightening • Mail: U.S. Department of torque of the nut of the shock absorber Comments Invited locking system on both the left-hand Transportation, Docket Operations, M– This AD is a final rule that involves 30, West Building Ground Floor, Room and right-hand main landing gear, and requirements affecting flight safety, and W12–140, 1200 New Jersey Avenue, SE., doing corrective actions including we did not precede it by notice and Washington, DC 20590. replacing the lock washer, installing the opportunity for public comment. We • Hand Delivery: U.S. Department of main landing gear shock absorber body, invite you to send any written relevant Transportation, Docket Operations, M– and installing the main landing gear data, views, or arguments about this AD. 30, West Building Ground Floor, Room shock absorber, as applicable. You may Send your comments to an address W12–40, 1200 New Jersey Avenue, SE., obtain further information by examining listed under the ADDRESSES section. Washington, DC, between 9 a.m. and 5 the MCAI in the AD docket. p.m., Monday through Friday, except Include ‘‘Docket No. FAA–2009–0646; Federal holidays. Relevant Service Information Directorate Identifier 2009–NM–055– Airbus has issued Corvette Service AD’’ at the beginning of your comments. Examining the AD Docket Bulletin 32–19, dated January 9, 2009. We specifically invite comments on the You may examine the AD docket on The actions described in this service overall regulatory, economic, the Internet at http:// information are intended to correct the environmental, and energy aspects of www.regulations.gov; or in person at the unsafe condition identified in the this AD. We will consider all comments Docket Operations office between 9 a.m. MCAI. received by the closing date and may and 5 p.m., Monday through Friday, amend this AD because of those except Federal holidays. The AD docket FAA’s Determination and Requirements comments. contains this AD, the regulatory of This AD We will post all comments we evaluation, any comments received, and This product has been approved by receive, without change, to http:// other information. The street address for the aviation authority of another www.regulations.gov, including any the Docket Operations office (telephone country, and is approved for operation personal information you provide. We (800) 647–5527) is in the ADDRESSES in the United States. Pursuant to our will also post a report summarizing each section. Comments will be available in bilateral agreement with the State of substantive verbal contact we receive the AD docket shortly after receipt. Design Authority, we have been notified about this AD.

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Authority for This Rulemaking § 39.13 [Amended] in accordance with the Accomplishment ■ 2. The FAA amends § 39.13 by adding Instructions of Airbus Corvette Service Title 49 of the United States Code Bulletin 32–19, dated January 9, 2009. specifies the FAA’s authority to issue the following new AD: Within 120 flight cycles but not before 100 rules on aviation safety. Subtitle I, 2009–15–11 Aerospatiale: Amendment 39– flight cycles, repeat the inspection specified section 106, describes the authority of 15974. Docket No. FAA–2009–0646; in paragraph (f)(1) of this AD. the FAA Administrator. ‘‘Subtitle VII: Directorate Identifier 2009–NM–055–AD. (3) In case of no findings during the inspection required in paragraph (f)(1) of this Aviation Programs,’’ describes in more Effective Date detail the scope of the Agency’s AD, no further inspections are required. (a) This airworthiness directive (AD) (4) After the effective date of this AD, no authority. becomes effective August 5, 2009. person may install a main landing gear shock We are issuing this rulemaking under absorber on which the locking system (nut Affected ADs the authority described in ‘‘Subtitle VII, and lock washer) is not compliant with the Part A, Subpart III, Section 44701: (b) None. approved configuration as identified by General requirements.’’ Under that Applicability Airbus Corvette Service Bulletin 32–19, section, Congress charges the FAA with dated January 9, 2009. (c) This AD applies to Aerospatiale Model promoting safe flight of civil aircraft in SN–601 (Corvette) airplanes, certificated in FAA AD Differences air commerce by prescribing regulations any category, all serial numbers. for practices, methods, and procedures Note 1: This AD differs from the MCAI Subject and/or service information as follows: No the Administrator finds necessary for differences. safety in air commerce. This regulation (d) Air Transport Association (ATA) of is within the scope of that authority America Code 32: Landing gear. Other FAA AD Provisions because it addresses an unsafe condition Reason (g) The following provisions also apply to that is likely to exist or develop on (e) The mandatory continued airworthiness this AD: products identified in this rulemaking information (MCAI) states: (1) Alternative Methods of Compliance action. During the landing roll a Corvette aircraft (AMOCs): The Manager, International inclined to the Left Hand (LH) side as a result Branch, ANM–116, Transport Airplane Regulatory Findings of the uncoupling of the left main landing Directorate, FAA, has the authority to We determined that this AD will not gear shock absorber upper and lower approve AMOCs for this AD, if requested have federalism implications under cylinders, leading the left wheel tire to rub using the procedures found in 14 CFR 39.19. Send information to ATTN: Dan Rodina, Executive Order 13132. This AD will against the left wing under surface and to deflate, and the left wing tip fuel tank to Aerospace Engineer, International Branch, not have a substantial direct effect on strike the runway surface. ANM–116, Transport Airplane Directorate, the States, on the relationship between The investigation showed that this FAA, 1601 Lind Avenue, SW., Renton, the national government and the States, uncoupling resulted from the loosening of Washington 98057–3356; telephone (425) or on the distribution of power and the shock absorber locking system nut and its 227–2125; fax (425) 227–1149. Before using responsibilities among the various associated lock washer. any approved AMOC on any airplane to levels of government. This AD requires the inspection of the which the AMOC applies, notify your For the reasons discussed above, I locking system of the main landing gear principal maintenance inspector (PMI) or principal avionics inspector (PAI), as certify this AD: shock absorber and the accomplishment of the associated corrective actions. appropriate, or lacking a principal inspector, 1. Is not a ‘‘significant regulatory The unsafe condition is reduced structural your local Flight Standards District Office. action’’ under Executive Order 12866; integrity of the main landing gear, which The AMOC approval letter must specifically 2. Is not a ‘‘significant rule’’ under the could cause the wing tip fuel tank to strike reference this AD. DOT Regulatory Policies and Procedures the runway surface and potentially result in (2) Airworthy Product: For any (44 FR 11034, February 26, 1979); and a fire. Required actions include doing a requirement in this AD to obtain corrective 3. Will not have a significant general visual inspection to verify the proper actions from a manufacturer or other source, economic impact, positive or negative, position of the lock washer and the use these actions if they are FAA-approved. on a substantial number of small entities tightening torque of the nut of the shock Corrective actions are considered FAA- approved if they are approved by the State under the criteria of the Regulatory absorber locking system on both the left-hand and right-hand main landing gear, and doing of Design Authority (or their delegated Flexibility Act. corrective actions including replacing the agent). You are required to assure the product We prepared a regulatory evaluation lock washer, installing the main landing gear is airworthy before it is returned to service. of the estimated costs to comply with shock absorber body, and installing the main (3) Reporting Requirements: For any this AD and placed it in the AD docket. landing gear shock absorber, as applicable. reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, List of Subjects in 14 CFR Part 39 Actions and Compliance the Office of Management and Budget (OMB) Air transportation, Aircraft, Aviation (f) Unless already done, do the following has approved the information collection safety, Incorporation by reference, actions. requirements and has assigned OMB Control (1) Within 90 days after the effective date Number 2120–0056. Safety. of this AD, do a general visual inspection to Related Information Adoption of the Amendment verify the proper position of the lock washer (located opposite the nut notch) and check (h) Refer to Mandatory Continuing ■ Accordingly, under the authority the tightening torque of the nut of the shock Airworthiness Information (MCAI) European delegated to me by the Administrator, absorber locking system on both the left-hand Aviation Safety Agency (EASA) the FAA amends 14 CFR part 39 as and right-hand main landing gear, in Airworthiness Directive 2009–0041, dated follows: accordance with the Accomplishment February 25, 2009; and Airbus Corvette Instructions of Airbus Corvette Service Service Bulletin 32–19, dated January 9, PART 39—AIRWORTHINESS Bulletin 32–19, dated January 9, 2009. 2009; for related information. (2) In case of findings of improper DIRECTIVES assembly during the inspection required in Material Incorporated by Reference ■ 1. The authority citation for part 39 paragraph (f)(1) of this AD, before further (i) You must use Airbus Corvette Service flight, replace the lock washer, install the Bulletin 32–19, dated January 9, 2009, to do continues to read as follows: main landing gear shock absorber body, and the actions required by this AD, unless the Authority: 49 U.S.C. 106(g), 40113, 44701. install the main landing gear shock absorber, AD specifies otherwise. (Only page 1 of this

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document specifies the issue date of the Subsequent inspection revealed the loss of panels. BAE Systems (Operations) Ltd has document; no other page of this document the fairing panels to be due to failure of therefore issued additional instructions in contains this information.) certain steel grommets * * *. A detaching All Operators Message (AOM) 08–015V, (1) The Director of the Federal Register panel could strike the aircraft during flight, including bonding checks and detailed approved the incorporation by reference of causing damage. In addition, a detaching procedures for applying an electro- this service information under 5 U.S.C. panel could become attached to the structure conductive paste at each SL5185 grommet 552(a) and 1 CFR part 51. or control surfaces, resulting in reduced location in order to bridge any gap between (2) For service information identified in control of the aircraft. grommet and the inner aluminum foil. The this AD, contact ATR–GIE Avions de * * * * * next revision of BAE Systems (Operations) Transport Re´gional, 1, Alle´e Pierre Nadot, We are issuing this AD to require Ltd ISB 53–202 will include the technical 31712 Blagnac Cedex, France; telephone +33 actions to correct the unsafe condition content of AOM 08–015V. (0) 5 62 21 62 21; fax +33 (0) 5 62 21 67 18; on these products. For the reasons described above, this EASA e-mail [email protected]; AD requires repetitive inspections of the Internet http://www.aerochain.com. DATES: This AD becomes effective wing-to-fuselage & MLG door fairing panel (3) You may review copies of the service August 25, 2009. grommets and, when damage is detected, the information at the FAA, Transport Airplane The Director of the Federal Register accomplishment of corrective actions. Directorate, 1601 Lind Avenue, SW., Renton, approved the incorporation by reference Corrective actions include replacing Washington. For information on the of a certain publication listed in this AD damaged grommets with new P/N availability of this material at the FAA, call as of August 25, 2009. 425–227–1221 or 425–227–1152. SL5185 grommets; or doing a temporary ADDRESSES: You may examine the AD (4) You may also review copies of the repair, which defers the replacement. service information that is incorporated by docket on the Internet at http:// You may obtain further information by reference at the National Archives and www.regulations.gov or in person at the examining the MCAI in the AD docket. Records Administration (NARA). For U.S. Department of Transportation, information on the availability of this Docket Operations, M–30, West Clarification for Unsatisfactory material at NARA, call 202–741–6030, or go Building Ground Floor, Room W12–140, Bonding to: http://www.archives.gov/federal_register/ 1200 New Jersey Avenue, SE., _ _ _ Unsatisfactory bonding, as used in code of federal regulations/ Washington, DC. this AD, is defined as: Intermittent loss ibr_locations.html. FOR FURTHER INFORMATION CONTACT: of, or failure of the bond/electrical Issued in Renton, Washington, on July 2, Todd Thompson, Aerospace Engineer, connection. 2009. International Branch, ANM–116, Ali Bahrami, Transport Airplane Directorate, FAA, Comments Manager, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, We gave the public the opportunity to Aircraft Certification Service. Washington 98057–3356; telephone participate in developing this AD. We [FR Doc. E9–16929 Filed 7–20–09; 8:45 am] (425) 227–1175; fax (425) 227–1149. received no comments on the NPRM or BILLING CODE 4910–13–P SUPPLEMENTARY INFORMATION: on the determination of the cost to the public. Discussion DEPARTMENT OF TRANSPORTATION We issued a notice of proposed Conclusion rulemaking (NPRM) to amend 14 CFR We reviewed the available data and Federal Aviation Administration part 39 to include an AD that would determined that air safety and the apply to the specified products. That public interest require adopting the AD 14 CFR Part 39 NPRM was published in the Federal as proposed. Register on April 30, 2009 (74 FR [Docket No. FAA–2009–0398; Directorate Differences Between This AD and the 19905). That NPRM proposed to correct Identifier 2008–NM–193–AD; Amendment MCAI or Service Information 39–15971; AD 2009–15–08 an unsafe condition for the specified We have reviewed the MCAI and RIN 2120–AA64 products. The MCAI states: There have been a number of incidents related service information and, in Airworthiness Directives; BAE where wing-to-fuselage or MLG [main general, agree with their substance. But Systems (Operations) Limited Model landing gear] door fairing panels have we might have found it necessary to use BAe 146 and Avro 146–RJ Airplanes detached from the aircraft during flight. different words from those in the MCAI Subsequent inspection revealed the loss of to ensure the AD is clear for U.S. AGENCY: Federal Aviation the fairing panels to be due to failure of operators and is enforceable. In making Administration (FAA), Department of certain steel grommets, (P/N) [part number] these changes, we do not intend to differ Transportation (DOT). SL5183 and HC535H0312, through which the substantively from the information attachment bolts are inserted. These failures provided in the MCAI and related ACTION: Final rule. may have been caused by improper installation of the grommets or damage service information. SUMMARY: We are adopting a new resulting from maintenance procedures We might also have required different airworthiness directive (AD) for the relating to paint stripping and repainting, actions in this AD from those in the products listed above. This AD results allowing air loads to pull the panel through MCAI in order to follow our FAA from mandatory continuing the grommet. A detaching panel could strike policies. Any such differences are airworthiness information (MCAI) the aircraft during flight, causing damage. In highlighted in a Note within the AD. originated by an aviation authority of addition, a detaching panel could become another country to identify and correct attached to the structure or control surfaces, Costs of Compliance an unsafe condition on an aviation resulting in reduced control of the aircraft. We estimate that this AD will affect 1 product. The MCAI describes the unsafe Following the application of BAE Systems product of U.S. registry. We also (Operations) Ltd ISB 53–202 at Revision 1 to condition as: the first few, it has been discovered that estimate that it will take about 14 work- There have been a number of incidents removal of existing grommets P/N SL5183 hours per product to comply with the where wing-to-fuselage or MLG [main and HC535H0312 may result in localised basic requirements of this AD. The landing gear] door fairing panels have damage to the aluminum foil membrane average labor rate is $80 per work-hour. detached from the aircraft during flight. attached to the inner surface of some fairing Based on these figures, we estimate the

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cost of this AD to the U.S. operators to List of Subjects in 14 CFR Part 39 and HC535H0312 may result in localised be $1,120. damage to the aluminum foil membrane Air transportation, Aircraft, Aviation attached to the inner surface of some fairing Authority for This Rulemaking safety, Incorporation by reference, panels. BAE Systems (Operations) Ltd has Safety. therefore issued additional instructions in Title 49 of the United States Code Adoption of the Amendment All Operators Message (AOM) 08–015V, specifies the FAA’s authority to issue including bonding checks and detailed rules on aviation safety. Subtitle I, ■ Accordingly, under the authority procedures for applying an electro- section 106, describes the authority of delegated to me by the Administrator, conductive paste at each SL5185 grommet the FAA Administrator. ‘‘Subtitle VII: the FAA amends 14 CFR part 39 as location in order to bridge any gap between grommet and the inner aluminum foil. The Aviation Programs,’’ describes in more follows: detail the scope of the Agency’s next revision of BAE Systems (Operations) authority. Ltd ISB 53–202 will include the technical PART 39—AIRWORTHINESS content of AOM 08–015V. We are issuing this rulemaking under DIRECTIVES For the reasons described above, this EASA the authority described in ‘‘Subtitle VII, ■ 1. The authority citation for part 39 AD requires repetitive inspections of the Part A, Subpart III, Section 44701: wing-to-fuselage & MLG door fairing panel General requirements.’’ Under that continues to read as follows: grommets and, when damage is detected, the section, Congress charges the FAA with Authority: 49 U.S.C. 106(g), 40113, 44701. accomplishment of corrective actions. promoting safe flight of civil aircraft in Corrective actions include replacing damaged § 39.13 [Amended] air commerce by prescribing regulations grommets with new P/N SL5185 grommets; for practices, methods, and procedures ■ 2. The FAA amends § 39.13 by adding or doing a temporary repair, which defers the the Administrator finds necessary for the following new AD: replacement. safety in air commerce. This regulation 2009–15–08 BAE Systems (Operations) Actions and Compliance is within the scope of that authority Limited (Formerly (f) Unless already done, do the following because it addresses an unsafe condition Regional Aircraft): Amendment 39– actions. that is likely to exist or develop on 15971. Docket No. FAA–2009–0398; (1) Within 4,000 flight cycles or 24 months products identified in this rulemaking Directorate Identifier 2008–NM–193–AD. after the effective date of this AD, whichever action. Effective Date occurs later, and thereafter at intervals not to exceed 8,000 flight cycles, conduct a visual Regulatory Findings (a) This airworthiness directive (AD) inspection of the steel grommets on the becomes effective August 25, 2009. fairing panels in accordance with paragraph We determined that this AD will not Affected ADs 2.C. of BAE Systems (Operations) Limited have federalism implications under Inspection Service Bulletin ISB.53–202, (b) None. Executive Order 13132. This AD will Revision 3, dated December 10, 2008. not have a substantial direct effect on Applicability (2) If damage is found during any the States, on the relationship between (c) This AD applies to BAE Systems inspection required by paragraph (f)(1) of this the national government and the States, (Operations) Limited Model BAe 146–100A, AD, before further flight, do the actions or on the distribution of power and –200A, and –300A series airplanes; and specified in paragraph (f)(2)(i) or (f)(2)(ii) of responsibilities among the various Model Avro 146–RJ70A, 146–RJ85A, and this AD. (i) Replace the grommets with new P/N levels of government. 146–RJ100A airplanes, certificated in any category; all models, all serial numbers, that SL5185 grommets in accordance with For the reasons discussed above, I paragraph 2.C. of BAE Systems (Operations) certify this AD: have embodied modification HCM00633E or HCM00934A. Limited Inspection Service Bulletin ISB.53– 1. Is not a ‘‘significant regulatory 202, Revision 3, dated December 10, 2008, action’’ under Executive Order 12866; Subject and concurrently conduct a bonding 2. Is not a ‘‘significant rule’’ under the (d) Air Transport Association (ATA) of inspection at each grommet location in DOT Regulatory Policies and Procedures America Code 53: Fuselage. accordance with paragraph 2.C. of BAE Systems (Operations) Limited Inspection (44 FR 11034, February 26, 1979); and Reason Service Bulletin ISB.53–202, Revision 3, 3. Will not have a significant (e) The mandatory continuing dated December 10, 2008. If unsatisfactory economic impact, positive or negative, airworthiness information (MCAI) states: bonding is detected, before further flight, on a substantial number of small entities There have been a number of incidents apply electro-conductive paste in accordance under the criteria of the Regulatory where wing-to-fuselage or MLG [main with Appendix 4 of BAE Systems Flexibility Act. landing gear] door fairing panels have (Operations) Limited Inspection Service We prepared a regulatory evaluation detached from the aircraft during flight. Bulletin ISB.53–202, Revision 3, dated December 10, 2008. of the estimated costs to comply with Subsequent inspection revealed the loss of this AD and placed it in the AD docket. the fairing panels to be due to failure of Note 1: Unsatisfactory bonding, as used in certain steel grommets, (P/N) [part number] this AD, is defined as: intermittent, loss of, Examining the AD Docket SL5183 and HC535H0312, through which the or failure of the bond/electrical connection. attachment bolts are inserted. These failures (ii) Do a temporary repair in accordance You may examine the AD docket on may have been caused by improper with Appendix 3 of the BAE Systems the Internet at http:// installation of the grommets or damage (Operations) Limited Inspection Service www.regulations.gov; or in person at the resulting from maintenance procedures Bulletin ISB.53–202, Revision 3, dated Docket Operations office between 9 a.m. relating to paint stripping and repainting, December 10, 2008, or an approved BAE and 5 p.m., Monday through Friday, allowing air loads to pull the panel through Systems (Operations) Limited temporary except Federal holidays. The AD docket the grommet. A detaching panel could strike repair scheme. contains the NPRM, the regulatory the aircraft during flight, causing damage. In (3) For airplanes on which a temporary evaluation, any comments received, and addition, a detaching panel could become repair specified in paragraph (f)(2)(ii) of this attached to the structure or control surfaces, AD has been done: Within 8,000 flight cycles other information. The street address for resulting in reduced control of the aircraft. after doing the temporary repair, replace any the Docket Operations office (telephone Following the application of BAE Systems temporary repair grommets with new P/N (800) 647–5527) is in the ADDRESSES (Operations) Ltd ISB 53–202 at Revision 1 to SL5185 grommets in accordance with section. Comments will be available in the first few, it has been discovered that paragraph 2.C. of BAE Systems (Operations) the AD docket shortly after receipt. removal of existing grommets P/N SL5183 Limited Inspection Service Bulletin ISB.53–

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202, Revision 3, dated December 10, 2008, Other FAA AD Provisions to: http://www.archives.gov/federal_register/ _ _ _ and concurrently conduct a bonding (g) The following provisions also apply to code of federal regulations/ _ inspection at each grommet location in this AD: ibr locations.html. accordance with paragraph 2.C. of BAE (1) Alternative Methods of Compliance Issued in Renton, Washington, on July 2, Systems (Operations) Limited Inspection (AMOCs): The Manager, International 2009. Service Bulletin ISB.53–202, Revision 3, Branch, ANM–116, Transport Airplane Ali Bahrami, dated December 10, 2008. If unsatisfactory Directorate, FAA, has the authority to bonding is detected, before further flight, approve AMOCs for this AD, if requested Manager, Transport Airplane Directorate, apply electro-conductive paste in accordance using the procedures found in 14 CFR 39.19. Aircraft Certification Service. with Appendix 4 of BAE Systems Send information to ATTN: Todd Thompson, [FR Doc. E9–16932 Filed 7–20–09; 8:45 am] (Operations) Limited Inspection Service Aerospace Engineer, International Branch, BILLING CODE 4910–13–P Bulletin ISB.53–202, Revision 3, dated ANM–116, Transport Airplane Directorate, December 10, 2008. FAA, 1601 Lind Avenue, SW., Renton, (4) For airplanes on which any new P/N Washington 98057–3356; telephone (425) DEPARTMENT OF TRANSPORTATION SL5185 grommets have been installed 227–1175; fax (425) 227–1149. Before using without having a bonding inspection prior to any approved AMOC on any airplane to Federal Aviation Administration the effective date of this AD: Before or during which the AMOC applies, notify your the next scheduled repetitive inspection in principal maintenance inspector (PMI) or 14 CFR Part 39 accordance with paragraph (f)(1) of this AD, principal avionics inspector (PAI), as conduct a bonding inspection in accordance appropriate, or lacking a principal inspector, your local Flight Standards District Office. [Docket No. FAA–2008–1365; Directorate with paragraph 2.C. of BAE Systems Identifier 2008–NM–076–AD; Amendment (Operations) Limited Inspection Service (2) Airworthy Product: For any requirement in this AD to obtain corrective actions from 39–15970; AD 2009–15–07] Bulletin ISB.53–202, Revision 3, dated a manufacturer or other source, use these December 10, 2008. If unsatisfactory bonding actions if they are FAA-approved. Corrective RIN 2120–AA64 is detected, before further flight, apply actions are considered FAA-approved if they electro-conductive paste in accordance with are approved by the State of Design Authority Airworthiness Directives; Airbus Model Appendix 4 of BAE Systems (Operations) (or their delegated agent). You are required A319, A320, and A321 Series Airplanes Limited Inspection Service Bulletin ISB.53– to ensure the product is airworthy before it 202, Revision 3, dated December 10, 2008. is returned to service. AGENCY: Federal Aviation (5) Replacing all existing grommets with (3) Reporting Requirements: For any Administration (FAA), Department of new P/N SL5185 grommets on all panels, reporting requirement in this AD, under the Transportation (DOT). including the corresponding bonding provisions of the Paperwork Reduction Act, ACTION: Final rule. inspections and the application of the the Office of Management and Budget (OMB) electro-conductive paste as applicable, in has approved the information collection SUMMARY: We are adopting a new accordance with BAE Systems (Operations) requirements and has assigned OMB Control airworthiness directive (AD) for the Limited Inspection Service Bulletin ISB.53– Number 2120–0056. products listed above. This AD results 202, Revision 3, dated December 10, 2008, terminates the repetitive inspections required Related Information from mandatory continuing by paragraph (f)(1) of this AD. (h) Refer to MCAI European Aviation airworthiness information (MCAI) (6) Visual inspections, temporary repairs, Safety Agency Airworthiness Directive 2008– originated by an aviation authority of and replacements of the grommets are also 0180, dated September 30, 2008; and BAE another country to identify and correct acceptable for compliance with the Systems (Operations) Limited Inspection an unsafe condition on an aviation corresponding requirements of paragraphs Service Bulletin ISB.53–202, Revision 3, product. The MCAI describes the unsafe (f)(1), (f)(2)(i), (f)(2)(ii), (f)(3), and (f)(5) of this dated December 10, 2008; for related condition as: AD if done before the effective date of this information. In 2005 a lateral runway excursion AD in accordance with BAE Systems Material Incorporated by Reference occurred on an A320 aircraft. Such (Operations) Limited Inspection Service excursions are classified as hazardous, with Bulletin ISB.53–202, Revision 1, dated June (i) You must use BAE Systems (Operations) Limited Inspection Service Bulletin ISB.53– a large reduction in safety margins. 4, 2008. Investigation has shown that the aircraft (7) Visual inspections, temporary repairs, 202, Revision 3, dated December 10, 2008, to do the actions required by this AD, unless the landed with the nose wheels rotated nearly replacements of the grommets, bonding 20 degrees from center. During subsequent inspections, and applications of conductive AD specifies otherwise. (1) The Director of the Federal Register tests on the removed BSCU [Braking and paste are also acceptable for compliance with approved the incorporation by reference of Steering Control Unit], a BSCU hardware the corresponding requirements of this service information under 5 U.S.C. failure was found, affecting the monitoring paragraphs (f)(1), (f)(2)(i), (f)(2)(ii), (f)(3), 552(a) and 1 CFR part 51. function, including the system (f)(4), and (f)(5) of this AD if done before the (2) For service information identified in reconfiguration management, and leading to effective date of this AD in accordance with this AD, contact BAE Systems Regional a runaway of [the] Nose Wheel Steering BAE Systems (Operations) Limited Aircraft, 13850 McLearen Road, Herndon, [uncommanded steering]. Inspection Service Bulletin ISB.53–202, Virginia 20171; telephone 703–736–1080; * * * * * Revision 2, dated October 24, 2008. e-mail [email protected]; Internet The unsafe condition is an (8) Bonding inspections and applications http://www.baesystems.com/Businesses/ of conductive paste are also acceptable for uncommanded steering condition RegionalAircraft/index.htm. during takeoff or landing, which could compliance with the corresponding (3) You may review copies of the service requirement of paragraphs (f)(2)(i), (f)(3), information at the FAA, Transport Airplane result in departure of the airplane from (f)(4), and (f)(5) of this AD if done before the Directorate, 1601 Lind Avenue, SW., Renton, the runway. We are issuing this AD to effective date of this AD in accordance with Washington. For information on the require actions to correct the unsafe BAE Systems (Operations) Limited All availability of this material at the FAA, call condition on these products. Operator Message 08–015V, Issue 1, dated 425–227–1221 or 425–227–1152. DATES: This AD becomes effective August 22, 2008. (4) You may also review copies of the August 25, 2009. FAA AD Differences service information that is incorporated by reference at the National Archives and The Director of the Federal Register Note 2: This AD differs from the MCAI Records Administration (NARA). For approved the incorporation by reference and/or service information as follows: No information on the availability of this of a certain publication listed in this AD differences. material at NARA, call 202–741–6030, or go as of August 25, 2009.

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ADDRESSES: You may examine the AD Comments warranty coverage for affected parties, docket on the Internet at http:// We gave the public the opportunity to some parties may incur costs higher www.regulations.gov or in person at the participate in developing this AD. We than estimated here. Based on these U.S. Department of Transportation, considered the comments received. figures, we estimate the cost of this AD Docket Operations, M–30, West to the U.S. operators to be $141,840, or Building Ground Floor, Room W12–140, Support for the AD $240 per product. 1200 New Jersey Avenue, SE., JetBlue Airways Corporation supports Authority for This Rulemaking Washington, DC. the actions specified in the NPRM. FOR FURTHER INFORMATION CONTACT: Tim Title 49 of the United States Code Request To Relocate Certain Language Dulin, Aerospace Engineer, specifies the FAA’s authority to issue International Branch, ANM–116, Airbus suggests that we relocate the rules on aviation safety. Subtitle I, Transport Airplane Directorate, FAA, following sentence in the Reason section 106, describes the authority of 1601 Lind Avenue, SW., Renton, section: ‘‘An uncommanded steering the FAA Administrator. ‘‘Subtitle VII: Washington 98057–3356; telephone condition during takeoff or landing Aviation Programs,’’ describes in more (425) 227–2141; fax (425) 227–1149. could result in departure of the airplane detail the scope of the Agency’s SUPPLEMENTARY INFORMATION: from the runway.’’ Airbus states that authority. relocating that sentence away from the We are issuing this rulemaking under Discussion previous sentence, which addresses the authority described in ‘‘Subtitle VII, We issued a notice of proposed replacing tires, would avoid Part A, Subpart III, Section 44701: rulemaking (NPRM) to amend 14 CFR misinterpretation by association. General requirements.’’ Under that part 39 to include an AD that would We acknowledge the Airbus comment section, Congress charges the FAA with apply to the specified products. That and we have relocated the subject promoting safe flight of civil aircraft in NPRM was published in the Federal sentence and clarified that it is the air commerce by prescribing regulations Register on January 7, 2009 (74 FR 664). statement of the unsafe condition in for practices, methods, and procedures That NPRM proposed to correct an both the Discussion and Reason sections the Administrator finds necessary for unsafe condition for the specified of this AD. safety in air commerce. This regulation products. The MCAI states: is within the scope of that authority Conclusion because it addresses an unsafe condition In 2005 a lateral runway excursion We reviewed the available data, that is likely to exist or develop on occurred on an A320 aircraft. Such including the comments received, and excursions are classified as hazardous, with products identified in this rulemaking a large reduction in safety margins. determined that air safety and the action. public interest require adopting the AD Investigation has shown that the aircraft Regulatory Findings landed with the nose wheels rotated nearly with the change described previously. 20 degrees from center. During subsequent We determined that this change will not We determined that this AD will not tests on the removed BSCU [Braking and increase the economic burden on any have federalism implications under Steering Control Unit], a BSCU hardware operator or increase the scope of the AD. Executive Order 13132. This AD will failure was found, affecting the monitoring not have a substantial direct effect on Differences Between This AD and the function, including the system the States, on the relationship between reconfiguration management, and leading to MCAI or Service Information the national government and the States, a runaway of [the] Nose Wheel Steering We have reviewed the MCAI and [uncommanded steering]. or on the distribution of power and DGAC [Direction Ge´ne´rale de l’Aviation related service information and, in responsibilities among the various Civile] Airworthiness Directive (AD) F–1992– general, agree with their substance. But levels of government. 117–025(B), Revision 1 [which corresponds we might have found it necessary to use For the reasons discussed above, I to FAA AD 94–24–07], mandated the BSCU different words from those in the MCAI certify this AD: upgrade in order to improve the steering to ensure the AD is clear for U.S. 1. Is not a ‘‘significant regulatory logic, but this modification has shown not to operators and is enforceable. In making action’’ under Executive Order 12866; be sufficient to address the identified failure these changes, we do not intend to differ 2. Is not a ‘‘significant rule’’ under the mechanism. substantively from the information DOT Regulatory Policies and Procedures A software modification is now (44 FR 11034, February 26, 1979); and implemented in BSCU standard 10 which provided in the MCAI and related improves the system reconfiguration service information. 3. Will not have a significant management when this failure mechanism is We might also have required different economic impact, positive or negative, detected. actions in this AD from those in the on a substantial number of small entities BSCU standard 10 also includes other MCAI in order to follow our FAA under the criteria of the Regulatory improvements—as detailed in the associated policies. Any such differences are Flexibility Act. Service Bulletin. highlighted in a NOTE within the AD. We prepared a regulatory evaluation This AD therefore mandates the of the estimated costs to comply with Costs of Compliance modification or replacement of the BSCU this AD and placed it in the AD docket. standard 7, 9 or 9.1, by the BSCU standard We estimate that this AD will affect 10. 591 products of U.S. registry. We also Examining the AD Docket The unsafe condition is an estimate that it will take about 3 work- You may examine the AD docket on uncommanded steering condition hours per product to comply with the the Internet at http:// during takeoff or landing, which could basic requirements of this AD. The www.regulations.gov; or in person at the result in departure of the airplane from average labor rate is $80 per work-hour. Docket Operations office between 9 a.m. the runway. The corrective action also Required parts will cost about $0 per and 5 p.m., Monday through Friday, includes replacement of certain product. Where the service information except Federal holidays. The AD docket DUNLOP tires that are not compatible lists required parts costs that are contains the NPRM, the regulatory with BSCU standard 10. You may obtain covered under warranty, we have evaluation, any comments received, and further information by examining the assumed that there will be no charge for other information. The street address for MCAI in the AD docket. these parts. As we do not control the Docket Operations office (telephone

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(800) 647–5527) is in the ADDRESSES 20 degrees from center. During subsequent Other FAA AD Provisions section. Comments will be available in tests on the removed BSCU [Braking and (g) The following provisions also apply to the AD docket shortly after receipt. Steering Control Unit], a BSCU hardware this AD: failure was found, affecting the monitoring (1) Alternative Methods of Compliance List of Subjects in 14 CFR Part 39 function, including the system (AMOCs): The Manager, International Air transportation, Aircraft, Aviation reconfiguration management, and leading to Branch, FAA, has the authority to approve safety, Incorporation by reference, a runaway of [the] Nose Wheel Steering AMOCs for this AD, if requested using the [uncommanded steering]. Safety. procedures found in 14 CFR 39.19. Send DGAC [Direction Ge´ne´rale de l’Aviation information to ATTN: Tim Dulin, Aerospace Adoption of the Amendment Civile] Airworthiness Directive (AD) F–1992– Engineer, International Branch, ANM–116, 117–025(B), Revision 1 [which corresponds ■ Transport Airplane Directorate, FAA, 1601 Accordingly, under the authority to FAA AD 94–24–07], mandated the BSCU Lind Avenue, SW., Renton, Washington delegated to me by the Administrator, upgrade in order to improve the steering 98057–3356; telephone (425) 227–2141; fax the FAA amends 14 CFR part 39 as logic, but this modification has shown not to (425) 227–1149. Before using any approved follows: be sufficient to address the identified failure AMOC on any airplane to which the AMOC mechanism. applies, notify your appropriate principal PART 39—AIRWORTHINESS A software modification is now inspector (PI) in the FAA Flight Standards DIRECTIVES implemented in BSCU standard 10 which District Office (FSDO), or lacking a PI, your improves the system reconfiguration ■ local FSDO. 1. The authority citation for part 39 management when this failure mechanism is (2) Airworthy Product: For any requirement continues to read as follows: detected. in this AD to obtain corrective actions from BSCU standard 10 also includes other Authority: 49 U.S.C. 106(g), 40113, 44701. a manufacturer or other source, use these improvements—as detailed in the associated actions if they are FAA-approved. Corrective § 39.13 [Amended] Service Bulletin. actions are considered FAA-approved if they This AD therefore mandates the ■ are approved by the State of Design Authority 2. The FAA amends § 39.13 by adding modification or replacement of the BSCU the following new AD: (or their delegated agent). You are required standard 7, 9 or 9.1, by the BSCU standard to assure the product is airworthy before it 2009–15–07 Airbus: Amendment 39–15970. 10. is returned to service. Docket No. FAA–2008–1365; Directorate The unsafe condition is an uncommanded (3) Reporting Requirements: For any Identifier 2008–NM–076–AD. steering condition during takeoff or landing, reporting requirement in this AD, under the Effective Date which could result in departure of the provisions of the Paperwork Reduction Act, airplane from the runway. The corrective the Office of Management and Budget (OMB) (a) This airworthiness directive (AD) action also includes replacement of certain has approved the information collection becomes effective August 25, 2009. DUNLOP tires that are not compatible with requirements and has assigned OMB Control Affected ADs BSCU standard 10. Number 2120–0056. (b) None. Actions and Compliance Related Information Applicability (f) Unless already done, do the following (h) Refer to MCAI EASA Airworthiness actions. (c) This AD applies to Airbus Model A319– Directive 2008–0048, dated February 28, (1) Within 18 months after the effective 111, –112, –113, –114, –115, –131, –132, and 2008; and Airbus Mandatory Service Bulletin date of this AD: Modify or replace the BSCU –133; A320–111, –211, –212, –214, –231, A320–32–1336, Revision 01, dated January –232, and –233; and A321–111, –112, –131, in accordance with the Accomplishment 10, 2008; for related information. Instructions of Airbus Mandatory Service –211, –212, –213, –231, and –232 series Material Incorporated by Reference airplanes; certificated in any category; Bulletin A320–32–1336, Revision 01, dated equipped with one conventional pre- January 10, 2008; and inspect the airplane to (i) You must use Airbus Mandatory Service Enhanced Manufacture and Maintainability determine if DUNLOP tires 46x16–20 having Bulletin A320–32–1336, Revision 01, dated (pre-EMM) Braking and Steering Control Unit part number (P/N) 11659 T or 11661 T are January 10, 2008, to do the actions required (BSCU), having the part numbers specified in installed. If those tires are installed, before by this AD, unless the AD specifies paragraph (c)(1), (c)(2), or (c)(3) of this AD. further flight, replace with acceptable tires otherwise. (1) C20216332292C (standard 7) installed using a method approved by either the (1) The Director of the Federal Register by Airbus Modification 24449 in production, Manager, International Branch, ANM–116, approved the incorporation by reference of or by Airbus Service Bulletin A320–32–1124 Transport Airplane Directorate, FAA; or the this service information under 5 U.S.C. in service. European Aviation Safety Agency (EASA) (or 552(a) and 1 CFR part 51. (2) C202163372D32 (standard 9) installed its delegated agent). Accomplishment of the (2) For service information identified in by Airbus Modification 31106 in production, applicable requirements in this paragraph this AD, contact Airbus, Airworthiness or by Airbus Service Bulletin A320–32–1227 terminates the requirements of AD 94–24–07, Office—EAS, 1 Rond Point Maurice Bellonte, or A320–32–1232 in service. amendment 39–9080. 31707 Blagnac Cedex, France; telephone +33 (3) C202163382D32 (standard 9.1) installed (2) Previous accomplishment of the 5 61 93 36 96; fax +33 5 61 93 44 51; e-mail: by Airbus Modification 32500 in production, modification or replacement of the BSCU [email protected]; Internet or by Airbus Service Bulletin A320–32–1254 before the effective date of this AD in http://www.airbus.com. in service. accordance with Airbus Mandatory Service (3) You may review copies of the service Bulletin A320–32–1336, dated September 19, information at the FAA, Transport Airplane Subject 2007, meets the requirements of paragraph Directorate, 1601 Lind Avenue, SW., Renton, (d) Air Transport Association (ATA) of (f)(1) of this AD. Washington. For information on the America Code 32: Landing gear. FAA AD Differences availability of this material at the FAA, call 425–227–1221 or 425–227–1152. Reason Note 1: This AD differs from the MCAI (4) You may also review copies of the (e) The mandatory continuing and/or service information as follows: service information that is incorporated by airworthiness information (MCAI) states: Although the MCAI and service information reference at the National Archives and In 2005 a lateral runway excursion do not provide procedures for replacing the Records Administration (NARA). For occurred on an A320 aircraft. Such tires as specified in paragraph (f)(1) of this information on the availability of this excursions are classified as hazardous, with AD, this AD requires that you replace the material at NARA, call 202–741–6030, or go a large reduction in safety margins. tires using a method approved by either the to: http://www.archives.gov/federal_register/ Investigation has shown that the aircraft Manager, International Branch, ANM–116, code_of_federal_regulations/ landed with the nose wheels rotated nearly FAA, or the EASA (or its delegated agent). ibr_locations.html.

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Issued in Renton, Washington, on July 2, SAS—EAW (Airworthiness Office), 1 Revisions to Paragraphs (f), (h), (i), and 2009. Rond Point Maurice Bellonte, 31707 (j) of This AD Ali Bahrami, Blagnac Cedex, France; telephone +33 5 We have revised paragraph (h) of this Manager, Transport Airplane Directorate, 61 93 36 96; fax +33 5 61 93 44 51; e- AD to give credit for actions done in Aircraft Certification Service. mail: [email protected]; accordance with Airbus Service Bulletin [FR Doc. E9–16937 Filed 7–20–09; 8:45 am] Internet http://www.airbus.com. A310–53–2070, Revision 1, dated BILLING CODE 4910–13–P Examining the AD Docket September 23, 1996. We also added Airbus Service Bulletin A310–53–2069, You may examine the AD docket on Revision 06, dated May 22, 2007, as an DEPARTMENT OF TRANSPORTATION the Internet at http:// acceptable source of service information Federal Aviation Administration www.regulations.gov; or in person at the for compliance with the requirements of Docket Management Facility between 9 paragraphs (f) and (i) of this AD. We 14 CFR Part 39 a.m. and 5 p.m., Monday through have also revised paragraph (j) of this Friday, except Federal holidays. The AD AD to include a new Table 1 to specify [Docket No. FAA–2008–1201; Directorate docket contains this AD, the regulatory the number, revision, and date of each Identifier 2008–NM–007–AD; Amendment evaluation, any comments received, and service bulletin for which no reporting 39–15922; AD 2009–11–12] other information. The address for the is required. Docket Office (telephone 800–647–5527) RIN 2120–AA64 Conclusion is the Document Management Facility, Airworthiness Directives; Airbus Model U.S. Department of Transportation, We reviewed the relevant data, A310 Series Airplanes Docket Operations, M–30, West considered the comment received, and determined that air safety and the AGENCY: Building Ground Floor, Room W12–140, Federal Aviation public interest require adopting the AD Administration (FAA), Department of 1200 New Jersey Avenue, SE., Washington, DC 20590. with the changes described previously. Transportation (DOT). We also determined that these changes ACTION: Final rule. FOR FURTHER INFORMATION CONTACT: will not increase the economic burden Vladimir Ulyanov, Aerospace Engineer, SUMMARY: The FAA is superseding an on any operator or increase the scope of International Branch, ANM–116, the AD. existing airworthiness directive (AD), Transport Airplane Directorate, FAA, which applies to certain Airbus Model 1601 Lind Avenue, SW., Renton, Costs of Compliance A310 series airplanes. That AD Washington 98057–3356; telephone This AD affects about 69 Model A310 currently requires repetitive inspections (425) 227–1138; fax (425) 227–1149. series airplanes of U.S. registry. The of the fuselage skin to detect corrosion actions that are required by AD 2004– or fatigue cracking around and under SUPPLEMENTARY INFORMATION: 14–06 and retained in this AD take the chafing plates of the wing root; Discussion about 68 work hours per airplane, at an repetitive inspections for fatigue average labor rate of $80 per work hour. cracking of frame 39, stringer 35; and The FAA issued a notice of proposed Based on these figures, the estimated corrective actions if necessary. The rulemaking (NPRM) to amend 14 CFR cost of the currently required actions is existing AD also provides for an part 39 to include an AD that optional terminating action for certain supersedes AD 2004–14–06, amendment $375,360, or $5,440 per airplane, per repetitive inspections, except for certain 39–13715 (69 FR 41401, July 9, 2004). inspection cycle. areas where corrosion was detected and The existing AD applies to certain Authority for This Rulemaking reworked. This new AD reduces the Airbus Model A310 series airplanes. Title 49 of the United States Code intervals for accomplishing repetitive That NPRM was published in the specifies the FAA’s authority to issue inspections in a certain area. This AD Federal Register on November 13, 2008 rules on aviation safety. Subtitle I, results from mandatory continuing (73 FR 67110). That NPRM proposed to Section 106, describes the authority of airworthiness information originated by continue to require repetitive the FAA Administrator. Subtitle VII, an aviation authority of another country inspections of the fuselage skin to detect Aviation Programs, describes in more to identify and correct an unsafe corrosion or fatigue cracking around and detail the scope of the Agency’s condition on an aviation product. We under the chafing plates of the wing authority. are issuing this AD to detect and correct root; repetitive inspections for fatigue We are issuing this rulemaking under fatigue cracks and corrosion around and cracking of frame 39, stringer 35; and the authority described in Subtitle VII, under the chafing plates of the wing corrective actions if necessary. That Part A, Subpart III, Section 44701, root, which could result in reduced NPRM also proposed to continue to ‘‘General requirements.’’ Under that structural integrity of the airplane. provide for an optional terminating section, Congress charges the FAA with DATES: This AD becomes effective action for certain repetitive inspections, promoting safe flight of civil aircraft in August 25, 2009. except for certain areas where corrosion air commerce by prescribing regulations The Director of the Federal Register was detected and reworked. In addition, for practices, methods, and procedures approved the incorporation by reference that NPRM proposed to reduce the the Administrator finds necessary for of certain publications listed in the AD intervals for accomplishing the safety in air commerce. This regulation as of August 25, 2009. repetitive inspections in a certain area. is within the scope of that authority The Director of the Federal Register Comments because it addresses an unsafe condition previously approved the incorporation that is likely to exist or develop on by reference of Airbus Service Bulletin We provided the public the products identified in this rulemaking A310–53–2070, dated October 3, 1994, opportunity to participate in the action. on June 3, 1998 (63 FR 23377, April 29, development of this AD. We have 1998). considered the comment that has been Regulatory Findings ADDRESSES: For service information received on the NPRM. FedEx supports We have determined that this AD will identified in this AD, contact Airbus the NPRM. not have federalism implications under

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Executive Order 13132. This AD will Applicability Revision 03, dated October 28, 1997; not have a substantial direct effect on (c) This AD applies to Airbus Model A310 Revision 2, dated September 23, 1996; or the States, on the relationship between series airplanes, certificated in any category, Revision 1, dated September 19, 1995; as the national government and the States, on which Airbus Modifications 8888 and applicable; specifies to contact Airbus for or on the distribution of power and 8889 have not been accomplished. appropriate action: Prior to further flight, repair in accordance with a method approved responsibilities among the various Unsafe Condition by the Manager, International Branch, ANM– levels of government. (d) This AD results from mandatory 116, FAA, Transport Airplane Directorate. For the reasons discussed above, I continuing airworthiness information Where differences in the compliance times or certify that this AD: originated by an aviation authority of another corrective actions exist between the service (1) Is not a ‘‘significant regulatory country to identify and correct an unsafe bulletin and this AD, the AD prevails. condition on an aviation product. We are action’’ under Executive Order 12866; Optional Terminating Action (2) Is not a ‘‘significant rule’’ under issuing this AD to detect and correct fatigue DOT Regulatory Policies and Procedures cracks and corrosion around and under the (h) Except as provided by paragraph (i) of chafing plates of the wing root, which could this AD: Accomplishment of the replacement (44 FR 11034, February 26, 1979); and result in reduced structural integrity of the of the stainless steel chafing plates with new (3) Will not have a significant airplane. chafing plates made of aluminum alloy, in economic impact, positive or negative, accordance with Airbus Service Bulletin Compliance on a substantial number of small entities A310–53–2070, Revision 02, dated November under the criteria of the Regulatory (e) You are responsible for having the 8, 2000; or the original issue, dated October Flexibility Act. actions required by this AD performed within 3, 1994; constitutes terminating action for the We prepared a regulatory evaluation the compliance times specified, unless the repetitive inspections required by paragraph of the estimated costs to comply with actions have already been done. (f) of this AD. Actions done in accordance this AD and placed it in the AD docket. Requirements of AD 2004–14–06 with Airbus Service Bulletin A310–53–2070, Revision 1, dated September 23, 1996, are See the ADDRESSES section for a location Repetitive Inspections and Corrective Actions acceptable for compliance with actions to examine the regulatory evaluation. (f) Except as provided by paragraphs (g), required by this AD. List of Subjects in 14 CFR Part 39 (k), and (l) of this AD: Within 4 years since Continuation of Repetitive Inspections date of manufacture, or within 12 months Air transportation, Aircraft, Aviation after June 3, 1998 (the effective date of AD (i) Except as provided by paragraphs (k) safety, Incorporation by reference, 98–09–20, amendment 39–10501), whichever and (l) of this AD: Within 30 days after Safety. occurs later, perform an inspection to detect August 13, 2004, do a review of the airplane maintenance records to determine if any Adoption of the Amendment discrepancies around and under the chafing plates of the wing root, in accordance with corrosion was detected and reworked on the ■ Accordingly, under the authority the Accomplishment Instructions of Airbus left and/or right side of frame 39, stringer 35, during the accomplishment of any corrective delegated to me by the Administrator, Service Bulletin A310–53–2069, Revision 06, dated May 22, 2007; Revision 05, dated action or repair specified in paragraphs (f) or the FAA amends 14 CFR part 39 as November 12, 2002; Revision 04, dated (g) of this AD. If any corrective action or follows: November 8, 2000; Revision 03, dated repair has been accomplished in this area, October 28, 1997; Revision 2, dated perform an inspection for fatigue cracking of PART 39—AIRWORTHINESS September 23, 1996; or Revision 1, dated frame 39, stringer 35, in accordance with the DIRECTIVES September 19, 1995. If any discrepancy is Accomplishment Instructions of Airbus Service Bulletin A310–53–2069, Revision 06, ■ found, prior to further flight, accomplish 1. The authority citation for part 39 follow-on corrective actions (i.e., removal of dated May 22, 2007; Revision 05, dated continues to read as follows: corrosion, corrosion protection, high November 12, 2002; or Revision 04, dated Authority: 49 U.S.C. 106(g), 40113, 44701. frequency eddy current inspection, x-ray November 8, 2000. Do the initial inspection inspection), as applicable, in accordance at the threshold specified in Figure 1 of the § 39.13 [Amended] with the applicable service bulletin. Repeat service bulletin, or within 30 days after ■ 2. The Federal Aviation the inspections thereafter at the intervals August 13, 2004, whichever is later. Repeat Administration (FAA) amends § 39.13 specified in the applicable service bulletin. the inspection thereafter at the intervals by removing amendment 39–13715 (69 After August 13, 2004 (the effective date of specified in Figure 1 of the service bulletin. AD 2004–14–06), repeat the inspections If any discrepancy is found, prior to further FR 41401, July 9, 2004) and by adding thereafter at the intervals specified in Airbus flight, accomplish the applicable follow-on the following new airworthiness Service Bulletin A310–53–2069, Revision 04, corrective actions, in accordance with the directive (AD): dated November 8, 2000; Airbus Service Accomplishment Instructions of Airbus 2009–11–12 Airbus: Amendment 39–15922. Bulletin A310–53–2069, Revision 05, dated Service Bulletin A310–53–2069, Revision 06, Docket No. FAA–2008–1201; Directorate November 12, 2002; or Airbus Service dated May 22, 2007; Revision 05, dated Identifier 2008–NM–007–AD. Bulletin A310–53–2069, Revision 06, dated November 12, 2002; or Revision 04, dated May 22, 2007. November 8, 2000. Effective Date (g) If any discrepancy is found during any Submission of Information Not Required (a) This AD becomes effective August 25, inspection required by paragraph (f) of this 2009. AD, and Airbus Service Bulletin A310–53– (j) Although the service bulletins specified 2069, Revision 06, dated May 22, 2007; in Table 1 of this AD specify to submit Affected ADs Revision 05, dated November 12, 2002; information to the manufacturer, this AD (b) This AD supersedes AD 2004–14–06. Revision 04, dated November 8, 2000; does not include such a requirement.

TABLE 1—NO REPORTING REQUIREMENT FOR THESE SERVICE BULLETINS

Airbus Service Bulletin— Revision— Dated—

A310–53–2069 ...... 1 ...... September 19, 1995. A310–53–2069 ...... 2 ...... September 23, 1996. A310–53–2069 ...... 03 ...... October 28, 1997. A310–53–2069 ...... 04 ...... November 8, 2000. A310–53–2069 ...... 05 ...... November 12, 2002.

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TABLE 1—NO REPORTING REQUIREMENT FOR THESE SERVICE BULLETINS—Continued

Airbus Service Bulletin— Revision— Dated—

A310–53–2069 ...... 06 ...... May 22, 2007. A310–53–2070 ...... Original ...... October 3, 1994. A310–53–2070 ...... 1 ...... September 23, 1996. A310–53–2070 ...... 02 ...... November 8, 2000.

New Actions Required by This AD except as provided by paragraph (m) of this Lind Avenue SW., Renton, Washington AD. New Service Bulletin Revision 98057–3356; telephone (425) 227–1138; fax (i) At the applicable threshold specified in (425) 227–1149. Before using any approved (k) As of the effective date of this AD, use Figure 1, Sheets 4 and 5, of Airbus Service AMOC on any airplane to which the AMOC only the Accomplishment Instructions of Bulletin A310–53–2069, Revision 06, dated applies, notify your appropriate principal Airbus Service Bulletin A310–53–2069, May 22, 2007. Revision 06, dated May 22, 2007, to do the (ii) Within 900 flight cycles or 1,800 flight inspector (PI) in the FAA Flight Standards inspections and corrective actions required hours after the effective date of this AD, District Office (FSDO), or lacking a PI, your by paragraphs (f) and (i) of this AD. whichever occurs first. local FSDO. (m) Where Figure 1, Sheets 4 and 5, of Repetitive Inspections at Frame 39, Stringer Related Information Airbus Service Bulletin A310–53–2069, 35 at Reduced Intervals Revision 06, dated May 22, 2007, specifies to (o) European Aviation Safety Agency (l) As of the effective date of this AD, if any contact Airbus, do the inspections at (EASA) Airworthiness Directive 2007–0292, corrosion is found at frame 39, stringer 35, threshold and repeat intervals approved by dated November 27, 2007, also addresses the during any inspection required by this AD, either the Manager, International Branch, subject of this AD. do the repetitive inspections required by ANM–116, Transport Airplane Directorate, paragraphs (f) and (i) of this AD, as FAA; or the European Aviation Safety Material Incorporated by Reference applicable, at the earlier of the times Agency (EASA) (or its delegated agent). specified in paragraphs (l)(1) and (l)(2) of this (p) You must use Airbus Service Bulletin AD. Repeat the inspections thereafter at Alternative Methods of Compliance (AMOCs) A310–53–2069, Revision 06, dated May 22, intervals specified in Figure 1, Sheets 4 and (n) The Manager, International Branch, 2007, as applicable, to do the actions 5, of Airbus Service Bulletin A310–53–2069, ANM–116, Transport Airplane Directorate, required by this AD, unless the AD specifies Revision 06, dated May 22, 2007, except as FAA, has the authority to approve AMOCs otherwise. If you accomplish the optional provided by paragraph (m) of this AD. for this AD, if requested using the procedures terminating action specified in this AD, you (1) At the next specified repeat interval found in 14 CFR 39.19. Send information to must use the service bulletins specified in specified in paragraph (f) of this AD. ATTN: Vladimir Ulyanov, Aerospace Table 2 of this AD, as applicable, unless the (2) At the later of the times specified in Engineer, International Branch, ANM–116, AD specifies otherwise. paragraphs (l)(2)(i) and (l)(2)(ii) of this AD, Transport Airplane Directorate, FAA, 1601

TABLE 2—MATERIAL INCORPORATED BY REFERENCE FOR OPTIONAL ACTIONS SPECIFIED IN THIS AD

Airbus Service Bulletin— Revision— Dated—

A310–53–2070 ...... 02 ...... November 8, 2000. A310–53–2070 ...... Original ...... October 3, 1994.

Airbus Service Bulletin A310–53–2070, Revision 02, dated November 8, 2000, contains the following effective pages:

Page No. Revision level shown on page Date shown on page

1–13, 15–16, 21–22 ...... 02 ...... November 8, 2000. 14, 17–18 ...... 1 ...... September 23, 1996. 19–20 ...... Original ...... October 3, 1994.

(1) The Director of the Federal Register of this AD under 5 U.S.C. 552(a) and 1 CFR approved the incorporation by reference of part 51. the service information contained in Table 3

TABLE 3—NEW MATERIAL INCORPORATED BY REFERENCE

Airbus Service Bulletin— Revision— Dated—

A310–53–2069 ...... 06 ...... May 22, 2007. A310–53–2070 ...... 02 ...... November 8, 2000.

(2) The Director of the Federal Register 53–2070, dated October 3, 1994, on June 3, (3) For service information identified in previously approved the incorporation by 1998 (63 FR 23377, April 29, 1998). this AD, contact Airbus SAS–EAW reference of Airbus Service Bulletin A310– (Airworthiness Office), 1 Rond Point Maurice

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Bellonte, 31707 Blagnac Cedex, France; Nonconforming installation or a During inspections in production and on telephone +33 5 61 93 36 96; fax +33 5 61 failure of the OHDS could allow in-service aircraft, a number of Overheat 93 44 51; e-mail: account.airworth- undetected leakage of bleed air from the Detection System (OHDS) installation non- [email protected]; Internet http:// hot engine/auxiliary power unit causing conformities have been identified along the www.airbus.com. damage to the airplane structure and bleed air ducting. (4) You may review copies of the service Some installation issues which may lead to information at the FAA, Transport Airplane various airplane components and a degraded leak detection capability have Directorate, 1601 Lind Avenue, SW., Renton, systems. This AD requires actions that been reported. In case of hot air leakage, the Washington. For information on the are intended to address the unsafe potential degradation of the OHDS would not availability of this material at the FAA, call condition described in the MCAI. allow preventing damages to structure or 425–227–1221 or 425–227–1152. DATES: This AD becomes effective components, and therefore could lead to an (5) You may also review copies of the August 5, 2009. unsafe condition. service information that is incorporated by The Director of the Federal Register To ensure that in-service aircraft are free of reference at the National Archives and approved the incorporation by reference such non-conformities, this AD requires an Records Administration (NARA). For of a certain publication, listed in the AD inspection of the OHDS installation along the information on the availability of this bleed air ducting and, in case of findings [any material at NARA, call 202–741–6030, or go as of August 5, 2009. sensing element or insulation muff installed to: http://www.archives.gov/federal_register/ We must receive comments on this incorrectly], to bring back the installation code_of_federal_regulations/ AD by August 20, 2009. into the compliant configuration. _ ADDRESSES: You may send comments by ibr locations.html. Nonconforming installation or a failure any of the following methods: Issued in Renton, Washington, on July 2, • of the OHDS could allow undetected 2009. Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the leakage of bleed air from the hot engine/ Ali Bahrami, instructions for submitting comments. auxiliary power unit causing damage to Manager, Transport Airplane Directorate, • Fax: (202) 493–2251. the airplane structure and various Aircraft Certification Service. • Mail: U.S. Department of airplane components and systems. The [FR Doc. E9–17122 Filed 7–20–09; 8:45 am] Transportation, Docket Operations, M– inspection of the OHDS installation, for BILLING CODE 4910–13–P 30, West Building Ground Floor, Room certain airplanes, consists of inspecting W12–140, 1200 New Jersey Avenue, SE., the APU overheat sensing elements APU Washington, DC 20590. 1 Loop A and B, the APU overheat DEPARTMENT OF TRANSPORTATION • Hand Delivery: U.S. Department of sensing elements APU 2 Loop A and B, Transportation, Docket Operations, M– the crossbleed overheat sensing Federal Aviation Administration 30, West Building Ground Floor, Room element, the forward cargo compartment W12–40, 1200 New Jersey Avenue, SE., heating element, and the sensing 14 CFR Part 39 Washington, DC, between 9 a.m. and 5 element of the overheat detection unit of [Docket No. FAA–2009–0644; Directorate p.m., Monday through Friday, except the wing. For certain other airplanes, Identifier 2009–NM–059–AD; Amendment Federal holidays. inspecting the OHDS installation consists of inspecting the forward cargo 39–15972; AD 2009–15–09] Examining the AD Docket compartment heating element. You may RIN 2120–AA64 You may examine the AD docket on obtain further information by examining the Internet at http:// the MCAI in the AD docket. Airworthiness Directives; Airbus Model www.regulations.gov; or in person at the A380–841, –842, and –861 Airplanes Docket Operations office between 9 a.m. Relevant Service Information and 5 p.m., Monday through Friday, Airbus has issued Service Bulletin AGENCY: Federal Aviation except Federal holidays. The AD docket Administration (FAA), Department of A380–36–8004, dated February 13, contains this AD, the regulatory Transportation (DOT). 2009. The actions described in this evaluation, any comments received, and service information are intended to ACTION: Final rule; request for other information. The street address for correct the unsafe condition identified comments. the Docket Operations office (telephone in the MCAI. (800) 647–5527) is in the ADDRESSES SUMMARY: We are adopting a new section. Comments will be available in FAA’s Determination and Requirements airworthiness directive (AD) for the the AD docket shortly after receipt. of This AD products listed above. This AD results This product has been approved by from mandatory continuing FOR FURTHER INFORMATION CONTACT: the aviation authority of another airworthiness information (MCAI) Todd Thompson, Aerospace Engineer, country, and is approved for operation originated by an aviation authority of International Branch, ANM–116, in the United States. Pursuant to our another country to identify and correct Transport Airplane Directorate, FAA, bilateral agreement with the State of an unsafe condition on an aviation 1601 Lind Avenue, SW., Renton, Design Authority, we have been notified product. The MCAI describes the unsafe Washington 98057–3356; telephone of the unsafe condition described in the condition as: (425) 227–1175; fax (425) 227–1149. SUPPLEMENTARY INFORMATION: MCAI and service information During inspections in production and on referenced above. We are issuing this in-service aircraft, a number of Overheat Discussion AD because we evaluated all pertinent Detection System (OHDS) installation non- The European Aviation Safety Agency information and determined the unsafe conformities have been identified along the bleed air ducting. (EASA), which is the Technical Agent condition exists and is likely to exist or Some installation issues which may lead to for the Member States of the European develop on other products of the same a degraded leak detection capability have Community, has issued EASA type design. been reported. In case of hot air leakage, the Airworthiness Directive 2009–0066, There are no products of this type potential degradation of the OHDS would not dated March 19, 2009 (referred to after currently registered in the United States. allow preventing damages to structure or this as ‘‘the MCAI’’), to correct an unsafe However, this rule is necessary to components * * *. condition for the specified products. ensure that the described unsafe * * * * * The MCAI states: condition is addressed if any of these

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products are placed on the U.S. Register section, Congress charges the FAA with Applicability in the future. promoting safe flight of civil aircraft in (c) This AD applies to Airbus Model A380– air commerce by prescribing regulations 841, –842, and –861 airplanes, certificated in Differences Between the AD and the for practices, methods, and procedures any category, serial numbers 3, 5, 6, 8, 10, 11, MCAI or Service Information the Administrator finds necessary for 12, 13, 14, 15, 16, 20, and 22. We have reviewed the MCAI and safety in air commerce. This regulation Subject related service information and, in is within the scope of that authority (d) Air Transport Association (ATA) of general, agree with their substance. But because it addresses an unsafe condition America Code 36: Pneumatic. we might have found it necessary to use that is likely to exist or develop on different words from those in the MCAI products identified in this rulemaking Reason to ensure the AD is clear for U.S. action. (e) The mandatory continued airworthiness operators and is enforceable. In making information (MCAI) states: these changes, we do not intend to differ Regulatory Findings During inspections in production and on substantively from the information We determined that this AD will not in-service aircraft, a number of Overheat provided in the MCAI and related have federalism implications under Detection System (OHDS) installation non- conformities have been identified along the service information. Executive Order 13132. This AD will We might also have required different bleed air ducting. not have a substantial direct effect on Some installation issues which may lead to actions in this AD from those in the the States, on the relationship between a degraded leak detection capability have MCAI in order to follow FAA policies. the national government and the States, been reported. In case of hot air leakage, the Any such differences are highlighted in or on the distribution of power and potential degradation of the OHDS would not a Note within the AD. responsibilities among the various allow preventing damages to structure or components, and therefore could lead to an FAA’s Determination of the Effective levels of government. For the reasons discussed above, I unsafe condition. Date To ensure that in-service aircraft are free of certify this AD: Since there are currently no domestic such non-conformities, this AD requires an 1. Is not a ‘‘significant regulatory operators of this product, notice and inspection of the OHDS installation along the action’’ under Executive Order 12866; bleed air ducting and, in case of findings [any opportunity for public comment before 2. Is not a ‘‘significant rule’’ under the sensing element or insulation muff installed issuing this AD are unnecessary. DOT Regulatory Policies and Procedures incorrectly], to bring back the installation Comments Invited (44 FR 11034, February 26, 1979); and into the compliant configuration. Nonconforming installation or a failure of This AD is a final rule that involves 3. Will not have a significant economic impact, positive or negative, the OHDS could allow undetected leakage of requirements affecting flight safety, and bleed air from the hot engine/auxiliary power we did not precede it by notice and on a substantial number of small entities unit causing damage to the airplane structure opportunity for public comment. We under the criteria of the Regulatory and various airplane components and invite you to send any written relevant Flexibility Act. systems. The inspection of the OHDS data, views, or arguments about this AD. We prepared a regulatory evaluation installation, for certain airplanes, consists of Send your comments to an address of the estimated costs to comply with inspecting the APU overheat sensing elements APU 1 Loop A and B, the APU listed under the ADDRESSES section. this AD and placed it in the AD docket. overheat sensing elements APU 2 Loop A and Include ‘‘Docket No. FAA–2009–0644; List of Subjects in 14 CFR Part 39 B, the crossbleed overheat sensing element, Directorate Identifier 2009–NM–059– the forward cargo compartment heating AD’’ at the beginning of your comments. Air transportation, Aircraft, Aviation element, and the sensing element of the We specifically invite comments on the safety, Incorporation by reference, overheat detection unit of the wing. For overall regulatory, economic, Safety. certain other airplanes, inspecting the OHDS environmental, and energy aspects of Adoption of the Amendment installation consists of inspecting the forward this AD. We will consider all comments cargo compartment heating element. received by the closing date and may ■ Accordingly, under the authority Actions and Compliance amend this AD because of those delegated to me by the Administrator, (f) Unless already done, do the following comments. the FAA amends 14 CFR part 39 as actions. We will post all comments we follows: (1) Within 90 days after the effective date receive, without change, to http:// of this AD, do a one-time detailed visual www.regulations.gov, including any PART 39—AIRWORTHINESS inspection to determine whether the OHDS personal information you provide. We DIRECTIVES sensing elements and insulation muffs have been correctly installed, in accordance with will also post a report summarizing each ■ 1. The authority citation for part 39 substantive verbal contact we receive Airbus Service Bulletin A380–36–8004, continues to read as follows: dated February 13, 2009. about this AD. (2) If, during any inspection required by Authority: 49 U.S.C. 106(g), 40113, 44701. Authority for This Rulemaking paragraph (f)(1) of this AD, any sensing § 39.13 [Amended] element or insulation muff is found to have Title 49 of the United States Code been installed incorrectly, before further ■ specifies the FAA’s authority to issue 2. The FAA amends § 39.13 by adding flight, bring the installation into compliant rules on aviation safety. Subtitle I, the following new AD: configuration, in accordance with Airbus section 106, describes the authority of 2009–15–09 Airbus: Amendment 39–15972. Service Bulletin A380–36–8004, dated the FAA Administrator. ‘‘Subtitle VII: Docket No. FAA–2009–0644; Directorate February 13, 2009. Aviation Programs,’’ describes in more Identifier 2009–NM–059–AD. (3) Submit a report of the findings (both detail the scope of the Agency’s positive and negative) of the inspection Effective Date required by paragraph (f)(1) of this AD to authority. (a) This airworthiness directive (AD) Airbus, Customer Services Directorate, 1 We are issuing this rulemaking under becomes effective August 5, 2009. Rond Point Maurice Bellonte, 31707 Blagnac the authority described in ‘‘Subtitle VII, Cedex France, as specified in Figures A– Part A, Subpart III, Section 44701: Affected ADs GBCAA and A–GBDAA of Airbus Service General requirements.’’ Under that (b) None. Bulletin A380–36–8004, dated February 13,

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2009, at the applicable time specified in Bellonte, 31707 Blagnac Cedex, France; ADDRESSES: You can get the service paragraph (f)(3)(i) or (f)(3)(ii) of this AD. telephone +33 562 110 253; Fax +33 562 110 information identified in this AD from (i) If the inspection was done on or after 307; e-mail account.airworth- Honeywell International Inc., P.O. Box the effective date of this AD: Submit the [email protected]; Internet http:// 52181, Phoenix, AZ 85072–2181, report within 30 days after the inspection. www.airbus.com. (ii) If the inspection was accomplished (3) You may review copies of the service U.S.A.; telephone (800) 601–3099 prior to the effective date of this AD: Submit information at the FAA, Transport Airplane (U.S.A.) or (602) 365–3099 the report within 30 days after the effective Directorate, 1601 Lind Avenue, SW., Renton, (International), Web site: http:// date of this AD. Washington. For information on the portal.honeywell.com/wps/portal/aero. availability of this material at the FAA, call FAA AD Differences The Docket Operations office is 425–227–1221 or 425–227–1152. located at Docket Management Facility, Note 1: This AD differs from the MCAI (4) You may also review copies of the U.S. Department of Transportation, 1200 and/or service information as follows: No service information that is incorporated by differences. reference at the National Archives and New Jersey Avenue, SE., West Building Records Administration (NARA). For Ground Floor, Room W12–140, Other FAA AD Provisions information on the availability of this Washington, DC 20590–0001. (g) The following provisions also apply to material at NARA, call 202–741–6030, or go FOR FURTHER INFORMATION CONTACT: _ this AD: to: http://www.archives.gov/federal register/ Robert Baitoo, Aerospace Engineer, Los code_of_federal_regulations/ (1) Alternative Methods of Compliance Angeles Aircraft Certification Office, (AMOCs): The Manager, International ibr_locations.html. Branch, ANM–116, Transport Airplane FAA, Transport Airplane Directorate, Issued in Renton, Washington, on July 6, 3960 Paramount Blvd., Lakewood, CA Directorate, FAA, has the authority to 2009. approve AMOCs for this AD, if requested 90712–4137; e-mail: using the procedures found in 14 CFR 39.19. Ali Bahrami, [email protected]; telephone (562) Send information to ATTN: Todd Thompson, Manager, Transport Airplane Directorate, 627–5245; fax (562) 627–5210. Aerospace Engineer, International Branch, Aircraft Certification Service. SUPPLEMENTARY INFORMATION: The FAA ANM–116, Transport Airplane Directorate, [FR Doc. E9–16763 Filed 7–20–09; 8:45 am] proposed to amend 14 CFR part 39 with FAA, 1601 Lind Avenue SW., Renton, BILLING CODE 4910–13–P Washington 98057–3356; telephone (425) a proposed AD. The proposed AD 227–1175; fax (425) 227–1149. Before using applies to Honeywell International Inc., any approved AMOC on any airplane to DEPARTMENT OF TRANSPORTATION T5313 and T5317 series turboshaft which the AMOC applies, notify your engines. We published the proposed AD principal maintenance inspector (PMI) or Federal Aviation Administration in the Federal Register on December 16, principal avionics inspector (PAI), as 2008 (73 FR 76291). That action appropriate, or lacking a principal inspector, proposed to require initial and your local Flight Standards District Office. 14 CFR Part 39 The AMOC approval letter must specifically repetitive visual inspections and initial reference this AD. [Docket No. FAA–2008–1311; Directorate and repetitive ultrasonic inspections of (2) Airworthy Product: For any Identifier 2007–NE–48–AD; Amendment 39– CCHs for cracks. 15976; AD 2009–15–13] requirement in this AD to obtain corrective Examining the AD Docket actions from a manufacturer or other source, RIN 2120–AA64 use these actions if they are FAA-approved. You may examine the AD docket on Corrective actions are considered FAA- Airworthiness Directives; Honeywell the Internet at http:// approved if they are approved by the State www.regulations.gov; or in person at the of Design Authority (or their delegated International Inc., T5313 and T5317 agent). You are required to assure the product Series Turboshaft Engines Docket Operations office between 9 a.m. is airworthy before it is returned to service. and 5 p.m., Monday through Friday, (3) Reporting Requirements: For any AGENCY: Federal Aviation except Federal holidays. The AD docket reporting requirement in this AD, under the Administration (FAA), DOT. contains this AD, the regulatory provisions of the Paperwork Reduction Act, ACTION: Final rule. evaluation, any comments received, and the Office of Management and Budget (OMB) other information. The street address for has approved the information collection SUMMARY: The FAA is adopting a new the Docket Operations office (telephone requirements and has assigned OMB Control airworthiness directive (AD) for (800) 647–5527) is provided in the Number 2120–0056. Honeywell International Inc., T5313 and ADDRESSES section. Comments will be Related Information T5317 series turboshaft engines. This available in the AD docket shortly after (h) Refer to Mandatory Continuing AD requires initial and repetitive visual receipt. inspections and initial and repetitive Airworthiness Information (MCAI) European Comments Aviation Safety Agency (EASA) ultrasonic inspections of combustion Airworthiness Directive 2009–0066, dated chamber housings (CCHs) for cracks. We provided the public the March 19, 2009; and Airbus Service Bulletin This AD results from eight instances of opportunity to participate in the A380–36–8004, dated February 13, 2009; for cracks in CCHs. Two of the instances development of this AD. We received no related information. resulted in an engine shutdown during comments on the proposal or on the Material Incorporated by Reference flight. We are issuing this AD to detect determination of the cost to the public. cracks in the CCH, which could result (i) You must use Airbus Service Bulletin Change to Optional Terminating Action A380–36–8004, dated February 13, 2009, to in rupture of the CCH, leading to loss of do the actions required by this AD, unless the engine power and damage to the Paragraph AD specifies otherwise. helicopter. We changed optional terminating (1) The Director of the Federal Register DATES: This AD becomes effective action paragraph (k) to state that approved the incorporation by reference of this service information under 5 U.S.C. August 25, 2009. The Director of the installation of a CCH P/N 1–130–610–19 552(a) and 1 CFR part 51. Federal Register approved the or 1–130–610R16 terminates the (2) For service information identified in incorporation by reference of certain inspection requirements of this AD. this AD, contact Airbus SAS—EANA publications listed in the regulations as These CCHs eliminate the failure mode (Airworthiness Office); 1 Rond Point Maurice of August 25, 2009. that cause cracking.

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Incorporation by Reference of Service Executive Order 13132. This AD will Applicability Bulletin Appendix not have a substantial direct effect on (c) This AD applies to Honeywell Since we issued the proposed AD, we the States, on the relationship between International Inc. T5313B, T5317A, T5317A– realized that we need to add the the national government and the States, 1, T5317B, and T5317BCV turboshaft engines incorporation by reference of the or on the distribution of power and with combustion chamber housing (CCH), Appendix of Honeywell International responsibilities among the various part numbers (P/Ns) 1–130–610–05, 1–130– Inc. Service Bulletin No. T53–0144, levels of government. 610–12, and 1–130–610–17, installed. These Revision 4, dated March 31, 2008 for For the reasons discussed above, I engines are installed on, but not limited to, operators to perform the ultrasonic certify that this AD: Bell 205 and 210 Series and Kaman K–1200 helicopters. inspections. We added that reference to (1) Is not a ‘‘significant regulatory inspection paragraphs (i) and (j) of this action’’ under Executive Order 12866; Unsafe Condition AD. (2) Is not a ‘‘significant rule’’ under (d) This AD results from eight instances of DOT Regulatory Policies and Procedures Conclusion cracks in CCHs. Two of the instances resulted (44 FR 11034, February 26, 1979); and in an engine shutdown during flight. We are We have carefully reviewed the (3) Will not have a significant issuing this AD to detect cracks in the CCH, available data and determined that air economic impact, positive or negative, which could result in rupture of the CCH, safety and the public interest require on a substantial number of small entities leading to loss of engine power and damage adopting the AD with the changes under the criteria of the Regulatory to the helicopter. described previously. Flexibility Act. Compliance Costs of Compliance We prepared a summary of the costs to comply with this AD and placed it in (e) You are responsible for having the We estimate that this AD will affect actions required by this AD performed within the AD Docket. You may get a copy of the compliance times specified unless the 100 engines installed on helicopters of this summary at the address listed U.S. registry. We also estimate that it actions have already been done. under ADDRESSES. will take about 3 work-hours per engine Initial Visual Inspection to perform the actions, and that the List of Subjects in 14 CFR Part 39 (f) For CCH, P/N 1–130–610–05 and 1– average labor rate is $80 per work-hour. Air transportation, Aircraft, Aviation 130–610–12, within 50 hours time-in-service No parts are required. Based on these safety, Incorporation by reference, (TIS) after the effective date of this AD, figures, we estimate the total cost of the Safety. inspect the area between points A and B AD to U.S. operators to be $24,000. around the entire housing circumference in Adoption of the Amendment Authority for This Rulemaking Figure 1 of this AD for weld repairs and cracks. Title 49 of the United States Code ■ Accordingly, under the authority delegated to me by the Administrator, (1) If you find any cracks, replace the CCH specifies the FAA’s authority to issue before further flight. Honeywell International rules on aviation safety. Subtitle I, the Federal Aviation Administration Inc. Alert Service Bulletin (ASB) T53–A0142, Section 106, describes the authority of amends 14 CFR part 39 as follows: Revision 1, dated September 14, 2006, the FAA Administrator. Subtitle VII, PART 39—AIRWORTHINESS contains additional guidance on replacing Aviation Programs, describes in more the CCH. detail the scope of the Agency’s DIRECTIVES (2) If you find any weld repairs, replace the authority. ■ 1. The authority citation for part 39 CCH within 100 hours TIS after the visual We are issuing this rulemaking under continues to read as follows: inspection. Honeywell International Inc. ASB the authority described in Subtitle VII, T53–A0142, Revision 1, dated September 14, Part A, Subpart III, Section 44701, Authority: 49 U.S.C. 106(g), 40113, 44701. 2006, contains additional guidance on replacing the CCH. ‘‘General requirements.’’ Under that § 39.13 [Amended] section, Congress charges the FAA with Repetitive Visual Inspections promoting safe flight of civil aircraft in ■ 2. The FAA amends § 39.13 by adding air commerce by prescribing regulations the following new airworthiness (g) For CCH, P/N 1–130–610–05 and 1– 130–610–12, inspect the area between points for practices, methods, and procedures directive: A and B around the entire housing the Administrator finds necessary for 2009–15–13 Honeywell International Inc. circumference in Figure 1 of this AD for safety in air commerce. This regulation (Formerly AlliedSignal and Textron- cracks within every 50 hours time-since-last is within the scope of that authority Lycoming): Amendment 39–15976. inspection. Honeywell International Inc. Docket No. FAA–2008–1311; Directorate because it addresses an unsafe condition Standard Practices Manual 70–20–02, SP Identifier 2007–NE–48–AD. that is likely to exist or develop on 1302, contains additional guidance on visual products identified in this rulemaking Effective Date inspection. action. (a) This airworthiness directive (AD) (h) If you find any cracks, replace the CCH before further flight. Honeywell International Regulatory Findings becomes effective August 25, 2009. Inc. ASB T53–A0142, Revision 1, dated We have determined that this AD will Affected ADs September 14, 2006, contains additional not have federalism implications under (b) None. guidance on replacing the CCH.

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Initial Ultrasonic Inspection (2) Within every 200 flights, if the last (n) Contact Robert Baitoo, Aerospace (i) Perform an ultrasonic inspection on the inspection had ultrasonic findings as defined Engineer, Los Angeles Aircraft Certification CCH. Use Honeywell International Inc. in paragraph 3.A.(2) or paragraph 3.A.(3) of Office, FAA, Transport Airplane Directorate, Service Bulletin (SB) No. T53–0144, Revision Honeywell International Inc. SB No. T53– 3960 Paramount Blvd., Lakewood, CA 4, dated March 31, 2008, section 3. 0144, Revision 4, dated March 31, 2008. 90712–4137; e-mail: [email protected]; telephone (562) 627–5245; fax (562) 627– Accomplishment Instructions and the SB Optional Terminating Action Appendix to perform the ultrasonic 5210, for more information about this AD. (k) Installation of a CCH P/N 1–130–610– inspection at the following compliance times. Material Incorporated by Reference (1) For CCH, P/N 1–130–610–05 and 1– 19 or 1–130–610R16, or an FAA approved 130–610–12, within 500 hours TIS or next equivalent part, terminates the inspection (o) You must use the service information hot section inspection, whichever occurs first requirements of this AD. specified in the following Table 1 to perform the ultrasonic inspections required by this after the effective date of this AD, but not to Alternative Methods of Compliance exceed 6 months after the effective date of AD. The Director of the Federal Register this AD. (l) The Manager, Los Angeles Aircraft approved the incorporation by reference of (2) For CCH, P/N 1–130–610–17, perform Certification Office, has the authority to the documents listed in the following Table at the first overhaul, but do not exceed 5,000 approve alternative methods of compliance 1 in accordance with 5 U.S.C. 552(a) and 1 hours or 11,000 cycles, after the effective date for this AD if requested using the procedures CFR part 51. Contact Honeywell International of this AD, whichever occurs first. found in 14 CFR 39.19. Inc., P.O. Box 52181, Phoenix, AZ 85072– 2181; telephone (800) 601–3099, Web site: Repetitive Ultrasonic Inspections Related Information http://portal.honeywell.com/wps/portal/aero, (j) Repeat the ultrasonic inspection on the (m) Honeywell International Inc. ASB T53– for a copy of this service information. You CCH using Honeywell International Inc. SB A0142, Revision 1, dated September 14, may review copies at the FAA, New England No. T53–0144, Revision 4, dated March 31, 2006, and Standard Practices Manual 70–20– Region, 12 New England Executive Park, 2008, section 3. Accomplishment 02, SP 1302, pertain to the subject of this AD. Burlington, MA; or at the National Archives Instructions and the SB Appendix at the Contact Honeywell International Inc., P.O. and Records Administration (NARA). For following compliance times: Box 52181, Phoenix, AZ 85072–2181; information on the availability of this (1) Within every 1,200 flights, defined as telephone (800) 601–3099, Web site: http:// material at NARA, call 202–741–6030, or go the cumulative number of landings, since the portal.honeywell.com/wps/portal/aero, for a to: http://www.archives.gov/federal-register/ last inspection; or copy of this service information. cfr/ibr-locations.html.

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TABLE 1—INCORPORATION BY REFERENCE

Honeywell International Inc. Service Bulletin No. Page Revision Date

T53–0144, Total Pages: 10 ...... ALL ...... 4 March 31, 2008. T53–0144, Appendix, Total Pages: 13 ...... ALL ...... C January 25, 2008.

Issued in Burlington, Massachusetts, on The Director of the Federal Register 57.11.04–01–02 of a fastener hole between July 14, 2009. approved the incorporation by reference stringer 38 and 39 at FR40 rear fitting web, Peter A. White, of certain publications listed in the AD a crack was found on an adjacent hole at vertical post Y1959 lower attachment on both Assistant Manager, Engine and Propeller as of August 5, 2009. sides. Directorate, Aircraft Certification Service. We must receive comments on this Other crack findings on this adjacent hole [FR Doc. E9–17146 Filed 7–20–09; 8:45 am] AD by August 20, 2009. have been reported on A330–300 and A340– BILLING CODE 4910–13–P ADDRESSES: You may send comments by 200/–300 aircraft as a result of sampling any of the following methods: inspections. • Federal eRulemaking Portal: Go to If not corrected, crack propagation could DEPARTMENT OF TRANSPORTATION http://www.regulations.gov. Follow the result in loss of the fuselage structural integrity. instructions for submitting comments. Federal Aviation Administration • In order to fulfil[l] the certification Fax: (202) 493–2251. requirements and following a fatigue analysis • Mail: U.S. Department of based on reported findings, a repetitive High 14 CFR Part 39 Transportation, Docket Operations, M– Frequency Eddy Current (HFEC) Rototest [Docket No. FAA–2009–0645; Directorate 30, West Building Ground Floor, Room inspection on the affected adjacent holes on Identifier 2009–NM–034–AD; Amendment W12–140, 1200 New Jersey Avenue, SE., both left hand (LH) and right hand (RH) sides 39–15973; AD 2009–15–10] Washington, DC 20590. between stringer 38 and 39 at FR40 rear • Hand Delivery: U.S. Department of fitting web is required by this AD and, in RIN 2120–AA64 case of crack finding, the associated Transportation, Docket Operations, M– corrective actions have to be applied. 30, West Building Ground Floor, Room Airworthiness Directives; Airbus Model The associated corrective actions are A330–301, –321, –322, –341, and –342 W12–40, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 oversizing the holes and performing an Series Airplanes, and Airbus Model additional rototest inspection for A340–211, –212, –213, –311, –312, and p.m., Monday through Friday, except Federal holidays. cracking. If the cracking is within –313 Series Airplanes certain limits, the corrective action is to Examining the AD Docket AGENCY: Federal Aviation install oversize fasteners. If the cracking Administration (FAA), Department of You may examine the AD docket on exceeds certain limits defined in the Transportation (DOT). the Internet at http:// service bulletin, the corrective action is contacting Airbus for repair instructions ACTION: Final rule; request for www.regulations.gov; or in person at the and doing the repair. You may obtain comments. Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, further information by examining the SUMMARY: We are adopting a new except Federal holidays. The AD docket MCAI in the AD docket. airworthiness directive (AD) for the contains this AD, the regulatory Relevant Service Information products listed above. This AD results evaluation, any comments received, and from mandatory continuing other information. The street address for Airbus has issued Mandatory Service airworthiness information (MCAI) the Docket Operations office (telephone Bulletin A330–57–3107, including originated by an aviation authority of (800) 647–5527) is in the ADDRESSES Appendices 01 and 02, dated October 7, another country to identify and correct section. Comments will be available in 2008; and Mandatory Service Bulletin an unsafe condition on an aviation the AD docket shortly after receipt. A340–57–4117, including Appendices 01 and 02, dated October 7, 2008. The product. The MCAI describes the unsafe FOR FURTHER INFORMATION CONTACT: condition as: actions described in this service Vladimir Ulyanov, Aerospace Engineer, information are intended to correct the During accomplishment of A330–300 International Branch, ANM–116, unsafe condition identified in the Airworthiness Limitation Item (ALI) task Transport Airplane Directorate, FAA, MCAI. 57.11.04–01–02 of a fastener hole between 1601 Lind Avenue, SW., Renton, stringer 38 and 39 at FR40 rear fitting web, Washington 98057–3356; telephone FAA’s Determination and Requirements a crack was found on an adjacent hole at (425) 227–1138; fax (425) 227–1149. of This AD vertical post Y1959 lower attachment on both sides. SUPPLEMENTARY INFORMATION: This product has been approved by Other crack findings on this adjacent hole Discussion the aviation authority of another have been reported on A330–300 and A340– country, and is approved for operation 200/–300 aircraft as a result of sampling The European Aviation Safety Agency in the United States. Pursuant to our inspections. (EASA), which is the Technical Agent bilateral agreement with the State of If not corrected, crack propagation could for the Member States of the European Design Authority, we have been notified result in loss of the fuselage structural Community, has issued EASA of the unsafe condition described in the integrity. Airworthiness Directive 2009–0001, MCAI and service information * * * * * dated January 8, 2009 (referred to after referenced above. We are issuing this This AD requires actions that are this as ‘‘the MCAI’’), to correct an unsafe AD because we evaluated all pertinent intended to address the unsafe condition for the specified products. information and determined the unsafe condition described in the MCAI. The MCAI states: condition exists and is likely to exist or DATES: This AD becomes effective During accomplishment of A330–300 develop on other products of the same August 5, 2009. Airworthiness Limitation Item (ALI) task type design.

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There are no products of this type detail the scope of the Agency’s Effective Date currently registered in the United States. authority. (a) This airworthiness directive (AD) However, this rule is necessary to We are issuing this rulemaking under becomes effective August 5, 2009. ensure that the described unsafe the authority described in Subtitle VII, Affected ADs condition is addressed if any of these Part A, Subpart III, Section 44701: (b) None. products are placed on the U.S. Register ‘‘General requirements.’’ Under that in the future. section, Congress charges the FAA with Applicability Differences Between the AD and the promoting safe flight of civil aircraft in (c) This AD applies to the airplanes MCAI or Service Information air commerce by prescribing regulations certificated in any category, identified in for practices, methods, and procedures paragraphs (c)(1) and (c)(2) of this AD. We have reviewed the MCAI and the Administrator finds necessary for (1) Airbus Model A330–301, –321, –322, related service information and, in safety in air commerce. This regulation –341, and –342 series airplanes, all serial general, agree with their substance. But numbers, except those on which Airbus is within the scope of that authority Modification 44360 has been embodied in we might have found it necessary to use because it addresses an unsafe condition production. different words from those in the MCAI that is likely to exist or develop on (2) Airbus Model A340–211, –212, –213, to ensure the AD is clear for U.S. products identified in this rulemaking –311, –312, and –313 series airplanes, all operators and is enforceable. In making action. serial numbers, except those on which these changes, we do not intend to differ Airbus Modification 44360 has been substantively from the information Regulatory Findings embodied in production. provided in the MCAI and related We determined that this AD will not Subject service information. have federalism implications under (d) Air Transport Association (ATA) of We might also have required different Executive Order 13132. This AD will America Code 57: Wings. actions in this AD from those in the not have a substantial direct effect on MCAI in order to follow FAA policies. the States, on the relationship between Reason Any such differences are highlighted in the national government and the States, (e) The mandatory continued airworthiness a Note within the AD. or on the distribution of power and information (MCAI) states: responsibilities among the various During accomplishment of A330–300 Airworthiness Limitation Item (ALI) task FAA’s Determination of the Effective levels of government. Date 57.11.04–01–02 of a fastener hole between For the reasons discussed above, I stringer 38 and 39 at FR40 rear fitting web, Since there are currently no domestic certify this AD: a crack was found on an adjacent hole at operators of this product, notice and 1. Is not a ‘‘significant regulatory vertical post Y1959 lower attachment on both opportunity for public comment before action’’ under Executive Order 12866; sides. issuing this AD are unnecessary. 2. Is not a ‘‘significant rule’’ under the Other crack findings on this adjacent hole DOT Regulatory Policies and Procedures have been reported on A330–300 and A340– Comments Invited 200/–300 aircraft as a result of sampling (44 FR 11034, February 26, 1979); and inspections. This AD is a final rule that involves 3. Will not have a significant If not corrected, crack propagation could requirements affecting flight safety, and economic impact, positive or negative, result in loss of the fuselage structural we did not precede it by notice and on a substantial number of small entities integrity. opportunity for public comment. We under the criteria of the Regulatory In order to fulfil[l] the certification invite you to send any written relevant Flexibility Act. requirements and following a fatigue analysis data, views, or arguments about this AD. We prepared a regulatory evaluation based on reported findings, a repetitive High Send your comments to an address of the estimated costs to comply with Frequency Eddy Current (HFEC) Rototest inspection on the affected adjacent holes on listed under the ADDRESSES section. this AD and placed it in the AD docket. Include ‘‘Docket No. FAA–2009–0645; both left hand (LH) and right hand (RH) sides List of Subjects in 14 CFR Part 39 between stringer 38 and 39 at (frame) FR40 Directorate Identifier 2009–NM–034– rear fitting web is required by this AD and, AD’’ at the beginning of your comments. Air transportation, Aircraft, Aviation in case of crack finding, the associated We specifically invite comments on the safety, Incorporation by reference, corrective actions have to be applied. overall regulatory, economic, Safety. * * * * * environmental, and energy aspects of Adoption of the Amendment The associated corrective actions are this AD. We will consider all comments oversizing the holes and performing an received by the closing date and may ■ Accordingly, under the authority additional rototest inspection for cracking. If amend this AD because of those delegated to me by the Administrator, the cracking is within certain limits, the comments. corrective action is to install oversize the FAA amends 14 CFR part 39 as fasteners. If the cracking exceeds certain We will post all comments we follows: receive, without change, to http:// limits defined in the service bulletin, the corrective action is contacting Airbus for www.regulations.gov, including any PART 39—AIRWORTHINESS repair instructions and doing the repair. personal information you provide. We DIRECTIVES will also post a report summarizing each Actions and Compliance ■ substantive verbal contact we receive 1. The authority citation for part 39 (f) Unless already done, do the following about this AD. continues to read as follows: actions. Authority: 49 U.S.C. 106(g), 40113, 44701. (1) Within the applicable time as specified Authority for This Rulemaking in Table 1 of this AD, or within 90 days after Title 49 of the United States Code § 39.13 [Amended] the effective date of this AD, whichever ■ 2. The FAA amends § 39.13 by adding occurs later: Perform a HFEC inspection by specifies the FAA’s authority to issue rototest for cracking of two holes on the left rules on aviation safety. Subtitle I, the following new AD: and right sides of the fuselage structure FR40 section 106, describes the authority of 2009–15–10 Airbus: Amendment 39–15973. rear fitting, in accordance with the the FAA Administrator. Subtitle VII: Docket No. FAA–2009–0645; Directorate Accomplishment Instructions of Airbus ‘‘Aviation Programs,’’ describes in more Identifier 2009–NM–034–AD. Mandatory Service Bulletin A330–57–3107,

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dated October 7, 2008; or Airbus Mandatory flight, in accordance with the Service Bulletin A340–57–4117, dated Service Bulletin A340–57–4117, dated Accomplishment Instructions of Airbus October 7, 2008; as applicable. October 7, 2008; as applicable. Do the Mandatory Service Bulletin A330–57–3107, associated corrective actions, before further dated October 7, 2008; or Airbus Mandatory

TABLE 1—COMPLIANCE TIMES

Threshold from the first flight Model (whichever occurs first)

A330–300 series airplanes ...... 17,700 total flight cycles or 53,100 total flight hours. A340–200 series airplanes with modification 41652S11888 ...... 11,900 total flight cycles or 80,700 total flight hours. A340–300 series airplanes with modification 41652S11888 ...... 11,900 total flight cycles or 80,700 total flight hours. A340–200 series airplanes without modification 41652S11888 ...... 14,500 total flight cycles or 98,200 total flight hours. A340–300 series airplanes without modification 41652S11888 ...... 12,700 total flight cycles or 85,900 total flight hours.

(2) Repeat the inspection required by this AD, in accordance with the dated October 7, 2008; or Airbus Mandatory paragraph (f)(1) of this AD within the Accomplishment Instructions of Airbus Service Bulletin A340–57–4117, dated applicable intervals as specified in Table 2 of Mandatory Service Bulletin A330–57–3107, October 7, 2008; as applicable.

TABLE 2—REPETITIVE INSPECTION INTERVALS

Model Intervals (not to exceed)

A330–300 series airplanes ...... 12,800 flight cycles or 38,500 flight hours, which- ever occurs first. A340–200 series airplanes with modification 41652S11888 ...... 8,600 flight cycles or 58,500 flight hours, which- ever occurs first. A340–300 series airplanes with modification 41652S11888 ...... 8,600 flight cycles or 58,500 flight hours, which- ever occurs first. A340–200 series airplanes without modification 41652S11888 ...... 10,500 flight cycles or 71,200 flight hours, which- ever occurs first. A340–300 series airplanes without modification 41652S11888 ...... 9,200 flight cycles or 62,300 flight hours, which- ever occurs first.

(3) Where Airbus Mandatory Service Renton, Washington 98057–3356; telephone Material Incorporated by Reference Bulletin A330–57–3107, dated October 7, (425) 227–1138; fax (425) 227–1149. Before (i) You must use Airbus Mandatory Service 2008; and Airbus Mandatory Service Bulletin using any approved AMOC on any airplane Bulletin A330–57–3107, including A340–57–4117, dated October 7, 2008; to which the AMOC applies, notify your Appendices 01 and 02, dated October 7, recommend contacting Airbus for principal maintenance inspector (PMI) or appropriate action: Before further flight, 2008; or Airbus Mandatory Service Bulletin contact Airbus for repair instructions and do principal avionics inspector (PAI), as A340–57–4117, including Appendices 01 the repair. appropriate, or lacking a principal inspector, and 02, dated October 7, 2008, as applicable, (4) Accomplishment of the inspections your local Flight Standards District Office. to do the actions required by this AD, unless required by paragraph (f)(1) of this AD before The AMOC approval letter must specifically the AD specifies otherwise. the effective date of this AD in accordance reference this AD. (1) The Director of the Federal Register with the instructions of Airbus Technical (2) Airworthy Product: For any approved the incorporation by reference of Disposition LR5710D07014394, Issue B, requirement in this AD to obtain corrective this service information under 5 U.S.C. dated September 24, 2008, is acceptable for actions from a manufacturer or other source, 552(a) and 1 CFR part 51. compliance with the requirements of use these actions if they are FAA-approved. paragraph (f)(1) of this AD. However, (2) For service information identified in Corrective actions are considered FAA- inspections must be repeated thereafter in this AD, contact Airbus SAS—Airworthiness accordance with the requirements of approved if they are approved by the State Office—EAL, 1 Rond Point Maurice Bellonte, paragraph (f)(2) of this AD. of Design Authority (or their delegated 31707 Blagnac Cedex, France; telephone +33 agent). You are required to assure the product 5 61 93 36 96; fax +33 5 61 93 45 80, e-mail FAA AD Differences is airworthy before it is returned to service. [email protected]; Note 1: This AD differs from the MCAI (3) Reporting Requirements: For any Internet http://www.airbus.com. and/or service information as follows: No reporting requirement in this AD, under the (3) You may review copies of the service differences. provisions of the Paperwork Reduction Act, information at the FAA, Transport Airplane the Office of Management and Budget (OMB) Directorate, 1601 Lind Avenue, SW., Renton, Other FAA AD Provisions has approved the information collection Washington. For information on the (g) The following provisions also apply to requirements and has assigned OMB Control availability of this material at the FAA, call this AD: Number 2120–0056. 425–227–1221 or 425–227–1152. (1) Alternative Methods of Compliance (4) You may also review copies of the (AMOCs): The Manager, International Related Information service information that is incorporated by Branch, ANM–116, Transport Airplane (h) Refer to MCAI European Aviation reference at the National Archives and Directorate, FAA, has the authority to Safety Agency Airworthiness Directive 2009– approve AMOCs for this AD, if requested Records Administration (NARA). For using the procedures found in 14 CFR 39.19. 0001, dated January 8, 2009; Airbus information on the availability of this Send information to ATTN: Vladimir Mandatory Service Bulletin A330–57–3107, material at NARA, call 202–741–6030, or go Ulyanov, Aerospace Engineer, International dated October 7, 2008; and Airbus Mandatory to: http://www.archives.gov/federal_register/ Branch, ANM–116, Transport Airplane Service Bulletin A340–57–4117, dated code_of_federal_regulations/ Directorate, FAA, 1601 Lind Avenue, SW., October 7, 2008; for related information. ibr_locations.html.

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Issued in Renton, Washington, on July 2, a.m. and 5 p.m., Monday through Comments 2009. Friday, except Federal holidays. The AD We provided the public the Ali Bahrami, docket contains this AD, the regulatory opportunity to participate in the Manager, Transport Airplane Directorate, evaluation, any comments received, and development of this AD. We have Aircraft Certification Service. other information. The address for the considered the comment received. [FR Doc. E9–16924 Filed 7–20–09; 8:45 am] Docket Office (telephone 800–647–5527) Boeing concurs with the content of the BILLING CODE 4910–13–P is the Document Management Facility, supplemental NPRM. U.S. Department of Transportation, Docket Operations, M–30, West Conclusion DEPARTMENT OF TRANSPORTATION Building Ground Floor, Room W12–140, We have carefully reviewed the 1200 New Jersey Avenue, SE., available data, including the comment Federal Aviation Administration Washington, DC 20590. received, and determined that air safety and the public interest require adopting 14 CFR Part 39 FOR FURTHER INFORMATION CONTACT: Sue Lucier, Aerospace Engineer, Propulsion the AD with the change described [Docket No. FAA–2008–0645; Directorate Branch, ANM–140S, FAA, Seattle previously. We have determined that Identifier 2007–NM–358–AD; Amendment Aircraft Certification Office, 1601 Lind this change will neither increase the 39–15969; AD 2009–15–06] Avenue, SW., Renton, Washington economic burden on any operator nor increase the scope of the AD. RIN 2120–AA64 98057–3356; telephone (425) 917–6438; fax (425) 917–6590. Costs of Compliance Airworthiness Directives; Boeing SUPPLEMENTARY INFORMATION: We estimate that this AD affects 21 Model 707 Airplanes and Model 720 airplanes of U.S. registry. We also and 720B Series Airplanes Discussion estimate that it takes 1 work-hour per AGENCY: Federal Aviation The FAA issued a supplemental product, per test, to comply with this Administration (FAA), Department of notice of proposed rulemaking (NPRM) AD. The average labor rate is $80 per Transportation (DOT). to amend 14 CFR part 39 to include an work-hour. Based on these figures, we ACTION: Final rule. AD that would apply to all Boeing estimate the cost of this AD to the U.S. Model 707 airplanes and Model 720 and operators to be $1,680, or $80 per SUMMARY: The FAA is adopting a new 720B series airplanes. That product, per test. airworthiness directive (AD) for all supplemental NPRM was published in Authority for This Rulemaking Boeing Model 707 airplanes and Model the Federal Register on December 10, 720 and 720B series airplanes. This AD 2008 (73 FR 75007). That supplemental Title 49 of the United States Code requires performing an operational test NPRM proposed to require performing specifies the FAA’s authority to issue of the engine fuel suction feed of the an operational test of the engine fuel rules on aviation safety. Subtitle I, fuel system, and other related testing suction feed of the fuel system, and Section 106, describes the authority of and corrective actions if necessary. This other related testing and corrective the FAA Administrator. Subtitle VII, AD results from a report of in-service actions if necessary. Aviation Programs, describes in more occurrences of loss of fuel system detail the scope of the Agency’s suction feed capability, followed by Explanation of Revised Service authority. total loss of of the fuel feed Information We are issuing this rulemaking under system. We are issuing this AD to detect the authority described in Subtitle VII, Boeing has published Revision 1 of Part A, Subpart III, Section 44701, and correct failure of the engine fuel Boeing 707 Service Bulletin A3527, suction feed capability of the fuel ‘‘General requirements.’’ Under that dated August 6, 2008. In the section, Congress charges the FAA with system, which could result in multi- supplemental NPRM, we referred to the engine flameout, inability to restart the promoting safe flight of civil aircraft in original issue of Boeing Alert 707 air commerce by prescribing regulations engines, and consequent forced landing Service Bulletin A3527, dated of the airplane. for practices, methods, and procedures November 7, 2007, as the appropriate the Administrator finds necessary for DATES: This AD becomes effective source of service information for safety in air commerce. This regulation August 25, 2009. accomplishing the proposed actions. is within the scope of that authority The Director of the Federal Register The procedures in Revision 1 of this because it addresses an unsafe condition approved the incorporation by reference service bulletin are essentially the same that is likely to exist or develop on of a certain publication listed in the AD as those in the original issue of this products identified in this rulemaking as of August 25, 2009. service bulletin. Revision 1 of this action. ADDRESSES: For service information service bulletin clarifies certain work identified in this AD, contact Boeing instructions and specifies that no Regulatory Findings Commercial Airplanes, Attention: Data further work is necessary for airplanes We have determined that this AD will & Services Management, P.O. Box 3707, on which the actions in the original not have federalism implications under MC 2H–65, Seattle, Washington 98124– issue were performed. Therefore, we Executive Order 13132. This AD will 2207; telephone 206–544–5000, have revised this AD to refer to Revision not have a substantial direct effect on extension 1, fax 206–766–5680; e-mail 1 of this service bulletin as the the States, on the relationship between [email protected]; Internet appropriate source of service the national government and the States, https://www.myboeingfleet.com. information. We have also added a new or on the distribution of power and paragraph (g) to this AD that specifies Examining the AD Docket responsibilities among the various that actions done before the effective levels of government. You may examine the AD docket on date of this AD in accordance with the For the reasons discussed above, I the Internet at http:// original issue of this service bulletin are certify that this AD: www.regulations.gov; or in person at the acceptable for compliance with the (1) Is not a ‘‘significant regulatory Docket Management Facility between 9 requirements of this AD. action’’ under Executive Order 12866;

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(2) Is not a ‘‘significant rule’’ under Operational Test/Other Specified and code_of_federal_regulations/ DOT Regulatory Policies and Procedures Corrective Actions ibr_locations.html. (44 FR 11034, February 26, 1979); and (f) Within 18 months after the effective Issued in Renton, Washington, on July 2, (3) Will not have a significant date of this AD: Perform an operational test 2009. economic impact, positive or negative, of the engine fuel suction feed of the fuel Ali Bahrami, system, and perform all other related testing Manager, Transport Airplane Directorate, on a substantial number of small entities and corrective actions, as applicable, before Aircraft Certification Service. under the criteria of the Regulatory further flight, in accordance with the Flexibility Act. Accomplishment Instructions of Boeing 707 [FR Doc. E9–16935 Filed 7–20–09; 8:45 am] We prepared a regulatory evaluation Service Bulletin A3527, Revision 1, dated BILLING CODE 4910–13–P of the estimated costs to comply with August 6, 2008. Repeat the operational test this AD and placed it in the AD docket. thereafter at intervals not to exceed 6,000 flight hours or 36 months, whichever occurs See the ADDRESSES section for a location DEPARTMENT OF TRANSPORTATION first. to examine the regulatory evaluation. Federal Aviation Administration Credit for Actions Done According to List of Subjects in 14 CFR Part 39 Previous Issue of Service Bulletin 14 CFR Part 39 Air transportation, Aircraft, Aviation (g) Actions done before the effective date safety, Incorporation by reference, of this AD in accordance with Boeing Alert [Docket No. FAA–2007–28988; Directorate Safety. 707 Service Bulletin A3527, dated November Identifier 2007–NM–047–AD; Amendment 7, 2007, are acceptable for compliance with 39–15975; AD 2009–15–12] Adoption of the Amendment the initial test and related testing and corrective actions required by paragraph (f) of RIN 2120–AA64 ■ this AD. Accordingly, under the authority Airworthiness Directives; Boeing delegated to me by the Administrator, Alternative Methods of Compliance Model 747–400 and –400D Series the FAA amends 14 CFR part 39 as (AMOCs) Airplanes follows: (h)(1) The Manager, Seattle Aircraft AGENCY: Federal Aviation PART 39—AIRWORTHINESS Certification Office (ACO), FAA, ATTN: Sue Lucier, Aerospace Engineer, Propulsion Administration (FAA), DOT. DIRECTIVES Branch, ANM–140S, FAA, Seattle ACO, 1601 ACTION: Final rule. ■ Lind Avenue, SW., Renton, Washington 1. The authority citation for part 39 98057–3356; telephone (425) 917–6438; fax SUMMARY: We are adopting a new continues to read as follows: (425) 917–6590, has the authority to approve airworthiness directive (AD) for certain Authority: 49 U.S.C. 106(g), 40113, 44701. AMOCs for this AD, if requested using the Boeing Model 747–400 and –400D series procedures found in 14 CFR 39.19. airplanes. This AD requires installing § 39.13 [Amended] (2) To request a different method of new relays to allow the flightcrew to compliance or a different compliance time ■ turn off electrical power to the in-flight 2. The Federal Aviation for this AD, follow the procedures in 14 CFR Administration (FAA) amends § 39.13 entertainment (IFE) system and other 39.19. Before using any approved AMOC on non-essential passenger cabin systems by adding the following new any airplane to which the AMOC applies, airworthiness directive (AD): notify your appropriate principal inspector through the left and right utility bus (PI) in the FAA Flight Standards District switches, and other specified actions. 2009–15–06 Boeing: Amendment 39–15969. Office (FSDO), or lacking a PI, your local This AD results from an IFE systems Docket No. FAA–2008–0645; Directorate FSDO. review. We are issuing this AD to ensure Identifier 2007–NM–358–AD. that the flightcrew is able to turn off Material Incorporated by Reference Effective Date electrical power to the IFE system and (i) You must use Boeing 707 Service (a) This AD becomes effective August 25, other non-essential passenger cabin Bulletin A3527, Revision 1, dated August 6, 2009. systems through utility bus switches in 2008, to do the actions required by this AD, the flight compartment, in the event of Affected ADs unless the AD specifies otherwise. smoke or fumes. The flightcrew’s (b) None. (1) The Director of the Federal Register approved the incorporation by reference of inability to turn off electrical power to Applicability this service information under 5 U.S.C. the IFE system and other non-essential (c) This AD applies to all Boeing Model 552(a) and 1 CFR part 51. passenger cabin systems could result in 707–100 long body, –200, –100B long body, (2) For service information identified in the inability to control smoke or fumes and –100B short body series airplanes; Model this AD, contact Boeing Commercial in the airplane flight deck or passenger 707–300, –300B, –300C, and –400 series Airplanes, Attention: Data & Services cabin during a non-normal or airplanes; and Model 720 and 720B series Management, P.O. Box 3707, MC 2H–65, emergency situation. Seattle, Washington 98124–2207; telephone airplanes; certificated in any category. DATES: 206–544–5000, extension 1, fax 206–766– This AD is effective August 25, Unsafe Condition 5680; e-mail [email protected]; 2009. (d) This AD results from a report of in- Internet https://www.myboeingfleet.com. The Director of the Federal Register service occurrences of loss of fuel system (3) You may review copies of the service approved the incorporation by reference suction feed capability, followed by total loss information at the FAA, Transport Airplane of a certain publication listed in this AD of pressure of the fuel feed system. We are Directorate, 1601 Lind Avenue, SW., Renton, as of August 25, 2009. issuing this AD to detect and correct failure Washington. For information on the ADDRESSES: For service information of the engine fuel suction feed of the fuel availability of this material at the FAA, call identified in this AD, contact Boeing system, which could result in multi-engine 425–227–1221 or 425–227–1152. Commercial Airplanes, Attention: Data flameout, inability to restart the engines, and (4) You may also review copies of the & Services Management, P.O. Box 3707, consequent forced landing of the airplane. service information that is incorporated by reference at the National Archives and MC 2H–65, Seattle, Washington 98124– Compliance Records Administration (NARA). For 2207; telephone 206–544–5000, (e) Comply with this AD within the information on the availability of this extension 1; fax 206–766–5680; e-mail compliance times specified, unless already material at NARA, call 202–741–6030, or go [email protected]; Internet done. to: http://www.archives.gov/federal_register/ https://www.myboeingfleet.com.

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Examining the AD Docket We agree to provide clarification. We asked Boeing to remove all of You may examine the AD docket on understand that operators are able to Lufthansa’s airplanes from the the Internet at http:// turn off 115 VAC power under the effectivity of Boeing Service Bulletin www.regulations.gov; or in person at the existing configuration for Model 747 747–24–2246, dated October 6, 2005. Docket Management Facility between 9 series airplanes, and that Boeing Service We refer to that service bulletin for the a.m. and 5 p.m., Monday through Bulletin 747–24–2246, dated October 6, applicability of this AD. We infer that Lufthansa requests that Friday, except Federal holidays. The AD 2005, provides changes to also allow for we remove airplanes modified in docket contains this AD, the regulatory turning off 28 VDC power. Therefore, the wording of the NPRM is appropriate accordance with STC ST01507SE from evaluation, any comments received, and and not misleading, since the intent of the applicability of this AD. We disagree other information. The address for the this AD is to ensure that all electrical with revising the applicability of this Docket Office (telephone 800–647–5527) power is removed from the affected AD because we have determined that, is the Document Management Facility, systems through the use of the right and based upon the delivered airplane U.S. Department of Transportation, left utility bus switches. No change to configuration, the unsafe condition of Docket Operations, M–30, West the AD is necessary in this regard. this AD applies to the airplanes Building Ground Floor, Room W12–140, identified in the effectivity of Boeing 1200 New Jersey Avenue, SE., Request To Clarify Instructions for Service Bulletin 747–24–2246, dated Washington, DC 20590. Airplanes Modified After Delivery October 6, 2005. STC ST01507SE, at the FOR FURTHER INFORMATION CONTACT: Joe Boeing requests that we clarify, in the time of its issuance, was not evaluated Salameh, Aerospace Engineer, Systems ‘‘Relevant Service Information’’ section as an AMOC to the requirements of this and Equipment Branch, ANM–130S, of the NPRM, that instructions in Boeing AD. The design and installation aspects FAA, Seattle Aircraft Certification service bulletins are based upon the of the STC must be reviewed under an Office, 1601 Lind Avenue, SW., Renton, delivered product configuration. Boeing AMOC request submitted by either the Washington 98057–3356; telephone states that it is not obvious to operators STC applicant or the operator. Under 425–917–6454; fax 425–917–6590. that post-production modifications to the provisions of paragraph (g) of this SUPPLEMENTARY INFORMATION: the IFE system might require an AD, we will consider requests for alternative method of compliance approval of an AMOC if sufficient data Discussion (AMOC) to comply with the are submitted to substantiate that the We issued a notice of proposed requirements of the AD. design change would provide an rulemaking (NPRM) to amend 14 CFR We agree that operators might not be acceptable level of safety. We have not part 39 to include an airworthiness able to accomplish the requirements of changed the AD in this regard. directive (AD) that would apply to this AD on airplanes that have been certain Boeing Model 747–400 and modified or altered after airplane Recommendation To Consider This AD –400D series airplanes. That NPRM was delivery. Section 39.17 of the Federal an Interim Action published in the Federal Register on Aviation Regulations (14 CFR 39.17) IFC recommends that we consider the August 16, 2007 (72 FR 45968). That specifically addresses this situation. If a requirements of this AD an interim NPRM proposed to require installing change in a product affects one’s ability action. IFC states the final action for new relays to allow the flightcrew to to accomplish the actions required by an eliminating the unsafe condition should turn off electrical power to the in-flight AD, then a request for FAA approval of be to move the components and wire entertainment (IFE) system and other an AMOC addressing that configuration bundles from the cabin area to areas non-essential passenger cabin systems must be submitted in accordance with where they will not be subjected to through the left and right utility bus the procedures specified in paragraph damage and abuse. IFC states that the switches, and other specified actions. (g) of this AD. According to 14 CFR cabin sidewalls and the area under the 39.17, the request should include the cabin floor offer much safer Comments specific actions that are proposed to environments for these items. We gave the public the opportunity to address the unsafe condition, unless one We disagree with considering this AD participate in developing this AD. We can show that the change eliminated the an interim action. The intent of the AD considered the comments received from unsafe condition. No change to the AD is to address the unsafe condition, not the three commenters. is necessary in this regard. to provide design guidelines for installation of the IFE system. We have Request To Remove Certain Airplanes Support for the NPRM determined that the requirements of this From the Applicability Inflight Canada (IFC) strongly AD adequately address the unsafe supports the intent of the NPRM. Lufthansa states that it has installed condition. Should new reports or data two additional Heath Techna power arise that show that the unsafe Request To Clarify Service Bulletin distribution panels (P94 and P9100) on Instructions condition has not been adequately all of its affected airplanes, in addressed by the requirements of this Boeing requests that we clarify, in the accordance with Supplemental Type AD, we could consider further ‘‘Relevant Service Information’’ section Certificate (STC) ST01507SE, issued rulemaking. No change to the AD is of the NPRM, that Boeing Service February 11, 2005, amended September necessary in this regard. Bulletin 747–24–2246, dated October 6, 7, 2006. Lufthansa states that, on these 2005, provides procedures for turning modified airplanes, power can be turned Recommendation To Remove Power off 28 VDC power to the IFE system. off by right and left utility bus switches From All Components in the Cabin Boeing states that all Model 747–400 located in the cockpit. Lufthansa also IFC recommends that the requirement series airplanes have 115 VAC control, states that, additionally, the cabin crew to be able to remove power from the IFE and that representing the proposed is able to turn off power to the IFE and system be expanded to include all actions as addressing electrical power, passenger seats using a master switch components using power in the in general, might be misleading to located in the purser station of the passenger cabin. IFC states that, in most operators regarding the scope of the cabin. Since the modification addresses cases, the In Seat Power Systems (ISPS) action. the intent of the NPRM, Lufthansa has and seat adjustment systems carry much

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higher power loads than do the IFE Recommendation To Allow Operators is within the scope of that authority components. To Develop Other because it addresses an unsafe condition We disagree that the scope of the AD IFC states that Boeing Service Bulletin that is likely to exist or develop on needs to be expanded because the ISPS 747–24–2246, dated October 6, 2005, products identified in this rulemaking and seat adjustment systems are which is referenced as the only action. addressed already as other non-essential acceptable means of complying with the Regulatory Findings cabin systems in Boeing Service intent of the NPRM, provides only Bulletin 747–24–2246, dated October 6, limited protection from the myriad of This AD will not have federalism 2005. No change to the AD is necessary electrical hazards in the cabin. IFC implications under Executive Order in this regard. recommends that we establish the 13132. This AD will not have a desired functionality of a system for substantial direct effect on the States, on Recommendation To Locate Primary dealing with the electrical hazards, and the relationship between the national Switch in the Passenger Cabin then allow operators to develop government and the States, or on the distribution of power and IFC recommends that the primary workable solutions using these in responsibilities among the various switch to isolate the IFE system and combination with other designs to meet levels of government. other non-essential cabin systems be the requirements. For the reasons discussed above, I located in the cabin, rather than in the We disagree because we are issuing certify that this AD: cockpit. IFC states that, in most cases, this AD to address a specific unsafe (1) Is not a ‘‘significant regulatory the cabin crew will be the first to notice condition, and we have determined that action’’ under Executive Order 12866, a problem, and that the additional time the service information that is currently (2) Is not a ‘‘significant rule’’ under needed to notify the flightcrew will available adequately addresses that DOT Regulatory Policies and Procedures allow the problem to worsen if not unsafe condition. However, under the (44 FR 11034, February 26, 1979), and immediately addressed by the trained provisions of paragraph (g) of this AD, (3) Will not have a significant cabin crew. IFC states that, if desired, a we will consider requests for approval economic impact, positive or negative, secondary switch could also be located of an AMOC if sufficient data are submitted to substantiate that the design on a substantial number of small entities in the cockpit. change would provide an acceptable under the criteria of the Regulatory We disagree because Boeing’s design level of safety. We have not changed the Flexibility Act. approach adequately addresses the AD in this regard. You can find our regulatory unsafe condition; the flightcrew can Conclusion evaluation and the estimated costs of shut off power to any non-essential compliance in the AD Docket. system in the event of smoke or fire in We reviewed the relevant data, the flight deck or passenger cabin. considered the comments received, and List of Subjects in 14 CFR Part 39 However, under the provisions of determined that air safety and the Air transportation, Aircraft, Aviation paragraph (g) of this AD, we will public interest require adopting the AD safety, Incorporation by reference, consider requests for approval of an as proposed. Safety. AMOC if sufficient data are submitted to Costs of Compliance substantiate that the design change Adoption of the Amendment There are about 490 airplanes of the would provide an acceptable level of ■ Accordingly, under the authority affected design in the worldwide fleet. safety. We have not changed the AD in delegated to me by the Administrator, this regard. This AD affects about 62 airplanes of U.S. registry. The required actions take the FAA amends 14 CFR part 39 as Recommendation to Automatically about 123 work hours per airplane, at an follows: Turn Off Power in an Emergency average labor rate of $80 per work hour. PART 39—AIRWORTHINESS IFC recommends that the system, Required parts cost between $9,412 and DIRECTIVES $11,936 per airplane. Based on these which will provide the IFE shut-off ■ capability, also be required to figures, the estimated cost of the AD for 1. The authority citation for part 39 automatically turn off power in the U.S. operators is up to $1,350,112, or up continues to read as follows: event of certain emergencies, such as to $21,776 per airplane. Authority: 49 U.S.C. 106(g), 40113, 44701. deployment of masks or loss of Authority for This Rulemaking § 39.13 [Amended] a generator. IFC states that this Title 49 of the United States Code ■ 2. The FAA amends § 39.13 by adding capability would allow the flightcrew specifies the FAA’s authority to issue the following new AD: and cabin crew to perform more rules on aviation safety. Subtitle I, important tasks without having to be section 106, describes the authority of 2009–15–12 Boeing: Amendment 39–15975. concerned with turning off power to the the FAA Administrator. ‘‘Subtitle VII: Docket No. FAA–2007–28988; IFE system. Aviation Programs,’’ describes in more Directorate Identifier 2007–NM–047–AD. We disagree with requiring the system detail the scope of the Agency’s Effective Date to automatically turn off power to the authority. (a) This airworthiness directive (AD) is IFE system and other non-essential We are issuing this rulemaking under effective August 25, 2009. cabin systems in the event of certain the authority described in ‘‘Subtitle VII, emergencies because, currently, there is Part A, Subpart III, Section 44701: Affected ADs no regulatory requirement to have General requirements.’’ Under that (b) None. power turned off automatically. We are section, Congress charges the FAA with Applicability issuing this AD to address a specific promoting safe flight of civil aircraft in (c) This AD applies to Boeing Model 747– unsafe condition, and the areas air commerce by prescribing regulations 400 and –400D series airplanes, certificated discussed by IFC fall outside the for practices, methods, and procedures in any category; as identified in Boeing requirements of this AD. We have not the Administrator finds necessary for Service Bulletin 747–24–2246, dated October changed the AD in this regard. safety in air commerce. This regulation 6, 2005.

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Unsafe Condition 5680; e-mail [email protected]; of the Federal Register as of July 21, (d) This AD results from an in-flight Internet https://www.myboeingfleet.com. 2009. entertainment (IFE) systems review. We are (3) You may review copies of the service information at the FAA, Transport Airplane ADDRESSES: Availability of matters issuing this AD to ensure that the flightcrew incorporated by reference in the is able to turn off electrical power to the IFE Directorate, 1601 Lind Avenue, SW., Renton, system and other non-essential passenger Washington. For information on the amendment is as follows: cabin systems through utility bus switches in availability of this material at the FAA, call For Examination— the flight compartment, in the event of smoke 425–227–1221 or 425–227–1152. 1. FAA Rules Docket, FAA or fumes. The flightcrew’s inability to turn (4) You may also review copies of the Headquarters Building, 800 off electrical power to the IFE system and service information that is incorporated by Independence Avenue, SW., other non-essential passenger cabin systems reference at the National Archives and Washington, DC 20591; could result in the inability to control smoke Records Administration (NARA). For 2. The FAA Regional Office of the or fumes in the airplane flight deck or information on the availability of this region in which the affected airport is passenger cabin during a non-normal or material at NARA, call 202–741–6030, or go _ located; emergency situation. to: http://www.archives.gov/federal register/ code_of_federal_regulations/ 3. The National Flight Procedures Compliance ibr_locations.html. Office, 6500 South MacArthur Blvd., (e) You are responsible for having the Oklahoma City, OK 73169 or Issued in Renton, Washington, on July 6, 4. The National Archives and Records actions required by this AD performed within 2009. the compliance times specified, unless the Administration (NARA). For actions have already been done. Ali Bahrami, information on the availability of this Manager, Transport Airplane Directorate, Install New Relays material at NARA, call 202–741–6030, Aircraft Certification Service. or go to: http://www.archives.gov/ (f) Within 60 months after the effective [FR Doc. E9–17118 Filed 7–20–09; 8:45 am] federal_register/ date of this AD, install new relays to allow BILLING CODE 4910–13–P code_of_federal_regulations/ the flightcrew to turn off electrical power to _ the IFE system and other non-essential ibr locations.html. Availability—All SIAPs and Takeoff passenger cabin systems through the left and DEPARTMENT OF TRANSPORTATION right utility bus switches and do all other Minimums and ODPs are available online free of charge. Visit http:// specified actions as applicable, by Federal Aviation Administration accomplishing all the applicable actions www.nfdc.faa.gov to register. specified in the Accomplishment Additionally, individual SIAP and 14 CFR Part 97 Instructions of Boeing Service Bulletin 747– Takeoff Minimums and ODP copies may 24–2246, dated October 6, 2005. The other be obtained from: specified actions must be done before further [Docket No. 30676; Amdt. No. 3330] 1. FAA Public Inquiry Center (APA– flight after installing the new relays. Standard Instrument Approach 200), FAA Headquarters Building, 800 Alternative Methods of Compliance Procedures, and Takeoff Minimums Independence Avenue, SW., (AMOCs) and Obstacle Departure Procedures; Washington, DC 20591; or (g)(1) The Manager, Seattle Aircraft Miscellaneous Amendments 2. The FAA Regional Office of the Certification Office (ACO), FAA, ATTN: Joe region in which the affected airport is Salameh, Aerospace Engineer, Systems and AGENCY: Federal Aviation located. Equipment Branch, ANM–130S, FAA, Seattle Administration (FAA), DOT. ACO, 1601 Lind Avenue, SW., Renton, FOR FURTHER INFORMATION CONTACT: Washington 98057–3356; telephone 425– ACTION: Final rule. Harry J. Hodges, Flight Procedure 917–6454; fax 425–917–6590; has the Standards Branch (AFS–420), Flight SUMMARY: authority to approve AMOCs for this AD, if This establishes, amends, Technologies and Programs Divisions, requested using the procedures found in 14 suspends, or revokes Standard Flight Standards Service, Federal CFR 39.19. Instrument Approach Procedures Aviation Administration, Mike (2) To request a different method of (SIAPs) and associated Takeoff Monroney Aeronautical Center, 6500 compliance or a different compliance time Minimums and Obstacle Departure South MacArthur Blvd., Oklahoma City, for this AD, follow the procedures in 14 CFR Procedures for operations at certain OK 73169 (Mail Address: P.O. Box 39.19. Before using any approved AMOC on airports. These regulatory actions are any airplane to which the AMOC applies, 25082, Oklahoma City, OK 73125); needed because of the adoption of new Telephone: (405) 954–4164. notify your principal maintenance inspector or revised criteria, or because of changes (PMI) or principal avionics inspector (PAI), SUPPLEMENTARY INFORMATION: This rule occurring in the National Airspace as appropriate, or lacking a principal amends Title 14 of the Code of Federal System, such as the commissioning of inspector, your local Flight Standards District Regulations, Part 97 (14 CFR part 97), by new navigational facilities, adding new Office. The AMOC approval letter must establishing, amending, suspending, or obstacles, or changing air traffic specifically reference this AD. revoking SIAPS, Takeoff Minimums requirements. These changes are Material Incorporated by Reference and/or ODPS. The complete regulators designed to provide safe and efficient description of each SIAP and its (h) You must use Boeing Service Bulletin use of the navigable airspace and to associated Takeoff Minimums or ODP 747–24–2246, dated October 6, 2005, to do promote safe flight operations under the actions required by this AD, unless the for an identified airport is listed on FAA instrument flight rules at the affected AD specifies otherwise. form documents which are incorporated airports. (1) The Director of the Federal Register by reference in this amendment under 5 approved the incorporation by reference of DATES: This rule is effective July 21, U.S.C. 552(a), 1 CFR part 51, and 14 this service information under 5 U.S.C. 2009. The compliance date for each CFR 97.20. The applicable FAA Forms 552(a) and 1 CFR part 51. SIAP, associated Takeoff Minimums, are FAA Forms 8260–3, 8260–4, 8260– (2) For service information identified in this AD, contact Boeing Commercial and ODP is specified in the amendatory 5, 8260–15A, and 8260–15B when Airplanes, Attention: Data & Services provisions. required by an entry on 8260–15A. Management, P.O. Box 3707, MC 2H–65, The incorporation by reference of The large number of SIAPs, Takeoff Seattle, Washington 98124–2207; telephone certain publications listed in the Minimums and ODPs, in addition to 206–544–5000, extension 1; fax 206–766– regulations is approved by the Director their complex nature and the need for

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a special format make publication in the ‘‘significant regulatory action’’ under Foley, AL, Foley Muni, NDB RWY 18, Amdt Federal Register expensive and Executive Order 12866; (2) is not a 1 impractical. Furthermore, airmen do not ‘‘significant rule’’ under DOT Foley, AL, Foley Muni, RNAV (GPS) RWY use the regulatory text of the SIAPs, 18, Amdt 1 Regulatory Policies and Procedures (44 Foley, AL, Foley Muni, RNAV (GPS) RWY Takeoff Minimums or ODPs, but instead FR 11034; February 26, 1979); and (3) 36, Amdt 1 refer to their depiction on charts printed does not warrant preparation of a Foley, AL, Foley Muni, Takeoff Minimums by publishers of aeronautical materials. regulatory evaluation as the anticipated and Obstacle DP, Amdt 1 The advantages of incorporation by impact is so minimal. For the same Mobile, AL, Mobile Downtown, ILS OR LOC reference are realized and publication of reason, the FAA certifies that this RWY 32, Amdt 2 the complete description of each SIAP, amendment will not have a significant Mobile, AL, Mobile Downtown, RNAV (GPS) Takeoff Minimums and ODP listed on economic impact on a substantial RWY 32, Amdt 1 FAA forms is unnecessary. This Mobile, AL, Mobile Downtown, VOR RWY number of small entities under the 32, Amdt 11B amendment provides the affected CFR criteria of the Regulatory Flexibility Act. Texarkana, AR, Texarkana Rgnl—Webb sections and specifies the types of SIAPs List of Subjects in 14 CFR Part 97 Field, ILS OR LOC RWY 22, Amdt 16 and the effective dates of the associated Texarkana, AR, Texarkana Rgnl—Webb Takeoff Minimums and ODPs. This Air Traffic Control, Airports, Field, LOC BC RWY 4, Amdt 13 amendment also identifies the airport Incorporation by reference, and Flagstaff, AZ, Flagstaff Pulliam, GPS RWY and its location, the procedure, and the Navigation (Air). 21, Orig–B, CANCELLED amendment number. Flagstaff, AZ, Flagstaff Pulliam, RNAV (GPS) Issued in Washington, DC, on July 10, Y RWY 21, Orig The Rule 2009. Flagstaff, AZ, Flagstaff Pulliam, RNAV (GPS) John M. Allen, Z RWY 21, Orig This amendment to 14 CFR part 97 is Director, Flight Standards Service. Grand Junction, CO, Grand Junction Rgnl, effective upon publication of each RNAV (GPS) RWY 11, Amdt 1 separate SIAP, Takeoff Minimums and Adoption of the Amendment Chester, CT, Chester, RNAV (GPS) RWY 17, ODP as contained in the transmittal. ■ Orig Some SIAP and Takeoff Minimums and Accordingly, pursuant to the authority Chester, CT, Chester, RNAV (GPS) RWY 35, textual ODP amendments may have delegated to me, Title 14, Code of Orig been issued previously by the FAA in a Federal Regulations, Part 97 (14 CFR Chester, CT, Chester, VOR–A, Amdt 4 Flight Data Center (FDC) Notice to part 97) is amended by establishing, Chester, CT, Chester, VOR/DME RNAV OR amending, suspending, or revoking GPS RWY 17, Amdt 2, CANCELLED Airmen (NOTAM) as an emergency Chester, CT, Chester, VOR/DME RNAV OR action of immediate flight safety relating Standard Instrument Approach Procedures and/or Takeoff Minimums GPS RWY 35, Amdt 1A, CANCELLED directly to published aeronautical Immokalee, FL, Immokalee Rgnl, RNAV charts. The circumstances which and/or Obstacle Departure Procedures (GPS) RWY 9, Orig created the need for some SIAP and effective at 0902 UTC on the dates Immokalee, FL, Immokalee Rgnl, RNAV Takeoff Minimums and ODP specified, as follows: (GPS) RWY 18, Orig amendments may require making them Immokalee, FL, Immokalee Rgnl, RNAV PART 97—STANDARD INSTRUMENT (GPS) RWY 27, Orig effective in less than 30 days. For the APPROACH PROCEDURES remaining SIAPS and Takeoff Immokalee, FL, Immokalee Rgnl, RNAV ■ (GPS) RWY 36, Orig Minimums and ODPS, an effective date 1. The authority citation for part 97 Immokalee, FL, Immokalee Rgnl, Takeoff at least 30 days after publication is continues to read as follows: Minimums and Obstacle DP, Amdt 1 provided. Authority: 49 U.S.C. 106(g), 40103, 40106, Immokalee, FL, Immokalee Rgnl, VOR RWY Further, the SIAPs and Takeoff 40113, 40114, 40120, 44502, 44514, 44701, 18, Amdt 6 Minimums and ODPS contained in this 44719, 44721–44722. Orlando, FL, Orlando Intl, ILS OR LOC RWY amendment are based on the criteria 17L, ILS RWY17L (CAT II), Amdt 1 contained in the U.S. Standard for ■ 2. Part 97 is amended to read as Orlando, FL, Orlando Intl, ILS OR LOC RWY Terminal Instrument Procedures follows: 17R, ILS RWY 17R (CAT II), Amdt 5 (TERPS). In developing these SIAPS and Orlando, FL, Orlando Intl, ILS OR LOC RWY Effective 27 AUG 2009 18R, Amdt 8 Takeoff Minimums and ODPs, the Deering, AK, Deering, Takeoff Minimums Orlando, FL, Orlando Intl, ILS OR LOC RWY TERPS criteria were applied to the and Obstacle DP, Amdt 1 35L, ILS RWY 35L (CAT II), ILS RWY 35L conditions existing or anticipated at the Egegik, AK, Egegik, Takeoff Minimums and (CAT III), Amdt 6 affected airports. Because of the close Obstacle DP, Orig Orlando, FL, Orlando Intl, ILS OR LOC RWY and immediate relationship between Kaltag, AK, Kaltag, RNAV (GPS) RWY 21, 35R, ILS RWY 35R (CAT II), Amdt 1 these SIAPs, Takeoff Minimums and Amdt 1 Orlando, FL, Orlando Intl, ILS OR LOC RWY ODPs, and safety in air commerce, I find Koliganek, AK, Koliganek, Takeoff 36R, ILS RWY 36R (CAT II), ILS RWY 36R Minimums and Obstacle DP, Amdt 2 that notice and public procedures before (CAT III), Amdt 9 Koyuk, AK, Koyuk Alfred Adams, Takeoff Orlando, FL, Orlando Intl, RNAV (GPS) RWY adopting these SIAPS, Takeoff Minimums and Obstacle DP, Amdt 1 17L, Orig-B, CANCELLED Minimums and ODPs are impracticable Scammon Bay, AK, Scammon Bay, Takeoff Orlando, FL, Orlando Intl, RNAV (GPS) RWY and contrary to the public interest and, Minimums and Obstacle DP, Amdt 1 17R, Orig-C, CANCELLED where applicable, that good cause exists Shaktoolik, AK, Shaktoolik, RNAV (GPS) Orlando, FL, Orlando Intl, RNAV (GPS) RWY for making some SIAPs effective in less RWY 14, Orig 18L, Amdt 1, CANCELLED than 30 days. Shaktoolik, AK, Shaktoolik, RNAV (GPS) Orlando, FL, Orlando Intl, RNAV (GPS) RWY RWY 32, Orig 18R, Orig-A, CANCELLED Conclusion Shaktoolik, AK, Shaktoolik, Takeoff Orlando, FL, Orlando Intl, RNAV (GPS) RWY The FAA has determined that this Minimums and Obstacle DP, Orig 35L, Orig-B, CANCELLED Teller, AK, Teller, Takeoff Minimums and regulation only involves an established Orlando, FL, Orlando Intl, RNAV (GPS) RWY Obstacle DP, Orig 35R, Orig-A, CANCELLED body of technical regulations for which Enterprise, AL, Enterprise Muni, RNAV Orlando, FL, Orlando Intl, RNAV (GPS) RWY frequent and routine amendments are (GPS) RWY 5, Amdt 1 36L, Amdt 1, CANCELLED necessary to keep them operationally Enterprise, AL, Enterprise Muni, Takeoff Orlando, FL, Orlando Intl, RNAV (GPS) RWY current. It, therefore—(1) Is not a Minimums and Obstacle DP, Orig 36R, Orig-B, CANCELLED

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Orlando, FL, Orlando Intl, RNAV (GPS) Y Oakdale, LA, Allen Parish, RNAV (GPS) Tioga, ND, Tioga Muni, GPS RWY 30, Orig, RWY 17L, Orig RWY 36, Amdt 2 CANCELLED Orlando, FL, Orlando Intl, RNAV (GPS) Y Shreveport, LA, Shreveport Rgnl, ILS OR Tioga, ND, Tioga Muni, RNAV (GPS) RWY RWY 17R, Orig LOC RWY 14, ILS RWY 14 30, Orig Orlando, FL, Orlando Intl, RNAV (GPS) Y (CAT II), Amdt 25 Tioga, ND, Tioga Muni, Takeoff Minimums RWY 18L, Orig Shreveport, LA, Shreveport Rgnl, ILS OR and Obstacle DP, Orig Orlando, FL, Orlando Intl, RNAV (GPS) Y LOC RWY 32, Amdt 5 Minden, NE, Pioneer Village Field, GPS RWY RWY 18R, Orig Shreveport, LA, Shreveport Rgnl, RNAV 34, Orig-A, CANCELLED Orlando, FL, Orlando Intl, RNAV (GPS) Y (GPS) RWY 5, Amdt 1 Minden, NE, Pioneer Village Field, RNAV RWY 35L, Orig Shreveport, LA, Shreveport Rgnl, RNAV (GPS) RWY 16, Orig Orlando, FL, Orlando Intl, RNAV (GPS) Y (GPS) RWY 14, Amdt 1 Minden, NE, Pioneer Village Field, RNAV RWY 35R, Orig Shreveport, LA, Shreveport Rgnl, RNAV (GPS) RWY 34, Orig Orlando, FL, Orlando Intl, RNAV (GPS) Y (GPS) RWY 32, Amdt 1 Minden, NE, Pioneer Village Field, Takeoff RWY 36L, Orig Marshfield, MA, Marshfield Muni-George Minimums and Obstacle DP, Amdt 1 Orlando, FL, Orlando Intl, RNAV (GPS) Y Harlow Field, NDB RWY 24, Amdt 2 Rushville, NE, Modisett, RNAV(GPS)RY 14, RWY 36R, Orig Ocean City, MD, Ocean City Muni, RNAV Orig Orlando, FL, Orlando Intl, RNAV (RNP) Z (GPS) RWY 32, Orig Rushville, NE, Modisett, RNAV(GPS)RY 32, RWY 17L, Orig Pontiac, MI, Oakland County Intl, ILS OR Orig Orlando, FL, Orlando Intl, RNAV (RNP) Z LOC RWY 9R, Amdt 12 Rushville, NE, Modisett, Takeoff Minimums RWY 17R, Orig Winona, MN, Winona Muni-Max Conrad Fld, and Obstacle DP, Orig Orlando, FL, Orlando Intl, RNAV (RNP) Z LOC RWY 30, Orig Manchester, NH, Manchester, RNAV (GPS) RWY 18L, Orig Winona, MN, Winona Muni-Max Conrad Fld, RWY 6, Amdt 2 Orlando, FL, Orlando Intl, RNAV (RNP) Z NDB RWY 30, Orig Manchester, NH, Manchester, RNAV (GPS) RWY 18R, Orig Maryville, MO, Northwest Missouri Rgnl, RWY 35, Orig Orlando, FL, Orlando Intl, RNAV (RNP) Z RNAV (GPS) RWY 32, Orig Old Bridge, NJ, Old Bridge, RNAV (GPS) RWY 35L, Orig New Madrid, MO, County Memorial, RNAV RWY 6, Orig Orlando, FL, Orlando Intl, RNAV (RNP) Z (GPS) RWY 18, Orig Old Bridge, NJ, Old Bridge, RNAV (GPS) RWY 35R, Orig New Madrid, MO, County Memorial, RNAV RWY 24, Orig Orlando, FL, Orlando Intl, RNAV (RNP) Z (GPS) RWY 36, Orig Old Bridge, NJ, Old Bridge, Takeoff RWY 36L, Orig New Madrid, MO, County Memorial, VOR/ Minimums and Obstacle DP, Amdt 1 Orlando, FL, Orlando Intl, RNAV (RNP) Z DME–A, Amdt 4 Old Bridge, NJ, Old Bridge, VOR RWY 24, RWY 36R, Orig New Madrid, MO, County Memorial, VOR/ Amdt 4 St Marys, GA, St Marys, RNAV (GPS) RWY DME RNAV OR GPS RWY 18, Woodbine, NJ, Woodbine Muni, GPS RWY 1, 13, Amdt 1 Amdt 1B, CANCELLED Orig-B, CANCELLED St Marys, GA, St Marys, RNAV (GPS) RWY St Louis, MO, Spirit of St Louis, ILS OR LOC Woodbine, NJ, Woodbine Muni, GPS RWY 31, Amdt 1 RWY 8R, Amdt 14 19, Orig-B, CANCELLED Boise, ID, Boise Air Terminal/Gowen Fld, St Louis, MO, Spirit of St Louis, NDB RWY Woodbine, NJ, Woodbine Muni, RNAV (GPS) RNAV (GPS) Y RWY 10L, Amdt 2A 26L, Amdt 3 RWY 1, Orig Boise, ID, Boise Air Terminal/Gowen Fld, St Louis, MO, Spirit of St Louis, RNAV (GPS) Woodbine, NJ, Woodbine Muni, RNAV (GPS) RNAV (GPS) Y RWY 10R, Amdt 1A RWY 8L, Orig RWY 19, Orig Boise, ID, Boise Air Terminal/Gowen Fld, St Louis, MO, Spirit of St Louis, RNAV (GPS) Woodbine, NJ, Woodbine Muni, Takeoff RNAV (GPS) Y RWY 28L, Amdt 4 RWY 8R, Orig Minimums and Obstacle DP, Amdt 2 Boise, ID, Boise Air Terminal/Gowen Fld, St Louis, MO, Spirit of St Louis, RNAV (GPS) Woodbine, NJ, Woodbine Muni, VOR–A, RNAV (GPS) Y RWY 28R, Amdt 3 RWY 26L, Orig Amdt 1 Boise, ID, Boise Air Terminal/Gowen Fld, St Louis, MO, Spirit of St Louis, RNAV (GPS) Farmington, NM, Four Corner Rgnl, RNAV RNAV (RNP) Z RWY 10L, Orig RWY 26R, Orig (GPS) RWY 23, Amdt 1 Boise, ID, Boise Air Terminal/Gowen Fld, Sullivan, MO, Sullivan Rgnl, GPS RWY 24, Hobbs, NM, Lea County Rgnl, RNAV (GPS) RNAV (RNP) Z RWY 10R, Orig Orig CANCELLED RWY 3, Amdt 1 Boise, ID, Boise Air Terminal/Gowen Fld, Sullivan, MO, Sullivan Rgnl, RNAV (GPS) Socorro, NM, Socorro Muni, GPS RWY 33, RNAV (RNP) Z RWY 28L, Orig RWY 6, Orig Orig-B, CANCELLED Boise, ID, Boise Air Terminal/Gowen Fld, Sullivan, MO, Sullivan Rgnl, RNAV (GPS) Socorro, NM, Socorro Muni, RNAV (GPS) Y RNAV (RNP) Z RWY 28R, Orig RWY 24, Orig RWY 33, Orig Peoria, IL, Mount Hawley Auxiliary, RNAV Aberdeen/Amory, MS, Monroe County, Socorro, NM, Socorro Muni, RNAV (GPS) Z (GPS) RWY 18, Orig RNAV (GPS) RWY 18, Amdt 1 RWY 33, Orig Peoria, IL, Mount Hawley Auxiliary, Takeoff Aberdeen/Amory, MS, Monroe County, Socorro, NM, Socorro Muni, Takeoff Minimums and Obstacle DP, Amdt 2 RNAV (GPS) RWY 36, Amdt 1 Minimums and Obstacle DP, Amdt 3 Peoria, IL, Mount Hawley Auxiliary, VOR–A, Aberdeen/Amory, MS, Monroe County, VOR Saratoga Springs, NY, Saratoga County, Amdt 4 RWY 18, Amdt 7 RNAV (GPS) RWY 23, Amdt 1 North Vernon, IN, North Vernon, GPS RWY Missoula, MT, Missoula Intl, RNAV (GPS) Y Ottawa, OH, Putnam County, RNAV (GPS) 23, Orig-A, CANCELLED RWY 11, Amdt 1 RWY 9, Orig North Vernon, IN, North Vernon, NDB OR Missoula, MT, Missoula Intl, RNAV (RNP) Ottawa, OH, Putnam County, RNAV (GPS) GPS RWY 5, Amdt 5, CANCELLED RWY 29, Orig RWY 27, Orig North Vernon, IN, North Vernon, RNAV Missoula, MT, Missoula Intl, RNAV (RNP) Z Ottawa, OH, Putnam County, Takeoff (GPS) RWY 5, Orig RWY 11, Orig Minimums and Obstacle DP, Orig North Vernon, IN, North Vernon, RNAV Devils Lake, ND, Devils Lake Rgnl, GPS RWY Ottawa, OH, Putnam County, VOR RWY 27, (GPS) Y RWY 23, Orig 13, Orig-A, CANCELLED Amdt 2 North Vernon, IN, North Vernon, RNAV Devils Lake, ND, Devils Lake Rgnl, GPS RWY Wilmington, OH, Airborne Airpark, RNAV (GPS) Z RWY 23, Orig 31, Orig-A, CANCELLED (GPS) RWY 4L, Orig North Vernon, IN, North Vernon, Takeoff Devils Lake, ND, Devils Lake Rgnl, RNAV Wilmington, OH, Airborne Airpark, RNAV Minimums and Obstacle DP, Orig (GPS) RWY 13, Orig (GPS) RWY 22R, Orig South Bend, IN, South Bend Rgnl, RNAV Devils Lake, ND, Devils Lake Rgnl, RNAV Wilmington, OH, Airborne Airpark, Takeoff (GPS) RWY 36, Amdt 1 (GPS) RWY 31, Orig Minimums and Obstacle DP, Orig South Bend, IN, South Bend Rgnl, Takeoff Jamestown, ND, Jamestown Rgnl, RNAV Wilmington, OH, Airborne Airpark, VOR/ Minimums and Obstacle DP, Amdt 9 (GPS) RWY 31, Orig DME RWY 22R, Amdt 5 Oakdale, LA, Allen Parish, RNAV (GPS) Jamestown, ND, Jamestown Rgnl, VOR RWY Claremore, OK, Claremore Rgnl, RNAV (GPS) RWY 18, Orig 31, Amdt 9 RWY 17, Orig

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Claremore, OK, Claremore Rgnl, RNAV (GPS) Obstacle DP, Orig designed to provide safe and efficient RWY 35, Amdt 2 Midlothian/Waxahachie, TX, Mid-Way Rgnl, use of the navigable airspace and to Claremore, OK, Claremore Rgnl, Takeoff GPS RWY 36, Orig, CANCELLED promote safe flight operations under Minimum and Obstacle DP, Orig Midlothian/Waxahachie, TX, Mid-Way Rgnl, instrument flight rules at the affected Tulsa, OK, Tulsa Intl, RNAV (GPS) RWY 18R, RNAV (GPS) RWY 36, Orig Amdt 1 Wharton, TX, Wharton Rgnl, RNAV (GPS) airports. Tulsa, OK, Tulsa Intl, RNAV (GPS) RWY 26, RWY 14, Orig DATES: This rule is effective July 21, Amdt 2 Wharton, TX, Wharton Rgnl, RNAV (GPS) 2009. The compliance date for each Tulsa, OK, Tulsa Intl, RNAV (GPS) RWY 36R, RWY 32, Orig SIAP, associated Takeoff Minimums, Amdt 1 Wharton, TX, Wharton Rgnl, Takeoff Woodward, OK, West Woodward, GPS RWY Minimums and Obstacle DP, Orig and ODP is specified in the amendatory 17, Orig, CANCELLED Wharton, TX, Wharton Rgnl, VOR/DME–A, provisions. Woodward, OK, West Woodward, GPS RWY Amdt 5 The incorporation by reference of 35, Amdt 1, CANCELLED Platteville, WI, Platteville Muni, GPS RWY certain publications listed in the Woodward, OK, West Woodward, RNAV 33, Orig, CANCELLED regulations is approved by the Director (GPS) RWY 17, Orig Platteville, WI, Platteville Muni, RNAV (GPS) of the Federal Register as of July 21, Woodward, OK, West Woodward, RNAV RWY 7, Orig 2009. (GPS) RWY 35, Orig Platteville, WI, Platteville Muni, RNAV (GPS) Pottsville, PA, Schuylkill County/Joe Zerbey, RWY 15, Orig ADDRESSES: Availability of matter RNAV (GPS) RWY 11, Amdt 1 Platteville, WI, Platteville Muni, RNAV (GPS) incorporated by reference in the Pottsville, PA, Schuylkill County/Joe Zerbey, RWY 25, Orig amendment is as follows: RNAV (GPS) RWY 29, Amdt 1 Platteville, WI, Platteville Muni, RNAV (GPS) For Examination— Pottsville, PA, Schuylkill County/Joe Zerbey, RWY 33, Orig 1. FAA Rules Docket, FAA Takeoff Minimums and Obstacle DP, Amdt Platteville, WI, Platteville Muni, Takeoff Headquarters Building, 800 2 Minimums and Obstacle DP, Orig Independence Avenue, SW., York, PA, York, GPS RWY 35, Amdt 2A, Wheeling, WV, Wheeling Ohio Co, ILS OR CANCELLED LOC RWY 3, Amdt 22 Washington, DC 20591; York, PA, York, RNAV (GPS) RWY 17, Amdt Wheeling, WV, Wheeling Ohio Co, RNAV 2. The FAA Regional Office of the 1 (GPS) RWY 3, Orig region in which the affected airport is York, PA, York, RNAV (GPS) RWY 35, Orig Wheeling, WV, Wheeling Ohio Co, RNAV located; Columbia, SC, Columbia Metropolitan, ILS (GPS) RWY 16, Orig 3. The National Flight Procedures OR LOC RWY 11, ILS RWY 11 (CAT II), Wheeling, WV, Wheeling Ohio Co, RNAV Office, 6500 South MacArthur Blvd., ILS RWY 11 (CAT III), Amdt 15 (GPS) RWY 21, Orig-A Oklahoma City, OK 73169; or Columbia, SC, Columbia Metropolitan, Wheeling, WV, Wheeling Ohio Co, RNAV 4. The National Archives and Records RNAV (GPS) RWY 5, Amdt 2 (GPS) RWY 34, Orig Kemmerer, WY, Kemmerer Muni, RNAV Administration (NARA). For Columbia, SC, Columbia Metropolitan, information on the availability of this RNAV (GPS) RWY 11, Amdt 1 (GPS) RWY 16, Amdt 1 Columbia, SC, Columbia Metropolitan, Kemmerer, WY, Kemmerer Muni, RNAV material at NARA, call 202–741–6030, RNAV (GPS) RWY 23, Amdt 2 (GPS) RWY 34, Amdt 1 or go to: http://www.archives.gov/ Columbia, SC, Columbia Metropolitan, Kemmerer, WY, Kemmerer Muni, Takeoff federal_register/ RNAV (GPS) RWY 29, Amdt 1 Minimums and Obstacle DP, Amdt 1 code_of_federal_regulations/ _ Columbia, SC, Columbia Metropolitan, [FR Doc. E9–17110 Filed 7–20–09; 8:45 am] ibr locations.html. Takeoff Minimums and Obstacle DP, Amdt BILLING CODE 4910–13–P Availability—All SIAPs are available 1 online free of charge. Visit nfdc.faa.gov Columbia, SC, Columbia Metropolitan, VOR– to register. Additionally, individual A, Amdt 16 SIAP and Takeoff Minimums and ODP Aberdeen, SD, Aberdeen Rgnl, RNAV (GPS) DEPARTMENT OF TRANSPORTATION RWY 13, Orig copies may be obtained from: Aberdeen, SD, Aberdeen Rgnl, RNAV (GPS) 14 CFR Part 97 1. FAA Public Inquiry Center (APA– 200), FAA Headquarters Building, 800 RWY 31, Orig [Docket No. 30677; Amdt. No. 3331] Huron, SD, Huron Rgnl, ILS OR LOC RWY Independence Avenue, SW., 12, Amdt 10 Standard Instrument Approach Washington, DC 20591; or Huron, SD, Huron Rgnl, NDB RWY 12, Amdt Procedures, and Takeoff Minimums 2. The FAA Regional Office of the 20C, CANCELLED and Obstacle Departure Procedures; region in which the affected airport is Huron, SD, Huron Rgnl, RNAV (GPS) RWY located. 12, Orig Miscellaneous Amendments FOR FURTHER INFORMATION CONTACT: Huron, SD, Huron Rgnl, Takeoff Minimums AGENCY: Federal Aviation and Obstacle DP, Amdt 5 Administration (FAA), DOT. Harry J. Hodges, Flight Procedure Huron, SD, Huron Rgnl, VOR RWY 12, Amdt Standards Branch (AFS–420) Flight ACTION: Final rule. 22 Technologies and Programs Division, Camden, TN, Benton County, RNAV (GPS) SUMMARY: This rule establishes, amends, Flight Standards Service, Federal RWY 4, Orig Aviation Administration, Mike Camden, TN, Benton County, RNAV (GPS) suspends, or revokes Standard RWY 22, Orig Instrument Approach Procedures Monroney Aeronautical Center, 6500 Camden, TN, Benton County, Takeoff (SIAPs) and associated Takeoff South MacArthur Blvd., Oklahoma City, Minimums and Obstacle DP, Amdt 1 Minimums and Obstacle Departure OK 73169 (Mail Address: P.O. Box Camden, TN, Benton County, VOR/DME Procedures for operations at certain 25082, Oklahoma City, OK 73125) RWY 4, Amdt 4 airports. These regulatory actions are telephone: (405) 954–4164. Memphis, TN, Memphis Intl, RNAV (RNP) X needed because of the adoption of new SUPPLEMENTARY INFORMATION: This rule RWY 18R, Orig-A or revised criteria, or because of changes amends Title 14, Code of Federal Fort Stockton, TX, Fort Stockton-Pecos County, RNAV (GPS) RWY 12, Amdt 1 occurring in the National Airspace Regulations, Part 97 (14 CFR part 97) by Fort Stockton, TX, Fort Stockton-Pecos System, such as the commissioning of amending the referenced SIAPs. The County, RNAV (GPS) RWY 30, Amdt 1 new navigational facilities, adding new complete regulatory description of each Fort Stockton, TX, Fort Stockton-Pecos obstacles, or changing air traffic SIAP is listed on the appropriate FAA County, Takeoff Minimums and requirements. These changes are Form 8260, as modified by the National

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Flight Data Center (FDC)/Permanent only to specific conditions existing at List of Subjects in 14 CFR Part 97 Notice to Airmen (P–NOTAM), and is the affected airports. All SIAP Air Traffic Control, Airports, incorporated by reference in the amendments in this rule have been Incorporation by reference, and amendment under 5 U.S.C. 552(a), 1 previously issued by the FAA in a FDC Navigation (Air). CFR part 51, and § 97.20 of Title 14 of NOTAM as an emergency action of the Code of Federal Regulations. immediate flight safety relating directly Issued in Washington, DC, on July 10, 2009. The large number of SIAPs, their to published aeronautical charts. The complex nature, and the need for a circumstances which created the need John M. Allen, special format make their verbatim for all these SIAP amendments requires Director, Flight Standards Service. publication in the Federal Register making them effective in less than 30 Adoption of the Amendment expensive and impractical. Further, days. airmen do not use the regulatory text of ■ Accordingly, pursuant to the authority the SIAPs, but refer to their graphic Because of the close and immediate delegated to me, Title 14, Code of depiction on charts printed by relationship between these SIAPs and Federal regulations, Part 97, 14 CFR part publishers of aeronautical materials. safety in air commerce, I find that notice 97, is amended by amending Standard Thus, the advantages of incorporation and public procedure before adopting Instrument Approach Procedures, by reference are realized and these SIAPs are impracticable and effective at 0901 UTC on the dates publication of the complete description contrary to the public interest and, specified, as follows: of each SIAP contained in FAA form where applicable, that good cause exists documents is unnecessary. This for making these SIAPs effective in less PART 97—STANDARD INSTRUMENT amendment provides the affected CFR than 30 days. APPROACH PROCEDURES sections and specifies the types of SIAP Conclusion ■ and the corresponding effective dates. 1. The authority citation for part 97 continues to read as follows: This amendment also identifies the The FAA has determined that this airport and its location, the procedure regulation only involves an established Authority: 49 U.S.C. 106(g), 40103, 40106, and the amendment number. body of technical regulations for which 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721–44722. The Rule frequent and routine amendments are ■ This amendment to 14 CFR part 97 is necessary to keep them operationally 2. Part 97 is amended to read as effective upon publication of each current. It, therefore—(1) is not a follows: ‘‘significant regulatory action’’ under separate SIAP as amended in the §§ 97.23, 97.25, 97.27, 97.29, 97.31, 97.33 transmittal. For safety and timeliness of Executive Order 12866; (2) is not a and 97.35 [Amended] change considerations, this amendment ‘‘significant rule’’ under DOT regulatory Policies and Procedures (44 FR 11034; By amending: § 97.23 VOR, VOR/ incorporates only specific changes DME, VOR or TACAN, and VOR/DME contained for each SIAP as modified by February 26, 1979); and (3) does not warrant preparation of a regulatory or TACAN; § 97.25 LOC, LOC/DME, FDC/P–NOTAMs. LDA, LDA/DME, SDF, SDF/DME; The SIAPs, as modified by FDC evaluation as the anticipated impact is § 97.27 NDB, NDB/DME; § 97.29 ILS, P–NOTAM, and contained in this so minimal. For the same reason, the ILS/DME, MLS, MLS/DME, MLS/RNAV; amendment are based on the criteria FAA certifies that this amendment will § 97.31 SIAPs; § 97.33 RNAV contained in the U.S. Standard for not have a significant economic impact SIAPs; and § 97.35 COPTER SIAPs, Terminal Instrument Procedures on a substantial number of small entities Identified as follows: (TERPS). In developing these changes to under the criteria of the Regulatory SIAPs, the TERPS criteria were applied Flexibility Act. * * * Effective Upon Publication

FDC date State City Airport FDC No. Subject

06/26/09 ... CT GROTON/NEW LONDON ...... GROTON-NEW LONDON ...... 9/5843 RNAV (GPS) RWY 5, ORIG–A. 06/26/09 ... CT GROTON/NEW LONDON ...... GROTON-NEW LONDON ...... 9/5844 RNAV (GPS) RWY 23, ORIG. 06/29/09 ... WA RICHLAND ...... RICHLAND ...... 9/6164 RNAV (GPS) RWY 19, ORIG–A. 06/29/09 ... WA RICHLAND ...... RICHLAND ...... 9/6165 RNAV (GPS) RWY 26, ORIG–A. 07/01/09 ... CA CRESCENT CITY ...... MC NAMARA FIELD ...... 9/6439 VOR/DME RWY 11, AMDT 12. 07/01/09 ... WA BELLINGHAM ...... BELLINGHAM INTL ...... 9/6502 RNAV (GPS) RWY 34, ORIG. 07/01/09 ... CO HOLYOKE ...... HOLYOKE ...... 9/6548 RNAV (GPS) RWY 14, ORIG. 07/01/09 ... CO HOLYOKE ...... HOLYOKE ...... 9/6549 RNAV (GPS) RWY 32, ORIG. 07/07/09 ... OH PORT CLINTON ...... CARL R. KELLER FIELD ...... 9/7334 NDB RWY 27, AMDT 13. 07/09/09 ... CA COLUSA ...... COLUSA COUNTY ...... 9/7756 GPS RWY 31, ORIG–A. 07/09/09 ... CA COLUSA ...... COLUSA COUNTY ...... 9/7757 GPS RWY 13, ORIG. 07/09/09 ... CA COLUSA ...... COLUSA COUNTY ...... 9/7758 VOR–A, AMDT 4C.

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[FR Doc. E9–17107 Filed 7–20–09; 8:45 am] Fax: (202) 482–3355. Please alert the Commerce, State, Defense, Energy and, BILLING CODE 4910–13–P Regulatory Policy Division, by calling where appropriate, the Treasury, makes (202) 482–2440, if you are faxing all decisions to make additions to, comments. removals from or changes to the Entity DEPARTMENT OF COMMERCE Mail or Hand Delivery/Courier: List. The ERC is chaired by the Timothy Mooney, U.S. Department of Department of Commerce and makes all Bureau of Industry and Security Commerce, Bureau of Industry and decisions to add an entry to the Entity Security, Regulatory Policy Division, List by majority vote and all decisions 15 CFR Part 744 14th St. & Pennsylvania Avenue, NW., to remove or modify an entry by unanimous vote. [Docket No. 090414651–91046–01] Room 2705, Washington, DC 20230, Attn: RIN 0694–AE59. The ERC made a determination to add RIN 0694–AE59 Send comments regarding the thirteen persons to the Entity List on the collection of information associated basis of § 744.11 (License Requirements Addition and Removal of Certain with this rule, including suggestions for that Apply to Entities Acting Contrary to Persons on the Entity List: Addition of reducing the burden, to Jasmeet K. the National Security or Foreign Policy Persons Acting Contrary to the Seehra, Office of Management and Interests of the United States) of the National Security or Foreign Policy Budget (OMB), by e-mail to EAR. The thirteen entities added to the Interests of the United States; Removal [email protected], or by Entity List consist of three persons in of Persons Based on ERC Annual fax to (202) 395–7285; and to the Germany, five persons in Hong Kong Review and Removal Requests; and Regulatory Policy Division, Bureau of and five persons in Ireland. Entry Modified for Purposes of Industry and Security, Department of The ERC reviewed § 744.11(b) Clarification Commerce, 14th St., & Pennsylvania (Criteria for revising the Entity List) in making the determination to add these AGENCY: Bureau of Industry and Avenue, NW., Room 2705, Washington, DC 20230. Comments on this collection persons to the Entity List. Under that Security, Commerce. paragraph, entities for which there is ACTION: Final rule. of information should be submitted separately from comments on the final reasonable cause to believe, based on SUMMARY: This rule amends the Export rule (i.e., RIN 0694–AE59)—all specific and articulable facts, that the Administration Regulations (EAR) by comments on the latter should be entity has been involved, is involved, or adding thirteen additional persons to submitted by one of the three methods poses a significant risk of being or the Entity List (Supplement No. 4 to outlined above. becoming involved in activities that are contrary to the national security or Part 744) on the basis of Section 744.11 FOR FURTHER INFORMATION CONTACT: of the EAR. The persons that are added foreign policy interests of the United Elizabeth Scott Sangine, End-User States and those acting on behalf of such to the Entity List have been determined Review Committee, Office of the entities may be added to the Entity List by the U.S. Government to be acting Assistant Secretary, Export pursuant to § 744.11. contrary to the national security or Administration, Bureau of Industry and Paragraph (b) of § 744.11 includes an foreign policy interests of the United Security, Department of Commerce, illustrative list of activities that could be States. This rule also amends the Export Phone: (202) 482–3343, Fax: (202) 482– contrary to the national security or Administration Regulations by 3911, E-mail: [email protected]. foreign policy interests of the United removing three persons from the Entity SUPPLEMENTARY INFORMATION: States. This illustrative list of activities List. BIS removes one of the three of concern is described under Background persons from the Entity List as a result paragraphs (b)(1)–(b)(5). The persons of a determination made by the United The Entity List provides notice to the being added to the Entity List under this States Government during the annual public that certain exports and reexports rule have been determined by the ERC review of the Entity List conducted by to parties identified on the Entity List to be involved in activities that could be the End-User Review Committee (ERC). require a license from the Bureau of contrary to the national security or The two remaining persons are removed Industry and Security (BIS) and that foreign policy interests of the United from the Entity List in response to a availability of License Exceptions in States. request for removal. Finally, this rule such transactions is limited. BIS first In addition, the ERC made a makes a correction to the address of one published the Entity List in February determination to remove three entities person listed on the Entity List. The 1997 as part of its efforts to inform the from the Entity List. As outlined in Entity List provides notice to the public public of entities that have engaged in Supplement No. 5 to part 744, under the that certain exports and reexports to activities that could result in an last paragraph of that Supplement, the parties identified on the Entity List increased risk of diversion of exported ERC conducts a systematic review of the require a license from the Bureau of and reexported items to weapons of Entity List. Based upon the results of Industry and Security (BIS) and that mass destruction (WMD) programs. that annual review, the ERC made a availability of License Exceptions in Since its initial publication, grounds for determination that one person in such transactions is limited. inclusion on the Entity List have should be removed from the DATES: Effective Date: This rule is expanded to activities sanctioned by the Entity List, because this person is not effective July 21, 2009. Although there Department of State and activities engaged in activities that would warrant is no formal comment period, public contrary to U.S. national security and/ including the person on the Entity List. comments on this regulation are or foreign policy interests. The ERC also made a determination to welcome on a continuing basis. remove two other persons, located in ERC Entity List Decisions ADDRESSES: You may submit comments, the United Arab Emirates, as a result of identified by RIN 0694–AE59, by any of Pursuant to Supplement No. 5 to part a request for removal submitted by these the following methods: 744 (Procedures for End-User Review two listed entities. Based upon the E-mail: [email protected]. Committee Entity List Decisions) of the review of the information provided in Include ‘‘RIN 0694-AE59’’ in the subject EAR, the ERC, composed of the removal request, in accordance with line of the message. representatives of the Departments of § 744.16 and further review that was

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conducted by the ERC’s member Science Park West Avenue, Hong Kong exports and reexports to these persons. agencies of these end-users, the ERC Science Park, Shatin, New Territories, However, the removal of these persons determined that these two persons Hong Kong; and Unit 401, Harbour Ctr., from the Entity List does not relieve should be removed from the Entity List. Tower 2, 8 Hok Cheung Street, Hung persons of other obligations under part The ERC decision to remove Feroz Jafar Hom, Kowloon, Hong Kong; and 744 of the EAR or under other parts of and Telectron took into account these (8) Tam Shue Ngai, Unit C, 9/F Neich the EAR. Neither the removal of a two listed persons’ cooperation with the Tower, 128 Gloucester Road, Wanchai, person from the Entity List nor the U.S. Government, as well as these listed Hong Kong. removal of Entity List-based license persons’ assurances of future requirements relieves persons of their Ireland compliance with the EAR. In obligations under General Prohibition 5 accordance with § 744.16(c), the Deputy (9) Mac Aviation Group, a.k.a., Mac in § 736.2(b)(5) of the EAR which Assistant Secretary for Export Aviation Limited, Cloonmull House, provides that, ‘‘you may not, without a Administration has sent written Drumcliffe, County Sligo, Ireland; license, knowingly export or reexport notification to these persons informing (10) Mac Aviation Nigeria, Cloonmull any item subject to the EAR to an end- them of the ERC’s decision to remove House, Drumcliffe, County Sligo, user or end-use that is prohibited by them from the Entity List. Ireland; part 744 of the EAR.’’ Nor do such (11) Sean Byrne, Cloonmull House, removals relieve persons of their Additions to the Entity List Drumcliffe, County Sligo, Ireland; obligation to apply for export or This rule implements the decision of (12) Sean McGuinn, Cloonmull reexport licenses required by other the ERC to add thirteen persons to the House, Drumcliffe, County Sligo, provisions of the EAR. BIS strongly Entity List on the basis of § 744.11 of the Ireland; and urges the use of Supplement No. 3 to EAR. For all of the thirteen persons (13) Thomas McGuinn a.k.a., Tom part 732 of the EAR, ‘‘BIS’s ‘Know Your added to the Entity List, the ERC McGuinn, Cloonmull House, Drumcliffe, Customer’ Guidance and Red Flags,’’ specified a license requirement for all County Sligo, Ireland. when persons are involved in items subject to the EAR and established A BIS license is required for the transactions that are subject to the EAR. a license application review policy of a export or reexport of any item subject to general policy of denial. The license the EAR to any of the persons listed Correction to the Entity List requirement applies to any transaction above, including any transaction in This rule revises the address provided in which items are to be exported or which any of the listed persons will act for one person that was listed on the reexported to such persons or in which as purchaser, intermediate consignee, Entity List from the United Arab such persons act as purchaser, ultimate consignee, or end-user of the Emirates. Specifically, this rule to intermediate consignee, ultimate items. This listing of these persons also correct an inadvertent removal of the consignee, or end-user. In addition, no prohibits the use of License Exceptions name of the city where the person is license exceptions are available for (see part 740 of the EAR) for exports and located, which occurred in a December shipments to those persons being added reexports of items subject to the EAR 5, 2008 (73 FR 73999) final rule that to the Entity List. involving such persons. revised this entry. This rule revises the name and Specifically, this rule adds the Removal From the Entity List following thirteen persons to the Entity address of this one listed person, as List: One person being removed from the follows: Entity List with this rule is removed on Germany the basis of the results of the annual United Arab Emirates (1) Christof Schneider, Margaretenweg review of the Entity List that was (1) Advanced Technology General #10, 42929 Wermelskirchen, Germany; conducted by the ERC in accordance Trading Company, Dubai, U.A.E. (See (2) Hans Werner Schneider, Bertha with the procedures outlined in alternate address under Kuwait). von Suttner Weg #1, 42929 Supplement No. 5 to part 744. The Savings Clause Wermelskirchen, Germany; and entity is located in Pakistan: (3) Schneider GMBH, Thomas Mann Shipments of items removed from Pakistan Str. 35–37, 42929 Wermelskirchen, eligibility for a License Exception or Germany; and P.O. Box 1523, (1) Karachi CBW Research Institute, export or reexport without a license Wermelskirchen, 42908 DE; and University of Karachi’s Husein Ebrahim (NLR) as a result of this regulatory Thomas Mann Str., 35–37, P.O. Box Jamal Research Institute of Chemistry action that were on dock for loading, on 1523, Wermelskirchen, 42908 DE. (HEJRIC). lighter, laden aboard an exporting or Two additional persons are being reexporting carrier, or en route aboard a Hong Kong removed under this rule as a result of carrier to a port of export or reexport, on (4) Able City Development Limited, the submission of a formal request for July 21, 2009, pursuant to actual orders Unit C, 9/F Neich Tower, 128 removal based upon the procedures for export or reexport to a foreign Gloucester Road, Wanchai, Hong Kong; outlined in § 744.16 of the EAR. These destination, may proceed to that and Unit 401, Harbour Ctr., Tower 2, 8 two entities are located in the United destination under the previous Hok Cheung Street, Hung Hom, Arab Emirates: eligibility for a License Exception or Kowloon, Hong Kong; export or reexport without a license (5) Sik Yin Ngai, a.k.a., Spencer Ngai, United Arab Emirates (NLR) so long as they are exported or Unit 401, Harbour Ctr., Tower 2, 8 Hok (2) Feroz Jafar, Al Salam St., P.O. Box reexported before August 20, 2009. Any Cheung Street Hung Hom, Kowloon, 2946 Abu Dhabi, U.A.E.; and such items not actually exported or Hong Kong; (3) Telectron, Al Salam St., P.O. Box reexported before midnight on August (6) Siu Ching Ngai, a.k.a., Terry Ngai, 2946, Abu Dhabi, U.A.E. 20, 2009, require a license in accordance Unit C, 9/F Neich Tower, 128 The removal of these three persons with this rule. Gloucester Road, Wanchai, Hong Kong; from the Entity List eliminates the Although the Export Administration (7) Sysdynamic Limited, Unit 716A, existing license requirements in Act expired on August 20, 2001, the 7/F Enterprise Place (Building 9), No. 5 Supplement No. 4 to part 744 for President, through Executive Order

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13222 of August 17, 2001, 3 CFR, 2001 term is defined in Executive Order FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. Comp., p. 783 (2002), as extended by the 13132. 12947, 60 FR 5079, 3 CFR, 1995 Comp., p. Notice of July 23, 2008, 73 FR 43603 4. The provisions of the 356; E.O. 13026, 61 FR 58767, 3 CFR, 1996 (July 23, 2008), has continued the Administrative Procedure Act (5 U.S.C. Comp., p. 228; E.O. 13099, 63 FR 45167, 3 Export Administration Regulations in 553) requiring notice of proposed CFR, 1998 Comp., p. 208; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. effect under the International rulemaking, the opportunity for public 13224, 66 FR 49079, 3 CFR, 2001 Comp., p. Emergency Economic Powers Act. participation, and a delay in effective 786; Notice of July 23, 2008, 73 FR 43603 date, are inapplicable because this Rulemaking Requirements (July 25, 2008); Notice of November 10, 2008, regulation involves a military or foreign 73 FR 67097 (November 12, 2008). 1. This rule has been determined to be affairs function of the United States. not significant for purposes of Executive (See 5 U.S.C. 553(a)(1)). Further, no ■ 2. Supplement No. 4 to part 744 is Order 12866. other law requires that a notice of amended: 2. Notwithstanding any other proposed rulemaking and an ■ a. By removing under Pakistan, this provision of law, no person is required opportunity for public comment be one Pakistani entity ‘‘Karachi CBW to respond to nor be subject to a penalty given for this rule. Because a notice of Research Institute, University of for failure to comply with a collection proposed rulemaking and an Karachi’s Husein Ebrahim Jamal of information, subject to the opportunity for public comment are not Research Institute of Chemistry requirements of the Paperwork required to be given for this rule by 5 (HEJRIC)’’; Reduction Act of 1995 (44 U.S.C. 3501 U.S.C. 553, or by any other law, the ■ b. By removing under United Arab et seq.) (PRA), unless that collection of analytical requirements of the Emirates, these two U.A.E. entities information displays a currently valid Regulatory Flexibility Act, 5 U.S.C. 601 ‘‘Feroz Jafar, Al Salam St., P.O. Box Office of Management and Budget et seq., are not applicable. 2946, Abu Dhabi, U.A.E.’’; and (OMB) Control Number. This regulation List of Subjects in 15 CFR Part 744 ‘‘Telectron, Al Salam St., P.O. Box 2946, involves collections previously Abu Dhabi, U.A.E.’’; Exports, Reporting and recordkeeping approved by the OMB under control ■ requirements, Terrorism. c. By adding under Germany, in numbers 0694–0088, ‘‘Multi-Purpose alphabetical order, three German ■ Accordingly, part 744 of the Export Application,’’ which carries a burden entities; Administration Regulations (15 CFR hour estimate of 58 minutes to prepare ■ and submit form BIS–748. parts 730–774) is amended as follows: d. By adding under Hong Kong, in Miscellaneous and recordkeeping alphabetical order, five Hong Kong activities account for 12 minutes per PART 744—[AMENDED] entities; ■ submission. Total burden hours ■ e. By adding, in alphabetical order, 1. The authority citation for 15 CFR the country of Ireland and five Irish associated with the Paperwork part 744 continues to read as follows: Reduction Act and Office and entities; and Authority: 50 U.S.C. app. 2401 et seq.; 50 Management and Budget control ■ f. By revising under United Arab U.S.C. 1701 et seq.; 22 U.S.C. 3201 et seq.; Emirates, in alphabetical order, one number 0694–0088 are expected to 42 U.S.C. 2139a; 22 U.S.C. 7201 et seq.; 22 increase slightly as a result of this rule. U.S.C. 7210; E.O. 12058, 43 FR 20947, 3 CFR, U.A.E. entity. 3. This rule does not contain policies 1978 Comp., p. 179; E.O. 12851, 58 FR 33181, The additions and revision read as with Federalism implications as that 3 CFR, 1993 Comp., p. 608; E.O. 12938, 59 follows:

SUPPLEMENT NO. 4 TO PART 744—ENTITY LIST

Federal Register Country Entity License requirement License review policy citation

******* GERMANY

******* Christof Schneider, Margaretenweg #10, For all items subject Presumption of denial 74 FR [INSERT FR 42929 Wermelskirchen, Germany. to the EAR. (See PAGE NUMBER], § 744.11 of the July 21, 2009. EAR).

******* Hans Werner Schneider, Bertha von Suttner For all items subject Presumption of denial 74 FR [INSERT FR Weg #1, 42929 Wermelskirchen, Germany. to the EAR. (See PAGE NUMBER], § 744.11 of the July 21, 2009. EAR).

******* Schneider GMBH, Thomas Mann Str. 35–37, For all items subject Presumption of denial 74 FR [INSERT FR 42929 Wermelskirchen, Germany; and to the EAR. (See PAGE NUMBER], P.O. Box 1523, Wermelskirchen, 42908 § 744.11 of the July 21, 2009. DE; and Thomas Mann Str., 35–37, P.O. EAR). Box 1523, Wermelskirchen, 42908 DE. HONG KONG ...... Able City Development Limited, Unit C, 9/F For all items subject Presumption of denial 74 FR [INSERT FR Neich Tower, 128 Gloucester Road, to the EAR. (See PAGE NUMBER], Wanchai, Hong Kong; and Unit 401, Har- § 744.11 of the July 21, 2009. bour Ctr., Tower 2, 8 Hok Cheung Street, EAR). Hung Hom, Kowloon, Hong Kong.

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SUPPLEMENT NO. 4 TO PART 744—ENTITY LIST—Continued

Federal Register Country Entity License requirement License review policy citation

******* Sik Yin Ngai, a.k.a. Spencer Ngai, Unit 401, For all items subject Presumption of denial 74 FR [INSERT FR Harbour Ctr., Tower 2, 8 Hok Cheung to the EAR. (See PAGE NUMBER], Street, Hung Hom, Kowloon, Hong Kong. § 744.11 of the July 21, 2009. EAR). Siu Ching Ngai, a.k.a. Terry Ngai, Unit C, 9/ For all items subject Presumption of denial 74 FR [INSERT FR F Neich Tower, 128 Gloucester Road, to the EAR. (See PAGE NUMBER], Wanchai, Hong Kong. § 744.11 of the July 21, 2009. EAR).

******* Sysdynamic Limited, Unit 716A, 7/F Enter- For all items subject Presumption of denial 74 FR [INSERT FR prise Place (Building 9), No. 5 Science to the EAR. (See PAGE NUMBER], Park West Avenue, Hong Kong Science § 744.11 of the July 21, 2009. Park, Shatin, New Territories, Hong Kong; EAR). and Unit 401, Harbour Ctr., Tower 2, 8 Hok Cheung Street, Hung Hom, Kowloon, Hong Kong. Tam Shue Ngai, Unit C, 9/F Neich Tower, For all items subject Presumption of denial 74 FR [INSERT FR 128 Gloucester Road, Wanchai, Hong to the EAR. (See PAGE NUMBER], Kong. § 744.11 of the July 21, 2009. EAR).

******* IRELAND ...... Mac Aviation Group, a.k.a. Mac Aviation For all items subject Presumption of denial 74 FR [INSERT FR Limited, Cloonmull House, Drumcliffe, to the EAR. (See PAGE NUMBER], County Sligo, Ireland. § 744.11 of the July 21, 2009. EAR). Mac Aviation Nigeria, Cloonmull House, For all items subject Presumption of denial 74 FR [INSERT FR Drumcliffe, County Sligo, Ireland. to the EAR. (See PAGE NUMBER], § 744.11 of the July 21, 2009. EAR). Sean Byrne, Cloonmull House, Drumcliffe, For all items subject Presumption of denial 74 FR [INSERT FR County Sligo, Ireland. to the EAR. (See PAGE NUMBER], § 744.11 of the July 21, 2009. EAR). Sean McGuinn, Cloonmull House, For all items subject Presumption of denial 74 FR [INSERT FR Drumcliffe, County Sligo, Ireland. to the EAR. (See PAGE NUMBER], § 744.11 of the July 21, 2009. EAR). Thomas McGuinn a.k.a. Tom McGuinn, For all items subject Presumption of denial 74 FR [INSERT FR Cloonmull House, Drumcliffe, County to the EAR. (See PAGE NUMBER], Sligo, Ireland. § 744.11 of the July 21, 2009. EAR).

******* UNITED ARAB EMIR- Advanced Technology General Trading For all items subject Presumption of denial 73 FR 54509 9/22/08 ATES. Company, Dubai, U.A.E. (See alternate to the EAR. (See 73 FR 74001 12/5/ address under Kuwait). § 744.11 of the 08 EAR). 74 FR [INSERT FR PAGE NUMBER], July 21, 2009.

*******

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Dated: July 16, 2009. products regulated by FDA, and in committee and to revise the function Matthew S. Borman, discharging responsibilities as they statement. Acting Assistant Secretary for Export relate to helping ensure safe and Therefore, the agency is amending Administration. effective drugs for human use and any § 14.100(a)(4)(i) and (a)(4)(ii) as set forth other product for which FDA has [FR Doc. E9–17295 Filed 7–20–09; 8:45 am] in the regulatory text of this document. BILLING CODE 3510–33–P regulatory responsibility. The committee also reviews and evaluates List of Subjects in 21 CFR Part 14 strategies and programs designed to Administrative practice and DEPARTMENT OF HEALTH AND communicate with the public about the procedure, Advisory committees, Color HUMAN SERVICES risks and benefits of FDA-regulated products so as to facilitate optimal use additives, Drugs, Radiation protection. of these products. In addition, the Food and Drug Administration ■ Therefore, under the Federal Food, committee reviews and evaluates Drug, and Cosmetic Act and under 21 CFR Part 14 research relevant to such communication to the public by both authority delegated to the Commissioner [Docket No. FDA–2009–N–0310] FDA and other entities. It also facilitates of Food and Drugs, 21 CFR part 14 is amended as follows: Advisory Committee; Risk interactively sharing risk and benefit information with the public to enable Communication Advisory Committee; PART 14—PUBLIC HEARING BEFORE people to make informed independent Termination and Recharter judgments about using FDA-regulated A PUBLIC ADVISORY COMMITTEE AGENCY: Food and Drug Administration, products. HHS. The committee will be composed of a ■ 1. The authority citation for 21 CFR ACTION: Final rule. core of 15 voting members including the part 14 continues to read as follows: Chair. Members and the Chair are Authority: 5 U.S.C. App. 2; 15 U.S.C. SUMMARY: The Food and Drug selected by the Commissioner or 1451–1461, 21 U.S.C. 41–50, 141–149, 321– Administration (FDA) is announcing the designee from among authorities 394, 467f, 679, 821, 1034; 28 U.S.C. 2112; 42 termination and the recharter of the Risk knowledgeable in fields such as social U.S.C. 201, 262, 263b, 264; Pub. L. 107–109; Communication Advisory Committee marketing, health literacy, and other Pub. L. 108–155. (the committee). These actions are relevant areas. Members will include needed to implement the Federal Food, experts on risk communication; experts ■ 2. Section 14.100 is amended by Drug, and Cosmetic Act (the act) as on emerging postmarket drug risks; and revising paragraphs (a)(4)(i) and (a)(4)(ii) amended by the Food and Drug individuals knowledgeable about and to read as follows: Administration Amendments Act of experienced in the work of patient, § 14.100 List of standing advisory 2007, to change the committee from a consumer, and health professional committees. discretionary to a statutory committee. organizations. Members will be invited This document also amends the to serve for overlapping terms of up to * * * * * agency’s regulations which list advisory 4 years. Almost all non-Federal (a) * * * members of this committee serve as committees to reflect that the Risk (4) * * * Communication Advisory Committee Special Government Employees. Some has been rechartered and to revise the members will be selected to provide (i) Date Rechartered: July 9, 2009. function statement. experiential insight on the (ii) Function: The committee reviews DATES: This rule is effective July 21, communication needs of the various and evaluates strategies and programs 2009. The committee is being groups who use FDA-regulated designed to communicate with the rechartered and the new charter will products. The latter may include public about the risks and benefits of remain in effect until amended or patients and patients’ family members; FDA-regulated products so as to terminated by the Commissioner of health professionals; communicators in facilitate optimal use of these products. Food and Drugs (the Commissioner) or health, medicine, and science; and The committee also reviews and persons affiliated with consumer, designee. evaluates research relevant to such specific disease, or patient safety FOR FURTHER INFORMATION CONTACT: Lee communication to the public by both advocacy groups. The Commissioner or Zwanziger, Office of Policy and FDA and other entities. It also facilitates Planning (HFP–1), Food and Drug designee shall also have the authority to select from a group of individuals interactively sharing risk and benefit Administration, 5600 Fishers Lane, nominated by industry to serve information with the public to enable Rockville, MD 20857, 301–827–2895, temporarily as nonvoting members who people to make informed independent FAX: 301–827–4050, or e-mail: are identified with industry interests. judgments about use of FDA-regulated [email protected]. The number of temporary members products. SUPPLEMENTARY INFORMATION: Under the selected for a particular meeting will * * * * * Federal Advisory Committee Act of depend on the meeting topic(s). October 6, 1972 (Public Law 92–463 (5 Under 5 U.S.C. 553(b)(3)(B) and (d) Dated: July 10, 2009. U.S.C. app. 2)); section 904 of the act (21 and 21 CFR 10.40(d) and (e), the agency Randall W. Lutter, U.S.C. 394), as amended by the Food finds good cause to dispense with notice Deputy Commissioner for Policy. and Drug Administration Revitalization and public comment procedures and to [FR Doc. E9–17218 Filed 7–20–09; 8:45 am] Act (Public Law 101–635); and 21 CFR proceed to an immediate effective date BILLING CODE 4160–01–S 14.40(b), FDA is announcing the on this rule. Notice and public comment termination and the recharter of the and a delayed effective date are committee by the Commissioner. The unnecessary and are not in the public committee advises the Commissioner interest as this final rule merely amends and designees on methods to effectively the information in § 14.100 (21 CFR communicate risks associated with 14.100) to reflect the rechartering of the

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DEPARTMENT OF THE TREASURY Public Participation DEPARTMENT OF HOMELAND SECURITY Office of Foreign Assets Control Because the Regulations involve a foreign affairs function, the provisions Coast Guard 31 CFR Part 543 of Executive Order 12866 and the Administrative Procedure Act (5 U.S.C. 33 CFR Part 117 Persons Contributing to the Conflict in 553) requiring notice of proposed [Docket Number USCG–2009–0591] Coˆ te d’Ivoire Sanctions Regulations rulemaking, opportunity for public participation, and delay in effective date AGENCY: Office of Foreign Assets Drawbridge Operation Regulations; Control, Treasury. are inapplicable. Because no notice of Illinois Waterway, Beardstown, IL proposed rulemaking is required for this ACTION: AGENCY Final rule. rule, the Regulatory Flexibility Act (5 : Coast Guard, DHS. U.S.C. 601–612) does not apply. ACTION: Notice of temporary deviation SUMMARY: The Department of the from regulations. Treasury’s Office of Foreign Assets Paperwork Reduction Act Control (‘‘OFAC’’) is amending the SUMMARY: The Commander, Eighth Persons Contributing to the Conflict in The collections of information related Coast Guard District has issued a Coˆte d’Ivoire Sanctions Regulations, 31 to the Regulations are contained in 31 temporary deviation from the regulation CFR part 543 (the ‘‘Regulations’’), to CFR part 501 (the ‘‘Reporting, governing the operations of the change the heading of the Regulations. Procedures and Penalties Regulations’’). Burlington Northern Santa Fe Railroad DATES: Effective Date: July 21, 2009. Pursuant to the Paperwork Reduction Bridge, Mile 88.8, at Beardstown, Illinois across the Illinois Waterway. FOR FURTHER INFORMATION CONTACT: Act of 1995 (44 U.S.C. 3507), those The deviation is necessary to allow time Assistant Director for Compliance, collections of information have been for upgrade of the lift drive mechanism Outreach & Implementation, tel.: 202/ approved by the Office of Management which only can be done when the 622–2490, Assistant Director for and Budget under control number 1505– bridge is in the closed-to-navigation Licensing, tel.: 202/622–2480, Assistant 0164. An agency may not conduct or position. This deviation allows the Director for Policy, tel.: 202/622–4855, sponsor, and a person is not required to bridge to remain closed-to-navigation Office of Foreign Assets Control, or respond to, a collection of information during the 60-hour period July 27–29, Chief Counsel (Foreign Assets Control), unless the collection of information 2009. tel.: 202/622–2410, Office of the General displays a valid control number. Counsel, Department of the Treasury DATES: This deviation is effective from (not toll free numbers). List of Subjects in 31 CFR Part 543 8 a.m., July 27 to 8 p.m., July 29, 2009. SUPPLEMENTARY INFORMATION: Administrative practice and ADDRESSES: Documents mentioned in this preamble as being available in Electronic and Facsimile Availability procedure, Banks, Banking, Blocking of assets, Coˆte d’Ivoire, Credit, Foreign docket are part of docket USCG–2009– This document and additional Trade, Penalties, Reporting and 0591 and are available online by going to www.regulations.gov, selecting the information concerning OFAC are recordkeeping requirements, Securities, Advanced Docket Search option on the available from OFAC’s Web site Services. (www.treas.gov/ofac) or via facsimile right side of the screen, inserting USCG– through a 24-hour fax-on demand ■ For the reasons set forth in the 2009–0591 in the docket ID box, pressing Enter, and then clicking on the service, tel.: (202) 622–0077. preamble, the Department of the item on the Docket ID column. They are Treasury’s Office of Foreign Assets Background also available for inspection or copying Control amends part 543 of 31 CFR at the Docket Management Facility (M– OFAC promulgated the Persons Chapter V as follows: Contributing to the Conflict in Coˆte 30), U.S. Department of Transportation, d’Ivoire Sanctions Regulations, 31 CFR PART 543—COˆ TE D’IVOIRE West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue, SE., part 543 (the ‘‘Regulations’’), on April SANCTIONS REGULATIONS 13, 2009 (74 FR 16763), to implement Washington, DC 20590, between 9 a.m. Executive Order 13396 of February 7, ■ 1. The authority citation to part 543 and 5 p.m., Monday through Friday, except Federal holidays. 2006 (‘‘E.O. 13396’’). In E.O. 13396, the continues to read as follows: President determined that the situation FOR FURTHER INFORMATION CONTACT: If in Coˆte d’Ivoire, which has resulted in Authority: 3 U.S.C. 301; 31 U.S.C. 321(b); you have questions on this rule, call or the massacre of large numbers of 50 U.S.C. 1601–1651, 1701–1706; 22 U.S.C. e-mail Roger K. Wiebusch, Bridge civilians, widespread human rights 287c; Pub. L. 101–410, 104 Stat. 890 (28 Administrator, Coast Guard; telephone abuses, significant political violence U.S.C. 2461 note); Pub. L. 110–96, 121 Stat. (314) 269–2378 or and unrest, and attacks against 1011; E.O. 13396, 71 FR 7389, 3 CFR, 2006 [email protected]. If you have international peacekeeping Comp., p. 209. questions on viewing the docket, call leading to fatalities, constitutes an Renee V. Wright, Program Manager, ■ 2. The heading of part 543 is revised unusual and extraordinary threat to the Docket Operations, telephone (202) to read as set forth above. national security and foreign policy of 366–9826. the United States, and declared a Dated: July 15, 2009. SUPPLEMENTARY INFORMATION: The national emergency to deal with that Adam J. Szubin, Burlington Northern Santa Fe Railway threat. Director, Office of Foreign Assets Control. Company requested a temporary OFAC today is amending the [FR Doc. E9–17249 Filed 7–20–09; 8:45 am] deviation for the Burlington Northern Regulations to change their heading to Santa Fe (BNSF) Railroad Bridge, mile BILLING CODE 4811–45–P the ‘‘Coˆte d’Ivoire Sanctions 88.8, at Beardstown, Illinois across the Regulations’’ for the sake of consistency Illinois Waterway. It has a vertical with other sanctions regulations. clearance of 19.6 feet above normal pool

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in the closed position. The BNSF temporary safety zone is necessary to contrary to the public interest of Railroad Bridge currently operates in protect spectators and vessels from the ensuring the safety of spectators and accordance with 33 CFR 117.393(a) hazards associated with fireworks vessels during this event and immediate which requires that the bridge be displays. action is necessary to prevent possible maintained in the open-to-navigation DATES: This rule is effective from 9 p.m. loss of life or property. position; closing only when a train on July 11, 2009, until 11 p.m. on Background and Purpose needs to transit the bridge. September 5, 2009. The deviation period is from 8 a.m., ADDRESSES: Documents indicated in this This temporary safety zone is July 27 to 8 p.m., July 29, 2009 when the preamble as being available in the necessary to ensure the safety of vessels draw span will be maintained in the docket are part of docket USCG–2009– and spectators from hazards associated closed-to-navigation position. During 0649 and are available online at http:// with a fireworks display. Based on the this time the lift drive mechanism will www.regulations.gov selecting the explosive hazards of fireworks, the be inoperative. The draw span will not Advanced Docket Search option on the Captain of the Port Sault Sainte Marie be returned to its fully open position right side of the screen, inserting USCG– has determined that fireworks launches until the lift drive mechanism is fully 2009–0649 in the Docket ID box, operational on August 2, 2009. During proximate to watercraft pose significant pressing Enter, and then clicking on the risk to public safety and property. The the period July 30–August 2, 2009 span item in the Docket ID column. They are openings will be coordinated with rail likely combination of large numbers of also available for inspection or copying recreation vessels, congested waterways, traffic closures and efforts to return the at the Docket Management Facility (M– bridge to normal operations. Both darkness punctuated by bright flashes of 30), U.S. Department of Transportation, light, alcohol use, and debris falling into commercial vessels and recreational West Building Ground Floor, Room watercraft use the waterway. Most the water could easily result in serious W12–140, 1200 New Jersey Avenue, SE., injuries or fatalities. Establishing a commercial vessels can not pass Washington, DC 20590, between 9 a.m. underneath the bridge while it is in the safety zone to control vessel movement and 5 p.m., Monday through Friday, around the location of the launch closed position. Only vessels having a except Federal holidays. low-clearance profile will be able to platform will help ensure the safety of FOR FURTHER INFORMATION CONTACT: If pass under the span while in the closed persons and property at these events you have questions on this temporary and help minimize the associated risks. position. There are no alternate routes rule, call LCDR Christopher Friese, for vessels transiting this section of the Prevention Dept. Chief, U.S. Coast Discussion of Rule Illinois Waterway. Minimal impact to Guard Sector Sault Sainte Marie, 906– navigation is expected. 635–3220 or email A temporary safety zone is necessary In accordance with 33 CFR [email protected]. If you to ensure the safety of spectators and 117.393(a), the drawbridge shall return have questions on viewing the docket, vessels during the setup, loading, and to its normal operating schedule call Renee V. Wright, Program Manager, launching of fireworks displays in immediately at the end of the Docket Operations, telephone 202–366– conjunction with the Friends of designated time period. This deviation 9826. Fireworks Celebration fireworks from the operating regulations is SUPPLEMENTARY INFORMATION: displays. The fireworks displays will authorized under 33 CFR 117.35(c). occur between 9 p.m. and 11 p.m. on Dated: June 6, 2009. Regulatory Information July 11, July 18, July 25, August 1, Roger K. Wiebusch, The Coast Guard is issuing this August 8, August 15, August 22, August Bridge Administrator. temporary final rule without prior 29, and September 5, 2009. If a [FR Doc. E9–17196 Filed 7–20–09; 8:45 am] notice and opportunity to comment fireworks display is cancelled due to BILLING CODE 4910–15–P pursuant to authority under section 4(a) inclement weather, then the fireworks of the Administrative Procedure Act display will occur between 9 p.m. and (APA) (5 U.S.C. 553(b)). This provision 11 p.m. on the following day (July 12, DEPARTMENT OF HOMELAND authorizes an agency to issue a rule July 19, July 26, August 2, August 9, SECURITY without prior notice and opportunity to August 16, August 23, August 30, or comment when an agency for good September 6, 2009). Coast Guard cause finds that those procedures are The safety zone for the fireworks will ‘‘impracticable, unnecessary, or contrary 33 CFR Part 165 encompass all waters of Lake Huron to the public interest.’’ Under U.S.C. within a 1,000-foot radius from the [Docket No. USCG–2009–0649] 553(b)(B), the Coast Guard finds that fireworks launch site in East Moran Bay, good cause exists for not publishing a with its center in position: 45°52′43″ N, RIN 1625–AA00 notice of proposed rulemaking (NPRM) 084°43′69″ W. All geographic with respect to this rule because the Safety Zone; Friends of Fireworks coordinates are North American Datum permit application was not received in Celebration, Lake Huron, St. Ignace, MI of 1983 (NAD 83). time to publish a NPRM followed by a AGENCY: Coast Guard, DHS. final rule before the effective date and All persons and vessels shall comply with the instructions of the Coast Guard ACTION: Temporary final rule. immediate action is necessary to prevent possible loss of life and Captain of the Port or the designated on- SUMMARY: The Coast Guard is property that is potentially associated scene representative. Entry into, establishing a temporary safety zone on with this fireworks display. transiting, or anchoring within the Lake Huron, St. Ignace, MI. This zone is Under 5 U.S.C. 553(d)(3), the Coast safety zone is prohibited unless intended to restrict vessels from a Guard finds that good cause exists for authorized by the Captain of the Port portion of Lake Huron during the making this rule effective less than 30 Sector Sault Sainte Marie or his on- Friends of Fireworks Celebration days after publication in the Federal scene representative. The Captain of the fireworks displays taking place July 11 Register. Delaying this rule would be Port or his on-scene representative may through September 5, 2009. This be contacted via VHF Channel 16.

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Regulatory Analyses Assistance for Small Entities Civil Justice Reform We developed this rule after Under section 213(a) of the Small This rule meets applicable standards considering numerous statutes and Business Regulatory Enforcement in sections 3(a) and 3(b)(2) of Executive executive orders related to rulemaking. Fairness Act of 1996 (Pub. L. 104–121), Order 12988, Civil Justice Reform, to Below we summarize our analyses we offered to assist small entities in minimize litigation, eliminate based on 13 of these statutes or understanding the rule so that they ambiguity, and reduce burden. could better evaluate its effects on them executive orders. Protection of Children and participate in the rulemaking Regulatory Planning and Review process. We have analyzed this rule under Executive Order 13045, Protection of This rule is not a ‘‘significant Small businesses may send comments Children from Environmental Health regulatory action’’ under section 3(f) of on the actions of Federal employees Risks and Safety Risks. This rule is not Executive Order 12866, Regulatory who enforce, or otherwise determine an economically significant rule and Planning and Review, and does not compliance with, Federal regulations to does not concern an environmental risk require an assessment of potential costs the Small Business and Agriculture to health or risk to safety that may and benefits under section 6(a)(3) of that Regulatory Enforcement Ombudsman disproportionately affect children. Order. The Office of Management and and the Regional Small Business Budget has not reviewed it under that Regulatory Fairness Boards. The Indian Tribal Governments Order. Ombudsman evaluates these actions annually and rates each agency’s This rule does not have tribal This determination is based on the responsiveness to small business. If you implications under Executive Order minimal time that vessels will be wish to comment on actions by 13175, Consultation and Coordination restricted from the zone and the zone is employees of the Coast Guard, call with Indian Tribal Governments, an area where the Coast Guard expects 1–888–REG–FAIR (1–888–734–3247). because it does not have a substantial insignificant adverse impact to mariners The Coast Guard will not retaliate direct effect on one or more Indian from the zones’ activation. against small entities that question or tribes, on the relationship between the Small Entities complain about this rule or any policy Federal Government and Indian tribes, or action of the Coast Guard. or on the distribution of power and Under the Regulatory Flexibility Act responsibilities between the Federal (5 U.S.C. 601–612), we have considered Collection of Information Government and Indian tribes. whether this rule would have a This rule calls for no new collection Energy Effects significant economic impact on a of information under the Paperwork substantial number of small entities. Reduction Act of 1995 (44 U.S.C. 3501– We have analyzed this rule under The term ‘‘small entities’’ comprises 3520). Executive order 13211, Actions small businesses, not-for-profit Concerning Regulations that Federalism organizations that are independently Significantly Affect Energy Supply, owned and operated and are not A rule has implications for federalism Distribution, or Use. We have dominant in their fields, and under Executive Order 13132, determined that it is not a ‘‘significant governmental jurisdictions with Federalism, if it has substantial direct energy action’’ under that order because populations of less than 50,000. effect on State or local governments and it is not a ‘‘significant regulatory action’’ The Coast Guard certifies under 5 would either preempt State law or under Executive Order 12866 and is not U.S.C. 605(b) that this rule will not have impose a substantial direct cost of likely to have a significant adverse effect a significant economic impact on a compliance on them. We have analyzed on the supply, distribution, or use of substantial number of small entities. this rule under that Order and have energy. The Administrator of the office determined that it does not have of Information and Regulatory Affairs This rule will affect the following implications for federalism. has not designated it as a significant entities, some of which may be small energy action. Therefore, it does not entities: the owners and operators of Unfunded Mandates Reform Act require a statement of Energy Effects vessels intending to transit or anchor in The Unfunded Mandates Reform Act under Executive Order 13211. a portion of Lake Huron off St. Ignace, of 1995 (2 U.S.C. 1531–1538) requires Technical Standards Michigan between 9 p.m. and 11 p.m. Federal agencies to assess the effects of on July 11, July 18, July 25, August 1, their discretionary regulatory actions. In The National Technology Transfer August 8, August 15, August 22, August particular, the Act addresses actions and Advancement Act (NTTAA) (15 29, and September 5, 2009. that may result in the expenditure by a U.S.C. 272 note) directs agencies to use This safety zone will not have a State, local, or tribal government, in the voluntary consensus standards in their significant economic impact on a aggregate, or by the private sector of regulatory activities unless the agency substantial number of small entities for $100,000,000 or more in any one year. provides Congress, through the Office of the following reasons: this rule will be Though this rule would not result in Management and Budget, with an in effect for only two hours for each such expenditure, we do discuss the explanation of why using these event. Vessel traffic can safely pass effects of this rule elsewhere in this standards would be inconsistent with outside the safety zone during the event. preamble. applicable law or otherwise impractical. In the event that this temporary safety Voluntary consensus standards are zone affects shipping, commercial Taking of Private Property technical standards (e.g., specifications vessels may request permission from the This rule will not effect a taking of of materials, performance, design, or Captain of the Port Sault Sainte Marie private property or otherwise have operation; test methods; sampling to transit through the safety zone. The taking implications under Executive procedure; and related management Coast Guard will give notice to the Order 12630, Governmental Actions and system practices) that are developed or public via a Broadcast to Mariners that Interference with Constitutionally adopted by voluntary consensus the regulation is in effect. Protected Property Rights. standards bodies.

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This rule does not use technical be enforced from 9 p.m. to 11 p.m. on crew, spectators, and other users and standards. Therefore, we did not the following day (July 12, July 19, July vessels of the waterway. Persons and consider the use of voluntary consensus 26, August 2, August 9, August 16, vessels are prohibited from entering standards. August 23, August 30, or September 6, into, transiting through, or anchoring 2009). within this temporary safety zone unless Environment (c) Regulations. (1) In accordance with authorized by the Captain of the Port or We have analyzed this rule under the general regulations in section 165.23 his designated representative. Department of Homeland Security of this part, entry into, transiting, or DATES: This rule is effective from 1 p.m. Management Directive 023–01 and anchoring within this safety zone is to 11 p.m. on July 30, 2009. Commandant Instruction M16475.lD, prohibited unless authorized by the ADDRESSES: Documents indicated in this which guide the Coast Guard in Captain of the Port Sault Sainte Marie preamble as being available in the complying with the National or on-scene representative. docket are part of docket USCG–2009– Environmental Policy Act of 1969 (2) This safety zone is closed to all 0513 and are available online by going (NEPA) (42 U.S.C. 4321–4370f), and vessel traffic, except as may be to http://www.regulations.gov, selecting have concluded this action is one of a permitted by the Captain of the Port the Advanced Docket Search option on category of actions which do not Sault Sainte Marie or his on-scene the right side of the screen, inserting individually or cumulatively have a representative. USCG–2009–0513 in the Docket ID box, significant effect on the human (3) The ‘‘on-scene representative’’ of pressing Enter, and then clicking on the environment. This rule is categorically the Captain of the Port is any Coast item in the Docket ID column. They are excluded, under figure 2–1, paragraph Guard commissioned, warrant or petty also available for inspection or copying (34)(g), of the Instruction, because it officer who has been designated by the at the Docket Management Facility (M– involves the establishment of a Captain of the Port to act on his behalf. 30), U.S. Department of Transportation, temporary safety zone. The on-scene representative of the West Building Ground Floor, Room A final environmental analysis check Captain of the Port will be aboard either W12–140, 1200 New Jersey Avenue, SE., list and a categorical exclusion a Coast Guard or Coast Guard Auxiliary Washington, DC 20590, between 9 a.m. determination are available in the vessel. and 5 p.m., Monday through Friday, docket where indicated under (4) Vessel operators desiring to enter except Federal holidays. ADDRESSES. or operate within the safety zone shall FOR FURTHER INFORMATION CONTACT: If contact the Captain of the Port Sault List of Subjects in 33 CFR Part 165 you have questions on this temporary Sainte Marie or his on-scene rule, call or e-mail Petty Officer Shane Harbors, Marine safety, Navigation representative to obtain permission to Jackson, Waterways Management, U.S. (water), Reporting and recordkeeping do so. The Captain of the Port or his on- Coast Guard Sector San Diego; requirements, Security measures, scene representative may be contacted telephone 619–278–7262, e-mail Waterways. via VHF Channel 16. Vessel operators [email protected]. If you have ■ For the reasons discussed in the given permission to enter or operate in questions on viewing the docket, call preamble, the Coast Guard amends 33 the safety zone must comply with all Renee V. Wright, Program Manager, CFR part 165 as follows: directions given to them by the Captain Docket Operations, telephone 202–366– of the Port Sault Sainte Marie or his on- 9826. PART 165—REGULATED NAVIGATION scene representative. AREAS AND LIMITED ACCESS AREAS SUPPLEMENTARY INFORMATION: Dated: July 8, 2009. ■ 1. The authority citation for part 165 M.J. Huebschman, Regulatory Information continues to read as follows: Captain, U.S. Coast Guard, Captain of the The Coast Guard is issuing this Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Port Sault Sainte Marie. temporary final rule without prior Chapters 701, 3306, 3703; 50 U.S.C. 191, 195; [FR Doc. E9–17245 Filed 7–20–09; 8:45 am] notice and opportunity to comment 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; BILLING CODE 4910–15–P pursuant to authority under section 4(a) Pub. L. 107–295, 116 Stat. 2064; Department of the Administrative Procedure Act of Homeland Security Delegation No. 0170.1. (APA) (5 U.S.C. 553(b)). This provision ■ 2. Add new temporary § 165.T09– DEPARTMENT OF HOMELAND authorizes an agency to issue a rule 0649 as follows: SECURITY without prior notice and opportunity to comment when the agency for good § 165.T09–0649 Safety Zone; Friends of Coast Guard cause finds that those procedures are Fireworks Celebration, Lake Huron, St. ‘‘impracticable, unnecessary, or contrary Ignace, MI. 33 CFR Part 165 to the public interest.’’ Under 5 U.S.C. (a) Location. The following area is a [Docket No. USCG–2009–0513] 553(b)(B), the Coast Guard finds that temporary safety zone: all waters of good cause exists for not publishing a Lake Huron within a 1,000-foot radius RIN 1625–AA00 notice of proposed rulemaking (NPRM) from the Fireworks launch site in East Safety Zone; Access Destinations with respect to this rule because the Moran Bay, with its center in position: Fireworks Display, San Diego Bay, CA logistical arrangements of the fireworks 45°52′43″ N, 84°43′69″ W. (NAD 83). show were neither finalized nor (b) Effective period. This rule is AGENCY: Coast Guard, DHS. presented to the Coast Guard in enough effective from 9 p.m. on July 11, 2009 ACTION: Temporary final rule. time to draft and publish an NPRM, and until 11 p.m. on September 5, 2009. any delay in the effective date of this This rule will be enforced from 9 p.m. SUMMARY: The Coast Guard is rule would expose members of the to 11 p.m. on July 11, July 18, July 25, establishing a safety zone on the public to the dangers associated with August 1, August 8, August 15, August navigable waters of San Diego Bay in fireworks displays. 22, August 29, and September 5, 2009. support of the Access Destinations For the same reasons, the Coast Guard If a fireworks are cancelled due to Fireworks. This temporary safety zone is also finds under 5 U.S.C. 553(d)(3) that inclement weather, then this rule will necessary to provide for the safety of the good cause exists for making this rule

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effective less than 30 days after small businesses, not-for-profit impose a substantial direct cost of publication in the Federal Register. organizations that are independently compliance on them. We have analyzed owned and operated and are not this rule under that Order and have Background and Purpose dominant in their fields, and determined that it does not have The Access Destinations is sponsoring governmental jurisdictions with implications for federalism. the Access Destinations Fireworks, populations of less than 50,000. which will include a fireworks The Coast Guard certifies under 5 Unfunded Mandates Reform Act presentation originating from the flight U.S.C. 605(b) that this rule will not have The Unfunded Mandates Reform Act deck of the U.S.S. Midway in San Diego a significant economic impact on a of 1995 (2 U.S.C. 1531–1538) requires Bay. The safety zone will encompass all substantial number of small entities. Federal agencies to assess the effects of navigable waters within 250 feet of any This rule will affect the following their discretionary regulatory actions. In point of the U.S.S. Midway, which will entities, some of which may be small particular, the Act addresses actions be located at approximately 32°42′52″ entities: The owners or operators of that may result in the expenditure by a N, 117°10′35″ W. vessels intending to transit or anchor in State, local, or tribal government, in the a portion of the San Diego Bay from 8:00 aggregate, or by the private sector of Discussion of Rule p.m. to 10 p.m. on July 30, 2009. $100,000,000 or more in any one year. The Coast Guard is establishing a This safety zone will not have a Though this rule will not result in such safety zone that will be enforced from 8 significant economic impact on a an expenditure, we do discuss the p.m. to 10 p.m. on July 30, 2009. The substantial number of small entities for effects of this rule elsewhere in this safety zone is necessary to provide for the following reasons. This rule will be preamble. the safety of the crew, spectators, other enforced only two hours in the evening members of the public, and vessels on when vessel traffic is low. Vessel traffic Taking of Private Property the waterway. Persons and vessels will can pass safely around the zone. Before This rule will not effect a taking of be prohibited from entering into, the effective period, the Coast Guard private property or otherwise have transiting through, or anchoring within will publish a local notice to mariners taking implications under Executive this safety zone unless authorized by the (LNM) and will issue broadcast notice to Order 12630, Governmental Actions and Captain of the Port or his designated mariners (BNM) alerts via marine Interference with Constitutionally representative. The limits of the safety channel 16 VHF before the temporary Protected Property Rights. zone encompass all navigable waters safety zone is enforced. Civil Justice Reform within 250 feet of any point of the U.S.S. Midway, which will be located at Assistance for Small Entities This rule meets applicable standards approximately 32°42′52″ N, 117°10′35″ Under section 213(a) of the Small in sections 3(a) and 3(b)(2) of Executive W. Business Regulatory Enforcement Order 12988, Civil Justice Reform, to Fairness Act of 1996 (Pub. L. 104–121), minimize litigation, eliminate Regulatory Analyses we offer to assist small entities in ambiguity, and reduce burden. We developed this rule after understanding the rule so that they can Protection of Children considering numerous statutes and better evaluate its effects on them and executive orders related to rulemaking. participate in the rulemaking process. We have analyzed this rule under Below, we summarize our analyses Small businesses may send comments Executive Order 13045, Protection of based on 13 of these statutes or on the actions of Federal employees Children from Environmental Health executive orders. who enforce, or otherwise determine Risks and Safety Risks. This rule is not compliance with, Federal regulations to an economically significant rule and Regulatory Planning and Review the Small Business and Agriculture does not create an environmental risk to This rule is not a significant Regulatory Enforcement Ombudsman health or risk to safety that may regulatory action under section 3(f) of and the Regional Small Business disproportionately affect children. Executive Order 12866, Regulatory Regulatory Fairness Boards. The Indian Tribal Governments Planning and Review, and does not Ombudsman evaluates these actions require an assessment of potential costs annually and rates each agency’s This rule does not have tribal and benefits under section 6(a)(3) of that responsiveness to small business. If you implications under Executive Order Order. The Office of Management and wish to comment on actions by 13175, Consultation and Coordination Budget has not reviewed it under that employees of the Coast Guard, call with Indian Tribal Governments, Order. 1–888–REG–FAIR (1–888–734–3247). because it does not have a substantial This determination is based on the The Coast Guard will not retaliate direct effect on one or more Indian size, location, and short duration of the against small entities that question or tribes, on the relationship between the safety zone. Commercial vessels will not complain about this rule or any policy Federal Government and Indian tribes, be hindered by the safety zone. or action of the Coast Guard. or on the distribution of power and Recreational vessels will not be allowed responsibilities between the Federal to transit through the established safety Collection of Information Government and Indian tribes. zone during the specified times unless This rule calls for no new collection Energy Effects authorized to do so by the Captain of the of information under the Paperwork Port or his designated representative. Reduction Act of 1995 (44 U.S.C. 3501– We have analyzed this rule under 3520). Executive Order 13211, Actions Small Entities Concerning Regulations That Under the Regulatory Flexibility Act Federalism Significantly Affect Energy Supply, (5 U.S.C. 601–612), we have considered A rule has implications for federalism Distribution, or Use. We have whether this rule would have a under Executive Order 13132, determined that it is not a ‘‘significant significant economic impact on a Federalism, if it has a substantial direct energy action’’ under that order because substantial number of small entities. effect on State or local governments and it is not a ‘‘significant regulatory action’’ The term ‘‘small entities’’ comprises would either preempt State law or under Executive Order 12866 and is not

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likely to have a significant adverse effect PART 165—REGULATED NAVIGATION GENERAL SERVICES on the supply, distribution, or use of AREAS AND LIMITED ACCESS AREAS ADMINISTRATION energy. The Administrator of the Office of Information and Regulatory Affairs ■ 1. The authority citation for part 165 41 CFR Chapter 301 continues to read as follows: has not designated it as a significant [FTR Amendment 2009–05; FTR Case 2009– energy action. Therefore, it does not Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 305; Docket Number 2009–0001, Sequence require a Statement of Energy Effects Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 5] under Executive Order 13211. 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Pub. L. 107–295, 116 Stat. 2064; Department RIN 3090–AI93 Technical Standards of Homeland Security Delegation No. 0170.1. Federal Travel Regulation (FTR); FTR The National Technology Transfer ■ 2. Add temporary § 165.T11–213 to Case 2009–305; Travel Purpose and Advancement Act (NTTAA) (15 read as follows: Identifier U.S.C. 272 note) directs agencies to use § 165.T11–213 Safety Zone; Access AGENCY: Office of Governmentwide voluntary consensus standards in their Destinations Fireworks; San Diego Bay, CA. Policy (MTT), GSA. regulatory activities unless the agency provides Congress, through the Office of (a) Location. The following area is a ACTION: Final rule. safety zone: All waters, from surface to Management and Budget, with an bottom, within 250 feet of any point on SUMMARY: The General Services explanation of why using these the U.S.S. Midway, located at Administration (GSA) is amending the standards would be inconsistent with approximately 32°42′52″ N, 117°10′35″ provisions of the Federal Travel applicable law or otherwise impractical. W. Regulation (FTR) that pertain to the use Voluntary consensus standards are (b) Enforcement period. This section of the travel purpose identifiers. This technical standards (e.g., specifications final rule updates the list of travel of materials, performance, design, or will be enforced from 8 p.m. to 10 p.m. on July 30, 2009. If the event concludes purpose identifiers and incorporates operation; test methods; sampling new descriptive language for each procedures; and related management prior to the scheduled termination time, the Captain of the Port will cease identifier to enhance how travel costs systems practices) that are developed or are indentified by Federal agencies. adopted by voluntary consensus enforcement of this safety zone and will DATES: Effective Date: This final rule is standards bodies. announce that fact via Broadcast Notice to Mariners. effective August 20, 2009. This rule does not use technical (c) Definitions. The following Applicability Date: This final rule is standards. Therefore, we did not definition applies to this section: applicable to travel performed on, or consider the use of voluntary consensus Designated representative, means any after August 20, 2009. standards. commissioned, warrant, or petty officers FOR FURTHER INFORMATION CONTACT: The Environment of the Coast Guard on board Coast Regulatory Secretariat (VPR), Room Guard, Coast Guard Auxiliary, or local, 4041, GS Building, Washington, DC We have analyzed this rule under state, or federal law enforcement vessels 20405, (202) 501–4744, for information Department of Homeland Security who have been authorized to act on the pertaining to status or publication Management Directive 023–01 and behalf of the Captain of the Port. schedules. For clarification of content, Commandant Instruction M16475.lD, (d) Regulations. (1) Entry into, transit contact Mr. Rick Miller, Office of Travel, which guide the Coast Guard in through or anchoring within this safety Transportation and Asset Management complying with the National zone is prohibited unless authorized by (MT), General Services Administration Environmental Policy Act of 1969 the Captain of the Port of San Diego or at (202) 501–3822 or e-mail at (NEPA) (42 U.S.C. 4321–4370f), and his designated on-scene representative. [email protected]. Please cite FTR have concluded this action is one of a (2) Mariners requesting permission to Amendment 2009–05; FTR Case 2009– category of actions which do not transit through the safety zone may 305. individually or cumulatively have a request authorization to do so from the SUPPLEMENTARY INFORMATION: The significant effect on the human Sector San Diego Communications Federal Government began using travel environment. This rule is categorically Center (COMCEN). The COMCEN may purpose identifiers in the mid-1970s as excluded, under figure 2–1, paragraph be contacted via VHF–FM channel 16 or a result of Congressional interest in the (34)(g), of the Instruction. This rule (619) 278–7033. types of travel funded by the involves the establishment of a (3) All persons and vessels shall Government. Travel purpose identifiers temporary safety zone for a marine comply with the instructions of the categorize the various types of travel event. Coast Guard Captain of the Port or the that occur in support of an agency’s An environmental analysis designated representative. mission and help classify associated and a categorical exclusion (4) Upon being hailed by U.S. Coast costs for that mission. determination are available in the Guard patrol personnel by siren, radio, The travel purpose identifiers used docket where indicated under flashing light, or other means, the today and listed in Appendix C to ADDRESSES. operator of a vessel shall proceed as Chapter 301 of FTR are as follows: (1) directed. Site Visit, (2) Information Meeting, (3) List of Subjects in 33 CFR Part 165 (5) The Coast Guard may be assisted Training Attendance, (4) Speech or Presentation, (5) Conference Harbors, Marine safety, Navigation by other federal, state, or local agencies. Attendance, (6) Relocation, and (7) (water), Reporting and recordkeeping Dated: July 6, 2009. Entitlement Travel. As the requirements, Security measures, T.H. Farris, Government’s missions have changed Waterways. Captain, U.S. Coast Guard, Captain of the over time, it has become questionable as ■ For the reasons discussed in the Port San Diego. to whether or not the current identifiers preamble, the Coast Guard amends 33 [FR Doc. E9–17247 Filed 7–20–09; 8:45 am] adequately capture the complexity of CFR Part 165 as follows: BILLING CODE 4910–15–P modern Federal travel.

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Consequently, GSA and several other • Standardize identifiers across the information collection requirements, or agencies established a Travel Purpose Government; the collection of information from Identifier Focus Group to: • Provide the ability to report travel offerors, contractors, or members of the • Review the current identifiers; spending by purpose; public that requires the approval of the • • Recommend what, if any, changes Permit the highlighting of special Office of Management and Budget travel requirements in agency budgets should be made; (OMB) under 44 U.S.C. 3501 et seq. • and missions; Develop one common list of • Allow agencies to develop mission- E. Small Business Regulatory identifiers with the flexibility to specific sub-identifiers; and Enforcement Fairness Act accommodate agency-specific sub- • Provide a greater opportunity to This final rule is also exempt from identifiers; and develop standardized reports • congressional review prescribed under 5 Provide definitions for the new Governmentwide. U.S.C. 801 since it relates to agency identifiers. The new travel purpose identifiers are management and personnel. During the review, the focus group as follows: (1) Employee Emergency, (2) evaluated the current identifiers and Mission (Operational), (3) Special List of Subjects in 41 CFR Appendix C discussed current travel processes to Agency Mission, (4) Conference—Other to Chapter 301 include: Trends and changes that have Than Training, (5) Training, and (6) Standard Data Elements for Federal occurred since the travel purpose Relocation. Travel (Traveler Identification) identifiers were last updated in 1998, B. Executive Order 12866 Dated: May 8, 2009. how funding is appropriated, what is Paul F. Prouty, still relevant, and what new processes This final rule is not a significant need to be evaluated and/or regulatory action and, therefore, was not Acting Administrator. implemented to improve the travel subject to review under Section 6(b) of ■ For the reasons set forth in the purpose identification process. Two key Executive Order 12866, Regulatory preamble and pursuant to 5 U.S.C. points seemed evident, namely that Planning and Review, dated September 5701–5709, 41 CFR Appendix C to ‘‘Employee Emergency’’ and ‘‘Mission’’ 30, 1993. This final rule is not a major Chapter 301 is amended to read as travel should be addressed and each rule under 5 U.S.C. 804. follows: identifier should be better defined and C. Regulatory Flexibility Act CHAPTER 301—[AMENDED] categorized. This final rule is not required to be ■ Amend Appendix C to Chapter 301, in The focus group deliberations published in the Federal Register for the table named ‘‘Traveler concluded that the current travel notice and comment, and therefore the Identification’’ by revising the entries purpose identifiers did not adequately Regulatory Flexibility Act, 5 U.S.C. 601, ‘‘Travel Purpose Identifier’’ and define the types of travel that regularly et seq., does not apply. ‘‘Payment Method’’ to read as follows: occur today. Thus, the group recommended six new travel purpose D. Paperwork Reduction Act identifiers for use within the Federal The Paperwork Reduction Act does Appendix C to Chapter 301—Standard community. Adoption of the not apply because the final changes to Data Elements for Federal Travel recommended identifiers would: the FTR do not impose recordkeeping or [Travel Identification]

Group name Data elements Description

******* Travel Purpose Identi- Employee Emergency Travel related to an unexpected occurrence/event or injury/illness that affects the employee fier. personally and/or directly that requires immediate action/attention. Examples: Traveler is in- capacitated by illness or injury, death or serious illness of a family member (as defined in § 300–3.1 or § 301–30.2), or catastrophic occurrence or impending disaster that directly af- fects the employee’s home. Emergency travel also includes travel for medical care while employee is TDY away from the official duty station (Part 301–30), death of an employee/ immediate family member when performing official duties away from the official duty station or home of record (Part 303–70), medical attendant transportation (Part 301–30), assist- ance travel for an employee with special needs (Part 301–13), as well as travel for threat- ened law enforcement/investigative employees (Part 301–31). Mission (Operational) .. Travel to a particular site in order to perform operational or managerial activities. Travel to at- tend a meeting to discuss general agency operations, review status reports, or discuss top- ics of general interest. Examples: Employee’s day-to-day operational or managerial activi- ties, as defined by the agency, to include, but not be limited to: hearings, site visit, informa- tion meeting, inspections, audits, investigations, and examinations. Special Agency Mis- Travel to carry out a special agency mission and/or perform a task outside the agency’s nor- sion. mal course of day-to-day business activities that is unique or distinctive. These special mis- sions are defined by the head of agency and are normally not programmed in the agency annual funding authorization. Examples: These agency-defined special missions may in- clude details, security missions, and agency emergency response/recovery such as civil, natural disasters, evacuation, catastrophic events, technical assistance, evaluations or as- sessments. Conference—Other Travel performed in connection with a prearranged meeting, retreat, convention, seminar, or Than Training. symposium for consultation or exchange of information or discussion. Agencies have to distinguish between conference and training attendance and use the appropriate identifier (see Training below). Examples: To participate in a planned program as a speaker/panelist or other form of presentation, host, planner, or others designated to oversee the con- ference or attendance with no formal role, or as an exhibitor.

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Group name Data elements Description

Training ...... Travel in conjunction with educational activities to become proficient or qualified in one or more areas of responsibility. 5 USC 4101(4) states that ‘‘ ‘training’ means the process of providing for and making available to an employee, and placing or enrolling the employee in a planned, prepared, and coordinated program, course, curriculum, subject, system, or routine of instruction or education, in scientific, professional, technical, mechanical, trade, clerical, fiscal, administrative, or other fields which will improve individual and organiza- tional performance and assist in achieving the agency’s mission and performance goals.’’ The term ‘‘conference’’ may also apply to training activities that are considered to be con- ferences under 5 CFR 410.404, which states that ‘‘agencies may sponsor an employee’s attendance at a conference as a developmental assignment under section 4110 of title 5, United States Code, when: (a) The announced purpose of the conference is educational or instructional; (b) More than half of the time is scheduled for a planned, organized exchange of information between presenters and audience which meets the definition of training in section 4101 of title 5, United States Code; (c) The content of the conference is germane to improving individual and/or organizational performance, and (d) Development benefits will be derived through the employee’s attendance.’’ Agencies have to distinguish between conference and training attendance and use the appropriate identifier (see Conference— Other Than Training above). Examples: Job required training, Internships, Intergovern- mental Personnel Act, and forums. Relocation ...... Travel performed in connection with a transfer from one official duty station to another for employees/immediate family members, as applicable. Examples: Permanent change of sta- tion (PCS) moves for domestic and international transferees/new appointees, tour renewal, temporary change of station (TCS), and last move home.

******* Payment Method ...... EFT ...... Direct deposit via electronic funds transfer. Treasury Check ...... Payment made by Treasury check. Imprest Fund ...... Payment made by Imprest Fund.

*******

[FR Doc. E9–17128 Filed 7–20–09; 8:45 am] publication in the Federal Register on a 59. Accordingly, the communities will BILLING CODE 6820–14–P subsequent date. be suspended on the effective date in DATES: Effective Dates: The effective the third column. As of that date, flood date of each community’s scheduled insurance will no longer be available in DEPARTMENT OF HOMELAND suspension is the third date (‘‘Susp.’’) the community. However, some of these SECURITY listed in the third column of the communities may adopt and submit the following tables. required documentation of legally Federal Emergency Management enforceable floodplain management FOR FURTHER INFORMATION CONTACT: If Agency measures after this rule is published but you want to determine whether a prior to the actual suspension date. particular community was suspended 44 CFR Part 64 These communities will not be on the suspension date or for further suspended and will continue their [Docket ID FEMA–2008–0020; Internal information, contact David Stearrett, eligibility for the sale of insurance. A Agency Docket No. FEMA–8083] Mitigation Directorate, Federal notice withdrawing the suspension of Emergency Management Agency, 500 C Suspension of Community Eligibility the communities will be published in Street, SW., Washington, DC 20472, the Federal Register. AGENCY: Federal Emergency (202) 646–2953. In addition, FEMA has identified the Management Agency, DHS. SUPPLEMENTARY INFORMATION: The NFIP Special Flood Areas (SFHAs) in ACTION: Final rule. enables property owners to purchase these communities by publishing a flood insurance which is generally not Flood Insurance Rate Map (FIRM). The SUMMARY: This rule identifies otherwise available. In return, date of the FIRM, if one has been communities, where the sale of flood communities agree to adopt and published, is indicated in the fourth insurance has been authorized under administer local floodplain management column of the table. No direct Federal the National Flood Insurance Program aimed at protecting lives and new financial assistance (except assistance (NFIP), that are scheduled for construction from future flooding. pursuant to the Robert T. Stafford suspension on the effective dates listed Section 1315 of the National Flood Disaster Relief and Emergency within this rule because of Insurance Act of 1968, as amended, 42 Assistance Act not in connection with a noncompliance with the floodplain U.S.C. 4022, prohibits flood insurance flood) may legally be provided for management requirements of the coverage as authorized under the NFIP, construction or acquisition of buildings program. If the Federal Emergency 42 U.S.C. 4001 et seq.; unless an in identified SFHAs for communities Management Agency (FEMA) receives appropriate public body adopts not participating in the NFIP and documentation that the community has adequate floodplain management identified for more than a year, on adopted the required floodplain measures with effective enforcement FEMA’s initial flood insurance map of management measures prior to the measures. The communities listed in the community as having flood-prone effective suspension date given in this this document no longer meet that areas (section 202(a) of the Flood rule, the suspension will not occur and statutory requirement for compliance Disaster Protection Act of 1973, 42 a notice of this will be provided by with program regulations, 44 CFR part U.S.C. 4106(a), as amended). This

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prohibition against certain types of Regulatory Flexibility Act. The Executive Order 12988, Civil Justice Federal assistance becomes effective for Administrator has determined that this Reform. This rule meets the applicable the communities listed on the date rule is exempt from the requirements of standards of Executive Order 12988. shown in the last column. The the Regulatory Flexibility Act because Paperwork Reduction Act. This rule Administrator finds that notice and the National Flood Insurance Act of does not involve any collection of public comment under 5 U.S.C. 553(b) 1968, as amended, 42 U.S.C. 4022, information for purposes of the are impracticable and unnecessary prohibits flood insurance coverage Paperwork Reduction Act, 44 U.S.C. because communities listed in this final unless an appropriate public body 3501 et seq. adopts adequate floodplain management rule have been adequately notified. List of Subjects in 44 CFR Part 64 measures with effective enforcement Each community receives 6-month, measures. The communities listed no Flood insurance, Floodplains. 90-day, and 30-day notification letters longer comply with the statutory ■ Accordingly, 44 CFR part 64 is addressed to the Chief Executive Officer requirements, and after the effective amended as follows: stating that the community will be date, flood insurance will no longer be suspended unless the required available in the communities unless PART 64—[AMENDED] floodplain management measures are remedial action takes place. met prior to the effective suspension ■ 1. The authority citation for part 64 Regulatory Classification. This final continues to read as follows: date. Since these notifications were rule is not a significant regulatory action made, this final rule may take effect under the criteria of section 3(f) of Authority: 42 U.S.C. 4001 et seq.; within less than 30 days. Executive Order 12866 of September 30, Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp.; p. 329; E.O. 12127, 44 FR 19367, National Environmental Policy Act. 1993, Regulatory Planning and Review, 3 CFR, 1979 Comp.; p. 376. This rule is categorically excluded from 58 FR 51735. the requirements of 44 CFR part 10, Executive Order 13132, Federalism. § 64.6 [Amended]. Environmental Considerations. No This rule involves no policies that have ■ 2. The tables published under the environmental impact assessment has federalism implications under Executive authority of § 64.6 are amended as been prepared. Order 13132. follows:

Date certain Federal assist- State and location Community Effective date authorization/cancellation of Current effective ance no longer No. sale of flood insurance in community map date available in SFHAs

Region III Virginia: Charlotte County, Unincorporated Areas 510333 November 26, 1996, Emerg; November 1, July 20, 2009 .... July 20, 2009. 1997, Reg; July 20, 2009, Susp. Drakes Branch, Town of, Charlotte 510032 October 18, 1974, Emerg; June 11, 1982, ...... *do ...... Do. County. Reg; July 20, 2009, Susp. King William County, Unincorporated 510304 May 22, 1975, Emerg; February 6, 1991, ...... do ...... Do. Areas. Reg; July 20, 2009, Susp. Lunenburg County, Unincorporated 510309 October 5, 1978, Emerg; February 25, ...... do ...... Do. Areas. 1983, Reg; July 20, 2009, Susp. Phenix, Town of, Charlotte County ...... 510302 July 8, 1975, Emerg; February 25, 1983, ...... do ...... Do. Reg; July 20, 2009, Susp. West Point, Town of, King William 510083 April 16, 1975, Emerg; June 18, 1990, Reg; ...... do ...... Do. County. July 20, 2009, Susp. Region IV North Carolina: Gates County, Unincorporated Areas ... 370103 March 4, 1976, Emerg; July 16, 1991, Reg; ...... do ...... Do. July 20, 2009, Susp. Gatesville, Town of, Gates County ...... 370104 July 8, 1975, Emerg; May 13, 1977, Reg; ...... do ...... Do. July 20, 2009, Susp. Region V Ohio: Akron, City of, Summit County ...... 390523 February 18, 1975, Emerg; February 18, ...... do ...... Do. 1981, Reg; July 20, 2009, Susp. Barberton, City of, Summit County ...... 390524 September 13, 1974, Emerg; January 16, ...... do ...... Do. 1981, Reg; July 20, 2009, Susp. Boston Heights, Village of, Summit 390749 November 16, 1976, Emerg; February 18, ...... do ...... Do. County. 1981, Reg; July 20, 2009, Susp. Clinton, Village of, Summit County ...... 390525 June 9, 1975, Emerg; July 2, 1980, Reg; ...... do ...... Do. July 20, 2009, Susp. Cuyahoga Falls, City of, Summit Coun- 390526 February 27, 1975, Emerg; February 18, ...... do ...... Do. ty. 1981, Reg; July 20, 2009, Susp. Fairlawn, City of, Summit County ...... 390657 December 29, 1975, Emerg; January 16, ...... do ...... Do. 1981, Reg; July 20, 2009, Susp. Green, City of, Summit County ...... 390927 NA, Emerg; May 29, 2002, Reg; July 20, ...... do ...... Do. 2009, Susp. Hudson, City of, Summit County ...... 390660 May 19, 1975, Emerg; September 30, 1980, ...... do ...... Do. Reg; July 20, 2009, Susp.

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Date certain Federal assist- State and location Community Effective date authorization/cancellation of Current effective ance no longer No. sale of flood insurance in community map date available in SFHAs

Lakemore, Village of, Summit County... 390527 August 8, 1975, Emerg; May 25, 1978, ...... do ...... Do. Reg; July 20, 2009, Susp. Macedonia, City of, Summit County ...... 390750 November 11, 1976, Emerg; February 4, ...... do ...... Do. 1981, Reg; July 20, 2009, Susp. Mogadore, Village of, Summit County .. 390528 June 11, 1975, Emerg; September 3, 1979, ...... do ...... Do. Reg; July 20, 2009, Susp. Munroe Falls, City of, Summit County .. 390843 October 26, 1988, Emerg; May 16, 1994, ...... do ...... Do. Reg; July 20, 2009, Susp. Norton, City of, Summit County ...... 390529 July 2, 1975, Emerg; January 16, 1981, ...... do ...... Do. Reg; July 20, 2009, Susp. Peninsula, Village of, Summit County... 390530 June 25, 1975, Emerg; March 2, 1979, ...... do ...... Do. Reg; July 20, 2009, Susp. Reminderville, Village of, Summit Coun- 390855 July 9, 1980, Emerg; May 17, 1990, Reg; ...... do ...... Do. ty. July 20, 2009, Susp. Stow, City of, Summit County ...... 390532 November 12, 1973, Emerg; July 17, 1978, ...... do ...... Do. Reg; July 20, 2009, Susp. Summit County, Unincorporated Areas 390781 November 21, 1975, Emerg; April 15, 1981, ...... do ...... Do. Reg; July 20, 2009, Susp. Twinsburg, City of, Summit County ...... 390534 September 18, 1973, Emerg; February 4, ...... do ...... Do. 1981, Reg; July 20, 2009, Susp. Wisconsin: Amherst, Village of, Portage County ..... 550338 April 2, 1975, Emerg; January 17, 1991, ...... do ...... Do. Reg; July 20, 2009, Susp. Nelsonville, Village of, Portage County 550339 July 1, 1975, Emerg; September 1, 1986, ...... do ...... Do. Reg; July 20, 2009, Susp. Plover, Village of, Portage County ...... 550340 April 23, 1974, Emerg; March 1, 1984, Reg; ...... do ...... Do. July 20, 2009, Susp. Portage County, Unincorporated Areas 550572 February 10, 1975, Emerg; June 1, 1983, ...... do ...... Do. Reg; July 20, 2009, Susp. Rosholt, Village of, Portage County ...... 550341 June 24, 1975, Emerg; September 1, 1988, ...... do ...... Do. Reg; July 20, 2009, Susp. Stevens Point, City of, Portage County 550342 August 2, 1974, Emerg; June 1, 1983, Reg; ...... do ...... Do. July 20, 2009, Susp. Whiting, Village of, Portage County ...... 550607 February 15, 1984, Emerg; February 15, ...... do ...... Do. 1984, Reg; July 20, 2009, Susp. Region VI Oklahoma: Cache, Town of, Comanche County ..... 400048 March 10, 1975, Emerg; March 18, 1987, ...... do ...... Do. Reg; July 20, 2009, Susp. Faxon, Town of, Comanche County ..... 400522 NA , Emerg; June 20, 2008, Reg; July 20, ...... do ...... Do. 2009, Susp. Indiahoma, Town of, Comanche County 400287 June 24, 1977, Emerg; April 15, 1982, Reg; ...... do ...... Do. July 20, 2009, Susp. Lawton, City of, Comanche County ...... 400049 November 15, 1973, Emerg; December 1, ...... do ...... Do. 1978, Reg; July 20, 2009, Susp. Sterling, Town of, Comanche County ... 400414 February 19, 1976, Emerg; July 5, 1978, ...... do ...... Do. Reg; July 20, 2009, Susp. Region VIII South Dakota: Corona, Town of, Roberts County ...... 460071 September 25, 1975, Emerg; March 4, ...... do ...... Do. 1987, Reg; July 20, 2009, Susp. Roberts County, Unincorporated Areas 460286 February 21, 1980, Emerg; October 1, ...... do ...... Do. 1986, Reg; July 20, 2009, Susp. Sisseton, City of, Roberts County ...... 460072 May 14, 1975, Emerg; May 1, 1986, Reg; ...... do ...... Do. July 20, 2009, Susp. *do = Ditto. Code for reading third column: Emerg.—Emergency; Reg.—Regular; Susp—Suspension.

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Dated: July 7, 2009. SUPPLEMENTARY INFORMATION: III. Background Deborah S. Ingram, Table of Contents We published a notice of proposed Acting Deputy Assistant Administrator for rulemaking on April 24, 2009 (NPRM, Mitigation, Mitigation Directorate. I. Abbreviations 74 FR 18669). The NPRM proposed an [FR Doc. E9–17211 Filed 7–20–09; 8:45 am] II. Effective Date III. Background average 9.41% increase. BILLING CODE 9110–12–P IV. Discussion of Comments This rulemaking increases Great Lakes V. Discussion of the Final Rule pilotage rates in accord with the VI. Regulatory Evaluation methodology contained in Coast Guard DEPARTMENT OF HOMELAND A. Small Entities regulations in 46 CFR Parts 401–404. SECURITY B. Assistance for Small Entities Our regulations implement the Great C. Collection of Information Lakes Pilotage Act of 1960, 46 U.S.C. Coast Guard D. Federalism Chapter 93, which requires foreign-flag E. Unfunded Mandates Reform Act vessels engaged in foreign trade to use 46 CFR Part 401 F. Taking of Private Property G. Civil Justice Reform Federally registered Great Lakes pilots [Docket No. USCG–2008–1126] H. Protection of Children while transiting the St. Lawrence I. Indian Tribal Governments Seaway and the Great Lakes system, and RIN 1625–AB29 J. Energy Effects which requires the Secretary of K. Technical Standards Homeland Security to ‘‘prescribe by 2009 Rates for Pilotage on the Great L. Environment regulation rates and charges for pilotage Lakes I. Abbreviations services, giving consideration to the AGENCY: Coast Guard, DHS. public interest and the costs of AMOU American Maritime Officer providing the services.’’ 46 U.S.C. ACTION: Final rule. Union 9303(f). GLPAC Great Lakes Pilotage Advisory SUMMARY: The Coast Guard is increasing The U.S. waters of the Great Lakes the rates for pilotage service on the Committee and the St. Lawrence Seaway are Great Lakes by an average of 10.77% MISLE Coast Guard Marine Inspection, divided into three pilotage Districts. over the rates that took effect February Safety, and Law Enforcement system Pilotage in each District is provided by 4, 2009. This increase reflects an August MOA Memorandum of Agreement an association certified by the Coast 1, 2009, increase in benchmark NAICS North American Industry Guard Director of Great Lakes Pilotage contractual wages and benefits, as well Classification System to operate a pilotage pool. It is as an increase in the ratio of pilots to NPRM Notice of Proposed Rulemaking important to note that, while we set ‘‘bridge hours.’’ The Coast Guard NTTAA National Technology Transfer rates, we do not control the actual intends the final rule to generate and Advancement Act number of pilots an association sufficient revenue to cover allowable OMB Office of Management and maintains, so long as the association is expenses, target pilot compensation, Budget able to provide safe, efficient, and reliable pilotage service, nor do we and returns on investment. The final II. Effective Date rule promotes the Coast Guard strategic control the actual compensation that goal of maritime safety. This final rule takes effect August 1, pilots receive. This is determined by 2009. Under 5 U.S.C. 553(d), we find each of the three District associations, DATES: This final rule is effective August good cause for this final rule to take which use different compensation 1, 2009. effect less than 30 days after practices. ADDRESSES: Comments and material publication. The Great Lakes Pilotage District One, consisting of Areas 1 and received from the public, as well as Act of 1960, as amended by Public Law 2, includes all U.S. waters of the St. documents mentioned in this preamble 109–241, section 302, requires the Coast Lawrence River and Lake Ontario. as being available in the docket, are part Guard to review and adjust the Great District Two, consisting of Areas 4 and of docket USCG–2008–1126 and are Lakes pilotage rates annually by March 5, includes all U.S. waters of Lake Erie, available for inspection or copying at 1. We could not issue this final rule the Detroit River, Lake St. Clair, and the the Docket Management Facility (M–30), until some months after that date due to St. Clair River. District Three, consisting U.S. Department of Transportation, the time needed to review and resolve of Areas 6, 7, and 8, includes all U.S. West Building Ground Floor, Room comments received on the proposed waters of the St. Mary’s River, Sault Ste. W12–140, 1200 New Jersey Avenue, SE., rule. We nonetheless need to issue the Marie Locks, and Lakes Michigan, Washington, DC 20590, between 9 a.m. final rule before the August 1, 2009, Huron, and Superior. Area 3 is the and 5 p.m., Monday through Friday, increase in benchmark contractual Welland Canal, which is serviced except Federal holidays. You may also wages and benefits that necessitates this exclusively by the Canadian Great Lakes find this docket on the Internet at year’s rate adjustment. Under these Pilotage Authority and, accordingly, is http://www.regulations.gov. circumstances, publication of the final not included in the U.S. rate structure. FOR FURTHER INFORMATION CONTACT: For rule 30 days or more in advance of the Areas 1, 5, and 7 have been designated questions on this final rule, please call August 1 benchmark increase is by Presidential Proclamation, pursuant Mr. Paul Wasserman, Chief, Great Lakes impracticable. The regulated to the Great Lakes Pilotage Act of 1960, Pilotage Branch, Commandant (CG– community well understands the to be waters in which pilots must at all 54122), U.S. Coast Guard, at 202–372– significance of the August benchmark times be fully engaged in the navigation 1535, by fax 202–372–1929, or e-mail increase and anticipates that the final of vessels in their charge. Areas 2, 4, 6, [email protected]. For rule will take effect not later than and 8 have not been so designated questions on viewing or submitting August 1. Therefore, we find that delay because they are open bodies of water. material to the docket, call Renee V. of the final rule’s effective date beyond Under the Great Lakes Pilotage Act of Wright, Chief, Dockets, Department of August 1, 2009, would be unnecessary, 1960, pilots assigned to vessels in these Transportation, telephone 202–493– and contrary to the public interest in areas are only required to ‘‘be on board 0402. timely rate increases. and available to direct the navigation of

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the vessel at the discretion of and shipping season was not possible, but February 1, 2008 NPRM (73 FR 6085). subject to the customary authority of the we hope to mitigate the impact of delay Mathematical results of pilots-needed master.’’ 46 U.S.C. 9302(a)(1)(B). by issuing the final rule so that it takes calculations were rounded up in all six Our pilotage regulations require effect on August 1, 2009, when the Areas where rounding was needed. annual reviews of pilotage rates and the benchmark contract increase that However, we introduced three setting of new rates at least once every accounts for a meaningful portion of adjustments in the 2008 final rule (74 five years, or sooner, if annual reviews this year’s rate adjustment takes effect. FR 220, Jan. 5, 2009). These adjustments show a need. 46 CFR 404.1. To assist in ‘‘Pilots needed’’ and rounding. One responded to public comments that calculating pilotage rates, the pilotage commenter said that, in calculating the pointed out that the NPRM and interim associations are required to submit number of pilots needed in each Area, rule overstated the bridge hour annual financial statements prepared by we should always round the result of projections for Areas 2, 4, and 5. certified public accounting firms. In our mathematical calculations up to the The first adjustment reduced addition, every fifth year, in connection nearest ‘‘whole pilot,’’ and another projected bridge hours in Area 2 from with the mandatory rate adjustment, we commenter criticized the imprecision of 7,993 to 5,650, but kept the ‘‘pilots contract with an independent the language we used in the NPRM to needed’’ for Area 2 at five, one more accounting firm to conduct a full audit describe our rounding. We agree with than would have been indicated by of the accounts and records of the this latter comment and have revised rounding up the mathematical result pilotage associations and prepare and our language in this final rule. (5,650/1,800 = 3.14, rounded up = 4). submit financial reports relevant to the We acknowledge that in recent years We exercised our discretion to do so ratemaking process. In those years when we have usually rounded the results of because ‘‘experience has demonstrated a full ratemaking is conducted, we the mathematical calculation used to the need for at least five pilots in that generate the pilotage rates using determine the number of ‘‘pilots Area,’’ a need that we discussed in Appendix A to 46 CFR Part 404. The needed,’’ pursuant to our discretionary detail in the final rule at 74 FR 221. last Appendix A review was concluded authority ‘‘to make adjustments to these Second, in Area 4, we reduced in 2006 (71 FR 16501, Apr. 3, 2006). numbers to ensure uninterrupted projected bridge hours from 8,490 to Between the five-year full ratemaking pilotage service in each area, or for other 7,320, and rounded the mathematical intervals, we annually review the reasonable circumstances.’’ 46 CFR Part result (7,320/1,800 = 4.07) down to four pilotage rates using Appendix C to Part 404, Appendix A, Step 2.B (also pilots needed. Third, in Area 5, we 404, and adjust rates when deemed applicable in Appendix C calculations). reduced projected bridge hours from appropriate. We conducted Appendix C This rounding has never been 6,395 to 5,097, and rounded the reviews in 2007 and 2008, and performed as a matter of policy, nor do mathematical result (5,097/1,000 = 5.10) increased rates in both years. The 2008 we adopt it as policy now. In fact, our up to six pilots. We exercised our final rule was published January 5, 2009 current ratemaking methodology discretion in these two Areas ‘‘because (74 FR 220), and took effect on February requires no rounding whatsoever, and the District 2 Pilots’ Association has 4, 2009. We define the terms and until 2006, what rounding we applied routinely operated with an average of formulas used in Appendix A and was merely up or down to the nearest one less pilot than is authorized under Appendix C in Appendix B to Part 404. tenth of a whole number: see, e.g., our the rate and for the last season and a This final rule concludes the annual December 12, 2003 (68 FR 69564) and half with two fewer pilots than Appendix C rate review for 2009, and March 10, 2005 (70 FR 12082) interim authorized. Accordingly, a reduction of increases rates by an average of 10.77% rules. one pilot per Area reflects actual over the rates that took effect February In the April 3, 2006 final rule (71 FR practice.’’ 74 FR at 222. We might also 4, 2009. 16501), we acknowledged nine public have observed that pilots in one Area comments in favor of rounding to whole frequently operate in other Areas as IV. Discussion of Comments numbers and approved the use of that well, that District Two comprises both We received four comments during process for that rule. However, we did Areas 4 and 5, and that the minimal the NPRM public comment period. not actually apply that methodology in downward adjustment from 4.07 to 4 in Timeliness. Three commenters, the 2006 final rule. The mathematical Area 4 should therefore be balanced including a pilots’ association, pointed result of our 2006 calculations was a against the more substantial rounding out that 46 U.S.C. 9303(f), as amended whole number in each of the seven up, from 5.10 to 6, in Area 5. by Public Law 109–241, sec. 302, Areas, because we rounded the bridge We acknowledge that the requires us to review and, if necessary, hour projections (not pilot numbers) determination of pilots needed is an establish adjusted pilotage rates by that year. issue of concern to many, and that some March 1 of each year, in order to In the 2007 interim rule (72 FR 8115, might wish to see the formula for that provide critical information before the Feb. 23, 2007), we agreed with a public determination modified to require start of the annual Great Lakes shipping commenter that the rounding of bridge ‘‘rounding up’’ in all instances. We season, usually in early spring. These hour projections in 2006 was a observe that the ratemaking formula was commenters point out that we have not departure from past practice and agreed never designed to produce anything met the March 1, 2009, deadline for this to use unrounded bridge hour more than a useful model for year’s review. We acknowledge this and projections. We also rounded the subsequent calculations. It could be future compliance is a Coast Guard mathematical results of our pilots- argued that the model worked best priority. In 2007 and 2008, we mitigated needed calculations up to the next without rounding, or with only limited the impact of delay by ensuring that whole number in all six Areas where rounding, for example because rounding interim rules were in place at the rounding was needed. These up inflates pilot numbers and makes it opening of the shipping season. In calculations were unchanged in the less likely that pilots will be able to letters dated April 24, 2007, and March 2007 final rule (72 FR 53158, Sep. 18, reach their target compensation. We 3, 2008, the pilots’ associations 2007). defer consideration of such arguments expressed their appreciation to the In 2008, the March 21, 2008 interim until they can be made and considered Coast Guard for these efforts. In 2009, rule (73 FR 15092) adopted without in the context of an overall review of publishing a rule at the beginning of the change the calculations proposed in the our ratemaking methodology. Until

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then, we intend to apply the pilots- One commenter said we should adjust 40 hour per week worker through a 52- needed calculations much as we have Area 1 projected bridge hours to more week year. done since 2007. accurately reflect anticipated traffic for We acknowledge that through the Data for bridge hour projections. One the 2009 shipping season, as we did for years, both pilots and industry have commenter said we failed to consult areas 2, 4, and 5 in the 2008 final rule indicated concerns about aspects of our industry in projecting 2009 vessel and as we proposed for District Three in ratemaking methodology. Some of those traffic, and that our bridge hour the 2009 NPRM. We agree and, in this concerns are described in projections for 2009 (i.e., the projection final rule, we are reducing the projected communications that we received of hours pilots are aboard vessels bridge hours for Area 1 from 5661 to between January 2009, when we providing pilotage service) should have 5203. We are also adjusting District published the 2008 final rule, and April been based on 2008 figures rather than Three bridge hours as indicated in the 2009, when we published the 2009 on 2007 figures. To meet the statutory NPRM. deadline for establishing rates by March Class 4 vessels. One commenter said NPRM. Those communications appear 1, 2009, we began preparing the 2009 that our pilotage rates for Class 4 vessels in the docket for this rulemaking as NPRM long before actual data for 2008 are 15% higher than Canadian rates. supplemental material. To obtain a more was available. Although our practice has This may be true, but in the past year comprehensive understanding of these not been to document every contact the difference has been less than 1%, concerns, we have decided to publish a with industry or pilots, our regulations but has varied subsequently due to notice focusing on our ratemaking and our ratemaking methodology fluctuations in the relative value of U.S. methodology, and requesting public presuppose frequent informal contacts and Canadian currency. comments. That notice appears between the Director of Great Lakes Miscellaneous. Three commenters elsewhere in today’s Federal Register. Pilotage, industry, and pilots. The took issue with various aspects of our We will refer the comments we receive information received through those ratemaking methodology. These to the Great Lakes Pilotage Advisory contacts is submitted for public comments are beyond the scope of this Committee, which Congress established comment in our NPRM. In this case, our rulemaking, which applies the to advise the Coast Guard on significant use of 2007 figures for 2009, instead of methodology as it exists today, but we policy decisions relating to Great Lakes waiting for 2008 figures, was based on address two points briefly here. One pilotage. 2008 informal discussions with pilot commenter petitioned the Coast Guard V. Discussion of the Final Rule and industry representatives that to review our formula for setting endorsed the continued use of 2007 benchmark compensation levels of Great A. Summary figures, with some modifications. Those Lakes vessel masters. We deny that modifications were explained in the petition because we have previously We are increasing pilotage rates in April 2009 NPRM. conducted the requested review and accordance with the methodology We agree with one commenter who believe the formula is correct: a outlined in Appendix C to 46 CFR Part said that the NPRM did not adequately supporting memorandum appears in the 404, by increasing rates an average explain the difference in Area 6 and docket for this rulemaking as USCG– 10.77% over the 2008 final rule. This Area 7 base period bridge hours (18,000 2008–1126–0017. The same commenter final rule puts into place, with two and 3,863, respectively), and the 2009 criticized us for not yet adopting the modifications, the rate changes we projected bridge hours for those Areas recommendations of Rear Admiral proposed in the April 24, 2009 NPRM. (13,406 and 3,259, respectively). Areas 6 Timothy J. Riker’s 2003 report on Great The first modification adjusts projected and 7 experienced a significant decrease Lakes bridge hours. We decline to adopt bridge hours in Area 1 as discussed in in 2007 actual bridge hours, from 2007 the Riker Report recommendations in part IV of this preamble. The second projections. Therefore, the 2009 full because we do not think the Report modification updates the ship tonnage projections for those Areas reflects their adequately accounted for the difference percentages under the AMO union actual 2007 bridge hours, and then between a Great Lakes pilot’s active, on contracts. This second modification further reduces those figures by an call, work life during a portion of the accounts for only 0.36% of the overall additional 10% in each Area. year and the work life of an office-based rate increase.

TABLE 1—2009 AREA RATE CHANGES

Then the proposed percentage increases If pilotage service is required in: over the current rate is:

Area 1 (designated waters) ...... 13.43 Area 2 (undesignated waters) ...... 4.79 Area 4 (undesignated waters) ...... 4.90 Area 5 (designated waters) ...... 4.48 Area 6 (undesignated waters) ...... 12.52 Area 7 (designated waters) ...... 23.64 Area 8 (undesignated waters) ...... 2.52 Overall rate change (percentage change in overall prospective unit costs/base unit costs; see Table 18) ...... 10.77

Rates for cancellation, delay, or at other than the normal boarding point B. Calculating the Rate Adjustment interruption in rendering services (46 (46 CFR 401.428), have been increased The Appendix C ratemaking CFR 401.420), and basic rates and by 10.77% in all Areas. calculation involves eight steps: charges for carrying a U.S. pilot beyond Step 1: Calculate the total economic the normal change point, or for boarding costs for the base period (i.e., pilot

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compensation expense plus all other Step 8: Adjust the base period rates by integrity or truncate the real value of the recognized expenses plus the return the percentage changes in unit cost in calculations in the ratemaking element) and divide by the total bridge Step 7. methodology described below. hours used in setting the base period The base data used to calculate each Step 1: Calculate the total economic of the eight steps comes from the 2008 rates; cost for the base period. The final rule, published in January 2009. Step 2: Calculate the ‘‘expense calculations in Step 1 are unchanged We also used the most recent union multiplier,’’ the ratio of other expenses from the NPRM, but are repeated for contracts between the American and the return element to pilot your convenience. compensation for the base period; Maritime Officers Union (AMOU) and Step 3: Calculate an annual vessel owners and operators on the In this step, for each Area, we divide ‘‘projection of target pilot Great Lakes, which we received on total economic costs for the base period compensation’’ using the same August 16, 2007, to determine target by the total bridge hours used in setting procedures found in Step 2 of Appendix pilot compensation. Bridge hour the base period rates, to yield the base A; projections for the 2009 season have cost per bridge hour. Total base period Step 4: Increase the projected pilot been obtained from historical data, economic costs include pilot compensation in Step 3 by the expense pilots, and industry. All documents and compensation expenses, plus all other multiplier in Step 2; records used in this rate calculation recognized expenses, plus the return Step 5: Adjust the result in Step 4, as have been placed in the public docket element. The calculations providing the required, for inflation or deflation; for this rulemaking and are available for total base period economic costs for Step 6: Divide the result in Step 5 by review at the addresses listed under each Area are summarized in Table 16 projected bridge hours to determine ADDRESSES. of the 2008 final rule. Total bridge hours total unit costs; Some values may not total exactly due used in setting the base period rates Step 7: Divide prospective unit costs to format rounding for presentation in were calculated in Table 13 of the 2008 in Step 6 by the base period unit costs charts and explanations in this section. final rule. Tables 2 through 4 summarize in Step 1; and The rounding does not affect the the Step 1 calculations:

TABLE 2—TOTAL ECONOMIC COST FOR BASE PERIOD, DISTRICT ONE

Area 1 St. Lawrence Area 2 Total River Lake Ontario District One

Total base period economic costs ...... $2,078,551 $1,474,806 $3,553,357 Base bridge hours ...... ÷ 5,661 ÷ 5,650 ÷ 11,311 Base cost per bridge hour ...... = $367.17 = $261.03 = $314.15

TABLE 3—TOTAL ECONOMIC COST FOR BASE PERIOD, DISTRICT TWO

Area 5 Area 4 Southeast Total Lake Erie Shoal to District Two Port Huron, MI

Total base period economic costs ...... $1,251,203 $2,334,169 $3,585,372 Base bridge hours ...... ÷ 7,320 ÷ 5,097 ÷ 12,417 Base cost per bridge hour ...... = $170.93 = $457.95 = $288.75

TABLE 4—TOTAL ECONOMIC COST FOR BASE PERIOD, DISTRICT THREE

Area 6 Lakes Huron Area 7 Area 8 Total and Michigan St. Mary’s River Lake Superior District Three

Total base period economic costs ...... $2,884,724 $1,427,515 $1,944,032 $6,256,273 Base bridge hours ...... ÷ 18,000 ÷ 3,863 ÷ 11,390 ÷ 33,253 Base cost per bridge hour ...... = $160.26 = $369.54 = $170.68 = $188.14

Step 2. Calculate the expense In this step, for each Area, we compensation, shown in Table 16, multiplier. The calculations in Step 2 calculate an expense multiplier by Column C of the 2008 final rule. Tables are unchanged from the NPRM, but are dividing the base operating expense, 5 through 7 show the Step 2 repeated for your convenience. shown in Table 16, Column B of the calculations. 2008 final rule, by base pilot

TABLE 5—EXPENSE MULTIPLIER, DISTRICT ONE

Area 1 St. Lawrence Area 2 Total River Lake Ontario District One

Base operating expense ...... $516,138 $529,046 $1,045,185

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TABLE 5—EXPENSE MULTIPLIER, DISTRICT ONE—Continued

Area 1 St. Lawrence Area 2 Total River Lake Ontario District One

Base target pilot compensation ...... ÷ $1,562,413 ÷ $945,760 ÷ $2,508,173 Expense multiplier ...... = .33035 = .55939 = .41671

TABLE 6—EXPENSE MULTIPLIER, DISTRICT TWO

Area 5 Area 4 Southeast Total Lake Erie Shoal to District Two Port Huron, MI

Base operating expense ...... $494,595 $771,756 $1,266,351 Base target pilot compensation ...... ÷ $756,608 ÷ $1,562,413 ÷ $2,319,021 Expense multiplier ...... = .65370 = .49395 = .54607

TABLE 7—EXPENSE MULTIPLIER, DISTRICT THREE

Area 6 Lakes Huron Area 7 Area 8 Total and Michigan St. Mary’s River Lake Superior District Three

Base operating expense ...... $993,207 $385,906 $619,968 $1,999,081 Base target pilot compensation ...... ÷ $1,891,520 ÷ $1,041,609 ÷ $1,324,064 ÷ $4,257,193 Expense multiplier ...... = .52508 = .37049 = .46823 = .46958

Step 3. Calculate annual projection of engaged in Great Lakes shipping. Where August 1, 2009. Under Agreement A, the target pilot compensation. Step 3 different AMOU agreements apply to daily wage rate will be increased from calculations have been modified since different companies, we apportion the $255.28 to $262.73. Under Agreement B, the NPRM. In this step, we determine compensation provided by each the daily wage rate will be increased the new target rate of compensation and agreement according to the percentage from $314.42 to $323.86. the new number of pilots needed in of tonnage represented by companies To calculate monthly wages, we apply each pilotage Area, to determine the under each agreement. Agreement A and Agreement B monthly new target pilot compensation for each There are two current AMOU multipliers of 54.5 and 49.5, Area. contracts. In our April 2009 NPRM, we respectively, to the daily rate. (a) Determine new target rate of stated that vessels operated by the Agreement A’s 54.5 multiplier compensation. Target pilot American Steamship Co. and Inland represents 30.5 average working days, compensation is based on the average Lakes Management Co. (acquired in 15.5 vacation days, 4 days for four annual compensation of first mates and 2008 by Mittal Steel USA, Inc.) operate weekends, 3 bonus days, and 1.5 masters on U.S. Great Lakes vessels. under ‘‘Agreement A,’’ and that Key holidays. Agreement B’s 49.5 multiplier Compensation includes wages and Lakes, Inc. and Mittal Steel USA, Inc. represents 30.5 average working days, benefits. For pilots in undesignated vessels (other than the Inland Lakes 16 vacation days, and 3 bonus days. waters, we approximate the first mates’ vessels acquired by Mittal) operate compensation and, in designated under ‘‘Agreement B.’’ However, as of To calculate average annual waters, we approximate the master’s May 2009, Agreement A applies only to compensation, we multiply monthly compensation (first mates’ wages Key Lakes, Inc. vessels, and Agreement figures by 9 months, the length of the multiplied by 150% plus benefits). To B applies to all vessels operated by Great Lakes shipping season. determine first mates’ and masters’ American Steamship Co. and Mittal Table 8, which is unchanged from the average annual compensation, we use Steel USA, Inc. NPRM, shows new wage calculations data from the most recent AMOU Both Agreement A and Agreement B based on Agreements A and B effective contracts with the U.S. companies provide for a 3% wage increase effective August 1, 2009.

TABLE 8—WAGES

Pilots on Pilots on designated Monthly component undesignated waters waters (undesignated × 150%)

Agreement A: $262.73 daily rate × 54.5 days ...... $14,319 $21,478 Agreement A: Monthly total × 9 months = total wages ...... 128,870 193,305 Agreement B: $323.86 daily rate × 49.5 days ...... 16,031 24,046 Agreement B:

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TABLE 8—WAGES—Continued

Pilots on Pilots on designated Monthly component undesignated waters waters (undesignated × 150%)

Monthly total × 9 months = total wages ...... 144,278 216,417

Both Agreements A and B include a Both Agreements A and B provide a used to calculate monthly benefits is health benefits contribution rate of 401K employer matching rate, 5% of the 45.5 days. $80.69 effective August 1, 2009. wage rate. Neither Agreement A nor Table 9, which is unchanged from the Agreement A includes a pension plan Agreement B includes a clerical NPRM, shows new benefit calculations contribution rate of $33.35 per man-day. contribution that appeared in earlier based on Agreements A and B, effective Agreement B includes a pension plan contracts. Per the AMOU, the multiplier August 1, 2009. contribution rate of $43.55 per man-day.

TABLE 9—BENEFITS

Pilots on Pilots on Monthly component undesignated designated waters waters

Agreement A: Employer contribution, 401(K) plan (Monthly Wages × 5%) ...... $715.95 $1,073.92 Pension = $33.35 × 45.5 days ...... 1,517.43 1,517.43 Health = $80.69 × 45.5 days ...... 3,671.40 3,671.40 Agreement B: Employer contribution, 401(K) plan (Monthly Wages × 5%) ...... 801.54 1,202.32 Pension = $43.55 × 45.5 days ...... 1,981.53 1,981.53 Health = $80.69 × 45.5 days ...... 3,671.40 3,671.40 Agreement A: Monthly total benefits ...... = 5,904.77 = 6,262.74 Agreement A: Monthly total benefits × 9 months ...... = 53,143 = 56,365 Agreement B: Monthly total benefits ...... = 6,454.46 = 6,855.24 Agreement B: Monthly total benefits × 9 months ...... = 58,090 = 61,697

Table 10, which is unchanged from the NPRM, totals the wages and benefits under each agreement.

TABLE 10—TOTAL WAGES AND BENEFITS

Pilots on Pilots on undesignated designated waters waters

Agreement A: Wages ...... $128,870 $193,305 Agreement A: Benefits ...... + 53,143 + 56,365

Agreement A: Total ...... = 182,013 = 249,670

Agreement B: Wages ...... 144,278 216,417 Agreement B: Benefits ...... + 58,090 + 61,697

Agreement B: Total ...... = 202,368 = 278,114

Table 11, as it appeared in the NPRM, under Agreements A and B as of May tonnage operates under Agreement A, has been revised to reflect the change in 2009. It shows that approximately 30% with the remaining 70% operating the distribution of vessels operating of U.S. Great Lakes shipping deadweight under Agreement B.

TABLE 11—DEADWEIGHT TONNAGE BY AMOU AGREEMENT

Company Agreement A Agreement B

American Steamship Company ...... 815,600

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TABLE 11—DEADWEIGHT TONNAGE BY AMOU AGREEMENT—Continued

Company Agreement A Agreement B

Mittal Steel USA, Inc ...... 38,826 Key Lakes, Inc ...... 361,385 ......

Total tonnage, each agreement ...... 361,385 854,426

Percent tonnage, each agreement ...... 361,385 ÷ 854,426 ÷ 1,215,811 = 1,215,811 = 29.7238% 70.2762%

Table 12, as it appeared in the NPRM, each agreement to the wages and compensation on a tonnage-weighted has been modified. It applies the benefits provided by each agreement, to basis. percentage of tonnage represented by determine the projected target rate of

TABLE 12—PROJECTED TARGET RATE OF COMPENSATION, WEIGHTED

Undesignated waters Designated waters

AGREEMENT A: Total wages and benefits × percent tonnage ...... $182,013 × 29.72% $249,670 × 29.72% = $54,101 = $74,211 AGREEMENT B: Total wages and benefits × percent tonnage ...... $202,368 × 70.28% = $278,114 × 70.28% $142,217 = $195,448

Total weighted average wages and benefits = projected target rate of compensation ... $54,101 + $142,217 $74,211 + $195,448 = $196,318 = $269,659

(b) Determine number of pilots Bridge hours are the number of hours Table 13, as it appeared in the NPRM, needed. Subject to discretionary a pilot is aboard a vessel providing has been modified to reflect the adjustment by the Director of Great pilotage service. Projected bridge hours reductions in Areas 1, 6, and 7 bridge Lakes Pilotage to ensure uninterrupted are based on the vessel traffic that pilots hour projections. Table 13 shows the service or for other reasonable are expected to serve. Based on projected bridge hours needed for each circumstances, we determine the historical data and information Area, and the total number of pilots number of pilots needed in each Area by provided by pilots and industry, the needed after dividing those figures dividing each Area’s projected bridge Coast Guard projects the same bridge either by 1,000 or 1,800 and, for the hours, either by 1,000 (designated hours for Areas 2, 4, 5, and 8 in 2009 purposes of this rulemaking only, as were projected in the 2008 final rule. waters) or by 1,800 (undesignated rounding up to the next whole pilot, As discussed in Part IV of this preamble, waters). The resulting number is with two exceptions. In Area 2 we we are reducing projected bridge hours rounded either up or down based upon for Areas 1, 6, and 7. With these round up from 3.14 to 5, and in Area 4 the needs of commerce at the discretion reductions, we are reducing the number we round down from 4.07 to 4, for the of the Director. of pilots in Area 6 by two. reasons discussed in the 2008 final rule.

TABLE 13—NUMBER OF PILOTS NEEDED

Divided by 1,000 (designated Pilotage area Projected 2009 waters) or 1,800 Pilots needed bridge hours (undesignated (total = 40) waters)

Area 1 ...... 5,203 1,000 6 Area 2 ...... 5,650 1,800 5 Area 4 ...... 7,320 1,800 4 Area 5 ...... 5,097 1,000 6 Area 6 ...... 13,406 1,800 8 Area 7 ...... 3,259 1,000 4 Area 8 ...... 11,630 1,800 7

(c) Determine the projected target pilotage Area, by multiplying the pilots working in that Area. Table 14 pilot compensation for each Area. We number of pilots needed in each Area (modified from NPRM version) shows project new total target pilot (see Table 13) by the projected target this calculation. compensation separately for each rate of compensation (see Table 12) for

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TABLE 14—PROJECTED TARGET PILOT COMPENSATION

Pilots needed Multiplied by target Projected target pilot Pilotage Area (total = 40) rate of compensation compensation

Area 1 ...... 6 × $269,659 $1,617,955 Area 2 ...... 5 × 196,318 981,589

Total, District One ...... 11 ...... 2,599,544

Area 4 ...... 4 × 196,318 785,271 Area 5 ...... 6 × 269,659 1,617,955

Total, District Two ...... 10 ...... 2,403,226

Area 6 ...... 8 × 196,318 1,570,542 Area 7 ...... 4 × 269,659 1,078,637 Area 8 ...... 7 × 196,318 1,374,224

Total, District Three ...... 19 ...... 4,023,403

Step 4: Increase the projected pilot have been modified since the NPRM. increased projected pilot compensation. compensation in Step 3 by the expense This step yields a projected increase in Table 15 (modified from NPRM version) multiplier in Step 2. Step 4 calculations operating costs necessary to support the shows this calculation.

TABLE 15—PROJECTED OPERATING EXPENSE

Projected target Multiplied by Projected Pilotage area pilot compensation expense multiplier operating expense*

Area 1 ...... $1,617,955 × .33035 $534,487 Area 2 ...... 981,589 × .55939 549,089

Total, District One ...... 2,599,544 × .41671 1,083,260

Area 4 ...... 785,271 × .65370 513,332 Area 5 ...... 1,617,955 × .49395 799,192

Total, District Two ...... 2,403,226 × .54607 1,312,333

Area 6 ...... 1,570,542 × .52508 824,666 Area 7 ...... 1,078,637 × .37049 399,625 Area 8 ...... 1,374,224 × .46823 643,454

Total, District Three ...... 4,023,403 × .46958 1,889,298 *Unique expense multipliers are used to calculate projected operating expense for all areas and districts, and as such, projected operating ex- pense for Districts One, Two and Three may not equal the sum of the projected operating expense for the areas.

Step 5: Adjust the result in Step 4, as U.S. Department of Labor’s Bureau of Consumer Prices’’ between 2006 and required, for inflation or deflation, and Labor Statistics, we have multiplied the 2007, the latest years for which data are calculate projected total economic cost. results in Step 4 by a 1.027 inflation available. Table 16 (modified from Step 5 calculations have been modified factor, reflecting an average inflation NPRM version) shows this calculation since the NPRM. Based on data from the rate of 2.7% in ‘‘Midwest Economy— and the projected total economic cost.

TABLE 16—PROJECTED TOTAL ECONOMIC COST

B. Increase, C. D. A. Projected multiplied by Projected Projected total Pilotage area operating expense inflation factor target pilot economic cost (= A × 1.027) compensation (= B + C)

Area 1 ...... $534,487 $548,918 $1,617,955 $2,166,873 Area 2 ...... 549,089 563,914 981,589 1,545,503

Total, District One ...... 1,083,260 1,112,508 2,599,544 *3,712,052

Area 4 ...... 513,332 527,192 785,271 1,312,463 Area 5 ...... 799,192 820,770 1,617,955 2,438,725

Total, District Two ...... 1,312,333 1,347,766 2,403,226 *3,750,992

Area 6 ...... 824,666 846,932 1,570,542 2,417,474 Area 7 ...... 399,625 410,415 1,078,637 1,489,052

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TABLE 16—PROJECTED TOTAL ECONOMIC COST—Continued

B. Increase, C. D. A. Projected multiplied by Projected Projected total Pilotage area operating expense inflation factor target pilot economic cost (= A × 1.027) compensation (= B + C)

Area 8 ...... 643,454 660,828 1,374,224 2,035,052

Total, District Three ...... 1,889,298 1,940,310 4,023,403 *5,963,713 *Unique expense multipliers are used to calculate projected operating expense for all areas and districts, and as such, projected total eco- nomic cost for Districts One, Two and Three may not equal the sum of the projected total economic cost for the areas.

Step 6: Divide the result in Step 5 by total unit costs. Step 6 calculations have 17 (modified from NPRM version) projected bridge hours to determine been modified since the NPRM. Table shows this calculation.

TABLE 17—TOTAL UNIT COSTS

B. Projected Prospective Pilotage area A. Projected total 2009 bridge (total) unit costs economic cost hours (A divided by B)

Area 1 ...... $2,166,873 5,203 $416.47 Area 2 ...... 1,545,503 5,650 273.54

Total, District One ...... 3,712,052 10,853 342.03

Area 4 ...... 1,312,463 7,320 179.30 Area 5 ...... 2,438,725 5,097 478.46

Total, District Two ...... 3,750,992 12,417 302.09

Area 6 ...... 2,417,474 13,406 180.33 Area 7 ...... 1,489,052 3,259 456.90 Area 8 ...... 2,035,052 11,630 174.98

Total, District Three ...... 5,963,713 28,295 210.77

Overall ...... 13,426,758 51,565 260.39

Step 7: Divide prospective unit costs the NPRM. Table 18 (modified from unit costs. The results, for each Area, (total unit costs) in Step 6 by the base NPRM version) shows this calculation, are identical with the percentage period unit costs in Step 1. Step 7 which expresses the percentage change increases listed in Table 1. calculations have been modified since between the total unit costs and the base

TABLE 18—PERCENTAGE CHANGE, PROSPECTIVE IN UNIT COSTS

C. Percentage change from Pilotage area A. Prospective B. Base period base (A divided unit costs unit costs by B; result expressed as percentage)

Area 1 ...... $416.47 $367.17 13.43 Area 2 ...... 273.54 261.03 4.79

Total, District One ...... 342.03 314.15 8.87

Area 4 ...... 179.30 170.93 4.90 Area 5 ...... 478.46 457.95 4.48

Total, District Two ...... 302.09 288.75 4.62

Area 6 ...... 180.33 160.26 12.52 Area 7 ...... 456.90 369.54 23.64 Area 8 ...... 174.98 170.68 2.52

Total, District Three ...... 210.77 188.14 12.03

Overall ...... 260.39 235.08 10.77

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Step 8: Adjust the base period rates by Step 7. Step 8 calculations have been (modified from NPRM version) shows the percentage change in unit costs in modified since the NPRM. Table 19 this calculation.

TABLE 19—BASE PERIOD RATES ADJUSTED BY PERCENTAGE CHANGE IN UNIT COSTS*

B. Percentage C. Increase in D. Adjusted Pilotage A. Base period change in base rate rate (A + C, rate × rounded to unit costs (A B%) nearest cent)

Area 1 ...... 13.43 (1.1343) —Basic pilotage ...... $14.94/km, ...... $2.00/km, $16.95/km, $26.44/mi $3.55/mi $29.99/mi —Each lock transited ...... 331.03 ...... 44.44 375.47 —Harbor movage ...... 1,083.89 ...... 145.52 1,229.41 —Minimum basic rate, St. Lawrence River ...... 722.98 ...... 97.07 820.04 —Maximum rate, through trip ...... 3,173.51 ...... 426.07 3,599.58 Area 2 ...... 4.79 (1.0479) ...... —6-hr. period ...... 780.23 ...... 37.40 817.63 —Docking or undocking ...... 744.24 ...... 35.68 779.92 Area 4 ...... 4.90 (1.0490) ...... —6-hr. period ...... 688.35 ...... 33.70 722.05 —Docking or undocking ...... 530.49 ...... 25.97 556.46 —Any point on Niagara River below Black Rock Lock ...... 1,354.15 ...... 66.30 1,420.45 Area 5 between any point on or in ...... 4.48 (1.0448) ...... —Toledo or any point on Lake Erie W. of Southeast Shoal ...... 1,243.75 ...... 55.71 1,299.46 —Toledo or any point on Lake Erie W. of Southeast Shoal & Southeast Shoal ...... 2,104.72 ...... 94.28 2,198.99 —Toledo or any point on Lake Erie W. of Southeast Shoal & Detroit River ...... 2,732.79 ...... 122.41 2,855.20 —Toledo or any point on Lake Erie W. of Southeast Shoal & Detroit Pilot Boat ...... 2,104.72 ...... 94.28 2,198.99 —Port Huron Change Point & Southeast Shoal (when pilots are not changed at the Detroit Pilot Boat) ...... 3,665.60 ...... 164.20 3,829.80 —Port Huron Change Point & Toledo or any point on Lake Erie W. of Southeast Shoal (when pilots are not changed at the Detroit Pilot Boat) ...... 4,246.60 ...... 190.22 4,436.82 —Port Huron Change Point & Detroit River ...... 2,753.85 ...... 123.36 2,877.20 —Port Huron Change Point & Detroit Pilot Boat ...... 2,141.88 ...... 95.94 2,237.82 —Port Huron Change Point & St. Clair River ...... 1,522.48 ...... 68.20 1,590.68 —St. Clair River ...... 1,243.75 ...... 55.71 1,299.46 —St. Clair River & Southeast Shoal (when pilots are not changed at the Detroit Pilot Boat) ...... 3,665.60 ...... 164.20 3,829.80 —St. Clair River & Detroit River/Detroit Pilot Boat ...... 2,753.85 ...... 123.36 2,877.20 —Detroit, Windsor, or Detroit River ...... 1,243.75 ...... 55.71 1,299.46 —Detroit, Windsor, or Detroit River & Southeast Shoal ...... 2,104.72 ...... 94.28 2,198.99 —Detroit, Windsor, or Detroit River & Toledo or any point on Lake Erie W. of Southeast Shoal ...... 2,732.79 ...... 122.41 2,855.20 —Detroit, Windsor, or Detroit River & St. Clair River ...... 2,753.85 ...... 123.36 2,877.20 —Detroit Pilot Boat & Southeast Shoal ...... 1,522.48 ...... 68.20 1,590.68 —Detroit Pilot Boat & Toledo or any point on Lake Erie W. of Southeast Shoal ...... 2,104.72 ...... 94.28 2,198.99 —Detroit Pilot Boat & St. Clair River ...... 2,753.85 ...... 123.36 2,877.20 Area 6 ...... 12.52 (1.1252) ...... —6-hr. period ...... 553.62 ...... 69.31 622.93 —Docking or undocking ...... 525.88 ...... 65.84 591.72 Area 7 between any point on or in ...... 23.64 (1.2364) ...... —Gros Cap & De Tour ...... 1,975.83 ...... 467.15 2,442.98 —Algoma Steel Corp. Wharf, Sault Ste. Marie, Ont. & De Tour 1,975.83 ...... 467.15 2,442.98 —Algoma Steel Corp. Wharf, Sault Ste. Marie, Ont. & Gros Cap 744.10 ...... 175.93 920.03 —Any point in Sault Ste. Marie, Ont., except the Algoma Steel Corp. Wharf & De Tour ...... 1,656.11 ...... 391.55 2,047.67 —Any point in Sault Ste. Marie, Ont., except the Algoma Steel Corp. Wharf & Gros Cap ...... 744.10 ...... 175.93 920.03 —Sault Ste. Marie, MI & De Tour ...... 1,656.11 ...... 391.55 2,047.67 —Sault Ste. Marie, MI & Gros Cap ...... 744.10 ...... 175.93 920.03 —Harbor movage ...... 744.10 ...... 175.93 920.03 Area 8 ...... 2.52 (1.0252) ...... —6-hr. period ...... 535.92 ...... 13.51 549.44 —Docking or undocking ...... 509.36 ...... 12.84 522.20 Rates for ‘‘Cancellation, delay or interruption in rendering services ( § 401.420)’’ and ‘‘Basic Rates and charges for carrying a U.S. pilot beyond the normal change point, or for boarding at other than the normal boarding point (§ 401.428)’’ are not reflected in this table but have been in- creased by 10.77% across all areas.

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VI. Regulatory Analyses changes in association expenses to choose to purchase pilotage services if maintain these compensation levels. We developed this rule after their vessels are carrying hazardous In general, we expect an increase in considering numerous statutes and substances or were navigating the Great pilotage rates for a certain area to result Lakes system with inexperienced executive orders related to rulemaking. in additional costs for shippers using Below, we summarize our analyses personnel. Based on information from pilotage services in that area, while a the Coast Guard Office of Great Lakes based on 13 of these statutes or decrease would result in a cost executive orders. Pilotage, we have determined that these reduction or savings for shippers in that vessels voluntarily chose to use pilots A. Regulatory Planning and Review area. This rule will result in a and, therefore, are exempt from pilotage distributional effect that transfers Executive Order 12866, ‘‘Regulatory requirements. payments (income) from affected We used 2006–2007 vessel arrival Planning and Review,’’ 58 FR 51735, shippers (vessel owners and operators) October 4, 1993, requires a data from the Coast Guard’s Marine to the Great Lakes’ pilot associations Inspection, Safety, and Law determination whether a regulatory through Coast Guard regulated pilotage action is ‘‘significant’’ and therefore Enforcement system (MISLE) to estimate rates. the average annual number of vessels subject to review by the Office of The shippers affected by these rate Management and Budget (OMB) and affected by the rate adjustment to be 208 adjustments are those owners and vessels that journey into the Great Lakes subject to the requirements of the operators of domestic vessels operating system. These vessels entered the Great Executive Order. This rulemaking is not on register (employed in the foreign Lakes by transiting through or in part of significant under Executive Order 12866 trade) and owners and operators of at least one of the three pilotage and will not be reviewed by OMB. foreign vessels on a route within the Districts before leaving the Great Lakes The Coast Guard is required to Great Lakes system. These owners and system. These vessels often make more conduct an annual review of pilotage operators must have pilots or pilotage than one distinct stop, docking, loading, rates on the Great Lakes and, if service as required by 46 U.S.C. 9302. and unloading at facilities in Great necessary, adjust these rates to align There is no minimum tonnage limit or Lakes ports. Of the total trips for the 208 compensation levels between Great exemption for these vessels. However, vessels, there were approximately 923 Lakes pilots and industry. See the the Coast Guard issued a policy position ‘‘Background and Purpose’’ section for a several years ago stating that the statute annual U.S. port arrivals before the detailed explanation of the legal applies only to commercial vessels and vessels left the Great Lakes system, authority and requirements for the Coast not to recreational vessels. based on 2006–2007 vessel data from Guard to conduct an annual review and Owners and operators of other vessels MISLE. provide possible adjustments of pilotage that are not affected by this rule, such The impact of the rate adjustment to rates on the Great Lakes. Based on our as recreational boats and vessels only shippers is estimated from the district annual review for this rulemaking, we operating within the Great Lakes pilotage revenues. These revenues are adjusting the pilotage rates for the system, may elect to purchase pilotage represent the direct and indirect costs 2009 shipping season to generate services. However, this election is (‘‘economic costs’’) that shippers must sufficient revenue to cover allowable voluntary and does not affect the Coast pay for pilotage services. The Coast expenses, target pilot compensation, Guard’s calculation of the rate increase Guard sets rates so that revenues equal and returns on investment. and is not a part of our estimated the estimated cost of pilotage. This rule will implement a 10.77% national cost to shippers. We estimate the additional impact overall rate adjustment for the Great We reviewed a sample of pilot source (costs or savings) of the rate adjustment Lakes system over the current rate as forms, which are the forms used to in this final rule to be the difference adjusted in the 2008 final rule. These record pilotage transactions on vessels, between the total projected revenue adjustments to Great Lakes pilotage and discovered very few cases of U.S. needed to cover costs based on the 2008 rates meet the requirements set forth in Great Lakes vessels (i.e., domestic rate adjustment and the total projected 46 CFR part 404 for similar vessels without registry operating only revenue needed to cover costs in this compensation levels between Great in the Great Lakes) that purchased final rule for 2009. Table 20 details Lakes pilots and industry. They also pilotage services. We assume some additional costs or savings by area and include adjustments for inflation and vessel owners and operators may also district.

TABLE 20—RATE ADJUSTMENT AND ADDITIONAL IMPACT OF THE FINAL RULE ($U.S.; NON-DISCOUNTED) 1

Total Total Additional projected Proposed rate projected revenue or cost expenses in change expenses in of this rule- 2008 2009 3 making 2

Area 1 ...... $2,078,551 1.0425 2,166,873 $88,322 Area 2 ...... 1,474,806 1.0479 1,545,503 70,697

Total, District One ...... 3,553,357 1.0447 3,712,052 158,695

Area 4 ...... 1,251,203 1.0490 1,312,463 61,260 Area 5 ...... 2,334,169 1.0448 2,438,725 104,556

Total, District Two ...... 3,585,372 1.0462 3,750,992 165,620

Area 6 ...... 2,884,724 0.8380 2,417,474 (467,250) Area 7 ...... 1,427,515 1.0431 1,489,052 61,537 Area 8 ...... 1,944,032 1.0468 2,035,052 91,020

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TABLE 20—RATE ADJUSTMENT AND ADDITIONAL IMPACT OF THE FINAL RULE ($U.S.; NON-DISCOUNTED) 1—Continued

Total Total Additional projected Proposed rate projected revenue or cost expenses in change expenses in of this rule- 2008 2009 3 making 2

Total, District Three ...... 6,256,273 0.9532 5,963,713 (292,560 ) 1 Some values may not total due to rounding. 2 Additional Revenue or Cost of this Rulemaking = ‘Total Projected Expenses in 2009’ ¥ ‘Total Projected Expenses in 2008’. 3 ‘Total Projected Expenses in 2009’ and ‘Additional Revenue or Cost of this Rulemaking’ for Districts One, Two and Three differ from the sum of the area totals due to the use of unique multipliers, as mentioned in Step 5 under ‘Calculating the Rate Adjustment’.

After applying the rate change in this 2 experienced a decrease in projected Transportation, and 483211—Inland rule, the resulting difference between expenses due to an adjustment in bridge Water Freight Transportation. the projected revenue in 2008 and the hours from the 2008 Interim Rule, According to the Small Business projected revenue in 2009 is the annual which led to a savings for that district. Administration’s definition, a U.S. impact to shippers from this rule. This However, this savings was not large company with these NAICS codes and figure will be equivalent to the total enough to outweigh the costs to the employing less than 500 employees is additional payments or savings that other districts. considered a small entity. shippers will incur for pilotage services The overall impact of the final rule For this rule, we reviewed recent from this rule. As discussed earlier, we will be an additional cost to shippers of company size and ownership data from consider a reduction in payments to be $32,000 across all three districts. This 2006–2007 MISLE data and business a cost savings. differs from the estimated cost savings revenue and size data provided by The impact of the rate adjustment in of $15,000 in the NPRM due to the Reference USA and Dunn and this rule to shippers varies by area and projected changes in bridge hours in Bradstreet. We were able to gather district. The annual costs of the rate Area 1,1 as well as the change in the revenue and size data or link the entities adjustments in Districts 1 and 2 are distribution of vessels operating under to large shipping conglomerates for 22 approximately $159,000 and $166,000, Agreements A and B as of May 2009. We of the 24 affected entities in the United respectively, while District 3 will explained these two differences from States. We found that large, mostly experience an annual savings of the NPRM in our Part IV discussion of foreign-owned, shipping conglomerates approximately $293,000. To calculate an public comments on bridge hour or their subsidiaries owned or operated exact cost or savings per vessel is projection data, and in our Part V.B all vessels engaged in foreign trade on difficult because of the variation in discussion of Step 3(b) rate calculations. the Great Lakes. We assume that new vessel types, routes, port arrivals, These two changes since the NPRM industry entrants will be comparable in commodity carriage, time of season, resulted in increased projected ownership and size to these shippers. conditions during navigation, and expenses, accounting for the overall There are three U.S. entities affected preferences for the extent of pilotage increased cost to shippers of the final by the rule that receive revenue from services on designated and rule. pilotage services. These are the three undesignated portions of the Great pilot associations that provide and B. Small Entities Lakes system. Some owners and manage pilotage services within the operators will pay more and some will Under the Regulatory Flexibility Act Great Lakes districts. Two of the pay less depending on the distance and (5 U.S.C. 601–612), we have considered associations operate as partnerships and port arrivals of their vessels’ trips. whether this rule would have a one operates as a corporation. These However, the annual cost or savings significant economic impact on a associations are classified with the same reported above does capture all of the substantial number of small entities. NAICS industry classification and small additional cost the shippers face as a The term ‘‘small entities’’ comprises entity size standards described above, result of the rate adjustment in this rule. small businesses, not-for-profit but they have far fewer than 500 As Table 20 indicates, all areas will organizations that are independently employees: approximately 65 total experience an increased annual cost due owned and operated and are not employees combined. We expect no to this rulemaking except Area 6, which dominant in their fields, and adverse impact to these entities from will experience a savings. The projected governmental jurisdictions with this rule since all associations receive savings for Area 6 is approximately populations of less than 50,000 people. enough revenue to balance the projected $467,000. This will cause a net savings We expect entities affected by the expenses associated with the projected for District 3, and is due to a decrease proposed rule would be classified under number of bridge hours and pilots. in actual bridge hours in Area 6 from the North American Industry Therefore, the Coast Guard has 2008 to 2009. This decrease in bridge Classification System (NAICS) code determined that this rule will not have hours led to a decrease in the number subsector 483—Water Transportation, a significant economic impact on a of pilots needed, from 10 pilots in 2008 which includes one or all of the substantial number of small entities to 8 pilots in 2009. This decrease in the following 6-digit NAICS codes for under 5 U.S.C. 605(b). number of pilots would reduce the freight transportation: 483111—Deep projected revenue needed to cover costs Sea Freight Transportation, 483113— C. Assistance for Small Entities of pilotage services in Area 6. Coastal and Great Lakes Freight Under section 213(a) of the Small The effects of a rate adjustment on Business Regulatory Enforcement costs and savings vary by year and area. 1 When a decrease in traffic is not accompanied Fairness Act of 1996 (Pub. L. 104–121), A decrease in projected expenses for by a reduction in pilots, as in this case, projected we offered to assist small entities in pilot compensation and other expenses do not individual areas or districts is common decrease. As such, revenue must increase to meet understanding the rule so that they in past pilotage rate adjustments. Most these expenses, which can only be accomplished could better evaluate its effects on them recently, in the 2008 Final Rule, District through rate increases. and participate in the rulemaking. The

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Coast Guard will not retaliate against H. Civil Justice Reform not consider the use of voluntary small entities that question or complain This rule meets applicable standards consensus standards. about this rule or any policy or action in sections 3(a) and 3(b)(2) of Executive M. Environment of the Coast Guard. Order 12988, Civil Justice Reform, to Small businesses may send comments minimize litigation, eliminate We have analyzed this rule under on the actions of Federal employees ambiguity, and reduce burden. Department of Homeland Security who enforce, or otherwise determine Management Directive 023–01 and compliance with, Federal regulations to I. Protection of Children Commandant Instruction M16475.lD, the Small Business and Agriculture We have analyzed this rule under which guide the Coast Guard in Regulatory Enforcement Ombudsman Executive Order 13045, Protection of complying with the National and the Regional Small Business Children from Environmental Health Environmental Policy Act of 1969 Regulatory Fairness Boards. The Risks and Safety Risks. This rule is not (NEPA) (42 U.S.C. 4321–4370f), and Ombudsman evaluates these actions an economically significant rule and have concluded that this action is one annually and rates each agency’s does not create an environmental risk to of a category of actions which do not responsiveness to small business. If you health or risk to safety that may individually or cumulatively have a wish to comment on actions by disproportionately affect children. significant effect on the human environment. This rule is categorically employees of the Coast Guard, call J. Indian Tribal Governments 1–888–REG–FAIR (1–888–734–3247). excluded under section 2.B.2, figure 2– This rule does not have Tribal 1, paragraph (34)(a) of the Instruction. D. Collection of Information implications under Executive Order Paragraph 34(a) pertains to minor This rule calls for no new collection 13175, Consultation and Coordination regulatory changes that are editorial or of information under the Paperwork with Indian Tribal Governments, procedural in nature. This rule adjusts Reduction Act of 1995 (44 U.S.C. 3501– because it does not have a substantial rates in accordance with applicable 3520). This rule does not change the direct effect on one or more Indian statutory and regulatory mandates. An burden in the collection currently Tribes, on the relationship between the environmental analysis checklist and a approved by the Office of Management Federal Government and Indian Tribes, categorical exclusion determination are and Budget (OMB) under OMB Control or on the distribution of power and available in the docket where indicated Number 1625–0086, Great Lakes responsibilities between the Federal under ADDRESSES. Government and Indian Tribes. Pilotage Methodology. List of Subjects in 46 CFR Part 401 K. Energy Effects E. Federalism Administrative practice and We have analyzed this rule under A rule has implications for federalism procedure, Great Lakes, Navigation Executive Order 13211, Actions (water), Penalties, Reporting and under Executive Order 13132, Concerning Regulations That recordkeeping requirements, Seamen. Federalism, if it has a substantial direct Significantly Affect Energy Supply, effect on State or local governments and Distribution, or Use. We have ■ For the reasons discussed in the would either preempt State law or determined that it is not a ‘‘significant preamble, the Coast Guard amends 46 impose a substantial direct cost of energy action’’ under that order because CFR Part 401 as follows: compliance on them. We have analyzed it is not a ‘‘significant regulatory action’’ PART 401—GREAT LAKES PILOTAGE this rule under that Order and have under Executive Order 12866 and is not REGULATIONS determined that it does not have likely to have a significant adverse effect implications for federalism because on the supply, distribution, or use of ■ 1. The authority citation for part 401 there are no similar State regulations, energy. The Administrator of the Office continues to read as follows: and the States do not have the authority of Information and Regulatory Affairs to regulate and adjust rates for pilotage has not designated it as a significant Authority: 46 U.S.C. 2104(a), 6101, 7701, services in the Great Lakes system. 8105, 9303, 9304; Department of Homeland energy action. Therefore, it does not Security Delegation No. 0170.1; 46 CFR F. Unfunded Mandates Reform Act require a Statement of Energy Effects 401.105 also issued under the authority of 44 under Executive Order 13211. U.S.C. 3507. The Unfunded Mandates Reform Act ■ of 1995 (2 U.S.C. 1531–1538) requires L. Technical Standards 2. In § 401.405, revise paragraphs (a) Federal agencies to assess the effects of The National Technology Transfer and (b), including the footnote to Table their discretionary regulatory actions. In and Advancement Act (NTTAA) (15 (a), to read as follows: particular, the Act addresses actions U.S.C. 272 note) directs agencies to use § 401.405 Basic rates and charges on the that may result in the expenditure by a voluntary consensus standards in their St. Lawrence River and Lake Ontario. State, local, or Tribal government, in the regulatory activities unless the agency * * * * * aggregate, or by the private sector of provides Congress, through the Office of (a) Area 1 (Designated Waters): $100,000,000 or more in any one year. Management and Budget, with an Though this rule would not result in explanation of why using these Service St. Lawrence River such expenditure, we do discuss the standards would be inconsistent with effects of this rule elsewhere in this applicable law or otherwise impractical. Basic Pilotage ...... $16.95 per kilometer or preamble. Voluntary consensus standards are $29.99 per mile.1 technical standards (e.g., specifications Each Lock $375.1 G. Taking of Private Property of materials, performance, design, or Transited. 1 This rule would not affect a taking of operation; test methods; sampling Harbor Movage .... $1,229. private property or otherwise have procedures; and related management 1 The minimum basic rate for assignment of taking implications under Executive systems practices) that are developed or a pilot in the St. Lawrence River is $820, and Order 12630, Governmental Actions and adopted by voluntary consensus the maximum basic rate for a through trip is $3,599. Interference with Constitutionally standards bodies. This rule does not use Protected Property Rights. technical standards. Therefore, we did (b) Area 2 (Undesignated Waters):

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Service Lake Ontario § 401.407 Basic rates and charges on Lake Lake Erie Erie and the navigable waters from Service (east of Buffalo Six-Hour Period ...... $818 Southeast Shoal to Port Huron, MI. Southeast Docking or Undocking ...... 780 * * * * * Shoal) (a) Area 4 (Undesignated Waters): Any Point on the * * * * * Niagara River Lake Erie ■ 3. In § 401.407 revise paragraphs (a) below the Service (east of Buffalo and (b), including the footnote to Table Southeast Black Rock Lock ...... N/A 1,420 (b), to read as follows: Shoal) Six-Hour Period $722 $722 (b) Area 5 (Designated Waters): Docking or Undocking ..... 557 557

Toledo or any point on Lake Any point on or in Southeast Erie west of Detroit River Detroit pilot St. Clair River Shoal Southeast boat Shoal

Toledo or any port on Lake Erie west of Southeast Shoal $2,199 $1,299 $2,855 $2,199 N/A Port Huron Change Point ...... 1 3,829 1 4,436 2,877 2,237 1,591 St. Clair River ...... 1 3,829 N/A 2,877 2,877 1,299 Detroit or Windsor or the Detroit River ...... 2,198 2,855 1,299 N/A 2,877 Detroit Pilot Boat ...... 1,590 2,199 N/A N/A 2,877 1 When pilots are not changed at the Detroit Pilot Boat.

■ 4. In § 401.410, revise paragraphs (a), (a) Area 6 (Undesignated Waters): Lakes Huron (b), and (c) to read as follows: Service and Michigan Lakes Huron § 401.410 Basic rates and charges on Service and Michigan Docking or Undocking ...... 592 Lakes Huron, Michigan, and Superior, and the St. Mary’s River. Six-Hour Period ...... $623 (b) Area 7 (Designated Waters): * * * * *

Area De Tour Gros Cap Any harbor

Gros Cap ...... $2,443 N/A N/A Algoma Steel Corporation Wharf at Sault Ste. Marie Ontario ...... 2,443 920 N/A Any point in Sault Ste. Marie, Ontario, except the Algoma Steel Corporation Wharf ...... 2,048 920 N/A Sault Ste. Marie, MI ...... 2,048 920 N/A Harbor Movage ...... N/A N/A $920

(c) Area 8 (Undesignated Waters): ‘‘$1,604’’ and add, in its place, the DEPARTMENT OF DEFENSE number ‘‘$1,777’’. Service Lake Superior Defense Acquisition Regulations § 401.428 [Amended] System Six-Hour Period ...... $549 ■ Docking or Undocking ...... 522 6. In § 401.428, remove the number 48 CFR Part 212 ‘‘$618’’ and add, in its place, the § 401.420 [Amended] number ‘‘$684’’. RIN 0750–AG23 ■ 5. In § 401.420— Dated: July 13, 2009. Defense Federal Acquisition ■ a. In paragraph (a), remove the Kevin S. Cook, Regulation Supplement; Acquisition of number ‘‘$102’’ and add, in its place, Rear Admiral, U.S. Coast Guard, Director of Commercial Items (DFARS Case 2008– the number ‘‘$113’’; and remove the Prevention Policy. D011) number ‘‘$1,604’’ and add, in its place, [FR Doc. E9–17229 Filed 7–20–09; 8:45 am] AGENCY: Defense Acquisition the number ‘‘$1,777’’. BILLING CODE 4910–15–P Regulations System, Department of ■ b. In paragraph (b), remove the Defense (DoD). number ‘‘$102’’ and add, in its place, ACTION: Interim rule; correction. the number ‘‘$113’’; and remove the number ‘‘$1,604’’ and add, in its place, SUMMARY: DoD is making a correction to the number ‘‘$1,777’’. the interim rule published at 74 FR ■ c. In paragraph (c)(1), remove the 34263 on July 15, 2009, which amended number ‘‘$606’’ and add, in its place, the Defense Federal Acquisition the number ‘‘$671’’; in paragraph (c)(3), Regulation Supplement (DFARS) to remove the number ‘‘$102’’ and add, in address the conditions under which a its place, the number ‘‘$113’’; and, also time-and-materials or labor-hour in paragraph (c)(3), remove the number contract may be used for the acquisition

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of commercial items. This correction DEPARTMENT OF COMMERCE kg) that may be landed by IFQ vessels clarifies the types of services to which during the second quarter of the 2009 the rule applies. National Oceanic and Atmospheric fishing year. The regulations at Administration § 648.53(a)(8)(iii) require the LAGC DATES: Effective date: July 21, 2009. fishery to be closed to IFQ vessels once FOR FURTHER INFORMATION CONTACT: Ms. 50 CFR Part 648 the NMFS Northeast Regional Angie Sawyer, Defense Acquisition [Docket No.070817467–8554–02] Administrator has determined that the Regulations System, OUSD (AT&L) TAC is projected to be landed. DPAP (DARS), IMD 3D139, 3062 RIN 0648–XQ36 Based on the number of IFQ vessel Defense Pentagon, Washington, DC trips, dealer reporting and vessel pre- 20301–3062. Telephone 703–602–8384; Magnuson-Stevens Fishery landing reports through Vessel facsimile 703–602–7887. Conservation and Management Act Monitoring Systems (VMS), and other Provisions; Fisheries of the information, a projection concluded SUPPLEMENTARY INFORMATION: The Northeastern United States; Atlantic that, given current activity levels by IFQ interim rule published at 74 FR 34263 Sea Scallop Fishery; Closure of the on July 15, 2009, amended the DFARS scallop vessels in the area, 1,836,010 lb Limited Access General Category (832.347 kg) will have been landed on to implement Sections 805 and 815 of Scallop Fishery to Individual Fishing July 19, 2009. Therefore, effective 0001 the National Defense Authorization Act Quota Scallop Vessels hours on July 19, 2009, no IFQ scallop for Fiscal Year 2008 (Pub. L. 110–181). vessel fishing under LAGC regulations The rule specified the conditions under AGENCY: National Marine Fisheries may declare its intent to enter the which a time-and-materials or labor- Service (NMFS), National Oceanic and fishery and may not fish for, possess, or hour contract may be used for the Atmospheric Administration (NOAA), retain any scallops. IFQ scallop vessels acquisition of commercial items. This Commerce. will not be allowed to fish for, possess, correction clarifies the types of services ACTION: Temporary rule; closure. or retain scallops, or declare, or initiate, to which the rule applies, consistent a scallop trip following this closure for with subsections (c)(1)(A) and SUMMARY: NMFS announces that the Limited Access General Category the remainder of the 2009 second (c)(1)(C)(i) of Section 805 of Public Law quarter, ending on August 31, 2009. 110–181. (LAGC) Scallop Fishery will close to individual fishing quota (IFQ) scallop Therefore, in accordance with the List of Subjects in 48 CFR Part 212 vessels (including vessels issued an IFQ regulations at § 648.53(a)(8)(iii), the letter of authorization (LOA) to fish LAGC scallop fishery is closed to all IFQ Government procurement. under appeal), until it re-opens on vessels as of 0001 hr local time, July 19, Michele P. Peterson, September 1, 2009, under current 2009. The LAGC scallop fishery will re- Editor, Defense Acquisition Regulations regulations. This action is based on the open to IFQ scallop vessels on System. determination that the second quarter September 1, 2009. scallop total allowable catch (TAC) for ■ Accordingly, the interim rule Classification LAGC IFQ scallop vessels is projected to published at 74 FR 34263 on July 15, be landed. This action is being taken to This action is required by 50 CFR part 2009, is corrected as follows: 648 and is exempt from review under prevent IFQ scallop vessels from Executive Order 12866. exceeding the 2009 second quarter TAC, PART 212—ACQUISITION OF This action closes the LAGC scallop COMMERCIAL ITEMS in accordance with the regulations fishery to all IFQ scallop vessels until implementing Amendment 11 to the September 1, 2009. The regulations at ■ 1. The authority citation for 48 CFR Atlantic Sea Scallop Fishery § 648.53(a)(8)(iii) require such action to Part 212 continues to read as follows: Management Plan (FMP), enacted by ensure that IFQ scallop vessels do not Framework 19 to the FMP, and the Authority: 41 U.S.C. 421 and 48 CFR exceed the 2009 second quarter TAC. Chapter 1. Magnuson-Stevens Fishery The LAGC scallop fishery opened for Conservation and Management Act. the second quarter of the 2009 fishing ■ 2. Section 212.207 is amended by DATES: The closure of the LAGC fishery year at 0001 hours on June 1, 2009. Data revising paragraphs (b)(i) and (b)(iii)(A) to all IFQ scallop vessels is effective indicating the IFQ scallop fleet has to read as follows: 0001 hr local time, July 19, 2009, landed all of the 2009 second quarter through August 31, 2009. 212.207 Contract type. TAC have only recently become FOR FURTHER INFORMATION CONTACT: Don available. The Assistant Administrator (b) * * * Frei, Fishery Management Specialist, for Fisheries, NOAA (AA), finds good (i) Services acquired for support of a (978) 281–9221, fax (978) 281–9135. cause pursuant to 5 U.S.C. 553(b)(B) to commercial item, as described in SUPPLEMENTARY INFORMATION: waive prior notice and the opportunity paragraph (5) of the definition of Regulations governing fishing activity in for public comment because it would be commercial item at FAR 2.101 (41 the LAGC fishery are found at §§ 648.59 contrary to the public interest to allow U.S.C. 403(12)(E)). and 648.60. Regulations specifically a period public comment. If * * * * * governing IFQ scallop vessel operations implementation of this closure is (iii) * * * in the LAGC fishery are specified at delayed to solicit prior public comment, § 648.53(a)(8)(iii). These regulations the quota for this quarter will be (A) The services to be acquired are authorize vessels issued a valid IFQ exceeded, thereby undermining the commercial services as defined in scallop permit to fish in the LAGC conservation objectives of the FMP. paragraph (6) of the definition of fishery under specific conditions, Also, if the magnitude of any overage is commercial item at FAR 2.101 (41 including a TAC. The TACs were significant, it would warrant a decrease U.S.C. 403(12)(F)); established by the final rule that in the fourth quarter quota. This would * * * * * implemented Framework 19 to the FMP have a negative economic impact on [FR Doc. E9–17321 Filed 7–20–09; 8:45 am] (73 FR 30790 May 29, 2008) and vessels that fish seasonally in that BILLING CODE 5001–08–P included a TAC of 1,836,010 lb (832.347 period. The AA further finds, pursuant

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to 5 U.S.C 553(d)(3), good cause to • Electronic Submissions: Submit all (a)(2)(iii)(D), and to fully utilize the waive the 30 day delay in effectiveness electronic public comments via the 2009 TAC of northern rockfish in the for the reasons stated above. Federal eRulemaking Portal website at Western Regulatory Area of the GOA, Authority: 16 U.S.C. 1801 et seq. http://www.regulations.gov. NMFS is terminating the previous • Mail: P.O. Box 21668, Juneau, AK closure and is reopening directed Dated: July 16, 2009. 99802. fishing for northern rockfish in the Kristen C. Koch, • Fax: (907) 586–7557. • Western Regulatory Area of the GOA for Acting Director, Office of Sustainable Hand delivery to the Federal 96 hours, effective 1200 hrs, A.l.t., July Fisheries, National Marine Fisheries Service. Building: 709 West 9th Street, Room 17, 2009, through 1200 hrs, A.l.t., July [FR Doc. E9–17282 Filed 7–16–09; 4:15 pm] 420A, Juneau, AK. 21, 2009. BILLING CODE 3510–22–S All comments received are a part of the public record and will generally be Classification posted to http://www.regulations.gov DEPARTMENT OF COMMERCE without change. All Personal Identifying This action responds to the best Information (for example, name, available information recently obtained National Oceanic and Atmospheric address, etc.) voluntarily submitted by from the fishery. The Assistant Administration the commenter may be publicly Administrator for Fisheries, NOAA accessible. Do not submit Confidential (AA), finds good cause to waive the 50 CFR Part 679 Business Information or otherwise requirement to provide prior notice and [Docket No. 09100091344–9056–02] sensitive or protected information. opportunity for public comment NMFS will accept anonymous pursuant to the authority set forth at 5 RIN 0648–XQ26 comments. Enter ‘‘N/A’’ in the required U.S.C. 553(b)(B) as such requirement is fields, if you wish to remain impracticable and contrary to the public Fisheries of the Exclusive Economic anonymous. Attachments to electronic interest. This requirement is Zone Off Alaska; Northern Rockfish in comments will be accepted in Microsoft impracticable and contrary to the public the Gulf of Alaska Word, Excel, WordPerfect, or Adobe interest as it would prevent NMFS from AGENCY: National Marine Fisheries portable document file (pdf) file formats responding to the most recent fisheries Service (NMFS), National Oceanic and only. data in a timely fashion and would Atmospheric Administration (NOAA), FOR FURTHER INFORMATION CONTACT: delay the reopening and closure of Commerce. Steve Whitney, 907–586–7269. northern rockfish in the Western ACTION: Temporary rule; modification of SUPPLEMENTARY INFORMATION: NMFS Regulatory Area of the GOA. NMFS was a closure. manages the groundfish fishery in the unable to publish a notice providing GOA exclusive economic zone time for public comment because the SUMMARY: NMFS is opening directed according to the Fishery Management most recent, relevant data only became fishing for northern rockfish in the Plan for Groundfish of the Gulf of available as of July 15, 2009. Western Regulatory Area of the Gulf of Alaska (FMP) prepared by the North Alaska (GOA) for 96 hours. This action The AA also finds good cause to Pacific Fishery Management Council waive the 30-day delay in the effective is necessary to fully use the 2009 total under authority of the Magnuson- allowable catch (TAC) of northern date of this action under 5 U.S.C. Stevens Fishery Conservation and 553(d)(3). This finding is based upon rockfish in the Western Regulatory Area Management Act. Regulations governing of the GOA. the reasons provided above for waiver of fishing by U.S. vessels in accordance prior notice and opportunity for public DATES: Effective 1200 hrs, Alaska local with the FMP appear at subpart H of 50 comment. time (A.l.t.), July 17, 2009, through 1200 CFR part 600 and 50 CFR part 679. hrs, A.l.t., July 21, 2009. Comments NMFS closed the directed fishery for This action is required by § 679.25 must be received at the following northern rockfish in the Western and is exempt from review under address no later than 4:30 p.m., A.l.t., Regulatory Area of the GOA on July 9, Executive Order 12866. July 31, 2009. 2009 (74 FR 33923, July 14, 2009). Authority: 16 U.S.C. 1801 et seq. ADDRESSES: Send comments to Sue NMFS has determined that Dated: July 16, 2009. Salveson, Assistant Regional approximately 392 mt of the 2009 TAC Administrator, Sustainable Fisheries of northern rockfish in the Western Kristen C. Koch, Division, Alaska Region, NMFS, Attn: Regulatory Area of the GOA remain in Acting Director, Office of Sustainable Ellen Sebastian. You may submit the directed fishing allowance. Fisheries, National Marine Fisheries Service. comments, identified by [RIN], by any Therefore, in accordance with [FR Doc. E9–17279 Filed 7–16–09; 4:15 pm] one of the following methods: § 679.25(a)(1)(i), (a)(2)(i)(C), and BILLING CODE 3510–22–S

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Proposed Rules Federal Register Vol. 74, No. 138

Tuesday, July 21, 2009

This section of the FEDERAL REGISTER • Fax: (202) 493–2251. economic, environmental, and energy contains notices to the public of the proposed • Mail: U.S. Department of aspects of this proposed AD. We will issuance of rules and regulations. The Transportation, Docket Operations, M– consider all comments received by the purpose of these notices is to give interested 30, West Building Ground Floor, Room closing date and may amend this persons an opportunity to participate in the W12–140, 1200 New Jersey Avenue, SE., proposed AD based on those comments. rule making prior to the adoption of the final We will post all comments we rules. Washington, DC 20590. • Hand Delivery: U.S. Department of receive, without change, to http:// Transportation, Docket Operations, M– www.regulations.gov, including any DEPARTMENT OF TRANSPORTATION 30, West Building Ground Floor, Room personal information you provide. We W12–40, 1200 New Jersey Avenue, SE., will also post a report summarizing each Federal Aviation Administration Washington, DC, between 9 a.m. and 5 substantive verbal contact we receive p.m., Monday through Friday, except about this proposed AD. 14 CFR Part 39 Federal holidays. Discussion For service information identified in [Docket No. FAA–2009–0654; Directorate The European Aviation Safety Agency Identifier 2008–NM–083–AD] this proposed AD, contact Saab Aircraft AB, SAAB Aerosystems, SE–581 88, (EASA), which is the Technical Agent RIN 2120–AA64 Linko¨ping, Sweden; telephone +46 13 for the Member States of the European 18 5591; fax +46 13 18 4874; e-mail Community, has issued EASA Airworthiness Directives; Saab AB, [email protected]; Airworthiness Directive 2008–0030, Saab Aerosystems Model SAAB 2000 Internet http://www.saabgroup.com. dated February 15, 2008 (referred to Airplanes You may review copies of the after this as ‘‘the MCAI’’), to correct an AGENCY: Federal Aviation referenced service information at the unsafe condition for the specified Administration (FAA), DOT. FAA, Transport Airplane Directorate, products. The MCAI states: ACTION: Notice of proposed rulemaking 1601 Lind Avenue, SW., Renton, There have been reported incidents of (NPRM). Washington. For information on the brinelling to the self-sealing coupling Part availability of this material at the FAA, Number (P/N) 9304000–303 (Nipple SUMMARY: We propose to adopt a new call 425–227–1221 or 425–227–1152. Assembly). The wear is visible in the groove airworthiness directive (AD) for the of the nipple, caused by the socket locking products listed above. This proposed Examining the AD Docket balls. During tear down investigations of self- AD results from mandatory continuing You may examine the AD docket on sealing coupling P/N 9304000–305 (Socket airworthiness information (MCAI) the Internet at http:// Assembly), internal socket wear has been observed. Wear that exceeds the allowable originated by an aviation authority of www.regulations.gov; or in person at the limits could lead to reduced oil flow, and another country to identify and correct Docket Operations office between 9 a.m. further wear could contribute to separation of an unsafe condition on an aviation and 5 p.m., Monday through Friday, the Self-Seal Coupling, making the engine product. The MCAI describes the unsafe except Federal holidays. The AD docket inoperable and subsequent shut down. As condition as: contains this proposed AD, the secondary damage, the generator may fail, releasing oil into the nacelle and increasing There have been reported incidents of regulatory evaluation, any comments brinelling to the self-sealing coupling Part received, and other information. The the possibility of fire. Number (P/N) 9304000–303 (Nipple street address for the Docket Operations For the reason described above, this Assembly). The wear is visible in the groove office (telephone (800) 647–5527) is in Airworthiness Directive (AD) requires the inspection of the affected nipple- and socket of the nipple, caused by the socket locking the ADDRESSES section. Comments will balls. During tear down investigations of self- assemblies and, if wear is found outside the be available in the AD docket shortly specified limits, replacement of worn parts. sealing coupling P/N 9304000–305 (Socket after receipt. Assembly), internal socket wear has been You may obtain further information FOR FURTHER INFORMATION CONTACT: observed. Wear that exceeds the allowable by examining the MCAI in the AD limits could lead to reduced oil flow, and Shahram Daneshmandi, International docket. further wear could contribute to separation of Branch, ANM–116, Transport Airplane the Self-Seal Coupling, making the engine Directorate, FAA, 1601 Lind Avenue, Relevant Service Information inoperable and subsequent shut down. As SW., Renton, Washington 98057–3356; Saab has issued Service Bulletin secondary damage, the generator may fail, telephone (425) 227–1112; fax (425) releasing oil into the nacelle and increasing 2000–79–006, Revision 01, dated the possibility of fire. 227–1149. October 15, 2007. The actions described SUPPLEMENTARY INFORMATION: in this service information are intended * * * * * Comments Invited to correct the unsafe condition The proposed AD would require identified in the MCAI. actions that are intended to address the We invite you to send any written unsafe condition described in the MCAI. relevant data, views, or arguments about FAA’s Determination and Requirements DATES: We must receive comments on this proposed AD. Send your comments of This Proposed AD this proposed AD by August 20, 2009. to an address listed under the This product has been approved by ADDRESSES: You may send comments by ADDRESSES section. Include ‘‘Docket No. the aviation authority of another any of the following methods: FAA–2009–0654; Directorate Identifier country, and is approved for operation • Federal eRulemaking Portal: Go to 2008–NM–083–AD’’ at the beginning of in the United States. Pursuant to our http://www.regulations.gov. Follow the your comments. We specifically invite bilateral agreement with the State of instructions for submitting comments. comments on the overall regulatory, Design Authority, we have been notified

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of the unsafe condition described in the Regulatory Findings Reason MCAI and service information We determined that this proposed AD (e) The mandatory continuing referenced above. We are proposing this airworthiness information (MCAI) states: would not have federalism implications AD because we evaluated all pertinent There have been reported incidents of under Executive Order 13132. This information and determined an unsafe brinelling to the self-sealing coupling Part proposed AD would not have a condition exists and is likely to exist or Number (P/N) 9304000–303 (Nipple substantial direct effect on the States, on Assembly). The wear is visible in the groove develop on other products of the same the relationship between the national of the nipple, caused by the socket locking type design. Government and the States, or on the balls. During tear down investigations of self- sealing coupling P/N 9304000–305 (Socket Differences Between This AD and the distribution of power and responsibilities among the various Assembly), internal socket wear has been MCAI or Service Information observed. Wear that exceeds the allowable levels of government. limits could lead to reduced oil flow, and We have reviewed the MCAI and For the reasons discussed above, I further wear could contribute to separation of related service information and, in certify this proposed regulation: the Self-Seal Coupling, making the engine general, agree with their substance. But 1. Is not a ‘‘significant regulatory inoperable and subsequent shut down. As we might have found it necessary to use action’’ under Executive Order 12866; secondary damage, the generator may fail, different words from those in the MCAI releasing oil into the nacelle and increasing 2. Is not a ‘‘significant rule’’ under the the possibility of fire. to ensure the AD is clear for U.S. DOT Regulatory Policies and Procedures operators and is enforceable. In making For the reason described above, this (44 FR 11034, February 26, 1979); and Airworthiness Directive (AD) requires the these changes, we do not intend to differ inspection of the affected nipple- and socket substantively from the information 3. Will not have a significant economic impact, positive or negative, assemblies and, if wear is found outside the provided in the MCAI and related specified limits, replacement of worn parts. on a substantial number of small entities service information. under the criteria of the Regulatory Actions and Compliance We might also have proposed Flexibility Act. (f) Unless already done, do the following different actions in this AD from those We prepared a regulatory evaluation actions. in the MCAI in order to follow FAA of the estimated costs to comply with (1) Within 12 months after the effective policies. Any such differences are this proposed AD and placed it in the date of this AD: Inspect the affected nipple assembly part number (P/N) 9304000–303 highlighted in a NOTE within the AD docket. proposed AD. and socket assembly P/N 9304000–305 for List of Subjects in 14 CFR Part 39 signs of damage, wear, and leaking of the Costs of Compliance nipple and socket, in accordance with the Air transportation, Aircraft, Aviation Accomplishment Instructions of Saab Service Based on the service information, we safety, Incorporation by reference, Bulletin 2000–79–006, Revision 01, dated estimate that this proposed AD would Safety. October 15, 2007. Repeat the inspection affect about 6 products of U.S. registry. thereafter at intervals not to exceed 4,000 The Proposed Amendment We also estimate that it would take flight hours. (2) If any wear is found during any about 1 work-hour per product to Accordingly, under the authority inspection required by paragraph (f)(1) of this comply with the basic requirements of delegated to me by the Administrator, AD that is beyond the limits as specified in this proposed AD. The average labor the FAA proposes to amend 14 CFR part Saab Service Bulletin 2000–79–006, Revision rate is $80 per work-hour. Based on 39 as follows: 01, dated October 15, 2007, prior to further these figures, we estimate the cost of the flight, replace the part with a new or proposed AD on U.S. operators to be PART 39—AIRWORTHINESS serviceable unit having the same part $480, or $80 per product. DIRECTIVES number, in accordance with Saab Service Bulletin 2000–79–006, Revision 01, dated Authority for This Rulemaking 1. The authority citation for part 39 October 15, 2007. continues to read as follows: (3) If any leak or damage is found during Title 49 of the United States Code any inspection required by paragraph (f)(1) of specifies the FAA’s authority to issue Authority: 49 U.S.C. 106(g), 40113, 44701. this AD, prior to further flight, replace the part with a new or serviceable unit having rules on aviation safety. Subtitle I, § 39.13 [Amended] section 106, describes the authority of the same part number in accordance with 2. The FAA amends § 39.13 by adding step 2.C.(1)(a)6 or step 2.C.(1)(a)10, as the FAA Administrator. ‘‘Subtitle VII: the following new AD: applicable, in Saab Service Bulletin 2000– Aviation Programs,’’ describes in more 79–006, Revision 01, dated October 15, 2007. detail the scope of the Agency’s Saab AB, Saab Aerosystems: Docket No. (4) Replacement of parts does not authority. FAA–2009–0654; Directorate Identifier constitute terminating action for the 2008–NM–083–AD. We are issuing this rulemaking under inspection requirements of this AD. the authority described in ‘‘Subtitle VII, Comments Due Date FAA AD Differences (a) We must receive comments by August Part A, Subpart III, Section 44701: Note 1: This AD differs from the MCAI 20, 2009. General requirements.’’ Under that and/or service information as follows: No section, Congress charges the FAA with Affected ADs differences. promoting safe flight of civil aircraft in (b) None. air commerce by prescribing regulations Other FAA AD Provisions for practices, methods, and procedures Applicability (g) The following provisions also apply to the Administrator finds necessary for (c) This AD applies to Saab AB, Saab this AD: safety in air commerce. This regulation Aerosystems Model SAAB 2000 airplanes, (1) Alternative Methods of Compliance is within the scope of that authority certificated in any category, serial numbers (AMOCs): The Manager, International 004 through 063 inclusive. Branch, ANM–116, Transport Airplane because it addresses an unsafe condition Directorate, FAA, has the authority to that is likely to exist or develop on Subject approve AMOCs for this AD, if requested products identified in this rulemaking (d) Air Transport Association (ATA) of using the procedures found in 14 CFR 39.19. action. America Code 79: Engine Oil. Send information to ATTN: Shahram

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Daneshmandi, International Branch, ANM– at the request of the American Public Commission’s May 21 NOPR raises 116, Transport Airplane Directorate, FAA, Power Association, Edison Electric many new technical and policy issues, 1601 Lind Avenue, SW., Renton, Washington Institute, the Electric Power Supply the Movants require additional time to 98057–3356; telephone (425) 227–1112; fax Association and the National Rural conduct member company consultations (425) 227–1149. Before using any approved AMOC on any airplane to which the AMOC Electric Cooperative Association. and to prepare reasoned comments. applies, notify your principal maintenance DATES: Comments are due on or before Upon consideration, notice is hereby inspector (PMI) or principal avionics August 17, 2009. given that an extension of time for filing inspector (PAI), as appropriate, or lacking a ADDRESSES: Interested persons may comments on the May 21 NOPR is principal inspector, your local Flight submit comments, identified by Docket granted to and including August 17, Standards District Office. No. RM08–13–000, by any of the 2009. (2) Airworthy Product: For any requirement following methods: Kimberly D. Bose, in this AD to obtain corrective actions from • a manufacturer or other source, use these Agency Web site: http:// Secretary. actions if they are FAA-approved. Corrective www.ferc.gov: Documents created [FR Doc. E9–17235 Filed 7–20–09; 8:45 am] electronically using word processing actions are considered FAA-approved if they BILLING CODE P are approved by the State of Design Authority software should be filed in native (or their delegated agent). You are required applications or print-to-PDF format and to assure the product is airworthy before it not in a scanned format. is returned to service. • Mail/Hand Delivery: Commenters DEPARTMENT OF THE TREASURY (3) Reporting Requirements: For any unable to file comments electronically reporting requirement in this AD, under the 31 CFR Part 103 must mail or hand deliver an original provisions of the Paperwork Reduction Act, RIN 1506–AB02 the Office of Management and Budget (OMB) and 14 copies of their comments to: has approved the information collection Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Financial Crimes Enforcement requirements and has assigned OMB Control Network: Anti-Money Laundering Number 2120–0056. Street, NE., Washington, DC 20426. Program and Suspicious Activity Related Information FOR FURTHER INFORMATION CONTACT: Report Requirements for Non-Bank (h) Refer to MCAI European Aviation Joshua Konecni (Legal Information), Residential Mortgage Lenders and Safety Agency Airworthiness Directive 2008– Office of the General Counsel, Federal Originators 0030, dated February 15, 2008; and Saab Energy Regulatory Commission, 888 Service Bulletin 2000–79–006, Revision 01, First Street, NE., Washington, DC AGENCY: Financial Crimes Enforcement dated October 15, 2007; for related 20426, (202) 502–6291. Network (FinCEN), Department of the information. Michael Henry (Legal Information), Treasury. Issued in Renton, Washington, on July 13, Office of the General Counsel, Federal ACTION: Advance notice of proposed 2009. Energy Regulatory Commission, 888 rulemaking. Ali Bahrami, First Street, NE., Washington, DC SUMMARY: FinCEN is issuing this 20426, (202) 502–8532. Manager, Transport Airplane Directorate, advance notice of proposed rulemaking Aircraft Certification Service. Cynthia Pointer (Technical Information), Office of Electric (ANPRM) to solicit public comment on [FR Doc. E9–17227 Filed 7–20–09; 8:45 am] a wide range of questions pertaining to BILLING CODE 4910–13–P Reliability, Division of Reliability Standards, Federal Energy Regulatory the possible application of anti-money Commission, 888 First Street, NE., laundering (AML) program and suspicious activity report (SAR) DEPARTMENT OF ENERGY Washington, DC 20426, (202) 502– 6069. regulations to a specific sub-set of loan Robert Snow (Technical Information), and finance companies: Non-bank Federal Energy Regulatory residential mortgage lenders and Commission Office of Electric Reliability, Division of Reliability Standards, Federal originators. FinCEN seeks comment on: An incremental approach to the 18 CFR Part 40 Energy Regulatory Commission, 888 First Street, NE., Washington, DC issuance of regulations for loan and Docket No. RM08–13–000 20426, (202) 502–6716. finance companies that would initially affect only those persons engaged in SUPPLEMENTARY INFORMATION: Transmission Relay Loadability non-bank residential mortgage lending Reliability Standard; Notice of Transmission Relay Loadability or origination; how any such regulations Extension of Time Reliability Standard; Notice of should define persons engaged in non- Extension of Time bank residential mortgage lending or July 13, 2009. origination; the financial crime and AGENCY: Federal Energy Regulatory On July 9, 2009, the American Public money laundering risks posed by such Commission. Power Association, Edison Electric persons; how AML programs for such ACTION: Institute, the Electric Power Supply Notice of proposed rulemaking: persons should be structured; whether extension of comment period. Association, and the National Rural Electric Cooperative Association such persons should be covered by BSA SUMMARY: On May 21, 2009, the Federal (Movants), on behalf of their respective requirements other than the AML Energy Regulatory Commission issued a member utilities, filed a motion for an program requirement, including SAR Notice of Proposed Rulemaking extension of time to file comments in reporting; and whether any such proposing to approve Reliability response to the Commission’s Notice of persons should be exempted from AML Standard PRC–023–1 (Transmission Proposed Rulemaking issued May 21, program or SAR reporting requirements. Relay Loadability Reliability Standard) 2009, in the above-referenced DATES: Written comments on this developed by the North American proceeding. Transmission Relay ANPRM must be received on or before Electric Reliability Corporation. The Loadability Reliability Standard, 127 August 20, 2009. date for filing comments on the FERC ¶ 61,175 (2009) (May 21 NOPR). ADDRESSES: FinCEN: You may submit Commission’s NOPR is being extended The motion states that because the comments, identified by Regulatory

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Identification Number (RIN) 1506– independent audit function to test noted that the persons involved in real AB02, by any of the following methods: programs.4 When prescribing minimum estate transactions, and the nature of • Federal E-rulemaking Portal: http:// standards for AML programs, FinCEN their involvement, could vary with the www.regulations.gov. Follow the must ‘‘consider the extent to which the contemplated use of the real estate, the instructions for submitting comments. requirements imposed under [the AML nature of the rights to be acquired, or Include 1506–AB02 in the submission. program requirement] are how these rights were to be held, e.g., Refer to Docket Number TREAS– commensurate with the size, location, for residential, commercial, portfolio FinCen-2009–0002. and activities of the financial investment, or development purposes. • Mail: FinCEN, P.O. Box 39, Vienna, institutions to which such regulations Finally, the 2003 ANPRM expressed VA 22183. Include 1506–AB02 in the apply.’’ 5 Federally regulated depository FinCEN’s views as to guiding principles body of the text. institutions are already required to have that should be considered in defining Please submit comments by one method AML programs.6 This ANPRM considers persons involved in real estate closings only. All comments submitted in imposing on companies performing and settlements. Any definitions or response to this ANPRM will become a certain services with respect to terms that define the scope of the rule matter of public record. Therefore, you residential mortgages, analogous should consider: (1) Those persons (i.e., should submit only information that requirements to those currently individuals and business entities) you wish to make publicly available. applicable to depository institutions whose services rendered or products Inspection of comments: Comments performing those same services. offered in connection with a real estate may be inspected, between 10 a.m. and The BSA defines the term ‘‘financial closing or settlement can be abused by 4 p.m., in the FinCEN reading room in institution’’ to include, in part, ‘‘loan or money launderers; (2) those persons Vienna, VA. Persons wishing to inspect finance company’’ and ‘‘persons who are positioned to identify the the comments submitted must request involved in real estate closings and purpose and nature of the transaction; an appointment with the Disclosure settlements.’’ 7 On April 29, 2002, and (3) the importance of various Officer by telephoning (703) 905–5034 again on November 6, 2002, FinCEN participants to successful completion of (not a toll free call). In general, FinCEN temporarily exempted both of these the transaction, which may suggest that will make all comments publicly categories of financial institutions, they are well positioned to identify available by posting them on http:// among others, from the requirement to suspicious conduct; (4) the degree to www.regulations.gov. establish an AML program.8 The which professionals may have very purpose of the temporary exemption different roles, in different transactions, FOR FURTHER INFORMATION CONTACT: was to enable Treasury and FinCEN to that may result in greater exposure to FinCEN: Regulatory Policy and study the exempted categories of money laundering; and (5) involvement Programs Division, Financial Crimes institutions and to consider the extent to with the actual flow of funds used in the Enforcement Network, (800) 949–2732 which AML requirements should be transaction.10 and select option 6. applied to them, taking into account FinCEN has not issued any additional SUPPLEMENTARY INFORMATION: their specific characteristics and money notices regarding persons involved in I. Background laundering vulnerabilities. real estate closings and settlements 1 On April 10, 2003, FinCEN issued an since the 2003 ANPRM. This is The Bank Secrecy Act (BSA) ANPRM regarding AML requirements FinCEN’s first notice regarding loan and authorizes the Secretary of the Treasury for persons involved in real estate finance companies. FinCEN has in the (the Secretary) to issue regulations closings and settlements.9 The 2003 interim continued its research and requiring financial institutions to keep ANPRM noted that the BSA had no analysis related to the categories of records and file reports that the definition of the term ‘‘persons involved financial institutions exempted in 2002. Secretary determines ‘‘have a high in real estate closings and settlements;’’ In view of increasing concern among degree of usefulness in criminal, tax, or that FinCEN had not had occasion to regulators, law enforcement and regulatory investigations or proceedings, define the term in a regulation; and that Congress over abusive and fraudulent or in the conduct of intelligence or the legislative history of the term sales and financing practices in both the counterintelligence activities, including provided no insight into how Congress primary and secondary residential analysis, to protect against international mortgage markets, FinCEN also has 2 intended the term to be defined. The terrorism.’’ The authority of the 2003 ANPRM also noted that real estate undertaken a number of strategic, Secretary to administer the BSA has transactions could involve multiple outreach and law enforcement support been delegated to the Director of initiatives focused on residential 3 persons, including: Real estate agents, FinCEN. banks, mortgage banks, mortgage mortgage lending. Financial institutions are required to brokers, title insurance companies, FinCEN is contemplating an establish AML programs that include, at appraisers, escrow agents, settlement incremental approach to a minimum: (1) The development of attorneys or agents, property inspectors implementation of AML regulations for internal policies, procedures, and and other persons directly and loan and finance companies that would controls; (2) the designation of a tangentially involved in property focus first on those business entities that compliance officer; (3) an ongoing financing, acquisition, settlement, and are engaged in residential mortgage employee training program; and (4) an occupation. The 2003 ANPRM further lending or origination and are not currently subject to any AML program 1 ‘‘Bank Secrecy Act’’ is the name that has come 4 requirement under the BSA or other to be applied to the Currency and Foreign 31 U.S.C. 5318(h). Transactions Reporting Act (Titles I and II of Pub. 5 Public Law 107–56 section 352(c), 115 Stat. Federal law. These ‘‘non-bank L. 91–508), its amendments, and the other statutes § 322, codified at 31 U.S.C. 5318 note. Public Law residential mortgage lenders and referring to the subject matter of that Act. These 107–56 is the USA PATRIOT Act of 2001. originators’’ are primary providers of statutes are codified at 12 U.S.C. 1829b, 12 U.S.C. 6 See 31 CFR 103.120. mortgage finance—in most cases dealing 7 1951–1959, 18 U.S.C. 1956, 18 U.S.C. 1957, 18 31 U.S.C. 5312(a)(2)(P), (U). directly with the consumer—and are in U.S.C. 1960, and 31 U.S.C. 5311–5314 and 5316– 8 See 31 CFR 103.170; 67 FR 21113 (Apr. 29, 5332, and notes thereto. 2002), as amended at 67 FR 67549 (Nov. 6, 2002) a unique position to assess and identify 2 31 U.S.C. 5311. and corrected at 67 FR 68935 (Nov. 14, 2002). 3 See Treasury Order 180–01 (Sept. 26, 2002). 9 See 68 FR 17569 (Apr. 10, 2003). 10 See 68 FR 17569, 17570 (Apr. 10, 2003).

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money laundering risks and fraud while and fraud-for-housing schemes consumers, loan and finance companies directly assisting consumers with their involving real estate brokers, appraisers, originate loans and leases to finance the financial needs and protecting them and other persons associated with real purchase of consumer goods such as from the abuses of financial crime. estate finance and settlements.12 automobiles, furniture, and household FinCEN believes that new regulations FinCEN studies also have shown the appliances. They also extend personal requiring non-bank residential mortgage connection between persons involved in loans and loans secured by real estate lenders and originators to adopt AML mortgage fraud and other suspected mortgages, including home equity loans. programs and report suspicious financial crimes.13 The crime of money For businesses, they supply short- and transactions would augment FinCEN’s laundering is defined, in part, with intermediate-term credit for such initiatives in this area. Among other respect to the proceeds of specific purposes as the purchase of equipment benefits, such regulations would unlawful, ‘‘predicate’’ activities. Both and motor vehicles and the financing of complement efforts underway by mortgage fraud and the act of laundering inventories. In addition, specialized mortgage companies to comply with the mortgage fraud proceeds are crimes wholesale loan and finance companies nationwide licensing system and under Federal and State laws, and both provide liquidity that allows retail loan registry under development since the are destructive to consumers, individual and finance companies, as well as banks passage of the Secure and Fair businesses and the financial system as and others, to service end users.14 Enforcement for Mortgage Licensing Act a whole. There has been a ‘‘regulatory gap’’ of 2008 (S.A.F.E. Act).11 As mortgage FinCEN seeks comment on the between the BSA’s coverage of companies implement systems and experience of the residential real estate depository institutions and non-bank procedures to comply with the S.A.F.E. lending sector with money laundering residential mortgage lenders and Act, there will be opportunities for them and fraud schemes, the existence of any originators. FinCEN is concerned that to review and enhance their educational safeguards in the industry to guard this disparity in BSA regulatory and training programs to ensure that against these crimes, the impact that coverage may have made non-bank employees are able to identify and compliance with AML program and residential mortgage lenders and appropriately deal with fraud, money SAR reporting requirements may have originators more vulnerable to financial laundering and other financial crimes. on business operations, and what crime and money laundering than their additional steps may be necessary to bank counterparts. FinCEN believes that II. Issues for Comment protect the industry from abuse by implementation of appropriate, risk- This ANPRM solicits comment on all money launderers, including those who based AML programs by non-bank aspects of the potential impact of finance terrorist activity. residential mortgage lenders and applying BSA requirements to non-bank originators will strengthen their existing 2. Should FinCEN Pursue an residential mortgage lenders and compliance and anti-fraud programs, as Incremental Approach to Regulation of originators. well as the training and licensing Loan and Finance Companies That programs that will be updated to 1. What Are the Money Laundering Focuses First on Persons Engaged in comply with the S.A.F.E. Act. Moreover, Risks in the Non-Bank Residential Non-Bank Residential Mortgage Lending a SAR reporting regulation likely would Mortgage Finance Sector? or Origination? reduce the vulnerability of this sector As noted in the 2003 ANPRM, the As is the case with the term ‘‘persons and substantially expand FinCEN’s BSA residential real estate sector may be involved in real estate closings and database, thereby giving our regulatory vulnerable at all stages of the money settlements,’’ the term ‘‘loan or finance and law enforcement partners a more laundering process. Money laundering company’’ is not defined or discussed in complete macro and micro (case- is a process by which funds with an any FinCEN regulation, and there is no specific) picture of mortgage-related illicit origin are converted into funds legislative history on the term. The financial crimes. In these and other with a plausibly legitimate origin. There term, however, could conceivably respects, non-bank residential mortgage are three general stages of money extend to any business entity that makes lenders and originators may assume an laundering. The ‘‘placement’’ stage is loans or finances purchases to or on increasingly crucial role in government the stage at which funds from illegal behalf of consumers and businesses. For and industry efforts to protect activity or funds intended to support consumers, mortgage finance illegal activity are first introduced into 12 See Filing Trends in Mortgage Loan Fraud, Feb. businesses, and the United States the financial system. Money laundering 2009, _ financial system from money laundering ‘‘layering’’ involves the distancing of http://www.fincen.gov/news room/nr/pdf/ 20090225a.pdf; Mortgage Loan Fraud: an Update of and other financial crimes. illegal funds from their criminal source Trends Based upon Analysis of Suspicious Activity FinCEN is inclined to defer through the creation of complex layers Reports, Apr. 2008, &fnl;http://www.fincen.gov/ regulations for commercial real estate _ of financial transactions. ‘‘Integration’’ news room/rp/files/ finance businesses and other types of occurs when illegal funds are made to MortgageLoanFraudSARAssessment.pdf; Suspected Money Laundering in the Residential Real Estate consumer and commercial finance appear to have been derived from a Industry, Apr. 2008, http://www.fincen.gov/ businesses until further research and legitimate source. Despite the relative news_room/rp/files/ analysis can be conducted to enhance _ _ _ _ _ illiquidity of most real estate assets, MLR Real Estate Industry SAR web.pdf; Money our understanding of their business money launderers have used residential Laundering in the Commercial Real Estate Industry; Dec. 2006, http://www.fincen.gov/news_room/rp/ operations and money laundering mortgage transactions—fraudulently reports/pdf/CREassessment.pdf; Mortgage Loan vulnerabilities. and legitimately structured—to disguise Fraud: An Industry Assessment Based Upon the proceeds of crime. Suspicious Activity Report Analysis, Nov. 2006, 14 _ The North American Industry Classification http://www.fincen.gov/news room/rp/reports/pdf/ System classifies approximately 10 types of In recent years, a significant _ percentage of SARs filed with FinCEN mortgage fraud112006.pdf. mortgage finance-related businesses and professions 13 See Mortgage Loan Fraud Connections with and over 60 other businesses, professions and have reported suspected fraud-for-profit Other Financial Crime: An Evaluation of Suspicious institutions (e.g., consumer and commercial finance Activity Reports Filed by Money Services companies, pawnshops, auto finance, equipment 11 See Title V of Division A of the Housing and Businesses, Securities and Futures Firms, Insurance leasing, personal credit companies, industrial loan Economic Recovery Act of 2008, Public Law 110– Companies and Casinos, Mar. 2009, http:// companies and government sponsored enterprises) 289, 122 Stat. 2810 (2008), codified at 12 U.S.C. www.fincen.gov/news_room/rp/files/ as primarily engaged in consumer and commercial 5101, et seq. mortgage_fraud.pdf. lending and finance.

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FinCEN seeks general comment on (i.e., those who may act as an agent for proprietors. FinCEN thus seeks whether FinCEN should adopt this some or all of the parties and are comment on any particular concerns incremental approach or some other responsible for reviewing the form and smaller businesses may have regarding approach to implementation of AML type of payment, as well as being aware the implementation of an AML program. program and SAR regulations for loan of the parties to the mortgage FinCEN believes that AML programs and finance companies. transaction), and those who view their will complement the anti-fraud and involvement as more peripheral. general compliance programs that non- 3. How Should Persons Engaged in Non- Various definitions in the S.A.F.E. Act bank residential mortgage lenders and Bank Residential Mortgage Lending or may be a useful reference for comments originators have established to comply Origination Be Defined? related to the development of regulatory with other Federal and State laws and Most real estate finance—both definitions that would affect the scope protect their own business operations. residential and commercial—involves of any proposed regulations for non- Many non-bank residential mortgage complex transactions and multiple bank residential mortgage lenders and lenders and originators may be able to parties whose roles are not always originators. FinCEN seeks comment integrate risk-based AML reporting readily discernable by the titles and specifically on whether FinCEN should programs into existing enterprise-wide terms used to describe them in generally adopt a definition of ‘‘non-bank anti-fraud and compliance programs in accepted business practices or under mortgage lender or originator’’ that a symbiotic manner that utilizes applicable licensing and registration would be similar to the definition of economies of scale and enhances the regimes. The primary mortgage market ‘‘loan originator’’ in the S.A.F.E. Act.15 effectiveness of a business’s compliance in the United States is very fragmented, The term ‘‘loan originator’’ in the measures. FinCEN therefore seeks and even simple real estate finance S.A.F.E. Act means individuals who comment on what types of programs transactions may involve one or more take applications for residential and practices that persons engaged in parties that may originate, fund, broker, mortgage loan transactions, including non-bank residential mortgage lending purchase, transfer, service, securitize, employees of mortgage bankers and or origination have in place to prevent and insure the mortgage loan. brokers, as well as loan officers of banks mortgage fraud and other illegal FinCEN believes that the views, and their subsidiaries. The S.A.F.E. Act activities, and the applicability of such assumptions and guiding principles also provides a broad definition of programs to the development of AML noted in the 2003 ANPRM are equally ‘‘residential mortgage loan’’ that may be programs. relevant to the development of AML a useful reference for comments: ‘‘any program and SAR reporting regulations loan primarily for personal, family, or 5. Should FinCEN Require Persons for non-bank residential mortgage household use that is secured by a Engaged in Non-Bank Residential lenders and originators. AML mortgage, deed of trust, or other Mortgage Lending or Origination To File obligations should focus on those equivalent consensual security interest SARs or Comply With Any Other BSA persons (i.e., individuals and business on a dwelling (as defined in section Requirements? entities) that conduct the activities that 103(v) of the Truth in Lending Act) or As FinCEN emphasized in its recent place them in the best position to residential real estate upon which is report on mortgage loan fraud trends, identify the nature of the transaction, constructed or intended to be SARs provide a valuable tool for recognize suspicious activity and constructed a dwelling * * *.’’ 16 As regulatory agencies and law prevent misuse of their services for noted, the focus of this ANPRM is non- enforcement seeking to isolate specific money laundering and other financial bank residential mortgage lenders and instances of potential criminal activity crimes. This activities-based approach originators who are primary providers of for further investigation, and to identify focuses on the nature of the activity mortgage finance and are in the best emerging money laundering and conducted and its primary function in a position to prevent and detect money terrorism financing trends.17 The due particular residential mortgage laundering, fraud and other financial diligence necessary for financial transaction, rather than on the name or crimes. FinCEN seeks comment on institutions to detect and report known title of the person. Moreover, FinCEN whether any regulations promulgated by or suspected suspicious activity greatly believes that any regulations for non- FinCEN should cover the same persons reduces vulnerability to the abuses of bank residential mortgage lenders and as those covered by the S.A.F.E. Act, or money laundering and terrorist originators should strive to avoid, to the a broader or narrower range of persons. financing. greatest extent possible, requirements FinCEN has promulgated SAR that overlap or duplicate those of other 4. How Should the Anti-Money reporting regulations for a number of BSA rules. Laundering Requirements for Persons FinCEN seeks comment on which Engaged in Non-Bank Residential financial institutions that have AML participants involved in non-bank Mortgage Lending or Origination Be program requirements, including residential mortgage finance are in a Structured? mutual funds, insurance companies, position where they can effectively futures commission merchants and In applying the BSA to persons introducing brokers in commodities, identify and guard against financial engaged in non-bank residential crime and money laundering in the banks, brokers or dealers in securities, mortgage lending and origination, money services businesses, and transactions they conduct. Information FinCEN must consider the extent to 18 and comment may, among other things, casinos. FinCEN anticipates that any which the standards for AML programs SAR regulation proposal applicable to address both the extent to which various are commensurate with the size, participants have access to information persons engaged in non-bank residential location, and activities of such persons. mortgage lending or origination would regarding the nature and purpose of the FinCEN recognizes that while large transactions at issue and the importance have similar reporting standards, businesses are engaged in mortgage thresholds and procedures as those set of the participants’ involvement to finance, businesses in this industry also successful completion of the include smaller companies or sole 17 Filing Trends in Mortgage Loan Fraud, Feb. transactions. Comments are welcome 2009, page 1, http://www.fincen.gov/news_room/nr/ from those involved centrally in the 15 12 U.S.C. 5102(3). pdf/20090225a.pdf. residential mortgage finance process 16 12 U.S.C. 5102(8). 18 See 31 CFR 103.15–103.21.

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forth in SAR regulations for other implement the requirements of the BSA Under this proposed regulation, persons industries. with respect to non-bank residential and vessels are prohibited from entering In addition to any proposed SAR mortgage lenders and originators. We the regulated area during this annual reporting regulations for non-bank also seek input on: (1) Estimates and event unless entry is authorized by the residential mortgage lenders or financial projections on the likely costs Captain of the Port Long Island Sound originators, FinCEN also may propose to of complying with AML program and or by designated on-scene patrol require these businesses to file currency SAR reporting regulations by specific personnel. transaction reports (rather than Form types of non-bank residential mortgage DATES: Comments and related material 8300) or retain certain records, lenders and originators; (2) the impact must be received by the Coast Guard on including those related to large of any such regulatory requirements on or before August 20, 2009. transmittals of funds.19 These changes industry profitability, growth and ADDRESSES: You may submit comments could be accomplished through business practices; (3) the impact of amendments to the definitions identified by docket number USCG– these requirements on consumers 2009–0395 using any one of the regulation, 31 CFR 103.11 (specifically, seeking to obtain residential mortgages; to the definition of ‘‘financial following methods: (4) the effectiveness of examining for (1) Federal eRulemaking Portal: institution’’), and the exemptions and enforcing compliance with these regulation, 31 CFR 103.170 (specifically, http://www.regulations.gov. requirements; and (5) the advisability of (2) Fax: 202–493–2251. to the temporary exemption from the establishing some minimum transaction (3) Mail: Docket Management Facility AML program requirement); or they threshold value or annual volume (M–30), U.S. Department of could be accomplished by issuing new threshold below which some or all of Transportation, West Building Ground regulations. FinCEN also recognizes that these requirements would not apply. We Floor, Room W12–140, 1200 New Jersey persons engaged in residential mortgage also solicit comment on the impact to Avenue, SE., Washington, DC 20590– lending or origination may already have law enforcement and regulatory 0001. programs and practices in place to meet agencies. FinCEN welcomes comments (4) Hand delivery: Same as mail existing legal obligations or protect the on all aspects of the ANPRM, and we address above, between 9 a.m. and 5 business from fraud and other illegal encourage all interested parties to p.m., Monday through Friday, except activities. FinCEN requests comment on provide their views. Federal holidays. The telephone number any aspect of possible new regulatory IV. Executive Order 12866 is 202–366–9329. requirements, including any factors To avoid duplication, please use only FinCEN should consider in structuring This advance notice of proposed one of these four methods. See the new requirements, exceptions, and rulemaking is not a significant ‘‘Public Participation and Request for differences from established regulations. regulatory action under Executive Order Comments’’ portion of the Useful information would include any 12866. Therefore, a Regulatory SUPPLEMENTARY INFORMATION section available estimates of volumes of Assessment is not required. below for instructions on submitting transactions that might be subject to comments. particular reporting or recordkeeping William F. Baity, requirements. Acting Director, Financial Crimes FOR FURTHER INFORMATION CONTACT: If Enforcement Network. you have questions on this proposed 6. Should Any Persons or Transactions [FR Doc. E9–17117 Filed 7–20–09; 8:45 am] rule, call or e-mail: Chief Petty Officer Be Exempted From Coverage of AML or BILLING CODE 4810–02–P Christie Dixon, Prevention Department, SAR Regulations? USCG Sector Long Island Sound at FinCEN also solicits comment 203–468–4459, e-mail regarding whether there should be DEPARTMENT OF HOMELAND [email protected]. If you have regulatory exemptions for any category SECURITY questions on viewing or submitting of persons engaged in non-bank material to the docket, call Renee V. residential mortgage lending or Coast Guard Wright, Program Manager, Docket origination, or any category of Operations, telephone 202–366–9826. transactions conducted by such persons. 33 CFR Part 100 SUPPLEMENTARY INFORMATION: Comments regarding possible [Docket No. USCG–2009–0395] exemptions should be designed to Public Participation and Request for enable FinCEN to evaluate whether the RIN 1625–AA08 Comments We encourage you to participate in risk of money laundering through a Special Local Regulation, Swim Across this rulemaking by submitting category of persons or transactions is the Sound, Long Island Sound, Port comments and related materials. All sufficiently small that a proposed rule Jefferson, NY to Captain’s Cove comments received will be posted could be crafted that would exempt the Seaport, Bridgeport, CT categories, while also providing without change to http:// adequate protection for the industry AGENCY: Coast Guard, DHS. www.regulations.gov and will include from the risks of money laundering. The ACTION: Notice of proposed rulemaking. any personal information you have question of exemption is specifically provided. SUMMARY: The Coast Guard proposes to directed to professionals and those Submitting Comments persons who are primarily engaged in a establish a permanent special local business related to residential mortgage regulation on the navigable waters of If you submit a comment, please lending or origination. Long Island Sound between Port include the docket number for this Jefferson, NY and Captain’s Cove rulemaking (USCG–2009–0395), III. Conclusion Seaport, Bridgeport, CT for the annual indicate the specific section of this With this ANPRM, FinCEN is seeking Swim Across the Sound event. This document to which each comment input on how FinCEN should special local regulation is necessary to applies, and provide a reason for each provide for the swimmers’ safety on the suggestion or recommendation. You 19 See 31 CFR 103.22, 103.30 and 103.33. navigable waters of Long Island Sound. may submit your comments and

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material online (via http:// in the January 17, 2008 issue of the day in August. Marine traffic that may www.regulations.gov) or by fax, mail, or Federal Register (73 FR 3316). safely do so may transit outside of the hand deliver, but please use only one of area during the enforcement period, Public Meeting these means. If you submit a comment allowing navigation in all other portions online via http://www.regulations.gov, it We do not now plan to hold a public of Long Island Sound not covered by will be considered received by the Coast meeting. But you may submit a request this rule. Within the regulated area, Guard when you successfully transmit for one using one of the four methods approaching within 100 yards of any the comment. If you fax, hand deliver, specified under ADDRESSES. Please swimmer would be prohibited unless or mail your comment, it will be explain why you believe a public authorized by the Captain of the Port considered as having been received by meeting would be beneficial. If we Long Island Sound or designated on- the Coast Guard when it is received at determine that one would aid this scene patrol personnel. Notification of the Docket Management Facility. We rulemaking, we will hold one at a time the race date and subsequent recommend that you include your name and place announced by a later notice enforcement of the special local and a mailing address, an e-mail in the Federal Register. regulation will be made via marine address, or a telephone number in the Background and Purpose broadcasts and broadcast notice to body of your document so that we can mariners. This rule would be effective contact you if we have questions The Swim Across the Sound has been annually on a date in August to be regarding your submission. successfully held for over twenty years specified in the Federal Register. Any on the waters of Long Island Sound violation of the special local regulation To submit your comment online, go to between Port Jefferson, NY and http://www.regulations.gov, select the described herein is punishable by, Bridgeport, CT. This 25 KM swim has among others, civil and criminal Advanced Docket Search option on the historically involved over 200 right side of the screen, insert ‘‘USCG– penalties, in rem liability against the swimmers and accompanying safety offending vessel, and license sanctions. 2009–0395’’ in the Docket ID box, press craft. The swim course is located Enter, and then click on the balloon directly northwest of Port Jefferson, NY Regulatory Analyses shape in the Actions column. If you and extends to Captain’s Cove Seaport, We developed this proposed rule after submit your comments by mail or hand Bridgeport, CT. Currently there is no considering numerous statutes and delivery, submit them in an unbound regulation in place to protect the executive orders related to rulemaking. format, no larger than 81⁄2 by 11 inches, swimmers or safety craft from the Below we summarize our analyses suitable for copying and electronic hazards imposed by passing water based on 13 of these statutes or filing. If you submit comments by mail traffic and other water related activities. executive orders. and would like to know that they To ensure the continued safety of the reached the Facility, please enclose a swimmers, safety craft and the boating Regulatory Planning and Review stamped, self-addressed postcard or public, the Coast Guard is proposing to This proposed rule is not a significant envelope. We will consider all establish a special local regulation that regulatory action under section 3(f) of comments and material received during would prohibit unauthorized persons Executive Order 12866, Regulatory the comment period and may change and vessel traffic from approaching Planning and Review, and does not the rule based on your comments. within 100 yards of the swim require an assessment of potential costs Viewing Comments and Documents participants as they proceed along the and benefits under section 6(a)(3) of that race course. This action is intended to Order. The Office of Management and To view comments, as well as increase the safety of the swimmers, the Budget has not reviewed it under that documents mentioned in this preamble swimmer’s safety craft and the boating Order. as being available in the docket, go to community from the hazards posed by We expect the economic impact of http://www.regulations.gov, select the vessels operating near persons this proposed rule to be so minimal that Advanced Docket Search option on the participating in this open water swim. a full Regulatory Evaluation is right side of the screen, insert USCG– unnecessary. This regulation may have 2009–0395 in the Docket ID box, press Discussion of Proposed Rule some impact on the public, but any Enter, and then click on the item in the The Coast Guard proposes to establish potential impact would be minimized Docket ID column. You may also visit a permanent special local regulation on for the following reason: Vessels may the Docket Management Facility in the navigable waters of Long Island transit in all areas of Long Island Sound, Room W12–140 on the ground floor of Sound to exclude all unauthorized other than within 100 yards of event the Department of Transportation West persons and vessels from approaching participants within the regulated area; Building, 1200 New Jersey Avenue SE., within 100 yards away from any thus vessel traffic would be allowed to Washington, DC 20590, between 9 a.m. swimmer and/or the planned race pass through the regulated area during and 5 p.m., Monday through Friday, course. The regulated area is bounded the event as long as they remained except Federal holidays. We have an by the following approximate points: outside 100 yards of any swimmer. agreement with the Department of Starting Point of Port Jefferson Beach Further, vessels would only have Transportation to use the Docket 40°58′11.71″ N, 073°05′51.12″ W, north minimal increased transit time and the Management Facility. westerly to the finishing point at special local regulation will only be ′ Privacy Act Captain s Cove Seaport at approximate enforced for approximately 11 hours on position 41°09′25.07″ N, 073°12′47.82″ a single specified day each August, Anyone can search the electronic W. The duration of the event, and thus made publicly known in advance of the form of comments received into any of the enforcement period of the special scheduled event. our dockets by the name of the local regulation, is generally from 8:30 individual submitting the comment (or a.m. to 7:30 p.m. on the day of the race. Small Entities signing the comment, if submitted on While the special local regulation will Under the Regulatory Flexibility Act behalf of an association, business, labor be permanent, it will only be enforced (5 U.S.C. 601–612), we have considered union, etc.). You may review a Privacy for approximately 11 hours on the day whether this proposed rule would have Act notice regarding our public dockets of the race normally held on a single a significant economic impact on a

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substantial number of small entities. would either preempt State law or determined that it is not a ‘‘significant The term ‘‘small entities’’ comprises impose a substantial direct cost of energy action’’ under that order because small businesses, not-for-profit compliance on them. We have analyzed it is not a ‘‘significant regulatory action’’ organizations that are independently this proposed rule under that Order and under Executive Order 12866 and is not owned and operated and are not have determined that it does not have likely to have a significant adverse effect dominant in their fields, and implications for federalism. on the supply, distribution, or use of governmental jurisdictions with Unfunded Mandates Reform Act energy. The Administrator of the Office populations of less than 50,000. of Information and Regulatory Affairs The Coast Guard certifies that under The Unfunded Mandates Reform Act has not designated it as a significant 5 U.S.C. 605(b) that this proposed rule of 1995 (2 U.S.C. 1531–1538) requires energy action. Therefore, it does not would not have a significant economic Federal agencies to assess the effects of require a Statement of Energy Effects their discretionary regulatory actions. In impact on a substantial number of small under Executive Order 13211. entities. This proposed rule may affect particular, the Act addresses actions the following entities, some of which that may result in the expenditure by a Technical Standards may be small entities: The owners or State, local, or tribal government, in the operators of vessels intending to transit aggregate, or by the private sector of The National Technology Transfer in those portions of Long Island Sound $100,000,000 or more in any one year. and Advancement Act (NTTAA) (15 covered by the special local regulation. Though this proposed rule would not U.S.C. 272 note) directs agencies to use Before the activation of the zone, we result in such expenditure, we do voluntary consensus standards in their would issue maritime advisories in discuss the effects of this rule elsewhere regulatory activities unless the agency advance of the event and make them in this preamble. provides Congress, through the Office of widely available to users of the Management and Budget, with an Taking of Private Property waterway. For the reasons outlined in explanation of why using these the Regulatory Evaluation section above, This proposed rule would not affect a standards would be inconsistent with this rule will not have a significant taking of private property or otherwise applicable law or otherwise impractical. impact on a substantial number of small have taking implications under Voluntary consensus standards are entities. Executive Order 12630, Governmental technical standards (e.g., specifications If you think that your business, Actions and Interference with of materials, performance, design, or organization, or governmental Constitutionally Protected Property operation; test methods; sampling jurisdiction qualifies as a small entity Rights. procedures; and related management and that this rule would have a Civil Justice Reform systems practices) that are developed or significant economic impact on it, adopted by voluntary consensus please submit a comment (see This proposed rule meets applicable standards bodies. ADDRESSES) explaining why you think it standards in sections 3(a) and 3(b)(2) of This proposed rule does not use qualifies and how and to what degree Executive Order 12988, Civil Justice technical standards. Therefore, we did this rule would economically affect it. Reform, to minimize litigation, eliminate ambiguity, and reduce not consider the use of voluntary Assistance for Small Entities burden. consensus standards. Under section 213(a) of the Small Protection of Children Environment Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), We have analyzed this proposed rule We have analyzed this proposed rule we want to assist small entities in under Executive Order 13045, under Department of Homeland understanding this proposed rule so that Protection of Children from Security Management Directive 023–01 they can better evaluate its effects on Environmental Health Risks and Safety and Commandant Instruction them and participate in the rulemaking. Risks. This rule is not an economically M16475.lD, which guide the Coast If the rule would affect your small significant rule and would not create an Guard in complying with the National business, organization, or governmental environmental risk to health or risk to Environmental Policy Act of 1969 jurisdiction and you have questions safety that might disproportionately (NEPA) (42 U.S.C. 4321–4370f), and concerning its provisions or options for affect children. have made a preliminary determination compliance, please contact: MSTC Indian Tribal Governments that this action is one of a category of Christie Dixon, Prevention Department, actions which do not individually or This proposed rule does not have USCG Sector Long Island Sound at 203– cumulatively have a significant effect on 468–4459, [email protected]. tribal implications under Executive Order 13175, Consultation and the human environment. A preliminary The Coast Guard will not retaliate environmental analysis checklist against small entities that question or Coordination with Indian Tribal Governments, because it would not have supporting this determination is complain about this proposed rule or available in the docket where indicated any policy or action of the Coast Guard. a substantial direct effect on one or more Indian tribes, on the relationship under ADDRESSES. This proposed rule Collection of Information between the Federal Government and involves the promulgation of special This proposed rule would call for no Indian tribes, or on the distribution of local regulations in conjunction with a new collection of information under the power and responsibilities between the permitted marine event and falls under Paperwork Reduction Act of 1995 (44 Federal Government and Indian tribes. the category of actions under paragraph U.S.C. 3501–3520. 34(h) of the instruction for which Energy Effects further environmental analysis is not Federalism We have analyzed this proposed rule normally required. We seek any A rule has implications for federalism under Executive Order 13211, Actions comments or information that may lead under Executive Order 13132, Concerning Regulations That to the discovery of a significant Federalism, if it has a substantial direct Significantly Affect Energy Supply, environmental impact from this effect on State or local governments and Distribution, or Use. We have proposed rule.

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List of Subjects in 33 CFR Part 100 (d) Enforcement Period. This rule is The Petition explains that the Postal Marine safety, Navigation (water), enforced annually on a date in August. Service’s current practice is to combine Reporting and recordkeeping Notification of the specific date and data from two sources to fashion requirements, Waterways. enforcement of the special local Revenue, Pieces, and (RPW) estimates for the various categories of For the reasons discussed in the regulation will be made via Notice in bulk mail. It combines census data preamble, the Coast Guard proposes to the Federal Register, marine broadcasts recorded by its PostalOne! system amend 33 CFR part 100 as follows: and local Notice to Mariners. Dated: June 17, 2009. (which reflects automated office activity) with data found on postage PART 100—SAFETY OF LIFE ON Daniel A. Ronan, NAVIGABLE WATERS statements that are taken from a Captain, U.S. Coast Guard, Captain of the probability sample of non-automated Port Long Island Sound. 1. The authority citation for part 100 offices. It notes that the sample data continues to read as follows: [FR Doc. E9–17244 Filed 7–20–09; 8:45 am] taken from non-automated offices are Authority: 33 U.S.C. 1233. BILLING CODE 4910–15–P becoming less reliable as the pool of 2. Add § 100.125 to read as follows: non-automated offices shrinks and the sample frames for that pool become § 100.125 Swim Across the Sound, Long POSTAL REGULATORY COMMISSION increasingly dated. It also notes that the Island Sound, Port Jefferson, NY to sampling process is more expensive Captain’s Cove Seaport, Bridgeport, CT. 39 CFR Part 3050 than the modeling process that it (a) Regulated area. All navigable [Docket No. RM2009–7; Order No. 245] proposes. waters of Long Island Sound within 100 The Postal Service proposes to yards of the swim event race course Periodic Reporting Rules discontinue sampling non-automated consisting of the following points: offices when preparing its RPW Starting Point at Port Jefferson Beach at AGENCY: Postal Regulatory Commission. estimates. In place of the current non- approximate position 40°58′11.71″ N, ACTION: Proposed rule; availability of automated office sample, it proposes to 073°05′51.12″ W, north-westerly to the rulemaking petition. take the universe of offices, and stratify finishing point at Captain’s Cove it according to size. It will then impute Seaport at approximate location SUMMARY: Under a new law, the Postal the incidence of mail characteristics for 41°09′25.07″ N, 073°12′47.82″ W. Service must file an annual compliance a given product found in automated (b) Definitions. The following report with the Postal Regulatory offices in a particular size stratum, as definition applies to this section: Commission on costs, revenues, rates reflected in PostalOne! data, to the Designated On-scene Patrol Personnel, and quality of service associated with its characteristics of products found in means any commissioned, warrant and products. This document notes that the non-automated offices in the same size petty officers of the U.S. Coast Guard Postal Service has filed a petition for stratum. The Postal Service calls this its operating Coast Guard vessels who have consideration of a proposed change in ‘‘modeling’’ approach. Petition at 1–2. been authorized to act on the behalf of analytical methods approved for use in The Petition, which is available on the Captain of the Port Long Island periodic reporting. The focus of this the Commission’s Web site, http:// Sound. petition (involving an issue referred to www.prc.gov, includes appendices (c) Special local regulations. (1) No as Proposal Two) is on the Postal purporting to show the results of testing person or vessel may approach or Service’s development of revenue, piece the accuracy of its modeling approach remain within 100 yards of any and weight estimates for bulk mail in estimating revenue, pieces, and swimmer within the regulated area categories. The Commission has weight with respect to all market during the enforcement period of this established a docket for consideration of dominant bulk mail categories. The regulation unless they are officially Proposal Two and has addressed Postal Service concludes that the results participating in the Swim Across the preliminary procedural matters, are accurate for all categories except for Sound event or are otherwise authorized including an opportunity for public Within County Periodicals. Even with by the Captain of the Port Long Island comment. Proposal One is under respect to Within County Periodicals, it Sound or by Designated On-scene Patrol consideration in a pending docket. asserts that the modeled results are Personnel. DATES: Deadline for initial comments: more accurate than the current approach (2) All persons and vessels must July 29, 2009. which employs data gathered from a comply with the instructions from the ADDRESSES: File comments sample of non-automated offices. Id. at Coast Guard Captain of the Port or the electronically via the Commission’s 2 and Attachment at 2. Designated On-scene Patrol Personnel. Filing Online system. The attachment and the appendices to The Designated On-scene Patrol the Postal Service’s Petition explain its Personnel may delay, modify, or cancel FOR FURTHER INFORMATION CONTACT: Stephen L. Sharfman, General Counsel, proposal in more detail, including its the swim event as conditions or background, objective, rationale, and circumstances require. 202–789–6829 or [email protected]. estimated impact. (3) Upon being hailed by a U.S. Coast It is ordered: Guard vessel by siren, radio, flashing SUPPLEMENTARY INFORMATION: 1. Petition of the United States Postal light or other means, the operator of the Regulatory History, 74 FR 31386 (July Service Requesting Initiation of a vessel must proceed as directed. 1, 2009). Proceeding to Consider Proposed (4) Persons and vessels desiring to On July 7, 2009, the Postal Service Change in Analytic Principles (Proposal enter the regulated area within 100 filed a petition to initiate an informal Two), filed July 7, 2009, is granted. yards of a swimmer may request rulemaking proceeding to consider a 2. The Commission establishes Docket permission to enter from the designated change in the analytical methods No. RM2009–7 to consider the matters on scene patrol personnel by contacting approved for use in periodic reporting.1 raised by the Postal Service’s Petition. them on VHF–16 or by a request to the Captain of the Port Long Island Sound 1 Petition of the United States Postal Service Proposed Change in Analytic Principles (Proposal via phone at (203) 468–4401. Requesting Initiation of a Proceeding to Consider Two), July 7, 2009 (Petition).

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3. Interested persons may submit V. Statutory and Executive Order costs on tribal governments or preempt initial comments on or before July 29, Reviews tribal law.’’ Today’s correction does not otherwise 2009. Under the Clean Air Act, the change the remaining portions of the 4. The Commission will determine the Administrator is required to approve a July 10, 2009 proposed rule. need for reply comments after review of SIP submission that complies with the the initial comments. provisions of the Act and applicable Dated: July 14, 2009. 5. Diane Monaco is designated to Federal regulations. 42 U.S.C. 7410(k); Laura Yoshii, serve as the Public Representative 40 CFR 52.02(a). Thus, in reviewing SIP Acting Regional Administrator, Region IX. representing the interests of the general submissions, EPA’s role is to approve [FR Doc. E9–17259 Filed 7–20–09; 8:45 am] public in this proceeding. state choices, provided that they meet BILLING CODE 6560–50–P 6. The Secretary shall arrange for the criteria of the Clean Air Act. publication of this notice in the Federal Accordingly, this action merely Register. approves state law as meeting Federal DEPARTMENT OF HOMELAND Authority: 39 U.S.C. 3652. requirements and does not impose SECURITY additional requirements beyond those Issued: July 10, 2009. imposed by state law. For that reason, Coast Guard By the Commission. this action: Judith M. Grady, • Is not a ‘‘significant regulatory 46 CFR Part 404 Acting Secretary. action’’ subject to review by the Office [Docket No. USCG–2009–0552] [FR Doc. E9–17285 Filed 7–20–09; 8:45 am] of Management and Budget under BILLING CODE 7710–FW–P Executive Order 12866 (58 FR 51735, Great Lakes Pilotage Ratemaking October 4, 1993); Methodology • Does not impose an information collection burden under the provisions AGENCY: Coast Guard, DHS. ENVIRONMENTAL PROTECTION of the Paperwork Reduction Act (44 ACTION: Request for public comments. AGENCY U.S.C. 3501 et seq.); • Is certified as not having a SUMMARY: The Coast Guard requests 40 CFR Part 52 significant economic impact on a public comments on the adequacy of substantial number of small entities existing regulations that provide the [EPA–R09–OAR–2009–0344; FRL–8932–7] under the Regulatory Flexibility Act (5 methodology for reviewing and U.S.C. 601 et seq.); adjusting rates for pilots on the U.S. Approval and Promulgation of Air • Does not contain any unfunded waters of the Great Lakes. The Coast Quality Implementation Plans; mandate or significantly or uniquely Guard seeks these comments in order to Reformulated Gasoline and Diesel affect small governments, as described obtain a better understanding of how Fuels; California; Correction in the Unfunded Mandates Reform Act well Great Lakes shippers, Great Lakes of 1995 (Pub. L. 104–4); pilots, and the general public think AGENCY: Environmental Protection • Does not have Federalism those formulas represent the realities of Agency (EPA). implications as specified in Executive commercial shipping on the Great Lakes ACTION: Proposed rule; correction. Order 13132 (64 FR 43255, August 10, and fairly balance competing 1999); considerations. The Coast Guard will SUMMARY: This document corrects the • Is not an economically significant refer the comments it receives to the preamble to a proposed rule published regulatory action based on health or Great Lakes Pilotage Advisory in the Federal Register on July 10, 2009, safety risks subject to Executive Order Committee for review and pertaining to revisions to reformulated 13045 (62 FR 19885, April 23, 1997); recommendations. gasoline and diesel fuels regulations for • Is not a significant regulatory action DATES: Comments and related material the State of California. subject to Executive Order 13211 (66 FR must reach the Docket Management FOR FURTHER INFORMATION CONTACT: 28355, May 22, 2001); Facility on or before October 19, 2009 • Jeffrey Buss, EPA Region IX, (415) 947– Is not subject to requirements of for consideration. 4152, [email protected]. Section 12(d) of the National ADDRESSES: You may submit written Technology Transfer and Advancement SUPPLEMENTARY INFORMATION: comments identified by docket number On July Act of 1995 (15 U.S.C. 272 note) because 10, 2009 (74 FR 33196), EPA proposed USCG–2009–0552 using any one of the application of those requirements would following: to approve revisions to reformulated be inconsistent with the Clean Air Act; gasoline and diesel fuel regulations for (1) Federal eRulemaking Portal: and http://www.regulations.gov. the State of California. This document • Does not provide EPA with the makes the following three corrections: (2) Fax: 202–493–2251. discretionary authority to address, as (3) Mail: Docket Management Facility 1. The correct title for the July 10, appropriate, disproportionate human (M–30), U.S. Department of 2009 notice should read, ‘‘Approval and health or environmental effects, using Transportation, West Building Ground Promulgation of Air Quality practicable and legally permissible Floor, Room W12–140, 1200 New Jersey Implementation Plans; Reformulated methods, under Executive Order 12898 Avenue, SE., Washington, DC 20590– Gasoline and Diesel Fuels; California.’’ (59 FR 7629, February 16, 1994). 0001. 2. Section B. of the preamble entitled, In addition, this rule does not have (4) Hand delivery: Same as mail ‘‘What Should I Consider as I Prepare tribal implications as specified by address above, between 9 a.m. and 5 My Comments for EPA?’’ should be Executive Order 13175 (65 FR 67249, p.m., Monday through Friday, except deleted. November 9, 2000), because the SIP is Federal holidays. The telephone number 3. Section V. of the preamble, entitled not approved to apply in Indian country is 202–366–9329. ‘‘Administrative Requirements,’’ should located in the state, and EPA notes that To avoid duplication, please use only be replaced with the following: it will not impose substantial direct one of these four methods. Our online

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docket is available on the Internet at 2009–0552 in the Docket ID box, press formulas. Some of these commenters http://www.regulations.gov under Enter, and then click on the item in the have implied the need for a general docket number USCG–2009–0552. Docket ID column. If you do not have review, while others have focused on FOR FURTHER INFORMATION CONTACT: If access to the Internet, you may view the our definition of ‘‘bridge hours.’’ Bridge you have questions concerning this docket online by visiting the Docket hours are a key component in notice, please call or e-mail Mr. Paul Management Facility in Room W12–140 determining the target rate of Eulitt, CG–54122, Coast Guard, on the ground floor of the Department compensation that our ratemaking aims telephone 202–372–1537, Coast Guard; of Transportation West Building, 1200 to provide for pilots, and currently are e-mail [email protected]. If you New Jersey Avenue, SE., Washington, defined as ‘‘the number of hours a pilot have questions on viewing or submitting DC 20590, between 9 a.m. and 5 p.m., is aboard a vessel providing pilotage material to the docket, call Ms. Renee V. Monday through Friday, except Federal service.’’ 46 CFR part 404, Appendix A, Wright, Program Manager, Docket holidays. We have an agreement with Step 2.B(1). Some commenters have Operations, telephone 202–366–9826. the Department of Transportation to use suggested that the current definition is SUPPLEMENTARY INFORMATION: the Docket Management Facility. too narrow, in part because it does not Privacy Act: Anyone can search the include a pilot’s wait time due to vessel Request for Comments electronic form of comments received delays or detentions. We encourage you to submit into any of our dockets by the name of At this time, there is no Coast Guard comments and related material in the individual submitting the comment rulemaking project under way to revise response to this notice. We discuss why (or signing the comment, if submitted our current Great Lakes pilotage we seek comments, and suggest what on behalf of an association, business, regulations, and this notice is not an your comments should cover, under labor union, etc.). You may review a ‘‘advance notice’’ of a proposed ‘‘Background and Purpose.’’ All Privacy Act system of records notice rulemaking nor does it indicate that comments received will be posted, regarding our public dockets in the such a rulemaking has been opened. without change, to http:// January 17, 2008, issue of the Federal However, we are interested in obtaining www.regulations.gov and will include Register (73 FR 3316). as comprehensive an idea as possible of any personal information you have Background and Purpose the extent and nature of any objections provided. to the current ratemaking formulas. We This notice is issued pursuant to the Submitting comments: If you submit a seek a better understanding of how well authority granted to the Secretary of comment, please include the docket Great Lakes shippers, Great Lakes pilots, Homeland Security by the Great Lakes number for this notice (USCG–2009– and the general public think those Pilotage Act of 1960 (‘‘the Act’’), 46 0552). You may submit your comments formulas fairly balance competing U.S.C. Chapter 93 as amended, as and material online, or by fax, mail or considerations and represent the delegated by the Secretary to the Coast hand delivery, but please use only one realities of commercial shipping on the Guard in Department of Homeland of these means. We recommend that you Great Lakes. Any comments we receive Security Delegation No. 0170.1. The Act include your name and a mailing in response to this notice will be requires foreign-flag vessels and U.S.- address, an e-mail address, or a referred to the Great Lakes Pilotage flag vessels engaged in foreign trade to telephone number in the body of your Advisory Committee (GLPAC) for use federally registered Great Lakes document so that we can contact you if GLPAC’s review and recommendations. pilots while transiting the St. Lawrence we have questions regarding your The Act established GLPAC to advise on Seaway and the Great Lakes system, and submission. significant actions or policy formulation To submit your comment online, go to requires the Secretary to ‘‘prescribe by affecting Great Lakes pilotage. 46 U.S.C. http://www.regulations.gov, select the regulation rates and charges for pilotage 9307(d). Advanced Docket Search option on the services, giving consideration to the right side of the screen, insert ‘‘USCG– public interest and the costs of If you would like to comment on our 2009–0552’’ in the Docket ID box, press providing the services.’’ 46 U.S.C. ratemaking formulas, we ask that, Enter, and then click on the balloon 9303(f). Coast Guard regulations insofar as possible, you: shape in the Actions column. If you implement the Act and can be found in • Tell us whether you are a member submit your comments by mail or hand 46 CFR, parts 401 through 404. of the general public, an industry delivery, submit them in an unbound The Great Lakes pilotage regulations representative, or a pilot; format, no larger than 81⁄2 by 11 inches, contain ratemaking formulas that we • Tell us specifically what you like or suitable for copying and electronic apply each year in reviewing rates and, dislike about the current formulas; and filing. If you submit them by mail and if necessary, adjusting them. The • Tell us exactly how you would would like to know that they reached formulas appear in appendices to 46 revise our formulas to better serve the Facility, please enclose a stamped, CFR part 404. The final rule for our industry, pilots, and the public—‘‘Write self-addressed postcard or envelope. We 2009 rate review and adjustment your own formula’’. will consider all comments and material appears elsewhere in today’s Federal received during the comment period. Register, and you may consult it for Dated: July 13, 2009. Viewing comments: To view more information about the ratemaking Howard L. Hime, comments, go to http:// process. Acting Director of Commercial Regulations www.regulations.gov, select the In past years, some commenters on and Standards, U.S. Coast Guard. Advanced Docket Search option on the our annual ratemakings have suggested [FR Doc. E9–17228 Filed 7–20–09; 8:45 am] right side of the screen, insert USCG– we need to review our ratemaking BILLING CODE 4910–15–P

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Notices Federal Register Vol. 74, No. 138

Tuesday, July 21, 2009

This section of the FEDERAL REGISTER Research, Extension, Education and throughout the country. Nominations contains documents other than rules or Economics Advisory Board, to total 25 for one individual who fits several of proposed rules that are applicable to the members. Since the inception of the the categories listed above or for more public. Notices of hearings and investigations, Advisory Board by congressional than one person who fits one category committee meetings, agency decisions and legislation in 1996, each member has will be accepted. In your nomination rulings, delegations of authority, filing of petitions and applications and agency represented a specific category related letter, please indicate the specific statements of organization and functions are to farming or ranching, food production membership category for each nominee. examples of documents appearing in this and processing, forestry research, crop Each nominee must fill out, sign, and section. and animal science, land-grant return a form AD–755, ‘‘Advisory institutions, non-land grant college or Committee Membership Background university with a historic commitment Information’’ (which can be obtained DEPARTMENT OF AGRICULTURE to research in the food and agricultural from the contact person below or may sciences, food retailing and marketing, be printed out from the following Web Office of the Secretary rural economic development, and site: http://www.ree.usda.gov/nareeeab/ natural resource and consumer interest downloads/forms/AD-755.pdf). All Notice of Solicitation for Members of groups, among many others. The Board nominees will be vetted before the National Agricultural Research, was first appointed by the Secretary of selection. Extension, Education and Economics Agriculture in September 1996 and one- Nominations are open to all Advisory Board third of its members were appointed for individuals without regard to race, AGENCY: Research, Education and one, two, and three-year terms, color, religion, sex, national origin, age, Economics, USDA. respectively to allow for approximately mental or physical handicap, marital ACTION: Solicitation for membership, one-third of the Board to change each status, or sexual orientation. To ensure extension of application deadline. year. The terms for 11 members who that recommendations of the Advisory represent specific categories will expire Board take into account the needs of the SUMMARY: In accordance with the September 30, 2009. Nominations for diverse groups served by the Federal Advisory Committee Act, 5 these 11 vacant categories are sought. Department, membership shall include, U.S.C. App., the United States All nominees will be carefully reviewed to the extent practicable, individuals Department of Agriculture announces for their expertise, leadership, and with demonstrated ability to represent solicitation for nominations to fill 11 relevance to a category. Appointments minorities, women, and persons with vacancies on the National Agricultural will be made for two- or three-year disabilities. Research, Extension, Education and terms to maintain the approximate one- Appointments to the National Economics Advisory Board. third change in membership each year Agricultural Research, Extension, DATES: Deadline for Advisory Board dictated by the original legislation. Education and Economics Advisory member nominations is extended to The 11 slots to be filled are: Board will be made by the Secretary of August 15, 2009. Category A. National Farm Agriculture. Organization; ADDRESSES: The nominee’s name, Done at Washington, DC, this 6th day of resume, completed Form AD–755, and Category C. Food Animal Commodity July 2009. any letters of support must be sent to Producer; Rajiv Shah, Category I. National Human Health the U.S. Department of Agriculture, Under Secretary, Research, Education, and National Research, Extension, Association; Economics. Category M. 1994 Land Grant Education, and Economics Advisory [FR Doc. E9–17298 Filed 7–20–09; 8:45 am] Institution; Board Office, 1400 Independence BILLING CODE 3410–03–P Avenue, SW., Room 3858 South Category N. NLGCA Institutions; Building, Washington, DC 20250–0321. Category O. Hispanic-Serving Institutions; FOR FURTHER INFORMATION CONTACT: Category Q. Transportation of Food U.S. AGENCY FOR INTERNATIONAL Karen Hunter, Executive Director, and Agricultural Products to Domestic DEVELOPMENT National Agricultural Research, and Foreign Markets; Extension, Education and Economics Board for International Food and Category R. Food Retailing and Agricultural Development; One Advisory Board, 1400 Independence Marketing Interests; Avenue SW., Room 3858 South Hundred and Fifty-Seventh Meeting; Category S. Food and Fiber Notice of Meeting Building, Washington, DC 20250–0321 Processors; telephone: 202–720–8408; fax: 202– Category X. Private Sector Pursuant to the Federal Advisory 720–6199; e-mail: Organization Involved in International Committee Act, notice is hereby given of [email protected]. Development; the one hundred and fifty-seventh SUPPLEMENTARY INFORMATION: Section Category Y. National Social Science meeting of the Board for International 1408 of the National Agricultural Association. Food and Agricultural Development Research, Extension, and Teaching Nominations are being solicited from (BIFAD). The meeting will be held from Policy Act of 1977 (7 U.S.C. 3123) was individuals, organizations, associations, 8:15 a.m. to 4 p.m. on July 29, 2009 at amended by the Food, Energy and societies, councils, federations, groups, the National Press Club located at 529 Conservation Act of 2008 by deleting six and companies that represent a wide 14th St., NW., Washington, DC. The members of the National Agricultural variety of food and agricultural interests venue will be the Holeman Lounge

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which is located on the 13th floor of the change, particularly from an agro- Reagan Building, Office of Development National Press Club. ‘‘Higher Education: ecological perspective. This will be Partners, 1300 Pennsylvania Avenue, A Critical Partner in Global Agricultural highlighted in a special panel NW., Room 6.7–153, Washington, DC, Development’’ continues to be the presentation, ‘‘Climate Proofing 20523–2110 or telephone him at (202) central theme of BIFAD’s initiatives and Agriculture: Lessons from the System of 712–0218 or fax (202) 216–3124. the July meeting. Rice Intensification.’’ The presentation Dr. Robert Easter, Chairman of BIFAD, will be led by Norman Uphoff, Program Ronald S. Senykoff, will preside over the proceedings. Dr. Leader for Sustainable Rice Executive Director and USAID Designated Easter is Interim Provost and Vice Intensification, Cornell University. Federal Officer for BIFAD, Office of Chancellor for Academic Affairs, Development Partners, U.S. Agency for USDA’s response will be provided by International Development. University of Illinois at Urbana- Carol Kramer-LeBlanc, Director, [FR Doc. E9–17273 Filed 7–20–09; 8:45 am] Champaign. Sustainable Development Program, Food security, including the broadly USDA/CREES. BILLING CODE 6116–01–P emerging issues surrounding climate Shifting to a regional focus, USAID’s change, and the role of universities in Latin American Bureau will present to partnership with USAID to achieve the Board key aspects of its trade-led DEPARTMENT OF COMMERCE critical short and long-term strategy for agricultural diversification development objectives is the focus of to promote agriculture and food National Institute of Standards and the Board’s Agenda as set for the 157th security, ‘‘Optimizing the Economic Technology meeting. The 157th meeting continues Growth and Poverty Reduction Benefits [Docket Number 0906181062–91065–01] to build toward the establishment of a of CAFTA–DR.’’ This USAID special strategic partnership between presentation will be delivered by a Amendments to Alternative Personnel USAID and the university community representative from the Office of Management System (APMS) at the and the launching of a university ‘‘Brain Sustainable Development, Bureau for National Institute of Standards and Trust.’’ Underpinning these initiatives Latin America. Technology the Board’s discussion incorporates the Operational and management issues AGENCY: results from its second Conference of pertaining to the Board and linked to National Institute of Standards Deans (COD II) which was held in implementation of Title XII will be and Technology, Commerce. Washington, DC on June 28 and 29, covered through several reports. First, ACTION: Notice of amendments. 2009. The COD II’s theme was ‘‘Building the Board’s sub-committee, Strategic SUMMARY: National Institute of a Global Food Security Strategy: The Partnership for Agricultural Research Standards and Technology (NIST) Role of Higher Education in US and Education (SPARE), will report on announces amendments to NIST’s International Development.’’ its February 2009 meeting held at the Alternative Personnel Management BIFAD’s morning session will begin University of Florida in Gainesville. System (APMS). The amendments with a panel discussion, ‘‘BIFAD’s Topics to be covered are SPARE’s change the performance management Conference of Deans II: Perspectives on discussion on the Casey-Lugar Bill, system of the Senior Professional (ST) Food Security and the Role of specifically on how the Agency could employees at NIST. Universities.’’ University implement the HECTARE portion of the recommendations and USAID legislation, and issues related to scaling- DATES: This notice is effective on July perspectives from the COD II will be up agricultural programming in view of 21, 2009. presented. A second panel will the Agency’s increased efforts in FOR FURTHER INFORMATION CONTACT: For compliment the first session with the Afghanistan and Pakistan. The questions or comments, please contact discussion, ‘‘Partners in Development: concluding report will be an update Susanne Porch at the National Institute Business, Cooperatives and NGOs.’’ At from USAID’s Office of Acquisitions of Standards and Technology, (301) mid-morning congressional staff will and Assistance (OAA) on USAID’s rule 975–2487. provide updates on directions and regarding the use of key subcontractors SUPPLEMENTARY INFORMATION: funding implications of the Lugar-Casey by prime contractors; particularly with Background and McCollum Agriculture Bills. regard to universities as subcontractors. Particular attention will be directed to The Board meeting is open to the In accordance with Public Law 99– the HECTARE component of the public. The Board welcomes open 574, the NIST Authorization Act for legislation. Congressional presenters dialogue to promote greater focus on Fiscal Year 1987 (15 U.S.C. 275 note), will be Connie Veillette, Senior critical issues facing USAID, the role of the Office of Personnel Management Professional Staff Member, House universities in development, and (OPM) approved a demonstration Foreign Relation Committee and Peter applications of U.S. scientific, technical project plan, ‘‘Alternative Personnel Frosch, Legislative Director, Senate and institutional capabilities to Management System (APMS) at the Foreign Relations Committee. Time will international agriculture. Note on Public National Institute of Standards and be made available for questions from the Comments: Due to time constraints Technology (NIST),’’ and published the public attending. public comments to the Board will be plan in the Federal Register on October After the morning break the Board limited to two (2) minutes to 2, 1987 (52 FR 37082). The project plan will hear commentary from the accommodate as many as possible. The has been amended twice to clarify university community on ‘‘USAID’s comments must be submitted ahead of certain NIST authorities (54 FR 21331, Agricultural Development Plans for the meeting and they must be in writing. May 17, 1989, and 55 FR 39220, Afghanistan.’’ Several university Those wishing to attend the meeting September 25, 1990). The project plan perspectives will be presented. or obtain additional information about and subsequent amendments were Following an executive luncheon BIFAD should contact Dr. Ronald S. consolidated in the final APMS plan, (closed to the public) the Board will Senykoff, Executive Director and which became permanent on October continue discussion with an emphasis Designated Federal Officer for BIFAD. 21, 1997, (62 FR 54604). NIST published on agricultural innovation and Write him in care of the U.S. Agency for an amendment on May 6, 2005 (70 FR responses to the impending climate International Development, Ronald 23996), which became permanent on

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June 6, 2005. NIST published an 5385) did not change for the NIST the antidumping duty order on certain amendment on July 15, 2008 (FR 73 APMS. SES classification, staffing, tissue paper products from the People’s 40502), which became permanent on compensation, performance appraisal, Republic of China (‘‘PRC’’), covering the October 1, 2008. awards and reduction in are based period March 1, 2007, through February The plan provides for modifications on standard SES methods. ST–3104 29, 2008. See Certain Tissue Paper to be made as experience is gained, positions (see 5 U.S.C. 3104 and 5376) Products from the People’s Republic of results are analyzed, and conclusions are covered under the Department of China: Preliminary Results and Partial are reached with regard to the working Commerce’s 5-level performance Rescission of the 2007–2008 efficacy of the system. This notice management system. Classification, Administrative Review and Intent Not to formally amends the APMS plan to staffing and compensation, however, Revoke Order in Part, 74 FR 15449 exclude NIST ST employees from the did not change. Neither SES nor ST– (April 6, 2009). The current deadline for APMS performance management system 3104 employees were subject to the pro the final results in this review is August and to include these employees in the rata share payouts upon conversion to 4, 2009. Department of Commerce’s 5-level the NIST APMS system. Pay performance management system. NIST adjustments for their positions under Extension of Time Limits for Final is making this modification because it the NIST APMS are carried out in Results of Review has determined that ST employees accordance with existing Federal rules should be evaluated in the same manner pertaining to SES and ST–3104 pay Section 751(a)(3)(A) of the Tariff Act as all other Department of Commerce ST adjustments. of 1930, as amended (‘‘the Act’’), employees, which is under the 5-level 2. Performance Evaluation and requires the Department to issue the performance management system. Rewards, Coverage (62 FR 54611) is final results of the review of an amended as follows: All employees Dated: July 16, 2009. antidumping duty order within 120 covered by the NIST APMS are covered days after the date on which the Patrick Gallagher, by the APMS performance evaluation Deputy Director. preliminary results is published in the and rewards system, except that NIST Federal Register. If it is not practicable may remove from the system any Table of Contents to complete the review within this time position not filled by career or career– I. Executive Summary period, the Department may extend that conditional appointment. ST–3104 II. Basis for APMS Plan Modification 120-day period to 180 days. III. Changes to the APMS Plan employees have their performance evaluated under the Department of Having provided the interested parties I. Executive Summary Commerce’s 5-level performance more time to submit publicly available The National Institute of Standards management system and may receive information and case and rebuttal briefs and Technology (NIST) is removing its bonuses under that system. Members of for consideration in the final results of Senior Professional (ST) employees the Senior Executive Service remain this review, the Department finds that it from the Alternative Personnel under the DOC–NIST SES performance is not practicable to complete the final Management System (APMS) appraisal, pay and bonus system. results of this review within the current performance management system. [FR Doc. E9–17274 Filed 7–20–09; 8:45 am] time frame, as it requires additional Instead, ST employees will be covered BILLING CODE 3510–13–P time to properly analyze the data and under the Department of Commerce’s 5- arguments submitted by the interested level performance management system. parties. This amendment modifies the July 15, DEPARTMENT OF COMMERCE 2008 (73 FR 40502) amendment. Therefore, in accordance with section Specifically, NIST will exclude ST International Trade Administration 751(a)(3)(A) of the Act, the Department is extending the time limit for employees from the performance [A–570–894] management piece of the APMS. NIST completion of the final results of this ST employees will be covered under the Notice of Extension of Time Limit for review until October 5, 2009, which is Department of Commerce’s 5-level Final Results of Antidumping Duty the next business day after 180 days performance management system. Administrative Review: Certain Tissue after the date on which the notice of the NIST will continually monitor the Paper Products from the People’s preliminary results was published in the effectiveness of this amendment. Republic of China Federal Register. II. Basis for APMS Plan Modification AGENCY: Import Administration, We are issuing and publishing this notice in accordance with sections NIST determined that ST employees International Trade Administration, should be evaluated in the same manner U.S. Department of Commerce. 751(a)(1) and 777(i)(1) of the Act. as all other Department of Commerce ST FOR FURTHER INFORMATION CONTACT: Dated: July 14, 2009. employees, which is under the 5-level Brian Smith or Brandon Custard, AD/ John M. Andersen, performance management system. CVD Operations, Office 2, Import Acting Deputy Assistant Secretary for Administration, International Trade III. Changes in the APMS Plan Antidumping and Countervailing Duty Administration, U.S. Department of Operations. The APMS at the NIST, published in Commerce, 14th Street and Constitution [FR Doc. E9–17299 Filed 7–20–09; 8:45 am] the Federal Register on October 21, Avenue, NW, Washington, DC, 20230; BILLING CODE 3510–DS–S 1997 (62 FR 54604), as amended May 6, telephone: (202) 482–1766 or (202) 482– 2005 (70 FR 23996), and July 15, 2008 1823, respectively. (73 FR 40502) is amended as follows: 1. Senior Executive Service (SES) and Background ST–3104 Positions (62 FR 54607) is On April 6, 2009, the Department of replaced with the following: The Commerce (the Department) published personnel systems for SES positions (see in the Federal Register the preliminary 5 U.S.C. 3131–3136 and 5 U.S.C. 5381– results of the administrative review of

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DEPARTMENT OF COMMERCE DEPARTMENT OF COMMERCE Company Affairs, International Trade Administration, U.S. Department of National Institute of Standards and International Trade Administration Commerce, Room 7021X, Washington, Technology [Application No. 92–8A001] DC 20230, or transmitted by E-mail at [email protected]. Information [Docket Number 0906181061–91066–01] Export Trade Certificate of Review submitted by any person is exempt from disclosure under the Freedom of Correction to Alternative Personnel ACTION: Notice of Application (#92– Information Act (5 U.S.C. 552). Management System (APMS) at the 8A001) To amend an export trade However, nonconfidential versions of National Institute of Standards and certificate of review previously issued to the comments will be made available to Technology Aerospace Industries Association of the applicant if necessary for America, Inc. determining whether or not to issue the AGENCY: National Institute of Standards Certificate. Comments should refer to SUMMARY: Export Trading Company and Technology, Commerce. this application as ‘‘Export Trade Affairs, International Trade Certificate of Review, application ACTION: Notice; correction. Administration, U.S. Department of number 92–8A001.’’ Commerce, has received an application The original Certificate for Aerospace SUMMARY: National Institute of to amend an Export Trade Certificate of Industries Association of America, Inc. Standards and Technology (NIST) Review (‘‘Certificate’’). This notice was issued on April 10, 1992 (57 FR published a document in the Federal summarizes the proposed amendment 13707, April 17, 1992) and last amended Register on July 15, 2008 (73 FR 40500) and requests comments relevant to on November 12, 2003 (68 FR 66074, setting forth modifications to its whether the Certificate should be November 25, 2003). Alternative Personnel Management issued. A summary of the application for an System (APMS). The document FOR FURTHER INFORMATION CONTACT: amendment follows. Jeffrey Anspacher, Acting Director, erroneously contained ‘‘I’’ in two places. Summary of the Application The correction set forth in this notice Office of Competition and Economic clarifies that ‘‘I’’ is a unit of salary Analysis, International Trade Applicant: Aerospace Industries increase, not a percentage. Administration, (202) 482–5131 (this is Association of America, Inc. (‘‘AIA’’), not a toll-free number) or by E-mail at 1000 Wilson Boulevard, Suite 1700, DATES: This notice is effective on July [email protected]. Arlington, Virginia 22209. 21, 2009. SUPPLEMENTARY INFORMATION: Title III of Contact: Matthew F. Hall, Counsel, FOR FURTHER INFORMATION CONTACT: For the Export Trading Company Act of Telephone: (202) 862–9700. questions or comments, please contact 1982 (15 U.S.C. 4001–21) authorizes the Application No.: 92–8A001. Amy K. Cubert at the National Institute Secretary of Commerce to issue Export Date Deemed Submitted: July 7, 2009. of Standards and Technology, (301) Trade Certificates of Review. An Export Proposed Amendment: AIA seeks to 975–3006. Trade Certificate of Review protects the amend its Certificate to: holder and the members identified in 1. Delete the following companies as Correction the Certificate from State and Federal Members of the Certificate: AAI government antitrust actions and from Corporation, Hunt Valley, MD; Argo- In FR Doc. E8–16066, published on private treble damage antitrust actions Tech Corporation, Cleveland, OH; July 15, 2008 (73 FR 40500), on page for the export conduct specified in the AstroVision International, Inc., 40501, beginning in the first column, Certificate and carried out in Bethesda, MD; Aviall, Inc., Dallas, TX; the fourth paragraph under the heading compliance with its terms and B.H. Aircraft Company, Inc., ‘‘II. Basis for APMS Plan Modification,’’ conditions. Section 302(b)(1) of the Ronkonkoma, NY; Ball Aerospace & as follows: Export Trading Company Act of 1982 Technologies Corporation, Boulder, CO; Performance pay increases will continue to and 15 CFR 325.6(a) require the Celestica Corporation, Toronto, Ontario; be based on the annually determined Secretary to publish a notice in the Crane Aerospace & Electronics, percentage of the mid-point salary for each Federal Register identifying the Lynwood, WA; Cubic Corporation, San pay band in the career path. When the applicant and summarizing its proposed Diego, CA; Dy 4 Systems Limited, percentage is applied to the mid-point salary export conduct. Kanata, Ontario; EDO Corporation, New in each pay band, the resulting dollar amount York, NY; Federation, Inc., Centennial, Request for Public Comments is the unit of salary increase or ‘‘I’’ for that CO; GKN Aerospace Services, Farnham, pay band and career path. Interested parties may submit written Surrey, UK; Kistler Aerospace Percentages may differ by pay band and comments relevant to the determination Corporation, Kirkland, WA; 3M career path. The percentage used for any whether an amended Certificate should Company, St. Paul, MN; Martin-Baker given career path and band will apply be issued. If the comments include any America, Incorporated, Arlington, VA; system-wide, except that the Director may privileged or confidential business MatrixOne Inc., Westford, MA; MD authorize a particular operating unit to use a information, it must be clearly marked Helicopters, Inc., Mesa, AZ; Orbital lower percentage for reasons related to and a nonconfidential version of the Sciences Corporation, Dulles, VA; solvency. comments (identified as such) should be PerkinElmer, Inc., Wellesley, MA; included. Any comments not marked Silicon Graphics, Inc., Mountain View, Dated: July 16, 2009. privileged or confidential business CA; Smiths Aerospace Actuation Patrick Gallagher, information will be deemed to be Systems, Duarte, CA; Spectrum Astro Deputy Director. nonconfidential. An original and five (5) Inc., Gilbert, AZ; Stellex Aerostructures, [FR Doc. E9–17269 Filed 7–20–09; 8:45 am] copies, plus two (2) copies of the Inc., Lebanon, NJ; Swales Aerospace, BILLING CODE 3510–13–P nonconfidential version, should be LLC, Beltsville, MD; Teleflex Inc., submitted no later than 20 days after the Plymouth Meeting, PA; Titan date of this notice to: Export Trading Corporation, San Diego, CA; Triumph

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Group Inc., Wayne, PA; and United The NORDAM Group, Inc., Tulsa, OK; Dated: July 16, 2009. Defense, L.P., Arlington, VA. NYLOK Corporation, Macomb, MI Jeffrey Anspacher, 2. Add the following companies as (controlling entity: Berkshire Hathaway, Acting Director, Office of Competition and new Members of the Certificate within Inc., Omaha, NE); Oracle USA, Inc., Economic Analysis. the meaning of section 325.2(l) of the Redwood Shores, CA (controlling entity: [FR Doc. E9–17268 Filed 7–20–09; 8:45 am] Regulations (15 CFR 325.(l)): AAR Oracle Corporation, Redwood Shores, BILLING CODE 3510–DR–P Corp., Wood Dale, IL; Accenture, CA); Pall Aeropower Corporation, New Hartford, CT (controlling entity: Port Richey, FL (controlling entity: Pall Accenture, Ltd., Hamilton Bermuda); Corporation, East Hills, NY); Pinkerton DEPARTMENT OF COMMERCE Airlaunch LLC, Kirkland, WA; Allfast Government Services, Inc., Springfield, Fastening Systems, City of Industry, CA; VA (controlling entity: Securitas International Trade Administration AMSAFE Aviation, Phoenix, AZ; AMT Security Services, USA, Parsippany, NJ); [A–201–805] II Corporation, New York, NY; Aurora PPG Aerospace, Sylmar, CA (controlling Flight Sciences Corporation, Manassas, entity: PPG Industries, Pittsburgh, PA); Certain Circular Welded Non–Alloy VA; AUSCO, Inc., Port Washington, NY; Science Applications International Steel Pipe from Mexico; Extension of B/E Aerospace, Inc., Wellington, FL; Corporation, San Diego, CA; Siemens Time Limit for Preliminary Results of Belcan Corporation, Cincinnati, OH; PLM Software, Plano, TX (controlling Antidumping Duty Administrative Best Foam Fabricators, Inc., Chicago, IL; entity: Siemens AG, Munich, Germany); Review BreconRidge Corporation, Ottawa, SITA, Atlanta, GA (controlling entity: AGENCY: Import Administration, Ontario; CAE USA Inc., Tampa, FL SITA, Geneva, Switzerland); SM&A, International Trade Administration, (controlling entity: CAE Inc., Montreal, Newport Beach, CA; Southern California Department of Commerce. Canada); Chromalloy Power Services Braiding Company, Inc., Bell Gardens, FOR FURTHER INFORMATION CONTACT: Corporation, San Antonio, TX CA; Space Exploration Technologies (controlling entity: Carlyle Group, Maryanne Burke or Robert James, AD/ Corporation, Hawthorne, CA; Sparton CVD Operations, Office 7, Import Washington, DC); Click Bond, Inc., Corporation, Jackson, MI; Spirit Carson City, NV (controlling entity: Administration, International Trade AeroSystems, Inc., Wichita, KS; Administration, U.S. Department of Physical Systems, Inc., Carson City, TechniGraphics, Inc., Wooster, OH; NV); Click Commerce, Inc., Chicago, IL; Commerce, 14th Street and Constitution Timken Aerospace Transmissions, Avenue NW, Washington, DC 20230; , Arlington, VA (controlling LLC—Purdy Systems, Manchester, CT entity: Cobham, plc, Winborne, , telephone: (202) 482–5604 or (202) 482– (controlling entity: The Timken 0649, respectively. United Kingdom); DynCorp Company, Canton, OH); Vibro-Meter, SUPPLEMENTARY INFORMATION: International LLC, Falls Church, VA; Inc., Manchester, NH (controlling entity: Eaton Aerospace Operations, Irvine, CA PLC, Christchurch, Dorset, Background (controlling entity: Eaton Corporation, United Kingdom); and WIPRO On December 1, 2008, the Department Cleveland, OH); Eclipse Aviation Technologies, Beaverton, OR Corporation, Albuquerque, NM; of Commerce (the Department) received (controlling entity: WIPRO a timely request from interested party Electronic Data Systems Corporation, Technologies, Bangalore, ). Plano, TX (controlling entity: Hewlett U.S. Steel Corporation to conduct an Packard, Palo Alto, CA); Erickson Air- 3. Change the listing of the following administrative review of the Crane Inc., Portland, OR; ESI North Members: ‘‘Analytical Graphics, Inc., antidumping duty order on certain America, Bloomfield Hills, MI Malvern, PA’’ to the new listing circular welded non–alloy steel pipe (controlling entity: ESI Group, Paris, ‘‘Analytical Graphics, Inc., Exton, PA’’; from Mexico.1 On December 24, 2008, France); Flextronics International USA, ‘‘BAE Systems North America, Inc., the Department published a notice of Inc., San Jose, CA (controlling entity: Rockville, MD’’ to the new listing ‘‘BAE initiation of this administrative review, Flextronics International, Ltd., Systems, Inc., Rockville, MD’’; ‘‘B&E covering the period of November 1, ); Flight Safety International, Tool Company, Inc., Southwick, MA’’ to 2007 to October 31, 2008. See Initiation Inc., Flushing, NY (controlling entity: the new listing ‘‘B&E Group, LLC, of Antidumping and Countervailing Berkshire Hathaway Inc., Omaha, NE); Southwick, MA’’; ‘‘Curtiss-Wright Duty Administrative Reviews and FTG Circuits, Inc., Chatsworth, CA Corporation, Lyndhurst, NJ’’ to ‘‘Curtiss- Request for Revocation in Part, 73 FR (controlling entity: FTG Group Wright Corporation, Parsippany, NJ’’; 79055 (December 24, 2008). The current Corporation, Toronto, Canada); Groen ‘‘E. I. duPont de Nemours & Company, deadline for the preliminary results of Brothers Aviation, Inc., Salt Lake City, Wilmington, DE’’ to ‘‘Dupont Company, this review is August 2, 2009. UT; IBM Corporation, Armonk, NY; LAI New Castle, DE’’; ‘‘General Atomics Extension of Time Limits for International, Inc., Scottsdale, AZ Aeronautical Systems, Inc., San Diego, Preliminary Results (controlling entity: Spell Capital CA’’ to ‘‘General Atomics Aeronautical Partners, LLC, Minneapolis, MN); LMI Systems, Inc., Poway, CA’’; ‘‘HEICO, Section 751(a)(3)(A) of the Tariff Act Aerospace, Inc., St. Charles, MO; Lord Miami, FL’’ to ‘‘HEICO Corporation, of 1930, as amended (the Act), requires Corporation, Cary, NC; Marotta Hollywood, FL’’; ‘‘ITT Industries, Inc., the Department to complete the Controls, Inc., Montville, NJ; McKechnie McLean, VA’’ to ‘‘ITT Corporation, preliminary results of an administrative Aerospace, Irvine, CA; Micro-Coax, Inc., White Plains, NY’’; ‘‘L–3 review within 245 days after the last day Pottstown, PA; Micro-Tronics, Inc., Communications Holdings, Inc., New of the anniversary month of an order for Tempe, AZ; MicroSat Systems, Inc., York, NY’’ to ‘‘L–3 Communications which a review is requested. However, Littleton, CO (controlling entity: Sierra Corporation, New York, NY’’; if it is not practicable to complete the Nevada Corporation, Sparks, NV); Natel ‘‘Raytheon Corporation, Lexington, MA’’ review within this time period, section Engineering Company, Inc., Chatsworth, to ‘‘Raytheon Company, Waltham, MA’’; 1 and ‘‘Woodward Governor Company, Because the last day of the anniversary month CA; National Machine Group, Stow, OH; of this order, November 30, 2008, fell on a Sunday, National Technical Systems, Inc., Rockford, IL’’ to ‘‘Woodward Governor petitioners filed their request for review on the next Calabasas, CA; Naverus, Inc., Kent, WA; Company, Fort Collins, CO’’. business day, Monday, December 1, 2008.

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751(a)(3)(A) of the Act allows the sheet and strip in coils (‘‘S4’’) from the 7219.13.00.80, 7219.14.00.30, Department to extend the time limit for Republic of Korea (‘‘Korea’’), as INI 7219.14.00.65, 7219.14.00.90, the preliminary results to a maximum of Steel Company (‘‘INI’’) was found to be 7219.32.00.05, 7219.32.00.20, 365 days after the last day of the the successor–in-interest to Inchon Iron 7219.32.00.25, 7219.32.00.35, anniversary month of an order for which and Steel Co., Ltd. (‘‘Inchon’’) in other 7219.32.00.36, 7219.32.00.38, a review is requested. segments of this proceeding. 7219.32.00.42, 7219.32.00.44, The Department finds it is not FOR FURTHER INFORMATION CONTACT: 7219.33.00.05, 7219.33.00.20, practicable to complete the preliminary Magd Zalok or Howard Smith, AD/CVD 7219.33.00.25, 7219.33.00.35, results of this review within the original Enforcement Office IV, Import 7219.33.00.36, 7219.33.00.38, time frame because we require Administration, International Trade 7219.33.00.42, 7219.33.00.44, additional time to analyze Tuberia Administration, U.S. Department of 7219.34.00.05, 7219.34.00.20, Nacional, S.A. de C.V.’s (TUNA’s) claim Commerce, 14th Street and Constitution 7219.34.00.25, 7219.34.00.30, that it did not have exports, sales or Avenue, NW, Washington, DC 20230; 7219.34.00.35, 7219.35.00.05, entries of subject merchandise to the telephone (202) 482–4162 and (202) 7219.35.00.15, 7219.35.00.30, United States during the period of 482–5193. 7219.35.00.35, 7219.90.00.10, 7219.90.00.20, 7219.90.00.25, review. See TUNA’s ‘‘no shipment’’ SUPPLEMENTARY INFORMATION: letter to the Department, dated January 7219.90.00.60, 7219.90.00.80, 23, 2009. In light of our ongoing Background 7220.12.10.00, 7220.12.50.00,7220.20.10.10, changed circumstances review, more On September 21, 2001, the 7220.20.10.15, 7220.20.10.60, time is also necessary to consider the Department initiated the instant 7220.20.10.80, 7220.20.60.05, relationship between Ternium Mexico, changed circumstances review to 7220.20.60.10, 7220.20.60.15, S.A. de C.V. and Hylsa, S.A. de C.V, a examine whether INI was the successor– 7220.20.60.60, 7220.20.60.80, mandatory respondent in the instant in-interest to Inchon. See Stainless Steel 7220.20.70.05, 7220.20.70.10, review. See Preliminary Results of Sheet and Strip in Coils from the Antidumping Duty Changed 7220.20.70.15, 7220.20.70.60, Republic of Korea: Notice of Initiation of 7220.20.70.80, 7220.20.80.00, Circumstances Review: Certain Circular Changed Circumstances Countervailing Welded Non–Alloy Steel Pipe and Tube 7220.20.90.30, 7220.20.90.60, Duty Administrative Review, 66 FR 7220.90.00.10, 7220.90.00.15, from Mexico, 74 FR 28883 (June 18, 49639 (September 28, 2001). The 2009). Accordingly, the Department is 7220.90.00.60, and 7220.90.00.80. Department published its preliminary Although the HTSUS subheadings are extending the time limit for completion results in this changed circumstances of the preliminary results of this provided for convenience and customs review on June 3, 2002, and purposes, the Department’s written administrative review until no later than preliminarily determined that Inchon November 30, 2009, which is 365 days description of the merchandise is was the successor–in-interest to INI. See dispositive. from the last day of the anniversary Stainless Steel Sheet and Strip in Coils month. We intend to issue the final Excluded from the scope of the order from the Republic of Korea: Notice of are the following: (1) sheet and strip that results no later than 120 days after Preliminary Results of Changed publication of the preliminary results is not annealed or otherwise heat treated Circumstances Countervailing Duty and pickled or otherwise descaled, (2) notice. Administrative Review, 67 FR 38257 This extension is issued and sheet and strip that is cut to length, (3) (June 3, 2002) (‘‘Preliminary Results’’). plate (i.e., flat–rolled stainless steel published in accordance with sections We gave interested parties 10 days to products of a thickness of 4.75 mm or 751(a)(3)(A) and 777(i) of the Act. comment on the Preliminary Results. more), (4) flat wire (i.e., cold–rolled Dated: July 15, 2009. The Department received no comments. sections, with a prepared edge, John M. Andersen, Scope of the Order rectangular in shape, of a width of not Acting Deputy Assistant Secretary for more than 9.5 mm), and (5) razor blade Antidumping and Countervailing Duty The products subject to the order are steel. Razor blade steel is a flat rolled Operations. certain stainless steel sheet and strip in product of stainless steel, not further [FR Doc. E9–17278 Filed 7–20–09; 8:45 am] coils. Stainless steel is an alloy steel worked than cold–rolled (cold– BILLING CODE 3510–DS–S containing, by weight, 1.2 percent or reduced), in coils, of a width of not less of carbon and 10.5 percent or more more than 23 mm and a thickness of of chromium, with or without other 0.266 mm or less, containing, by weight, DEPARTMENT OF COMMERCE elements. The subject sheet and strip is 12.5 to 14.5 percent chromium, and a flat–rolled product in coils that is certified at the time of entry to be used International Trade Administration greater than 9.5 mm in width and less in the manufacture of razor blades. See [C–580–835] than 4.75 mm in thickness and that is Chapter 72 of the HTSUS, ‘‘Additional annealed or otherwise heat treated and U.S. Note’’1(d). Stainless Steel Sheet and Strip in Coils pickled or otherwise descaled. The The Department has determined that from the Republic of Korea: subject sheet and strip may also be certain specialty stainless steel products Rescission of Countervailing Duty further processed (e.g., cold–rolled, are also excluded from the scope of the Changed Circumstances Review polished, aluminized, coated), provided order. These excluded products are that it maintains the specific described below. AGENCY: Import Administration, dimensions of sheet and strip following Flapper valve steel is defined as International Trade Administration, such processing. stainless steel strip in coils containing, Department of Commerce. The merchandise subject to the order by weight, between 0.37 and 0.43 EFFECTIVE DATE: July 21, 2009. is currently classifiable in the percent carbon, between 1.15 and 1.35 SUMMARY: The Department of Commerce Harmonized Tariff Schedule of the percent molybdenum, and between 0.20 (the ‘‘Department’’) is rescinding the United States (‘‘HTSUS’’) at and 0.80 percent manganese. This steel countervailing duty (‘‘CVD’’) changed subheadings: 7219.13.00.30, also contains, by weight, phosphorus of circumstances review of stainless steel 7219.13.00.50, 7219.13.00.70, 0.025 percent or less, silicon of between

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0.20 and 0.50 percent, and sulfur of available under proprietary trade names molybdenum. The steel also contains, 0.020 percent or less. The product is such as ‘‘Arnokrome III.’’ 1 by weight, carbon of between 1.0 and manufactured by means of vacuum arc Certain electrical resistance alloy steel 1.1 percent, sulfur of 0.020 percent or remelting, with inclusion controls for is also excluded from the scope of the less and includes between 0.20 and 0.30 sulphide of no more than 0.04 percent order. This product is defined as a non– percent copper and between 0.20 and and for oxide of no more than 0.05 magnetic stainless steel manufactured to 0.50 percent cobalt. This steel is sold percent. Flapper valve steel has a tensile American Society of Testing and under proprietary names such as ‘‘GIN4 strength of between 210 and 300 ksi, Materials (‘‘ASTM’’) specification B344 HI–C.’’ The second excluded stainless yield strength of between 170 and 270 and containing, by weight, 36 percent steel strip in coils is similar to AISI ksi, plus or minus 8 ksi, and a hardness nickel, 18 percent chromium, and 46 420–J2 and contains, by weight, carbon (Hv) of between 460 and 590. Flapper percent iron, and is most notable for its of between 0.62 and 0.70 percent, valve steel is most commonly used to resistance to high silicon of between 0.20 and 0.50 produce specialty flapper valves in corrosion. It has a melting point of 1390 percent, manganese of between 0.45 and compressors. degrees Celsius and displays a creep 0.80 percent, phosphorus of no more than 0.025 percent and sulfur of no Also excluded is a product referred to rupture limit of 4 kilograms per square more than 0.020 percent. This steel has as suspension foil, a specialty steel millimeter at 1000 degrees Celsius. This a carbide density on average of 100 product used in the manufacture of steel is most commonly used in the carbide particles per square micron. An suspension assemblies for computer production of heating ribbons for circuit example of this product is ‘‘GIN5’’ steel. disk drives. Suspension foil is described breakers and industrial furnaces, and in The third specialty steel has a chemical as 302/304 grade or 202 grade stainless rheostats for railway locomotives. The product is currently available under composition similar to AISI 420 F, with steel of a thickness between 14 and 127 carbon of between 0.37 and 0.43 microns, with a thickness tolerance of proprietary trade names such as ‘‘Gilphy 36.’’ 2 percent, molybdenum of between 1.15 plus–or-minus 2.01 microns, and and 1.35 percent, but lower manganese surface glossiness of 200 to 700 percent Certain martensitic precipitation– hardenable stainless steel is also of between 0.20 and 0.80 percent, Gs. Suspension foil must be supplied in phosphorus of no more than 0.025 coil widths of not more than 407 mm, excluded from the scope of the order. This high–strength, ductile stainless percent, silicon of between 0.20 and and with a mass of 225 kg or less. Roll 0.50 percent, and sulfur of no more than marks may only be visible on one side, steel product is designated under the Unified Numbering System as S45500– 0.020 percent. This product is supplied with no scratches of measurable depth. with a hardness of more than Hv 500 The material must exhibit residual grade steel, and contains, by weight, 11 to 13 percent chromium and 7 to 10 guaranteed after customer processing, stresses of 2 mm maximum deflection, and is supplied as, for example, ‘‘GIN6.’’ and flatness of 1.6 mm over 685 mm percent nickel. Carbon, manganese, length. silicon and molybdenum each comprise, Rescission of Changed Circumstances by weight, 0.05 percent or less, with Review Certain stainless steel foil for phosphorus and sulfur each comprising, Since the publication of the automotive catalytic converters is also by weight, 0.03 percent or less. This Preliminary Results, the Department has excluded from the scope of the order. steel has copper, niobium, and titanium completed a number of administrative This stainless steel strip in coils is a added to achieve aging, and will exhibit reviews of the order. See, e.g., Final specialty foil with a thickness of yield strengths as high as 1700 Mpa and between 20 and 110 microns used to Results and Partial Rescission of ultimate tensile strengths as high as Countervailing Duty Administrative produce a metallic substrate with a 1750 Mpa after aging, with elongation honeycomb structure for use in Review: Stainless Steel Sheet and Strip percentages of 3 percent or less in 50 From the Republic of Korea, 68 FR automotive catalytic converters. The mm. It is generally provided in steel contains, by weight, carbon of no 13267 (March 19, 2003) (‘‘Second thicknesses between 0.635 and 0.787 Review’’); Final Results of more than 0.030 percent, silicon of no mm, and in widths of 25.4 mm. This more than 1.0 percent, manganese of no Countervailing Duty Administrative product is most commonly used in the Review: Stainless Steel Sheet and Strip more than 1.0 percent, chromium of manufacture of television tubes and is between 19 and 22 percent, aluminum in Coils from the Republic of Korea, 69 currently available under proprietary FR 2113 (January 14, 2004) (‘‘Third of no less than 5.0 percent, phosphorus trade names such as ‘‘Durphynox 17.’’ 3 of no more than 0.045 percent, sulfur of Review’’), covering calendar years 2000 Finally, three specialty stainless steels and 2001, respectively. no more than 0.03 percent, lanthanum typically used in certain industrial of between 0.002 and 0.05 percent, and In both of these segments of the blades and surgical and medical proceeding, the Department’s total rare earth elements of more than instruments are also excluded from the 0.06 percent, with the balance iron. determination reflected INI’s status as scope of the order. These include the successor–in-interest to Inchon. Permanent magnet iron–chromium- stainless steel strip in coils used in the Specifically, in the Second Review, 68 cobalt alloy stainless strip is also production of textile cutting tools (e.g., FR at 13269, which examined Inchon, excluded from the scope of the order. carpet knives).4 This steel is similar to the Department stated in the ‘‘Final This ductile stainless steel strip AISI grade 420 but containing, by Results of Review’’ section of the notice: contains, by weight, 26 to 30 percent weight, 0.5 to 0.7 percent of ‘‘As of April 1, 2001, Inchon, changed chromium, and 7 to 10 percent cobalt, molybdenum. This steel is similar to its name to INI. Thus, for all of Inchon’s with the remainder of iron, in widths ASTM grade 440F, but containing, by shipments of the subject merchandise 228.6 mm or less, and a thickness weight, 0.5 to 0.7 percent of from the producers/exporters under between 0.127 and 1.270 mm. It exhibits review, entered, or withdrawn from magnetic remanence between 9,000 and 1 ‘‘Arnokrome III’’ is a trademark of the Arnold warehouse, for consumption on or after 12,000 gauss, and a coercivity of Engineering Company. 2 April 1, 2001, we will instruct customs between 50 and 300 oersteds. This ‘‘Gilphy 36’’ is a trademark of Imphy, S.A. 3 ‘‘Durphynox 17’’ is a trademark of Imphy, S.A. to assign Inchon’s cash deposit to INI.’’ product is most commonly used in 4 This list of uses is illustrative and provided for In the Third Review, the Department electronic sensors and is currently descriptive purposes only. stated ‘‘{f}or the period January 1, 2001

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through December 31, 2001, {which Tariff Act of 1930, as amended, and 19 FOR FURTHER INFORMATION CONTACT: Jim covers the time period when the name C.F.R. § 351.221(c)(3) and 19 CFR Bennett, Office of Textiles and Apparel, change took place} we determine the net § 351.216. U.S. Department of Commerce, (202) subsidy for INI/Sammi to be 0.55 Dated: July 13, 2009. 482-4058. percent ad valorem. This rate will also Ronald K. Lorentzen , SUPPLEMENTARY INFORMATION: apply to shipments by Inchon entered or Acting Assistant Secretary for Import Authority: Section 202 (j)(2)(B)(i) of the withdrawn from warehouse for the Administration. United States - Bahrain Free Trade period January 1, 2001 through [FR Doc. E9–17280 Filed 7–20–09; 8:45 am] Agreement Implementation Act (19 U.S.C. December 31, 2001.’’ See Third Review, 3805 note) (USBFTA Implementation Act); 69 FR at 2115 (unchanged in Amended BILLING CODE 3510–DS–S Executive Order 11651 of March 3, 1972, as Final Results of Countervailing Duty amended. Administrative Review: Stainless Steel Background Sheet and Strip in Coils from the COMMITTEE FOR THE Republic of Korea, 69 FR 7419 (February IMPLEMENTATION OF TEXTILE Under the USBFTA, the parties are 17, 2004)). Since the Department’s AGREEMENTS required to progressively eliminate customs duties on originating goods. decisions in these administrative Request for Public Comment on a reviews reflect INI’s status as the See Article 2.3.2. The USBFTA provides Commercial Availability Request under that, after consultations, the parties may successor–in-interest to Inchon, there is the U.S.-Bahrain Free Trade Agreement no need for the Department to make a agree to revise the rules of origin for determination on this issue in the July 15, 2009. textile and apparel products to address context of a CVD changed circumstances AGENCY: Committee for the issues of availability of supply of fibers, review. The Department noted this fact Implementation of Textile Agreements yarns, or fabrics in the free trade area. in the changed circumstances review of (CITA). See Article 3.2.3 of the USBFTA. In the consultations, each party must consider the CVD order on S4 from Korea that ACTION: Request for public comments data presented by the other party was initiated on June 30, 2006, to concerning a request for modification of showing substantial production of the examine whether Hyundai Steel the U.S.-Bahrain Free Trade Agreement good. Substantial production has been Company was the successor–in-interest (USBFTA) rules of origin for certain shown if domestic producers are to INI. See Stainless Steel Sheet and compacted, single, ring spun cotton capable of supplying commercial Strip in Coils From the Republic of yarns. Korea: Initiation of Countervailing Duty quantities of the good in a timely Changed Circumstances Review, 71 FR SUMMARY: On April 1, 2009, the manner. See Article 3.2.4 of the 37541 (June 30, 2006) (‘‘In September Government of the United States USBFTA. 2001 and June 2002, respectively, the received a request from the Government The USBFTA Implementation Act Department initiated and issued the of Bahrain for consultations under provides the President with the preliminary results of a changed Article 3.2.3 of the USBFTA. Bahrain is authority to proclaim modifications to circumstances review to determine seeking agreement to revise the rules of the USBFTA rules of origin as are whether INI was entitled to Inchon’s origin for certain bedding, curtains, bed necessary to implement the agreement cash deposit rate.5 In the Second Review covers, and pillow covers to address after complying with the consultation the Department determined to assign availability of supply of certain and layover requirements of Section 104 Inchon’s cash deposit rate to INI, compacted ring spun cotton yarns in the of the USBFTA Implementation Act. See thereby eliminating the need to territories of the Parties. On July 7, Section 202(j)(2)(B)(i) of the USBFTA complete the changed circumstances 2009, the United States received Implementation Act. Executive Order review.6 ’’). Therefore, we are rescinding additional information from Bahrain to 11651 established CITA to supervise the the instant CVD changed circumstances address certain issues with respect to implementation of textile trade review. the April 1 request, including agreements and authorizes the identification that the subject request is Chairman of CITA to take actions or Administrative Protective Orders for certain compacted, single, ring spun recommend that the United States take This notice also serves as a final cotton yarns classified in subheadings actions necessary to implement textile reminder to parties subject to 5205.27.0020 and 5205.28.0020 of the trade agreements. 37 FR 4699 (March 4, administrative protective order (‘‘APO’’) Harmonized Tariff Schedule of the 1972). of their responsibility concerning the United States (HTSUS). The President On April 1, 2009, the Government of disposition of proprietary information may proclaim a modification to the the United States received a request disclosed under APO in accordance USBFTA rules of origin for textile and from the Government of Bahrain, with 19 C.F.R. § 351.305(a)(3). Failure to apparel products after reaching an alleging that certain compacted ring timely notify the Department in writing agreement with the Government of spun cotton yarns cannot be supplied by of the return/destruction of APO Bahrain on the modification. CITA the domestic or Bahraini industry in material is a sanctionable violation. hereby solicits public comments on this commercial quantities in a timely This notice is in accordance with request, in particular with regard to manner and requesting that the United sections 751(b)(1) and 777(i)(1) of the whether certain compacted, single, ring States consider whether the USBFTA spun cotton yarns of HTSUS rule of origin for certain bedding, 5 See Stainless Steel Sheet and Strip in Coils from 5205.27.0020 and 5205.28.0020 can be curtains, bed covers, and pillow covers, the Republic of Korea; Notice of Initiation of supplied by the domestic industry in classified under HTSUS subheadings Changed Circumstances Countervailing Duty Administrative Review, 66 FR 49639 (September 28, commercial quantities in a timely 6302.21.9010, 6302.21.9020, 2001), and Stainless Steel Sheet and Strip in Coils manner. Comments must be submitted 6302.31.5010, 6302.31.5020, from the Republic of Korea; Notice of Preliminary by August 20, 2009 to the Chairman, 6302.31.9010, 6302.31.9020, Results of Changed Circumstances Countervailing Committee for the Implementation of 6303.91.0020, 6304.92.0000, Duty Administrative Review, 67 FR 38257 (June 3, 2002). Textile Agreements, Room 3001, United 6307.90.8945, 6307.90.8985, and 6 See Second Review Decision Memorandum at States Department of Commerce, 6307.90.8995, should be modified to section ‘‘C: Name Changes.’’ Washington, DC 20230. allow the use of non-U.S. and non-

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Bahraini certain compacted ring spun limits, particularly as related to the CONSUMER PRODUCT SAFETY cotton yarns. On July 7, 2009, the energy markets, and hedge exemptions COMMISSION United States received additional on regulated futures exchanges, information from Bahrain to address derivatives transaction execution Notice of Consultation Pursuant to certain issues with respect to the April facilities and electronic trading facilities Section 106 of the CPSIA; Request for 1 request, including identification that with respect to a significant price Comments and Information the subject request is for certain discovery contract. AGENCY: Consumer Product Safety compacted, single, ring spun cotton Commission. yarns classified in subheadings CONTACT PERSONS AND ADDRESSES: 5205.27.0020 and 5205.28.0020 of the Written materials should be mailed to ACTION: Notice. the Commodity Futures Trading HTSUS. SUMMARY: Section 106 of the Consumer CITA is soliciting public comments Commission, Three Lafayette Center, Product Safety Improvement Act of regarding this request, particularly with 1155 21st Street, NW., Washington, DC 2008 (CPSIA) requires the Consumer respect to whether certain compacted, 20581, attention Office of the Product Safety Commission (‘‘CPSC’’ or single, ring spun cotton yarns described Secretariat; transmitted by facsimile at ‘‘Commission’’) to examine and assess, above can be supplied by the domestic 202–418–5521; or transmitted in consultation with consumer groups, industry in commercial quantities in a electronically to [[email protected]]. juvenile product manufacturers, and timely manner. Comments must be Reference should be made to independent child product engineers received no later than August 20, 2009. ‘‘position limits and hedge and experts, the effectiveness of ASTM Interested persons are invited to submit exemptions.’’ For substantive questions, F963–07, ‘‘Standard Consumer Safety six copies of such comments or please contact Sauntia Warfield, 202– Specification for Toy Safety,’’ or its information to the Chairman, Committee 518–5084. for the Implementation of Textile successor standard (except for section Agreements, Room 3001, U.S. SUPPLEMENTARY INFORMATION: The 4.2 and Annex 4), as it relates safety Department of Commerce, 14th and Commission is undertaking a review of requirements, safety labeling Constitution Avenue, N.W., issues related to Federal position limits requirements, and test methods related Washington, DC 20230. and hedge exemptions on regulated to: (1) Internal harm or injury hazards CITA will protect any business futures exchanges, derivatives caused by the ingestion or inhalation of confidential information that is marked transaction execution facilities and magnets in children’s products; (2) toxic business confidential from disclosure to electronic trading facilities with respect substances; (3) toys with spherical ends; the full extent permitted by law. CITA to a significant price discovery contract. (4) hemispheric-shaped objects; (5) will make available to the public non- In furtherance of that review, the cords, straps, and elastics; and (6) confidential versions of the request and Commission hereby announces that it battery-operated toys. This notice is non-confidential versions of any public will hold public hearings on Tuesday, issued to facilitate the receipt of any comments received with respect to a July 28, 2009, Wednesday, July 29, 2009 written submissions on these matters as request in room 3001 in the Herbert and Wednesday, August 5, 2009 from 9 part of the consultative process required Hoover Building, 14th and Constitution a.m. to 1 p.m. each day, at the by section 106 of the CPSIA. The Avenue, N.W., Washington, DC 20230. Commission headquarters in Commission invites comments Persons submitting comments on a Washington, DC. At these hearings the concerning the issues discussed in this request are encouraged to include a non- Commission will have oral notice. confidential version and a non- presentations by panels of witnesses DATES: Comments and submissions in confidential summary. representing segments of the futures response to this notice must be received market participants and academics. by August 20, 2009. Janet E. Heinzen, Members of Congress also are expected ADDRESSES: You may submit comments, Acting Chairman, Committee for the Implementation of Textile Agreements. to present their views. identified by Docket No. CPSC–2009– 0047, by any of the following methods: [FR Doc. E9–17277 Filed 7–20–09; 8:45 am] These hearings will generally focus on BILLING CODE 3510–DS a number of issues, including: the Electronic Submissions application of federal speculative position limits to address the burdens of Submit electronic comments in the excessive speculation; how such limits following way: COMMODITY FUTURES TRADING Federal eRulemaking Portal: http:// should be structured; how such limits COMMISSION www.regulations.gov. Follow the should be set; the aggregation of instructions for submitting comments. positions across different markets; and Sunshine Act Meetings To ensure timely processing of the types of exemptions, if any, that comments, the Commission is no longer AGENCY HOLDING THE MEETING: should be permitted. Commodity Futures Trading accepting comments submitted by A transcript of the hearing will be Commission (Commission). electronic mail (e-mail) except through made and entered into the http://www.regulations.gov. DATES AND TIME: Tuesday, July 28, 2009, Commission’s public comment files, Wednesday, July 29, 2009 and which will remain open for the receipt Written Submissions Wednesday, August 5, 2009, of written comments until August 12, Submit written submissions in the commencing each day at 9 a.m. and 2009. following way: ending at 1 p.m. Mail/Hand delivery/Courier (for PLACE: Three Lafayette Center, 1155 21st Issued in Washington, DC, on July 17, 2009, by the Commission. paper, disk, or CD–ROM submissions), St., NW., Washington, DC, Lobby Level preferably in five copies, to: Office of Hearing Room (Room 1000). David Stawick, the Secretary, Consumer Product Safety STATUS: Open. Secretary of the Commission. Commission, Room 502, 4330 East West MATTERS TO BE CONSIDERED: Public [FR Doc. E9–17421 Filed 7–17–09; 4:15 pm] Highway, Bethesda, MD 20814; hearings to examine Federal position BILLING CODE 6351–01–P telephone (301) 504–7923.

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Instructions: All submissions received (1) Internal harm or injury hazards 2. Toxic Substances—The must include the agency name and caused by the ingestion or inhalation of requirements address the risks of docket number for this notice. All magnets in children’s products; exposure to toxic substances. To comments received may be posted (2) Toxic substances; minimize the likelihood of exposure to without change, including any personal (3) Toys with spherical ends; toxic substances, ASTM F963–08 identifiers, contact information, or other (4) Hemispheric-shaped objects; addresses the following areas: personal information provided, to (5) Cords, straps, and elastics; and a. Federally prohibited hazardous http://www.regulations.gov. Do not (6) Battery-operated toys. substances; submit confidential business Section 106(b)(2) of the CPSIA b. Food and food packaging; information, trade secret information, or requires the Commission to promulgate c. Food additives; other sensitive or protected information consumer product safety standards that d. Toys in contact with food; electronically. Such information should take into account other children’s e. Ceramicware, lead and cadmium be submitted in writing. product safety rules and are more contamination; stringent than such standards if the f. Cosmetics; Docket: For access to the docket to g. Paint and similar coatings; Commission determines that more read background documents or h. Liquids, pastes, putties, gels and stringent standards would further comments received, go to http:// powders; www.regulations.gov. reduce the risk of injury associated with i. Stuffing materials; and such products. j. DI (2-ethylhexyl) phthalate (DEHP) FOR FURTHER INFORMATION CONTACT: As part of its efforts to comply with (also known as dioctyl phthalate (DOP)). Jonathan Midgett, PhD, Office of Hazard section 106 of the CPSIA, the 3. Toys with spherical ends—The Identification and Reduction, U.S. Commission is issuing this notice in the requirements address potential Consumer Product Safety Commission, Federal Register to invite public impaction hazards for children up to 48 4330 East-West Highway, Suite 600, comment concerning the effectiveness months with certain toys containing Bethesda, MD 20814; telephone (301) of ASTM F963–08 in the following spherical ends. To minimize the 504–7692; e-mail [email protected]. areas: likelihood of impaction hazards, ASTM 1. Hazardous Magnets—The SUPPLEMENTARY INFORMATION: The F963–08: CPSIA was enacted on August 14, 2008. requirements for toys with magnets a. Requires toys weighing less than Section 106 of the CPSIA, ‘‘Mandatory address recent incidents involving small 1.1-pounds for children up to 18 months Toy Safety Standards,’’ made ASTM high-attraction-force magnets. Ingestion that incorporate spherical, International Standard F963–07, of these magnets can lead to hemispherical, or flared ends and are ‘‘Standard Consumer Safety perforations of the gut wall, causing attached to a shaft, handle or support Specification for Toy Safety’’ (ASTM infection, sepsis, or even death, as the that has a smaller cross section to meet F963), as it existed on August 14, 2008 magnets attract to each other through the specified dimensional requirements. (except for section 4.2 and Annex 4 or different sections of the intestines. To b. Requires toys weighing less than any provision that restates or minimize the likelihood of children 1.1-pounds for children 18 to 48 months incorporates an existing mandatory swallowing hazardous magnets, ASTM having nail, screw or bolt shapes with standard or ban promulgated by the F963–08: spherical or hemispherical ends Commission or by statute), into a. Defines hazardous magnets and attached to a shaft or handle to meet the mandatory consumer product safety hazardous magnetic components as specified dimensional requirements. standards issued by the Commission those being small parts and containing c. Requires preschool play figures for under section 9 of the Consumer a magnet with a Flux Index of 50 or children less than 3 years of age with a Product Safety Act (15 U.S.C. 2058). greater. round, spherical, or hemispherical end b. Specifies a method for determining and tapered neck attached to a On February 17, 2009, ASTM a magnet’s Flux Index using a gauss cylindrical shape and an overall length proposed revisions in F963–08, a meter. of 2.5-inches or less to meet the successor standard, for the c. Prohibits magnetic toys for children specified dimensional requirements. Commission’s consideration. On May up to age 14 from containing hazardous 4. Hemispheric-shaped objects—The 13, 2009, the Commission voted to magnets or magnetic components. requirements address potential accept all of the proposed revisions in d. Specifies use and abuse test asphyxiation hazards with ‘‘cup’’ ASTM F963–08 except the revision that methods for magnetic toys that are not shaped objects that have the potential to would have omitted section 4.27, which small parts, but have embedded fit on a child’s face and allow a vacuum addresses toy chests, from the standard. hazardous magnets, to ensure that to be formed. To minimize the The revisions in F963–08 that were hazardous magnets will not liberate likelihood of these types of hazards, accepted by the Commission will from the toy during normal usage. This ASTM F963–08 requires certain toy cup, become mandatory consumer product test method includes cyclic and impact bowl or half-egg shaped objects to meet safety standards on August 17, 2009. testing. certain specified dimensional and Section 106(b)(1) of the CPSIA e. Allows hazardous magnets and opening requirements. requires the Commission, in hazardous magnetic components in 5. Cords, straps and elastics—The consultation with representatives of hobby, craft and science kits for requirements address potential consumer groups, juvenile product children over 8 years of age, provided entanglement and strangulation hazards manufacturers, and independent child that they contain a hazardous magnet associated with cords, straps and product engineers and experts, to warning. elastics. To minimize the likelihood of examine and assess the effectiveness of f. Does not require a hazardous these types of hazards, ASTM F963–08: ASTM F963 or its successor standard magnet warning on magnetic toys that a. Requires toys for children less than (except for section 4.2 and Annex 4), as are not small parts, but have embedded 18 months with straps or elastics it relates safety requirements, safety hazardous magnets, provided that they attached or included to be less than 12- labeling requirements, and test methods pass the specified use and abuse test inches in the free-state and under a 5- related to: methods. pound load.

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b. Requires cords, straps and elastics and National Aeronautics and Space to ascertain cost realism of proposed that can form a loop to not admit a head Administration (NASA). labor rates for professional employees. probe when tested under the specified ACTION: Notice of request for public B. Annual Reporting Burden conditions. comments regarding an extension to an c. Requires cords, straps and elastics existing OMB clearance. Number of Respondents: 19,906. that admit the base of the head probe to Responses Per Respondent: 1. contain breakaway features that release SUMMARY: Under the provisions of the Annual Responses: 19,906. at less than 5-pounds when tested in Paperwork Reduction Act of 1995 (44 Average Burden Per Response: 30 accordance with the specified U.S.C. Chapter 35), the Federal minutes. conditions. Acquisition Regulation (FAR) Total Burden Hours: 9,953. d. Requires certain toys with self- Secretariat will be submitting to the Obtaining Copies of Proposals: retracting pull cords for children less Office of Management and Budget Requesters may obtain a copy of the than 18 months of age to not retract (OMB) a request to review and approve information collection documents from under load in accordance with the an extension of a currently approved the General Services Administration, specified conditions. information collection requirement Regulatory Secretariat (VPR), 1800 F e. Requires cords, straps and elastics concerning service contracting. A Street, Room 4041, NW., Washington, greater than 12-inches long for children request for public comments was DC 20405, telephone (202) 501–4755. less than 36 months of age to not published in the Federal Register at 74 Please cite OMB Control Number 9000– contain beads or other attachments that FR 18718 on April 24, 2009. No 0152, Service Contracting, in all could tangle to form a loop. comments were received. correspondence. f. Requires toy bags for children up to Public comments are particularly Dated: July 15, 2009. 18 months of age that have a perimeter invited on: Whether this collection of Al Matera, opening greater than 14-inches to not information is necessary for the proper Director, Office of Acquisition Policy. have a drawstring or cord as a means of performance of functions of the FAR, [FR Doc. E9–17271 Filed 7–20–09; 8:45 am] closing. and whether it will have practical BILLING CODE 6820–EP–P 6. Battery-Operated Toys—The utility; whether our estimate of the requirements of F963–08 address the public burden of this collection of following areas to minimize the risk information is accurate, and based on DEPARTMENT OF DEFENSE associated with battery operated toys: valid assumptions and methodology; a. Battery overheating; ways to enhance the quality, utility, and GENERAL SERVICES b. Leakage; clarity of the information to be ADMINISTRATION c. Explosion and fire; and collected; and ways in which we can d. Swallowing of batteries. NATIONAL AERONAUTICS AND 7. Comments may also be submitted minimize the burden of the collection of SPACE ADMINISTRATION on any other section of ASTM F963–08. information on those who are to respond, through the use of appropriate Please note that all comments should be [OMB Control No. 9000–0149] restricted to children’s toy safety. technological collection techniques or A link to ASTM F963–07 and F963– other forms of information technology. Federal Acquisition Regulation; 08, in a ‘‘read-only’’ format, may be DATES: Submit comments on or before Submission for OMB Review; viewed on ASTM’s Web site at http:// August 20, 2009. Subcontract Consent ADDRESSES: Submit comments, www.astm.org/cpsc.htm. AGENCY: Department of Defense (DOD), Comments submitted must follow the including suggestions for reducing this General Services Administration (GSA), directions provided in the ADDRESSES burden to: FAR Desk Officer, OMB, and National Aeronautics and Space section of this notice. All comments and Room 10102, NEOB, Washington, DC Administration (NASA). submissions should be received no later 20503, and a copy to the General ACTION: than August 20, 2009. Services Administration, Regulatory Notice of request for public Secretariat (VPR), 1800 F Street, NW., comments regarding an extension to an Dated: July 14, 2009. existing OMB clearance. Todd A. Stevenson, Room 4041, Washington, DC 20405. Secretary, Consumer Product Safety FOR FURTHER INFORMATION CONTACT: Mr. SUMMARY: Under the provisions of the Commission. Warren Blankenship, Contract Policy Paperwork Reduction Act of 1995 (44 [FR Doc. E9–17198 Filed 7–20–09; 8:45 am] Division, GSA, (202) 501–1900. U.S.C. Chapter 35), the Federal BILLING CODE 6355–01–P SUPPLEMENTARY INFORMATION: Acquisition Regulation (FAR) Secretariat will be submitting to the A. Purpose Office of Management and Budget DEPARTMENT OF DEFENSE This FAR requirement implements (OMB) a request to review and approve the statutory requirements of Sec. 834, an extension of a currently approved GENERAL SERVICES Public Law 101–510, concerning information collection requirement ADMINISTRATION uncompensated overtime. The coverage concerning subcontract consent. A requires that offerors identify request for public comments was NATIONAL AERONAUTICS AND uncompensated overtime hours and the published in the Federal Register at 74 SPACE ADMINISTRATION uncompensated overtime rate for direct FR 18717, on April 24, 2009. No charge Fair Labor Standards Act– comments were received. [OMB Control No. 9000–0152] exempt personnel. These overtime Public comments are particularly Federal Acquisition Regulation; hours and rates are included in the invited on: Whether this collection of Submission for OMB Review; Service offeror’s proposals and their information is necessary for the proper Contracting subcontractor’s proposals for performance of functions of the FAR, procurements valued at or above the and whether it will have practical AGENCY: Department of Defense (DOD), simplified acquisition threshold. This utility; whether our estimate of the General Services Administration (GSA), permits Government contracting officers public burden of this collection of

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information is accurate, and based on DEPARTMENT OF EDUCATION and Enhancing the Health and Wellness valid assumptions and methodology; of Individuals with Arthritis. ways to enhance the quality, utility, and Office of Special Education and Note: The full text of each of these clarity of the information to be Rehabilitative Services; Overview priorities is included in its notice of final collected; and ways in which we can Information; National Institute on priorities in the Federal Register and in the minimize the burden of the collection of Disability and Rehabilitation Research applicable application package. information on those who are to (NIDRR)—Disability and Rehabilitation Invitational Priority: For FY 2009, this respond, through the use of appropriate Research Projects and Centers priority is an invitational priority. Program—Rehabilitation Research and technological collection techniques or Under 34 CFR 75.105(c)(1) we do not Training Centers (RRTCs)—Enhancing other forms of information technology. give an application that meets this the Health and Wellness of Individuals invitational priority a competitive or DATES: Submit comments on or before With Arthritis; Notice Inviting absolute preference over other August 20, 2009. Applications for New Awards for Fiscal applications. Under this competition we Year (FY) 2009 ADDRESSES: Submit comments including are particularly interested in applications that address the following suggestions for reducing this burden to: Catalog of Federal Domestic Assistance FAR Desk Officer, OMB, Room 10102, priority: (CFDA) Number: 84.133B–9. Projects that are designed to NEOB, Washington, DC 20503, and a DATES: Applications Available: July 21, contribute to improved rehabilitation copy to the General Services interventions to reduce the symptoms, Administration, FAR Secretariat (VPR), 2009. Date of Pre-Application Meeting: July functional limitations, and barriers to 1800 F Street, NW., Room 4041, employment associated with Washington, DC 20405. 21, 2009. Deadline for Transmittal of osteoarthritis among working-age adults FOR FURTHER INFORMATION CONTACT: Applications: September 4, 2009. with pre-existing disabilities. We are Rhonda Cundiff, Acquisition Policy particularly interested in projects that Full Text of Announcement Division, GSA (202) 501–0044 or via e- focus on one or more of the following mail to [email protected]. I. Funding Opportunity Description interventions recommended by the joint Arthritis-CDC Osteoarthritis Purpose of Program: The purpose of SUPPLEMENTARY INFORMATION: Intervention Working Group: physical the RRTC program is to improve the activity, muscle strengthening, self- A. Purpose effectiveness of services authorized management education, weight under the Rehabilitation Act of 1973, as The objective to consent to management and nutrition, and injury amended, through advanced research, prevention. subcontract, as discussed in FAR Part training, technical assistance, and 44, is to evaluate the efficiency and Program Authority: 29 U.S.C. 762(g) dissemination activities in general and 764(b)(2). effectiveness with which the contractor problem areas, as specified by NIDRR. Applicable Regulations: (a) The spends Government funds, and Such activities are designed to benefit Education Department General complies with Government policy when rehabilitation service providers, Administrative Regulations (EDGAR) in subcontracting. The consent package individuals with disabilities, and the 34 CFR parts 74, 75, 77, 80, 81, 82, 84, provides the administrative contracting family members or other authorized 85, 86, and 97. (b) The regulations for officer a basis for granting, or representatives of individuals with this program in 34 CFR part 350. (c) The withholding consent to subcontract. disabilities. notice of final priorities for the Additional information on the RRTC B. Annual Reporting Burden Disability and Rehabilitation Research program can be found at: http:// Projects and Centers program, published Number of Respondents: 4,252. www.ed.gov/rschstat/research/pubs/res- in the Federal Register on February 1, program.html#RRTC. Responses Per Respondent: 3.61. 2008 (73 FR 6132). (d) The notice of Priorities: NIDRR has established two final priorities for the Disability and Total Responses: 15,349. absolute priorities and one invitational Rehabilitation Research Projects and Average Burden Hours Per Response: priority for this competition. Centers program, published elsewhere Absolute Priorities: The General .87. in this issue of the Federal Register. Rehabilitation Research and Training Total Burden Hours: 13,353. Centers (RRTC) Requirements priority is Note: The regulations in 34 CFR part 86 apply to institutions of higher education Obtaining Copies of Proposals: from the notice of final priorities for the (IHEs) only. Requesters may obtain a copy of the Disability and Rehabilitation Research information collection documents from Projects and Centers program, published II. Award Information the General Services Administration, in the Federal Register on February 1, 2008 (73 FR 6132). The Enhancing the Type of Award: Discretionary grants. FAR Secretariat (VPR), 1800 F Street, Estimated Available Funds: $700,000. Health and Wellness of Individuals with NW., Room 4041, Washington, DC Maximum Award: We will reject any Arthritis priority is from the notice of 20405, telephone (202) 501–4755. Please application that proposes a budget final priorities for the Disability and cite OMB Control Number 9000–0149, exceeding $700,000 for a single budget Rehabilitation Research Projects and Subcontract Consent, in all period of 12 months. The Assistant Centers program, published elsewhere correspondence. Secretary for Special Education and in this issue of the Federal Register. Rehabilitative Services may change the Dated: July 15, 2009. For FY 2009, these priorities are maximum amount through a notice absolute priorities. Under 34 CFR Al Matera, published in the Federal Register. Director, Office of Acquisition Policy. 75.105(c)(3) we consider only Estimated Number of Awards: 1. [FR Doc. E9–17272 Filed 7–20–09; 8:45 am] applications that meet these priorities. These priorities are: Note: The Department is not bound by any BILLING CODE 6820–EP–P General Rehabilitation Research and estimates in this notice. Training Centers (RRTC) Requirements Project Period: Up to 60 months.

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III. Eligibility Information The recommended page limit does not Individuals with disabilities who 1. Eligible Applicants: States; public apply to Part I, the cover sheet; Part II, need an accommodation or auxiliary aid or private agencies, including for-profit the budget section, including the in connection with the application agencies; public or private narrative budget justification; Part IV, process should contact the person listed organizations, including for-profit the assurances and certifications; or the under FOR FURTHER INFORMATION organizations; IHEs; and Indian tribes one-page abstract, the resumes, the CONTACT in section VII of this notice. If and tribal organizations. bibliography, or the letters of support. the Department provides an 2. Cost Sharing or Matching: This However, the recommended page limit accommodation or auxiliary aid to an competition does not require cost does apply to all of the application individual with a disability in sharing or matching. narrative section (Part III). connection with the application The application package will provide process, the individual’s application IV. Application and Submission instructions for completing all remains subject to all other Information components to be included in the requirements and limitations in this 1. Address to Request Application application. Each application must notice. Package: Education Publications Center include a cover sheet (Standard Form 4. Intergovernmental Review: This (ED Pubs), P.O. Box 1398, Jessup, MD 424); budget requirements (ED Form program is not subject to Executive 20794–1398. Telephone, toll free: 1– 524) and narrative justification; other Order 12372 and the regulations in 34 877–433–7827. FAX: (301) 470–1244. If required forms; an abstract, Human CFR part 79. you use a telecommunications device Subjects narrative, Part III narrative; 5. Funding Restrictions: We reference for the deaf (TDD), call, toll free: 1–877– resumes of staff; and other related regulations outlining funding 576–7734. materials, if applicable. restrictions in the Applicable You can contact ED Pubs at its Web 3. Submission Dates and Times: Regulations section in this notice. site, also: http://www.ed.gov/pubs/ Applications Available: July 21, 2009. 6. Other Submission Requirements: edpubs.html or at its e-mail address: Date of Pre-Application Meeting: Applications for grants under this [email protected]. Interested parties are invited to competition must be submitted If you request an application package participate in a pre-application meeting electronically unless you qualify for an from ED Pubs, be sure to identify this and to receive information and technical exception to this requirement in program or competition as follows: assistance through individual accordance with the instructions in this CFDA number 84.133B–9. consultation with NIDRR staff. The pre- section. Individuals with disabilities can application meeting will be held on July a. Electronic Submission of obtain a copy of the application package 21, 2009. Interested parties may Applications. in an accessible format (e.g., braille, participate in this meeting by Applications for grants under the large print, audiotape, or computer conference call with NIDRR staff from Rehabilitation Research and Training diskette) by contacting the person or the Office of Special Education and Centers (RRTCs)—CFDA Number team listed under Accessible Format in Rehabilitative Services between 1:00 84.133B–9 must be submitted section VIII of this notice. p.m. and 3:00 p.m., Washington, DC electronically using e-Application, 2. Content and Form of Application time. NIDRR staff also will be available accessible through the Department’s e- Submission: Requirements concerning from 3:30 p.m. to 4:30 p.m., Grants Web site at: http://e- the content of an application, together Washington, DC time, on the same day, grants.ed.gov. with the forms you must submit, are in by telephone, to provide information We will reject your application if you the application package for this and technical assistance through submit it in paper format unless, as competition. individual consultation. For further described elsewhere in this section, you Page Limit: The application narrative information or to make arrangements to qualify for one of the exceptions to the (Part III of the application) is where you, participate in the meeting via electronic submission requirement and the applicant, address the selection conference call or for an individual submit, no later than two weeks before criteria that reviewers use to evaluate consultation, contact Donna Nangle, the application deadline date, a written your application. We recommend that U.S. Department of Education, Potomac statement to the Department that you you limit Part III to the equivalent of no Center Plaza (PCP), Room 6029, 550 qualify for one of these exceptions. more than 125 pages, using the 12th Street, SW., Washington, DC Further information regarding following standards: 20202. Telephone: (202) 245–7462 or by calculation of the date that is two weeks • A ‘‘page’’ is 8.5″ x 11″, on one side e-mail: [email protected]. before the application deadline date is only, with 1″ margins at the top, bottom, Deadline for Transmittal of provided later in this section under and both sides. Applications: September 4, 2009. Exception to Electronic Submission • Double space (no more than three Applications for grants under this Requirement. lines per vertical inch) all text in the competition must be submitted While completing your electronic application narrative. Single spacing electronically using the Electronic Grant application, you will be entering data may be used for titles, headings, Application System (e-Application) online that will be saved into a footnotes, quotations, references, and accessible through the Department’s e- database. You may not e-mail an captions, as well as all text in charts, Grants site. For information (including electronic copy of a grant application to tables, figures, and graphs. dates and times) about how to submit us. • Use a font that is either 12 point or your application electronically, or in Please note the following: larger or no smaller than 10 pitch paper format by mail or hand delivery • You must complete the electronic (characters per inch). if you qualify for an exception to the submission of your grant application by • Use one of the following fonts: electronic submission requirement, 4:30:00 p.m., Washington, DC time, on Times New Roman, Courier, Courier please refer to section IV.6. Other the application deadline date. E- New, or Arial. An application submitted Submission Requirements of this notice. Application will not accept an in any other font (including Times We do not consider an application application for this competition after Roman or Arial Narrow) will not be that does not comply with the deadline 4:30:00 p.m., Washington, DC time, on accepted. requirements. the application deadline date.

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Therefore, we strongly recommend that • We may request that you provide us Department, it must be postmarked no you do not wait until the application original signatures on other forms at a later than two weeks before the deadline date to begin the application later date. application deadline date. If you fax process. Application Deadline Date Extension your written statement to the • The hours of operation of the e- in Case of e-Application Unavailability: Department, we must receive the faxed Grants Web site are 6:00 a.m. Monday If you are prevented from electronically statement no later than two weeks until 7:00 p.m. Wednesday; and 6:00 submitting your application on the before the application deadline date. a.m. Thursday until 8:00 p.m. Sunday, application deadline date because e- Address and mail or fax your Washington, DC time. Please note that, Application is unavailable, we will statement to: Donna Nangle, U.S. because of maintenance, the system is grant you an extension of one business Department of Education, 400 Maryland unavailable between 8:00 p.m. on day to enable you to transmit your Avenue, SW., Room 6030 PCP, Sundays and 6:00 a.m. on Mondays, and application electronically, by mail, or by Washington, DC 20202–2700. FAX: between 7:00 p.m. on Wednesdays and hand delivery. We will grant this (202) 245–7323. 6:00 a.m. on Thursdays, Washington, extension if— Your paper application must be DC time. Any modifications to these (1) You are a registered user of e- submitted in accordance with the mail hours are posted on the e-Grants Web Application and you have initiated an or hand delivery instructions described site. electronic application for this in this notice. • You will not receive additional competition; and b. Submission of Paper Applications point value because you submit your (2) (a) E-Application is unavailable for by Mail. application in electronic format, nor 60 minutes or more between the hours If you qualify for an exception to the will we penalize you if you qualify for of 8:30 a.m. and 3:30 p.m., Washington, electronic submission requirement, you an exception to the electronic DC time, on the application deadline may mail (through the U.S. Postal submission requirement, as described date; or Service or a commercial carrier) your elsewhere in this section, and submit (b) E-Application is unavailable for application to the Department. You your application in paper format. any period of time between 3:30 p.m. must mail the original and two copies and 4:30:00 p.m., Washington, DC time, • You must submit all documents of your application, on or before the on the application deadline date. electronically, including all information application deadline date, to the We must acknowledge and confirm you typically provide on the following Department at the following address: these periods of unavailability before forms: The Application for Federal U.S. Department of Education, granting you an extension. To request Assistance (SF 424), the Department of Application Control Center, this extension or to confirm our Education Supplemental Information for Attention: (CFDA Number 84.133B– acknowledgment of any system SF 424, Budget Information—Non- 9), LBJ Basement Level 1, 400 unavailability, you may contact either Construction Programs (ED 524), and all Maryland Avenue, SW., Washington, (1) the person listed elsewhere in this necessary assurances and certifications. DC 20202–4260. notice under FOR FURTHER INFORMATION You must attach any narrative sections You must show proof of mailing CONTACT (see VII. Agency Contact) or (2) of your application as files in a .DOC consisting of one of the following: the e-Grants help desk at 1–888–336– (document), .RTF (rich text), or .PDF (1) A legibly dated U.S. Postal Service 8930. If e-Application is unavailable (Portable Document) format. If you postmark. due to technical problems with the upload a file type other than the three (2) A legible mail receipt with the system and, therefore, the application file types specified in this paragraph or date of mailing stamped by the U.S. deadline is extended, an e-mail will be submit a password protected file, we Postal Service. sent to all registered users who have will not review that material. (3) A dated shipping label, invoice, or initiated an e-Application. Extensions • Your electronic application must receipt from a commercial carrier. referred to in this section apply only to (4) Any other proof of mailing comply with any page limit the unavailability of e-Application. requirements described in this notice. acceptable to the Secretary of the U.S. • Exception to Electronic Submission Department of Education. Prior to submitting your electronic Requirement: You qualify for an application, you may wish to print a If you mail your application through exception to the electronic submission the U.S. Postal Service, we do not copy of it for your records. requirement, and may submit your • After you electronically submit accept either of the following as proof application in paper format, if you are of mailing: your application, you will receive an unable to submit an application through automatic acknowledgment that will (1) A private metered postmark. e-Application because— (2) A mail receipt that is not dated by include a PR/Award number (an • You do not have access to the the U.S. Postal Service. identifying number unique to your Internet; or If your application is postmarked after application). • You do not have the capacity to the application deadline date, we will • Within three working days after upload large documents to e- not consider your application. submitting your electronic application, Application; and fax a signed copy of the SF 424 to the • No later than two weeks before the Note: The U.S. Postal Service does not Application Control Center after application deadline date (14 calendar uniformly provide a dated postmark. Before following these steps: days or, if the fourteenth calendar day relying on this method, you should check (1) Print SF 424 from e-Application. before the application deadline date with your local post office. (2) The applicant’s Authorizing falls on a Federal holiday, the next c. Submission of Paper Applications Representative must sign this form. business day following the Federal by Hand Delivery. (3) Place the PR/Award number in the holiday), you mail or fax a written If you qualify for an exception to the upper right hand corner of the hard- statement to the Department, explaining electronic submission requirement, you copy signature page of the SF 424. which of the two grounds for an (or a courier service) may deliver your (4) Fax the signed SF 424 to the exception prevents you from using the paper application to the Department by Application Control Center at (202) Internet to submit your application. If hand. You must deliver the original and 245–6272. you mail your written statement to the two copies of your application, by hand,

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on or before the application deadline and Selection Process is voluntary, research and development activities in date, to the Department at the following except where required by the selection refereed journals. address: criteria listed in the application • The percentage of new NIDRR U.S. Department of Education, package. grants that assess the effectiveness of Application Control Center, interventions, programs, and devices VI. Award Administration Information Attention: (CFDA Number 84.133B– using rigorous methods. 9), 550 12th Street, SW., Room 7041, 1. Award Notices: If your application • The number of new or improved Potomac Center Plaza, Washington, is successful, we notify your U.S. NIDRR-funded assistive and universally DC 20202–4260. Representative and U.S. Senators and designed technologies, products, and The Application Control Center send you a Grant Award Notification devices transferred to industry for accepts hand deliveries daily between (GAN). We may notify you informally, potential commercialization. 8:00 a.m. and 4:30:00 p.m., Washington, also. Each grantee must annually report on DC time, except Saturdays, Sundays, If your application is not evaluated or its performance through NIDRR’s and Federal holidays. not selected for funding, we notify you. Annual Performance Report (APR) form. 2. Administrative and National Policy Note for Mail or Hand Delivery of Paper NIDRR uses APR information submitted Applications: If you mail or hand deliver Requirements: We identify by grantees to assess progress on these your application to the Department— administrative and national policy measures. (1) You must indicate on the envelope requirements in the application package and—if not provided by the Department—in and reference these and other VII. Agency Contact Item 11 of the SF 424 the CFDA number, requirements in the Applicable FOR FURTHER INFORMATION CONTACT: including suffix letter, if any, of the Regulations section of this notice. Donna Nangle, U.S. Department of competition under which you are submitting We reference the regulations outlining your application; and Education, 400 Maryland Avenue, SW., the terms and conditions of an award in Room 6029, PCP, Washington, DC (2) The Application Control Center will the Applicable Regulations section of mail to you a notification of receipt of your 20202. Telephone: (202) 245–7462 or by grant application. If you do not receive this this notice and include these and other e-mail: [email protected]. grant notification within 15 business days specific conditions in the GAN. The If you use a TDD, call the Federal from the application deadline date, you GAN also incorporates your approved Relay Service (FRS), toll free, at 1–800– should call the U.S. Department of Education application as part of your binding 877–8339. Application Control Center at (202) 245– commitments under the grant. 6288. 3. Reporting: At the end of your VIII. Other Information project period, you must submit a final Accessible Format: Individuals with V. Application Review Information performance report, including financial disabilities can obtain this document 1. Selection Criteria: The selection information, as directed by the and a copy of the application package in criteria for this competition are from 34 Secretary. If you receive a multi-year an accessible format (e.g., braille, large CFR 350.54 and are listed in the award, you must submit an annual print, audiotape, or computer diskette) application package. performance report that provides the by contacting the Grants and Contracts 2. Review and Selection Process: most current performance and financial Services Team, U.S. Department of Additional factors we consider in expenditure information as directed by Education, 400 Maryland Avenue, SW., determining the merits of an application the Secretary under 34 CFR 75.118. The Room 5075, PCP, Washington, DC are as follows— Secretary may also require more 20202–2550. Telephone: (202) 245– The Secretary is interested in frequent performance reports under 34 7363. If you use a TDD, call the FRS, outcomes-oriented research or CFR 75.720(c). For specific toll-free, at 1–800–877–8339. development projects that use rigorous requirements on reporting, please go to Electronic Access to This Document: scientific methodologies. To address http://www.ed.gov/fund/grant/apply/ You can view this document, as well as this interest, applicants are encouraged appforms/appforms.html. all other documents of this Department to articulate goals, objectives, and Note: NIDRR will provide information by published in the Federal Register, in expected outcomes for the proposed letter to grantees on how and when to submit text or Adobe Portable Document research or development activities. the final performance report. Format (PDF) on the Internet at the Proposals should describe how results 4. Performance Measures: To evaluate following site: http://www.ed.gov/news/ and planned outputs are expected to the overall success of its research fedregister. contribute to advances in knowledge, program, NIDRR assesses the quality of To use PDF you must have Adobe improvements in policy and practice, its funded projects through a review of Acrobat Reader, which is available free and public benefits for individuals with grantee performance and products. Each at this site. If you have questions about disabilities. Applicants should propose year, NIDRR examines a portion of its using PDF, call the U.S. Government projects that are designed to be grantees to determine: Printing Office (GPO), toll free, at 1– consistent with these goals. We • The percentage of NIDRR-supported 888–293–6498; or in the Washington, encourage applicants to include in their fellows, post-doctoral trainees, and DC, area at (202) 512–1530. application a description of how results doctoral students who publish results of Note: The official version of this document will measure progress towards NIDRR-sponsored research in refereed is the document published in the Federal achievement of anticipated outcomes journals. Register. Free Internet access to the official (including a discussion of the proposed • The number of accomplishments edition of the Federal Register and the Code measures of effectiveness), the (e.g., new or improved tools, methods, of Federal Regulations is available on GPO mechanisms that will be used to discoveries, standards, interventions, Access at: http://www.gpoaccess.gov/nara/ evaluate outcomes associated with programs, or devices) developed or index.html. specific problems or issues, and how the tested with NIDRR funding that have Delegation of Authority: The Secretary proposed activities will support new been judged by expert panels to be of of Education has delegated authority to intervention approaches and strategies. high quality and to advance the field. Andrew J. Pepin, Executive Submission of the information • The average number of publications Administrator for the Office of Special identified in this section V.2. Review per award based on NIDRR-funded Education and Rehabilitative Services,

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to perform the functions of the Assistant Disability and Rehabilitation Research IV. Application and Submission Secretary for Special Education and Projects and Centers program, published Information Rehabilitative Services. elsewhere in this issue of the Federal 1. Address to Request Application Dated: July 15, 2009. Register. Package: Education Publications Center Andrew J. Pepin, Absolute Priorities: For FY 2009, these (ED Pubs), P.O. Box 1398, Jessup, MD priorities are absolute priorities. Under Executive Administrator for Special 20794–1398. Telephone, toll free: 1– Education and Rehabilitative Services. 34 CFR 75.105(c)(3) we consider only 877–433–7827. FAX: (301) 470–1244. If applications that meet these priorities. [FR Doc. E9–17232 Filed 7–20–09; 8:45 am] you use a telecommunications device These priorities are: BILLING CODE 4000–01–P for the deaf (TDD), call, toll free: 1–877– General Rehabilitation Research and 576–7734. Training Centers (RRTC) Requirements You can contact ED Pubs at its Web DEPARTMENT OF EDUCATION and Enhancing the Health and Wellness site, also: http://www.ed.gov/pubs/ of Individuals with Neuromuscular edpubs.html or at its e-mail address: Office of Special Education and Diseases. [email protected]. Rehabilitative Services; Overview If you request an application package Information; National Institute on Note: The full text of each of these from ED Pubs, be sure to identify this Disability and Rehabilitation Research priorities is included in its notice of final program or competition as follows: (NIDRR)—Disability and Rehabilitation priorities in the Federal Register and in the CFDA number 84.133B–10. Research Projects and Centers applicable application package. Individuals with disabilities can Program—Rehabilitation Research and obtain a copy of the application package Training Centers (RRTCs)—Enhancing Program Authority: 29 U.S.C. 762(g) and 764(b)(2). in an accessible format (e.g., braille, the Health and Wellness of Individuals large print, audiotape, or computer Applicable Regulations: (a) The With Neuromuscular Diseases diskette) by contacting the person or Education Department General team listed under Accessible Format in Notice inviting applications for new Administrative Regulations (EDGAR) in section VIII of this notice. awards for fiscal year (FY) 2009. 34 CFR parts 74, 75, 77, 80, 81, 82, 84, 2. Content and Form of Application 85, 86, and 97. (b) The regulations for Catalog of Federal Domestic Assistance Submission: Requirements concerning this program in 34 CFR part 350. (c) The (CFDA) Number: 84.133B–10. the content of an application, together notice of final priorities for the DATES: with the forms you must submit, are in Disability and Rehabilitation Research Applications Available: July 21, 2009. the application package for this Projects and Centers program, published Date of Pre-Application Meeting: July competition. in the Federal Register on February 1, 21, 2009. Page Limit: The application narrative 2008 (73 FR 6132). (d) The notice of Deadline for Transmittal of (Part III of the application) is where you, final priorities for the Disability and Applications: September 4, 2009. the applicant, address the selection Rehabilitation Research Projects and criteria that reviewers use to evaluate Full Text of Announcement Centers program, published elsewhere your application. We recommend that in this issue of the Federal Register. I. Funding Opportunity Description you limit Part III to the equivalent of no Purpose of Program: The purpose of Note: The regulations in 34 CFR part 86 more than 125 pages, using the the RRTC program is to improve the apply to institutions of higher education following standards: effectiveness of services authorized (IHEs) only. • A ‘‘page’’ is 8.5″ × 11″, on one side under the Rehabilitation Act of 1973, as only, with 1″ margins at the top, bottom, II. Award Information amended, through advanced research, and both sides. training, technical assistance, and Type of Award: Discretionary grants. • Double space (no more than three dissemination activities in general Estimated Available Funds: $700,000. lines per vertical inch) all text in the problem areas, as specified by NIDRR. Maximum Award: We will reject any application narrative. Single spacing Such activities are designed to benefit application that proposes a budget may be used for titles, headings, rehabilitation service providers, exceeding $700,000 for a single budget footnotes, quotations, references, and individuals with disabilities, and the period of 12 months. The Assistant captions, as well as all text in charts, family members or other authorized Secretary for Special Education and tables, figures, and graphs. representatives of individuals with Rehabilitative Services may change the • Use a font that is either 12 point or disabilities. maximum amount through a notice larger or no smaller than 10 pitch Additional information on the RRTC published in the Federal Register. (characters per inch). • program can be found at: http:// Estimated Number of Awards: 1. Use one of the following fonts: www.ed.gov/rschstat/research/pubs/res- Times New Roman, Courier, Courier program.html#RRTC. Note: The Department is not bound by any New, or Arial. An application submitted estimates in this notice. Priorities: NIDRR has established two in any other font (including Times priorities for this competition. The Project Period: Up to 60 months. Roman or Arial Narrow) will not be General Rehabilitation Research and accepted. III. Eligibility Information Training Centers (RRTC) Requirements The recommended page limit does not priority is from the notice of final 1. Eligible Applicants: States; public apply to Part I, the cover sheet; Part II, priorities for the Disability and or private agencies, including for-profit the budget section, including the Rehabilitation Research Projects and agencies; public or private narrative budget justification; Part IV, Centers program, published in the organizations, including for-profit the assurances and certifications; or the Federal Register on February 1, 2008 organizations; IHEs; and Indian tribes one-page abstract, the resumes, the (73 FR 6132). The Enhancing the Health and tribal organizations. bibliography, or the letters of support. and Wellness of Individuals with 2. Cost Sharing or Matching: This However, the recommended page limit Neuromuscular Diseases priority is from competition does not require cost does apply to all of the application the notice of final priorities for the sharing or matching. narrative section (Part III).

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The application package will provide process, the individual’s application Sundays and 6:00 a.m. on Mondays, and instructions for completing all remains subject to all other between 7:00 p.m. on Wednesdays and components to be included in the requirements and limitations in this 6:00 a.m. on Thursdays, Washington, application. Each application must notice. DC time. Any modifications to these include a cover sheet (Standard Form 4. Intergovernmental Review: This hours are posted on the e-Grants Web 424); budget requirements (ED Form program is not subject to Executive site. 524) and narrative justification; other Order 12372 and the regulations in 34 • You will not receive additional required forms; an abstract, Human CFR part 79. point value because you submit your Subjects narrative, Part III narrative; 5. Funding Restrictions: We reference application in electronic format, nor resumes of staff; and other related regulations outlining funding will we penalize you if you qualify for materials, if applicable. restrictions in the Applicable an exception to the electronic 3. Submission Dates and Times: Regulations section in this notice. submission requirement, as described Applications Available: July 21, 2009. 6. Other Submission Requirements: elsewhere in this section, and submit Date of Pre-Application Meeting: Applications for grants under this your application in paper format. Interested parties are invited to competition must be submitted • You must submit all documents participate in a pre-application meeting electronically unless you qualify for an electronically, including all information and to receive information and technical exception to this requirement in you typically provide on the following assistance through individual accordance with the instructions in this forms: the Application for Federal consultation with NIDRR staff. The pre- section. Assistance (SF 424), the Department of application meeting will be held on July a. Electronic Submission of Education Supplemental Information for 21, 2009. Interested parties may Applications. SF 424, Budget Information—Non- participate in this meeting by Applications for grants under the Construction Programs (ED 524), and all conference call with NIDRR staff from Rehabilitation Research and Training necessary assurances and certifications. the Office of Special Education and Centers (RRTCs)—CFDA Number You must attach any narrative sections Rehabilitative Services between 1:00 84.133B–10 must be submitted of your application as files in a .DOC p.m. and 3:00 p.m., Washington, DC electronically using e-Application, (document), .RTF (rich text), or .PDF time. NIDRR staff also will be available accessible through the Department’s e- (Portable Document) format. If you from 3:30 p.m. to 4:30 p.m., Grants Web site at: http://e- upload a file type other than the three Washington, DC time, on the same day, grants.ed.gov. file types specified in this paragraph or by telephone, to provide information We will reject your application if you submit a password protected file, we and technical assistance through submit it in paper format unless, as will not review that material. individual consultation. For further described elsewhere in this section, you • Your electronic application must information or to make arrangements to qualify for one of the exceptions to the comply with any page limit participate in the meeting via electronic submission requirement and requirements described in this notice. conference call or for an individual submit, no later than two weeks before • Prior to submitting your electronic consultation, contact Donna Nangle, the application deadline date, a written application, you may wish to print a U.S. Department of Education, Potomac statement to the Department that you copy of it for your records. Center Plaza (PCP), Room 6029, 550 qualify for one of these exceptions. • After you electronically submit 12th Street, SW., Washington, DC Further information regarding your application, you will receive an 20202. Telephone: (202) 245–7462 or by calculation of the date that is two weeks automatic acknowledgment that will e-mail: [email protected]. before the application deadline date is include a PR/Award number (an Deadline for Transmittal of provided later in this section under identifying number unique to your Applications: September 4, 2009. Exception to Electronic Submission application). Applications for grants under this Requirement. • Within three working days after competition must be submitted While completing your electronic submitting your electronic application, electronically using the Electronic Grant application, you will be entering data fax a signed copy of the SF 424 to the Application System (e-Application) online that will be saved into a Application Control Center after accessible through the Department’s e- database. You may not e-mail an following these steps: Grants site. For information (including electronic copy of a grant application to (1) Print SF 424 from e-Application. dates and times) about how to submit us. (2) The applicant’s Authorizing your application electronically, or in Please note the following: Representative must sign this form. paper format by mail or hand delivery • You must complete the electronic (3) Place the PR/Award number in the if you qualify for an exception to the submission of your grant application by upper right hand corner of the hard- electronic submission requirement, 4:30 p.m., Washington, DC time, on the copy signature page of the SF 424. please refer to section IV.6. Other application deadline date. E- (4) Fax the signed SF 424 to the Submission Requirements of this notice. Application will not accept an Application Control Center at (202) We do not consider an application application for this competition after 245–6272. that does not comply with the deadline 4:30 p.m., Washington, DC time, on the • We may request that you provide us requirements. application deadline date. Therefore, we original signatures on other forms at a Individuals with disabilities who strongly recommend that you do not later date. need an accommodation or auxiliary aid wait until the application deadline date Application Deadline Date Extension in connection with the application to begin the application process. in Case of e-Application Unavailability: process should contact the person listed • The hours of operation of the e- If you are prevented from electronically under FOR FURTHER INFORMATION Grants Web site are 6:00 a.m. Monday submitting your application on the CONTACT in section VII of this notice. If until 7:00 p.m. Wednesday; and 6:00 application deadline date because e- the Department provides an a.m. Thursday until 8:00 p.m. Sunday, Application is unavailable, we will accommodation or auxiliary aid to an Washington, DC time. Please note that, grant you an extension of one business individual with a disability in because of maintenance, the system is day to enable you to transmit your connection with the application unavailable between 8:00 p.m. on application electronically, by mail, or by

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hand delivery. We will grant this Washington, DC 20202–2700. FAX: DC time, except Saturdays, Sundays, extension if— (202) 245–7323. and Federal holidays. (1) You are a registered user of e- Your paper application must be Note for Mail or Hand Delivery of Application and you have initiated an submitted in accordance with the mail Paper Applications: If you mail or hand electronic application for this or hand delivery instructions described deliver your application to the competition; and in this notice. Department— (2) (a) E-Application is unavailable for b. Submission of Paper Applications (1) You must indicate on the envelope 60 minutes or more between the hours by Mail. and—if not provided by the of 8:30 a.m. and 3:30 p.m., Washington, If you qualify for an exception to the Department—in Item 11 of the SF 424 DC time, on the application deadline electronic submission requirement, you the CFDA number, including suffix date; or may mail (through the U.S. Postal letter, if any, of the competition under (b) E-Application is unavailable for Service or a commercial carrier) your which you are submitting your any period of time between 3:30 p.m. application to the Department. You application; and and 4:30 p.m., Washington, DC time, on must mail the original and two copies (2) The Application Control Center the application deadline date. of your application, on or before the will mail to you a notification of receipt We must acknowledge and confirm application deadline date, to the of your grant application. If you do not these periods of unavailability before Department at the following address: receive this grant notification within 15 granting you an extension. To request U.S. Department of Education, business days from the application this extension or to confirm our Application Control Center, Attention: deadline date, you should call the U.S. acknowledgment of any system (CFDA Number 84.133B–10), LBJ Department of Education Application unavailability, you may contact either Basement Level 1, 400 Maryland Control Center at (202) 245–6288. (1) the person listed elsewhere in this Avenue, SW., Washington, DC 20202– V. Application Review Information notice under FOR FURTHER INFORMATION 4260. CONTACT (see VII. Agency Contact) or (2) You must show proof of mailing 1. Selection Criteria: The selection the e-Grants help desk at 1–888–336– consisting of one of the following: criteria for this competition are from 34 8930. If e-Application is unavailable (1) A legibly dated U.S. Postal Service CFR 350.54 and are listed in the due to technical problems with the postmark. application package. system and, therefore, the application (2) A legible mail receipt with the 2. Review and Selection Process: deadline is extended, an e-mail will be date of mailing stamped by the U.S. Additional factors we consider in sent to all registered users who have Postal Service. determining the merits of an application initiated an e-Application. Extensions (3) A dated shipping label, invoice, or are as follows— The Secretary is interested in referred to in this section apply only to receipt from a commercial carrier. outcomes-oriented research or the unavailability of e-Application. (4) Any other proof of mailing development projects that use rigorous Exception to Electronic Submission acceptable to the Secretary of the U.S. scientific methodologies. To address Requirement: You qualify for an Department of Education. this interest, applicants are encouraged exception to the electronic submission If you mail your application through to articulate goals, objectives, and requirement, and may submit your the U.S. Postal Service, we do not expected outcomes for the proposed application in paper format, if you are accept either of the following as proof research or development activities. unable to submit an application through of mailing: e-Application because— Proposals should describe how results • (1) A private metered postmark. You do not have access to the (2) A mail receipt that is not dated by and planned outputs are expected to Internet; or contribute to advances in knowledge, • the U.S. Postal Service. You do not have the capacity to If your application is postmarked after improvements in policy and practice, upload large documents to e- the application deadline date, we will and public benefits for individuals with Application; not consider your application. disabilities. Applicants should propose and projects that are designed to be • No later than two weeks before the Note: The U.S. Postal Service does not consistent with these goals. We application deadline date (14 calendar uniformly provide a dated postmark. Before encourage applicants to include in their days or, if the fourteenth calendar day relying on this method, you should check application a description of how results with your local post office. before the application deadline date will measure progress towards falls on a Federal holiday, the next c. Submission of Paper Applications achievement of anticipated outcomes business day following the Federal by Hand Delivery. (including a discussion of the proposed holiday), you mail or fax a written If you qualify for an exception to the measures of effectiveness), the statement to the Department, explaining electronic submission requirement, you mechanisms that will be used to which of the two grounds for an (or a courier service) may deliver your evaluate outcomes associated with exception prevents you from using the paper application to the Department by specific problems or issues, and how the Internet to submit your application. If hand. You must deliver the original and proposed activities will support new you mail your written statement to the two copies of your application, by hand, intervention approaches and strategies. Department, it must be postmarked no on or before the application deadline Submission of the information later than two weeks before the date, to the Department at the following identified in this section V. 2. Review application deadline date. If you fax address: and Selection Process is voluntary, your written statement to the U.S. Department of Education, except where required by the selection Department, we must receive the faxed Application Control Center, Attention: criteria listed in the application statement no later than two weeks (CFDA Number 84.133B–10), 550 12th package. before the application deadline date. Street, SW., Room 7041, Potomac Center Address and mail or fax your Plaza, Washington, DC 20202–4260. VI. Award Administration Information statement to: Donna Nangle, U.S. The Application Control Center 1. Award Notices: If your application Department of Education, 400 Maryland accepts hand deliveries daily between is successful, we notify your U.S. Avenue, SW., Room 6030 PCP, 8:00 a.m. and 4:30 p.m., Washington, Representative and U.S. Senators and

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send you a Grant Award Notification designed technologies, products, and Dated: July 15, 2009. (GAN). We may notify you informally, devices transferred to industry for Andrew J. Pepin, also. potential commercialization. Executive Administrator for Special If your application is not evaluated or Each grantee must annually report on Education and Rehabilitative Services. not selected for funding, we notify you. its performance through NIDRR’s [FR Doc. E9–17231 Filed 7–20–09; 8:45 am] 2. Administrative and National Policy Annual Performance Report (APR) form. BILLING CODE 4000–01–P Requirements: We identify NIDRR uses APR information submitted administrative and national policy by grantees to assess progress on these requirements in the application package measures. DEPARTMENT OF EDUCATION and reference these and other requirements in the Applicable VII. Agency Contact National Institute on Disability and Regulations section of this notice. Rehabilitation Research (NIDRR)— We reference the regulations outlining FOR FURTHER INFORMATION CONTACT: Disability and Rehabilitation Research the terms and conditions of an award in Donna Nangle, U.S. Department of Projects and Centers Program— the Applicable Regulations section of Education, 400 Maryland Avenue, SW., Rehabilitation Research and Training this notice and include these and other Room 6029, PCP, Washington, DC Centers (RRTCs) Catalog of Federal specific conditions in the GAN. The 20202. Telephone: (202) 245–7462 or by Domestic Assistance (CFDA) Number: GAN also incorporates your approved e-mail: [email protected]. 84.133B. application as part of your binding If you use a TDD, call the Federal commitments under the grant. AGENCY: Office of Special Education and 3. Reporting: At the end of your Relay Service (FRS), toll free, at 1–800– Rehabilitative Services (OSERS), project period, you must submit a final 877–8339. Department of Education. performance report, including financial VIII. Other Information ACTION: Notice of final priorities. information, as directed by the SUMMARY: The Assistant Secretary for Secretary. If you receive a multi-year Accessible Format: Individuals with Special Education and Rehabilitative award, you must submit an annual disabilities can obtain this document Services announces two priorities under performance report that provides the and a copy of the application package in most current performance and financial an accessible format (e.g., braille, large the RRTC program administered by expenditure information as directed by print, audiotape, or computer diskette) NIDRR. The Assistant Secretary may use the Secretary under 34 CFR 75.118. The by contacting the Grants and Contracts one or both of these priorities for Secretary may also require more Services Team, U.S. Department of competitions in fiscal year (FY) 2009 frequent performance reports under 34 Education, 400 Maryland Avenue, SW., and later years. We take this action to CFR 75.720(c). For specific Room 5075, PCP, Washington, DC focus research attention on areas of requirements on reporting, please go to 20202–2550. Telephone: (202) 245– national need. We intend these http://www.ed.gov/fund/grant/apply/ 7363. If you use a TDD, call the FRS, priorities to improve rehabilitation appforms/appforms.html. toll-free, at 1–800–877–8339. services and outcomes for individuals with disabilities. Electronic Access to This Document: DATES: Effective Date: These priorities Note: NIDRR will provide information by You can view this document, as well as are effective August 20, 2009. letter to grantees on how and when to submit all other documents of this Department FOR FURTHER INFORMATION CONTACT: the final performance report. published in the Federal Register, in Donna Nangle, U.S. Department of 4. Performance Measures: To evaluate text or Adobe Portable Document Education, 400 Maryland Avenue, SW., the overall success of its research Format (PDF) on the Internet at the Room 6029, Potomac Center Plaza program, NIDRR assesses the quality of following site: http://www.ed.gov/news/ (PCP), Washington, DC 20202–2700. its funded projects through a review of fedregister. Telephone: (202) 245–7462 or by e-mail: grantee performance and products. Each To use PDF you must have Adobe year, NIDRR examines a portion of its [email protected]. Acrobat Reader, which is available free If you use a telecommunications grantees to determine: at this site. If you have questions about • The percentage of NIDRR-supported device for the deaf (TDD), call the using PDF, call the U.S. Government fellows, post-doctoral trainees, and Federal Relay Service (FRS), toll free, at Printing Office (GPO), toll free, at 1– doctoral students who publish results of 1–800–877–8339. 888–293–6498; or in the Washington, NIDRR-sponsored research in refereed SUPPLEMENTARY INFORMATION: This DC, area at (202) 512–1530. journals. notice of final priorities is in concert • The number of accomplishments with NIDRR’s Final Long-Range Plan for FY 2005–2009 (Plan). The Plan, which (e.g., new or improved tools, methods, Note: The official version of this document discoveries, standards, interventions, is the document published in the Federal was published in the Federal Register programs, or devices) developed or Register. Free Internet access to the official on February 15, 2006 (71 FR 8165), can tested with NIDRR funding that have edition of the Federal Register and the Code be accessed on the Internet at the been judged by expert panels to be of of Federal Regulations is available on GPO following site: http://www.ed.gov/ high quality and to advance the field. Access at: http://www.gpoaccess.gov/nara/ about/offices/list/osers/nidrr/ • The average number of publications index.html. policy.html. per award based on NIDRR-funded Through the implementation of the research and development activities in Delegation of Authority: The Secretary Plan, NIDRR seeks to: (1) Improve the refereed journals. of Education has delegated authority to quality and utility of disability and • The percentage of new NIDRR Andrew J. Pepin, Executive rehabilitation research; (2) foster an grants that assess the effectiveness of Administrator for the Office of Special exchange of expertise, information, and interventions, programs, and devices Education and Rehabilitative Services, training to facilitate the advancement of using rigorous methods. to perform the functions of the Assistant knowledge and understanding of the • The number of new or improved Secretary for Special Education and unique needs of traditionally NIDRR-funded assistive and universally Rehabilitative Services. underserved populations; (3) determine

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what are the best strategies and representatives, providers, and other (e.g., fitness, recreation, and nutrition). programs to improve rehabilitation interested parties; and Under this priority, the RRTC must be outcomes for underserved populations; • Serve as centers of national designed to contribute to the following (4) identify research gaps; (5) identify excellence in rehabilitation research for outcomes: mechanisms of integrating research and individuals with disabilities, their (a) Improved outcome measures for practice; and (6) disseminate findings. representatives, providers, and other use with individuals with NMDs. The Purpose of Program: The purpose of interested parties. RRTC must contribute to this outcome the Disability and Rehabilitation Applicants for RRTC grants must also by identifying or developing and testing Research Projects and Centers Program demonstrate in their applications how methods and measures to assess health is to plan and conduct research, they will address, in whole or in part, and rehabilitation outcomes, demonstration projects, training, and the needs of individuals with participation in community-based related activities, including disabilities from minority backgrounds. programs, or both. international activities, to develop Program Authority: 29 U.S.C. 762(g) (b) Improved medical rehabilitation or methods, procedures, and rehabilitation and 764(b)(2). community-based rehabilitation technology, that maximize the full Applicable Program Regulations: 34 interventions. The RRTC must inclusion and integration into society, CFR part 350. contribute to this outcome by employment, independent living, family We published a notice of proposed identifying or developing and testing support, and economic and social self- priorities (NPP) for NIDRR’s Disability new rehabilitation interventions, sufficiency of individuals with and Rehabilitation Research Projects replicating promising practices or disabilities, especially individuals with and Centers Program in the Federal programs, or both. Register on August 31, 2007 (72 FR the most severe disabilities, and to Priority 2—Enhancing the Health and 50516). The NPP included a background improve the effectiveness of services Wellness of Individuals With Arthritis. statement that described our rationale authorized under the Rehabilitation Act The Assistant Secretary for Special for each priority proposed in that notice, of 1973, as amended. Education and Rehabilitative Services including the two priorities announced establishes a priority for a Rehabilitation RRTC Program in this notice. Research and Training Center (RRTC) on There are no differences between the The purpose of the RRTC program is Enhancing the Health and Wellness of two final priorities announced in this to improve the effectiveness of services Individuals with Arthritis. This RRTC notice and the version of these priorities authorized under the Rehabilitation Act must conduct rigorous research, proposed in the NPP. of 1973, as amended, through advanced Public Comment: In response to our training, technical assistance, and research, training, technical assistance, invitation in the NPP, 90 parties dissemination activities to improve and dissemination activities in general submitted comments on the proposed rehabilitation outcome measures and problem areas, as specified by NIDRR. priorities. Because none of these rehabilitation interventions that can be Such activities are designed to benefit comments involved the two priorities applied in clinical or community-based rehabilitation service providers, announced in this notice, we do not settings. individuals with disabilities, and the address any comments here. (In a notice In doing so, the RRTC must focus on family members or other authorized of final priorities, published in the no more than two of the following representatives of individuals with Federal Register on February 1, 2008 dimensions: Prevention or reduction of disabilities. In addition, NIDRR intends (73 FR 6132), the Department responded secondary conditions (e.g., pain, fatigue, to require all RRTC applicants to meet to all comments on priorities from the depression); improved mobility; the requirements of the General NPP that were included in that February emotional well-being; and access to Rehabilitation Research and Training 1, 2008 notice.) community-based health promotion Centers (RRTC) Requirements priority Final Priorities: services and programs (e.g., fitness, that it published in a notice of final Priority 1—Enhancing the Health and recreation, and nutrition). Under this priorities in the Federal Register on Wellness of Individuals With priority, the RRTC must be designed to February 1, 2008 (73 FR 6132). Neuromuscular Diseases. contribute to the following outcomes: Additional information on the RRTC The Assistant Secretary for Special (a) Improved outcome measures for program can be found at: http:// Education and Rehabilitative Services use with persons with arthritis. The www.ed.gov/rschstat/research/pubs/res- establishes a priority for a Rehabilitation RRTC must contribute to this outcome program.html#RRTC. Research and Training Center (RRTC) on by identifying or developing and testing Statutory and Regulatory Requirements Enhancing the Health and Wellness of methods and measures to assess health of RRTCs Persons with Neuromuscular Diseases and rehabilitation outcomes, (NMDs). This RRTC must conduct participation in community-based RRTCs must— rigorous research, training, technical programs, or both. • Carry out coordinated advanced assistance, and dissemination activities (b) Improved medical rehabilitation or programs of rehabilitation research; to improve rehabilitation outcome community-based rehabilitation • Provide training, including measures and rehabilitation interventions. The RRTC must graduate, pre-service, and in-service interventions that can be applied in contribute to this outcome by training, to help rehabilitation clinical or community-based settings. identifying or developing and testing personnel more effectively provide In doing so, the RRTC must focus on new rehabilitation interventions, rehabilitation services to individuals no more than two of the following replicating promising practices or with disabilities; dimensions: Prevention or reduction of programs, or both. • Provide technical assistance to secondary conditions (e.g., pain, fatigue, Types of Priorities: individuals with disabilities, their muscle weakness, associated sleep When inviting applications for a representatives, providers, and other disorders, metabolic complications); competition using one or more interested parties; improved mobility; emotional well- priorities, we designate the type of each • Disseminate informational materials being; and access to community-based priority as absolute, competitive to individuals with disabilities, their health promotion services and programs preference, or invitational through a

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notice in the Federal Register. The individuals with disabilities. These new DEPARTMENT OF ENERGY effect of each type of priority follows: RRTCs will generate, disseminate, and [Case No. CAC–015] Absolute priority: Under an absolute promote the use of new information that priority, we consider only applications will improve the options for individuals Energy Conservation Program for that meet the priority (34 CFR with disabilities to achieve improved Consumer Products: Notice of 75.105(c)(3)). education, employment, and Modification of Petition for Waiver and Competitive preference priority: independent living outcomes. Interim Waiver of Mitsubishi Electric Under a competitive preference priority, Accessible Format: Individuals with From the Department of Energy we give competitive preference to an Commercial Package Water-Source application by (1) awarding additional disabilities can obtain this document in an accessible format (e.g., braille, large Heat Pump Test Procedure, and points, depending on the extent to Modification of Interim Waiver which the application meets the priority print, audiotape, or computer diskette) (34 CFR 75.105(c)(2)(i)); or (2) selecting by contacting the Grants and Contracts AGENCY: Office of Energy Efficiency and an application that meets the priority Services Team, U.S. Department of Renewable Energy, Department of over an application of comparable merit Education, 400 Maryland Avenue, SW., Energy. that does not meet the priority (34 CFR Room 5075, PCP, Washington, DC ACTION: Notice of modification of 75.105(c)(2)(ii)). 20202–2550. Telephone: (202) 245– interim waiver; request for comments. Invitational priority: Under an 7363. If you use a TDD, call the FRS, toll invitational priority, we are particularly free, at 1–800–877–8339. SUMMARY: Today’s notice announces interested in applications that meet the Electronic Access to This Document: receipt of and publishes a revised list of model numbers for which Mitsubishi priority. However, we do not give an You can view this document, as well as Electric & Electronics USA, Inc. application that meets the priority a all other documents of this Department preference over other applications (34 (‘‘Mitsubishi’’) received an interim published in the Federal Register, in CFR 75.105(c)(1)). waiver of the test procedures applicable text or Adobe Portable Document This notice does not preclude us from to commercial package water-source proposing additional priorities, Format (PDF) on the Internet at the heat pumps. In addition, Mitsubishi has requirements, definitions, or selection following site: http://www.ed.gov/news/ proposed that the definition of ‘‘tested criteria, subject to meeting applicable fedregister. combination,’’ used in the alternate test rulemaking requirements. To use PDF you must have Adobe procedure, be refined based upon the Note: This notice does not solicit Acrobat Reader, which is available free AHRI Draft Standard 1230. Through this applications. In any year in which we choose at this site. If you have questions about document, DOE is soliciting comments to use these priorities, we invite applications using PDF, call the U.S. Government with respect to the Mitsubishi Petition. through a notice in the Federal Register. Printing Office (GPO), toll free, at 1– DATES: DOE will accept comments, data, Executive Order 12866: This notice 888–293–6498; or in the Washington, and information with respect to the has been reviewed in accordance with DC, area at (202) 512–1530. Mitsubishi Petition until, but no later Executive Order 12866. Under the terms than August 20, 2009. of the order, we have assessed the ADDRESSES: You may submit comments, Note: The official version of this document potential costs and benefits of this final identified by case number ‘‘CAC–015,’’ is the document published in the Federal regulatory action. by any of the following methods: Register. Free Internet access to the official The potential costs associated with • Federal eRulemaking Portal: http:// edition of the Federal Register and the Code this final regulatory action are those www.regulations.gov. Follow the of Federal Regulations is available on GPO resulting from statutory requirements instructions for submitting comments. Access at: http://www.gpoaccess.gov/nara/ • E-mail: and those we have determined as index.html. necessary for administering this [email protected]. program effectively and efficiently. Delegation of Authority: The Secretary Include either the case number [CAC– In assessing the potential costs and of Education has delegated authority to 015], and/or ‘‘Mitsubishi Petition’’ in benefits—both quantitative and Andrew J. Pepin, Executive the subject line of the message. • qualitative—of this final regulatory Administrator for the Office of Special Mail: Ms. Brenda Edwards, U.S. action, we have determined that the Education and Rehabilitative Services, Department of Energy, Building benefits of the final priorities justify the to perform the functions of the Assistant Technologies Program, Mailstop EE–2J/ 1000 Independence Avenue, SW., costs. Secretary for Special Education and We have determined, also, that this Washington, DC 20585–0121. Rehabilitative Services. final regulatory action does not unduly Telephone: (202) 586–2945. Please interfere with State, local, and tribal Dated: July 15, 2009. submit one signed original paper copy. governments in the exercise of their Andrew J. Pepin, • Hand Delivery/Courier: Ms. Brenda governmental functions. Executive Administrator for Special Edwards, U.S. Department of Energy, Summary of potential costs and Education and Rehabilitative Services. Building Technologies Program, 950 benefits: [FR Doc. E9–17233 Filed 7–20–09; 8:45 am] L’Enfant Plaza SW., Suite 600, The benefits of the RRTC program Washington, DC 20024. Please submit BILLING CODE 4000–01–P have been well-established over the one signed original paper copy. years in that other RRTC projects have Instructions: All submissions received been completed successfully. The must include the agency name and case priorities announced in this notice will number for this proceeding. Submit generate new knowledge through electronic comments in WordPerfect, research and development activities. Microsoft Word, Portable Document Another benefit of these final Format (PDF), or text (American priorities is that establishing new Standard Code for Information RRTCs will improve the lives of Interchange (ASCII)) file format and

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avoid the use of special characters or II. Modified Petition for Waiver of Test Mitsubishi’s modified list of products any form of encryption. Wherever Procedure and Application for Interim for which a waiver is requested, and for possible, include the electronic Waiver which a waiver can be granted, follows: signature of the author. DOE does not III. Alternate Test Procedure CITY MULTI Variable Refrigerant IV. Discussion accept telefacsimiles (faxes). Flow Zoning System Outdoor Any person submitting written I. Background Equipment: comments must also send a copy of WY–Series (PQHY) 208/230–3–60 and such comments to the petitioner, On October 30, 2006, Mitsubishi 460–3–60 split-system, water-sourced, pursuant to 10 CFR 431.401(d). The submitted a Petition for Waiver and an variable-speed heat pumps with contact information for the petitioner is: Application for Interim Waiver from the individual model nominal cooling Mr. William Rau, Senior Vice President test procedures applicable to its water- capacities of 72,000, 96,000, 108,000 and General Manager, HVAC Advanced source WR2 and WY series models from and 120,000 Btu/h. Products Division, Mitsubishi Electric & its CITY MULTI VRFZ line of WR2–Series (PQRY) 208/230–3–60 Electronics USA, Inc., 4300 commercial package heat pump and 460–3–60 split-system, water- Lawrenceville-Suwanee Road, Suwanee, equipment. On April 9, 2007, DOE sourced, variable-speed heat pumps GA 30024. published Mitsubishi’s Petition for with heat recovery and with individual According to 10 CFR 1004.11, any Waiver for commercial package water- model nominal cooling capacities of person submitting information that he source heat pumps in the Federal 72,000, 96,000, 108,000 and 120,000 or she believes to be confidential and Register. 72 FR 17533 (April 9, 2007). In Btu/h. exempt by law from public disclosure the April 9, 2007 notice, DOE granted CITY MULTI Variable Refrigerant should submit two copies to DOE: one Mitsubishi’s Application for Interim Flow Zoning System Indoor Equipment: copy of the document including all the Waiver. P*FY models, ranging from 6,000 to information believed to be confidential, II. Modified Petition for Waiver of Test 48,000 Btu/h, 208/230–1–60 and from and one copy of the document with the Procedure and Application for Interim 72,000 to 120,000 Btu/h, 208/230–3– information believed to be confidential Waiver 60 split system variable-capacity air deleted. DOE will make its own conditioner or heat pump. determination about the confidential On July 30, 2008, Mitsubishi informed PCFY Series—Ceiling Suspended—with status of the information and treat it DOE that after it filed its Petition for capacities of 12/18/24/30/36 MBtu/h. according to its determination. Waiver in October 2006, it developed PDFY Series—Ceiling Concealed Docket: For access to the docket to additional basic models in the WR2 and Ducted—with capacities of 06/08/12/ review the background documents WY product line. These products are 15/18/24/27/30/36/48 MBtu/h. relevant to this matter, you may visit the similar to the basic models listed in PEFY Series—Ceiling Concealed Ducted U.S. Department of Energy, 950 L’Enfant Mitsubishi’s Petition for Waiver except (Low Profile)—with capacities of 06/ Plaza SW., (Resource Room of the that they have different capacities (the 08/12/18/24 MBtu/h. Building Technologies Program), capacities of these new models fall PEFY Series—Ceiling Concealed Ducted Washington, DC 20024; (202) 586–2945, within the applicable range of capacities (Alternate High Static Option)—with between 9 a.m. and 4 p.m., Monday for the ISO 13256–1 (1998) test capacities of 15/18/24/27/30/36/48/ through Friday, except Federal holidays. procedure). The new outdoor models 54/72/96 MBtu/h. Available documents include the also have the additional ability to PEFY–F Series—Ceiling Concealed following items: (1) This notice; (2) connect multiple outdoor units together Ducted (100% OA Option)—with public comments received; (3) the to create larger capacity systems. capacities of 30/54/72/96/120 MBtu/ h. Petition for Waiver and Application for Therefore, Mitsubishi requested that Interim Waiver; and (4) prior DOE PFFY Series—Floor Standing DOE include these additional models in (Concealed)—with capacities of 06/ rulemakings regarding similar central the list of basic models for which the air conditioning and heat pump 08/12/15/18/24 MBtu/h. interim waiver was granted. In addition, PFFY Series—Floor Standing equipment. Please call Ms. Brenda Mitsubishi requested that DOE include Edwards at the above telephone number (Exposed)—with capacities of 06/08/ these additional basic models in the list 12/15/18/24 MBtu/h. for additional information regarding of models contained in the Petition for visiting the Resource Room. PKFY Series—Wall-Mounted—with Waiver. These additional products have capacities of 06/08/12/18/24/30 FOR FURTHER INFORMATION CONTACT: Dr. the ability to connect multiple outdoor MBtu/h. Michael G. Raymond, U.S. Department units together to create larger capacity PLFY Series—4–Way Airflow Ceiling of Energy, Building Technologies systems, up to 240,000 Btu/hr. Cassette—with capacities of 12/18/24/ Program, Mail Stop EE–2J, Forrestal Connecting two of the smallest capacity 30/36 MBtu/h. Building, 1000 Independence Avenue, (72,000 Btu/h) outdoor units results in PMFY Series—1–Way Airflow Ceiling SW., Washington, DC 20585–0121. a system capacity of 144,000 Btu/h, Cassette—with capacities of 06/08/12/ Telephone: (202) 586–9611. E-mail: which is above the maximum 135,000 15 MBtu/h. [email protected]. Btu/h covered by the DOE test Ms. Francine Pinto or Mr. Michael procedure. The multiple-outdoor-unit III. Alternate Test Procedure Kido, U.S. Department of Energy, Office feature is therefore not relevant to this Mitsubishi’s July 30, 2008 petition to of the General Counsel, Mail Stop GC– waiver because the resulting system extend its Interim Waiver also contains 72, Forrestal Building, 1000 capacities are outside the capacity range a modification to the alternate test Independence Avenue, SW., of the DOE test procedure for water- procedure published April 9, 2007. 72 Washington, DC 20585–0103. source central air conditioners and FR 17533. It contains a proposed, new Telephone: (202) 586–9507. E-mail: central air conditioning heat pumps. definition of the term ‘‘tested [email protected] or This waiver only covers systems with combination.’’ This proposed definition [email protected]. nominal cooling capacities less than is the same as the one in Draft AHRI SUPPLEMENTARY INFORMATION: 135,000 Btu/hr, which does not include 1230, ‘‘Performance Rating of Variable I. Background any combined units. Refrigerant Flow (VRF) Multi-Split Air-

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Conditioning and Heat Pump.’’ This Ketchikan Recording District, First the ‘‘eLibrary’’ link of Commission’s definition allows for systems with Judicial District, near Hyder, Alaska. Web site at http://www.ferc.gov/docs- multiple outdoor units and has other The project would occupy federal lands filing/elibrary.asp. Enter the docket differences for systems with nominal within the Tongass National Forest. The number (P–13528) in the docket number cooling capacities greater than 150,000 sole purpose of a preliminary permit, if field to access the document. For Btu/h. However, for the waiver under issued, is to grant the permit holder assistance, call toll-free 1–866–208– consideration here, which does not priority to file a license application 3372. apply to systems with multiple outdoor during the permit term. A preliminary Kimberly D. Bose, units, nor to systems with cooling permit does not authorize the permit capacities greater than 135,000 Btu/h, holder to perform any land disturbing Secretary. the only change in the definition of activities or otherwise enter upon lands [FR Doc. E9–17237 Filed 7–20–09; 8:45 am] ‘‘tested combination’’ that is relevant is or waters owned by others without the BILLING CODE 6717–01–P its reference to ‘‘capacity’’ is changed to owners’ express permission. ‘‘nominal cooling capacity.’’ This does The proposed project would consist not substantially alter the original of: (1) A proposed concrete dam with a DEPARTMENT OF ENERGY definition, but only clarifies it. maximum height of 160 feet; (2) a proposed storage reservoir with a Federal Energy Regulatory IV. Discussion normal water surface area of 950 acres, Commission The Department has reviewed an active storage capacity of Combined Notice of Filings # 1 Mitsubishi’s Initial Petition and its approximately 60,000 acre-feet, and a request to revise the list of model gross storage capacity of approximately July 10, 2009. numbers for which Mitsubishi requested 74,000 acre-feet; (3) a proposed 12-foot- Take notice that the Commission the waiver and interim waiver. The diameter, 12,000-foot-long penstock; (4) received the following electric rate modified model list does not reflect any a proposed powerhouse containing 2 filings: changes to the models listed in generating units with a total installed Docket Numbers: ER98–4515–010. Mitsubishi’s Initial Petition with respect capacity of 75 megawatts; (5) an open Applicants: Cadillac Renewable to the properties making them eligible channel tailrace; (6) a 138-kilovolt, 9.72 Energy LLC; Escanaba Paper Company. for a waiver, which involved testing mile-long submarine cable transmission Description: Cadillac Renewable difficulties. Given that the modified list line connecting to the existing Energy LLC request for Category 1 Seller does not change in any way the basis for interconnection transmission system in designation in the Central region granting the interim waiver, DOE finds Hyder, and (7) appurtenant facilities. pursuant to section 35.36(a)(2) of the that it is appropriate that the interim The proposed Soule River Hydroelectric FERC’s regulations and the regional waiver granted on April 9, 2007, apply Project would have an average annual schedule set forth in Order 697–A. to the models listed in the Modified generation of 270 gigawatt-hours. Filed Date: 06/30/2009. Petition. DOE thus clarifies that the Applicant Contact: Mr. Norman Accession Number: 20090701–0012. April 9, 2007, interim waiver applies to Gross, Director, Soule Hydro LLC, 11978 Comment Date: 5 p.m. Eastern Time the models listed in the Modified Artery Drive, Fairfax, VA 22030; phone: on Tuesday, July 21, 2009. (703) 751–2200. Mr. Bob Grimm, Alaska Petition, and that DOE will use the Docket Numbers: ER09–1075–004. modified list of model numbers in any Power and Telephone Company, P.O. Box 3222, 193 Otto Street, Port Applicants: Falcon Energy LLC. future action on the pending Petition for Description: Falcon Energy, LLC Test Procedure Waiver. Townsend, WA 98368; phone: (360) 385–1733 x120. submits an Amended, Revised and Issued in Washington, DC, on July 9, 2009. FERC Contact: Gina Krump, (202) Restated Application for Market-Based Cathy Zoi, 502–6704, [email protected]. Rate Authorization and Request for Assistant Secretary, Energy Efficiency and Deadline for filing comments, motions Waivers and Blanket Authorizations and Renewable Energy. to intervene, competing applications Request for Expedited Treatment of [FR Doc. E9–17287 Filed 7–20–09; 8:45 am] (without notices of intent), or notices of Falcon Energy, LLC. Filed Date: 07/09/2009. BILLING CODE 6450–01–P intent to file competing applications: 60 days from the issuance of this notice. Accession Number: 20090709–0349. Comments, motions to intervene, Comment Date: 5 p.m. Eastern Time DEPARTMENT OF ENERGY notices of intent, and competing on Thursday, July 23, 2009. applications may be filed electronically Docket Numbers: ER09–1311–001. Federal Energy Regulatory via the Internet. See 18 CFR Applicants: Entergy Arkansas, Inc. Commission 385.2001(a)(1)(iii) and the instructions Description: Entergy Services, Inc on the Commission’s Web site under the submits a errata to its notice of [Project No. 13528–000] ‘‘e-Filing’’ link. If unable to be filed termination of Service Agreement No. 3. Soule Hydro LLC; Notice of electronically, documents may be paper- Filed Date: 07/01/2009. Preliminary Permit Application filed. To paper-file, an original and eight Accession Number: 20090702–0181. Accepted for Filing and Soliciting copies should be mailed to: Kimberly D. Comment Date: 5 p.m. Eastern Time Comments, Motions To Intervene, and Bose, Secretary, Federal Energy on Wednesday, July 22, 2009. Competing Applications Regulatory Commission, 888 First Docket Numbers: ER09–1283–001. Street, NE., Washington, DC 20426. For Applicants: The Energy Cooperative July 13, 2009. more information on how to submit of Pennsylvania. On July 1, 2009, Soule Hydro LLC these types of filings please go to the Description: Energy Cooperative of filed an application pursuant to section Commission’s Web site located at Pennsylvania, Inc submits an Amended 4(f) of the Federal Power Act to study http://www.ferc.gov/filing- Petition for Acceptance of Initial Tariff, the feasibility of the proposed Soule comments.asp. More information about waiver and Blanket Authority. River Hydroelectric Project No. 13528 this project, including a copy of the Filed Date: 07/09/2009. located on the Soule River, within the application, can be viewed or printed on Accession Number: 20090709–0348.

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Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time must create and validate an on Thursday, July 30, 2009. on Thursday, July 30, 2009. eRegistration account using the Docket Numbers: ER09–1415–000. Take notice that the Commission eRegistration link. Select the eFiling Applicants: ISO New England Inc. received the following open access link to log on and submit the Description: ISO New England Inc transmission tariff filings: intervention or protests. submits Filing of Installed Capacity Docket Numbers: OA07–39–005. Persons unable to file electronically Requirement, Hydro Quebec Applicants: Xcel Energy Services Inc. should submit an original and 14 copies Interconnection Capability Credits and Description: Supplemental Annual of the intervention or protest to the Related Values for the 2012–2013 Report of Penalty Distributions for Xcel Federal Energy Regulatory Commission, Capability Year. Energy Services Inc. under OA07–39, et 888 First St. NE., Washington, DC Filed Date: 07/07/2009. al. 20426. Accession Number: 20090708–0148. Filed Date: 07/07/2009. The filings in the above proceedings Comment Date: 5 p.m. Eastern Time Accession Number: 20090707–5068. are accessible in the Commission’s on Tuesday, July 28, 2009. Comment Date: 5 p.m. Eastern Time eLibrary system by clicking on the appropriate link in the above list. They Docket Numbers: ER09–1423–000. on Tuesday, July 28, 2009. are also available for review in the Applicants: Verde Energy USA, Inc. Docket Numbers: OA08–71–005. Commission’s Public Reference Room in Description: Verde Energy USA, Inc Applicants: Xcel Energy Services Inc. Washington, DC. There is an submits an application for authorization Description: Supplemental Annual eSubscription link on the Web site that to make wholesales sales of energy et al. Report of Penalty Distributions for Xcel enables subscribers to receive e-mail Filed Date: 07/08/2009. Energy Services Inc. under OA07–39, et notification when a document is added Accession Number: 20090709–0343. al. to a subscribed dockets(s). For Comment Date: 5 p.m. Eastern Time Filed Date: 07/07/2009. assistance with any FERC Online on Wednesday, July 29, 2009. Accession Number: 20090707–5068. Comment Date: 5 p.m. Eastern Time service, please e-mail Docket Numbers: ER09–1425–000. on Tuesday, July 28, 2009. [email protected]. or call Applicants: PacifiCorp. Take notice that the Commission (866) 208–3676 (toll free). For TTY, call Description: PacifiCorp submits (202) 502–8659. Notice of Cancellation for Service received the following public utility Agreement 550 under PacifiCorp’s holding company filings: Nathaniel J. Davis, Sr., Seventh Revised Volume 11 Open Docket Numbers: PH09–19–000. Deputy Secretary. Applicants: Keenan Fort Detrick Access Transmission Tariff etc. [FR Doc. E9–17219 Filed 7–20–09; 8:45 am] Energy, LLC. Filed Date: 07/09/2009. BILLING CODE 6717–01–P Accession Number: 20090709–0344. Description: Waiver Notification of Comment Date: 5 p.m. Eastern Time Keenan Fort Detrick Energy, LLC. Filed Date: 07/09/2009. on Thursday, July 30, 2009. DEPARTMENT OF ENERGY Accession Number: 20090709–5094. Docket Numbers: ER09–1426–000. Comment Date: 5 p.m. Eastern Time Federal Energy Regulatory Applicants: Lehman Brothers on Thursday, July 30, 2009. Commission Commodity Services Inc. Any person desiring to intervene or to Description: Lehman Brothers protest in any of the above proceedings Combined Notice of Filings # 1 Commodity Services Inc submits a must file in accordance with Rules 211 Notice of Cancellation of First Revised and 214 of the Commission’s Rules of July 9, 2009. FERC Electric Tariff 1 of LBCS. Practice and Procedure (18 CFR 385.211 Take notice that the Commission Filed Date: 07/09/2009. and 385.214) on or before 5 p.m. Eastern received the following electric corporate Accession Number: 20090709–0345. time on the specified comment date. It filings: Comment Date: 5 p.m. Eastern Time is not necessary to separately intervene Docket Numbers: EC07–30–002; on Thursday, July 30, 2009. again in a subdocket related to a EC09–65–001. Docket Numbers: ER09–1427–000. compliance filing if you have previously Applicants: KGen Hinds LLC, KGen Applicants: Southern Company intervened in the same docket. Protests Hot Spring LLC, KGen Murray I and II Services, Inc. will be considered by the Commission LLC, KGEN Sandersville LLC. Description: Southern Companies in determining the appropriate action to Description: Supplemental Filing of submits rollover network integration be taken, but will not serve to make KGen Hinds LLC, KGen Hot Spring LLC, transmission service agreement under protestants parties to the proceeding. KGen Murray I and II LLC and KGen the Open Access Transmission of Anyone filing a motion to intervene or Sandersville LLC. Southern Companies. protest must serve a copy of that Filed Date: 07/08/2009. Filed Date: 07/09/2009. document on the Applicant. In reference Accession Number: 20090708–5099. Accession Number: 20090709–0346. to filings initiating a new proceeding, Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time interventions or protests submitted on on Wednesday, July 29, 2009. on Thursday, July 30, 2009. or before the comment deadline need Take notice that the Commission Docket Numbers: ER09–1428–000. not be served on persons other than the received the following electric rate Applicants: Xcel Energy Operating Applicant. filings: Companies. The Commission encourages Docket Numbers: ER01–1099–013; Description: Xcel Energy Services Inc electronic submission of protests and ER02–1406–014; ER99–2928–010. submits the System Integration interventions in lieu of paper, using the Applicants: Cleco Power LLC; Acadia Coordination Services Agreement dated FERC Online links at http:// Power Partners, LLC; Cleco Evangeline as of 2/1/09 between the United States www.ferc.gov. To facilitate electronic LLC. et al. service, persons with Internet access Description: Cleco Companies submits Filed Date: 07/09/2009. who will eFile a document and/or be an updated market power analysis for Accession Number: 20090709–0347. listed as a contact for an intervenor the Cleco Companies, supporting

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continued allowance of market-based and 385.214) on or before 5 p.m. Eastern DEPARTMENT OF ENERGY rates in geographic markets etc. time on the specified comment date. It Filed Date: 06/30/2009. is not necessary to separately intervene Federal Energy Regulatory Accession Number: 20090630–0055. again in a subdocket related to a Commission Comment Date: 5 p.m. Eastern Time compliance filing if you have previously [Docket No. PF09–12–000] on Tuesday, July 21, 2009. intervened in the same docket. Protests Docket Numbers: ER01–1403–010; will be considered by the Commission East Cheyenne Gas Storage, LLC; ER06–1443–006; ER04–366–008; ER01– in determining the appropriate action to Notice of Intent To Prepare an 2968–011; ER01–845–009; ER05–1122– be taken, but will not serve to make Environmental Assessment for the 007; ER08–107–004. protestants parties to the proceeding. Planned East Cheyenne Gas Storage Applicants: FirstEnergy Operating Anyone filing a motion to intervene or Project, and Request for Comments on Companies, Pennsylvania Power protest must serve a copy of that Environmental Issues Company, Jersey Central Power & Light document on the Applicant. In reference Co., FirstEnergy Solutions Corp., to filings initiating a new proceeding, July 13, 2009. FirstEnergy Generation Corporation; interventions or protests submitted on The staff of the Federal Energy FirstEnergy Nuclear Generation Regulatory Commission (FERC or Corporation, FirstEnergy Generation or before the comment deadline need not be served on persons other than the Commission) will prepare an Mansfield Unit 1. environmental assessment (EA) that will Applicant. Description: Supplemental discuss the environmental impacts of Information of FirstEnergy Generation The Commission encourages the East Cheyenne Gas Storage Project Corp., et. al. regarding post-Study Year electronic submission of protests and involving construction and operation of Energy Purchases from Wind-Powered interventions in lieu of paper, using the facilities by Cheyenne Gas Storage, LLC Generators. FERC Online links at http:// (East Cheyenne) in Logan County, Filed Date: 06/30/2009. www.ferc.gov. To facilitate electronic Colorado. This EA will be used by the Accession Number: 20090630–5201. service, persons with Internet access Commission in its decision-making Comment Date: 5 p.m. Eastern Time who will eFile a document and/or be process to determine whether the on Tuesday, July 21, 2009. listed as a contact for an intervenor project is in the public convenience and Docket Numbers: ER09–978–001. must create and validate an necessity. Applicants: PJM Interconnection eRegistration account using the This notice announces the opening of L.L.C. eRegistration link. Select the eFiling the scoping process the Commission Description: PJM Interconnection link to log on and submit the will use to gather input from the public submits Substitute First Revised Sheet intervention or protests. and interested agencies on the project. 224Q et al. to FERC Electric Tariff, Sixth Your input will help the Commission Revised Volume 1. Persons unable to file electronically staff determine what issues need to be Filed Date: 07/08/2009. should submit an original and 14 copies evaluated in the EA. Please note that the Accession Number: 20090709–0143. of the intervention or protest to the scoping period will close on August 12, Comment Date: 5 p.m. Eastern Time Federal Energy Regulatory Commission, 2009. on Wednesday, July 29, 2009. 888 First St. NE., Washington, DC This notice is being sent to the Docket Numbers: ER09–1421–000. 20426. Commission’s current environmental Applicants: Midwest Independent The filings in the above proceedings mailing for this project, which includes Transmission System Operator, Inc. are accessible in the Commission’s affected landowners; federal, state, and Description: Midwest Independent eLibrary system by clicking on the local government representatives and Transmission System Operator, Inc appropriate link in the above list. They agencies; elected officials; submits Contract for Interconnection, are also available for review in the environmental and public interest Load Control Boundary, and Commission’s Public Reference Room in groups; Native American Tribes; other Maintenance with Northern States Washington, DC. There is an interested parties; and local libraries Power Co dated 6/12/09 etc. and newspapers. Interested parties are Filed Date: 07/08/2009. eSubscription link on the Web site that enables subscribers to receive e-mail encouraged to submit comments on the Accession Number: 20090709–0144. environmental issues they believe notification when a document is added Comment Date: 5 p.m. Eastern Time should be addressed in the EA. State to a subscribed dockets(s). For on Wednesday, July 29, 2009. and local government representatives Docket Numbers: ER09–1422–000. assistance with any FERC Online are asked to notify their constituents of Applicants: Midwest Independent service, please e-mail this planned project and encourage Transmission System Operator, Inc. [email protected]. or call them to comment on their areas of Description: Midwest Independent (866) 208–3676 (toll free). For TTY, call concern. Transmission System Operator, Inc (202) 502–8659. If you are a landowner receiving this submits a Facilities Construction Nathaniel J. Davis, Sr., notice, you may be contacted by a Agreement with Minnkota Power pipeline company representative about Deputy Secretary. Cooperative, Inc etc. the acquisition of an easement to Filed Date: 07/08/2009. [FR Doc. E9–17220 Filed 7–20–09; 8:45 am] construct, operate, and maintain the Accession Number: 20090709–0147. BILLING CODE 6717–01–P planned facilities. The company would Comment Date: 5 p.m. Eastern Time seek to negotiate a mutually acceptable on Wednesday, July 29, 2009. agreement. However, if the project is Any person desiring to intervene or to approved by the Commission, that protest in any of the above proceedings approval conveys with it the right of must file in accordance with Rules 211 eminent domain. Therefore, if easement and 214 of the Commission’s Rules of negotiations fail to produce an Practice and Procedure (18 CFR 385.211 agreement, the pipeline company could

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initiate condemnation proceedings in The general location of the project • Hazardous waste; and accordance with state law. facilities is shown in appendix 1.1 • Public safety. We will also evaluate possible A fact sheet prepared by the FERC Land Requirements for Construction entitled ‘‘An Interstate Natural Gas alternatives to the planned project or Facility On My Land? What Do I Need The project would involve storing portions of the project, and make To Know?’’ is available for viewing on natural gas in nearly depleted reservoirs recommendations on how to lessen or the FERC Web site (http:// that underlie an area of approximately avoid impacts on the various resource www.ferc.gov). This fact sheet addresses 2,400 acres, with an additional 3,600 areas. a number of typically asked questions, acres serving as a storage buffer area. Although no formal application has including the use of eminent domain Construction of the planned facilities been filed, we have already initiated our and how to participate in the would disturb about 352.11 acres of NEPA review under the Commission’s Commission’s proceedings. land for the aboveground facilities and Pre-filing Process. The purpose of the the pipelines. An additional 166.79 Pre-filing Process is to encourage early Summary of the Planned Project acres would be disturbed for non- involvement of interested stakeholders East Cheyenne plans to develop, jurisdictional facilities associated with and to identify and resolve issues before construct, own and operate a natural gas EOR operations. Following an application is filed with the FERC. storage facility in two nearly depleted construction, about 127.67 acres would As part of our pre-filing review, we have oil production fields in Logan County, be maintained for permanent operation begun to contact some federal and state Colorado. Prior to, and concurrent with of the gas storage project’s facilities and agencies to discuss their involvement in development of the gas storage fields, 72.36 acres for non-jurisdictional EOR the scoping process and the preparation East Cheyenne plans to proceed with operations; the remaining acreage would of the EA. Our independent analysis of the enhanced oil recovery (EOR) of be restored and allowed to revert to issues will be presented in the EA. petroleum reserves remaining in the former uses. Much of the planned Depending on the comments received storage fields. The construction and pipeline right-of-way would be parallel during the scoping process, the EA may operation of the EOR facilities are under to existing County Road 39. be published and mailed to those on our the jurisdiction of the Colorado Oil and The EA Process environmental mailing list (see Gas Conservation Commission The National Environmental Policy discussion of how to remain on our (COGCC). Conversion or plugging of Act (NEPA) requires the Commission to mailing list on page 6). A comment existing wells in the fields would be take into account the environmental period will be allotted for review if the necessary as part of the EOR activities. impacts that could result from an action EA is published. We will consider all The Cheyenne Gas Storage Project is whenever it considers the issuance of a comments on the EA before we make anticipated to have an initial working Certificate of Public Convenience and our recommendations to the gas storage capacity of approximately Necessity. NEPA also requires us 2 to Commission. 9.8 billion cubic feet (Bcf), which would discover and address concerns the With this notice, we are asking increase to approximately 18.9 Bcf public may have about proposals. This agencies with jurisdiction and/or between 3 and 5 years after operation process is referred to as ‘‘scoping’’. The special expertise with respect to begins. main goal of the scoping process is to environmental issues to formally The East Cheyenne Storage Project focus the analysis in the EA on the cooperate with us in the preparation of would consist of the following facilities: important environmental issues. By this the EA. These agencies may choose to • Ten gas injection/withdrawal wells notice, the Commission requests public participate once they have evaluated the to be drilled from six new well pads; comments on the scope of the issues to proposal relative to their • A compressor station for injection address in the EA. All comments responsibilities. Agencies that would and withdrawal of natural gas; received will be considered during the like to request cooperating agency status • Approximately 83,500 feet of 4- to preparation of the EA. should follow the instructions for filing 30-inch-diameter pipelines connecting In the EA, we will discuss impacts comments provided under the Public the wellheads to the compressor station that could occur as a result of the Participation section of this notice. and associated facilities; construction and operation of the Currently Identified Environmental • A natural gas liquids recovery planned project under these general Issues plant; headings: • Geology and soils; We have already identified one issue • Two water injection/disposal wells; • Land use; that we think deserves attention based • Dual 24-inch-diameter pipelines to • Water resources, fisheries, and on a preliminary review of the planned be constructed in a single corridor wetlands; facilities and the environmental interconnecting with the Rockies • Cultural resources; information provided by East Cheyenne. Express Pipeline, LLC and Trailblazer • Vegetation and wildlife; Blue Sky Gas Storage, LLC (Docket No. Pipeline Company interstate natural gas • Air quality and noise; CP09–428–000) is proposing a storage pipelines at a site 3.5 miles north of the • Endangered and threatened species; project in the same general area of planned compressor station site; Logan County as the planned East • A meter station at the interstate 1 The appendices referenced in this notice are not Cheyenne Storage Project. The EA will pipeline system interconnects; being printed in the Federal Register. Copies of address potential cumulative impacts appendices were sent to all those receiving this • Gas dehydration facilities; notice in the mail and are available at http:// associated with construction and • Amine treating facilities; www.ferc.gov using the link called ‘‘eLibrary’’ or operation of both storage facilities. • from the Commission’s Public Reference Room, 888 Support facilities for construction; First Street, NE., Washington, DC 20426, or call Public Participation and (202) 502–8371. For instructions on connecting to You can make a difference by • Ancillary facilities necessary to eLibrary, refer to the last page of this notice. 2 ‘‘We’’, ‘‘us’’, and ‘‘our’’ refer to the providing us with your specific operate the storage facility, flow lines, environmental staff of the Commission’s Office of comments or concerns about the project. wells, and compressor facilities. Energy Projects. Your comments should focus on the

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potential environmental effects, If you do not want to send comments DEPARTMENT OF ENERGY reasonable alternatives, and measures to at this time but still want to remain on avoid or lessen environmental impacts. our mailing list, please return the Federal Energy Regulatory The more specific your comments, the Information Request (appendix 2). If you Commission more useful they will be. To ensure that do not return the Information Request, [Docket No. EL09–63–000] your written comments are timely and you will be taken off the mailing list. properly recorded, please send in your Becoming an Intervenor City of Orangeburg, SC; Notice of comments so that they will be received Filing in Washington, DC on or before August Once East Cheyenne files its 12, 2009. application with the Commission, you July 13, 2009. For your convenience, there are three may want to become an ‘‘intervenor’’, Take notice that on July 2, 2009, the methods which you can use to submit which is an official party to the City of Orangeburg, South Carolina (City your written comments to the Commission’s proceeding. Intervenors of Orangeburg), pursuant section 205(a) Commission. The Commission play a more formal role in the process of the Public Utility Regulatory Policies encourages electronic filing of and are able to file briefs, appear at Act, 16 U.S.C. 824a–l(a), and Rule comments and has expert eFiling staff hearings, and be heard by the courts if 207(a)(5) of the Federal Energy available to assist you at 202–502–8258 they choose to appeal the Commission’s Regulatory Commission’s (Commission) or [email protected]. final ruling. An intervenor formally Rules of Practice and Procedure, 18 CFR 385.207(a)(5), filed a petition for (1) You may file your comments participates in the proceeding by filing declaratory requesting that the electronically by using the Quick a request to intervene. Instructions for Commission exempt the Orangeburg Comment feature, which is located at becoming an intervenor are included in Department of Public Utilities and other http://www.ferc.gov under the link the User’s Guide under the ‘‘e-filing’’ affected electric facilities from the called ‘‘Documents and Filings’’. A link on the Commission’s Web site. policy and practice announced by the Quick Comment is an easy method for Please note that you may not request intervenor status at this time. You must North Carolina Utilities Commission interested persons to submit text-only (NCUC) in its March 30, 2009 Order comments on a project; wait until a formal application for the project is filed with the Commission. E–7, Sub 858 (NCUC Order). The City of (2) You may file your comments Orangeburg also seeks a petition for electronically by using the ‘‘eFiling’’ Additional Information declaratory order stating that the policy feature that is listed under the Additional information about the announced in the NCUC Order is ‘‘Documents and Filings’’ link. eFiling project is available from the preempted by the Commission’s involves preparing your submission in Commission’s Office of External Affairs, exclusive jurisdiction over wholesale the same manner as you would if filing at 1–866–208–FERC or on the FERC power sales, transmission and rates on paper, and then saving the file on Web site (http://www.ferc.gov) using the under sections 201(a), 201(b), 205, and your computer’s hard drive. You will eLibrary link. Click on the eLibrary link, 206 of the Federal Power Act, 16 U.S.C. attach that file to your submission. New click on ‘‘General Search’’ and enter the 824(a), 824(b), 824d, and 824e. eFiling users must first create an docket number, excluding the last three Any person desiring to intervene or to account by clicking on the links called digits, in the Docket Number field. Be protest this filing must file in ‘‘Sign up’’ or ‘‘eRegister’’. You will be sure you have selected an appropriate accordance with Rules 211 and 214 of asked to select the type of filing you are date range. For assistance, please the Commission’s Rules of Practice and making. A comment on a particular contact FERC Online Support at Procedure (18 CFR 385.211, 385.214). project is considered a ‘‘Comment on a [email protected] or toll free Protests will be considered by the Filing’’; or at 1–866–208–3676, or for TTY, contact Commission in determining the (3) You may file your comments with (202) 502–8659. The eLibrary link also appropriate action to be taken, but will the Commission via mail by sending an provides access to the texts of formal not serve to make protestants parties to original and two copies of your letter to: documents issued by the Commission, the proceeding. Any person wishing to Kimberly D. Bose, Secretary, Federal such as orders, notices, and become a party must file a notice of Energy Regulatory Commission, 888 rulemakings. intervention or motion to intervene, as First Street, NE., Room 1A, Washington, In addition, the Commission now appropriate. Such notices, motions, or DC 20426. offers a free service called eSubscription protests must be filed on or before the In all instances, please reference the which allows you to keep track of all comment date. On or before the project docket number PF09–12–000 formal issuances and submittals in comment date, it is not necessary to with your submission. Label one copy of specific dockets. This can reduce the serve motions to intervene or protests the comments for the attention of Gas amount of time you spend researching on persons other than the Applicant. Branch 1, PJ–11.1. proceedings by automatically providing The Commission encourages electronic submission of protests and Environmental Mailing List you with notification of these filings, document summaries and direct links to interventions in lieu of paper using the An effort is being made to send this the documents. Go to http:// ‘‘eFiling’’ link at http://www.ferc.gov. notice to all individuals, organizations, www.ferc.gov/esubscribenow.htm. Persons unable to file electronically and government entities interested in Finally, public meetings or site visits should submit an original and 14 copies and/or potentially affected by the will be posted on the Commission’s of the protest or intervention to the planned project. This includes all calendar located at http://www.ferc.gov/ Federal Energy Regulatory Commission, landowners who are potential right-of- EventCalendar/EventsList.aspx along 888 First Street, NE., Washington, DC way grantors, whose property may be with other related information. 20426. used temporarily for project purposes, This filing is accessible on-line at or who own homes within certain Kimberly D. Bose, http://www.ferc.gov, using the distances of aboveground facilities (as Secretary. ‘‘eLibrary’’ link and is available for defined in the Commission’s [FR Doc. E9–17238 Filed 7–20–09; 8:45 am] review in the Commission’s Public regulations). BILLING CODE P Reference Room in Washington, DC.

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There is an ‘‘eSubscription’’ link on the of the protest or intervention to the • http://www.regulations.gov: Follow Web site that enables subscribers to Federal Energy Regulatory Commission, the on-line instructions for submitting receive e-mail notification when a 888 First Street, NE., Washington, DC comments. document is added to a subscribed 20426. • Email: Send comments by docket(s). For assistance with any FERC This filing is accessible on-line at electronic mail (e-mail) to: Online service, please e-mail http://www.ferc.gov, using the [email protected], Attention Docket [email protected], or call ‘‘eLibrary’’ link and is available for ID No. EPA–HQ–ORD–2009–0519. (866) 208–3676 (toll free). For TTY, call review in the Commission’s Public • Fax: Fax comments to: (202) 566– (202) 502–8659. Reference Room in Washington, DC. 0224, Attention Docket ID No. EPA– Comment Date: 5 p.m. Eastern Time There is an ‘‘eSubscription’’ link on the HQ–ORD–2009–0519. on August 3, 2009. Web site that enables subscribers to • Mail: Send comments by mail to: receive e-mail notification when a Board of Scientific Counselors (BOSC), Kimberly D. Bose, document is added to a subscribed Executive Committee Meeting—August Secretary. docket(s). For assistance with any FERC 6, 2009 Docket, Mailcode: 28221T, 1200 [FR Doc. E9–17239 Filed 7–20–09; 8:45 am] Online service, please e-mail Pennsylvania Ave., NW., Washington, BILLING CODE 6717–01–P [email protected], or call DC, 20460, Attention Docket ID No. (866) 208–3676 (toll free). For TTY, call EPA–HQ–ORD–2009–0519. (202) 502–8659. • Hand Delivery or Courier. Deliver DEPARTMENT OF ENERGY Comment Date: 5 p.m. Eastern Time comments to: EPA Docket Center (EPA/ on Monday, July 20, 2009. Federal Energy Regulatory DC), Room B102, EPA West Building, Commission Kimberly D. Bose, 1301 Constitution Avenue, NW., Secretary. Washington, DC, Attention Docket ID [Docket No. PR09–27–000] [FR Doc. E9–17236 Filed 7–20–09; 8:45 am] No. EPA–HQ–ORD–2009–0519. UGI Central Penn Gas, Inc.; Notice of BILLING CODE 6717–01–P Note: This is not a mailing address. Such Rate Election deliveries are only accepted during the docket’s normal hours of operation, and July 13, 2009. special arrangements should be made for ENVIRONMENTAL PROTECTION deliveries of boxed information. Take notice that on July 7, 2009, UGI AGENCY Central Penn Gas, Inc. (CPG) filed a Instructions: Direct your comments to Notice of Rate Election pursuant to [EPA–HQ–ORD–2009–0519; FRL–8932–8] Docket ID No. EPA–HQ–ORD–2009– section 284.123(b)(1)(ii) of the Board of Scientific Counselors (BOSC) 0519. EPA’s policy is that all comments Commission’s regulations. CPG Executive Committee Meeting—August received will be included in the public proposes to utilize its presently effective 6, 2009 docket without change and may be Pennsylvania Public Utility Commission made available online at http:// city-gate transportation rate under Rate AGENCY: Environmental Protection www.regulations.gov, including any Schedule GD for temporary Agency (EPA). personal information provided, unless transportation service for Corning ACTION: Notice of meeting. the comment includes information Natural Gas Company pursuant to CPG’s claimed to be Confidential Business section 284.224 certificate. SUMMARY: Pursuant to the Federal Information (CBI) or other information Any person desiring to participate in Advisory Committee Act, Public Law whose disclosure is restricted by statute. this rate filing must file a motion to 92–463, the Environmental Protection Do not submit information that you intervene or a protest in accordance Agency, Office of Research and consider to be CBI or otherwise with Rules 211 and 214 of the Development (ORD), gives notice of one protected through http:// Commission’s Rules of Practice and meeting of the Board of Scientific www.regulations.gov or e-mail. The Procedure (18 CFR 385.211 and Counselors (BOSC) Executive http://www.regulations.gov Web site is 385.214). Protests will be considered by Committee. an ‘‘anonymous access’’ system, which the Commission in determining the DATES: The meeting (a teleconference means EPA will not know your identity appropriate action to be taken, but will call) will be held on Thursday, August or contact information unless you not serve to make protestants parties to 6, 2009 from 1 p.m. to 3 p.m. EST. The provide it in the body of your comment. the proceeding. Any person wishing to meeting may adjourn early if all If you send an e-mail comment directly become a party must file a notice of business is finished. Requests for the to EPA without going through http:// intervention or motion to intervene, as draft agenda or for making oral www.regulations.gov, your e-mail appropriate. Such notices, motions, or presentations at the meeting will be address will be automatically captured protests must be filed on or before the accepted up to one business day before and included as part of the comment date as indicated below. Anyone filing the meeting. that is placed in the public docket and an intervention or protest must serve a ADDRESSES: Participation in the made available on the Internet. If you copy of that document on the Applicant. conference call will be by submit an electronic comment, EPA Anyone filing an intervention or protest teleconference only—meeting rooms recommends that you include your on or before the intervention or protest will not be used. Members of the public name and other contact information in date need not serve motions to intervene may obtain the call-in number and the body of your comment and with any or protests on persons other than the access code for the call from Lorelei disk or CD–ROM you submit. If EPA Applicant. Kowalski, whose contact information is cannot read your comment due to The Commission encourages listed under the FOR FURTHER technical difficulties and cannot contact electronic submission of protests and INFORMATION CONTACT section of this you for clarification, EPA may not be interventions in lieu of paper using the notice. Submit your comments, able to consider your comment. ‘‘eFiling’’ link at http://www.ferc.gov. identified by Docket ID No. EPA–HQ– Electronic files should avoid the use of Persons unable to file electronically ORD–2009–0519, by one of the special characters, any form of should submit an original and 14 copies following methods: encryption, and be free of any defects or

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viruses. For additional information meeting, to give EPA as much time as Team, 1310 L St. NW., Room 1040, about EPA’s public docket visit the EPA possible to process your request. Washington DC 20005. EPA also Docket Center homepage at http:// Dated: July 14, 2009. encourages users to submit their www.epa.gov/epahome/dockets.htm. Mimi Dannel, applications electronically to Robert Docket: All documents in the docket Burchard, Stratospheric Protection Acting Director, Office of Science Policy. are listed in the http:// Division, at: [email protected]. If www.regulations.gov index. Although [FR Doc. E9–17276 Filed 7–20–09; 8:45 am] the application is submitted listed in the index, some information is BILLING CODE 6560–50–P electronically, applicants must fax a not publicly available, e.g., CBI or other signed copy of Worksheet 1 to Robert information whose disclosure is ENVIRONMENTAL PROTECTION Burchard at 202–343–2338 by the restricted by statute. Certain other AGENCY application deadline. material, such as copyrighted material, FOR FURTHER INFORMATION will be publicly available only in hard [FRL–8933–1] CONTACT: copy. Publicly available docket General Information: U.S. EPA materials are available either Protection of Stratospheric Ozone: Stratospheric Ozone Information electronically in http:// Extension to Deadline for Critical Use Hotline, 1–800–296–1996; also http:// www.regulations.gov or in hard copy at Exemption Applications for 2012 www.epa.gov/ozone/mbr. the Board of Scientific Counselors AGENCY: Environmental Protection Technical Information: Bill Chism, (BOSC), Executive Committee Agency (EPA). U.S. Environmental Protection Agency, Meeting—August 6, 2009 Docket, EPA/ ACTION: Extension to Submittal Date for Office of Pesticide Programs (7503P), DC, EPA West, Room B102, 1301 Applications. On May 20, 2009, the 1200 Pennsylvania Ave., NW., Constitution Ave., NW., Washington, Agency published a notice requesting Washington, DC 20460, 703–308–8136. DC. The Public Reading Room is open applications for the Critical Use E-mail: [email protected]. from 8:30 a.m. to 4:30 p.m., Monday Exemption from the phaseout of methyl Economic Information: Elisa Rim, through Friday, excluding legal bromide for 2012 (see 74 FR 23705). U.S. Environmental Protection Agency, holidays. The telephone number for the Office of Pesticide Programs (7503P), Public Reading Room is (202) 566–1744, On July 1, 2009, EPA received a letter 1200 Pennsylvania Ave., NW., and the telephone number for the ORD from methyl bromide stakeholders Washington, DC 20460, 703–308–8123. Docket is (202) 566–1752. requesting an extension to the July 20, E-mail: [email protected]. FOR FURTHER INFORMATION CONTACT: The 2009 deadline for submitting Critical Regulatory Information: Robert Designated Federal Officer via mail at: Use Exemption applications. The letter Burchard, U.S. Environmental Lorelei Kowalski, Mail Code 8104–R, requested a deadline of August 24, 2009. Protection Agency, Stratospheric Office of Science Policy, Office of The letter explained that additional Protection Division (6205J), 1200 Research and Development, time is needed by the stakeholders to Pennsylvania Ave., NW., Washington, Environmental Protection Agency, 1200 complete their Critical Use Exemption DC 20460, 202–343–9126. E-mail: Pennsylvania Avenue, NW., applications, citing recent industry [email protected]. Washington, DC 20460; via phone/voice involvement with associated EPA Docket: The docket can be mail at: (202) 564–3408; via fax at: (202) international meetings and national accessed at the http:// 565–2911; or via e-mail at: regulatory decisions as impeding their www.regulations.gov site. To obtain [email protected]. ability to devote adequate time to the copies of materials in hard copy, please application process. e-mail the EPA Docket Center: a-and-r- SUPPLEMENTARY INFORMATION: EPA believes that the requested [email protected]. The Docket ID No. for General Information extension is reasonable, and is granting Critical Use Exemption Applications for the extension to all applicants. Critical 2012 is: EPA–HQ–OAR–2009–0277. Any member of the public interested Use Exemption Applications for 2012 in receiving a draft BOSC agenda or Dated: July 15, 2009. are now due to the Agency on or before making a presentation at this meeting Brian J. McLean, August 24, 2009. A copy of the July 1, may contact Lorelei Kowalski, the Director, Office of Atmospheric Programs. 2009 letter to the Agency is available in Designated Federal Officer, via any of the EPA Docket. [FR Doc. E9–17275 Filed 7–20–09; 8:45 am] the contact methods listed in the ‘‘FOR DATES: Applications for the 2012 BILLING CODE 6560–50–P FURTHER INFORMATION CONTACT’’ section above. In general, each individual Critical Use Exemption must be making an oral presentation will be postmarked on or before August 24, 2009. DEPARTMENT OF HEALTH AND limited to a total of three minutes. HUMAN SERVICES Proposed agenda items for the ADDRESSES: Applications for the methyl teleconference include, but are not bromide Critical Use Exemption should Centers for Disease Control and limited to: vet the draft Human Health be submitted in duplicate (two copies) Prevention program review report and discuss a by mail to: U.S. Environmental revised process for program reviews. Protection Agency, Office of Air and [30Day-09–0666] The meeting is open to the public. Radiation, Stratospheric Protection Agency Forms Undergoing Paperwork Information on Services for Division, Attention Methyl Bromide Reduction Act Review Individuals with Disabilities: For Team, Mail Code 6205J, 1200 information on access or services for Pennsylvania Ave, NW., Washington, The Centers for Disease Control and individuals with disabilities, please DC 20460 or by courier delivery (other Prevention (CDC) publishes a list of contact Lorelei Kowalski at (202) 564– than U.S. Post Office overnight) to: U.S. information collection requests under 3408 or [email protected]. To Environmental Protection Agency, review by the Office of Management and request accommodation of a disability, Office of Air and Radiation, Budget (OMB) in compliance with the please contact Lorelei Kowalski, Stratospheric Protection Division, Paperwork Reduction Act (44 U.S.C. preferably at least ten days prior to the Attention Methyl Bromide Review Chapter 35). To request a copy of these

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requests, call the CDC Reports Clearance based technology for data entry and data 4,500 burden hours). These forms are no Officer at (404) 639–5960 or send an e- management. Data are collected by longer needed by the NHSN. These mail to [email protected]. Send written trained surveillance personnel using deletions total 4,800 burden hours. comments to CDC Desk Officer, Office of written standardized protocols. This NHSN was first approved by OMB in Management and Budget, Washington, revision submission to OMB is a request 2005 and a revision request was DC or by fax to (202) 395–6974. Written to add a Hemovigilance module to the approved by OMB in 2008. The 2008 comments should be received within 30 NHSN. This module is a response to a revision request included modifications days of this notice. recommendation from HHS’ Advisory to approved forms, new modules, and Committee on Blood Safety and Proposed Project an increase in the number of Availability (ACBSA) to develop a respondents. Later in 2008, CDC National Healthcare Safety Network national system for outcome requested and received OMB approval (NHSN) (OMB No. 0920–0666)— surveillance that includes recipients of to increase the number of respondents Revision—National Center for blood and blood products. The module for the NHSN to 6,000 healthcare Preparedness, Detection, and Control of consists of 6 additional forms: (1) The facilities. This change was a result of an Infectious Diseases (NCPDCID), Centers Hemovigilance Module Annual Survey increasing number of State legislatures for Disease Control and Prevention (1,000 annualized burden hours); (2) the requiring reporting of healthcare- (CDC). Hemovigilance Module Monthly acquired infections by healthcare Reporting Plan (200 annualized burden Background and Brief Description facilities using the NHSN. hours); (3) Hemovigilance Module The National Healthcare Safety Blood Produce Incident Reporting— Participating institutions must have a Network (NHSN) is a system designed to Summary Data (12,000 annualized computer capable of supporting an accumulate, exchange, and integrate burden hours); (4) Hemovigilance Internet service provider (ISP) and relevant information and resources Module Monthly Reporting access to an ISP. The only other cost to among private and public stakeholders Denominators (3,000 annualized burden respondents is their time to complete to support local and national efforts to hours); (5) Hemovigilance Incident form the appropriate forms. protect patients and to promote (6,000 annualized burden hours); and OMB No. 0920–0666: National healthcare safety. Specifically, the data (6) Hemovigilance Adverse Reaction Healthcare Safety Network (NHSN) is is used to determine the magnitude of form (10,000 annualized burden hours). currently approved for 5,144,844 various healthcare-associated adverse The Hemovigilance Module totals an annualized burden hours. This request events and trends in the rates of these estimated 32,200 annualized burden includes a net increase of 27,400 burden events among patients and healthcare hours hours (deletion of 2 forms: ¥4,800 workers with similar risks. The data will Also in this submission, CDC is also burden hours; new Hemovigilance be used to detect changes in the requesting to delete two forms currently Module: +32,200 burden hours), epidemiology of adverse events approved by OMB: Implementation of bringing the total estimated annualized resulting from new and current medical (currently burden hours for the entire information therapies and changing risks. approved for 300 burden hours) and the collection request to 5,172,244 hours. Healthcare institutions that Laboratory Identified Multi-drug There are no additional respondents for participate in NHSN voluntarily report Resistant Organism (MDRO) Event this request as they are already part of their data to CDC using a web browser- Summary Form (currently approved for the respondent population.

ESTIMATE OF ANNUALIZED BURDEN HOURS

Average Number of Number of burden per Respondents Form respondents responses per response (in respondent hours)

Infection Control Practitioner ...... Facility Contact Information ...... 6,000 1 10/60 Patient Safety Component Hospital Survey .. 6,000 1 30/60 Agreement to Participate and Consent ...... 6,000 1 15/60 Group Contact Information ...... 6,000 1 5/60 Patient Safety Monthly Reporting Plan ...... 6,000 9 35/60 Healthcare Personnel Safety Reporting Plan 600 9 10/60 Primary Bloodstream Infection (BSI) ...... 6,000 36 30/60 Pneumonia (PNEU)—also includes Any Pa- 6,000 72 30/60 tient Pneumonia Flow Diagram and Infant and Children Pneumonia Flow Diagram. Urinary Tract Infection (UTI) ...... 6,000 27 30/60 Surgical Site Infection (SSI) ...... 6,000 27 30/60 . Dialysis Event (DI) ...... 225 200 15/60 Antimicrobial Use and Resistance (AUR)— 6,000 45 3 Microbiology Laboratory Data. Antimicrobial Use and Resistance—Phar- 6,000 36 2 macy Data. Denominators for Intensive Care Unit (ICU)/ 6,000 18 5 Other locations (Not NICU or SCA). Denominators for Specialty Care Area (SCA) 6,000 9 5 Denominators for Neonatal Intensive Care 6,000 9 4 Unit (NICU). Denominator for Procedure ...... 6,000 540 8/60 Denominator for Outpatient Dialysis ...... 225 9 5/60 Dialysis Survey ...... 225 1 1

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ESTIMATE OF ANNUALIZED BURDEN HOURS—Continued

Average Number of Number of burden per Respondents Form respondents responses per response (in respondent hours)

List of Blood Isolates ...... 6,000 1 1 Manual Categorization of Positive Blood Cul- 6,000 1 1 tures. Exposures to Blood/Body Fluids ...... 600 50 1 Healthcare Personnel Post-exposure Prophy- 600 10 15/60 laxis. Healthcare Personnel Demographic Data ..... 600 200 20/60 Healthcare Personnel Vaccination History .... 600 300 10/60 Annual Facility Survey ...... 600 1 8 Healthcare Worker Survey ...... 600 100 10/60 Healthcare Personnel Influenza Vaccination 600 500 10/60 Form. Healthcare Personnel Influenza Antiviral 600 50 10/60 Medication Administration Form. Pre-season Survey on Influenza Vaccination 600 1 10/60 Programs for Healthcare Workers. Post-Season Survey on Influenza Vaccina- 600 1 10/60 tion Programs for Healthcare Workers. Central Line Insertion Practices Adherence 6,000 100 10/60 Monitoring Form (CLIP). Laboratory Testing ...... 600 100 15/60 MDRO Prevention Process and Outcome 6,000 24 10/60 Measures Monthly Monitoring Form. MDRO or CDAD Infection Event Form ...... 6,000 72 30/60 Laboratory Identified MDRO or CDAD Event 6,000 240 30/60 Form (LabID). Registration Form ...... 6,000 1 5/60 High Risk Inpatient Influenza Vaccine—Sum- 6,000 5 16 mary Form Method A. High Risk Inpatient Influenza Vaccine—Nu- 2,000 250 10/60 merator Data Form Method B. High Risk Inpatient Influenza Vaccine—Sum- 2,000 5 4 mary Form Method B. High Risk Inpatient Influenza Vaccine—De- 2,000 250 5/60 nominator Data Form Method B. Hemovigilance Module Annual Survey ...... 500 1 2 Hemovigilance Module Monthly Reporting 500 12 2/60 Plan. Hemovigilance Module Blood Product Inci- 500 12 2 dent Reporting—Summary Data. Hemovigilance Module Monthly Reporting 500 12 30/60 Denominators. Hemovigilance Incident ...... 500 72 10/60 Hemovigilance Adverse Reaction ...... 500 120 10/60

Dated: July 13, 2009. DEPARTMENT OF HEALTH AND data collection plans and instrument, Marilyn S. Radke, HUMAN SERVICES call 404–639–5960 and send comments Reports Clearance Officer, Centers for Disease to Maryam I. Daneshvar, CDC Reports Control and Prevention. Centers for Disease Control and Clearance Officer, 1600 Clifton Road, Prevention [FR Doc. E9–17263 Filed 7–20–09; 8:45 am] NE., MS–D74, Atlanta, Georgia 30333; comments may also be sent by e-mail to BILLING CODE 4163–18–P [60 Day–09–09CD] [email protected]. Proposed Data Collections Submitted Comments are invited on (a) whether for Public Comment and the proposed collection of information Recommendations is necessary for the proper performance of the functions of the agency, including In compliance with the requirement whether the information shall have a of Section 3506(c)(2)(A) of the practical utility; (b) the accuracy of the Paperwork Reduction Act of 1995 for agency’s estimate of the burden of the opportunity for public comment on proposed collection of information; (c) proposed data collection projects, the ways to enhance the quality, utility, and Centers for Disease Control and clarity of the information to be Prevention (CDC) will publish periodic collected; and (d) ways to minimize the summaries of proposed projects. burden of the collection of information Alternatively, to obtain a copy of the on respondents, including through the

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use of information technology. Written laboratory medicine exists, although the publish quality improvement projects or comments should be received within 60 number of laboratories operating in the studies demonstrating practice days of this notice. United States and the volume of effectiveness in the peer reviewed laboratory tests available certainly Proposed Project literature, but that they routinely warrant such a model. conducted quality improvement projects Laboratory Medicine Best Practices The Laboratory Medicine Best and had relevant data for completion of Project (LMBP)—New—National Center Practices Initiative began in October evidence reviews. Phase 2 (September for Preparedness, Detection, and Control 2006, when CDC convened the 2007–November 2008) and Phase 3 of Infectious Diseases (NCPDCID), Laboratory Medicine Best Practices (December 2008–September 2009), Centers for Disease Control and Workgroup (Workgroup), a involved further methods development Prevention (CDC) multidisciplinary panel of experts in and pilot tests to obtain, review, and Background and Brief Description several fields including laboratory evaluate published and unpublished CDC is seeking approval from the medicine, clinical medicine, health evidence for practices associated with Office of Management and Budget services research, and health care the topics of patient specimen (OMB) to collect information from performance measurement. The identification, communicating critical healthcare organizations in order to Workgroup has been supported by staff value test results, and blood culture conduct a systemic review of laboratory at CDC and the Battelle Memorial contamination. Exploratory work by practice effectiveness. The purpose of Institute under contract to CDC. CDC supports the existence of relevant information collection is to include To date, the Laboratory Medicine Best unpublished studies or completed completed unpublished quality Practices (LMBP) project work has been quality improvement projects related to improvement studies/assessments completed over three phases. During laboratory medicine practices from carried out by healthcare organizations Phase 1 (October 2006–September 2007) healthcare organizations. The objective (laboratories, hospitals, clinics) in of the project, CDC staff developed for successive LMBP evidence reviews systematic reviews of practice systematic review methods for of practice effectiveness is to conducting evidence reviews using effectiveness. CDC has been sponsoring supplement the published evidence published literature, and completed a the Laboratory Medicine Best Practices with unpublished evidence to fill in proof-of-concept test. Results of an (LMBP) initiative to develop new gaps in the literature. systematic evidence reviews methods extensive search and review of for making evidence-based published literature using the methods Healthcare organizations and facilities recommendations in laboratory for the topic of patient specimen (laboratory, hospital, clinic) will have medicine. This initiative supports the identification indicated that an the opportunity to voluntarily enroll in CDC’s mission of improving laboratory insufficient quality and number of an LMBP network and submit readily practices. studies were available for completing available unpublished studies; quality The focus of the Initiative is on pre- systematic evidence reviews of improvement projects, evaluations, and post-analytic laboratory medicine laboratory medicine practice assessments, and other analyses relying practices that are effective at improving effectiveness for multiple practices, and on unlinked, anonymous data using the health care quality. While evidence- hence for making evidence-based LMBP Submission Form. LMBP based approaches for decision-making recommendations. These results were Network participants will also be able to have become standard in healthcare, considered likely to be generalizable to submit unpublished studies/data for this has been limited in laboratory most potential topic areas of interest. evidence reviews on an annual basis medicine. No single-evidence-based A finding from Phase 1 work was that using this form. There is no cost to model for recommending practices in laboratories would be unlikely to respondents other than their time.

ESTIMATED ANNUALIZED BURDEN HOURS

Number of Average bur- Respondents Number of responses per den Total burden respondents respondent (in hours) (in hours)

Healthcare Organizations ...... 150 1 40/60 100

Total ...... 100

Dated: July 15, 2009. DEPARTMENT OF HEALTH AND that Ajinomoto Co., Inc., has filed a Marilyn S. Radke, HUMAN SERVICES petition proposing that the food additive Reports Clearance Officer, Centers for Disease regulations be amended to provide for Control and Prevention. Food and Drug Administration the safe use of N-[N-[3-(3-hydroxy-4- [FR Doc. E9–17266 Filed 7–20–09; 8:45 am] [Docket No. FDA–2009–F–0303] methoxyphenyl) propyl-a-aspartyl]-L- BILLING CODE 4163–18–P phenylalanine 1-methyl ester, Ajinomoto Co., Inc.; Filing of Food monohydrate (CAS Reg. No. 714229– Additive Petition 20–6) for use as a non-nutritive sweetener in tabletop applications and AGENCY: Food and Drug Administration, powdered beverage mixes. Ajinomoto HHS. Co., Inc., also proposes that this additive ACTION: Notice. be identified as advantame. SUMMARY: The Food and Drug DATES: Submit written or electronic Administration (FDA) is announcing comments on the petitioner’s

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environmental assessment by August that an environmental impact statement contract to NCHS. In addition, on 20, 2009. is not required, and this petition results average, six vials of sera were also ADDRESSES: Submit written comments in a regulation, the notice of availability stored in vapor-phase liquid nitrogen at to the Division of Dockets Management of the agency’s finding of no significant the CDC and ATSTR Specimen (HFA–305), Food and Drug impact and the evidence supporting that Packaging, Inventory and Repository Administration, 5630 Fishers Lane, rm. finding will be published with the (CASPIR) Repository in Lawrenceville, 1061, Rockville, MD 20852. Submit regulation in the Federal Register in GA. These specimens have not electronic comments to http:// accordance with 21 CFR 25.51(b). undergone a freeze-thaw cycle. The www.regulations.gov. Dated: July 10, 2009. CASPIR Repository is considered a long- FOR FURTHER INFORMATION CONTACT: Laura M. Tarantino, term repository for the NHANES specimens. NCHS is making both of Blondell Anderson, Center for Food Director, Office of Food Additive Safety, Safety and Applied Nutrition (HFS– Center for Food Safety and Applied Nutrition. these collections available for research proposals. The research proposals that 265), Food and Drug Administration, [FR Doc. E9–17250 Filed 7–20–09; 8:45 am] can use the surplused specimens will 5100 Paint Branch Pkwy., College Park, BILLING CODE 4160–01–S MD 20740–3835, 301–436–1304. receive higher priority. Proposals that request the specimens in CASPIR need SUPPLEMENTARY INFORMATION: Under the Federal Food, Drug, and Cosmetic Act DEPARTMENT OF HEALTH AND to justify the use of the unthawed (sec. 409(b)(5) (21 U.S.C. 348(b)(5))), HUMAN SERVICES specimens. The purpose of this notice is to notice is given that a food additive request comments on this program and petition (FAP 9A4778) has been filed by Centers for Disease Control and Ajinomoto Co., Inc., c/o Ajinomoto Prevention the proposed cost schedule. After Corporate Services LLC, 1120 consideration of comments submitted, National Health and Nutrition Connecticut Ave. NW., suite 1010, CDC will finalize and publish the cost Examination Survey (NHANES) Stored Washington, DC 20036. The petition schedule and accept proposals for use of Biologic Specimens: Guidelines for proposes to amend the food additive the NHANES stored biologic samples. Proposals to Use Samples and regulations in part 172 Food Additives Please go to http://www.cdc.gov/nchs/ Proposed Cost Schedule _ Permitted For Direct Addition to Food nhanes/proposal guidelines.htm for for Human Consumption (21 CFR part final proposal guidelines. ACTION: Notice and request for All interested researchers are 172) to provide for the safe use of N-[N- comments. encouraged to submit proposals. No [3-(3-hydroxy-4-methoxyphenyl) funding is provided as part of this propyl-a-aspartyl]-L-phenylalanine 1- SUMMARY: The National Health and solicitation. Samples will not be methyl ester, monohydrate (CAS Reg. Nutrition Examination Survey provided to those projects requiring No. 714229–20–6) for use as a non- (NHANES) is a program of periodic funding until the project has received nutritive sweetener in tabletop surveys conducted by the National funds. Approved projects that do not applications and powdered beverage Center for Health Statistics (NCHS) of obtain funding will be canceled. A more mixes. the Centers for Disease Control and The potential environmental impact Prevention (CDC). Examination surveys complete description of this program of this petition is being reviewed. To conducted since 1960 by NCHS, have follows. encourage public participation provided national estimates of health DATES: consistent with regulations issued under and nutritional status of the United • Comment Receipt Date: August 20, the National Environmental Policy Act States civilian non-institutionalized 2009. (40 CFR 1501.4(b)), the agency is population. To add to the large amount • Invitation to Submit Proposals: Can placing the environmental assessment of information collected for the purpose be submitted on an ongoing basis submitted with the petition that is the of describing the health of the • Scientific Review Date: Within two subject of this notice on public display population in the most recent survey, months of proposal submission. • at the Division of Dockets Management serum, urine and limited plasma Institutional Review Date: Within (see DATES and ADDRESSES) for public samples were collected and stored for one month of final proposal acceptance. • review and comment. future research projects. Specimens are Anticipated distribution of samples: Interested persons may submit to the currently available from NHANES III one month after IRB approval. Division of Dockets Management (see (conducted from 1988–1994) and from ADDRESSES: To send comments and to ADDRESSES) written or electronic NHANES 1999–2008. In 1999, NHANES request information, contact: Dr. comments regarding this document. became a continuous survey with data Geraldine McQuillan, Division of Health Submit a single copy of electronic release every two years. Specimens are and Nutrition Examination Surveys, comments or two paper copies of any available from two year survey cycles National Center for Health Statistics, mailed comments, except that after the demographic file has been Centers for Disease Control and individuals may submit one paper copy. released to the public. Participants in Prevention, 3311 Toledo Road, Room Comments are to be identified with the the survey that began in 1999 signed a 4204, Hyattsville, MD 20782, docket number found in brackets in the separate consent document agreeing to Phone: 301–458–4371, heading of this document. Received specimen storage allowing their biologic Fax: 301–458–4028, comments may be seen in the Division specimens to be used for approved E-mail: [email protected]. of Dockets Management between 9 a.m. research projects. Internet: http://www.cdc.gov/nchs/ and 4 p.m., Monday through Friday. Specimens are stored in two about/major/nhanes/serum1b.htm. FDA will also place on public display Specimen Banks. Surplus samples that Authority: Sections 301,306 and 308 of the any amendments to, or comments on, were initially used for laboratory assays Public Health Service Act (42 U.S.C. 241, the petitioner’s environmental included in the surveys, have since been 242k and 242M). assessment without further stored at ¥70 °C and have been through SUPPLEMENTARY INFORMATION: announcement in the Federal Register. at least two freeze-thaw cycles. They are The goals of NHANES are: (1) To If, based on its review, the agency finds stored at a commercial repository under estimate the number and percent of

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persons in the U.S. population and sampling design see the Analytic the samples in the survey, or of the designated subgroups with selected Guidelines at: http://www.cdc.gov/nchs/ specific stated goals of the proposal. diseases and risk factors; (2) to monitor about/major/nhanes/nhanes2003–2004/ Investigators are encouraged to review trends in the prevalence, awareness, analytical_guidelines.htm. the NHANES data, survey documents, treatment and control of selected Starting in 1999 to 2008 survey manuals and questionnaires at: http:// diseases; (3) to monitor trends in risk participants were informed in the www.cdc.gov/nchs/about/major/ behaviors and environmental exposures; consent document for future laboratory nhanes/nhanes99–02.htm or for (4) to analyze risk factors for selected analysis that they would not receive the NHANES III: http://www.cdc.gov/nchs/ diseases; (5) to study the relationship results from these studies. Therefore, about/major/nhanes/nh3data.htm. between diet, nutrition and health; (6) to only research projects that propose Procedures for Proposals: All explore emerging public health issues laboratory results that do not have investigators (including CDC and new technologies; and, (7) to clinical significance (see definition of investigators) must submit a proposal establish and maintain a national clinical relevance above) to an for use of NHANES specimens. probability sample of baseline individual will be accepted by NCHS. Proposals are limited to a maximum information on health and nutrition Clinical significance of a laboratory test of 10 single-spaced typed pages, status. will be judged by the NHANES Medical excluding figures and tables, using 10 Specimens are available from the Officer, but the researcher should cpi type density. The cover of the third National Health and Nutrition address this in the research proposal. proposal should include the name, Examination Survey (NHANES III) and See http://www.cdc.gov/nchs/about/ address, and phone number and E-mail the continuous NHANES that started in major/nhanes/nhanes2007–2008/ address of the principal investigator (PI) _ _ _ 1999. Approximately 30,000 individuals current nhanes 07 08.htm for a copy of and the name of the institution where were examined in NHANES III which the current consent document. the laboratory analysis will be done. All began in the fall of 1988, and ended in All proposals for use of NHANES proposals should be E-mailed to the fall of 1994. This survey can be samples will be evaluated by a technical [email protected]. Proposals must include a cover page with the title of the analyzed in two phases. Phase 1 was panel for scientific merit and by the proposal and the name, address, phone conducted from October 1988 to NHANES Ethics Review Board (ERB) for number and E-mail address of all October 1991 and Phase 2 began any potential human subjects concerns. investigators. Proposals from CDC October 1991 and ended October 1994. The NHANES ERB will review the investigators must also include Though participants consented to proposal even if the investigator has investigators’ scientific ethic storing samples of their blood for future received approval by their institutional verification number. testing only research projects that review panel. To determine if this limited resource The following criteria will be used for include results that are judged not to should be used in the proposed projects, technical evaluation of proposals: have clinical significance for a Technical Panel will evaluate the Proposals should include the participants will be accepted. Clinical public health significance and scientific following information: significance is defined by the following merit of the proposed research. (1) Specific Aims: List the broad criteria: objectives; describe concisely and • Scientific merit will be judged as to the The findings are valid and done by scientific, technical or medical realistically what the research is a CLIA-certified laboratory, and intended to accomplish, and state the • significance of the research, the The findings may have significant appropriateness and adequacy of the specific hypotheses to be tested. implications for the subjects’ health experimental approach, and the NHANES is designed to provide concerns, and prevalence estimates of diseases or • methodology proposed to reach the A course of action to ameliorate, or research goals. See ‘Criteria for conditions that are expected to affect treat the concerns is readily available. Technical Evaluation of Proposals’ between 5–10 percent of the population. There are approximately 368,473 serum below. The proposal should outline how Research proposals that expect much samples available for research proposals the results from the laboratory analysis lower prevalence estimates need to using NHANES III samples. An aliquot will be used. Because NHANES is a provide more detail on why specimens of the samples will be reserved in complex, multistage probability sample from NHANES are needed for the perpetuity. See: http://www.cdc.gov/ of the national population, the project and provide details on how nchs/about/major/nhanes/nh3data.htm appropriateness of the NHANES sample these data will be analyzed. for more information on NHANES III. to address the goals of the proposal will (2) Background and Public Health Beginning in 1999, NHANES became be an important aspect of scientific Significance: Describe the public health a continuous, annual survey with merit. The survey oversamples the two significance, scientific merit and examination of approximately 5,000 largest race/ethnic minority groups, practical utility of the assay. Briefly individuals a year and data release non-Hispanic blacks and Mexican describe in 1–2 pages the background of every two years. Proposed research Americans along with other subgroups the proposal, identifying gaps in projects and samples requested must of the population. Sampling are knowledge that the project is intended come from this two-year design (i.e. therefore used to make national to fill. State concisely the importance of request must be for 1999–2000 samples estimates of frequencies. The use of the research in terms of the broad, long- or 2001–2002, etc.). Samples from a weights, sampling frame and methods of term objectives and public health single year of the survey will not be assessment of variables included in the relevance including a discussion of how provided for research projects, but data are likely to affect the proposed the results will affect public health multiple two-year cycles may be research. The Technical Panel will policy or further scientific knowledge. requested. There are approximately review the analysis plan and evaluate The proposal should justify the need for 329,420 serum samples, 55,411 urine whether the proposal is an appropriate specimens that are representative of the samples and 79,604 plasma samples use of the NHANES population. The U.S. population. The proposer should available for research proposals. An Technical Panel will also assure that the convey how the results will be used and aliquot of the samples will be reserved proposed project does not go beyond the relationship of the results to the data in perpetuity. For details of the either the general purpose for collecting already collected in NHANES. The

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proposer should include an analysis long as this section does not exceed two Progress Reports: Brief progress plan. The analyses ought to be pages. reports will be submitted annually. This consistent with the NHANES mission (6) Period of performance: Specify the will be the basis for the NHANES ERB and the health status variables. project period. Substantial progress continuation reports that are required (3) Research Design and Methods: must be made in the first year, and the annually. Describe the research design and the project should be completed in two Disposition of Results and Samples: procedures to be used. A detailed years. If additional time is needed for No samples provided can be used for description of laboratory methods the research project a detailed any purpose other than those including validity and reliability must justification with a timeline should be specifically requested in the proposal be included with references. The included. The investigator should and approved by the Technical Panel volume of specimen and number of address his/her ability to comply with and the NHANES ERB. No sample can samples requested must be specified. this timeline or request and justify be shared with others, including other Adequate methods for handling and additional time for the project. Return of investigators, unless specified in the storage of samples must also be the specimens will be requested if proposal and so approved. Any unused addressed. The laboratory must progress is not made in the project at the samples must be returned to the demonstrate expertise in the proposed end of the second year. Refund of NHANES Specimen Bank or disposed of laboratory test including the capability payment for the specimens will not be upon completion of the approved for handling the workload requested in returned in this situation. At the end of project. These results, once returned to the proposal. The proposal should also the project period, any unused samples NCHS, will be part of the public include a justification for determination must be returned to the NHANES domain. The proposer will have 90 days of sample size or a power calculation. If Specimen Bank or discarded. The NCHS for quality control review of the data the researcher is requesting a sub- Project Officer must be consulted about before public release. sample of specimens, a detailed the disposition of the samples. Proposed Cost Schedule for Providing description and justification, must be (7) Funding: Include the source and NHANES Specimens: A nominal status of the funding to perform the given. The researcher must describe processing fee of $8.50 is proposed for requested laboratory analysis should be how this sub-sample will be re-weighted each sample received from the NHANES included. Investigators will be to provide national estimates. The Specimen Bank. The costs include both responsible for the cost of processing program will evaluate the study design the collection, storage and processing of and shipping the samples. The cost per and analysis plan in the proposal to the specimens along with the review of specimen is $6.50. The basis for the cost determine whether the project is proposals and the preparation of the structure is in the last section of this consistent with the design of the data files. These costs were based on an document. Reimbursement for the NHANES survey. Sub-samples are less assumption that NCHS will receive and samples will be collected before the useful to the research community when process eight proposals in a year, each samples are released. requesting 5,000 samples as shown in the data are released in the public Submission of Proposals: Proposals the table below. domain, so such requests will receive a can be submitted in MS Word format by The materials listed are for the lower priority for the specimens. e-mail to: Dr. Geraldine McQuillan, recurring laboratory costs to dispense Restricting a research proposal to Division of Health and Nutrition and prepare the samples during demographic categories that are design Examination Surveys, National Center collection and for shipping; the variables for the survey is encouraged if for Health Statistics, Centers for Disease computer software needed for the laboratory testing must be restricted. Control and Prevention, 3311 Toledo (4) Clinical Significance or results: Road, Room 4204, Hyattsville, MD preparation of the data files and for the Since the consent document for 20782, Phone: 301–458–4371 Fax: 301– release of the data along with specimen storage and continuing 458–4028, e-mail: [email protected]. documentation on the NHANES Web studies states that individual results Approved Proposals: Approved page. Labor costs are based on a will not be provided, the clinical projects will be provided specimens on proposal administrator and computer significance of the proposed laboratory receipt of a signed Materials Transfer programmers at NCHS to prepare the test should be addressed. The proposal Agreement (MTA) and a check (written data files. The storage and pulling fees should include a discussion of the to The Centers for Disease Control and include the costs for the NHANES potential clinical significance of the Prevention) for the cost of the repository. results and whether there is definitive specimens. All laboratory results evidence that results of the test would Cost per obtained from the samples will be sent Total costs vial provide grounds for medical back to NCHS to be linked to the intervention even if many years have sequence number that is the linking Labor ...... $1.15 passed since the examination of the identifier on the public use files. All Collection Storage ...... 4.10 participant and collection of the sample. files will undergo disclosure review at Pulling specimens ...... 1.04 Any test with results that should be NCHS. Within 90 days of the return of Shipping ...... 0.32 reported to a participant should be the data to NCHS these data may be Subtotal ...... 6.61 considered for inclusion in the released to the public. CDC/FMO support (9%) ...... 0.59 concurrent survey, and is not Agency Agreement: A formal signed Subtotal ...... 7.20 appropriate for testing on the stored agreement in the form of a Materials NCHS support (18%) ...... 1.30 samples. Transfer Agreement (MTA) with (5) Qualification: Provide a brief individuals who have projects approved Total ...... 8.50 description of the Principal will be completed before the release of Investigator’s expertise in the proposed the samples. This agreement will Comments are solicited on the area should be provided, including contain the conditions for use of the proposed cost schedule. Comments are publications in this area within the last samples as stated in this document and due by: August 20, 2009. three years. A representative sample of as agreed upon by the investigators and Send Comments and Requests for earlier publications may be listed as CDC. Information to: Dr. Geraldine

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McQuillan, Division of Health and written or electronic comments on the States, and includes input from both Nutrition Examination Surveys, draft guidance by August 20, 2009. regulatory and industry representatives. National Center for Health Statistics, ADDRESSES: Submit written requests for The VICH Steering Committee is Centers for Disease Control and single copies of the draft guidance to the composed of member representatives Prevention, 3311 Toledo Road, Room Communications Staff (HFV–12), Center from: The European Commission, 4204, Hyattsville, MD 20782, Phone: for Veterinary Medicine, Food and Drug European Medicines Evaluation Agency, 301–458–4371; Fax: 301–458–4028, e- Administration, 7519 Standish Pl., European Federation of Animal Health, mail: [email protected]. Rockville, MD 20855. Send one self- Committee on Veterinary Medicinal Products, the U.S. FDA, the U.S. Tanja Popovic, addressed adhesive label to assist that office in processing your request. Department of Agriculture, the Animal Chief Science Officer, Centers for Disease Submit written comments on the draft Health Institute, the Japanese Veterinary Control and Prevention. guidance to the Division of Dockets Pharmaceutical Association, the [FR Doc. E9–17267 Filed 7–20–09; 8:45 am] Management (HFA–305), Food and Drug Japanese Association of Veterinary BILLING CODE 4163–18–P Administration, 5630 Fishers Lane, rm. Biologics, and the Japanese Ministry of 1061, Rockville, MD 20852. Submit Agriculture, Forestry, and Fisheries. electronic comments to http:// Four observers are eligible to DEPARTMENT OF HEALTH AND participate in the VICH Steering HUMAN SERVICES www.regulations.gov. See the SUPPLEMENTARY INFORMATION section for Committee: One representative from the government of Australia/New Zealand, Food and Drug Administration electronic access to the draft guidance document. one representative from the industry in Australia/New Zealand, one [Docket No. FDA–2009–D–0309] FOR FURTHER INFORMATION CONTACT: representative from the government of Dennis Bensley, Center for Veterinary Canada, and one representative from the International Cooperation on Medicine (HFV–140), Food and Drug industry of Canada. The VICH Harmonisation of Technical Administration, 7500 Standish Place, Secretariat, which coordinates the Requirements for Registration of Rockville, MD 20855, 240–276–8268, e- preparation of documentation, is Veterinary Medicinal Products (VICH); mail: [email protected]. provided by the International Draft Guidance for Industry on SUPPLEMENTARY INFORMATION: Federation for Animal Health (IFAH). Bracketing and Matrixing Designs for I. Background An IFAH representative also Stability Testing of New Veterinary participates in the VICH Steering Drug Substances and Medicinal FDA is announcing the availability of Committee meetings. Products (VICH GL45); Availability a draft guidance for industry (#198) entitled ‘‘Draft Guidance for Industry on II. Draft Guidance on Bracketing and AGENCY: Food and Drug Administration, Bracketing and Matrixing Designs for Matrixing Designs for Stability Testing HHS. Stability Testing of New Veterinary The VICH Steering Committee held a ACTION: Notice. Drug Substances and Medicinal meeting on February 11, 2008, and Products,’’ VICH GL45. In recent years, agreed that the draft guidance document SUMMARY: The Food and Drug many important initiatives have been entitled ‘‘Draft Guidance for Industry on Administration (FDA) is announcing the undertaken by regulatory authorities Bracketing and Matrixing Designs for availability of a draft guidance for and industry associations to promote Stability Testing of New Veterinary # industry ( 198) entitled ‘‘Draft Guidance the international harmonization of Drug Substances and Medicinal for Industry on Bracketing and regulatory requirements. FDA has Products,’’ VICH GL45 should be made Matrixing Designs For Stability Testing participated in efforts to enhance available for public comment. This draft of New Veterinary Drug Substances and harmonization and has expressed its VICH guidance document provides Medicinal Products,’’ VICH GL45. This commitment to seek scientifically based guidance on bracketing and matrixing draft guidance has been developed for harmonized technical procedures for the study designs. Specific principles are veterinary use by the International development of pharmaceutical defined in this guidance for situations Cooperation on Harmonisation of products. One of the goals of in which bracketing or matrixing can be Technical Requirements for Registration harmonization is to identify and then applied. This document is intended to of Veterinary Medicinal Products reduce differences in technical address recommendations on the (VICH). This draft guidance is an annex requirements for drug development application of bracketing and matrixing to a VICH guidance entitled ‘‘Stability among regulatory agencies in different to stability studies conducted in Testing of New Veterinary Drug countries. accordance with principles outlined in Substances and Medicinal Products FDA has actively participated in the the VICH GL3(R), ‘‘Stability Testing of (Revision),’’ VICH GL3(R), that International Conference on New Veterinary Drug Substances and published in the Federal Register of Harmonisation of Technical Medicinal Products (Revision).’’ FDA November 23, 2007 (72 FR 65751). This Requirements for Approval of and the VICH Expert Quality Working draft VICH guidance document is Pharmaceuticals for Human Use for Group will consider comments about intended to provide guidance on the several years to develop harmonized the draft guidance document. application of reduced designs (i.e., technical requirements for the approval bracketing and matrixing) for stability of human pharmaceutical and biological III. Paperwork Reduction Act of 1995 studies conducted in accordance with products among the European Union, This draft guidance refers to the principles outlined in VICH GL3(R). Japan, and the United States. The VICH previously approved collections of DATES: Although you can comment on is a parallel initiative for veterinary information found in FDA regulations. any guidance at any time (see 21 CFR medicinal products. The VICH is These collections of information are 10.115(g)(5)), to ensure that the agency concerned with developing harmonized subject to review by the Office of considers your comment on this draft technical requirements for the approval Management and Budget (OMB) under guidance before it begins work on the of veterinary medicinal products in the the Paperwork Reduction Act of 1995 final version of the guidance submit European Union, Japan, and the United (44 U.S.C. 3501–3520). The collections

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of information in sections 1–2 of this This notice announces a forthcoming will be posted on FDA’s Web site after guidance have been approved under meeting of a public advisory committee the meeting. Background material is OMB Control No. 0910–0032. of the Food and Drug Administration available at http://www.fda.gov/ (FDA). The meeting will be open to the IV. Significance of Guidance AdvisoryCommittees/Calendar/ public. default.htm, click on the year 2009 and This draft guidance, developed under Name of Committee: Risk scroll down to the appropriate advisory the VICH process, has been revised to Communication Advisory Committee. committee link. conform to FDA’s good guidance General Function of the Committee: practices regulation (21 CFR 10.115). To provide advice and Procedure: Interested persons may For example, the document has been recommendations to the agency on present data, information, or views, designated ‘‘guidance’’ rather than FDA’s regulatory issues. orally or in writing, on issues pending ‘‘guideline.’’ In addition, guidance Date and Time: The meeting will be before the committee. Written documents must not include mandatory held on August 13, 2009, from 8 a.m. to submissions may be made to the contact language such as ‘‘shall,’’ ‘‘must,’’ 5 p.m. and August 14, 2009, from 8 a.m. person on or before August 7, 2009. Oral ‘‘require,’’ or ‘‘requirement,’’ unless to 2 p.m. presentations from the public will be FDA is using these words to describe a Location: National Transportation scheduled between approximately 1 statutory or regulatory requirement. Safety Board (NTSB) Conference Center, p.m. and 2 p.m. on August 13th and The draft guidance, when finalized, 429 L’Enfant Plaza SW., Washington, 10:30 to 11:30 a.m. on August 14th. will represent the agency’s current DC 20594 (at Metro’s L’Enfant Plaza Those desiring to make formal oral station; parking is limited and public thinking on this topic. It does not create presentations should notify the contact transportation is recommended.) or confer any rights for or on any person person and submit a brief statement of and does not operate to bind FDA or the Contact Person: Lee L. Zwanziger, Office of the Commissioner, Office of the general nature of the evidence or public. An alternative approach may be arguments they wish to present, the used if such approach satisfies the Policy, Planning and Preparedness, Office of Planning, Food and Drug names and addresses of proposed requirements of applicable statutes and participants, and an indication of the regulations. Administration, 5600 Fishers Lane, rm. 14–90, Rockville, MD 20857, 301–827– approximate time requested to make V. Comments 2895, FAX: 301–827–4050, e-mail: their presentation on or before August 6, Interested persons may submit to the [email protected], or FDA Advisory 2009. Time allotted for each Division of Dockets Management (see Committee Information Line, 1–800– presentation may be limited. If the ADDRESSES) written or electronic 741–8138 (301–443–0572 in the number of registrants requesting to comments regarding this document. Washington, DC area), code speak is greater than can be reasonably Submit a single copy of electronic 8732112560. Please call the Information accommodated during the scheduled comments or two paper copies of any Line for up-to-date information on this open public hearing session, FDA may mailed comments, except that meeting. A notice in the Federal conduct a lottery to determine the individuals may submit one paper copy. Register about last minute modifications speakers for the scheduled open public Comments are to be identified with the that impact a previously announced hearing session. The contact person will docket number found in brackets in the advisory committee meeting cannot notify interested persons regarding their heading of this document. Received always be published quickly enough to request to speak by August 7, 2009. comments may be seen in the Division provide timely notice. Therefore, you should always check the agency’s Web Persons attending FDA’s advisory of Dockets Management between 9 a.m. committee meetings are advised that the and 4 p.m., Monday through Friday. site and call the appropriate advisory committee hot line/phone line to learn agency is not responsible for providing VI. Electronic Access about possible modifications before access to electrical outlets. Persons with access to the Internet coming to the meeting. FDA welcomes the attendance of the may obtain the draft guidance at either Agenda: On August 13 and 14, 2009, public at its advisory committee http://www.fda.gov/cvm or http:// the Committee will discuss FDA’s meetings and will make every effort to www.regulations.gov. external research on, and internal accommodate persons with physical assessment of, communications about Dated: July 10, 2009. disabilities or special needs. If you food safety problems. This discussion Jeffrey Shuren, require special accommodations due to will address research on consumer a disability, please contact Lee L. Associate Commissioner for Policy and knowledge of food recalls and plans for Zwanziger at least 7 days in advance of Planning. how to monitor communication the meeting. [FR Doc. E9–17251 Filed 7–20–09; 8:45 am] effectiveness during the course of a BILLING CODE 4160–01–S recall. The purpose of the discussion is FDA is committed to the orderly to advise FDA on developing more conduct of its advisory committee effective communication strategies. Also meetings. Please visit our Web site at DEPARTMENT OF HEALTH AND on August 14, 2009, the RCAC will be http://www.fda.gov/Advisory HUMAN SERVICES briefed on the work of the FDA Committees/AboutAdvisoryCommittees/ Food and Drug Administration Transparency Task Force. ucm111462.htm for procedures on FDA intends to make background public conduct during advisory [Docket No. FDA–2009–N–0664] material available to the public no later committee meetings. than 2 business days before the meeting. Risk Communication Advisory If FDA is unable to post the background Dated: July 10, 2009. Committee; Notice of Meeting material on its Web site prior to the Randall W. Lutter, AGENCY: Food and Drug Administration, meeting, the background material will Deputy Commissioner for Policy. HHS. be made publicly available at the [FR Doc. E9–17222 Filed 7–20–09; 8:45 am] location of the advisory committee ACTION: Notice. BILLING CODE 4160–01–S meeting, and the background material

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DEPARTMENT OF HEALTH AND Dated: July 14, 2009. Dated: July 16, 2009. HUMAN SERVICES Jennifer Spaeth, Elaine L. Baker, Director, Office of Federal Advisory Director, Management Analysis and Services National Institutes of Health Committee Policy. Office, Centers for Disease Control and [FR Doc. E9–17191 Filed 7–20–09; 8:45 am] Prevention. National Institute of General Medical [FR Doc. E9–17359 Filed 7–20–09; 8:45 am] Sciences; Notice of Closed Meetings BILLING CODE 4140–01–M BILLING CODE 4163–18–P

Pursuant to section 10(d) of the DEPARTMENT OF HEALTH AND Federal Advisory Committee Act, as HUMAN SERVICES DEPARTMENT OF HOMELAND amended (5 U.S.C. App.), notice is SECURITY hereby given of the following meetings. Centers for Disease Control and The meetings will be closed to the Prevention Office of the Secretary public in accordance with the [Docket No. DHS–2009–0089] provisions set forth in sections Disease, Disability, and Injury Prevention and Control 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Privacy Act of 1974; Department of as amended. The grant applications and Special Emphasis Panel (SEP): Health Homeland Security—028 Complaint the discussions could disclose Promotion and Disease Prevention Tracking System of Records confidential trade secrets or commercial Research Centers, Special Interest property such as patentable material, AGENCY: Privacy Office, DHS. Project Competitive Supplements (SIPS) and personal information concerning ACTION: (U48 Panels N, O and P), RFA–DP09– Notice of Privacy Act system of individuals associated with the grant 101SUPP09, Initial Review records. applications, the disclosure of which would constitute a clearly unwarranted In accordance with Section 10(a)(2) of SUMMARY: In accordance with the invasion of personal privacy. the Federal Advisory Committee Act Privacy Act of 1974, the Department of (Pub. L. 92–463), the Centers for Disease Homeland Security proposes to Name of Committee: National Institute of General Medical Sciences; Special Emphasis Control and Prevention (CDC) establish a new Department of Panel Plant Transcriptomes—ARRA Funds. announces the aforementioned meeting. Homeland Security system of records Date: August 6, 2009. Time and Dates: notice titled, DHS/ALL–028 Complaint Tracking System. Complaint Tracking Time: 10:30 a.m. to 4 p.m. 9 a.m.–5 p.m., August 5, 2009 (closed). Agenda: To review and evaluate grant System is a correspondence workflow applications. 9 a.m.–5 p.m., August 6, 2009 (closed). management system that assists the DHS Place: National Institutes of Health, 9 a.m.–5 p.m., August 7, 2009 (closed). Privacy Office in responding to Natcher Building, Room 3AN18, 45 Center complaints, comments and requests for Drive, Bethesda, MD 20892, (Telephone Place: Westin Hotel, 3377 Peachtree Road, NE., Atlanta, GA, 30326, redress from the public, other Conference Call). government agencies, and the private Contact Person: John J. Laffan, PhD, Telephone (678) 500–3100. sector. Complaint Tracking System Scientific Review Administrator, Office of Status: The meeting will be closed to Scientific Review, National Institute of provides the capacity to handle the public in accordance with correspondence that requires analysis, General Medical Sciences, National Institutes provisions set forth in Section 552b(c) of Health, Natcher Building, Room 3AN18J, storage, categorization, and response Bethesda, MD 20892, 301–594–2773. (4) and (6), Title 5 U.S.C., and the from DHS Privacy Office personnel. It Determination of the Director, Name of Committee: National Institute of allows users to manage correspondence General Medical Sciences Special Emphasis Management Analysis and Services tracking with pre-defined routing inside Panel; ZGM1–GDB–2–BG—ARRA Funds. Office, CDC, pursuant to Public Law 92– workflow templates. This newly Date: August 7, 2009. 463. established system will be included in Time: 1 p.m. to 4 p.m. Matters To Be Discussed: The meeting the Department of Homeland Security’s Agenda: To review and evaluate grant will include the review, discussion, and inventory of record systems. applications. evaluation of the application received in DATES: Written comments must be Place: National Institutes of Health, response to ‘‘Health Promotion and Natcher Building, Room 3AN18, 45 Center submitted on or before August 20, 2009. Drive, Bethesda, MD 20892, (Telephone Disease Prevention Research Centers, The established system of records will Conference Call). Special Interest Project Competitive be effective August 20, 2009. Contact Person: Arthur L. Zachary, PhD, Supplements (SIPS) (U48 Panels N, O ADDRESSES: You may submit comments, Scientific Review Officer, Office of Scientific and P), RFA–DP09–101SUPP09, initial identified by docket number DHS– Review, National Institute of General Medical review.’’ 2009–0089 by one of the following Sciences, National Institutes of Health, Contact Person for More Information: Natcher Building, Room 3AN–12, Bethesda, methods: MD 20892, (301) 594–2886, Brenda Colley-Gilbert, PhD, Director, • Federal e-Rulemaking Portal: http:// [email protected]. Extramural Research Program Office, www.regulations.gov. Follow the (Catalogue of Federal Domestic Assistance CCH, 47770 Buford Highway, MS K–92, instructions for submitting comments. Program Nos. 93.375, Minority Biomedical Atlanta, GA 30341, Telephone (770) • Fax: 703–483–2999. Research Support; 93.821, Cell Biology and 488–8390. • Mail: Mary Ellen Callahan, Chief Biophysics Research; 93.859, Pharmacology, The Director, Management Analysis Privacy Officer, Privacy Office, Physiology, and Biological Chemistry and Services Office, has been delegated Department of Homeland Security, Research; 93.862, Genetics and the authority to sign Federal Register Washington, DC 20528. Developmental Biology Research; 93.88, • Minority Access to Research Careers; 93.96, notices pertaining to announcements of Instructions: All submissions Special Minority Initiatives; 93.701, ARRA meetings and other committee received must include the agency name Related Biomedical Research and Research management activities, for both CDC and docket number for this rulemaking. Support Awards, National Institutes of and the Agency for Toxic Substances All comments received will be posted Health, HHS) and Disease Registry. without change to http://

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www.regulations.gov, including any the public, other government agencies, SECURITY CLASSIFICATION: personal information provided. and the private sector. Complaint Unclassified. • Docket: For access to the docket to Tracking System provides the capacity SYSTEM LOCATION: read background documents or to handle correspondence that requires comments received go to http:// analysis, storage, categorization, and Records are maintained at the DHS www.regulations.gov. response from DHS Privacy Office Data Center in Washington, DC and at personnel. It allows users to manage a limited number of remote locations FOR FURTHER INFORMATION CONTACT: For where DHS components or programs general questions and privacy issues, correspondence tracking with pre- defined routing inside workflow maintain secure facilities and conduct please contact: Mary Ellen Callahan, the mission of DHS. (703–235–0780), Chief Privacy Officer, templates. This newly established Privacy Office, U.S. Department of system will be included in the CATEGORIES OF INDIVIDUALS COVERED BY THE Homeland Security, Washington, DC Department of Homeland Security’s SYSTEM: 20528. inventory of record systems. A. All individuals who submit information through the DHS CTS. SUPPLEMENTARY INFORMATION: II. Privacy Act B. All individuals whose records have I. Background The Privacy Act embodies fair been referred to a DHS component or information principles in a statutory The Department of Homeland program redress process by other framework governing the means by components, programs, or agencies in Security (DHS) is establishing a new which the United States Government system of records pursuant to the connection with DHS CTS. collects, maintains, uses, and C. Attorneys or other persons Privacy Act of 1974 (5 U.S.C. 552a), disseminates individuals’ records. The representing individuals submitting entitled the Complaint Tracking System Privacy Act applies to information that such requests and appeals and (CTS). The Privacy Office conducted is maintained in a ‘‘system of records.’’ individuals who are the subjects of such this SORN because CTS is a group of A ‘‘system of records’’ is a group of any requests. records under the control of DHS that is records under the control of an agency D. DHS personnel or contractors retrieved by the name of an individual for which information is retrieved by assigned to handle such requests or or other identifier particular to the the name of an individual or by some appeals. individual. identifying number, symbol, or other In accordance with its statutory CATEGORIES OF RECORDS IN THE SYSTEM: identifying particular assigned to the responsibilities, the DHS Privacy Office individual. In the Privacy Act, an A. Individual’s name; prefix, suffix, or receives numerous complaints, individual is defined to encompass title; date of birth; gender; social comments, and requests for redress of United States citizens and lawful security number; country of origin; privacy issues throughout the year. This permanent residents. As a matter of organization; contact information; correspondence requires analysis, policy, DHS extends administrative phone number; fax number; e-mail storage, categorization, and coordinated Privacy Act protections to all address; address; application responses. The CTS is a workflow individuals where systems of records information, including the date of system that Privacy Office personnel maintain information on U.S. citizens, request and a description of the utilize to respond efficiently to inquiries lawful permanent residents, and circumstances that led to the request of from the public and other government visitors. Individuals may request access the redress form; passport number; and private-sector agencies. CTS allows to their own records that are maintained appropriate immigration documents; users to manage correspondence in a system of records in the possession documents used to support application tracking with pre-defined routing inside or under the control of DHS by for entry; correspondence from workflow templates. complying with DHS Privacy Act individuals regarding their redress Consistent with DHS’s information requests; records of contacts made by or sharing mission, information stored in regulations, 6 CFR Part 5. The Privacy Act requires each agency on behalf of individuals; documents the CTS may be shared with other DHS to publish in the Federal Register a submitted to verify identity or otherwise components, as well as appropriate description denoting the type and support the request for redress; and any Federal, State, local, tribal, foreign, or character of each system of records that other document relevant and international government agencies. This the agency maintains, and the routine appropriate to the particular complaint. sharing will take place only after DHS uses that are contained in each system B. For those issuing complaints as determines that the receiving in order to make agency record keeping representatives of affected individuals, component or agency has a need to practices transparent, to notify representative name, contact know the information to carry out individuals regarding the uses to their information, phone number, e-mail national security, law enforcement, records are put, and to assist individuals address, relationship to the affected immigration, intelligence, or other to more easily find such files within the individuals, and power of attorney. functions consistent with the routine agency. Below is the description of the C. The name of the DHS component, uses set forth in this system of records Complaint Tracking System of Records. DHS program, or other Federal agency, notice. In accordance with 5 U.S.C. 552a(r), which will be responsible for addressing In accordance with the Privacy Act of DHS has provided a report of this the incoming complaint as well as 1974, the Department of Homeland system of records to the Office of supporting components or agencies. Security proposes to establish a new Management and Budget and to D. Administrative and contact Department of Homeland Security Congress. information concerning DHS employees, system of records notice titled, DHS/ contractors, or other agency ALL–028 Complaint Tracking System. System of Records: representatives associated with the Complaint Tracking System is a DHS/ALL–028 processing and/or adjudication of correspondence workflow management requests submitted to the complaint system that assists the DHS Privacy SYSTEM NAME: process. Office in responding to complaints, Department of Homeland Security E. Appropriate information to reflect comments and requests for redress from Complaint Tracking System. the resolution of a particular complaint,

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information determined during audit or oversight operations as who has requested such redress on adjudication of the case, and sensitive authorized by law, but only such behalf of another individual. information relevant to the complaint information as is necessary and relevant I. To an authorized appeal or for the individual. to such audit or oversight function. grievance examiner, formal complaints E. To appropriate agencies, entities, AUTHORITY FOR MAINTENANCE OF THE SYSTEM: examiner, equal employment and persons when: opportunity investigator, arbitrator, or The collection of documents within 1. DHS suspects or has confirmed that other duly authorized official engaged CTS is governed by 5 U.S.C. 301 the security or confidentiality of in investigation or settlement of a (general agency powers for information in the system of records has grievance, complaint, or appeal filed by recordkeeping), the Privacy Act of 1974, been compromised; an employee. as amended (5 U.S.C. 552a), and 6 2. The Department has determined U.S.C. 142 (providing for appointment that as a result of the suspected or J. To appropriate agencies, entities, of a Privacy Officer to assure, in part, confirmed compromise there is a risk of and persons when: (1) It is suspected or that personal information contained in harm to economic or property interests, confirmed that the security or Privacy Act system of records is identity theft or fraud, or harm to the confidentiality of information in the handled in full compliance with fair security or integrity of this system or System of Records has been information practices). other systems or programs (whether compromised; (2) DHS has determined maintained by DHS or another agency or that, as a result of the suspected or PURPOSE(S): entity) or harm to the individual that confirmed compromise, there is a risk of The purpose of this system is to assist rely upon the compromised harm to economic or property interests, the Privacy Office in responding to information; and identity theft or fraud, or harm to the complaints, comments and requests for 3. The disclosure made to such security or integrity of this system or redress from the public, other agencies, entities, and persons is other systems or programs (whether government agencies, and the private reasonably necessary to assist in maintained by DHS or another agency or sector. connection with DHS’s efforts to entity) that rely upon the compromised information; and (3) the disclosure is ROUTINE USES OF RECORDS MAINTAINED IN THE respond to the suspected or confirmed SYSTEM, INCLUDING CATEGORIES OF USERS AND compromise and prevent, minimize, or made to such agencies, entities, and THE PURPOSES OF SUCH USES: remedy such harm. persons who are reasonably necessary to In addition to those disclosures F. To contractors and their agents, assist in connection with the DHS’s generally permitted under 5 U.S.C. grantees, experts, consultants, and efforts to respond to the suspected or 552a(b) of the Privacy Act, all or a others performing or working on a confirmed compromise and prevent, portion of the records or information contract, service, grant, cooperative minimize, or remedy such harm. contained in this system may be agreement, or other assignment for DHS, K. To the news media and the public, disclosed outside DHS as a routine use when necessary to accomplish an with the approval of the Chief Privacy pursuant to 5 U.S.C. 552a(b)(3) as agency function related to this system of Officer in consultation with counsel, follows: records. Individuals provided when there exists a legitimate public A. To the Department of Justice information under this routine use are interest in the disclosure of the (including United States Attorney subject to the same Privacy Act information or when disclosure is Offices) or other Federal agency requirements and limitations on necessary to preserve confidence in the conducting litigation or in proceedings disclosure as are applicable to DHS integrity of DHS or is necessary to before any court, adjudicative or officers and employees. demonstrate the accountability of DHS’s administrative body, when: G. To an appropriate Federal, State, officers, employees, or individuals 1. DHS or any component thereof; tribal, local, international, or foreign law covered by the system, except to the 2. Any employee of DHS in his/her enforcement agency or other appropriate extent it is determined that release of official capacity; authority charged with investigating or the specific information in the context 3. Any employee of DHS in his/her prosecuting a violation or enforcing or of a particular case would constitute an individual capacity where DOJ or DHS implementing a law, rule, regulation, or unwarranted invasion of personal has agreed to represent the employee; or order, where a record, either on its face privacy. 4. The United States or any agency or in conjunction with other thereof, is a party to the litigation or has information, indicates a violation or DISCLOSURE TO CONSUMER REPORTING an interest in such litigation, and DHS potential violation of law, which AGENCIES: determines that the records are both includes criminal, civil, or regulatory None. relevant and necessary to the litigation violations and such disclosure is proper and the use of such records is and consistent with the official duties of POLICIES AND PRACTICES FOR STORING, compatible with the purpose for which the person making the disclosure. RETRIEVING, ACCESSING, RETAINING, AND DHS collected the records. H. To a Federal, State, tribal, local, DISPOSING OF RECORDS IN THE SYSTEM: international, or foreign government B. To a congressional office from the STORAGE: record of an individual in response to agency or entity for the purpose of an inquiry from that congressional office consulting with that agency or entity: (1) Records in this system are stored made at the request of the individual to To assist in making a determination electronically or on paper in secure whom the record pertains. regarding redress for an individual in facilities. Electronic records are stored C. To the National Archives and connection with the operations of a DHS on magnetic disc, tape, and digital Records Administration or other Federal component or program; (2) for the media. government agencies pursuant to purpose of verifying the identity of an RETRIEVABILITY: records management inspections being individual seeking redress in conducted under the authority of 44 connection with the operations of a DHS Data are retrievable by the U.S.C. 2904 and 2906. component or program; or (3) for the individual’s name or other identifier, D. To an agency, organization, or purpose of verifying the accuracy of such as case number, as well as non- individual for the purpose of performing information submitted by an individual identifying information.

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SAFEGUARDS: Act regulations set forth in 6 CFR Part U.S.C. 552a(j)(2), (k)(1), (k)(2), and Information in this system is 5. You must first verify your identity, (k)(5), DHS will also claim the original safeguarded in accordance with meaning that you must provide your full exemption for these records or applicable laws, rules, and policies, name, current address and date and information from subsections (c)(3) and including the DHS Information place of birth. You must sign your (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), Technology Security Program request, and your signature must either (4)(G) through (I), (5), and (8); (f); and (g) Handbook. The CTS security protocols be notarized or submitted under 28 of the Privacy Act of 1974, as amended, will meet applicable NIST Security U.S.C. 1746, a law that permits as necessary and appropriate to protect Standards, from Authentication to statements to be made under penalty of such information. Such exempt records Certification and Accreditation. Records perjury as a substitute for notarization. or information may be law enforcement in the system will be maintained in a While no specific form is required, you or national security investigation secure, password-protected electronic may obtain forms for this purpose from records, law enforcement activity and system that will utilize security the Director, Disclosure and FOIA, encounter records, or terrorist screening hardware and software to include http://www.dhs.gov/foia or 1–866–431– records. multiple firewalls, active intruder 0486. In addition you should provide These records could come from detection, and role-based access the following: various DHS systems, such as the controls. All records are protected from • An explanation of why you believe Treasury Enforcement Communications unauthorized access through the Department would have information System (TECS) and the Transportation appropriate administrative, physical, on you, Security Information System (TSIS), or and technical safeguards. These • Identify which component(s) of the from third agency systems. DHS, after safeguards include restricting access to Department you believe may have the conferring with the appropriate authorized personnel who have a need- information about you, component or agency, may waive to-know, using locks, and password • Specify when you believe the applicable exemptions in appropriate protection identification features. DHS records would have been created, circumstances and where it would not file areas are locked after normal duty • Provide any other information that appear to interfere with or adversely hours and the facilities are protected will help the FOIA staff determine affect the law enforcement or national from the outside by security personnel. which DHS component agency may security purposes of the systems from have responsive records, which the information is recompiled or RETENTION AND DISPOSAL: • If your request is seeking records in which it is contained. As required CTS handles both information pertaining to another living individual, under the Privacy Act, DHS will issue collected directly from the individual you must include a statement from that a rule to describe more fully the needs and information collected from DHS individual certifying his/her agreement and requirements for taking such components and other agencies. DHS is for you to access his/her records. exemptions on such information. working on a retention schedule with its Without this bulleted information the Senior Records Officer for information Dated: July 14, 2009. component(s) may not be able to Mary Ellen Callahan, collected directly from the individual. It conduct an effective search, and your is anticipated that the retention period Chief Privacy Officer, Department of request may be denied due to lack of Homeland Security. for these records will be up to seven specificity or lack of compliance with [FR Doc. E9–17320 Filed 7–20–09; 8:45 am] years. To the extent information is applicable regulations. collected from other systems, data is BILLING CODE 9110–9L–P retained in accordance with the record RECORD ACCESS PROCEDURES: retention requirements of those systems. See ‘‘Notification procedure’’ above. DEPARTMENT OF HOMELAND SYSTEM MANAGER AND ADDRESS: CONTESTING RECORD PROCEDURES: SECURITY The System Manager is the Program See ‘‘Notification procedure’’ above. Manager, DHS CTS, U.S. Department of Federal Emergency Management Homeland Security, Washington, DC RECORD SOURCE CATEGORIES: Agency 20528. Any person, including citizens and representatives of Federal, State or local [Internal Agency Docket No. FEMA–1850– NOTIFICATION PROCEDURE: governments; businesses; and DR; Docket ID FEMA–2008–0018] Individuals seeking notification of industries. Any Federal system with and access to any record contained in records appropriate and relevant to the Illinois; Major Disaster and Related this system of records, or seeking to redress process, including the Intranet Determinations contest its content, may submit a Quorum system. AGENCY: request in writing to the Headquarters or Federal Emergency component’s FOIA Officer, whose EXEMPTIONS CLAIMED FOR THE SYSTEM: Management Agency, DHS. contact information can be found at No exemption shall be asserted with ACTION: Notice. http://www.dhs.gov/foia under respect to information submitted by and SUMMARY: ‘‘contacts.’’ If an individual believes collected from the individual or the This is a notice of the more than one component maintains individual’s representative in the course Presidential declaration of a major Privacy Act records concerning him or of any redress process associated with disaster for the State of Illinois (FEMA– her, the individual may submit the this System of Records. 1850–DR), dated July 2, 2009, and request to Chief Privacy Officer, This system, however, may contain related determinations. Department of Homeland Security, records or information recompiled from DATES: Effective Date: July 2, 2009. Washington, DC 20528. or created from information contained FOR FURTHER INFORMATION CONTACT: When seeking records about yourself in other systems of records, which are Peggy Miller, Disaster Assistance from this system of records or any other exempt from certain provisions of the Directorate, Federal Emergency Departmental system of records, your Privacy Act. For these records or Management Agency, 500 C Street, SW., request must conform with the Privacy information only, in accordance with 5 Washington, DC 20472, (202) 646–3886.

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SUPPLEMENTARY INFORMATION: Notice is and Households—Other Needs; 97.036, (Presidentially Declared Disasters); 97.039, hereby given that, in a letter dated July Disaster Grants—Public Assistance Hazard Mitigation Grant. 2, 2009, the President issued a major (Presidentially Declared Disasters); 97.039, W. Craig Fugate, disaster declaration under the authority Hazard Mitigation Grant. Administrator, Federal Emergency of the Robert T. Stafford Disaster Relief W. Craig Fugate, Management Agency. and Emergency Assistance Act, 42 Administrator, [FR Doc. E9–17223 Filed 7–20–09; 8:45 am] U.S.C. 5121 et seq. (the ‘‘Stafford Act’’), Federal Emergency Management Agency. BILLING CODE 9111–23–P as follows: [FR Doc. E9–17217 Filed 7–20–09; 8:45 am] I have determined that the damage in BILLING CODE 9111–23–P certain areas of the State of Illinois resulting from severe storms, flooding, and tornadoes DEPARTMENT OF HOMELAND SECURITY during the period of May 8–9, 2009, is of DEPARTMENT OF HOMELAND sufficient severity and magnitude to warrant a major disaster declaration under the Robert SECURITY Federal Emergency Management T. Stafford Disaster Relief and Emergency Agency Assistance Act, 42 U.S.C. 5121 et seq. (the Federal Emergency Management ‘‘Stafford Act’’). Therefore, I declare that such Agency a major disaster exists in the State of Illinois. [Internal Agency Docket No. FEMA–1844– DR; Docket ID FEMA–2008–0018] In order to provide Federal assistance, you [Internal Agency Docket No. FEMA–1838– are hereby authorized to allocate from funds DR; Docket ID FEMA–2008–0018] available for these purposes such amounts as South Dakota; Amendment No. 1 to you find necessary for Federal disaster West Virginia; Amendment No. 7 to Notice of a Major Disaster Declaration assistance and administrative expenses. Notice of a Major Disaster Declaration You are authorized to provide Public AGENCY: Federal Emergency Assistance in the designated areas, Hazard AGENCY: Federal Emergency Management Agency, DHS. Mitigation throughout the State and any other forms of assistance under the Stafford Management Agency, DHS. ACTION: Notice. Act that you deem appropriate. Consistent ACTION: Notice. with the requirement that Federal assistance SUMMARY: This notice amends the notice is supplemental, any Federal funds provided SUMMARY: This notice amends the notice under the Stafford Act for Public Assistance of a major disaster declaration for the of a major disaster declaration for the State of South Dakota (FEMA–1844– and Hazard Mitigation will be limited to 75 State of West Virginia (FEMA–1838– percent of the total eligible costs. If Other DR), dated June 16, 2009, and related Needs Assistance under Section 408 of the DR), dated May 15, 2009, and related determinations. Stafford Act is later warranted, Federal determinations. funding under that program will also be DATES: Effective Date: July 6, 2009. DATES: Effective Date: June 22, 2009. limited to 75 percent of the total eligible costs. FOR FURTHER INFORMATION CONTACT: FOR FURTHER INFORMATION CONTACT: Further, you are authorized to make Peggy Miller, Disaster Assistance Peggy Miller, Disaster Assistance changes to this declaration to the extent Directorate, Federal Emergency Directorate, Federal Emergency allowable under the Stafford Act. Management Agency, 500 C Street, SW., Management Agency, 500 C Street, SW., The Federal Emergency Management Washington, DC 20472, (202) 646–3886. Washington, DC 20472, (202) 646–3886. Agency (FEMA) hereby gives notice that SUPPLEMENTARY INFORMATION: The SUPPLEMENTARY INFORMATION: Notice is pursuant to the authority vested in the Federal Emergency Management Agency hereby given that the incident period for Administrator, under Executive Order (FEMA) hereby gives notice that this disaster is closed effective July 6, 12148, as amended, Dolph A. Diemont, pursuant to the authority vested in the 2009. of FEMA is appointed to act as the Administrator, under Executive Order Federal Coordinating Officer for this The following Catalog of Federal Domestic 12148, as amended, Gregory W. Eaton, Assistance Numbers (CFDA) are to be used major disaster. of FEMA is appointed to act as the The following areas of the State of for reporting and drawing funds: 97.030, Federal Coordinating Officer for this Community Disaster Loans; 97.031, Cora Illinois have been designated as disaster. adversely affected by this major disaster: Brown Fund; 97.032, Crisis Counseling; This action terminates the 97.033, Disaster Legal Services; 97.034, Franklin, Gallatin, Jackson, Randolph, appointment of Edward H. Smith as Disaster Unemployment Assistance (DUA); Saline, and Williamson Counties for Public Federal Coordinating Officer for this 97.046, Fire Management Assistance Grant; Assistance. 97.048, Disaster Housing Assistance to All counties within the State of Illinois are disaster. eligible to apply for assistance under the The following Catalog of Federal Domestic Individuals and Households in Presidentially Hazard Mitigation Grant Program. Assistance Numbers (CFDA) are to be used Declared Disaster Areas; 97.049, The following Catalog of Federal Domestic for reporting and drawing funds: 97.030, Presidentially Declared Disaster Assistance— Assistance Numbers (CFDA) are to be used Community Disaster Loans; 97.031, Cora Disaster Housing Operations for Individuals for reporting and drawing funds: 97.030, Brown Fund; 97.032, Crisis Counseling; and Households; 97.050, Presidentially Community Disaster Loans; 97.031, Cora 97.033, Disaster Legal Services; 97.034, Declared Disaster Assistance to Individuals Brown Fund; 97.032, Crisis Counseling; Disaster Unemployment Assistance (DUA); and Households—Other Needs; 97.036, 97.033, Disaster Legal Services; 97.034, 97.046, Fire Management Assistance Grant; Disaster Grants—Public Assistance Disaster Unemployment Assistance (DUA); 97.048, Disaster Housing Assistance to (Presidentially Declared Disasters); 97.039, 97.046, Fire Management Assistance Grant; Individuals and Households in Presidentially Hazard Mitigation Grant. 97.048, Disaster Housing Assistance to Declared Disaster Areas; 97.049, Individuals and Households In Presidentially Presidentially Declared Disaster Assistance— W. Craig Fugate, Disaster Housing Operations for Individuals Declared Disaster Areas; 97.049, Administrator, Federal Emergency and Households; 97.050, Presidentially Presidentially Declared Disaster Assistance— Management Agency. Disaster Housing Operations for Individuals Declared Disaster Assistance to Individuals and Households; 97.050, Presidentially and Households—Other Needs; 97.036, [FR Doc. E9–17221 Filed 7–20–09; 8:45 am] Declared Disaster Assistance to Individuals Disaster Grants—Public Assistance BILLING CODE 9111–23–P

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DEPARTMENT OF HOMELAND [email protected]. If you have Act notice regarding our public dockets SECURITY questions on viewing or submitting in the January 17, 2008, issue of the material to the docket, call Renee V. Federal Register (73 FR 3316). Coast Guard Wright, Program Manager, Docket Information on Service for Individuals Operations, telephone 202–366–9826. [Docket No. USCG–2009–0652] With Disabilities SUPPLEMENTARY INFORMATION: Baton Rouge Waterways Action Plan For information on facilities or Background and Purpose Annex services for individuals with disabilities The meeting is intended to give the or to request special assistance at the AGENCY: Coast Guard, DHS. public the chance to comment on the public meeting, contact LT Nick ACTION: Notice of public meeting; current Baton Rouge Waterways Action Parham, United States Coast Guard, at request for comments. Plan Annex and note concerns and the telephone number or e-mail address improvements that could be made to indicated under the FOR FURTHER SUMMARY: The Coast Guard announces a create a more consistent and useful INFORMATION CONTACT section of this public meeting to receive comments on action plan. You may view the Baton notice. the Baton Rouge Waterways Action Plan Rouge Waterways Action Plan Annex at Annex. the following Web site: http:// Public Meeting DATES: A public meeting will be held on www.uscg.mil/d8/westernrivers/ The Coast Guard will hold a public Thursday, July 30, 2009 from 8 a.m. to default.asp. meeting regarding the Baton Rouge 11:30 a.m. and 1 p.m. to 4 p.m., and You may view the online docket and Waterways Action Plan Annex on Friday, July 31, 2009 from 8 a.m. to comments submitted thus far by going Thursday, July 30, 2009 from 8 a.m. to 11:30 a.m. to provide an opportunity for to http://www.regulations.gov. Once 11:30 a.m. and 1 p.m. to 4 p.m., and oral comments. Written comments and there, select the Advanced Docket Friday, July 31, 2009 from 8 a.m. to related material may also be submitted Search option on the right side of the 11:30 a.m. at the Louisiana Room at the to Coast Guard personnel specified at screen, insert USCG–2009–0652 in the State of Louisiana Department of that meeting. All written comments and Docket ID box, press Enter, and then Wildlife and Fisheries Building, 2000 related material submitted after the click on the item in the Docket ID Quail Drive, Baton Rouge, LA 70808, meeting must be received by the Coast column. You may also visit the Docket telephone (225) 765–2623. The meeting Guard on or before August 31, 2009. Management Facility in Room W12–140 location is not accessible by public on the ground floor of the Department ADDRESSES: The public meeting will be transportation. Parking is available at no held in the Louisiana Room at the State of Transportation West Building, 1200 cost. New Jersey Avenue, SE., Washington, of Louisiana Department of Wildlife and A government-issued photo DC 20590, between 9 a.m. and 5 p.m., Fisheries Building, 2000 Quail Drive, identification card will be required for Monday through Friday, except Federal Baton Rouge, LA 70808, telephone (225) entrance to the building. Attendees holidays. We have an agreement with 765–2623. A government-issued photo should check in at the front desk, and the Department of Transportation to use identification card will be required for they will be directed to the Louisiana the Docket Management Facility. entrance to the building. We encourage you to participate in Room. You may submit written comments this meeting by submitting comments We will provide a written summary of identified by docket number USCG– either orally at the meeting or in the meeting and comments and place 2009–0652 before or after the meeting writing. If you bring written comments that summary in the docket. using any one of the following methods: to the meeting, you may submit them to Dated: July 9, 2009. (1) Federal eRulemaking Portal: Coast Guard personnel specified at the E.M. Stanton, http://www.regulations.gov. meeting to receive written comments. (2) Fax: 202–493–2251. Captain, U.S. Coast Guard, Captain of the These comments will be submitted to Port, New Orleans. (3) Mail: Docket Management Facility our online public docket. All comments (M–30), U.S. Department of [FR Doc. E9–17246 Filed 7–20–09; 8:45 am] received will be posted without change BILLING CODE 4910–15–P Transportation, West Building Ground to http://www.regulations.gov and will Floor, Room W12–140, 1200 New Jersey include any personal information you Avenue, SE., Washington, DC 20590– have provided. DEPARTMENT OF HOMELAND 0001. Comments submitted after the SECURITY (4) Hand Delivery: Same as mail meeting must reach the Coast Guard on address above, between 9 a.m. and 5 or before August 31, 2009. If you submit Coast Guard p.m., Monday through Friday, except a comment online via http:// Federal holidays. The telephone number www.regulations.gov, it will be [USCG–2009–0661] is 202–366–9329. considered received by the Coast Guard To avoid duplication, please use only when you successfully transmit the National Offshore Safety Advisory one of these four methods. Our online comment. If you fax, hand delivery, or Committee; Vacancies docket for this meeting is available on mail your comment, it will be the Internet at http:// considered as having been received by AGENCY: Coast Guard, DHS. www.regulations.gov under docket the Coast Guard when it is received at ACTION: Request for applications. number USCG–2009–0652. the Docket Management Facility. FOR FURTHER INFORMATION CONTACT: If Anyone can search the electronic SUMMARY: The Coast Guard seeks you have questions concerning the form of comments received into any of applications for membership on the meeting, please call or e-mail Lieutenant our dockets by the name of the National Offshore Safety Advisory Nick Parham, Chief of Prevention and individual submitting the comment (or Committee (NOSAC). NOSAC provides Response at Coast Guard Marine Safety signing the comment, if submitted on advice and makes recommendations to Unit Baton Rouge; telephone (225) 298– behalf of an association, business, labor the Coast Guard on matters affecting the 5400; e-mail union, etc.). You may review a Privacy offshore industry.

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DATES: Application forms should reach before we make our recommendations to ACTION: Receipt of application for the Coast Guard on or before November the Secretary of Homeland Security. enhancement of survival permit; notice 30, 2009. To be eligible, applicants should have of availability of programmatic safe ADDRESSES: A copy of the application experience in one of the following harbor agreement. form, as well as this notice, is available categories: (1) Offshore operations, (2) diving services associated with offshore SUMMARY: The Oregon Department of in our online docket, USCG–2008–0799 Forestry (ODF) has applied to the U.S. at http://www.regulations.gov and at the activities, (3) general public, (4) pipelaying services, or (5) deepwater Fish and Wildlife Service (Service) for Coast Guard’s Advisory Committee an enhancement of survival permit homeport Web page at: https:// ports. Please state on the application form which of the five categories you (permit) pursuant to the Endangered homeport.uscg.mil/nosac. You may Species Act of 1973, as amended. The request an application form by writing are applying for. Each member normally serves a term of 3 years or until a permit application includes a proposed Mr. James Magill, Assistant Designated programmatic safe harbor agreement Federal Officer of NOSAC, Commandant replacement is appointed. A few members may serve consecutive terms. (Agreement) between ODF, the U.S. (CG–5222), ATTN: Vessel and Facility Department of Agriculture—Natural Operations Standards, U.S. Coast Guard, All members serve at their own expense and receive no salary, reimbursement of Resources Conservation Service (NRCS), 2100 Second Street, SW., STOP 7126, and the Service. The proposed term of Washington, DC 20593–7126; by calling travel expenses, or other compensation from the Federal Government. the permit and Agreement is 50 years. 202–372–1414; or by faxing 202–372– The requested permit would authorize 1926. Send your completed application In support of the Coast Guard policy on gender and ethnic ODF to extend incidental take coverage to the Assistant Designated Federal with assurances through issuance of Officer at the street address above. nondiscrimination, we encourage qualified men and women and members Certificates of Inclusion to eligible FOR FURTHER INFORMATION CONTACT: of all racial and ethnic groups to apply. landowners who are willing to carry out Commander Patrick W. Clark, The Coast Guard values diversity; all the habitat management measures that Designated Federal Officer (DSO) of different characteristics and attributes of would benefit the northern spotted owl NOSAC, or James M. Magill, Assistant persons that enhance the mission of the (Strix occidentalis caurina), which is Designated Federal Officer, telephone Coast Guard. federally listed as threatened. The 202–372–1414, fax 202–372–1926. If you are interested in applying to covered area or geographic scope of this SUPPLEMENTARY INFORMATION: NOSAC is become a member of NOSAC, send a Agreement includes non-Federal forest a Federal advisory committee completed application form to Mr. lands within the range of the spotted established under the provisions of the James Magill, Assistant Designated owl in Oregon. We request comments Federal Advisory Committee Act Federal Officer of NOSAC, Commandant from the public on the permit (FACA), (codified at 5 U.S.C.). It (CG–5222), Attn: Vessel and Facility application, proposed Agreement, and consists of 15 regular members who Operations Standards, U.S. Coast Guard, related documents, which are available have particular knowledge and 2100 Second Street, SW., STOP 7126, for review (see ADDRESSES below). experience regarding offshore Washington, DC 20593–7126; by calling DATES: Comments must be received technology, equipment, safety and 202–372–1414; or by faxing 202–372– from interested parties on or before training, as well as environmental 1926. Send the application form in time August 20, 2009. expertise in the exploration or recovery for it to be received by the Assistant ADDRESSES: You may submit your of offshore mineral resources. It DFO on or before November 30, 2009. written comments to State Supervisor provides advice and makes A copy of the application form is (see SUPPLEMENTARY INFORMATION recommendations to the Assistant available in the docket for this notice. below). Include your name and address Commandant for Marine Safety, To visit our online docket, go to in your comments and refer to the Security and Stewardship regarding http://www.regulations.gov, enter the ‘‘Spotted Owl Programmatic Safe Harbor safety, security and rulemaking matters docket number for this notice (USCG– Agreement.’’ relating to the offshore mineral and 2009–0661) in the Search box, and click FOR FURTHER INFORMATION CONTACT: energy industries. This advice assists ‘‘Go’’. Richard Szlemp (see SUPPLEMENTARY the Coast Guard in developing policy Dated: July 14, 2009. INFORMATION below), telephone (503) and regulations and formulating the Howard L. Hime, 231–6179. Persons who use a positions of the United States in telecommunications device for the deaf advance of meetings of the International Acting Director of Commercial Regulations and Standards, Assistant Commandant for (TDD) may call the Federal Information Maritime Organization. Marine Safety, Security and Stewardship. Relay Service (FIRS) at 800/877–8339, NOSAC meets approximately twice a [FR Doc. E9–17288 Filed 7–20–09; 8:45 am] 24 hours a day, 7 days a week. year, with one of these meetings being BILLING CODE 4910–15–P SUPPLEMENTARY INFORMATION: held at Coast Guard Headquarters in Washington, DC. It may also meet for Document Availability extraordinary purposes. Its DEPARTMENT OF THE INTERIOR You may obtain copies of the draft subcommittees and working groups may documents by contacting the State meet to consider specific issues or Fish and Wildlife Service Supervisor, Oregon Fish and Wildlife topics as required. Office, U.S. Fish and Wildlife Service, We will consider applications for five [FWS–R1–ES–2009–N129; 10120–1112– 2600 SE., 98th Ave., Suite 100, Portland, positions. These positions will begin in 0000–F2] OR 97266; telephone (503) 231–6179; January 2010. Applications should Endangered and Threatened Wildlife facsimile (503) 231–6195; or by making reach the Coast Guard by November 30, and Plants; Permit Application, an appointment to view the documents 2009. If we do not receive sufficient Northern Spotted Owl, Oregon at the above address during normal qualified applicants by the deadline we business hours. You may also view the may consider applications received later AGENCY: Fish and Wildlife Service, documents on the Internet at http:// if they arrive within a reasonable time Interior. www.fws.gov/oregonfwo/species/. The

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Service is furnishing this notice to Program (HFRP) in Oregon to a multi-layered/multi-species canopy; provide the public, other State and landowners interested in promoting the larger trees (greater than 30 inches Federal agencies, and interested Tribes recovery of threatened and endangered diameter at chest height); a high an opportunity to review and comment species, improving biodiversity, and incidence of those large trees with of the draft documents. enhancing carbon sequestration. The various deformities (broken tops, large sign-up period closed on April 30, 2009. cavities, e.g.); large dead trees; Public Availability of Comments The HFRP is a voluntary program accumulations of woody debris on the Before including your address, phone established for the purpose of restoring ground, including large fallen trees; and number, e-mail address, or other and enhancing forest ecosystems. There sufficient open space below the tree personal identifying information in your are two enrollment options with the canopy for spotted owls to fly. Much of comment, you should be aware that HFRP in Oregon for fiscal year 2009: A the private, commercial forest land in your entire comment—including your 10-year restoration agreement and a Oregon has been previously harvested at personal identifying information—may permanent easement. Under a least once and has been replanted. The be made publicly available at any time. restoration agreement, participants can even-aged forest stands that typically While you can ask us in your comment receive 50 percent of the cost of selected develop after replanting are dense, with to withhold your personal identifying conservation practices. With a little variation in tree spacing, tree information from public review, we permanent easement, the HFRP pays heights, and species composition. Trees cannot guarantee that we will be able to 100 percent of the easement value and are often harvested on 40–60 year do so. 100 percent of the cost of selected rotations, or less. This type of Background activities. Landowners continue to management does not provide the time manage the land for timber production for development of good quality spotted Under a Safe Harbor Agreement, while maintaining habitat for spotted owl habitat, or the conditions to participating landowners voluntarily owls under the permanent easement. establish a diversity of habitat structure. undertake management activities on The HFRP is incorporated into the This Agreement is intended to their property to enhance, restore, or Agreement to provide an additional encourage landowners to voluntarily maintain habitat benefiting species financial incentive for landowners to manage their forests on longer rotations listed under the Endangered Species Act become a party to the Agreement. The and to create more structural diversity of 1973, as amended (Act; 16 U.S.C. future availability of funding for the through active management that would 1531 et seq.). Safe Harbor Agreements, HFRP will depend upon Congressional more closely mimic natural conditions. and the subsequent enhancement of appropriations. Under this Agreement, private lands survival permits that are issued The area covered by this Agreement may be enrolled through individual pursuant to section 10(a)(1)(A) of the includes all non-Federal, forest-capable Stewardship Agreements between the Act, encourage private and other non- lands within the historic range of the ODF and cooperating landowners. Federal property owners to implement spotted owl in Oregon. Sites not Landowners who also participate in the conservation efforts for listed species by currently occupied by spotted owls or HFRP will have to meet additional assuring the landowners that they will not containing potentially suitable NRCS requirements. The duration of the not be subjected to increased property habitat will have a baseline condition of Stewardship Agreements would vary use restrictions as a result of their efforts zero unless a landowner is willing to depending on circumstances, but would to either attract listed species to their accept a baseline greater than zero to not be less than 10 years. Cooperators property, or to increase the numbers or support an enhanced level of will be issued a Certificate of Inclusion distribution of listed species already on conservation after the Agreement which will allow activities on the their property. Application expires. Sites known to be occupied by enrolled properties to be included requirements and issuance criteria for spotted owls or that contain suitable within ODF’s section 10(a)(1)(A) enhancement of survival permits for habitat will have their baseline enhancement of survival permit. federally listed threatened species conditions determined on a case-by-case Cooperators may renew their through Safe Harbor Agreements are basis by ODF and the Service, with Stewardship Agreements to remain in found in 50 CFR 17.32(c). These permits landowner consent. Baseline conditions effect for the 50-year duration of the allow future incidental take of any will be expressed in terms of the permit. Cooperators will avoid covered species above the mutually amount (acres) and quality of habitat. conducting activities that could agreed upon baseline conditions for Forest characteristics such as stand age, adversely impact the spotted owl’s those species in accordance with the tree species composition, average habitat during the term of their terms of the permit and accompanying diameters, number of canopy layers, Stewardship Agreement. agreement. average canopy closure, and number of Without the regulatory assurances We jointly developed the proposed snags will be used to reference habitat provided through the Agreement and Agreement with ODF and NRCS for the quality. permit, landowners may otherwise be conservation of the northern spotted The purpose of this Agreement is to unwilling or reluctant to manage their owl. State of Oregon statutes give ODF encourage private landowners to create, lands in a way that would attract the authority to enter into Stewardship maintain, and enhance spotted owl federally listed species such as the Agreements with landowners who wish habitat through forest management. The spotted owl onto their properties. The to voluntarily improve fish and wildlife northern spotted owl was listed as a proposed Agreement is expected to habitat and water quality. Stewardship threatened species by the Service in provide a net conservation benefit to the Agreements provide regulatory certainty 1990 (55 FR 26114) via a final rule spotted owl by enhancing the quality, to landowners in complying with State published in the Federal Register June quantity, or connectivity of forest forest practice requirements. The 26, 1990, with an effective date of July habitat, thereby increasing the proposed Safe Harbor Agreement is 30, 1990. One of the primary threats distribution, abundance, and genetic intended to compliment ODF’s affecting the spotted owl is the diversity of the species. Stewardship Agreement program. widespread loss of suitable habitat. The Service has made a preliminary On March 30, 2009, NRCS announced Spotted owls are most often found in determination that the proposed a sign-up for the Healthy Forest Reserve older forests with: High canopy closure; Agreement and permit application are

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eligible for a categorical exclusion under Sacramento, CA, 95825 (telephone: 916– conjunction with surveys and the National Environmental Policy Act 414–6464; fax: 916–414–6486). Please population monitoring studies of 1969 (NEPA). We explain the basis refer to the respective permit number for throughout the range of the species in for this determination in an each application when submitting California for the purpose of enhancing Environmental Action Statement that is comments. its survival. also available for public review (see FOR FURTHER INFORMATION CONTACT: Permit No. TE–217402 ADDRESSES). Daniel Marquez, Fish and Wildlife Applicant: Julie M. Love, Santa Barbara, The Service will evaluate the permit Biologist; see ADDRESSES (telephone: California. application, associated documents, and 760–431–9440; fax: 760–431–9624). comments submitted thereon to SUPPLEMENTARY INFORMATION: The The applicant requests a permit to determine whether the permit following applicants have applied for take (survey, capture, and release) the application meets the requirements of scientific research permits to conduct tidewater goby (Eucyclogobius section 10(a)(1)(A) of the Act and that certain activities with endangered newberryi) in conjunction with surveys other applicable requirements have been species under section 10(a)(1)(A) of the and population monitoring throughout satisfied. If we determine that all Act (16 U.S.C. 1531 et seq.). We seek the range of the species in California for requirements are met, we will sign the review and comment from local, State, the purpose of enhancing its survival. Agreement and issue an enhancement of and Federal agencies and the public on Permit No. TE–217401 survival permit under section the following permit requests. Before Applicant: Cristina V. Slaughter, Santa 10(a)(1)(A) of the Act to ODF for the including your address, phone number, Barbara, California. take of northern spotted owls, incidental e-mail address, or other personal to otherwise lawful activities in identifying information in your The applicant requests a permit to accordance with the terms of the comment, you should be aware that take (survey, capture, and release) the Agreement. This notice is provided your entire comment—including your tidewater goby (Eucyclogobius pursuant to section 10(c) of the Act and personal identifying information—may newberryi) and Arroyo southwestern NEPA regulations (40 CFR 1506.6). be made publicly available at any time. (Bufo microscaphus californicus) in Dated: July 14, 2009. While you can ask us in your comment conjunction with surveys and Miel Corbett, to withhold your personal identifying population monitoring throughout the Acting State Supervisor, Fish and Wildlife information from public review, we range of each species in California for Service, Oregon Fish and Wildlife Office, cannot guarantee that we will be able to the purpose of enhancing their survival. Portland, Oregon. do so. Permit No. TE–781084 [FR Doc. E9–17281 Filed 7–20–09; 8:45 am] Permit No. TE–217119 Applicant: Anita M. Hayworth, BILLING CODE 4310–55–P Applicant: Carie M. Wingert, San Luis Encinitas, California. Obispo, California. The applicant requests an amendment DEPARTMENT OF THE INTERIOR The applicant requests a permit to to an existing permit (March 15, 1996, take (harass by survey) the California 61 FR 10779) to take (capture, collect, Fish and Wildlife Service least tern (Sterna Antillarum browni), and kill) the Conservancy fairy shrimp [FWS–R8–ES–2009–N147; 80221–1113– and take (capture, handle, and release) (Branchinecta conservatio), the 0000–F5] the giant kangaroo rat (Dipodomys longhorn fairy shrimp (Branchinecta ingens) and Tipton kangaroo rat longiantenna), and the vernal pool Endangered Species Recovery Permit (Dipodomys nitratoides nitratoides) in tadpole shrimp (Lepidurus packardi) in Applications conjunction with surveys and conjunction with surveys throughout population monitoring studies the range of each species in California AGENCY: Fish and Wildlife Service, throughout the range of each species in for the purpose of enhancing their Interior. California for the purpose of enhancing survival. ACTION: Notice of receipt of permit their survival. Permit No. TE–217663 applications; request for comment. Permit No. TE–785148 Applicant: Ann M. Dalkey, Redondo SUMMARY: We, the U.S. Fish and Applicant: AMEC Earth and Beach, California. Wildlife Service, invite the public to Environmental, San Diego, California. The applicant requests a permit to comment on the following applications The applicant requests an amendment take (survey by pursuit) the Palos to conduct certain activities with to an existing permit (August 28, 2001, Verdes blue butterfly (Glaucopsyche endangered species. With some 66 FR 45322) to take (harass by survey, lygdamus) in conjunction with surveys exceptions, the Endangered Species Act and locate/monitor nests) the California throughout the range of each species (Act) prohibits activities with least tern (Sterna Antillarum browni) in within the jurisdiction of the Carlsbad endangered and threatened species conjunction with surveys and Fish and Wildlife Office, in California, unless a Federal permit allows such population monitoring studies for the purpose of enhancing its activity. The Act also requires that we throughout the range of the species in survival. invite public comment before issuing California for the purpose of enhancing these permits. Permit No. TE–802450 its survival. DATES: Comments on these permit Applicant: Arthur E. Davenport, applications must be received on or Permit No. TE–214148 Barstow, California. before August 20, 2009. Applicant: Patrick W. Del Pizzo, San The applicant requests an amendment ADDRESSES: Written data or comments Diego, California. to an existing permit (June 8, 1995, 60 should be submitted to the U.S. Fish The applicant requests a permit to FR 30314) to take (harass by survey) the and Wildlife Service, Endangered take (harass by survey, and locate/ southwestern willow flycatcher Species Program Manager, Region 8, monitor nests) the California least tern (Empidonax trailli extimus) in 2800 Cottage Way, Room W–2606, (Sterna Antillarum browni) in conjunction with surveys throughout

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the range of the species in California for and release) the California tiger Southern Aroostook Registry of Deeds in the purpose of enhancing its survival. salamander (Ambystoma californiense) deed book 2144, page 198 and deed in conjunction with surveys; and take Permit No. TE–036499 book 2487, page 114, in Littleton and (capture, collect, and kill) the Houlton, Aroostook County, in the State Applicant: National Park Service, Conservancy fairy shrimp (Branchinecta of Maine, for Group 32, and was Golden Gate National Recreation conservatio), the longhorn fairy shrimp accepted June 30, 2009. Area, Santa Barbara, California. (Branchinecta longiantenna), the The plat of survey represents the The applicant requests an amendment Riverside fairy shrimp dependent resurvey and survey of the to an existing permit (February 12, 2001, (Streptocephalus wootoni), the San boundaries of Lot 15, Ranges 3 and 4, 66 FR 9877) to take (translocate) the Diego fairy shrimp (Branchinecta tidewater goby (Eucyclogobius sandiegonensis), and the vernal pool East of the Meduxnekeag River, newberryi) in conjunction with tadpole shrimp (Lepidurus packardi) in Northern Division of Houlton, held in restoration and population monitoring conjunction with surveys and research trust for the Houlton Band of Maliseet throughout the range of the species in throughout the range of each species in Indians, in Houlton, Aroostook County, California for the purpose of enhancing California for the purpose of enhancing in the State of Maine, for Group 33, and its survival. their survival. was accepted June 30, 2009. We invite public review and comment The plat of survey represents the Permit No. TE–218630 on each of these recovery permit dependent resurvey of the boundaries of Applicant: Irena M. Mendez, Santa applications. Comments and materials Lot 7, Range 2, Southern Division of Monica, California. we receive will be available for public Littleton, held in trust for the Houlton The applicant requests a permit to inspection, by appointment, during Band of Maliseet Indians, in Littleton, take (survey by pursuit) the El Segundo normal business hours at the address Aroostook County, in the State of Blue butterfly (Euphilotes battoides listed in the ADDRESSES section of this Maine, for Group 34, and was accepted allyni) in conjunction with surveys and notice. June 30, 2009. population monitoring throughout the Dated: July 15, 2009. The plat of survey represents the range of the species in California for the Diane Elam, purpose of enhancing its survival. dependent resurvey of the boundaries of Acting Regional Director, Region 8, land held in trust for the Aroostook Permit No. TE–045153 Sacramento, California. Band of Micmacs, part of Lots 11 and Applicant: Dustin S. Janeke, San Diego, [FR Doc. E9–17270 Filed 7–20–09; 8:45 am] 12, Plan of Bridgewater, North half, California. BILLING CODE 4310–55–P Aroostook County, in the State of The applicant requests a permit to Maine, for Group 35, and was accepted June 30, 2009. take (survey by pursuit) the Quino DEPARTMENT OF THE INTERIOR checkerspot butterfly (Euphydryas The plat of survey represents the editha quino) in conjunction with Bureau of Land Management dependent resurvey of the boundaries of surveys; and take (capture, collect, and lands of the Aroostook Band of [ES–956–1420–BJ; Groups 32–37, Maine] kill) the Conservancy fairy shrimp Micmacs, on the former Loring Air (Branchinecta conservatio), the Eastern States: Filing of Plats of Force Base, known as the Connor longhorn fairy shrimp (Branchinecta Survey Family Housing Annex and the Water longiantenna), the Riverside fairy Supply Area, in Connor Township, shrimp (Streptocephalus wootoni), the AGENCY: Bureau of Land Management, Aroostook County, in the State of San Diego fairy shrimp (Branchinecta Interior. Maine, for Group 36, and was accepted sandiegonensis), and the vernal pool ACTION: Notice of Filing of Plats of June 30, 2009. tadpole shrimp (Lepidurus packardi) in Survey; Maine conjunction with surveys throughout The plat of survey represents the the range of each species in California SUMMARY: The Bureau of Land dependent resurvey of the boundaries of for the purpose of enhancing their Management (BLM) will file the plats of the East half of Lot 78, in Township H, survival. survey of the lands described below in Range 2, West of the East line of the the BLM–Eastern States Office in State, held in trust for the Aroostook Permit No. TE–175386 Springfield, Virginia, 30 calendar days Band of Micmacs, in what is presently Applicant: USGS, California from the date of publication in the part of Caribou, Aroostook County, in Cooperative Research Unit, Arcata, Federal Register. the State of Maine, for Group 37, and California. FOR FURTHER INFORMATION CONTACT: was accepted June 30, 2009. The applicant requests an amendment Bureau of Land Management-Eastern We will place copies of the plats we to an existing permit (August 13, 2008, States, 7450 Boston Boulevard, described in the open files. They will be 73 FR 47206) to take (survey, capture, Springfield, Virginia 22153. Attn: available to the public as a matter of handle, release, remove from wild and Cadastral Survey. information. kill) the Lost river sucker (Deltistes SUPPLEMENTARY INFORMATION: The If BLM receives a protest against a luxatus) in conjunction with surveys, surveys were requested by the Bureau of survey, as shown on the plat, prior to research, and demographic studies in Indian Affairs. the date of the official filing, we will Klamath County, Oregon, for the The lands surveyed are: stay the filing pending our purpose of enhancing their survival. Maine consideration of the protest. Permit No. TE–219638 The plat of survey represents the We will not officially file the plats Applicant: Angela M. Calderaro, Rancho dependent resurvey and survey of the until the day after we have accepted or Cordova, California. boundaries of land held in trust for the dismissed all protests and they have The applicant requests a permit to Houlton Band of Maliseet Indians, become final, including decisions on take (harass by survey, capture, handle, described in two deeds recorded in the appeals.

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Dated: July 13, 2009. Forest System lands from location and file its withdrawal application. The Dominica Van Koten, entry under the 1872 Mining Law, but Secretary’s approval of the petition Chief Cadastral Surveyor. not the mineral leasing, geothermal constitutes his proposal to withdraw the [FR Doc. E9–17292 Filed 7–20–09; 8:45 am] leasing, mineral materials laws, or subject lands. The Forest Service has BILLING CODE 4310–GJ–P public land laws: All the Federal lands consented to proposing the withdrawal identified in the townships below, and of lands under its administrative all non-Federal lands within the exterior jurisdiction. DEPARTMENT OF THE INTERIOR boundaries described below that are The purpose of the withdrawal, if subsequently acquired by the Federal determined to be appropriate, would be Bureau of Land Management government, to the boundary of the to protect the Grand Canyon watershed Grand Canyon National Game Preserve, from adverse effects of locatable Notice of Proposed Withdrawal and including the overlap of the withdrawal hardrock mineral exploration and Opportunity for Public Meeting; for the Kanab Creek Wilderness, as mining for up to a 20-year period, which Arizona depicted on the map entitled ‘‘Petition/ is the maximum allowable for a AGENCY: Bureau of Land Management, Application for Withdrawal’’ available withdrawal aggregating more than 5,000 Interior. from the BLM Arizona Strip District acres. The use of a right-of-way, interagency, ACTION: Notice. office and the FS Kaibab National Forest office at the addresses listed above. or cooperative agreement, or surface SUMMARY: The Secretary of the Interior management by the Bureau of Land proposes to withdraw approximately Public Lands Management under 43 CFR 3715 and 633,547 acres of public lands and Gila and Salt River Meridian, Arizona 3809 regulations and by the Forest 360,002 acres of National Forest System Tps. 40 and 41 N., R. 1E., Service under 36 CFR 228 would not lands for up to 20 years from location Tps. 38 and 40 N., R. 3 E., to the boundary adequately constrain nondiscretionary and entry under the Mining Law of of the Vermilion Cliffs National uses which could result in permanent 1872, 30 U.S.C. 22 et seq., on behalf of Monument, loss of significant values and the Bureau of Land Management and the Tps. 36 to 38 N., Rs. 4 and 5 E., to the irreplaceable resources at the site. United States Forest Service. The boundary of the Vermilion Cliffs National There are no suitable alternative sites Monument, for the withdrawal. purpose of the withdrawal, if Tps. 37 to 39 N., R. 6 E., to the boundary of determined to be appropriate, would be No water rights would be needed to the Vermilion Cliffs National Monument, fulfill the purpose of the requested to protect the Grand Canyon watershed T. 39 N., R. 7 E., to the boundary of the from adverse effects of locatable Vermilion Cliffs National Monument, withdrawal. hardrock mineral exploration and Tps. 38 to 41 N., R. 1 W., Records relating to the application mining. This notice segregates the lands Tps. 38 to 40 N., R. 2 W., may be examined by contacting the from location and entry under the 1872 Tps. 36 to 40 N., R. 3 W., BLM District Manager at the above Mining Law for up to 2 years to allow Tps. 35 to 40 N., Rs. 4 and 5 W., address or by calling 435–688–3200 or time for various studies and analyses, Tps. 35 to 39 N., Rs. 6 and 7 W., the Forest Supervisor, Kaibab National The areas described contain approximately including appropriate National Forest, 800 South Sixth Street, 633,547 acres of public lands in Coconino Williams, AZ 86046 or by calling 928– Environmental Policy Act analysis. and Mohave Counties. These actions will support a final 635–8200. decision on whether or not to proceed National Forest System Lands For a period of 90 days from the date of publication of this notice, all persons with a withdrawal. The lands will Kaibab National Forest who wish to submit comments, remain open to the mineral leasing, Gila and Salt River Meridian, Arizona. geothermal leasing, mineral materials, suggestions, or objections in connection and public land laws. North Kaibab Ranger District with the proposed withdrawal may present their views in writing to the DATES: Tps. 37 to 40 N., R. 3 E., to the boundary of Comments and requests for a BLM District Manager at the address public meeting must be received by the Vermilion Cliffs National Monument, Tps. 36 and 37 N., R. 4 E., noted above. October 19, 2009. T. 36 N., R. 5 E., Comments including names and street ADDRESSES: Comments and meeting T. 38 N., R. 3 W., addresses of respondents will be requests should be sent to the District Tps. 36 and 37 N., Rs. 3 and 4 W., available for public review at the BLM Manager, Bureau of Land Management, Tusayan Ranger District Arizona Strip District Office at the Arizona Strip District Office, 345 East address noted above, during regular Riverside Drive, St. George, Utah Tps. 28 to 31 N., R. 1 E., Tps. 28 to 30 N., R 2 E., business hours 8 a.m. to 4:30 p.m., 84790–9000, or Forest Supervisor, Tps. 27 to 30 N., Rs. 3 to 6 E., Monday through Friday, except Forest Service, Kaibab National Forest, Tps. 31 and 32 N., R 1 W., holidays. Before including your address, 800 South Sixth St., Williams, Arizona The areas described contain approximately phone number, e-mail address, or other 86046. 360,002 acres of National Forest System personal identifying information in your FOR FURTHER INFORMATION CONTACT: lands in Coconino and Mohave Counties. comment, you should be aware that Scott Florence, District Manager, BLM The total areas described aggregate your entire comment—including your Arizona Strip District, 435–688–3200, or approximately 993,549 acres of both public and National Forest System lands in personal identifying information—may Michael Williams, Forest Supervisor, Coconino and Mohave Counties located be made publicly available at any time. Kaibab National Forest, 928–635–8200. adjacent to the Grand Canyon National Park While you can ask us in your comment SUPPLEMENTARY INFORMATION: The in Arizona. The total non-Federal lands to withhold your personal identifying applicant is the Bureau of Land within the area aggregate approximately information from public review, we Management at the address above and 85,673 acres in Coconino and Mohave cannot guarantee that we will be able to its petition/application requests the Counties. do so. Individual respondents may Secretary of the Interior to withdraw, The Secretary of the Interior has request confidentiality. If you wish to subject to valid existing rights, the approved the Bureau of Land withhold your name or address from following public lands and National Management’s petition for approval to public review or from disclosure under

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the Freedom of Information Act, you The Consent Decree resolves claims Decree Library, please enclose a check must state this prominently at the brought by the United States, on behalf in the amount of $59.75 (25 cents per beginning of your comments. Such of the United States Environmental page reproduction cost) payable to the requests will be honored to the extent Protection Agency (‘‘EPA’’), against U.S. Treasury or, if by email or fax, allowed by law. All submissions from seven parties (‘‘Settling Defendants’’) forward a check in that amount to the organizations or businesses, and from under Sections 106 and 107 of the Consent Decree Library at the stated individuals identifying themselves as Comprehensive Environmental address. Response, Compensation, and Liability representatives or officials of Maureen Katz, organizations or businesses, will be Act, 42 U.S.C. 9606 and 9607. In its Complaint, filed concurrently with the Assistant Section Chief, Environmental made available for public inspection in Enforcement Section, Environment and their entirety. Consent Decree, the United States Natural Resources Division. sought injunctive relief in order to Notice is hereby given that one or [FR Doc. E9–17226 Filed 7–20–09; 8:45 am] more public meetings will be held in address the release or threatened release BILLING CODE 4410–15–P connection with the proposed of hazardous substances at the Landia withdrawal. All interested persons who Chemical Company Site in Lakeland, desire a public meeting for the purpose Polk County, Florida, along with the NATIONAL AERONAUTICS AND of being heard on the proposed recovery of costs the United States SPACE ADMINISTRATION withdrawal must submit a written incurred for response activities request to the BLM District Manager no undertaken at the Site. [Notice (09–067)] later than October 19, 2009. A notice of Under the Consent Decree, the the time and place of any public Settling Defendants—Landia Chemical Notice of Information Collection Under meetings will be published in the Company, Inc.; Agrico Chemical OMB Review Company; BASF Sparks LLC; PCS Joint Federal Register and a local newspaper AGENCY: Venture, Ltd.; Sylvite Terminal & National Aeronautics and at least 30 days before the scheduled Space Administration (NASA). date of the meeting. Distribution LLC; Billy G. Mitchell; and Walter G. Grahn—will implement the ACTION: Notice of information collection This application/proposal will be under OMB review. processed in accordance with the remedy selected by EPA for the Site, regulations set forth in 43 CFR part including a final action to remediate soil SUMMARY: The National Aeronautics and 2300. contamination and an interim action to Space Administration, as part of its For a period of 2 years from the date address groundwater contamination. continuing effort to reduce paperwork of publication of this notice in the The Consent Decree also requires the and respondent burden, invites the Federal Register, the lands described in Settling Defendants to pay any future general public and other Federal this notice will be segregated from response costs above $796,454.46 agencies to take this opportunity to location and entry under the 1872 incurred by the United States. comment on proposed and/or The Department of Justice will receive Mining Law, unless the application/ continuing information collections, as for a period of thirty (30) days from the proposal is denied or canceled or the required by the Paperwork Reduction date of this publication comments withdrawal is approved prior to that Act of 1995 (Pub. L. 104–13, 44 U.S.C. relating to the Consent Decree. date. Licenses, permits, cooperative 3506(c)(2)(A)). Comments should be addressed to the agreements, or other discretionary land DATES: All comments should be Assistant Attorney General, use authorizations may be allowed with submitted within 30 calendar days from Environment and Natural Resources the approval of an authorized officer of the date of this publication. Division, and either e-mailed to the Bureau of Land Management or [email protected] or ADDRESSES: All comments should be Forest Service during the segregative mailed to P.O. Box 7611, U.S. addressed to Jasmeet Seehra, Desk period. Department of Justice, Washington, DC Officer for NASA, Office of Information Authority: 43 CFR 2310.3–1. 20044–7611, and should refer to United and Regulatory Affairs, Room 10236, States v. Landia Chemical Company, New Executive Office Building, Dated: July 16, 2009. Washington, DC 20503. Mike Pool, Inc. et al., D.J. Ref. No. 90–11–3–09147. The Consent Decree may be examined FOR FURTHER INFORMATION CONTACT: Acting Director, Bureau of Land Management. at the Office of the United States Requests for additional information or [FR Doc. E9–17293 Filed 7–20–09; 8:45 am] Attorney, Middle District of Florida, 400 copies of the information collection BILLING CODE 4310–32–P N. Tampa Street, Suite 3200, Tampa, FL instrument(s) and instructions should 33602, and at U.S. EPA Region 4, 61 be directed to Dr. Walter Kit, NASA Forsyth Street, SW., Atlanta, Georgia, Clearance Officer, NASA Headquarters, 30303. During the public comment 300 E Street, SW., JF0000, Washington, DEPARTMENT OF JUSTICE period, the Consent Decree may also be DC 20546, (202) 358–1350, Walter.Kit- [email protected]. Notice of Lodging of Consent Decree examined on the following Department Under the Comprehensive of Justice Web site: http:// SUPPLEMENTARY INFORMATION: www.usdoj.gov/enrd/ Environmental Response, _ I. Abstract Compensation, and Liability Act of Consent Decrees.html. A copy of the 1980 (‘‘CERCLA’’) Consent Decree may also be obtained by NASA will collect information to mail from the Consent Decree Library, determine which applicants meet Notice is hereby given that on July 15, P.O. Box 7611, U.S. Department of required selection criteria and to what 2009, a proposed Consent Decree in Justice, Washington, DC 20044–7611 or extent. Ten secondary educators from United States v. Landia Chemical by faxing or e-mailing a request to Tonia institutions nation-wide will be selected Company et al., Civil Action No. 8:09– Fleetwood ([email protected]), to participate in the Airborne Research cv–01325–VMC–TBM, was lodged with fax no. (202) 514–0097, phone Experience for Educators (AREE) project the United States District Court for the confirmation number (202) 514–1547. In based on their experience and Middle District of Florida. requesting a copy from the Consent educational background.

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II. Method of Collection Law 92–463, as amended, the National to an operating license upon a Applicants will complete an online Aeronautics and Space Administration determination by the Commission that application hosted on the AREE Web announces a meeting of the Review of such amendment involves no significant site. The application form can be U.S. Human Space Flight Plans hazards consideration, notwithstanding downloaded using Adobe software and Committee. the pendency before the Commission of a request for a hearing from any person. submitted electronically using the e- DATES: Wednesday, August 5, 2009, This notice includes notices of mail submit button located on the form. 8 a.m.–12 noon (EDT). amendments containing sensitive The collection of information from the ADDRESSES: Carnegie Institution of unclassified non-safeguards information application, resume, and letters of Washington, 1530 P Street, NW., (SUNSI) or safeguards information reference will all occur electronically. Washington, DC 20005, Telephone: (SGI). (202) 939–1138. III. Data Notice of Consideration of Issuance of FOR FURTHER INFORMATION CONTACT: Mr. Title: Airborne Research Experience Amendments to Facility Operating Philip R. McAlister, Office of Program for Educators (AREE) Application. Licenses, Proposed No Significant Analysis and Evaluation, National OMB Number: 2700–0137. Hazards Consideration Determination, Aeronautics and Space Administration, Type of review: New Collection. and Opportunity for a Hearing Affected Public: Individuals or Washington, DC 20546. Phone 202–358– 0712. The Commission has made a households. proposed determination that the Estimated Number of Respondents: SUPPLEMENTARY INFORMATION: The meeting will be open to the public up following amendment requests involve 25. no significant hazards consideration. Estimated Number of Responses per to the seating capacity of the room. It is Under the Commission’s regulations in imperative that the meeting be held on Respondent: 1. Title 10 of the Code of Federal Estimated Time per Response: 1 hour. this date to accommodate the Regulations (10 CFR), section 50.92, this Estimated Total Annual Burden scheduling priorities of the key means that operation of the facility in Hours: 25 hours. participants. The agenda topics for the accordance with the proposed meeting include: IV. Request for Comments amendment would not (1) Involve a • Vision for Space Exploration significant increase in the probability or Comments are invited on: (1) Whether Background. consequences of an accident previously the proposed collection of information • Mars Society Views on U.S. Human evaluated; or (2) create the possibility of is necessary for the proper performance Space Flight Program. a new or different kind of accident from of the functions of NASA, including • Science-related Briefings. any accident previously evaluated; or whether the information collected has • Arianespace Briefing. (3) involve a significant reduction in a practical utility; (2) the accuracy of • Public Comment. margin of safety. The basis for this NASA’s estimate of the burden proposed determination for each (including hours and cost) of the P. Diane Rausch, Advisory Committee Management Officer, amendment request is shown below. proposed collection of information; (3) The Commission is seeking public ways to enhance the quality, utility, and National Aeronautics and Space Administration. comments on this proposed clarity of the information to be determination. Any comments received collected; and (4) ways to minimize the [FR Doc. E9–17305 Filed 7–20–09; 8:45 am] BILLING CODE P within 30 days after the date of burden of the collection of information publication of this notice will be on respondents, including automated considered in making any final collection techniques or the use of other determination. forms of information technology. NUCLEAR REGULATORY Normally, the Commission will not Comments submitted in response to COMMISSION issue the amendment until the this notice will be summarized and [NRC–2009–0270] expiration of 60 days after the date of included in the request for OMB publication of this notice. The approval of this information collection. Notice; Applications and Amendments Commission may issue the license They will also become a matter of to Facility Operating Licenses amendment before expiration of the 60- public record. Involving Proposed No Significant day period provided that its final Walter Kit, Hazards Considerations and determination is that the amendment NASA Clearance Officer. Containing Sensitive Unclassified Non- involves no significant hazards [FR Doc. E9–17306 Filed 7–20–09; 8:45 am] Safeguards Information or Safeguards consideration. In addition, the Information and Order Imposing Commission may issue the amendment BILLING CODE P Procedures for Access to Sensitive prior to the expiration of the 30-day Unclassified Non-Safeguards comment period should circumstances NATIONAL AERONAUTICS AND Information or Safeguards Information change during the 30-day comment SPACE ADMINISTRATION period such that failure to act in a I. Background timely way would result, for example in [Notice (09–068)] Pursuant to section 189a.(2) of the derating or shutdown of the facility. Atomic Energy Act of 1954, as amended Should the Commission take action Review of U.S. Human Space Flight (the Act), the U.S. Nuclear Regulatory prior to the expiration of either the Plans Committee; Meeting Commission (the Commission or NRC comment period or the notice period, it AGENCY: National Aeronautics and staff) is publishing this notice. The Act will publish in the Federal Register a Space Administration. requires the Commission publish notice notice of issuance. Should the ACTION: Notice of Meeting. of any amendments issued, or proposed Commission make a final No Significant to be issued and grants the Commission Hazards Consideration Determination, SUMMARY: In accordance with the the authority to issue and make any hearing will take place after Federal Advisory Committee Act, Public immediately effective any amendment issuance. The Commission expects that

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the need to take this action will occur the requestor or petitioner; (2) the consideration, any hearing held would very infrequently. nature of the requestor’s/petitioner’s take place before the issuance of any Written comments may be submitted right under the Act to be made a party amendment. by mail to the Chief, Rulemaking and to the proceeding; (3) the nature and All documents filed in NRC Directives Branch (RDB), TWB–05– extent of the requestor’s/petitioner’s adjudicatory proceedings, including a B01M, Division of Administrative property, financial, or other interest in request for hearing, a petition for leave Services, Office of Administration, U.S. the proceeding; and (4) the possible to intervene, any motion or other Nuclear Regulatory Commission, effect of any decision or order which document filed in the proceeding prior Washington, DC 20555–0001, and may be entered in the proceeding on the to the submission of a request for should cite the publication date and requestor’s/petitioner’s interest. The hearing or petition to intervene, and page number of this Federal Register petition must also set forth the specific documents filed by interested notice. Written comments may also be contentions which the petitioner/ governmental entities participating faxed to the RDB at 301–492–3446. requestor seeks to have litigated at the under 10 CFR 2.315(c), must be filed in Documents may be examined, and/or proceeding. accordance with the NRC E–Filing rule, copied for a fee, at the NRC’s Public Each contention must consist of a which the NRC promulgated in August Document Room (PDR), located at One specific statement of the issue of law or 28, 2007 (72 FR 49139). The E–Filing White Flint North, Public File Area O1 fact to be raised or controverted. In process requires participants to submit F21, 11555 Rockville Pike (first floor), addition, the petitioner/requestor shall and serve all adjudicatory documents Rockville, Maryland. provide a brief explanation of the bases over the Internet, or in some cases to Within 60 days after the date of for the contention and a concise mail copies on electronic storage media. publication of this notice, any person(s) statement of the alleged facts or expert Participants may not submit paper whose interest may be affected by this opinion which support the contention copies of their filings unless they seek action may file a request for a hearing and on which the petitioner/requestor an exemption in accordance with the and a petition to intervene with respect intends to rely in proving the contention procedures described below. to issuance of the amendment to the at the hearing. The petitioner/requestor To comply with the procedural subject facility operating license. must also provide references to those requirements of E–Filing, at least ten Requests for a hearing and a petition for specific sources and documents of (10) days prior to the filing deadline, the leave to intervene shall be filed in which the petitioner is aware and on petitioner/requestor should contact the accordance with the Commission’s which the petitioner/requestor intends Office of the Secretary by e-mail at ‘‘Rules of Practice for Domestic to rely to establish those facts or expert [email protected], or by calling Licensing Proceedings’’ in 10 CFR part opinion. The petition must include 301–415–1677, to request (1) A digital 2. Interested person(s) should consult a sufficient information to show that a ID certificate, which allows the current copy of 10 CFR 2.309, which is genuine dispute exists with the participant (or its counsel or available at the Commission’s PDR, applicant on a material issue of law or representative) to digitally sign located at One White Flint North, Public fact. Contentions shall be limited to documents and access the E–Submittal File Area 01F21, 11555 Rockville Pike matters within the scope of the server for any proceeding in which it is (first floor), Rockville, Maryland, or at amendment under consideration. The participating; and/or (2) creation of an http://www.nrc.gov/reading-rm/doc- contention must be one which, if electronic docket for the proceeding collections/cfr/part002/part002– proven, would entitle the petitioner/ (even in instances in which the 0309.html. Publicly available records requestor to relief. A petitioner/ petitioner/requestor (or its counsel or will be accessible from the Agencywide requestor who fails to satisfy these representative) already holds an NRC- Documents Access and Management requirements with respect to at least one issued digital ID certificate). Each System’s (ADAMS) Public Electronic contention will not be permitted to petitioner/requestor will need to Reading Room on the Internet at the participate as a party. download the Workplace Forms NRC Web site, http://www.nrc.gov/ Those permitted to intervene become ViewerTM to access the Electronic reading-rm.html. If a request for a parties to the proceeding, subject to any Information Exchange (EIE), a hearing or petition for leave to intervene limitations in the order granting leave to component of the E–Filing system. The is filed within 60 days, the Commission intervene, and have the opportunity to Workplace Forms ViewerTM is free and or a presiding officer designated by the participate fully in the conduct of the is available at http://www.nrc.gov/site- Commission or by the Chief hearing. help/e-submittals/install-viewer.html. Administrative Judge of the Atomic If a hearing is requested, and the Information about applying for a digital Safety and Licensing Board Panel, will Commission has not made a final ID certificate is available on NRC’s rule on the request and/or petition; and determination on the issue of no public Web site at http://www.nrc.gov/ the Secretary or the Chief significant hazards consideration, the site-help/e-submittals/apply- Administrative Judge of the Atomic Commission will make a final certificates.html. Safety and Licensing Board will issue a determination on the issue of no Once a petitioner/requestor has notice of a hearing or an appropriate significant hazards consideration. The obtained a digital ID certificate, had a order. final determination will serve to decide docket created, and downloaded the EIE As required by 10 CFR 2.309, a when the hearing is held. If the final viewer, it can then submit a request for petition for leave to intervene shall set determination is that the amendment hearing or petition for leave to forth with particularity the interest of request involves no significant hazards intervene. Submissions should be in the petitioner in the proceeding, and consideration, the Commission may Portable Document Format (PDF) in how that interest may be affected by the issue the amendment and make it accordance with NRC guidance results of the proceeding. The petition immediately effective, notwithstanding available on the NRC public Web site at should specifically explain the reasons the request for a hearing. Any hearing http://www.nrc.gov/site-help/e- why intervention should be permitted held would take place after issuance of submittals.html. A filing is considered with particular reference to the the amendment. If the final complete at the time the filer submits its following general requirements: (1) The determination is that the amendment documents through EIE. To be timely, name, address, and telephone number of request involves a significant hazards an electronic filing must be submitted to

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the EIE system no later than 11:59 p.m. Commission, the presiding officer, or Region in Steam Generators with Eastern Time on the due date. Upon the Atomic Safety and Licensing Board Hydraulically Expanded Tubes (Model receipt of a transmission, the E–Filing that the request and/or petition should F).’’ system time-stamps the document and be granted and/or the contentions Basis for proposed no significant sends the submitter an e-mail notice should be admitted, based on a hazards consideration determination: confirming receipt of the document. The balancing of the factors specified in 10 As required by 10 CFR 50.91(a), the EIE system also distributes an e-mail CFR 2.309(c)(1)(i)–(viii). licensee has provided its analysis of the notice that provides access to the Documents submitted in adjudicatory issue of no significant hazards document to the NRC Office of the proceedings will appear in NRC’s consideration, which is presented General Counsel and any others who electronic hearing docket which is below: have advised the Office of the Secretary available to the public at http:// _ 1. The proposed changes do not involve a that they wish to participate in the ehd.nrc.gov/ehd proceeding/home.asp, significant increase in the probability or proceeding, so that the filer need not unless excluded pursuant to an order of consequences of an accident previously serve the documents on those the Commission, the Atomic Safety and evaluated. participants separately. Therefore, Licensing Board, or a Presiding Officer. The previously analyzed accidents are applicants and other participants (or Participants are requested not to include initiated by the failure of plant structures, their counsel or representative) must personal privacy information, such as systems, or components. The proposed apply for and receive a digital ID social security numbers, home change that alters the steam generator (SG) addresses, or home phone numbers in inspection and reporting criteria does not certificate before a hearing request/ have a detrimental impact on the integrity of petition to intervene is filed so that they their filings, unless an NRC regulation any plant structure, system, or component can obtain access to the document via or other law requires submission of such that initiates an analyzed event. The the E–Filing system. information. With respect to proposed change will not alter the operation A person filing electronically using copyrighted works, except for limited of, or otherwise increase the failure the agency’s adjudicatory e-filing system excerpts that serve the purpose of the probability of any plant equipment that may seek assistance through the adjudicatory filings and would initiates an analyzed accident. ‘‘Contact Us’’ link located on the NRC constitute a Fair Use application, Of the applicable accidents previously Web site at http://www.nrc.gov/site- participants are requested not to include evaluated, the limiting transients with help/e-submittals.html or by calling the copyrighted materials in their consideration to the proposed change to the SG tube inspection and repair criteria are the NRC electronic filing Help Desk, which submission. steam generator tube rupture (SGTR) event, is available between 8 a.m. and 8 p.m., For further details with respect to this the steam line break (SLB), and the feed line Eastern Time, Monday through Friday, amendment action, see the application break (FLB) postulated accidents. excluding government holidays. The for amendment which is available for During the SGTR event, the required toll-free help line number is 1–866– public inspection at the Commission’s structural integrity margins of the SG tubes 672–7640. A person filing electronically PDR, located at One White Flint North, and the tube-to-tubesheet joint over the H* may also seek assistance by sending an Public File Area 01F21, 11555 Rockville distance will be maintained. Tube rupture in e-mail to the NRC electronic filing Help Pike (first floor), Rockville, Maryland. tubes with cracks within the tubesheet is Desk at [email protected]. Publicly available records will be precluded by the constraint provided by the presence of the tubesheet and the tube-to- Participants who believe that they accessible electronically from the tubesheet joint. Tube burst cannot occur have a good cause for not submitting ADAMS Public Electronic Reading within the thickness of the tubesheet. The documents electronically must file an Room on the Internet at the NRC Web tube-to-tubesheet joint constraint results from exemption request, in accordance with site, http://www.nrc.gov/reading-rm/ the hydraulic expansion process, thermal 10 CFR 2.302(g), with their initial paper adams.html. If you do not have access expansion mismatch between the tube and filing requesting authorization to to ADAMS or if there are problems in tubesheet, and from the differential pressure continue to submit documents in paper accessing the documents located in between the primary and secondary side, and format. Such filings must be submitted ADAMS, contact the PDR Reference tubesheet rotation. Based on this design, the by: (1) First class mail addressed to the staff at 1–800–397–4209, 301–415–4737 structural margins against burst, as discussed in Regulatory Guide (RG) 1.121, ‘‘Bases for Office of the Secretary of the or by e-mail to [email protected]. Plugging Degraded [pressurized-water Commission, U.S. Nuclear Regulatory reactor] PWR Steam Generator Tubes,’’ and Commission, Washington, DC 20555– FPL Energy Seabrook, LLC, Docket No. 50–443, Seabrook Station, Unit No. 1, Technical Specification 6.7.6.k, are 0001, Attention: Rulemaking and maintained for both normal and postulated Adjudications Staff; or (2) courier, Rockingham County, New Hampshire accident conditions. express mail, or expedited delivery Date of amendment request: May 28, The proposed change has no impact on the service to the Office of the Secretary, 2009. structural or leakage integrity of the portion Sixteenth Floor, One White Flint North, Description of amendment request: of the tube outside of the tubesheet. The 11555 Rockville Pike, Rockville, This amendment request contains proposed change maintains structural and sensitive unclassified non-safeguards leakage integrity of the SG tubes consistent Maryland 20852, Attention: Rulemaking with the performance criteria of Technical and Adjudications Staff. Participants information (SUNSI). The amendment Specification 6.7.6.k. Therefore, the proposed filing a document in this manner are would revise Technical Specification change results in no significant increase in responsible for serving the document on (TS) 6.7.6.k, Steam Generator (SG) the probability of the occurrence of a SGTR all other participants. Filing is Program, to exclude a portion of the accident. considered complete by first-class mail tubes below the top of the SG tube sheet At normal operating , leakage as of the time of deposit in the mail, or from periodic SG tube inspections. The from tube degradation below the proposed by courier, express mail, or expedited change also adds additional reporting limited inspection depth is limited by the delivery service upon depositing the criteria to TS 6.8.1.7, Steam Generator tube-to-tubesheet crevice. Consequently, negligible normal operating leakage is document with the provider of the Tube Inspection Report. This permanent expected from degradation below the service. change is supported by Westinghouse inspected depth within the tubesheet region. Non-timely requests and/or petitions Electric Company, LLC Topical Report The consequences of an SGTR event are not and contentions will not be entertained WCAP–17071–P, ‘‘H*: Alternate Repair affected by the primary-to-secondary leakage absent a determination by the Criteria for the Tubesheet Expansion flow during the event as primary-to-

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secondary leakage flow through a postulated accident conditions. WCAP–17071–P Wolf Creek Nuclear Operating tube that has been pulled out of the tubesheet identifies the specific inspection depth below Corporation, Docket No. 50–482, Wolf is essentially equivalent to a severed tube. which any type tube degradation [is] shown Creek Generating Station, Coffey Therefore, the proposed change does not to have no impact on the performance criteria County, Kansas result in a significant increase in the in [Nuclear Energy Institute] NEI 97–06 Rev. consequences of a SGTR. 2, ‘‘Steam Generator Program Guidelines.’’ Date of amendment request: June 2, The probability of a SLB is unaffected by The proposed change that alters the steam 2009. the potential failure of a steam generator tube generator inspection and reporting criteria Description of amendment request: as the failure of tube is not an initiator for maintains the required structural margins of This amendment request contains a SLB event. the SG tubes for both normal and accident sensitive unclassified non-safeguards The leakage factor of 2.02 for Seabrook conditions. Nuclear Energy Institute 97–06, information (SUNSI). The amendment Station, for a postulated SLB/FLB, has been ‘‘Steam Generator Program Guidelines,’’ and would revise Technical Specification calculated as shown in Table 9–7 of [WCAP– NRC Regulatory Guide (RG) 1.121, ‘‘Bases for 17071–P]. However, NextEra will apply a Plugging Degraded PWR Steam Generator (TS) 5.5.9, ‘‘Steam Generator (SG) factor of 2.03 to the normal operating leakage Tubes,’’ are used as the bases in the Program,’’ to exclude portions of the associated with the tubesheet expansion development of the limited tubesheet tube below the top of the steam region in the condition monitoring (CM) and inspection depth methodology for generator tubesheet from periodic SG operational assessment (OA). The leakage determining that SG tube integrity tube inspections. In addition, this factor of 2.03 is a bounding value for all SGs, considerations are maintained within amendment request proposes to revise both hot and cold legs, in Table 9–7 of acceptable limits. RG 1.121 describes a TS 5.6.10, ‘‘Steam Generator Tube [WCAP–17071–P]. Through application of method acceptable to the NRC for meeting the limited tubesheet inspection scope, the Inspection Report,’’ to provide reporting General Design Criteria (GDC) 14, ‘‘Reactor requirements specific to the permanent existing operating leakage limit provides Coolant Pressure Boundary,’’ GDC 15, assurance that excessive leakage (i.e., greater ‘‘Reactor Coolant System Design,’’ GDC 31, alternate repair criteria. This permanent than accident analysis assumptions) will not ‘‘Fracture Prevention of Reactor Coolant change is supported by Westinghouse occur. The assumed accident induced leak Pressure Boundary,’’ and GDC 32, Electric Company LLC, WCAP–17071– rate is 500 gallons per day (gpd) during a ‘‘Inspection of Reactor Coolant Pressure P, ‘‘H*: Alternate Repair Criteria for the postulated steam line break in the faulted Boundary,’’ by reducing the probability and Tubesheet Expansion Region in Steam loop. Using the limiting leak rate factor of consequences of a SGTR. RG 1.121 concludes Generators with Hydraulically 2.03, this corresponds to an acceptable level that by determining the limiting safe Expanded Tubes (Model F).’’ of operational leakage of 246 gpd. Therefore, conditions for tube wall degradation, the Basis for proposed no significant the technical specification leak rate limit of probability and consequences of a SGTR are 150 gpd provides significant added margin hazards consideration determination: reduced. This RG uses safety factors on loads As required by 10 CFR 50.91(a), the against the 500 gpd accident analysis leak for tube burst that are consistent with the rate assumption. requirements of Section III of the American licensee has provided its analysis of the No leakage factor will be applied to the Society of Mechanical Engineers (ASME) issue of no significant hazards locked rotor or control rod ejection transients Code. consideration, which is presented due to their short duration. For axially oriented cracking located below: For the CM assessment, the component of within the tubesheet, tube burst is precluded 1. Does the proposed change involve a leakage from the prior cycle from below the due to the presence of the tubesheet. For H* distance will be multiplied by a factor of significant increase in the probability or circumferentially oriented cracking, consequences of an accident previously 2.03 and added to the total leakage from any Westinghouse WCAP–17071–P defines a evaluated? other source and compared to the allowable length of degradation-free expanded tubing Response: No. accident induced leakage limit. For the OA, that provides the necessary resistance to tube The previously analyzed accidents are the difference in the leakage between the pullout due to the pressure induced forces, initiated by the failure of plant structures, allowable leakage and the accident induced with applicable safety factors applied. systems, or components. The proposed leakage from sources other than the tubesheet Application of the limited hot and cold leg change that alters the steam generator expansion region will be divided by 2.03 and tubesheet inspection criteria will preclude inspection criteria does not have a compared to the observed operational unacceptable primary-to-secondary leakage detrimental impact on the integrity of any leakage. during all plant conditions. The methodology plant structure, system, or component that Based on the above, the proposed change for determining leakage as described in initiates an analyzed event. The proposed does not involve a significant increase in the WCAP–17071–P shows that significant change will not alter the operation of, or probability or consequences of an accident margin exists between an acceptable level of otherwise increase the failure probability of previously evaluated. leakage during normal operating conditions any plant equipment that initiates an 2. The proposed changes do not create the (246 gpd) that ensures meeting the SLB analyzed accident. possibility of a new or different kind of accident-induced leakage assumption and the Of the applicable accidents previously accident from any previously evaluated. technical specification leakage limit of 150 evaluated, the limiting transients with The proposed change that alters the steam gpd. consideration to the proposed change to the generator inspection and reporting criteria Therefore, the proposed change does not steam generator tube inspection and repair does not introduce any new equipment, involve a significant reduction in any margin criteria are the steam generator tube rupture create new failure modes for existing of safety. (SGTR) event and the feedline break (FLB) equipment, or create any new limiting single postulated accidents. failures. Plant operation will not be altered, The NRC staff has reviewed the During the SGTR event, the required and all safety functions will continue to licensee’s analysis and, based on this structural integrity margins of the steam perform as previously assumed in accident review, it appears that the three generator tubes and the tube-to-tubesheet analyses. Therefore, the proposed change standards of 10 CFR 50.92(c) are joint over the H* distance will be does not create the possibility of a new or satisfied. Therefore, the NRC staff maintained. Tube rupture in tubes with different kind of accident from any cracks within the tubesheet is precluded by previously evaluated. proposes to determine that the the presence of the tubesheet and constraint 3. The proposed changes do not involve a amendment request involves no provided by the tube-to-tubesheet joint. Tube significant reduction in the margin of safety. significant hazards consideration. burst cannot occur within the thickness of The proposed change limits the portion of Attorney for licensee: M.S. Ross, the tubesheet. The tube-to-tubesheet joint the tube that must be inspected and repaired Florida Power & Light Company, P.O. constraint results from the hydraulic to the portion of the tube within the expansion process, thermal expansion tubesheet necessary to maintain structural Box 14000, Juno Beach, FL 33408–0420. mismatch between the tube and tubesheet, and leakage integrity under both normal and NRC Branch Chief: Harold Chernoff. from the differential pressure between the

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primary and secondary side, and tubesheet 2.03 and added to the total leakage from any applied. Application of the limited hot and deflection. Based on this design, the other source and compared to the allowable cold leg tubesheet inspection criteria will structural margins against burst, as discussed accident induced leakage limit. For the OA, preclude unacceptable primary to secondary in Regulatory Guide (RG) 1.121, ‘‘Bases for the difference in the leakage between the leakage during all plant conditions. Using the Plugging Degraded PWR [Pressurized-Water allowable leakage and the accident induced methodology for determining leakage as Reactor] Steam Generator Tubes,’’ and TS leakage from sources other than the tubesheet described in WCAP–17071–P, it is shown 5.5.9 are maintained for both normal and expansion region will be divided by 2.03 and that significant margin exists between postulated accident conditions. compared to the observed operational conservatively estimated accident induced The proposed change has no impact on the leakage. leakage and the allowable accident leakage structural or leakage integrity of the portion Therefore, the proposed change does not (1.0 gpm) if all four steam generators are of the tube outside of the tubesheet. The involve a significant increase in the assumed to be leaking at the TS leakage limit proposed change maintains structural and probability or consequences of an accident at the beginning of the design basis accident. leakage integrity of the steam generator tubes previously evaluated. Therefore, the proposed change does not consistent with the performance criteria in 2. Does the change create the possibility of involve a significant reduction in any margin TS 5.5.9. Therefore, the proposed change a new or different kind of accident from any of safety. results in no significant increase in the accident previously evaluated? probability of the occurrence of [an] SGTR Response: No. The NRC staff has reviewed the accident. The proposed change that alters the steam licensee’s analysis and, based on this At normal operating pressures, leakage generator inspection and reporting criteria review, it appears that the three from tube degradation below the proposed does not introduce any new equipment, standards of 10 CFR 50.92(c) are limited inspection depth is limited by the create new failure modes for existing satisfied. Therefore, the NRC staff tube-to-tubesheet joint. Consequently, equipment, or create any new limiting single proposes to determine that the negligible normal operating leakage is failures. Plant operation will not be altered, expected from degradation below the and safety functions will continue to perform amendment request involves no inspected depth within the tubesheet region. as previously assumed in accident analyses. significant hazards consideration. The consequences of an SGTR event are not Therefore, the proposed change does not Attorney for licensee: Jay Silberg, Esq., affected by the primary to secondary leakage create the possibility of a new or different Pillsbury Winthrop Shaw Pittman LLP, flow during the event as primary to kind of accident from any accident 2300 N Street, NW., Washington, DC secondary leakage flow through a postulated previously evaluated. 20037. tube that has been pulled out of the tubesheet 3. Does the change involve a significant NRC Branch Chief: Michael T. is essentially equivalent to a severed tube. reduction in a margin of safety? Therefore, the proposed changes do not Response: No. Markley. result in a significant increase in the The proposed change defines the portion of Order Imposing Procedures for Access consequences of [an] SGTR. the tube that must be inspected and repaired. to Sensitive Unclassified Non- The probability of [an] SLB [steam line WCAP–17071–P identifies the specific Safeguards Information (SUNSI) and break] is unaffected by the potential failure inspection depth below which any type tube of a steam generator tube as the failure of the degradation shown to have no impact on the Safeguards Information (SGI) for tube is not an initiator for [an] SLB event. performance criteria in NEI [Nuclear Energy Contention Preparation The leakage factor of 2.03 for WCGS, for a Institute] 97–06, Revision 2. FPL Energy Seabrook, LLC, Docket No. postulated SLB/FLB, has been calculated as The proposed change that alters the steam 50–443, Seabrook Station, Unit No. 1, shown in Table 9–7 of WCAP–17071–P and generator inspection and reporting criteria will be applied to the normal operating maintains the required structural margins of Rockingham County, New Hampshire leakage associated with the tubesheet the steam generator tubes for both normal Wolf Creek Nuclear Operating expansion region in the condition monitoring and accident conditions. NEI 97–06, Revision Corporation, Docket No. 50–482, Wolf (CM) and operational assessment (OA). The 2, and RG 1.121, are used as the bases in the Creek Generating Station, Coffey leakage factor of 2.03 is a bounding value for development of the limited tubesheet County, Kansas all steam generators, both hot and cold legs, inspection depth methodology for in Table 9–7 of [WCAP–17071–P]. Through determining that steam generator tube 1. This order contains instructions application of the limited tubesheet integrity considerations are maintained regarding how potential parties to the inspection scope, the existing operating within acceptable limits. RG 1.121 describes proceedings listed above may request leakage limit provides assurance that a method acceptable to the NRC [U.S. access to documents containing excessive leakage (i.e., greater than accident Nuclear Regulatory Commission] for meeting analysis assumptions) will not occur. The GDC [General Design Criterion] 14, ‘‘Reactor sensitive unclassified information accident induced leak rate limit for WCGS is Coolant Pressure Boundary,’’ GDC 15, (SUNSI and SGI). Requirements for 1.0 gpm [gallons per minute]. The TS 3.4.13, ‘‘Reactor Coolant System Design,’’ GDC 31, access to SGI are primarily set forth in ‘‘RCS [Reactor Coolant System] Operational ‘‘Fracture Prevention of Reactor Coolant 10 CFR parts 2 and 73. The intent of this LEAKAGE,’’ operational leak rate limit is 150 Pressure Boundary,’’ and GDC 32, order is to make those requirements gpd [gallons per day] (0.1 gpm) through any ‘‘Inspection of Reactor Coolant Pressure more specific to this proceeding, but one steam generator. Consequently, accident Boundary,’’ by reducing the probability and nothing in this order is intended to leakage is approximately 10 times the consequences of [an] SGTR. RG 1.121 conflict with those regulations. allowable leakage, if only one steam concludes that by determining the limiting generator is leaking. Using [an] SLB/FLB safe conditions for tube wall degradation the 2. Within ten (10) days after overall leakage factor of 2.03, accident probability and consequences of [an] SGTR publication of this notice of opportunity induced leakage is approximately 0.5 gpm, if are reduced. This RG uses safety factors on for hearing, any potential party as all 4 steam generators are leaking at 150 gpd loads for tube burst that are consistent with defined in 10 CFR 2.4 who believes at the beginning of the accident. Therefore, the requirements of Section III of the access to SUNSI or SGI is necessary for significant margin exists between the American Society of Mechanical Engineers a response to the notice may request conservatively estimated accident induced (ASME) Code. access to SUNSI or SGI. A ‘‘potential leakage and the allowable accident leakage For axially-oriented cracking located party’’ is any person who intends or (1.0 gpm). within the tubesheet, tube burst is precluded may intend to participate as a party by No leakage factor will be applied to the due to the presence of the tubesheet. For locked rotor or control rod ejection transients circumferentially-oriented cracking, WCAP– demonstrating standing and the filing of due to their short duration. 17071–P, defines a length of degradation-free an admissible contention under 10 CFR For the CM assessment, the component of expanded tubing that provides the necessary 2.309. Requests submitted later than ten leakage from the prior cycle from below the resistance to tube pullout due to the pressure (10) days will not be considered absent H* distance will be multiplied by a factor of induced forces, with applicable safety factors a showing of good cause for the late

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filing, addressing why the request could as well as trustworthiness and establish standing to participate in this not have been filed earlier. reliability, and who agrees to sign a non- NRC proceeding, and (2) there is a 3. The requester shall submit a letter disclosure affidavit and be bound by the legitimate need for access to SUNSI or requesting permission to access SUNSI terms of a protective order; and need to know the SGI requested. For and/or SGI to the Office of the Secretary, e. Pursuant to 10 CFR 73.22(b), no SGI, the need to know determination is U.S. Nuclear Regulatory Commission, person may have access to SGI without made based on whether the information Washington, DC 20555–0001, Attention: first being determined to be trustworthy requested is necessary (i.e., Rulemakings and Adjudications Staff, and reliable based on a background indispensable) for the proposed and provide a copy to the Associate check. Accordingly, if the requested recipient to proffer and adjudicate a General Counsel for Hearings, information is for SGI, Form SF–85, specific contention in this NRC Enforcement and Administration, Office ‘‘Questionnaire for Non-Sensitive proceeding 3 and whether the proposed of the General Counsel, Washington, DC Positions,’’ and Form FD–258 recipient has the technical competence 20555–0001. The expedited delivery or (fingerprint card)—completed by any (demonstrable knowledge, skill, courier mail address for both offices is individual who would have access to training, or education) to effectively U.S. Nuclear Regulatory Commission, SGI if the request is granted—must be utilize the specific SGI requested in this 11555 Rockville Pike, Rockville, MD submitted. For Form SF–85, the proceeding. 20852. The e-mail address for the Office requestor(s) should only complete 6. If standing and need to know SGI of the Secretary and the Office of the sections 1–11, the certification and the are shown, the NRC staff will further General Counsel are authorization for release. For security determine based upon completion of the [email protected] and reasons, Form SF–85 can only be background check whether the proposed [email protected], submitted electronically, through a recipient is trustworthy and reliable in respectively.1 The request must include restricted-access database. To obtain accordance with 10 CFR 73.22(b). The the following information: online access to the form, the requester NRC staff will conduct (as necessary) an a. A description of the licensing should contact the NRC’s Office of inspection to confirm that the action with a citation to this Federal Administration at 301–492–3524.2 The recipient’s information protection Register notice of opportunity for other completed form must be signed in systems meet the requirements of 10 hearing; original ink, accompanied by a check or CFR 73.22. Recipients may opt to view b. The name and address of the money order payable in the amount of SGI at the NRC’s facility rather than potential party and a description of the $200.00 to the U.S. Nuclear Regulatory establish their own SGI protection potential party’s particularized interest Commission for each individual, and program to meet SGI protection that could be harmed by the action mailed to the: requirements. identified in (a); Office of Administration, Security 7. A request for access to SUNSI or c. If the request is for SUNSI, the Processing Unit, Mail Stop TWB–05 SGI will be granted if: identity of the individual requesting B32M, U.S. Nuclear Regulatory a. The request has demonstrated that access to SUNSI and the requester’s Commission, Washington, DC 20555– there is a reasonable basis to believe that need for the information in order to 0012. a potential party is likely to establish meaningfully participate in this These forms will be used to initiate standing to intervene or to otherwise adjudicatory proceeding, particularly the background check, which includes participate as a party in this proceeding; why publicly available versions of the fingerprinting as part of a Federal b. The proposed recipient of the application would not be sufficient to Bureau of Investigation criminal history information has demonstrated a need for provide the basis and specificity for a records check. Note: Copies of these SUNSI or a need to know for SGI, and proffered contention; forms do not need to be included with that the proposed recipient of SGI is d. If the request is for SGI, the identity the request letter to the Office of the trustworthy and reliable; of the individual requesting access to Secretary, but the request letter should c. The proposed recipient of the SGI and the identity of any expert, state that the forms and fees have been information has executed a Non- consultant or assistant who will aid the submitted as described above. Disclosure Agreement or Affidavit and requester in evaluating the SGI, and 4. To avoid delays in processing agrees to be bound by the terms of a information that shows: Protective Order setting forth terms and (i) Why the information is requests for access to SGI, all forms should be reviewed for completeness conditions to prevent the unauthorized indispensable to meaningful or inadvertent disclosure of SUNSI and/ participation in this licensing and accuracy (including legibility) before submitting them to the NRC. or SGI; and proceeding; and d. The presiding officer has issued a (ii) The technical competence Incomplete packages will be returned to the sender and will not be processed. protective order concerning the (demonstrable knowledge, skill, 4 5. Based on an evaluation of the information or documents requested. experience, training or education) of the Any protective order issued shall requester to understand and use (or information submitted under items 2 and 3.a through 3.d, above, the NRC provide that the petitioner must file evaluate) the requested information to SUNSI or SGI contentions 25 days after provide the basis and specificity for a staff will determine within ten days of receipt of the written access request proffered contention. The technical 3 whether (1) There is a reasonable basis Broad SGI requests under these procedures are competence of a potential party or its thus highly unlikely to meet the standard for need counsel may be shown by reliance on a to believe the petitioner is likely to to know; furthermore, staff redaction of information qualified expert, consultant or assistant from requested documents before their release may 2 The requester will be asked to provide his or her be appropriate to comport with this requirement. who demonstrates technical competence full name, social security number, date and place These procedures do not authorize unrestricted of birth, telephone number, and e-mail address. disclosure or less scrutiny of a requester’s need to 1 See footnote 6. While a request for hearing or After providing this information, the requester know than ordinarily would be applied in petition to intervene in this proceeding must usually should be able to obtain access to the online connection with an already-admitted contention. comply with the filing requirements of the NRC’s form within one business day. 4 If a presiding officer has not yet been ‘‘E-Filing Rule,’’ the initial request to access SUNSI Administration, Security Processing Unit, Mail Stop designated, the Chief Administrative Judge will and/or SGI under these procedures should be TWB–05 B32M, U.S. Nuclear Regulatory issue such orders, or will appoint a presiding officer submitted as described in this paragraph. Commission, Washington, DC 20555–0012. to do so.

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receipt of (or access to) that information. adverse determination regarding access, procedures give way to the normal However, if more than 25 days remain the proposed recipient must be process for litigating disputes between the petitioner’s receipt of (or provided an opportunity to correct or concerning access to information. The access to) the information and the explain information. The requester may availability of interlocutory review by deadline for filing all other contentions challenge the NRC staff’s adverse the Commission of orders ruling on (as established in the notice of hearing determination with respect to access to such NRC staff determinations (whether or opportunity for hearing), the SUNSI or with respect to standing or granting or denying access) is governed petitioner may file its SUNSI or SGI need to know for SGI by filing a by 10 CFR 2.311.6 contentions by that later deadline. challenge within ten (10) days of receipt 10. The Commission expects that the 8. If the request for access to SUNSI of that determination with (a) the NRC staff and presiding officers (and or SGI is granted, the terms and presiding officer designated in this any other reviewing officers) will conditions for access to sensitive proceeding; (b) if no presiding officer consider and resolve requests for access unclassified information will be set has been appointed, the Chief to SUNSI and/or SGI, and motions for forth in a draft protective order and Administrative Judge, or if he or she is protective orders, in a timely fashion in affidavit of non-disclosure appended to unavailable, another administrative order to minimize any unnecessary a joint motion by the NRC staff, any judge, or an administrative law judge delays in identifying those petitioners other affected parties to this with jurisdiction pursuant to 10 CFR who have standing and who have proceeding,5 and the petitioner(s). If the 2.318(a); or (c) if another officer has propounded contentions meeting the diligent efforts by the relevant parties or been designated to rule on information specificity and basis requirements in 10 petitioner(s) fail to result in an access issues, with that officer. In the CFR part 2. Attachment 1 to this Order agreement on the terms and conditions same manner, an SGI requester may summarizes the general target schedule for a draft protective order or non- challenge an adverse determination on for processing and resolving requests disclosure affidavit, the relevant parties trustworthiness and reliability by filing under these procedures. to the proceeding or the petitioner(s) a challenge within fifteen (15) days of should notify the presiding officer receipt of that determination. Dated at Rockville, Maryland, this 15th day within ten (10) days, describing the In the same manner, a party other of July 2009. obstacles to the agreement. than the requester may challenge an For the Nuclear Regulatory Commission. 9. If the request for access to SUNSI NRC staff determination granting access Annette L. Vietti-Cook, is denied by the NRC staff or a request to SUNSI whose release would harm Secretary of the Commission. for access to SGI is denied by NRC staff that party’s interest independent of the either after a determination on standing proceeding. Such a challenge must be Attachment 1—General Target and need to know or, later, after a filed within ten (10) days of the Schedule for Processing and Resolving determination on trustworthiness and notification by the NRC staff of its grant Requests for Access to Sensitive reliability, the NRC staff shall briefly of such a request. Unclassified Non-Safeguards state the reasons for the denial. Before If challenges to the NRC staff Information (SUNSI) and Safeguards the Office of Administration makes an determinations are filed, these Information (SGI) in This Proceeding

Day Event/activity

0 ...... Publication of FEDERAL REGISTER notice of proposed action and opportunity for hearing, including order with instructions for access requests. 10 ...... Deadline for submitting requests for access to SUNSI and/or SGI with information: supporting the standing of a potential party identified by name and address; describing the need for the information in order for the potential party to participate mean- ingfully in an adjudicatory proceeding; demonstrating that access should be granted (e.g., showing technical competence for access to SGI); and, for SGI, including application fee for fingerprint/background check. 60 ...... Deadline for submitting petition for intervention containing: (i) demonstration of standing; (ii) all contentions whose formulation does not require access to SUNSI and/or SGI (+25 Answers to petition for intervention; +7 petitioner/requestor reply). 20 ...... NRC staff informs the requester of the staff’s determination whether the request for access provides a reasonable basis to believe standing can be established and shows (1) need for SUNSI or (2) need to know for SGI. (For SUNSI, NRC staff also informs any party to the proceeding whose interest independent of the proceeding would be harmed by the release of the information.) If NRC staff makes the finding of need for SUNSI and likelihood of standing, NRC staff begins document processing (preparation of redactions or review of redacted documents). If NRC staff makes the finding of need to know for SGI and likelihood of standing, NRC staff begins background check (including fingerprinting for a criminal history records check), information processing (preparation of redactions or review of redacted documents), and readiness inspections. 25 ...... If NRC staff finds no ‘‘need,’’ ‘‘need to know,’’ or likelihood of standing, the deadline for petitioner/requester to file a motion seeking a ruling to reverse the NRC staff’s denial of access; NRC staff files copy of access determination with the presiding officer (or Chief Administrative Judge or other designated officer, as appropriate). If NRC staff finds ‘‘need’’ for SUNSI, the deadline for any party to the proceeding whose interest independent of the proceeding would be harmed by the release of the information to file a motion seeking a ruling to reverse the NRC staff’s grant of access. 30 ...... Deadline for NRC staff reply to motions to reverse NRC staff determination(s). 40 ...... (Receipt +30) If NRC staff finds standing and need for SUNSI, deadline for NRC staff to complete information processing and file motion for Protective Order and draft Non-Disclosure Affidavit. Deadline for applicant/licensee to file Non-Disclosure Agreement for SUNSI.

5 Parties/persons other than the requester and the harmed by the release of the information (e.g., as filing requirements of that rule apply to appeals of NRC staff will be notified by the NRC staff of a with proprietary information). NRC staff determinations (because they must be favorable access determination (and may participate 6 As of October 15, 2007, the NRC’s final ‘‘E- served on a presiding officer or the Commission, as in the development of such a motion and protective Filing Rule’’ became effective. See Use of Electronic applicable), but not to the initial SUNSI/SGI order) if it concerns SUNSI and if the party/person’s Submissions in Agency Hearings (72 FR 49139; requests submitted to the NRC staff under these interest independent of the proceeding would be Aug. 28, 2007). Requesters should note that the procedures.

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Day Event/activity

190 ...... (Receipt +180) If NRC staff finds standing, need to know for SGI, and trustworthiness and reliability, deadline for NRC staff to file motion for Protective Order and draft Non-disclosure Affidavit (or to make a determination that the proposed recipient of SGI is not trustworthy or reliable). Note: Before the Office of Administration makes an adverse determination regarding ac- cess, the proposed recipient must be provided an opportunity to correct or explain information. 205 ...... Deadline for petitioner to seek reversal of a final adverse NRC staff determination either before the presiding officer or an- other designated officer. A ...... If access granted: Issuance of presiding officer or other designated officer decision on motion for protective order for access to sensitive information (including schedule for providing access and submission of contentions) or decision reversing a final adverse determination by the NRC staff. A + 3 ...... Deadline for filing executed Non-Disclosure Affidavits. Access provided to SUNSI and/or SGI consistent with decision issuing the protective order. A + 28 ...... Deadline for submission of contentions whose development depends upon access to SUNSI and/or SGI. However, if more than 25 days remain between the petitioner’s receipt of (or access to) the information and the deadline for filing all other contentions (as established in the notice of hearing or opportunity for hearing), the petitioner may file its SUNSI or SGI con- tentions by that later deadline. A + 53 ...... (Contention receipt +25) Answers to contentions whose development depends upon access to SUNSI and/or SGI. A + 60 ...... (Answer receipt +7) Petitioner/Intervenor reply to answers. B ...... Decision on contention admission.

[FR Doc. E9–17243 Filed 7–20–09; 8:45 am] Official 30 minutes before the meeting. Room, 11555 Rockville Pike, Rockville, BILLING CODE 7590–01–P In addition, one electronic copy of each Maryland. presentation should be e-mailed to the The entire meeting will be open to Designated Federal Official 1 day before public attendance. NUCLEAR REGULATORY the meeting. If an electronic copy The agenda for the subject meeting COMMISSION cannot be provided within this shall be as follows: timeframe, presenters should provide Wednesday, August 19, 2009, 8:30 Advisory Committee on Reactor the Designated Federal Official with a a.m.–5 p.m. Safeguards Meeting of the ACRS CD containing each presentation at least Thursday, August 20, 2009, 8:30 a.m.– Subcommittee on Plant Operations 30 minutes before the meeting. 5 p.m. and Fire Protection; Notice of Meeting Electronic recordings will be permitted Friday, August 21, 2009, The ACRS Subcommittee on Plant only during those portions of the 8:30 a.m.–3 p.m. Operations and Fire Protection will hold meeting that are open to the public. The Subcommittee will hear a meeting on August 18, 2009, in the Detailed procedures for the conduct of presentations by and hold discussions Commission Hearing Room, 11555 and participation in ACRS meetings with representatives of the NRC staff Rockville Pike, Rockville, Maryland. were published in the Federal Register and the industry regarding several The entire meeting will be open to on October 6, 2008, (73FR 58268– digital instrumentation and control public attendance. 58269). systems issues: the Digital The agenda for the subject meeting Further information regarding this Instrumentation and Control Plan 2010– shall be as follows: meeting can be obtained by contacting 2013, Interim Staff Guidances (ISGs) on the Designated Federal Official (DFO) fuel facilities and licensing process, Tuesday, August 18, 2009, between 7:30 a.m. and 5:15 p.m. (ET). EPRI reports on operating experience 8:30 a.m.–12 p.m. Persons planning to attend this meeting and Diverse Actuation Systems Risk and The Subcommittee will review draft are urged to contact the DFO at least two Benefits, and other DI&C related topics. final Revision 2 to Regulatory Guide working days prior to the meeting to be The Subcommittee will gather 1.189, ‘‘Fire Protection for Nuclear advised of any potential changes to the information, analyze relevant issues and Power Plants.’’ The Subcommittee will agenda. facts, and formulate proposed positions hear presentations by and hold and actions, as appropriate, for Dated: July 15, 2009. discussions with representatives of the deliberation by the full Committee. NRC staff, the Nuclear Energy Institute, Cayetano Santos, Members of the public desiring to and other interested persons regarding Chief, Reactor Safety Branch A, Advisory provide oral statements and/or written these matters. The Subcommittee will Committee on Reactor Safeguards. comments should notify the Designated gather information, analyze relevant [FR Doc. E9–17289 Filed 7–20–09; 8:45 am] Federal Official, Ms. Christina issues and facts, and formulate BILLING CODE 7590–01–P Antonescu (telephone: 301–415–6792, proposed positions and actions, as e-mail: [email protected]), five days prior to appropriate, for deliberation by the full the meeting, if possible, so that NUCLEAR REGULATORY Committee. appropriate arrangements can be made. Members of the public desiring to COMMISSION Thirty five hard copies of each provide oral statements and/or written Advisory Committee on Reactor presentation or handout should be comments should notify the Designated Safeguards (ACRS); Meeting of the provided to the Designated Federal Federal Official, Peter Wen (telephone: Subcommittee on Digital Official 30 minutes before the meeting. 301–415–2832, e-mail: Instrumentation and Control Systems; In addition, one electronic copy of each [email protected]), five days prior to Notice of Meeting presentation should be e-mailed to the the meeting, if possible, so that Designated Federal Official 1 day before appropriate arrangements can be made. The ACRS Subcommittee on Digital the meeting. If an electronic copy Thirty-five hard copies of each Instrumentation and Control Systems cannot be provided within this presentation or handout should be (DI&C) will hold a meeting on August timeframe, presenters should provide provided to the Designated Federal 19–21, 2009, in the Commission Hearing the Designated Federal Official with a

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CD containing each presentation at least prior to the meeting, if possible, so that Fire Protection Program.’’ The 30 minutes before the meeting. appropriate arrangements can be made. Subcommittee will hear presentations Electronic recordings will be permitted Thirty-five hard copies of each by and hold discussions with only during those portions of the presentation or handout should be representatives of the NRC staff, Nuclear meeting that are open to the public. provided to the Designated Federal Energy Institute, Electric Power Detailed procedures for the conduct of Official 30 minutes before the meeting. Research Institute, and other interested and participation in ACRS meetings In addition, one electronic copy of each persons regarding these matters. The were published in the Federal Register presentation should be e-mailed to the Subcommittee will gather information, on October 6, 2008, (73 FR 58268– Designated Federal Official 1 day before analyze relevant issues and facts, and 58269). the meeting. If an electronic copy formulate proposed positions and Further information regarding this cannot be provided within this actions, as appropriate, for deliberation meeting can be obtained by contacting timeframe, presenters should provide by the full Committee. the Designated Federal Official (DFO) the Designated Federal Official with a Members of the public desiring to between 8:45 a.m. and 5:30 p.m. (ET). CD containing each presentation at least provide oral statements and/or written Persons planning to attend this meeting 30 minutes before the meeting. comments should notify the Designated are urged to contact the DFO at least two Electronic recordings will be permitted Federal Official, Girija S. Shukla working days prior to the meeting to be only during those portions of the (telephone: 301–415–6855, e-mail: advised of any potential changes to the meeting that are open to the public. [email protected]), five days prior agenda. Detailed procedures for the conduct of to the meeting, if possible, so that Dated: July 14, 2009. and participation in ACRS meetings appropriate arrangements can be made. Antonio F. Dias, were published in the Federal Register Thirty-five hard copies of each Chief, Reactor Safety Branch B, Advisory on October 6, 2008 (73 FR 58268– presentation or handout should be Committee on Reactor Safeguards. 58269). provided to the Designated Federal Further information regarding this [FR Doc. E9–17290 Filed 7–20–09; 8:45 am] Official 30 minutes before the meeting. meeting can be obtained by contacting BILLING CODE 7590–01–P In addition, one electronic copy of each the Designated Federal Official (DFO) presentation should be e-mailed to the between 6:45 a.m. and 3:30 p.m. (ET). Designated Federal Official 1 day before NUCLEAR REGULATORY Persons planning to attend this meeting the meeting. If an electronic copy COMMISSION are urged to contact the DFO at least two cannot be provided within this working days prior to the meeting to be timeframe, presenters should provide Advisory Committee on Reactor advised of any potential changes to the the Designated Federal Official with a Safeguards (ACRS) Meeting of the agenda. CD containing each presentation at least ACRS Subcommittee on ESBWR; Dated: July 15, 2009. 30 minutes before the meeting. Notice of Meeting Cayetano Santos, Electronic recordings will be permitted The ACRS Subcommittee on the Chief, Reactor Safety Branch A, Advisory only during those portions of the Economic Simplified Boiling Water Committee on Reactor Safeguards. meeting that are open to the public. Reactor (ESBWR) will hold a meeting on [FR Doc. E9–17256 Filed 7–20–09; 8:45 am] Detailed procedures for the conduct of August 21, 2009, in the Auditorium, BILLING CODE 7590–01–P and participation in ACRS meetings 11545 Rockville Pike, Rockville, were published in the Federal Register Maryland. on October 6, 2008, (73 FR 58268– The entire meeting will be open to NUCLEAR REGULATORY 58269). public attendance. COMMISSION Further information regarding this The agenda for the subject meeting meeting can be obtained by contacting Advisory Committee on Reactor shall be as follows: the Designated Federal Official (DFO) Safeguards Meeting of the ACRS between 7:15 a.m. and 5 p.m. (ET). Friday, August 21, 2009, Subcommittee on Reliability and Persons planning to attend this meeting 8:30 a.m.–5 p.m. Probabilistic ; Notice are urged to contact the DFO at least two of Meeting The Subcommittee will review the working days prior to the meeting to be Safety Evaluation Report with Open The ACRS Subcommittee on advised of any potential changes to the Items associated with the North Anna Reliability and Probabilistic Risk agenda. Combined License Application Assessment (PRA) will hold a meeting Dated: July 13, 2009. referencing the ESBWR design. The on August 18, 2009, in the Commission Antonio F. Dias, Subcommittee will hear presentations Hearing Room, 11555 Rockville Pike, by and hold discussions with Chief, Reactor Safety Branch B, Advisory Rockville, Maryland. Committee on Reactor Safeguards. representatives of the NRC staff, The entire meeting will be open to [FR Doc. E9–17291 Filed 7–20–09; 8:45 am] Dominion Virginia Power, and other public attendance. interested persons regarding this matter. The agenda for the subject meeting BILLING CODE 7590–01–P The Subcommittee will gather shall be as follows: information, analyze relevant issues and facts, and formulate proposed positions Tuesday, August 18, 2009—1 p.m.– NUCLEAR REGULATORY and actions, as appropriate, for 5 p.m. COMMISSION The Subcommittee will review Draft deliberation by the full Committee. Sunshine Federal Register Notice Members of the public desiring to Regulatory Guide 1.205 (DG–1218), provide oral statements and/or written ‘‘Risk-Informed, Performance-Based Fire AGENCY HOLDING THE MEETINGS: comments should notify the Designated Protection for Existing Light-Water Nuclear Federal Official, Christopher Brown Nuclear Power Plants,’’ and proposed Regulatory Commission. (telephone: 301–415–7111, e-mail: Standard Review Plan Section 9.5.1.2, DATES: Weeks of July 20, 27, August 3, [email protected]), five days ‘‘Risk-Informed and Performance-Based 10, 17, 24, 2009.

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PLACE: Commissioners’ Conference requests for reasonable accommodation Governors’ Decision No. 08–10 filed in Room, 11555 Rockville Pike, Rockville, will be made on a case-by-case basis. Docket No. MC2008–7.2 Notice at 1. Maryland. * * * * * The Notice also states that in Docket STATUS: Public and closed. This notice is distributed No. MC2008–7, the Governors established prices and classifications for Week of July 20, 2009 electronically to subscribers. If you no longer wish to receive it, or would like competitive products not of general Thursday, July 23, 2009 to be added to the distribution, please applicability for Global Plus 2 contracts. contact the Office of the Secretary, The Postal Service relates that the 1:25 p.m. instant contracts are the immediate Affirmation Session (Public Meeting) Washington, DC 20555 (301–415–1969), successor contracts to those in Docket (Tentative) or send an email to Nos. CP2008–16 and CP2008–17, which a. Southern Nuclear Operating Co. [email protected]. will expire soon, and which the (Vogtle Electric Generating Plant, Dated: July 16, 2009. Commission found to be functionally Units 3 and 4), LBP–09–3 (Ruling Rochelle C. Bavol, equivalent in Order No. 112. The Postal on Standing and Contention Office of the Secretary. Service contends that the instant Admissibility); Virginia Electric and [FR Doc. E9–17378 Filed 7–17–09; 4:15 pm] contracts should be included within the Power Co. (North Anna Unit 3), BILLING CODE 7590–01–P Global Plus 2 product on the LBP–08–15 (Ruling on Standing Competitive Product List. Id. In support, and Contention Admissibility) the Postal Service has filed redacted (Tentative). versions of each contract and related b. Draft Notice and Order for Areva POSTAL REGULATORY COMMISSION Enrichment Services, LLC materials as Attachments 1–A and 1–B. (Tentative). Redacted versions of the certified [Docket No. CP2009–48 and CP2009–49; statements required by 39 CFR 3015.5 Week of July 27, 2009—Tentative Order No. 250] are included as Attachments 2–A and 2– There are no meetings scheduled for B, respectively. The Postal Service states New Competitive Postal Product the week of July 27, 2009. that the contracts should be included within the Global Plus 2 product and AGENCY: Postal Regulatory Commission. Week of August 3, 2009—Tentative requests that the instant contracts be ACTION: Notice. There are no meetings scheduled for considered the ‘‘baseline contracts for future functional equivalency analyses the week of August 3, 2009. SUMMARY: The Commission is noticing a concerning this product.’’ Id. at 2. Week of August 10, 2009—Tentative recently-filed Postal Service request to add two additional Global Plus 2 The instant contracts. The Postal There are no meetings scheduled for contracts to the Competitive Product Service filed the instant contracts the week of August 10, 2009. List. This notice addresses procedural pursuant to 39 CFR 3015.5. The contracts become effective August 1, Week of August 17, 2009—Tentative steps associated with these filings. 2009, unless regulatory reviews affect There are no meetings scheduled for DATES: Comments are due July 23, 2009. that date, and have a one-year term. the week of August 17, 2009. ADDRESSES: Submit comments The Postal Service maintains that electronically via the Commission’s Week of August 24, 2009—Tentative certain portions of each contract and Filing Online system at http:// certified statements required by 39 CFR There are no meetings scheduled for www.prc.gov. 3015.5(c)(2), names and identifying the week of August 24, 2009. FOR FURTHER INFORMATION CONTACT: information of the Global Plus 2 * * * * * Stephen L. Sharfman, General Counsel, customers, related financial * The schedule for Commission 202–789–6820 and information, portions of the certified meetings is subject to change on short [email protected]. statements which contain costs and notice. To verify the status of meetings, pricing as well as the accompanying call (recording)—(301) 415–1292. SUPPLEMENTARY INFORMATION: analyses that provide prices, terms, Contact person for more information: I. Background conditions, and financial projections Rochelle Bavol, (301) 415–1651. II. Notice of Filing should remain under seal. Id. at 3. * * * * * III. Ordering Paragraphs The Postal Service asserts the The NRC Commission Meeting I. Background contracts are functionally equivalent Schedule can be found on the Internet because they share similar cost and at: http://www.nrc.gov/about-nrc/policy- On July 13, 2009, the Postal Service market characteristics and should be making/schedule.html. filed a notice, pursuant to 39 U.S.C. classified as a single product. Id. at 3. 3633 and 39 CFR 3015.5, announcing * * * * * It states that while the precursor that it has entered into two additional The NRC provides reasonable contracts filed in Docket Nos. CP2008– Global Plus 2 contracts, which it states accommodation to individuals with 16 and CP2008–17 exhibited minor fit within the previously established disabilities where appropriate. If you distinctions based on differences in Global Plus 2 Contracts product.1 The need a reasonable accommodation to customers’ negotiations, business needs Postal Service states that the instant participate in these public meetings, or or relationship with the Postal Service, contracts are functionally equivalent to need this meeting notice or the the new versions of the agreements are previously submitted Global Plus 2 transcript or other information from the identical to one another. Id. at 4. contracts, are filed in accordance with public meetings in another format (e.g. The Postal Service also states that the Order No. 112 and are supported by braille, large print), please notify the instant contracts’ customers are the NRC’s Disability Program Coordinator, 1 Notice of the United States Postal Service of 2 See Docket Nos. MC2008–7, CP2008–16 and Rohn Brown, at 301–492–2279, TDD: Filing Two Functionally Equivalent Global Plus 2 CP2008–17, Order Concerning Global Plus 2 301–415–2100, or by e-mail at Negotiated Service Agreements, July 13, 2009 Negotiated Service Agreements, October 3, 2008 [email protected]. Determinations on (Notice). (Order No. 112).

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same Postal Qualified Wholesalers 1. The Commission establishes Docket Postal Service. It did so with the (PQWs) as the parties to the contracts in Nos. CP2009–48 and CP2009–49 for awareness that a number of complex Docket Nos. CP2008–16 and CP2008–17. consideration of the issues raised in issues relating to the proper application Even though some terms and conditions these dockets. of the Postal Accountability and of the contracts have changed, it states 2. Comments by interested persons on Enhancement Act (PAEA), Public Law the essence of the service to the PQW issues in these proceedings are due no 109–435, 120 Stat. 3198 (2006), to those customers is offering price-based later than July 23, 2009. rates could best be resolved in a follow- incentives to commit large amounts of 3. Pursuant to 39 U.S.C. 505, Michael on docket in which sufficient time and mail volume or postage revenue for J. Ravnitzky is appointed to serve as sufficiently flexible procedures would Global Bulk Economy (GBE) and Global officer of the Commission (Public be available to ensure that these issues Direct (GD).3 Representative) to represent the could be thoroughly examined. To that The Postal Service indicates that the interests of the general public in these end, the Commission issued Order No. instant contracts have material proceedings. 192, also on March 16, 2009, soliciting differences which include removal of 4. The Secretary shall arrange for public comment on the ‘‘legal, factual, retroactivity provisions, explanations of publication of this order in the Federal and economic bases’’ underlying the price modification as a result of Register. discounts for First-Class and Standard currency rate fluctuations or postal Issued: July 16, 2009. Mail approved in Docket No. R2009–2, administration fees; removal of language By the Commission. and any alternative workshare discount rate design and cost avoidance on enforcement of mailing Judith M. Grady, methodologies that participants wished requirements; and restructuring of price Acting Secretary. incentives, commitments, penalties and to propose.1 [FR Doc. E9–17420 Filed 7–20–09; 8:45 am] clarification of continuing contractual The comments received on May 26 obligations in the event of termination. BILLING CODE 7710–FW–P and 27, 2009 were numerous and wide- The Postal Service maintains these ranging.2 Those comments include legal interpretations of the relevant portions differences only add detail or amplify POSTAL REGULATORY COMMISSION processes included in prior Global Plus of the PAEA, offered arguments (largely 2 contracts. It contends because the [Docket No. RM2009–3; Order No. 243] qualitative) concerning the market contracts have the same cost attributes position of various categories of First- and methodology as well as similar cost Postal Rates Class and Standard Mail, and advocate both the use or abandonment of certain and market characteristics, the AGENCY: Postal Regulatory Commission. traditional benchmarks used to quantify differences do not affect the ACTION: Notice of public forum. fundamental service being offered or the the costs avoided by various mail essential structure of the contracts. Id. at SUMMARY: This document announces a characteristics associated with 8. It states the contracts are substantially public forum to address workshare workshare discounts. Several similar both to one another and to the discount methodologies in First-Class participants offered classification precursor Global Plus 2 contracts. Mail and Standard Mail. It invites proposals designed to recognize the Therefore, it asserts these contracts are public participation in the forum, unique cost characteristics of various ‘‘functionally equivalent in all pertinent responses to views expressed at the subsets of First-Class Mail. Specifically, respects.’’ Id. at 8. forum, and replies to comments filed in Stamps.com proposed that a ‘‘Qualified response to Order No. 192. This PC Postage’’ mail category be II. Notice of Filing document also incorporates revisions established to reflect the reduced costs The Commission establishes Docket identified in a July 10, 2009 errata that would accompany single-piece Nos. CP2009–48 and CP2009–49 for notice. The revisions affected only the First-Class Mail to which the mailer has consideration of the matters related to list of commenters presented in Order applied CASS certified software and a full-service Intelligent Mail Barcode. the contracts identified in the Postal No. 243. Stamps.com Comments at 1. In Service’s Notice. DATES: Public forum: August 11, 2009 at Interested persons may submit addition, the officer of the Commission 1 p.m.; responses and reply comments appointed to represent the interests of comments on whether the instant due: August 31, 2009. contracts are consistent with the the general public (Public ADDRESSES: Submit comments Representative) proposed that if the link policies of 39 U.S.C. 3632, 3622, or electronically via the Commission’s 3642. Comments are due no later than between single-piece First-Class Mail Filing Online system at http:// costs and presorted First-Class Mail July 23, 2009. The public portions of www.prc.gov. these filings can be accessed via the rates is to be abandoned, that single- Commission’s Web site (http:// FOR FURTHER INFORMATION CONTACT: piece First-Class Mail be established as www.prc.gov). Stephen L. Sharfman, General Counsel, a separate class of mail for rate setting The Commission appoints Michael J. at 202–789–6820 or purposes. Public Representative’s Ravnitzky to serve as Public [email protected]. Comments at 23–27. It is clear from the comments that Representative in these dockets. SUPPLEMENTARY INFORMATION: Regulatory resolving some of these issues will be History, 74 FR 50744 (March 24, 2009). III. Ordering Paragraphs contingent on how others are resolved. I. Introduction It is Ordered: For example, if the Commission were to II. Public Forum Issues agree with the Postal Service’s view III. Ordering Paragraphs 3 The Postal Service states the commitments also account for International Priority Airmail (IPA), 1 See Order No. 192, Notice of Proposed International Surface Air Lift (ISAL), Express Mail I. Introduction Rulemaking on Application of Workshare Discount International (EMI), and Priority Mail International On March 16, 2009, the Commission Rate Design Principles, March 16, 2009, at 3 (Order (PMI) items mailed under a separate but related No. 192). Global Plus 1 contract with each customer. The issued Order No. 191 in Docket No. 2 There were 13 commenters in response to Order Global Plus 1 contracts are the subject of a separate R2009–2 approving a set of market No. 192. For convenience, participant comments are competitive products proceeding. dominant rate changes proposed by the identified in Appendix A to this order.

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that, as a legal matter, the worksharing policy, and economic issues described worksharing and non-worksharing discount standards of 39 U.S.C. 3622(e) below have been resolved.3 components; or 3. Should remain bundled, but be apply only to components of individual II. Public Forum Issues ‘‘products’’ as defined in the Mail analytically decomposed into its Classification Schedule, it would render There are two issues that the worksharing and other components so moot any consideration of the market Commission would like to explore that section 3622(e) standards may be positions of the various First-Class and further in the context of a public forum. applied to the worksharing component. Standard Mail categories issued in The first is the issue of whether the In addition to the broad issues described above that the Commission Docket No. R2009–2. Similarly, if the users of single-piece First-Class Mail are considers appropriate for discussion in Commission were to conclude that entitled to special protection under the the August 11, 2009 forum, there are section 3622(e) may be applied across PAEA, and, if so, whether protection should take the form of: several technical aspects of those issues products, but each product at issue that participants should ponder and serves a separate and distinct market, 1. Maintaining the traditional linkage of single-piece rates to the rates charged comment upon, either in the forum that conclusion would dispense with for Presorted First-Class Mail through a itself or in the written comments that the need to consider the issue of what suitable benchmark; are due on August 31, 2009. benchmark would be most appropriate 2. Establishing a separate class of Issues specific to First-Class Mail. The for measuring the cost avoided by the single-piece First-Class Mail subject to assertions in the comments about the worksharing characteristics of those its own rate cap; nature of markets for First-Class letters products. Likewise, if the Commission 3. Adopting a regulation that would are, for the most part, qualitative. What were to conclude that First-Class Mail limit the difference allowed between little supporting data are offered are may not be further subdivided for single-piece and presorted First-Class subject to more than one interpretation. purposes of applying caps to rates, it Mail in terms of either average revenue In the next round of written comments, would nullify the Public per piece or percent contribution to the Commission encourages parties to Representative’s rationale for proposing institutional costs; provide empirical support for their to establish single-piece First-Class Mail 4. Relying on a qualitative or understanding of the state of the as a separate class of mail. Because subjective standard of protection, such markets for single-piece and presort these issues are mutually dependent, as the ‘‘just and reasonable’’ standard of First-Class Mail letters. Information they will be considered together in the section 3622(b)(8); or about attributes of smaller business current phase of this proceeding. 5. Other suggested forms of mailers who can be converted (or Technical issues of how avoided costs protection. already have been converted) by presort should be calculated will be considered The second policy issue that the firms from users of single-piece into after the need for benchmarks has been Commission would like the public users of presorted First-Class would be confirmed and appropriate benchmarks forum to address is whether a especially useful. Similarly, information about how price signals influence have been identified. worksharing discount should be defined mailers’ decisions to invest in hardware, as: Some of the key issues to be software or quality control processes to 1. A ‘‘pure’’ presorting, prebarcoding, addressed in this docket have basic avoid postage penalties that could result handling, or transportation activity that public policy dimensions. The from failing Postal Service acceptance is a direct substitute for an equivalent Commission has determined that those tests would be particularly helpful. issues might benefit from being aired in Postal Service activity; or Issues specific to Standard Mail. the context of a public forum. A public 2. A ‘‘pure’’ worksharing activity as Several commenters make assertions forum will have the advantage of described above, plus other cost- about the market differences between allowing representatives of various reducing mail characteristics that are Carrier Route, High Density, and interests to have a dialogue, and facilitated by or naturally support the Saturation mail that are largely exchange views in a non-adversarial ‘‘pure’’ worksharing activity, e.g., walk qualitative. They assert, for example, discussion that allows others to respond sequencing and density. that Saturation mailers appear to have with their own supporting or A related aspect of the second policy more delivery alternatives than Carrier contrasting views or with clarifying issue is whether a discount that reflects Route or High Density mailers. Valassis/ questions. The Commission hopes that both cost-reducing characteristics that SMC argues that private delivery is a are directly related to a worksharing such a forum will significantly less viable option for High Density activity, and others that are indirectly strengthen the record on which these mailers because such mailings are related to, or unrelated to the policy-laden decisions will be based. It demographically, rather than worksharing activity: envisions convening such a forum geographically targeted. See Valassis/ 1. Should be defined as August 11, 2009, at 1 p.m. in the SMC Comments at 12, n.7. This would ‘‘worksharing’’ or ‘‘non-worksharing’’ Commission’s hearing room. seem to indicate that the market for according to some rule, such as which High Density mail is more closely Participants will have an opportunity cost-reducing effect is thought to related to the market for Carrier Route to file written responses both to the predominate; mail because both target specific exchange of views at the forum and to 2. Should be unbundled so that addresses. In the next round of the comments filed in response to Order separate discounts are developed for the comments, the Commission encourages No. 192 (the notice of proposed 3 parties to provide empirical support for rulemaking in this docket). Those For example, several commenters have their understanding of the state of the responses will be due on or before indicated an interest in proposing modifications to established methods for modeling costs avoided by markets for the former components of August 31, 2009. The Commission also worksharing, depending on how logically prior Enhanced Carrier Route mail. will provide interested parties with an issues have been resolved. See Postal Service The Commission also welcomes opportunity to address technical issues Comments at 46–47; MMA Comments at 12; and additional comment on how concerning how avoided costs should be APWU Comments at 7. Consideration of such proposals will take place at a later, appropriate worksharing cost avoidance should be modeled at a later date, when the legal, time. defined and measured in the context of

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Standard Mail. The Commission has Absent demand differences,4 the High Density flat and a Carrier Route long concluded that to promote relationship between these categories of flat. Similarly, the rate for a Saturation productive efficiency, discounts for mail suggests that the less deeply flat would reflect the difference in related categories of mail with the same sequenced categories could serve as attributable delivery cost between a own-price demand elasticity should not benchmarks from which the costs Saturation flat and a Carrier Route flat. exceed the costs that the Postal Service avoided by more deeply sequenced Using the same percentage passthrough avoids when mailers perform categories could be measured. For for each walk-sequencing discount worksharing. This principle is known as example, the 5-digit category could be a would be the mathematical equivalent efficient component pricing (ECP). The suitable cost avoidance benchmark for of retaining the link between High Postal Service has taken the former all of the remaining categories. Density and Saturation mail. components of the Enhanced Carrier Alternatively, a mailer who presents In addition to commenting on the Route subclass—Carrier Route, High High Density or Saturation mail rather broader, more theoretical questions Density, and Saturation mail—and than Carrier Route mail to the Postal discussed above, the Commission redefined them as separate products. Service does so because the difference invites interested participants to The Postal Service, however, continues in his cost between sorting to line of comment on the following specific to estimate an own-price elasticity for travel and sorting to walk-sequence is issues and questions: these categories as a group, and the less than the corresponding rate 1. What empirical evidence is there Commission has continued to apply difference; otherwise, a prudent mailer supporting the proposition that Carrier ECP to worksharing cost differences would not sort the mail in walk- Route, High Density, and Saturation among these rate categories on the sequence order. Accordingly, the cost of mail each serve separate markets? sorting mail to the line-of-travel order as premise that they serve the same market 2. If High Density and Saturation mail and have essentially the same elasticity reflected in the attributable delivery cost of Carrier Route mail could be viewed serve the same market, should the of demand. The Postal Service and some difference in worksharing unit cost other commenters now contend that the as the appropriate benchmark for both High Density and Saturation mail.5 between High Density and Saturation High Density and Saturation categories mail be subject to the standards of each serve distinct markets. See Valpak With respect to the relationship between High Density and Saturation section 3622(e)? If the answer is no, Comments at 17–18; Valassis/SMC specify why marginal worksharing cost Comments at 10–14; and Haldi mail, the Postal Service asserts that there is no worksharing content differences are not pertinent to rate Comments at 15–16. If true, economic setting. theory suggests that cost coverages for difference between the two, and 3. If Carrier Route and High Density each of these products should reflect therefore ECP does not apply. Although mail serve the same market, should rates distinct market conditions. the Postal Service recognizes that there for Saturation mail be set as though it If there is not sufficient empirical is a cost difference, it contends that it is due to density, not to worksharing serves a separate market, even though it evidence to conclude that these is not classified as a separate product? categories serve separate markets, and activity. The observed cost difference, ECP remains relevant, applying it under however, could be characterized as 4. What bearing does the probability the current classification structure with gains in efficiency brought about by of mail receiving automated or manual its attendant eligibility requirements is worksharing activity, i.e., the Postal delivery point sequencing have on the problematic. For example, several Service’s cost per piece of sorting mail answers to the above questions? to walk-sequence order declines as commenters contend that the difference 6 III. Ordering Paragraphs in cost between High Density mail and density increases. Viewed as a worksharing-related cost Saturation mail reflects only the effect It is ordered: difference, the rate for a High Density of the density eligibility requirement, 1. A public forum that addresses the flat would reflect the difference in not the effect of worksharing. See Postal issues described in the body of this attributable delivery cost between a Service Comments at 29; Haldi order will be held on August 11, 2009, Comments at 11; and Valassis/SMC at 1 p.m., in the Commission’s hearing 4 As noted, in the past, the Commission room. Comments at 2. determined that Carrier Route, High Density, and Sequencing mail, however, appears to Saturation mail, as a group, share an own-price 2. Written comments on the matters fit the definition of worksharing activity demand elasticity that is distinct from Non-carrier discussed at the public forum as well as in section 3622(e). If the mailer does not Route mail. For this reason, it de-linked 5-digit mail the issues discussed in the comments and Carrier Route mail in Docket No. MC95–1 when filed in response to Order No. 192 are sequence the mail, then the Postal the former Enhanced Carrier Route (ECR) subclass Service must do it. A mailer’s decision was established. due on or before August 31, 2009. to sort the mail into walk-sequence 5 Using Carrier Route mail as a benchmark for 3. The Secretary shall arrange for order depends on the menu of rates. If letter-shaped Standard Mail is also problematic publication of this order in the Federal because the minimum number of pieces required a mailer were to prepare a flat-shaped for the 5-digit letter rate is 150, while the Carrier Register. Saturation mailing without sequencing Route letter rate requires only 10 pieces. Issued: July 10, 2009. 6 it, the mailer would have to pay the 5- This is confirmed by Witness Shipe’s testimony By the Commission. in Docket No. R90–1. It shows that carriers case digit presort rate. He would not be Judith M. Grady, eligible for the Carrier Route rate mail at a rate of 20.6 pieces per minute for non- sequenced Carrier Route letters, 29.0 pieces for Acting Secretary. because line-of-travel sequencing is a walk-sequenced High Density letters, and 41.2 prerequisite for that rate. Similarly, he pieces for Saturation letters. The corresponding Appendix A—Comments on Notice of would not be eligible for the High numbers for flats are 10.7, 13.6 and 27.4 pieces per Proposed Rulemaking on Application minute. See Docket No. R90–1, Direct Testimony of Density rate because walk-sequencing is Thomas Shipe, USPS–T–10, Exhibit USPS–10B, at of Workshare Discount Rate Design a prerequisite for that rate. 3 and 6. This constitutes declining marginal cost. Principles

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Participant Title Filing date

American Postal Workers Union, AFL–CIO (APWU Com- Initial Presentation of American Postal Workers Union, AFL– May 27, 2009. ments). CIO. Bank of America Corporation, Discover Financial Services, Initial Comments of Bank of America Corporation, Discover May 27, 2009. J.P. Morgan Chase & Co., and the American Bankers Asso- Financial Services, J.P. Morgan Chase & Co., and the ciation. Bankers Association. Greeting Card Association ...... Initial Comments of the Greeting Card Association ...... May 26, 2009. John Haldi (Haldi Comments) ...... Statement of John Haldi, Ph.D. Concerning Workshare Dis- May 26, 2009. counts. Mail Order Association of America ...... Comments of Mail Order Association of America ...... May 26, 2009. Major Mailers Association (MMA Comments) ...... Initial Comments of Major Mailers Association ...... May 26, 2009. National Postal Policy Council ...... Comments of National Postal Policy Council ...... May 26, 2009. Pitney Bowes Inc ...... Initial Comments of Pitney Bowes Inc ...... May 26, 2009. Public Representatives (Public Representatives Comments) ... Comments of the Public Representatives ...... May 26, 2009. Stamps.com (Stamps.com Comments) ...... Initial Presentation of Stamps.com ...... May 26, 2009. United States Postal Service (Postal Service Comments) ...... Initial Comments of the United States Postal Service ...... May 26, 2009. Valassis Direct Mail, Inc. and Saturation Mailers Coalition Comments of Valassis Direct Mail, Inc. and Saturation Mail- May 26, 2009. (Valassis/SMC Comments). ers Coalition. Valpak Direct Marketing Systems, Inc. and Valpak Dealers’ Valpak Direct Marketing Systems, Inc. and Valpak Dealers’ May 26, 2009. Association, Inc (Valpak Comments). Association, Inc. Comments Regarding Standard Mail Vol- ume Incentive Pricing Program.

[FR Doc. E9–17286 Filed 7–20–09; 8:45 am] SUPPLEMENTARY INFORMATION: notice announces the Small Business BILLING CODE 7710–FW–P Title: Secondary Participation Administration’s intentions to request Guaranty Agreement. approval on a new and/or currently SBA Form Numbers: 1086, 1502. approved information collection. Frequency: On occasion. SMALL BUSINESS ADMINISTRATION DATES: Description of Respondents: SBA Submit comments on or before September 21, 2009. Reporting and Recordkeeping Participating Lenders. ADDRESSES: Send all comments Requirements Under OMB Review Responses: 530. Annual Burden: 42,000. regarding whether this information AGENCY: Small Business Administration. Title: Applications for Business collection is necessary for the proper ACTION: Notice of reporting requirements Loans. performance of the function of the submitted for OMB review. SBA Form Numbers: 4, 4SCH–A, 4I, agency, whether the burden estimates 4L. are accurate, and if there are ways to SUMMARY: Under the provisions of the Frequency: On occasion. minimize the estimated burden and Paperwork Reduction Act (44 U.S.C. Description of Respondents: enhance the quality of the collection, to Chapter 35), agencies are required to Applicants applying for a SBA Loan. Barbara Brannan, Special Assistant, submit proposed reporting and Responses: 21,000. Office of Surety Guarantee, Small recordkeeping requirements to OMB for Annual Burden: 295,505. Business Administration, 409 3rd Street, review and approval, and to publish a Title: Small Business Administration 8th Floor, Washington, DC 20416. notice in the Federal Register notifying (SBA) Surety Bond Guarantee (SBG) FOR FURTHER INFORMATION CONTACT: the public that the agency has made Customer Survey. Barbara Brannan, Special Assistant, such a submission. SBA Form Number: N/A. Office of Surety Guarantee 202–205– DATES: Submit comments on or before Frequency: On occasion. 6545 [email protected] Curtis B. Description of Respondents: SBG August 20, 2009. If you intend to Rich, Management Analyst, 202–205– Program management to access program comment but cannot prepare comments 7030 [email protected] promptly, please advise the OMB familiarity in the general small contractor population and to help SUPPLEMENTARY INFORMATION: SBA’s Reviewer and the Agency Clearance Surety Bond Guarantee (SBG) Program Officer before the deadline. determine the potential market for SBA surety bond guarantee. was created to encourage surety Copies: Request for clearance (OMB companies to provide bonding for small 83–1), supporting statement, and other Responses: 382. Annual Burden: 13. contractors. The information collected documents submitted to OMB for on these forms is used to evaluate the review may be obtained from the Jacqueline White, capability and potential sources of small Agency Clearance Officer. Chief, Administrative Information Branch. contractors in the SBG Program. ADDRESSES: Address all comments [FR Doc. E9–17255 Filed 7–20–09; 8:45 am] Title: ‘‘Surety Bond Guarantee concerning this notice to: Agency BILLING CODE 8025–01–P Assistance.’’ Clearance Officer, Jacqueline White, Description of Respondents: Surety Small Business Administration, 409 3rd Bond Companies. Street, SW., 5th Floor, Washington, DC SMALL BUSINESS ADMINISTRATION Form Number: 990, 991, 994, 994B, 20416; and OMB Reviewer, Office of 994F, 994H. Information and Regulatory Affairs, Data Collection Available for Public Comments and Recommendations Annual Responses: 17,916. Office of Management and Budget, New Annual Burden: 1,959. Executive Office Building, Washington, ACTION: Notice and request for DC 20503. Jacqueline White, comments. FOR FURTHER INFORMATION CONTACT: Chief, Administrative Information Branch. Jacqueline White, Agency Clearance SUMMARY: In accordance with the [FR Doc. E9–17254 Filed 7–20–09; 8:45 am] Officer, (202) 205–7044. Paperwork Reduction Act of 1995, this BILLING CODE 8025–01–P

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SMALL BUSINESS ADMINISTRATION (Catalog of Federal Domestic Assistance The number assigned to this disaster Numbers 59002 and 59008) for physical damage is 11811B and for [Disaster Declaration # 11809 and # 11810] July 15, 2009. economic injury is 11812B. Wisconsin Disaster # WI–00019 Karen G. Mills, (Catalog of Federal Domestic Assistance Administrator. Numbers 59002 and 59008) AGENCY: U.S. Small Business [FR Doc. E9–17252 Filed 7–20–09; 8:45 am] Administration. Roger B. Garland, BILLING CODE 8025–01–P ACTION: Notice. Acting Associate Administrator for Disaster Assistance. SUMMARY: This is a notice of an [FR Doc. E9–17253 Filed 7–20–09; 8:45 am] SMALL BUSINESS ADMINISTRATION Administrative declaration of a disaster BILLING CODE 8025–01–P for the State of WISCONSIN dated 07/ 15/2009. [Disaster Declaration # 11811 and # 11812] Incident: Severe Storms and Flooding. DEPARTMENT OF STATE Incident Period: 06/18/2009 through Tennessee Disaster # TN–00028 [Public Notice 6704] 06/19/2009. AGENCY: U.S. Small Business DATES: Effective Date: 07/15/2009. Administration. 30-Day Notice of Proposed Information Physical Loan Application Deadline ACTION: Notice. Collection: DS–158, Contact Date: 09/14/2009. Information and Work History for Economic Injury (EIDL) Loan SUMMARY: This is a Notice of the Application Deadline Date: 04/15/2010. Nonimmigrant Visa Applicant; OMB Presidential declaration of a major Control Number 1405–0144 ADDRESSES: Submit completed loan disaster for Public Assistance Only for applications to: U.S. Small Business the State of TENNESSEE (FEMA–1851– ACTION: Notice of request for public Administration, Processing and DR), dated 07/13/2009. comment and submission to OMB of Disbursement Center, 14925 Kingsport Incident: Severe Storms, Tornadoes, proposed collection of information. Road, Fort Worth, TX 76155. Straight-Line Winds, and Flooding. FOR FURTHER INFORMATION CONTACT: A. Incident Period: 06/12/2009 through SUMMARY: The Department of State has Escobar, Office of Disaster Assistance, 06/14/2009. submitted the following information collection request to the Office of U.S. Small Business Administration, DATES: Effective Date: 07/13/2009. 409 3rd Street, SW., Suite 6050, Management and Budget (OMB) for Physical Loan Application Deadline approval in accordance with the Washington, DC 20416. Date: 09/11/2009. SUPPLEMENTARY INFORMATION: Notice is Paperwork Reduction Act of 1995. Economic Injury (EIDL) Loan * Title of Information Collection: hereby given that as a result of the Application Deadline Date: 04/13/2010. Administrator’s disaster declaration, Contact Information and Work History ADDRESSES: applications for disaster loans may be Submit completed loan for Nonimmigrant Visa Applicant. filed at the address listed above or other applications to: U.S. Small Business * OMB Control Number: 1405–0144. locally announced locations. Administration, Processing and * Type of Request: Extension of The following areas have been Disbursement Center, 14925 Kingsport Currently Approved Collection. determined to be adversely affected by Road, Fort Worth, TX 76155. * Originating Office: CA/VO. the disaster: FOR FURTHER INFORMATION CONTACT: A. * Form Number: DS–158. Primary Counties: Kenosha, Racine. Escobar, Office of Disaster Assistance, * Respondents: Applicants for F, J, Contiguous Counties: U.S. Small Business Administration, and M nonimmigrant visas. Wisconsin: Milwaukee, Walworth, 409 3rd Street, SW., Suite 6050, * Estimated Number of Respondents: Waukesha. Washington, DC 20416. 700,000 per year. Illinois: Lake, Mchenry. SUPPLEMENTARY INFORMATION: Notice is * Estimated Number of Responses: The Interest Rates are: hereby given that as a result of the 700,000 per year. President’s major disaster declaration on * Average Hours per Response: 1 Percent 07/13/2009, Private Non-Profit hour. organizations that provide essential * Total Estimated Burden: 700,000 Homeowners with Credit Available services of governmental nature may file hours per year. Elsewhere ...... 4.875 * Frequency: Once per respondent. Homeowners without Credit Avail- disaster loan applications at the address listed above or other locally announced * Obligation To Respond: Required to able Elsewhere ...... 2.437 Obtain or Retain Benefit. Businesses with Credit Available locations. Elsewhere ...... 6.000 The following areas have been DATES: Submit comments to the Office Businesses & Small Agricultural determined to be adversely affected by of Management and Budget (OMB) for Cooperatives without Credit the disaster: up to 30 days from July 21, 2009. Available Elsewhere ...... 4.000 Primary Counties: Fayette, Haywood, ADDRESSES: Direct comments and Other (Including Non-Profit Orga- questions to Katherine Astrich, the nizations) with Credit Available Shelby. Elsewhere ...... 4.500 The Interest Rates are: Department of State Desk Officer in the Businesses And Non-Profit Orga- Office of Information and Regulatory nizations without Credit Avail- Percent Affairs at the Office of Management and able Elsewhere ...... 4.000 Budget (OMB), who may be reached at Other (Including Non-Profit Orga- (202) 395–4718. You may submit The number assigned to this disaster nizations) with Credit Available comments by any of the following for physical damage is 11809 6 and for Elsewhere ...... 4.500 methods: economic injury is 11810 0. Businesses and Non-Profit Orga- * E-mail: nizations without Credit Avail- _ _ The States which received an EIDL able Elsewhere ...... 4.000 Katherine T. [email protected]. Declaration # are Wisconsin, Illinois. You must include the DS form number;

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information collection title, and OMB County, CA.1 The line traverses United Street, NW., (8th fl.), Washington, DC control number in the subject line of States Postal Service Zip Codes 93270 20036. your message. and 93218. If the verified notice contains false or * Mail (paper, disk, or CD–ROM TVR has certified that: (1) No local misleading information, the exemption submissions): Office of Information and traffic has moved over the line for at is void ab initio. Regulatory Affairs, Office of least 2 years; (2) any overhead traffic on TVR has filed a combined Management and Budget, 725 17th the line can be rerouted over other lines; environmental report and historic report Street, NW., Washington, DC 20503. (3) no formal complaint filed by a user which addresses the effects, if any, of * Fax: (202) 395–5806. of rail service on the line (or by a State the abandonment on the environment FOR FURTHER INFORMATION CONTACT: You or local government entity acting on and historic resources. SEA will issue may obtain copies of the proposed behalf of such user) regarding cessation an environmental assessment (EA) by informational collection and supporting of service over the line either is pending July 24, 2009. Interested persons may documents from Lauren Prosnik of the with the Surface Transportation Board obtain a copy of the EA by writing to Office of Visa Services, U.S. Department (Board) or with any U.S. District Court SEA (Room 1100, Surface of State, 2401 E Street NW., or has been decided in favor of Transportation Board, Washington, DC Washington, DC 20522, who may be complainant within the 2-year period; 20423–0001) or by calling SEA, at (202) reached at (202) 663–2951. and (4) the requirements at 49 CFR 245–0305. [Assistance for the hearing 1105.7 (environmental report), 49 CFR impaired is available through the SUPPLEMENTARY INFORMATION: 1105.8 (historic report), 49 CFR 1105.11 Federal Information Relay Service We are soliciting public comments to (transmittal letter), 49 CFR 1105.12 (FIRS) at 1–800–877–8339.] Comments permit the Department to: (newspaper publication), and 49 CFR on environmental and historic * Evaluate whether the proposed 1152.50(d)(1) (notice to governmental preservation matters must be filed information collection is necessary to agencies) have been met. within 15 days after the EA becomes properly perform our functions. As a condition to this exemption, any available to the public. * Evaluate the accuracy of our employee adversely affected by the Environmental, historic preservation, estimate of the burden of the proposed abandonment shall be protected under public use, or trail use/rail banking collection, including the validity of the Oregon Short Line R. Co.— conditions will be imposed, where methodology and assumptions used. Abandonment—Goshen, 360 I.C.C. 91 appropriate, in a subsequent decision. * Enhance the quality, utility, and (1979). To address whether this Pursuant to the provisions of 49 CFR clarity of the information to be condition adequately protects affected 1152.29(e)(2), TVR shall file a notice of collected. employees, a petition for partial consummation with the Board to signify * Minimize the reporting burden on revocation under 49 U.S.C. 10502(d) that it has exercised the authority those who are to respond, must be filed. granted and fully abandoned the line. If Abstract of proposed collection: Provided no formal expression of consummation has not been effected by The DS–158 is used to collect intent to file an offer of financial TVR’s filing of a notice of supplemental information from students assistance (OFA) has been received, this consummation by July 21, 2010, and wishing to obtain a nonimmigrant visa exemption will be effective on August there are no legal or regulatory barriers to study in the United States. 20, 2009, unless stayed pending to consummation, the authority to Methodology: reconsideration. Petitions to stay that do abandon will automatically expire. Applicants may fill out the DS–158 not involve environmental issues,2 Board decisions and notices are online or print the page and fill it out formal expressions of intent to file an available on our Web site at ‘‘HTTP:// by hand, and submit it in person at the OFA under 49 CFR 1152.27(c)(2),3 and WWW.STB.DOT.GOV.’’ time of interview. trail use/rail banking requests under 49 Decided: July 16, 2009. Dated: July 15, 2009. CFR 1152.29 must be filed by July 31, 2009. Petitions to reopen or requests for By the Board, Rachel D. Campbell, James R. Pritchett, Director, Office of Proceedings. Deputy Assistant Secretary (Acting), Bureau public use conditions under 49 CFR 1152.28 must be filed by August 10, Kulunie L. Cannon, of Consular Affairs, Department of State. Clearance Clerk. [FR Doc. E9–17264 Filed 7–20–09; 8:45 am] 2009, with the Surface Transportation Board, 395 E Street, SW., Washington, [FR Doc. E9–17241 Filed 7–20–09; 8:45 am] BILLING CODE 4710–06–P DC 20423–0001. BILLING CODE 4915–01–P A copy of any petition filed with the Board should be sent to TVR’s DEPARTMENT OF TRANSPORTATION representative: Fritz R. Kahn, 1920 N DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Surface Transportation Board 1 TVR notes that authority to discontinue service Administration [STB Docket No. AB–397 (Sub-No. 7X)] on the line was authorized in Tulare Valley Railroad Company—Discontinuance of Service Exemption—in Tulare County, CA, STB Docket No. Reports, Forms and Record Keeping Tulare Valley Railroad Company— AB–397 (Sub-No. 6X) (STB served Apr. 17, 2009). Requirements Agency Information Abandonment Exemption—in Tulare 2 The Board will grant a stay if an informed Collection Activity Under OMB Review County, CA decision on environmental issues (whether raised by a party or by the Board’s Section of AGENCY: National Highway Traffic Tulare Valley Railroad Company Environmental Analysis (SEA) in its independent Safety Administration, DOT. (TVR), a Class III railroad, has filed a investigation) cannot be made before the exemption’s effective date. See Exemption of Out- ACTION: Notice. verified notice of exemption under 49 of-Service Rail Lines, 5 I.C.C.2d 377 (1989). Any CFR 1152 subpart F—Exempt request for a stay should be filed as soon as possible SUMMARY: In compliance with the Abandonments to abandon a 5.9-mile so that the Board may take appropriate action before Paperwork Reduction Act of 1995 (44 line of railroad between milepost the exemption’s effective date. 3 Each OFA must be accompanied by the filing U.S.C. 3501 et seq.), this notice 71+2969.2 at or near Ducor and fee, which currently is set at $1,500. See 49 CFR announces that the Information milepost 66.0 at or near Ultra, in Tulare 1002.2(f)(25). Collection Request (ICR) abstracted

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below has been forwarded to the Office ADDRESSES: Send comments, within 30 DATES: The date of the final public of Management and Budget (OMB) for days, to the Office of Information and hearing is unchanged. It will be held in review and comment. The ICR describes Regulatory Affairs, Office of Palmetto, Florida on July 28, 2009. The the nature of the information collections Management and Budget, 725–17th final public hearing will be held from 5 and their expected burden. The Federal Street, NW., Washington, DC 20503, p.m. to 7 p.m. and will be preceded by Register Notice with a 60-day comment Attention NHTSA Desk Officer. an informational open house from 3 period was published on May 14, 2009 Comments are invited on: Whether p.m. to 4:30 p.m. The final public [FR Doc. 2009–0096, Vol. 74, No. 92, the proposed collection of information hearing may end later than the stated Pages 22800–22801]. is necessary for the proper performance time, depending on the number of DATES: Comments must be submitted on of the functions of the Department, persons wishing to speak. or before (insert 30 days from date of including whether the information will Material submitted in response to the publication). have practical utility; the accuracy of request for comments on the FEIS and the Department’s estimate of the burden application must reach the Docket FOR FURTHER INFORMATION CONTACT: of the proposed information collection; Management Facility by August 27, Charlene Doyle, Contracting Officer’s ways to enhance the quality, utility and 2009. Technical Representative, Office of clarity of the information to be Federal and State agencies must also Regulatory Analysis and Evaluation, collected; and ways to minimize the submit comments, recommended National Highway Traffic Safety burden of the collection of information conditions for licensing, or letters of no Administration, 1200 New Jersey Ave, on respondents, including the use of objection by September 11, 2009. Also SE., NVS–431, Washington, DC 20590. automated collection techniques or by September 11, 2009, the Governor of Ms. Doyle’s phone number is 202–366– other forms of information technology. Florida (the adjacent coastal state) may 1276 and her e-mail address is A comment to OMB is most effective if approve, disapprove, or notify the [email protected]. OMB receives it within 30 days of Maritime Administration of SUPPLEMENTARY INFORMATION: publication. inconsistencies with State programs Authority: 44 U.S.C. Section 3506(c)(2)(A). relating to environmental protection, National Highway Traffic Safety land and water use, and coastal zone Administration James F. Simons, management for which the Maritime Title: Tire Pressure Monitoring Director, Office of Regulatory Analysis and Administration may condition the System—Special Study (TPMS–SS). Evaluation. license to make consistent. OMB Number: 2127–New. [FR Doc. E9–17230 Filed 7–20–09; 8:45 am] The Maritime Administration must Type of Request: Request for public BILLING CODE 4910–59–P issue a record of decision (ROD) to comment on proposed collection of approve, approve with conditions, or information. deny the DWP license application by Abstract: Improperly inflated tires DEPARTMENT OF TRANSPORTATION October 26, 2009. ADDRESSES: The public hearing in pose a safety risk, increasing the chance Maritime Administration of skidding, hydroplaning, longer Palmetto will be held at the Manatee stopping distances, and crashes due to [USCG–2007–28532] Convention Center, 1 Haben Blvd., flat tires and blowouts. In an effort to Palmetto, Florida 34221; telephone: decrease the number of vehicles with Port Dolphin Energy LLC, Port Dolphin (941) 722–3244. improperly inflated tires, Tire Pressure Energy Liquefied Natural Gas The FEIS, the application, comments Monitoring Systems (TPMS) were Deepwater Port License Application; and associated documentation are mandated in Federal Motor Vehicle Final Application Public Hearing and available for viewing at the Federal Safety Standard (FMVSS) No. 138, so Final Environmental Impact Statement Docket Management System Web site: that drivers are warned when the AGENCY: Maritime Administration, DOT. http://www.regulations.gov under docket number USCG–2007–28532. pressure in one or more of the vehicle’s ACTION: Notice of availability; notice of Docket submissions for USCG–2007– tires has fallen to 25 percent or more final public hearing; request for 28532 should be addressed to: below the placard pressure, or a comments; Correction. minimum level of pressure specified in Department of Transportation, Docket the standard, whichever pressure is SUMMARY: On July 13, 2009, the Management Facility, West Building, higher. Executive Order 12866 requires Maritime Administration and the U.S. Ground Floor, Room W12–140, 1200 Federal agencies to evaluate their Coast Guard (USCG) published in the New Jersey Avenue, SE., Washington, existing regulations and programs and Federal Register a notice of availability DC 20590–0001. measure their effectiveness in achieving of the Final Environmental Impact The Federal Docket Management their objectives. The purpose of this Statement (FEIS) for the Port Dolphin Facility accepts hand-delivered survey, Tire Pressure Monitoring Energy LLC, Port Dolphin Energy submissions, and makes docket contents System—Special Study (TPMS–SS), is Liquefied Natural Gas Deepwater Port available for public inspection and to evaluate whether the frequency of license application. The notice copying at this address between 9 a.m. underinflated tires has decreased in incorrectly listed the project’s docket and 5 p.m., Monday through Friday, vehicles with TPMS in comparison to number as USCG–2006–28532. The except Federal holidays. The Facility vehicles of the same age without TPMS. correct docket number is USCG–2007– telephone number is 202–366–9329, the In addition, the survey will collect data 28532. This number should be included fax number is 202–493–2251, and the on the drivers’ familiarity with the type on all comments submitted regarding Web site for electronic submissions or of warnings given by their TPMS and the Port Dolphin Deepwater Port license for electronic access to docket contents the action(s) that they have taken after application. Additionally, the closing is http://www.regulations.gov. the warnings have been given. date for the comment period was FOR FURTHER INFORMATION CONTACT: Ray Affected Public: Individuals. incorrectly listed. The correct date on Martin, U.S. Coast Guard, telephone: Estimated Total Annual Burden: which comments must be received is 202–372–1449, e-mail: 1,925 hours. August 27, 2009. [email protected] or Chris

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Hanan, U.S. Maritime Administration, environmental responsibilities for this Significant Impact (FONSI) for the telephone: 202–366–1900, e-mail: project pursuant to 23 U.S.C. 327. project, approved on May 27, 2009. The [email protected]. If you have Notice is hereby given that the Caltrans, FONSI and other project records are questions on viewing the docket, call have taken final agency actions subject available for review by contacting Renee V. Wright, Program Manager, to 23 U.S.C. 139(l)(1) by issuing Caltrans at the addresses provided Docket Operations, telephone 202–493– licenses, permits, and approvals for the above. The Caltrans FONSI can be 0402. following highway project in the State viewed and downloaded from the (Authority 49 CFR 1.66) of California: The California Department Caltrans District 7 environmental of Transportation (Caltrans) proposes to document Web site at http:// Dated: July 14, 2009. rehabilitate and reopen a 4.4 mile www.dot.ca.gov/dist07/resources/ By Order of the Maritime Administrator. segment of State Route-39 (SR–39) from envdocs/. Murray Bloom, post mile 40.00 to post mile 44.40, in This notice applies to all Federal Acting Secretary, Maritime Administration. the Angeles National Forest, in Los agency decisions as of the issuance date [FR Doc. E9–17240 Filed 7–20–09; 8:45 am] Angeles County. The said segment has of this notice and all laws under which BILLING CODE 4910–81–P been closed to public highway traffic such actions were taken, including but since 1978 as the roadway had not limited to: sustained extensive damage as a result —General: National Environmental DEPARTMENT OF TRANSPORTATION of erosion dating from 1978 to 2005. Policy Act (NEPA) [42 U.S.C. 4321– Since 1990, the Caltrans Division of 4351]; Federal Aid-Highway Act [23 Federal Highway Administration Maintenance has rebuilt the roadway at U.S.C. 109]. Snow Spring, making it traversable [4910–RY] —Land: Landscape and Scenic throughout the length of the project Enhancement (Wildflowers) [23 Notice of Final Federal Agency Actions area. Maintenance activities also U.S.C. 219]. on Proposed Highway in California included the rebuilding of the roadway —Air: Clean Air Act 42 U.S.C. 7401– at Snow Spring to make it traversable 7671(q). AGENCY: Federal Highway throughout the length of the project —Wildlife: Endangered Species Act [16 Administration (FHWA), DOT. area, the cleaning of drainage culverts, U.S.C. 1531–1544 and section 1536], and the erection of a dirt berm. These ACTION: Notice of Limitation on Claims Fish and Wildlife Coordination Act past improvements have made the for Judicial Review of Actions by the [16 U.S.C. 661–667(d)], Migratory roadway passable, but it is constricted California Department of Transportation Bird Treaty Act [16 U.S.C. 703–712]. as it approaches its northerly terminus, (Caltrans), pursuant to 23 U.S.C. 327. —Section 4(f) of the U.S. Department of and open only to emergency service Transportation Act of 1966 [49 U.S.C. SUMMARY: The FHWA, on behalf of vehicles. Caltrans, is issuing this notice to The rehabilitation and reopening of 303]. announce actions taken by Caltrans that this segment is important in the —Historic and Cultural Resources: are final within the meaning of 23 enhancement of access and services, Section 106 of the National Historic U.S.C. 139(l)(1). The actions relate to a and a reduction in response times for Preservation Act of 1966, as amended proposed highway project, State Route- the United States Forest Service (USFS), [16 U.S.C. 470(aa)–11]; Archeological 39 (SR–39, San Gabriel Canyon Road) the Los Angeles County Sheriff’s Resources Protection Act of 1977 [16 Rehabilitation/Reopening Project [post Department, and other emergency U.S.C. 470(aa)–11]; Archeological and mile 40.0–44.4] in the Angeles National service agencies in fire suppression, the Historic Preservation Act [16 U.S.C. Forest, County of Los Angeles, State of protection of several watersheds, and 469–469(c)]; Native American Grave California. Those actions grant licenses, search and rescue activities. The Protection and Repatriation Act permits, and approvals for the project. proposed project would also restore a (NAGPRA) [25 U.S.C. 3001–3013]. vital traffic circulation connection —Social and Economic: Civil Rights Act DATES: By this notice, the FHWA, on of 1964 [42 U.S.C. 2000(d)–2000(d) behalf of Caltrans, is advising the public between points north on State Route-2 (Angeles Crest Highway, or SR–2) and (1)]; American Indian Religious of final agency actions subject to 23 Freedom Act [42 U.S.C. 1996]; U.S.C. 139(l)(1). A claim seeking points south in the San Gabriel Valley along Interstate-210 (Foothill Freeway, Farmland Protection Policy Act judicial review of the Federal agency (FPPA) [7 U.S.C. 4201–4209]; The actions on the highway project will be or I–210). The proposed project would improve access for patrons of the Uniform Relocation Assistance Act barred unless the claim is filed on or and Real Property Acquisition before January 19, 2010. If the Federal numerous recreation areas within the Angeles National Forest, and provide as Policies Act of 1970, as amended. law that authorizes judicial review of a —Hazardous Materials: Comprehensive claim provides a time period of less an economic benefit to the associated parks and businesses. The restored Environmental Response, than 180 days for filing such claim, then Compensation, and Liability Act that shorter time period still applies. connection would be accessible to public highway traffic throughout the (CERCLA), 42 U.S.C. 9601–9675; FOR FURTHER INFORMATION CONTACT: year, with seasonal closures during Superfund Amendments and Eduardo Aguilar, Branch Chief/Senior times of inclement weather. These Reauthorization Act of 1986 (SARA); Environmental Planner, Caltrans, closures would likely occur during the Resource Conservation and Recovery District 7, Division of Environmental winter and early spring seasons. Act (RCRA), 42 U.S.C. 6901–6992 (k). Planning, 100 South Main Street, Suite A public meeting was held on —Executive Orders: E.O. 11990 100, Los Angeles, CA 90012–3712, (213) regarding the proposed project on Protection of Wetlands; E.O. 11988 _ 897–8492, eduardo [email protected]. Tuesday, February 24, 2009 from 6 p.m. Floodplain Management; E.O. 12898 SUPPLEMENTARY INFORMATION: Effective to 8:30 p.m at the Azusa Senior Center Federal Actions to Address July 1, 2007, the Federal Highway in Azusa, California. The actions by the Environmental Justice in Minority Administration (FHWA) assigned, and Federal agencies, and the laws under Populations and Low Income the California Department of which such actions were taken, are Populations; E.O. 11593 Protection Transportation (Caltrans) assumed described in the Finding of No and Enhancement of Cultural

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Resources; E.O. 13007 Indian Sacred normal business hours are 7:45 a.m. to Floodplain Management; E.O. 12898, Sites; E.O. 13287 Preserve America; 4:15 p.m. You may also contact Ms. Federal Actions to Address E.O. 13175 Consultation and Dianna Noble, Texas Department of Environmental Justice in Minority Coordination with Indian Tribal Transportation, 125 E. 11th Street, Populations and Low Income Governments; E.O. 11514 Protection Austin, Texas 78701; telephone: (512) Populations; E.O. 11593 Protection and and Enhancement of Environmental 416–2734. Enhancement of Cultural Resources; Quality; E.O. 13112 Invasive Species. SUPPLEMENTARY INFORMATION: Notice is E.O. 13175 Consultation and (Catalog of Federal Domestic Assistance hereby given that the FHWA and other Coordination with Indian Tribal Program Number 20.205, Highway Planning Federal agencies have taken final agency Governments; E.O. 11514 Protection and and Construction. The regulations actions by issuing licenses, permits, and Enhancement of Environmental Quality; implementing Executive Order 12372 approvals for the following highway E.O. 13112 Invasive Species. regarding intergovernmental consultation on project in the State of Texas: US 183, (Catalog of Federal Domestic Assistance Federal programs and activities apply to this north of Leander, beginning at 183A and Program Number 20.205, Highway Planning program.) heading north to SH 29 in Williamson and Construction. The regulations Authority: 23 U.S.C. 139(l)(1). County in the State of Texas. The implementing Executive Order 12372 regarding intergovernmental consultation on Issued on: July 14, 2009. project will be approximately 3.6 miles long and will reconstruct the existing 4- Federal programs and activities apply to this Cindy Vigue, lane undivided highway to a 4-lane program.) Director, State Programs, Federal Highway divided (interim, 6-lane ultimate) Authority: 23 U.S.C. § 139(l)(1). Administration, Sacramento, California. highway. The proposed highway will Issued on: July 15, 2009. [FR Doc. E9–17257 Filed 7–20–09; 8:45 am] follow the existing US 183 alignment. Salvador Deocampo, BILLING CODE P The actions by the Federal agencies, and the laws under which such actions were District Engineer, Austin, Texas. taken, are described in the [FR Doc. E9–17314 Filed 7–20–09; 8:45 am] DEPARTMENT OF TRANSPORTATION Environmental Assessment (EA) for the BILLING CODE 4910–RY–P Federal Highway Administration project, dated March 2009, in the FHWA Finding of No Significant Impact [FHWA–139(l) Notice] (FONSI) issued on July 10, 2009, and in DEPARTMENT OF THE TREASURY other documents in the FHWA project Notice of Final Federal Agency Actions records. The EA, FONSI, and other Office of Foreign Assets Control on United States Highway 183 in Texas documents in the FHWA project records Additional Designation of Individuals file are available by contacting the AGENCY: Federal Highway Pursuant to Executive Order 13224 Administration (FHWA), DOT. FHWA or the Texas Department of ACTION: Notice of Limitation on Claims Transportation at the addresses AGENCY: Office of Foreign Assets for Judicial Review of Actions by FHWA provided above. This notice applies to Control, Treasury. and Other Federal Agencies. all Federal agency decisions as of the ACTION: Notice. issuance date of this notice and all laws SUMMARY: This notice announces actions under which such actions were taken, SUMMARY: The Treasury Department’s taken by the FHWA and other Federal including but not limited to: Office of Foreign Assets Control agencies that are final within the 1. General: National Environmental (‘‘OFAC’’) is publishing the names of meaning of 23 U.S.C. § 139(l)(1). The Policy Act (NEPA) [42 U.S.C. 4321– four newly-designated individuals actions relate to a proposed highway 4351]; Federal-Aid Highway Act [23 whose property and interests in project, United States Highway 183 (US U.S.C. 109]. property are blocked pursuant to 183), north of Leander, beginning at 2. Air: Clean Air Act, 42 U.S.C. 7401– Executive Order 13224 of September 23, 183A and heading north to State 7671(q). 2001, ‘‘Blocking Property and Highway (SH) 29 in Williamson County 3. Land: Section 4(f) of the Prohibiting Transactions With Persons in the State of Texas. Those actions Department of Transportation Act of Who Commit, Threaten To Commit, or grant licenses, permits, and approvals 1966 [49 U.S.C. 303]. Support Terrorism.’’ 4. Wildlife: Endangered Species Act for the project. DATES: The designation by the Director [16 U.S.C. 1531–1544 and section 1536], DATES: By this notice, the FHWA is of OFAC of the four individuals Migratory Bird Treaty Act [16 U.S.C. advising the public of final agency identified in this notice, pursuant to 703–712]. Executive Order 13224, is effective on actions subject to 23 U.S.C. § 139(l)(1). 5. Historic and Cultural Resources: July 1, 2009. A claim seeking judicial review of the Section 106 of the National Historic Federal agency actions on the highway Preservation Act of 1966, as amended FOR FURTHER INFORMATION CONTACT: project will be barred unless the claim [16 U.S.C. 470(f) et seq.]; Archeological Assistant Director, Compliance is filed on or before January 19, 2010. Resources Protection Act of 1977 [16 Outreach & Implementation, Office of If the Federal law that authorizes U.S.C. 470(aa)–11]; Archeological and Foreign Assets Control, Department of judicial review of a claim provides a Historic Preservation Act [16 U.S.C. the Treasury, Washington, DC 20220, time period of less than 180 days for 469–469(c)]. tel.: 202/622–2490. filing such claim, then that shorter time 6. Social and Economic: Civil Rights SUPPLEMENTARY INFORMATION: period still applies. Act of 1964 [42 U.S.C. 2000(d)– Electronic and Facsimile Availability FOR FURTHER INFORMATION CONTACT: Mr. 2000(d)(1)]; Farmland Protection Policy Salvador Deocampo, District Engineer, Act (FPPA) [7 U.S.C. 4201–4209]. This document and additional Federal Highway Administration, 300 E. 7. Wetlands and Water Resources: information concerning OFAC are 8th Street, Rm. 826, Austin, Texas Clean Water Act, 33 U.S.C. 1251–1377 available from OFAC’s Web site 78701; telephone: (512) 536–5950; e- (Section 404, section 401, section 319). (http://www.treas.gov/ofac) or via mail: [email protected]. 8. Executive Orders: E.O. 11990 facsimile through a 24-hour fax-on- The FHWA Texas Division Office’s Protection of Wetlands; E.O. 11988 demand service, tel.: 202/622–0077.

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Background such acts of terrorism or those persons DEPARTMENT OF THE TREASURY On September 23, 2001, the President listed in the Annex to the Order or Internal Revenue Service issued Executive Order 13224 (the determined to be subject to the Order or to be otherwise associated with those ‘‘Order’’) pursuant to the International Proposed Collection; Comment Emergency Economic Powers Act, 50 persons listed in the Annex to the Order or those persons determined to be Request for Form 5304–SIMPLE, Form U.S.C. 1701–1706, and the United 5305–SIMPLE, and Notice 98–4 Nations Participation Act of 1945, 22 subject to subsection 1(b), 1(c), or 1(d)(i) U.S.C. 287c. In the Order, the President of the Order. AGENCY: Internal Revenue Service (IRS), declared a national emergency to On July 1, 2009, the Director of OFAC, Treasury. address grave acts of terrorism and in consultation with the Departments of State, Homeland Security, Justice and ACTION: Notice and request for threats of terrorism committed by other relevant agencies, designated, comments. foreign terrorists, including the pursuant to one or more of the criteria September 11, 2001, terrorist attacks in SUMMARY: The Department of the set forth in subsections 1(b), 1(c) or 1(d) New York, Pennsylvania, and at the Treasury, as part of its continuing effort of the Order, four individuals whose Pentagon. The Order imposes economic to reduce paperwork and respondent property and interests in property are sanctions on persons who have burden, invites the general public and blocked pursuant to Executive Order committed, pose a significant risk of other Federal agencies to take this 13224. opportunity to comment on proposed committing, or support acts of terrorism. The list of designees is as follows: The President identified in the Annex to and/or continuing information 1. AMEEN AL-PESHAWARI, Fazeel- the Order, as amended by Executive collections, as required by the A-Tul Shaykh Abu Mohammed (a.k.a. Order 13268 of July 2, 2002, 13 Paperwork Reduction Act of 1995, AL-BISHAURI, Abu Mohammad Shaykh individuals and 16 entities as subject to Public Law 104–13 (44 U.S.C. Aminullah; a.k.a. AL-PESHAWARI, the economic sanctions. The Order was 3506(c)(2)(A)). Currently, the IRS is Shaykh Abu Mohammed Ameen; a.k.a. further amended by Executive Order soliciting comments concerning Form AL-PESHAWARI, Shaykh Aminullah; 13284 of January 23, 2003, to reflect the 5304–SIMPLE, Savings Incentive Match a.k.a. AMINULLAH, Shaykh; a.k.a. creation of the Department of Homeland Plan for Employees of Small Employers AMINULLAH, Sheik; a.k.a. BISHAWRI, Security. (SIMPLE)—Not for Use With a Section 1 of the Order blocks, with Abu Mohammad Amin; a.k.a. Designated Financial Institution; Form certain exceptions, all property and PESHAWARI, Abu Mohammad 5305–SIMPLE, Savings Incentive Match interests in property that are in or Aminullah; a.k.a. SHAYKH AMEEN), Plan for Employees of Small Employers hereafter come within the United States Ganj District, Peshawar, Northwest (SIMPLE)—for Use With a Designated or the possession or control of United Frontier Province, Pakistan; DOB circa Financial Institution; Notice 98–4, States persons, of: (1) Foreign persons 1967; alt. DOB circa 1961; alt. DOB circa Simple IRA Plan Guidance 1973; POB Konar Province, Afghanistan listed in the Annex to the Order; (2) DATES: Written comments should be foreign persons determined by the (individual) [SDGT]. 2. JAVAID, Nasir (a.k.a. ABU received on or before September 21, Secretary of State, in consultation with ISHMAEL; a.k.a. JAVED, Haji Nasir; 2009 to be assured of consideration. the Secretary of the Treasury, the a.k.a. JAVED, Nasar; a.k.a. JAVED, ADDRESSES: Direct all written comments Secretary of the Department of Naser; a.k.a. JAVED, Nasir; a.k.a. JAVED, to R. Joseph Durbala, Internal Revenue Homeland Security and the Attorney Qari Naser; a.k.a. JAVID, Nasser), Service, Room 6129, 1111 Constitution General, to have committed, or to pose Mansehra District, Northwest Frontier Avenue, NW., Washington, DC 20224. a significant risk of committing, acts of Province, Pakistan; DOB circa 1956; alt. FOR FURTHER INFORMATION CONTACT terrorism that threaten the security of : DOB circa 1958; alt. DOB circa 1965; U.S. nationals or the national security, Requests for additional information or POB Pakistan; nationality Pakistan; foreign policy, or economy of the United copies of the forms, instructions, and From Gujranwala, Punjab province, States; (3) persons determined by the notice should be directed to Allan Pakistan (individual) [SDGT]. Director of OFAC, in consultation with Hopkins, (202) 622–6665, Internal 3. MUJAHID, Mohammed Yahya the Departments of State, Homeland Revenue Service, Room 6129, 1111 (a.k.a. AZIZ, Mohammad Yahya; a.k.a. Security and Justice, to be owned or Constitution Avenue, NW., Washington, MUJAHID, Muhammad Yahya; a.k.a. controlled by, or to act for or on behalf DC 20224, or through the Internet at MUJAHID, Yahya); DOB 12 Mar 1961; of those persons listed in the Annex to [email protected]. POB Lahore, Punjab Province, Pakistan; the Order or those persons determined SUPPLEMENTARY INFORMATION: National ID No. 35404–1577309–9 to be subject to subsection 1(b), 1(c), or Title: Form 5304–SIMPLE, Savings (Pakistan) (individual) [SDGT]. 1(d)(i) of the Order; and (4) except as 4. QASMANI, Arif (a.k.a. ARIF Incentive Match Plan for Employees of provided in section 5 of the Order and UMER; a.k.a. BABA JI; a.k.a. MEMON Small Employers (SIMPLE)—Not for after such consultation, if any, with BABA; a.k.a. QASMANI BABA; a.k.a. Use With a Designated Financial foreign authorities as the Secretary of QASMANI, Mohammad Arif; a.k.a. Institution, Form 5304–SIMPLE; State, in consultation with the Secretary QASMANI, Muhammad Arif; a.k.a. Savings Incentive Match Plan for of the Treasury, the Secretary of the QASMANI, Muhammad ’Arif), House Employees of Small Employers Department of Homeland Security and Number 136, KDA Scheme No. 1, Tipu (SIMPLE)—for Use With a Designated the Attorney General, deems Sultan Road, Karachi, Sindh, Pakistan; Financial Institution, Form 5305– appropriate in the exercise of his DOB circa 1944; nationality Pakistan SIMPLE; SIMPLE IRA Plan Guidance discretion, persons determined by the (individual) [SDGT]. (Notice 98–4). Director of OFAC, in consultation with OMB Number: 1545–1502. the Departments of State, Homeland Dated: July 1, 2009. Form Number: Form 5304–SIMPLE, Security and Justice, to assist in, Adam J. Szubin, Form 5305–SIMPLE, and Notice 98–4. sponsor, or provide financial, material, Director, Office of Foreign Assets Control. Abstract: Form 5304–SIMPLE is a or technological support for, or financial [FR Doc. E9–17248 Filed 7–20–09; 8:45 am] model SIMPLE IRA agreement that was or other services to or in support of, BILLING CODE 4811–45–P created to be used by an employer to

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permit employees who are not using a maintenance, and purchase of services comply with sections 40(k), 401(m), and designated financial institution to make to provide information. 4979 of the Internal Revenue Code. The salary reduction contributions to a Approved: July 13, 2009. regulation affects sponsors of plans that SIMPLE IRA described in Internal R. Joseph Durbala, contain cash or deferred arrangements Revenue Code section 408(p). Form of employee or matching contributions, IRS Reports Clearance Officer. 5305–SIMPLE is also a model SIMPLE and employees who are entitled to make IRA agreement, but it is for use with a [FR Doc. E9–17216 Filed 7–20–09; 8:45 am] elections under these plans. BILLING CODE 4830–01–P designated financial institutions. Notice Current Actions: There is no changes 98–4 provides guidance for employers to these existing regulations. and trustees regarding how they can DEPARTMENT OF THE TREASURY comply with the requirements of Code Type of Review: Extension of a currently approved collection. section 408(p) in establishing and Internal Revenue Service maintaining a SIMPLE IRA, including Affected Public: Business or other for- information regarding the notification [EE–175–86; REG–108639–99] profit organizations, not-for-profit and reporting requirements under Code institutions, farms, and state, local, or section 408. Proposed Collection; Comment tribal governments. Request for Regulation Project Current Actions: There are no changes Estimated Number of Respondents: for the forms at this time. We are AGENCY: Internal Revenue Service (IRS), 355,500. making this submission to renew the Treasury. OMB approval. We are making this Estimated Time per Respondent: 3 ACTION: Notice and request for hours. submission for renewal purposes. comments. Type of Review: Extension of a Estimated Total Annual Burden currently approved collection. SUMMARY: The Department of the Hours: 1,060,000. Affected Public: Business or other for- Treasury, as part of its continuing effort The following paragraph applies to all profit organizations not-for-profit to reduce paperwork and respondent of the collections of information covered institutions, and individuals. burden, invites the general public and by this notice: Estimated Number of Respondents: other Federal agencies to take this An agency may not conduct or 600,000. opportunity to comment on proposed Estimated Time per Respondent: 3 sponsor, and a person is not required to and/or continuing information respond to, a collection of information hours, 31 minutes. collections, as required by the Estimated Total Annual Burden unless the collection of information Paperwork Reduction Act of 1995, displays a valid OMB control number. Hours: 2,113,000. Public Law 104–13 (44 U.S.C. The following paragraph applies to all Books or records relating to a collection 3506(c)(2)(A)). Currently, the IRS is of the collections of information covered of information must be retained as long soliciting comments concerning an by this notice: as their contents may become material An agency may not conduct or existing final regulation, EE–175–86, in the administration of any internal sponsor, and a person is not required to (TD 8357), Certain Cash or Deferred revenue law. Generally, tax returns and respond to, a collection of information Arrangements and Employee and tax return information are confidential, unless the collection of information Matching Contributions Under as required by 26 U.S.C. 6103. Employee Plans: REG–108639–99 displays a valid OMB control number. Request for Comments: Comments Books or records relating to a collection (NPRM) Retirement Plans; Cash or Deferred Arrangements. submitted in response to this notice will of information must be retained as long be summarized and/or included in the DATES: Written comments should be as their contents may become material request for OMB approval. All received on or before September 21, in the administration of any internal comments will become a matter of 2009 to be assured of consideration. revenue law. Generally, tax returns and public record. Comments are invited on: ADDRESSES: tax return information are confidential, Direct all written comments (a) Whether the collection of as required by 26 U.S.C. 6103. to R. Joseph Durbala, Internal Revenue information is necessary for the proper Request for Comments: Comments Service, Room 6129, 1111 Constitution performance of the functions of the submitted in response to this notice will Avenue, NW., Washington, DC 20224. agency, including whether the be summarized and/or included in the FOR FURTHER INFORMATION CONTACT: information shall have practical utility; request for OMB approval. All Requests for additional information or (b) the accuracy of the agency’s estimate comments will become a matter of copies of the regulation should be of the burden of the collection of public record. Comments are invited on: directed to Evelyn J. Mack at Internal information; (c) ways to enhance the (a) Whether the collection of Revenue Service, Room 6129, 1111 quality, utility, and clarity of the information is necessary for the proper Constitution Avenue NW., Washington, information to be collected; (d) ways to performance of the functions of the DC 20224, or at (202) 622–7381, or minimize the burden of the collection of agency, including whether the through the Internet at information on respondents, including information shall have practical utility; ([email protected]). through the use of automated collection (b) the accuracy of the agency’s estimate SUPPLEMENTARY INFORMATION: techniques or other forms of information of the burden of the collection of Title: Certain Cash or Deferred technology; and (e) estimates of capital information; (c) ways to enhance the Arrangements and Employee and or start-up costs and costs of operation, quality, utility, and clarity of the Matching Contributions under maintenance, and purchase of services information to be collected; (d) ways to Employee Plans: Retirement Plans; Cash to provide information. minimize the burden of the collection of or Deferred Arrangements. Approved: July 13, 2009. information on respondents, including OMB Number: 1545–1069. through the use of automated collection Regulation Project Number: EE–175– R. Joseph Durbala, techniques or other forms of information 86; Reg–108639–99. IRS Reports Clearance Officer. technology; and (e) estimates of capital Abstract: This regulation provide the [FR Doc. E9–17209 Filed 7–20–09; 8:45 am] or start-up costs and costs of operation, public with the guidance needed to BILLING CODE 4830–01–P

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DEPARTMENT OF THE TREASURY An agency may not conduct or DATES: Written comments should be sponsor, and a person is not required to received on or before September 21, Internal Revenue Service respond to, a collection of information 2009 to be assured of consideration. unless the collection of information ADDRESSES: Direct all written comments Proposed Collection; Comment displays a valid OMB control number. to R. Joseph Durbala, Internal Revenue Request for Notice 2000–28 Books or records relating to a collection Service, Room 6129, 1111 Constitution AGENCY: Internal Revenue Service (IRS), of information must be retained as long Avenue, NW., Washington, DC 20224. Treasury. as their contents may become material FOR FURTHER INFORMATION CONTACT: in the administration of any internal ACTION: Notice and request for Requests for additional information or revenue law. Generally, tax returns and comments. copies of the form and instructions tax return information are confidential, should be directed to Evelyn J. Mack at SUMMARY: The Department of the as required by 26 U.S.C. 6103. Internal Revenue Service, Room 6129, Treasury, as part of its continuing effort Request for Comments: Comments 1111 Constitution Avenue, NW., to reduce paperwork and respondent submitted in response to this notice will Washington, DC 20224, or at (202) 622– burden, invites the general public and be summarized and/or included in the 7381, or through the Internet at other Federal agencies to take this request for OMB approval. All [email protected]. opportunity to comment on proposed comments will become a matter of SUPPLEMENTARY INFORMATION: and/or continuing information public record. Comments are invited on: (a) Whether the collection of Title: Allocation of Estimated Tax collections, as required by the Payments to Beneficiaries. Paperwork Reduction Act of 1995, information is necessary for the proper performance of the functions of the OMB Number: 1545–1020. Public Law 104–13 (44 U.S.C. Form Number: 1041–T. 3506(c)(2)(A)). Currently, the IRS is agency, including whether the information shall have practical utility; Abstract: This form allows a trustee of soliciting comments concerning Notice a trust or an executor of an estimate to 2000–28, Coal Exports. (b) the accuracy of the agency’s estimate of the burden of the collection of make an election under Internal DATES: Written comments should be information; (c) ways to enhance the Revenue Code section 643(g) to allocate received on or before September 21, quality, utility, and clarity of the any payment of estimated tax to a 2009 to be assured of consideration. information to be collected; (d) ways to beneficiary(ies). The IRS uses the ADDRESSES: Direct all written comments minimize the burden of the collection of information on the form to determine to R. Joseph Durbala, Internal Revenue information on respondents, including the correct amounts that are to be Service, Room 6129, 1111 Constitution through the use of automated collection transferred from the fidiciary’s account Avenue, NW., Washington, DC 20224. techniques or other forms of information to the individual’s account. FOR FURTHER INFORMATION CONTACT: technology; and (e) estimates of capital Current Actions: There are no changes Requests for additional information or or start-up costs and costs of operation, being made to the form at this time. Type of Review: Extension of a copies of the regulations should be maintenance, and purchase of services currently approved collection. directed to Evelyn J. Mack at Internal to provide information. Affected Public: Business or other for- Revenue Service, Room 6129, 1111 Approved: July 13, 2009. Constitution Avenue, NW., Washington, profit organizations. R. Joseph Durbala, DC 20224, or at (202) 622–7381, or Estimated Number of Responses: through the Internet at IRS Reports Clearance Officer. 1,000. ([email protected]). [FR Doc. E9–17213 Filed 7–20–09; 8:45 am] Estimated Number of Respondents: 59 BILLING CODE 4830–01–P minutes. SUPPLEMENTARY INFORMATION: Estimated Total Annual Burden Title: Coal Exports. Hours: 990. Notice Number: 1545–1690. DEPARTMENT OF THE TREASURY The following paragraph applies to all Abstract: Notice 2000–28 provides of the collections of information covered guidance relating to the coal excise tax Internal Revenue Service by this notice: imposed by section 4121 of the Internal An agency may not conduct or Revenue Code. The notice provides Proposed Collection; Comment sponsor, and a person is not required to rules under the Code for making a Request for Form 1041–T respond to, a collection of information nontaxable sale of coal for export or for AGENCY: Internal Revenue Service (IRS), unless the collection of information obtaining a credit or refund when tax Treasury. displays a valid OMB control number. has been paid with respect to a ACTION: Notice and request for Books or records relating to a collection nontaxable sale of coal for export. comments. of information must be retained as long Current Actions: There are no changes as their contents may become material being made to the notice at this time. SUMMARY: The Department of the in the administration of any internal Type of Review: Extension of Treasury, as part of its continuing effort revenue law. Generally, tax returns and currently approved collection. to reduce paperwork and respondent tax return information are confidential, Affected Public: Business or other-for- burden, invites the general public and as required by 26 U.S.C. 6103. profit organizations. other Federal agencies to take this Request for Comments: Comments Estimated Number of Respondents: opportunity to comment on proposed submitted in response to this notice will 400. and/or continuing information be summarized and/or included in the Estimated Time per Respondent: 1 collections, as required by the request for OMB approval. All hour. Paperwork Reduction Act of 1995, comments will become a matter of Estimated Total Annual Burden Public Law 104–13 (44 U.S.C. public record. Hours: 400. 3506(c)(2)(A)). Currently, the IRS is Comments are invited on: (a) Whether The following paragraph applies to all soliciting comments concerning Form the collection of information is of the collections of information covered 1041–T, Allocation of Estimated Tax necessary for the proper performance of by this notice: Payments to Beneficiaries. the functions of the agency, including

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whether the information shall have SUPPLEMENTARY INFORMATION: technology; and (e) estimates of capital practical utility; (b) the accuracy of the Title: Employer’s Annual Federal or start-up costs and costs of operation, agency’s estimate of the burden of the Unemployment (FUTA) Tax Return maintenance, and purchase of services collection of information; (c) ways to (Form 940) and Planilla Para La to provide information. enhance the quality, utility, and clarity Declaracion Anual Del Patrono—La Approved: July 13, 2009. of the information to be collected; (d) Contribucion Federal Para El Desempleo ways to minimize the burden of the (FUTA) (Form 940–PR). R. Joseph Durbala, collection of information on OMB Number: 1545–0028. IRS Reports Clearance Officer. respondents, including through the use Form Numbers: 940 and 940–PR. [FR Doc. E9–17210 Filed 7–20–09; 8:45 am] of automated collection techniques or Abstract: Internal Revenue Code BILLING CODE 4830–01–P other forms of information technology; section 3301 imposes a tax on and (e) estimates of capital or start-up employers based on the first $7,000 of costs and costs of operation, taxable wages paid to each employee. DEPARTMENT OF THE TREASURY maintenance, and purchase of services The tax is computed and reported on to provide information. Forms 940 and 940–PR (Puerto Rico Internal Revenue Service employers only). IRS uses the Approved: July 8, 2009. Quarterly Publication of Individuals, R. Joseph Durbala, information on Forms 940 and 940–PR to ensure that employers have reported Who Have Chosen To Expatriate, as IRS Reports Clearance Office. and figured the correct FUTA wages and Required by Section 6039G [FR Doc. E9–17215 Filed 7–20–09; 8:45 am] tax. BILLING CODE 4830–01–P Current Actions: There are no changes AGENCY: Internal Revenue Service (IRS), being made to the forms at this time. Treasury. Type of Review: Extension of a DEPARTMENT OF THE TREASURY ACTION: Notice. currently approved collection. Affected Public: Businesses or other Internal Revenue Service SUMMARY: This notice is provided in for-profit organizations, individuals, or accordance with IRC section 6039G, as Proposed Collection; Comment households, and farms. amended, by the Health Insurance Request for Forms 940 and 940–PR Estimated Number of Responses: 1,573,920. Portability and Accountability Act AGENCY: Internal Revenue Service (IRS), Estimated Time per Respondent: 57 (HIPPA) of 1996. This listing contains Treasury. hr., 26 min. the name of each individual losing their ACTION: Notice and request for Estimated Total Annual Burden United States citizenship (within the comments. Hours: 90,403,900. meaning of section 877(a)) with respect The following paragraph applies to all to whom the Secretary received SUMMARY: The Department of the of the collections of information covered information during the quarter ending Treasury, as part of its continuing effort by this notice: June 30, 2009. to reduce paperwork and respondent An agency may not conduct or burden, invites the general public and sponsor, and a person is not required to Last name First name Middle name/ other Federal agencies to take this respond to, a collection of information initials opportunity to comment on proposed unless the collection of information and/or continuing information Christensen Roald Eric displays a valid OMB control number. Hall Andrew Don collections, as required by the Books or records relating to a collection Paperwork Reduction Act of 1995, Ogg Clint De’Wayne of information must be retained as long Kampf Laura Amelia Public Law 104–13 (44 U.S.C. as their contents may become material 3506(c)(2)(A)). Currently, the IRS is Evans Christopher David in the administration of any internal Chew Linda Mun-Jong soliciting comments concerning Form revenue law. Generally, tax returns and 940, Employer’s Annual Federal Chao Shao-Hua tax return information are confidential, Gilbert Barrie Catherine Unemployment (FUTA) Tax Return, and as required by 26 U.S.C. 6103. Form 940–PR, Planilla Para La O’Reilly John Harald-Thom- Declaracion Anual Del Patrono—La Request for Comments: Comments as Contribucion Federal Para El Desempleo submitted in response to this notice will Goodson Deanna Lou Clay-Remson Alverne M (FUTA). be summarized and/or included in the request for OMB approval. All Kennedy Cynthia Gayle DATES: Written comments should be comments will become a matter of Fu Estefania Hung received on or before September 21, public record. Comments are invited on: Sandy Sum Kay 2009 to be assured of consideration. (a) Whether the collection of Cuaron Alfonso ADDRESSES: Direct all written comments information is necessary for the proper to R. Joseph Durbala, Internal Revenue performance of the functions of the Dated: July 10, 2009. Service, Room 6129, 1111 Constitution agency, including whether the Angie Kaminski, Avenue, NW., Washington, DC 20224. information shall have practical utility; Manager Team 103, Examinations FOR FURTHER INFORMATION CONTACT: (b) the accuracy of the agency’s estimate Requests for additional information or of the burden of the collection of Operations—Philadelphia Compliance Services. copies of the forms and instructions information; (c) ways to enhance the should be directed to Evelyn J. Mack, at quality, utility, and clarity of the [FR Doc. E9–17212 Filed 7–20–09; 8:45 am] (202) 622–7381, or at Internal Revenue information to be collected; (d) ways to BILLING CODE 4830–01–P Service, Room 6129, 1111 Constitution minimize the burden of the collection of Avenue NW., Washington, DC 20224, or information on respondents, including through the Internet, at through the use of automated collection [email protected]. techniques or other forms of information

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DEPARTMENT OF VETERANS delivery and management, and nursing During the closed portion of each AFFAIRS research. Applications are reviewed for meeting, discussion and scientific and technical merit. recommendations will include Health Services Research and Recommendations regarding funding qualifications of the personnel Development Service Merit Review are submitted to the Office of Research conducting the studies (the disclosure of Board; Notice of Meeting and Development’s Chief Research and which would constitute a clearly Development Officer. unwarranted invasion of personal The Department of Veterans Affairs On August 18, the Nursing Research privacy), as well as research information (VA) gives notice under Public Law 92– Initiative subcommittee will convene (the premature disclosure of which 463 (Federal Advisory Committee Act) from 8 a.m. until noon and the Career would likely compromise significantly that a meeting of the Health Services Development subcommittee will the implementation of proposed agency Research and Development Service convene from 8 a.m. until 5 p.m. action regarding such research projects). Scientific Merit Review Board will be On August 19, the Health Services As provided by subsection 10(d) of held August 18–20, 2009, at the Research A, Health Services Research B, Public Law 92–463, as amended by Doubletree Denver Tech, 7801 East Health Services Research C, Health Public Law 94–409, closing portions of Orchard Road, Greenwood Village, Services Research D, and Health each meeting is in accordance with 5 Colorado. Various subcommittees of the Services Research E subcommittees will U.S.C. 552b(c)(6) and (9)(B). Board will meet during the review convene from 8 a.m. until 5 p.m. In the Those who plan to attend the open period. Each subcommittee meeting will afternoon, the Career Development portion should contact Ms. Rita Lysik, be open to the public the first day for subcommittee will reconvene from 1 Scientific Merit Review Coordinator, approximately one half-hour from 8 a.m. p.m. until 5 p.m. Health Services Research and until 8:30 a.m. to cover administrative On August 20, the Health Services Development Service (124R), matters and to discuss the general status Research A–E subcommittees will Department of Veterans Affairs, 810 of the program. The remaining portion reconvene from 8 a.m. until noon. In the Vermont Avenue, NW., Washington, DC of the meetings will be closed. The afternoon, the Health Services Research 20420, at least five days prior to the closed portion of each meeting will F subcommittee will convene from 1 meeting. For further information, please involve discussion, examination, p.m. until 5 p.m. call (202) 461–1524. reference to, and oral review of the After the subcommittees meet, there Dated: July 15, 2009. research proposals and critiques. will be a debriefing provided to The purpose of the Board is to review members of the Board. The purposes of By Direction of the Secretary. research and development applications the debriefing are to discuss the E. Philip Riggin, involving the measurement and outcomes of the review sessions and to Committee Management Officer. evaluation of health care services, the ensure the continued integrity and [FR Doc. E9–17197 Filed 7–20–09; 8:45 am] testing of new methods of health care consistency of the review process. BILLING CODE P

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Part II

Department of the Treasury Office of the Comptroller of the Currency Federal Reserve System Federal Deposit Insurance Corporation Department of the Treasury Office of Thrift Supervision Farm Credit Administration National Credit Union Administration Loans in Areas Having Special Flood Hazards; Interagency Questions and Answers Regarding Flood Insurance; Notice

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DEPARTMENT OF THE TREASURY ADDRESSES: OCC: Because paper mail in • Federal eRulemaking Portal: http:// the Washington, DC area and at the www.Regulation.gov. Follow the Office of the Comptroller of the Agencies is subject to delay, instructions for submitting comments. Currency commenters are encouraged to submit • E-mail: [email protected]. [Docket ID OCC 2009–0014] comments by e-mail, if possible. Please use the title ‘‘Loans in Areas Having Include docket number in the subject FEDERAL RESERVE SYSTEM Special Flood Hazards; Interagency line of the message. Questions and Answers Regarding • Fax: (202) 452–3819 or (202) 452– [Docket No. R–1311] Flood Insurance’’ to facilitate the 3102. • organization and distribution of the Mail: Jennifer J. Johnson, Secretary, FEDERAL DEPOSIT INSURANCE Board of Governors of the Federal CORPORATION comments. You may submit comments by any of the following methods: Reserve System, 20th Street and RIN 3064–ZA00 • E-mail: Constitution Avenue, NW., Washington, [email protected]. DC 20551. DEPARTMENT OF THE TREASURY • Mail: Office of the Comptroller of All public comments are available the Currency, 250 E Street, SW., Mail from the Board’s Web site at http:// Office of Thrift Supervision Stop 2–3, Washington, DC 20219. www.federalreserve.gov/generalinfo/ • foia/ProposedRegs.cfm as submitted, [Docket ID OTS–2009–0005] Fax: (202) 874–5274. • Hand Delivery/Courier: 250 E unless modified for technical reasons. FARM CREDIT ADMINISTRATION Street, SW., Attn: Communications Accordingly, your comments will not be Division, Mail Stop 2–3, Washington, edited to remove any identifying or RIN 3052–AC46 DC 20219. contact information. Instructions: You must include Public comments may also be viewed NATIONAL CREDIT UNION ‘‘OCC’’ as the agency name and ‘‘Docket electronically or in paper in Room MP– ADMINISTRATION Number OCC–2009–0014’’ in your 500 of the Board’s Martin Building (20th RIN 3133–AD41 comment. In general, OCC will enter all and C Streets, NW.) between 9 a.m. and comments received into the docket and 5 p.m. on weekdays. Loans in Areas Having Special Flood publish them on the Regulations.gov FDIC: You may submit comments, Hazards; Interagency Questions and Web site without change, including any identified by RIN number 3064–ZA00 Answers Regarding Flood Insurance by any of the following methods: business or personal information that • you provide such as name and address Agency Web Site: http:// AGENCIES: Office of the Comptroller of information, e-mail addresses, or phone www.fdic.gov/Regulation/laws/federal/ the Currency, Treasury (OCC); Board of numbers. Comments received, including propose.html. Follow instructions for Governors of the Federal Reserve attachments and other supporting submitting comments on the ‘‘Agency System (Board); Federal Deposit materials, are part of the public record Web Site.’’ Insurance Corporation (FDIC); Office of • E-mail: [email protected]. and subject to public disclosure. Do not Thrift Supervision, Treasury (OTS); Include the RIN number in the subject enclose any information in your Farm Credit Administration (FCA); line of the message. comment or supporting materials that National Credit Union Administration • Mail: Robert E. Feldman, Executive you consider confidential or (NCUA). Secretary, Attention: Comments, Federal inappropriate for public disclosure. ACTION: Notice and request for comment. Deposit Insurance Corporation, 550 17th You may review comments and other Street, NW., Washington, DC 20429. related materials that pertain to this SUMMARY: The OCC, Board, FDIC, OTS, • Hand Delivery/Courier: Guard notice by any of the following methods: FCA, and NCUA (collectively, the • station at the rear of the 550 17th Street Viewing Comments Personally: You Building (located on F Street) on Agencies) are issuing final revisions to may personally inspect and photocopy the Interagency Questions and Answers business days between 7 a.m. and 5 p.m. comments at the OCC’s Instructions: All submissions received Regarding Flood Insurance (Interagency Communications Division, 250 E Street, Questions and Answers). The Agencies must include the agency name and RIN SW., Washington, DC. For security number. All comments received will be are also soliciting comments on reasons, the OCC requires that visitors proposed revisions to the Interagency posted without change to http:// make an appointment to inspect www.fdic.gov/Regulation/laws/federal/ Questions and Answers. To help comments. You may do so by calling in financial institutions meet their propose.html including any personal advance (202) 874–4700. Upon arrival, information provided. responsibilities under Federal flood visitors will be required to present valid insurance legislation and to increase OTS: You may submit comments, government-issued photo identification identified by OTS–2009–0005, by any of public understanding of the flood and submit to security screening in insurance regulation, the Agencies are the following methods: order to inspect and photocopy • E-mail: finalizing new and revised guidance, as comments. [email protected]. Please well as proposing new and revised • Docket: You may also view or include ID OTS–2009–0005 in the guidance that address the most request available background subject line of the message and include frequently asked questions about flood documents and project summaries using your name and telephone number in the insurance. The revised Interagency the methods described above. message. Questions and Answers contain staff Board: You may submit comments, • Fax: (202) 906–6518. guidance for agency personnel, financial identified by Docket No. R–1311, by any • Mail: Regulation Comments, Chief institutions, and the public. of the following methods: Counsel’s Office, Office of Thrift DATES: Effective date: September 21, • Agency Web Site: http:// Supervision, 1700 G Street, NW., 2009. Comment due date: Comments on www.federalreserve.gov. Follow the Washington, DC 20552, Attention: OTS– the proposed questions and answers instructions for submitting comments at 2009–0005. must be submitted on or before http://www.federalreserve.gov/ • Hand Delivery/Courier: Guard’s September 21, 2009. generalinfo/foia/ProposedRegs.cfm. Desk, East Lobby Entrance, 1700 G

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Street, NW., from 9 a.m. to 4 p.m. on Virginia, or from our Web site at Senior Counsel, Legal Division, (202) business days, Attention: Regulation http://www.fca.gov. Once you are in the 452–3721, Board of Governors of the Comments, Chief Counsel’s Office, Web site, select ‘‘Legal Info,’’ and then Federal Reserve System, 20th Street and Attention: OTS–2009–0005. select ‘‘Public Comments.’’ We will Constitution Avenue, NW., Washington, Instructions: All submissions received show your comments as submitted, but DC 20551. For the deaf, hard of hearing, must include the agency name and for technical reasons we may omit items and speech impaired only, docket number for this rulemaking. All such as logos and special characters. teletypewriter (TTY), (202) 263–4869. comments received will be posted Identifying information that you FDIC: Mira N. Marshall, Chief, without change, including any personal provide, such as phone numbers and Compliance Policy Section, Division of information provided. Comments, addresses, will be publicly available. Supervision and Consumer Protection, including attachments and other However, we will attempt to remove e- (202) 898–3912; or Mark Mellon, supporting materials received are part of mail addresses to help reduce Internet Counsel, Legal Division, (202) 898– the public record and subject to public spam. 3884, Federal Deposit Insurance disclosure. Do not enclose any NCUA: You may submit comments by Corporation, 550 17th Street, NW., information in your comment or any of the following methods (Please Washington, DC 20429. For the hearing supporting materials that you consider send comments by one method only): impaired only, telecommunications confidential or inappropriate for public • Federal eRulemaking Portal: http:// device for the deaf TDD: 800–925–4618. disclosure. www.Regulation.gov. Follow the OTS: Ekita Mitchell, Consumer Viewing Comments Electronically: instructions for submitting comments. Regulation Analyst, (202) 906–6451; or OTS will post comments on the OTS • NCUA Web Site: http:// Richard S. Bennett, Senior Compliance Internet Site at http://www.ots.treas.gov/ www.ncua.gov/ Counsel, (202) 906–7409, Office of ?p=opencomment1. RegulationOpinionsLaws/ Thrift Supervision, 1700 G Street, NW., Viewing Comments On-Site: You may proposed_regs/proposed_regs.html. Washington, DC 20552. inspect comments at the Public Reading Follow the instructions for submitting FCA: Mark L. Johansen, Senior Policy Room, 1700 G Street, NW., by comments. Analyst, Office of Regulatory Policy, (703) 993–4498; or Mary Alice Donner, appointment. To make an appointment • E-mail: Address to Attorney Advisor, Office of General for access, call (202) 906–5922, send an [email protected]. Include ‘‘[Your Counsel, (703) 883–4033, Farm Credit e-mail to [email protected], or name] Comments on Flood Insurance, Administration, 1501 Farm Credit Drive, send a facsimile transmission to (202) Interagency Questions & Answers’’ in McLean, VA 22102–5090. For the 906–6518. (Prior notice identifying the the e-mail subject line. hearing impaired only, TDD (703) 883– materials you will be requesting will • Fax: (703) 518–6319. Use the assist us in serving you.) We schedule 4444. subject line described above for e-mail. NCUA: Justin M. Anderson, Staff appointments on business days between • Mail: Address to Mary Rupp, 10 a.m. and 4 p.m. In most cases, Attorney, Office of General Counsel, Secretary of the Board, National Credit (703) 518–6540; or Pamela Yu, Staff appointments will be available the next Union Administration, 1775 Duke business day following the date we Attorney, Office of General Counsel, Street, Alexandria, Virginia 22314– (703) 518–6593, National Credit Union receive a request. 3428. FCA: We offer a variety of methods for • Administration, 1775 Duke Street, Hand Delivery/Courier: Same as Alexandria, VA 22314–3428. you to submit comments. For accuracy mail address. SUPPLEMENTARY INFORMATION: and efficiency reasons, we encourage Public Inspection: All public commenters to submit comments by e- comments are available on the agency’s Background mail or through the Agency’s Web site Web site at http://www.ncua.gov/ or the Federal eRulemaking Portal. You The National Flood Insurance Reform RegulationOpinionsLaws/comments as Act of 1994 (the Reform Act) (Title V of may also send comments by mail or by submitted, except as may not be facsimile transmission. Regardless of the the Riegle Community Development and possible for technical reasons. Public Regulatory Improvement Act of 1994) method you use, please do not submit comments will not be edited to remove your comment multiple times via comprehensively revised the two any identifying or contact information. Federal flood insurance statutes, the different methods. You may submit Paper copies of comments may be comments by any of the following National Flood Insurance Act of 1968 inspected in NCUA’s law library at 1775 and the Flood Disaster Protection Act of methods: Duke Street, Alexandria, Virginia 22314, • E-mail: Send us an e-mail at 1973. The Reform Act required the OCC, by appointment weekdays between 9 Board, FDIC, OTS, and NCUA to revise [email protected]. a.m. and 3 p.m. To make an • Agency Web Site: http:// their flood insurance regulations and appointment, call (703) 518–6546 or www.fca.gov. Once you are at the Web required the FCA to promulgate a flood send an e-mail to [email protected]. site, select ‘‘Legal Info,’’ then ‘‘Pending insurance regulation for the first time. Regulation and Notices.’’ FOR FURTHER INFORMATION CONTACT: The OCC, Board, FDIC, OTS, NCUA, • Federal eRulemaking Portal: http:// OCC: Pamela Mount, National Bank and FCA (collectively, ‘‘the Agencies’’) www.Regulation.gov. Follow the Examiner, Compliance Policy, (202) fulfilled these requirements by issuing a instructions for submitting comments. 874–4428; or Margaret Hesse, Special joint final rule in the summer of 1996. • Mail: Gary K. Van Meter, Deputy Counsel, Community and Consumer See 61 FR 45684 (August 29, 1996). Director, Office of Regulatory Policy, Law Division, (202) 874–5750, Office of In connection with the 1996 joint Farm Credit Administration, 1501 Farm the Comptroller of the Currency, 250 E rulemaking process, the Agencies Credit Drive, McLean, VA 22102–5090. Street, SW., Washington, DC 20219. received a number of requests to clarify • Fax: (703) 883–4477. Posting and Board: Vivian Wong, Senior Attorney, specific issues covering a wide processing of faxes may be delayed. Division of Consumer and Community spectrum of the proposed rule’s Please consider another means to Affairs, (202) 452–2412; Tracy provisions. The Agencies addressed comment, if possible. Anderson, Senior Supervisory many of these requests in the preamble You may review copies of comments Consumer Financial Services Analyst to the joint final rule. The Agencies we receive at our office in McLean, (202) 736–1921; or Brad Fleetwood, concluded, however, that given the

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number, level of detail, and diversity of to each agency’s current final flood promptly remove the flood insurance the requests, guidance addressing the insurance rule.1 requirement from a loan when the technical compliance issues would be building or mobile home securing the Section-by-Section Analysis helpful and appropriate. Consequently, loan is removed from an SFHA by way the Agencies decided to issue guidance Section I. Determining When Certain of a map change. The decision to require to address these technical issues Loans Are Designated Loans for Which flood insurance in these instances is subsequent to the promulgation of the Flood Insurance Is Required Under the typically made on a case-by-case basis, final rule (61 FR at 45685–86). The Act and Regulation depending on a lender’s risk Federal Financial Institutions The Agencies proposed this new management practices. The Agencies do Examination Council (FFIEC) fulfilled section to address specific not believe that a blanket statement that objective through the initial release circumstances a lender may encounter encouraging lenders to remove flood of the Interagency Questions and when deciding whether a loan should insurance in such instances is an Answers in 1997 (1997 Interagency be a designated loan for purposes of appropriate position; therefore, the Questions and Answers). 62 FR 39523 flood insurance. The proposed new question and answer is adopted as (July 23, 1997). section was intended to replace the proposed. In response to issues that had been previous section I in the 1997 Proposed question and answer 3 raised, the Agencies, in coordination Interagency Questions and Answers addressed whether a lender’s purchase with the Federal Emergency entitled ‘‘Definitions’’ and to of a loan, secured by a mobile home or Management Agency (FEMA), released incorporate existing questions from building located in an SFHA in which for public comment proposed revisions other sections addressing this topic and flood insurance is available under the to the 1997 Interagency Questions and two new questions. Act, from another lender triggers any Answers. 73 FR 15259 (March 21, 2008) Proposed question and answer 1 requirements under the Regulation. The (March 2008 Proposed Interagency addressed the applicability of the Agencies received several comments Questions and Answers). Among the Regulation to loans made in a opposing the reference to safety and changes the Agencies proposed were the nonparticipating community. One soundness necessitating a due diligence introduction of new questions and commenter suggested the Agencies review prior to purchasing the loan. The answers in a number of areas, including mention that a lender may choose to Agencies note that although lenders are second lien mortgages, the imposition of require private flood insurance per its not required to review loans for flood civil money penalties, and loan loan agreement with the borrower, for insurance compliance prior to purchase, syndications/participations. The buildings or mobile homes located depending upon the circumstances, Agencies also proposed substantive outside a community in the National safety and soundness considerations modifications to questions and answers Flood Insurance Program (NFIP). The may sometimes necessitate such due previously adopted in the 1997 Agencies agree that lenders have such diligence. As such, the Agencies do not Interagency Questions and Answers discretion, but do not believe that the concur with the commenter’s opposition pertaining to construction loans and question and answer requires further and adopt question and answer 3 as condominiums. Finally, the Agencies elaboration. Another commenter proposed. The Agencies are adopting a new proposed to revise and reorganize suggested the Agencies mention that question and answer 4 addressing certain of the existing questions and Government Sponsored Enterprises syndicated and participation loans answers to clarify areas of potential (GSEs), such as Fannie Mae and Freddie following question and answer 3, which misunderstanding and to provide Mac, may not purchase loans made on deals with purchased loans, to clearer guidance to users. properties in a Special Flood Hazard emphasize the need for similar Area (SFHA) in communities that do not The Agencies received and treatment of purchased loans and participate in the NFIP. The Act does considered comments from 59 public syndicated and participation loans. The require GSEs to have procedures in commenters, and are now adopting the new question and answer was initially place to ensure that purchased loans are Interagency Questions and Answers, proposed as question and answer 40 in compliance with the mandatory comprising 77 questions and answers, under section VIII. Proposed section VIII purchase requirements. The Agencies revised as appropriate based on on loan syndications and participations comments received. The Agencies made do not believe that further elaboration is and the accompanying question and nonsubstantive revisions to certain necessary and adopt the question and answer are removed and the remaining answers upon further consideration answer as proposed. sections are renumbered accordingly. either to more directly respond to the Proposed question and answer 2 Proposed question and answer 40 question asked or to provide additional explained that, upon a FEMA map explained that, with respect to loan clarity. The Agencies are also proposing change that results in a building or syndications and participations, five new questions and answers for mobile home securing a loan being individual participating lenders are public comment. These Interagency removed from an SFHA, a lender is no responsible for ensuring compliance Questions and Answers supersede the longer obligated to require mandatory with flood insurance requirements. The 1997 Interagency Questions and flood insurance. However, the lender proposed answer further explained that Answers and supplement other may choose to continue to require flood participating lenders may fulfill this guidance or interpretations issued by insurance for risk management obligation by performing upfront due the Agencies and FEMA. purposes. The Agencies received one diligence to ensure that the lead lender For ease of reference, the following comment from an industry group or agent has undertaken the necessary terms are used throughout this suggesting the guidance in proposed activities to make sure that appropriate document: ‘‘Act’’ refers to the National question and answer 2 be amended to flood insurance is obtained and has Flood Insurance Act of 1968 and the add language encouraging lenders to adequate controls to monitor the loan(s) Flood Disaster Protection Act of 1973, as on an on-going basis. revised by the National Flood Insurance 1 The Agencies’ rules are codified at 12 CFR part 22 (OCC), 12 CFR part 208 (Board), 12 CFR part 339 The Agencies received several Reform Act of 1994 (codified at 42 (FDIC), 12 CFR part 572 (OTS), 12 CFR part 614 comments from financial institutions U.S.C. 4001 et seq.). ‘‘Regulation’’ refers (FCA), and 12 CFR part 760 (NCUA). and industry trade groups opposing the

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differences between the guidance in provide participating lenders with portfolios for flood insurance proposed question and answer 3 sufficient information on an ongoing compliance under the Act or Regulation, regarding the purchase of a loan and the basis to monitor compliance with flood the Agencies believe safety and guidance in proposed question and insurance requirements. A written soundness considerations may answer 40. A majority of the representation provided by the lead sometimes necessitate such due commenters argued that loan lender or syndication agent certifying diligence and therefore adopt the participations and syndications should that the borrower has obtained question and answer as proposed. be treated the same as other loan appropriate flood insurance would be Section II. Determining the Appropriate purchases for purposes of flood sufficient. Alternatively, the lead lender Amount of Flood Insurance Required insurance. Several of these commenters or syndication agent could provide Under the Act and Regulation suggested that the Agencies’ proposed participants and syndication lenders treatment of loan syndications and with a copy of the declaration page or The Agencies proposed this section to participations appeared to be other proof of insurance. The Agencies provide guidance on how lenders inconsistent with proposed question have incorporated minor revisions to should determine the appropriate and answer 3 pertaining to purchased the question and answer to clarify this amount of flood insurance to require the loans. guidance. borrower to purchase. The Agencies In response to these comments, the Proposed question and answer 4 (final received numerous comments on this Agencies are revising the relevant question and answer 5) addressed the proposed section. As a result of these question and answer to reflect that, as applicability of the Regulation to loans comments, the Agencies have made with purchased loans, the acquisition by being restructured because of the both significant revisions to proposed a lender of an interest in a loan either borrower’s default on the original loan. questions and answers as well as by participation or syndication, after In light of the many loan modifications proposed new questions and answers that loan has been made, does not being made, the Agencies have revised submitted for comment to provide trigger the requirements of the Act and the question to address loan greater clarity on this important area. Regulation, such as making a new flood modifications as well as loans being The proposed new questions and determination or requiring a borrower to restructured because of the borrower’s answers are addressed in the purchase flood insurance. Nonetheless, default on the original loan. The SUPPLEMENTARY INFORMATION as with purchased loans, depending guidance provided in the answer is immediately following the upon the circumstances, safety and applicable to either situation. The Redesignation Table. soundness considerations may Agencies received one comment asking Proposed question and answer 7 (final sometimes necessitate that the lender whether capitalization of a loan in the question and answer 8) addressed what undertake due diligence to protect itself event of a default would constitute an is meant by the ‘‘maximum limit of against the risk of flood or other types increase in the loan, triggering the coverage available for the particular of loss. requirements of the Regulation. If the type of property under the Act.’’ The If a regulated lender is involved in the capitalization results in an increase in first part of the question and answer making of the underlying loan, but does the outstanding principal balance of the discussed the maximum caps on not purchase a loan participation or loan, then the requirements of the insurance available under the Act. The syndication after the loan has been Regulation will apply. Conversely, a Agencies did not receive any made, the flood requirements of the Act loan restructure that does not result in substantive comments on this part of the and Regulation would apply to the an increase in the amount to the loan (or question and answer and adopt it as lender. The Agencies believe that an extension of the term of the loan) proposed in final question and answer lenders who pool or contribute funds will not trigger the requirements of the 8. The second part of the question and that will be advanced simultaneously to Regulation. The Agencies do not believe answer discussed the maximum limits a borrower as a loan secured by further elaboration addressing this on the coverage in the context of the improved real estate would all be comment is necessary. The Agencies regulation that provides that ‘‘flood considered to have ‘‘made’’ the loan adopt the question and answer as insurance coverage under the Act is under the Act and Regulation. In such proposed with the changes made to limited to the overall value of the circumstances, each participating lender include loan modifications, as well as property securing the designated loan in a loan participation or syndication is restructuring of loans. minus the value of the land on which responsible for compliance with the Act Proposed question and answer 5 (final the property is located,’’ commonly and Regulation. This does not mean that question and answer 6), addressed referred to as insurable value. In each participating lender must whether table funded loans are treated response to the numerous comments separately obtain a flood determination as new loan originations. The Agencies received on the insurable value part of or monitor whether flood insurance did not receive any substantive the proposed question and answer, the premiums are paid. Rather, it means comments and adopt the question and Agencies are proposing new questions that each participating lender subject to answer as proposed. and answers 9 and 10 for public Federal flood insurance requirements Proposed question and answer 6 (final comment. The Agencies otherwise should perform upfront due diligence to question and answer 7) explained that a adopt question and answer 7 (final ensure both that the lead lender or agent lender is not required to perform a question and answer 8) as proposed. has undertaken the necessary activities review of its existing loan portfolio for Proposed questions and answers 8 to make sure that the borrower obtains purposes of the Act or Regulation; and 9 (final questions and answers 11 appropriate flood insurance and that the however, sound risk management and 12 respectively) more fully defined lead lender or agent has adequate practices may lead a lender to conduct the terms ‘‘residential building’’ and controls to monitor the loan(s) on an on- periodic reviews. The Agencies received ‘‘nonresidential building.’’ One going basis for compliance with the several comments opposing the commenter suggested that the Agencies flood insurance requirements. The reference to safety and soundness define residential and nonresidential participating lender should require as a necessitating a due diligence review of buildings based on the percentage of the condition to the loan-sharing agreement a lender’s portfolio. Although lenders building used in a certain way to that the lead lender or agent will are not required to review existing loan account for mixed use buildings.

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Proposed question and answer 8 (final particular type of building under the revised the answer to address the question and answer 11) provides that a Act.’’ The majority of the comments technical issue that single-family residential building may have incidental received are addressed in the discussion dwellings are considered residential if nonresidential use as long as such below pertaining to new proposed less than 50 percent of the square incidental use is limited to less than 25 questions and answers 9 and 10. The footage is used for an incidental percent of the square footage of the Agencies adopt question and answer 10 nonresidential purpose. building. A mixed use residential (final question and answer 13) as Twenty commenters addressed building where greater than 25 percent proposed. proposed question and answer 12, of the square footage of the building is Proposed questions and answers 11 which addressed the flood insurance devoted to incidental nonresidential use and 12 (final questions and answers 14 requirements where the insurable value will be considered a nonresidential and 15 respectively) were originally of a building securing a designated loan building. Proposed question and answer adopted in the 1997 Interagency is less than the outstanding principal 9 (final question and answer 12) Questions and Answers. The changes balance of the loan. The comments provides that a mixed use proposed by the Agencies in March generally raised concerns about the lack nonresidential building with less than 2008 were designed to provide greater of a definition of ‘‘insurable value,’’ 75 percent of the square footage of the clarity with no intended change in discussed above in connection with building used for residential purposes substance and meaning. proposed question and answer 7. As will still be considered nonresidential. Four commenters addressed proposed previously mentioned, the Agencies are The commenter also asked whether a question and answer 11, which dealt proposing new questions and answers 9 farm house is residential or with flood insurance requirements and 10 for public comment to address nonresidential. If the farmhouse is used where a designated loan is secured by the issue of insurable value. One as a dwelling, then it will be considered more than one building. One commenter commenter also asked whether the residential. supported the proposed question and Agencies will require a lender to review Another commenter asked whether a answer, but suggested that where the flood insurance policies annually at lender is obligated to determine the collateral is worthless and would not be renewal and increase coverage as the amount of nonresidential use in a replaced, lenders should not have to replacement cost value increases. The residential building and whether there require the borrower to obtain flood Agencies typically will not require such are any record maintenance insurance. The Agencies are proposing a review. However, if at any time during requirements. Typically, whether a questions 9 and 10 for public comment the term of the loan, the lender building is nonresidential or residential to address the issue of determining determines that flood insurance is of most importance in determining insurable value for certain coverage is insufficient, the lender must the maximum limits of a general nonresidential buildings that include comply with the force placement property form NFIP policy. A residential certain low-value nonresidential procedures in the Regulation. The building covered under a general buildings. Another commenter asked Agencies believe no further clarification property form will have a maximum whether a lender would be liable if the is necessary and adopt the question and coverage limit of $250,000, while a lender allocates the overall required answer as proposed. nonresidential building covered under flood insurance over several buildings Proposed question and answer 13 the same type of policy will have a and one building suffers flood damage (final question and answer 16) clarified maximum coverage limit of $500,000. and is underinsured. In such a that a lender can require more flood Therefore, the lender needs to know circumstance, the lender would have insurance than the minimum required whether the building is considered complied with the Act and the by the Regulation. The Regulation residential or nonresidential when it Regulation. Of course, the lender has the requires a minimum amount of flood determines the amount of flood option to require the borrower to obtain insurance; however, lenders may insurance coverage to require. Finally, a more flood insurance coverage than the require more coverage, if appropriate. commenter asked whether a designated minimum amount required if the lender Two commenters asked the Agencies to loan, secured by a residential building believes there is a high risk of flood loss specify that lenders may never require and a detached nonresidential building, (see final question and answer 16). Two coverage that exceeds the insurable such as a garage, would require separate commenters suggested that the Agencies value of a building. As stated in the nonresidential coverage on the detached should explain how the lender should question and answer, lenders should nonresidential building. If the allocate the required amount of coverage avoid creating situations where a residential building is a one-to-four for multiple buildings of different building is over-insured. Further, the family dwelling that is covered by a values that secure a single loan. One of Agencies state in final question and dwelling form NFIP policy, that policy these commenters suggested that answer 8 that ‘‘an NFIP policy will not will cover a detached garage at the same allocation could be made by a square cover an amount exceeding the location as the dwelling, up to 10 footage method. The Agencies agree that insurable value of the structure.’’ percent of the limit of liability on the this is one reasonable method that could Another commenter asked what dwelling, so long as the detached garage be used. Other methods may include a penalties, if any, would be imposed on is not used or held for use as a value-based method, splitting the total a lender that requires over insurance. residence, a business or for farming coverage pro rata based on replacement The Agencies note that there are no purposes. In other cases, the lender cost value, or a functionality method, penalties for over insurance under the must require the borrower to obtain requiring a higher proportional share of Act and Regulation. However, there may coverage for each building securing the coverage to those buildings that are be penalties for over-insurance under loan. The Agencies believe no further most important to the ongoing operation applicable State law. Finally, a clarification is necessary and adopt the of the borrower. The apportionment of commenter suggested that flood questions and answers as proposed. the required coverage in any particular insurance should not be required where Proposed question and answer 10 situation should reflect consideration by the collateral building is worthless and (final question and answer 13) both the lender and borrower of their would not be replaced. The Agencies illustrated how to apply the ‘‘maximum needs and risks. The Agencies believe are proposing questions 9 and 10 for limit of coverage available for the no further clarification is necessary but public comment to address the issue of

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determining insurable value for certain the statutory exemptions from the question and answer as proposed with nonresidential buildings that include mandatory flood insurance the modification described above. certain low value nonresidential requirements. Proposed question and Proposed question and answer 17 buildings. Other than a nonsubstantive answer 15 (final question and answer (final question and answer 20) revision to provide additional clarity, 18) was revised from the 1997 addressed whether a loan secured or to the Agencies adopt the question and Interagency Questions and Answers to be secured by a building in the course answer as proposed. provide greater clarity, with no intended of construction that is located or to be Proposed question and answer 14 change in substance or meaning. The located in an SFHA in which flood (final question and answer 17) Agencies did not receive any insurance is available under the Act is addressed lender considerations substantive comments and adopt the a designated loan. The proposed answer regarding the amount of the deductible question and answer as proposed. provided that a lender must make a on a flood insurance policy purchased flood determination prior to loan by a borrower. Generally, the proposed Section IV. Flood Insurance origination for a construction loan. If the guidance advised a lender to determine Requirements for Construction Loans flood determination shows that the the reasonableness of the deductible on The Agencies proposed this new building securing the loan will be a case-by-case basis, taking into account section to clarify the requirements located in an SFHA, the lender must the risk that such a deductible would regarding the mandatory purchase of provide notice to the borrower, and pose to the borrower and lender. The flood insurance for construction loans to must comply with the mandatory Agencies received nine comments erect buildings that will be located in an purchase requirements. addressing proposed question and SFHA in light of concerns raised by One financial institution commenter answer 14. Four commenters suggested some regulated lenders regarding asked whether the lender/servicer must that borrowers with low-value buildings borrowers’ difficulties in obtaining flood provide continuing flood insurance should be able to choose a deductible insurance for construction loans at the coverage where a structure in an SFHA that exceeds the value of the building time of loan origination. The Agencies covered by flood insurance is with a result that flood insurance would received a number of comments on the considered a total loss/demolished and not be required. The Act and Regulation proposed questions and answers only the land remains and the structure require flood insurance on all buildings concerning construction loans. Several is to be rebuilt. The Agencies believe at the lesser of the outstanding principal commenters asked for guidance in that if there is remaining insurable value balance of the loan or the maximum determining the appropriate amount of in the building, flood insurance should amount available under the Act. A high flood insurance for a loan secured by a continue to be maintained. If the deductible does not provide a de facto building during the course of building has no remaining insurable waiver of this requirement. One construction. This guidance is provided value, then flood insurance is not commenter suggested that the Agencies’ in the discussion of the proposed new required. Under these circumstances, position regarding not allowing a de questions and answers 9 and 10 for the total loss situation is akin to a loan facto waiver of the flood insurance public comment that addresses secured only by land located in an requirement on low-value buildings insurable value. SFHA, which is addressed in final based on the deductible amount Proposed question and answer 16 question and answer 19 discussed contradicts the NFIP’s policy of (final question and answer 19) revises above, and is not a designated loan that following the standard practice in the existing guidance to limit its scope and would require flood insurance coverage. financial industry of allowing lenders to explained that a loan secured only by If the building is a total loss/demolished dictate the amount of the deductible land located in an SFHA is not a and has no remaining insurable value, according to the authority found in the designated loan that would require but a new structure is going to be built loan agreement. Other commenters flood insurance coverage. The Agencies in its place, it should be treated like a stated that a lender should not be received one comment addressing this new construction loan as discussed required to determine deductibles on a question and answer from a financial below in proposed question and answer case-by-case basis but rather through institution commenter that asked 19 (final question and answer 22). To adoption of credit guidelines that apply whether a loan secured by developed the extent that any new structure that across-the-board to all loans. In general, land without a structure on it, which, will be built is, or will be, located in an the Agencies agree that lenders may during the course of the loan, will not SFHA, then the lender must provide adopt credit guidelines that apply to have any structure on it, necessitates a notice to the borrower, and must most loans. However, such guidelines flood determination as it is considered comply with the mandatory purchase cannot work to waive the flood residential real estate. The Agencies requirements as outlined in proposed insurance requirements of the Act and believe that the commenter has raised a questions and answers 18 and 19 (final Regulation. Finally, one commenter valid point and have revised the questions and answers 21 and 22). The suggested that the Agencies should proposed question and answer by lender can, of course, elect to maintain mention that the GSEs may have removing the reference to ‘‘raw’’ land. the flood insurance that had previously maximum allowable deductibles. The The revised question and answer been in place on the prior demolished Agencies decline to revise the question discusses loans secured only by ‘‘land.’’ structure to avoid having to monitor the and answer based on this comment Since a designated loan is a loan reconstruction as discussed below. because information about GSE secured by a building or mobile home Another financial institution requirements is outside the scope of this that is located or to be located in an commenter asked whether a building in guidance. The Agencies adopt the SFHA, any loan secured only by land the course of construction that will be question and answer as proposed. that is located in an SFHA is not a a condominium building when finished designated loan since it is not secured can be insured under a Residential Section III. Exemptions From the by a building or mobile home. In the Building Condominium Association Mandatory Flood Insurance case of this particular comment, the Policy (RCBAP) during the construction Requirements loan is not secured by either a building period. The RCBAP can be sold to a This section contains only one or mobile home; therefore, it is not a condominium association only. question and answer, which describes designated loan. The Agencies adopt the Therefore, unless the building is under

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the condominium form of ownership has been poured and/or an elevation (BFE). If the lowest floor is under BFE, with a condominium association formed certificate has been issued. Lenders then the building must be walled and at the time of construction, no RCBAP choosing this option, however, must roofed before flood insurance coverage can be written. If there is no require the borrower to have flood is available.3 The Agencies believe that condominium association, the lender insurance in place before funds are the commenter has raised a valid point should require the builder/developer to disbursed to pay for building and have clarified the proposed obtain flood insurance under the NFIP construction on the property securing question and answer accordingly. The General Property form or private the loan (except as necessary to pour the Agencies otherwise adopt the question equivalent. If the building will be a slab or perform preliminary site work). and answer as proposed. residential condominium, then the A lender who elects this approach and The Agencies also proposed new lender must require flood insurance to does not require flood insurance at loan question and answer 20 (final question meet the statutory requirements, up to origination must have adequate internal and answer 23) to clarify whether the the $250,000 flood insurance limit controls in place to ensure compliance. 30-day waiting period for an NFIP under the NFIP for an ‘‘other Moreover, lenders must still ensure that policy applies when the purchase of residential’’ building. the required flood determination is flood insurance is deferred in Finally, a loan servicer commenter completed at origination and that notice connection with a construction loan asked the Agencies to clarify when flood is given to borrowers if the property is since there has been confusion among insurance coverage takes effect when a located in an SFHA. lenders on this issue in the past. Per lender opts to require flood insurance at A financial institution and a financial guidance from FEMA, the answer origination of a construction loan. This institution membership organization provided that the 30-day waiting period comment is addressed in final question commented that requiring lenders to would not apply in such cases.4 The and answer 21. The Agencies adopt the have monitoring procedures in place to NFIP would rely on the insurance final question and answer 20 as ensure that the borrower obtains flood agent’s representation that the exception proposed. insurance as soon as the foundation is applies unless a loss has occurred Proposed question and answer 18 complete or the elevation certificate during the first 30 days of the policy (final question and answer 21) issued is too burdensome. The Agencies period. The Agencies did not receive explained that, generally, a building in note that if a lender determines that this any substantive comments and adopt the course of construction is eligible for option is too burdensome they may the question and answer as proposed. coverage under an NFIP policy, and that continue the practice of requiring flood coverage may be purchased prior to the insurance at origination. The monitoring Section V. Flood Insurance start of construction. One financial procedures are only necessary in the Requirements for Nonresidential institution commenter asked whether event that lenders choose to require Buildings the definition of a ‘‘building’’ in the flood insurance at the time the The Agencies proposed this new proposed question and answer has the foundation pad is completed and/or the section to address the flood insurance same meaning as FEMA’s definition in elevation certificate is obtained. requirements for agricultural buildings its Mandatory Purchase of Flood Therefore, the Agencies believe that no that are taken as security for a loan, but Insurance Guidelines.2 The Agencies revision to the proposed question and that have limited utility to a farming believe that the definitions of answer is necessary. operation, and loans secured by ‘‘building,’’ as well as the definition of Several commenters, including four multiple buildings where some are ‘‘building in the course of financial institutions and a law firm that located in an SFHA and others are not. construction,’’ used by FEMA are fully advises financial institutions, asked the Six commenters suggested that this consistent with the definition in the Agencies for clarification regarding the section should be broadened to include Regulation. The Agencies adopt the ‘‘timing’’ options available for all nonresidential buildings, including question and answer as proposed with determining whether flood insurance is multiple nonresidential buildings over a only minor clarifications to the citation required for buildings in the course of large geographic area, not just those of FEMA’s Flood Insurance Manual. construction, that is, the foundation related to agriculture. The Agencies Proposed question and answer 19 alone and/or the issuance of an concur and have changed the title to (final question and answer 22), elevation certificate. Either the pouring section V to read ‘‘Flood Insurance addressed when flood insurance must of the foundation slab or the issuance of Requirements for Nonresidential be purchased for buildings under the an elevation certificate provides Buildings’’ and modified proposed course of construction. The answer sufficient information for a lender to questions and answers 21 and 22 (final provided lenders with flexibility determine whether the collateral question and answers 24 and 25) regarding the timing of the mandatory building is located in an SFHA for accordingly. Several commenters asked purchase requirement for construction which flood insurance is required. The for guidance in determining the loans in response to concerns raised by Agencies believe that no further appropriate amount of flood insurance lenders that borrowers have elaboration is necessary to address this for loans secured by a nonresidential issue in the question and answer. encountered difficulties in obtaining building, particularly for nonresidential Finally, one individual commenter flood insurance for construction loans at buildings of low to no value. The indicated that it is unclear whether an the time of origination. Specifically, the Agencies are proposing questions 9 and Agencies proposed to permit lenders to NFIP policy can be purchased before two walls and a roof have been erected. 10 for public comment to address the allow borrowers to defer the purchase of issue of determining insurable value for flood insurance until a foundation slab FEMA guidance provides that buildings yet to be walled and roofed are generally certain nonresidential buildings that include certain low value nonresidential 2 eligible for coverage after an elevation FEMA, Mandatory Purchase of Flood Insurance buildings. Guidelines (September 2007) at GLS—1–2. FEMA certificate is obtained or a foundation has made this booklet available electronically at slab is poured, except where either http://www.fema.gov/library/ 3 FEMA, Mandatory Purchase of Flood Insurance viewRecord.do?id=2954. Hard copies are available construction is halted for more than 90 Guidelines, at 30–31. by calling FEMA’s Publication Warehouse at (800) days or if the lowest floor used for rating 4 FEMA, Mandatory Purchase of Flood Insurance 480–2520. purposes is below Base Flood Elevation Guidelines, at 30.

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Proposed question and answer 21 commenter also asked the Agencies to flood insurance. Finally, a commenter (final question and answer 24) explain the rationale for treating hazard suggested that the Agencies modify the explained that all buildings taken as insurance and flood insurance second to last sentence in the answer to security for a loan and located in an differently. The reason for treating flood refer to ‘‘improved property securing the SFHA require flood insurance. The insurance and hazard insurance loan’’ rather than ‘‘designated loan.’’ question and answer also explained that differently is that flood insurance The Agencies have deleted this sentence lenders may consider ‘‘carving out’’ a includes coverage for the repair or entirely as it is not needed to answer the building from the security for a loan; replacement cost of the foundation and question. The Agencies adopt the however, it may be inappropriate for supporting structures whereas hazard question and answer with the credit risk management reasons to do so. insurance typically does not include modifications discussed above. One commenter questioned whether coverage of the foundation. Therefore, Section VI. Flood Insurance lenders need to require flood insurance the calculation of insurable value for Requirements for Residential when the collateral is only a building flood insurance includes these repair or Condominiums (in the commenter’s case, a grain bin) replacement costs while the calculation and not the real property where the of insurable value for hazard insurance The Agencies proposed this new building is located. Further, the does not. section to address flood insurance commenter stated that they only use a Lastly, a commenter suggested that requirements for residential UCC fixture filing to secure the the Agencies include additional condominiums. The proposed section building. Flood insurance is required for questions and answers about other contained two previously existing any building taken as collateral when problems that arise between lenders and questions and answers, which were that building is located in an SFHA in insurance companies, such as insurance modified and expanded, and five new a participating community. This companies requiring higher amounts of questions and answers. The Agencies requirement is not predicated on coverage than the appraised value of a received numerous comments whether the underlying real estate is structure of minimal value. The amount addressing this section. also included in the loan collateral or of flood insurance required by the Act A number of commenters addressed the method used by the lender to secure is the lesser of the outstanding principal the 2007 FEMA requirement that its collateral. FEMA answered the balance of the loan, the maximum insurance companies providing a question of whether a grain bin is a allowed under the Act, or the insurable Residential Building Association Policy building by specifically including a value. The appraised market value of (RCBAP) include the replacement cost grain bin in its definition of a the structure is not a factor in value of the condominium building and nonresidential building, therefore flood determining the amount of required the number of units in the building on insurance is required.5 insurance. The Agencies adopt question the declaration page.6 Two commenters A commenter stated that if the value and answer 21 with the changes made suggested that the Agencies should of a building is worthless or nearly zero to include all nonresidential buildings enforce this requirement over all then flood insurance should not be and not just agricultural buildings. insurance companies. The Agencies required. The Act requires all buildings Proposed question and answer 22 strongly support this FEMA located in an SFHA and in a (final question and answer 25) requirement; however, the Agencies participating community to have flood addressed the flood insurance may only enforce the requirement insurance with only two exemptions— requirements for multiple agricultural against those entities over which the when a building is State-owned and buildings located throughout a large Agencies have jurisdiction. covered by self-insurance satisfactory to geographic area, some in an SFHA and Proposed question and answer 23 the Director of FEMA; and when the some not. One commenter suggested (final question and answer 26) original loan balance is $5,000 or less that the Agencies modify the first explained that residential and the original repayment term is one sentence in the proposed answer to refer condominiums were subject to the year or less. All other buildings are to ‘‘improved property’’ rather than statutory and regulatory requirements required to be covered by flood ‘‘property.’’ The Agencies concur with for flood insurance. The Agencies insurance. The Agencies are proposing this recommendation and have inserted received only one comment addressing questions 9 and 10 for public comment ‘‘improved real estate’’ in the place of this question and answer, which was in to address the issue of determining the term ‘‘property’’ throughout the agreement with the guidance. The insurable value for certain answer. The term ‘‘improved real Agencies adopt the question and answer nonresidential buildings that include estate,’’ instead of the suggested as proposed. certain low value nonresidential ‘‘improved property,’’ was added One commenter suggested that an buildings. because it is the term used in the Act. RCBAP should be described in a Another commenter suggested that in A commenter asked the Agencies to separate question and answer in this determining ‘‘insurable value,’’ address the situation where an section. Although the RCBAP was institutions should be permitted to insurance company requires flood described within the proposed place good faith reliance on insurance insurance on all buildings on the questions and answers, the Agencies agents who are better equipped to make property, not just those inside an SFHA have compiled the information from these determinations. Federally and another commenter asked the proposed questions and answers 24 and regulated lenders may solicit assistance Agencies to mention that a lender can 25 into new question and answer 27 to when evaluating insurable value and require flood insurance on buildings not specifically describe an RCBAP, and this assistance could include an located in an SFHA. The Act does not renumbered the remaining questions insurance professional. However, it is prohibit a lender from requiring more and answers accordingly. ultimately the lender’s responsibility to flood insurance than the minimum Proposed question and answer 24 determine the insurable value of a required by the Act; a lender may have (final question and answer 28) building and, as such, it must concur legitimate business reasons for requiring more flood insurance than that required 6 FEMA Memorandum for Write Your Own with the determination. The same (WYO) Principal Coordinators and NFIP Servicing by the Act and neither the Act nor the Agent (Apr. 18, 2004) (subject: Oct. 1, 2007 Program 5 FEMA, Flood Insurance Manual, GR 2. Regulation prohibits this additional changes).

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discussed the amount of flood insurance under the Act, is the appropriate guidance. The Agencies have revised that a lender must require with respect insurable value for a condominium the proposed question and answer to residential condominium units to building and that an RCBAP with that accordingly. The Agencies anticipate comply with the mandatory purchase coverage would meet the mandatory that the universe of loans affected by requirements under the Act and the purchase requirement for an individual this policy will be relatively small and Regulation. The Agencies received a unit borrower. The 1997 Interagency diminishing due to refinancing and number of comments addressing various Questions and Answers stated that other loan prepayments that typically aspects of this question and answer. RCBAP coverage of 80 percent of occur in the first five years of a home Several commenters suggested that replacement cost value was sufficient to mortgage. lenders should be able to rely on the meet the mandatory purchase Proposed question and answer 25 replacement cost value and number of requirement. Because of this change in (final question and answer 29) units provided on the declaration page policy, commenters urged the Agencies addressed what a lender that makes a of the RCBAP in determining the to ensure that the new guidance will loan on an individual condominium insurable value of a condominium unit. apply only prospectively. Consistent unit must do if there is no RCBAP The Agencies generally agree that a with the stated intention in the March coverage. Three commenters addressed lender may rely on the replacement cost 2008 Proposed Interagency Questions this question and answer. One value and number of units provided on and Answers, the Agencies intend that commenter suggested that, in the the declaration page unless it has reason this guidance will apply to any loan that example, the Agencies should clarify to believe that such amounts conflict is made, increased, extended, or that the amount of insurance required is with other available information. If renewed on or after the effective date of the ‘‘minimum amount’’ because that there is a conflict, the lender should these Interagency Questions and value ($175,000) is based on the notify the borrower of the facts that Answers. principal amount of the loan, which is cause the lender to believe there is a The Agencies had previously less than either the insurable value of conflict. If the lender believes that the indicated in the SUPPLEMENTARY the unit ($200,000) or the maximum borrower is underinsured, it should INFORMATION to the March 2008 amount available in a dwelling policy require the purchase of a Dwelling Proposed Interagency Questions and ($250,000). In response to this comment, Policy for supplemental coverage. The Answers that the new guidance would the Agencies have added the qualifier Agencies have modified the question apply to a loan made prior to the ‘‘at least’’ before the amount of $175,000 and answer accordingly. effective date of this guidance, but only to clarify that $175,000 is the minimum Several commenters asked about other as of the first flood insurance policy amount of insurance that must be types of valuation information that may renewal following the effective date of required. As in other situations, a lender be appropriate to use in determining the the guidance. Three commenters asked may require additional coverage. insurable value of a condominium unit the Agencies to reconsider this position. Another commenter asked whether a when the insurance provider does not The commenters asserted that lenders unit owner’s dwelling policy will include the replacement cost value and making loans secured by individual respond at all if there is no RCBAP on number of units on the RCBAP’s condominium units generally do not the condominium building. Although declaration page. While the Agencies receive RCBAP renewal notifications this is a general insurance question that believe that the question and answer from the insurance providers; therefore, is outside the Agencies’ purview, FEMA does not require further elaboration on the lender may not be in a position to guidance provides that, when there is this point, the Agencies note that make a determination at the first RCBAP no RCBAP coverage on the consistent with safe and sound lending renewal period following the effective condominium building, the unit practices, lenders should maintain date of this guidance. owner’s dwelling policy will respond to information about the value of their Lenders are required to ensure that losses to improvements owned by the collateral. Even if the insurance designated loans are covered by flood insured and to assessments charged by provider does not include the insurance for their term. However, the the condominium association, up to the replacement cost value of the Agencies recognize that lenders made building coverage limits of the dwelling condominium building and the total loans and required coverage amounts in policy purchased.7 Finally, one other number of units on the declaration page, reliance on the previous guidance. commenter suggested that, when a lenders typically have other sources of Therefore, the Agencies have agreed that condominium association refuses to valuation information, including cost- the revised guidance will not apply to purchase an RCBAP, the lender should approach appraisals, automated any loan made prior to the effective date refuse to make a loan to a unit owner valuation systems, and tax assessments. of this guidance unless a trigger event because the unit owner’s dwelling Further, many lenders’ policies and occurs in connection with the loan (that policy is not adequate to protect the procedures include obtaining specific is, the loan is refinanced, extended, lender. The Agencies agree that there is documentation related to condominium increased, or renewed). Because the risk to the lender in accepting a collateral that may provide information Agencies provided supervisory dwelling policy as protection for the about the condominium’s insurable guidance that stated that an RCBAP value, including copies of condominium with coverage at 80 percent of collateral. However, this is a risk that master insurance policies or the replacement cost value was sufficient, the lender must weigh. Such policy, declaration pages of such policies. The any loan for a condominium unit however, does fulfill the mandatory Agencies generally will not criticize a relying on an RCBAP with coverage that purchase requirement. The Agencies lender that, in good faith, has used a complied with that guidance was in have amended the proposed question reasonable method to determine the compliance at the time it was made. and answer to include additional insurable value. Absent a new trigger event, the discussion on dwelling policies in Several commenters agreed that Agencies, therefore, will not require response to these comments. The RCBAP coverage written at replacement lenders to ensure that RCBAP coverage 7 See FEMA, Mandatory Purchase of Flood cost value, assuming that value is less is increased to 100 percent on Insurance Guidelines at 48–49; FEMA Flood than the outstanding principal amount previously compliant loans made prior Insurance Manual at p. POL 8 (FEMA’s Flood of the loan or the maximum available to the effective date of this new Insurance Manual is updated every six months).

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Agencies otherwise adopt the question determination that the RCBAP has approved line of credit secured by and answer as proposed. expired, then the lender will be required property located in an SFHA requires Proposed question and answer 26 to follow the procedure outlined in final flood insurance. Nine commenters (final question and answer 30) question and answer 28 and discussed questioned the statement that a discussed what a lender must do if the above. The Agencies adopt the question designated loan requires a flood condominium association’s RCBAP and answer as proposed. determination when application is made coverage is insufficient to meet the Proposed question and answer 28 for that loan. The commenters noted mandatory purchase requirements for a (final question and answer 32) provided that under the Act and Regulation, a loan secured by an individual examples of how the co-insurance lender or its servicer is responsible for residential condominium unit. Several penalty applies when an RCBAP is performing a flood determination upon commenters suggested changes to purchased at less than 80 percent of the making, increase, extension, or FEMA’s flood insurance policies. It is replacement cost value, unless the renewal of a loan, and not when a loan beyond the Agencies’ jurisdiction to amount of coverage meets the maximum application is submitted. They further address these suggestions, which are coverage of $250,000 per unit. Two noted that applications are often within the purview of FEMA. Interested commenters asked about the purpose of withdrawn and that lenders usually parties should appropriately consult this question and answer. The Agencies have a flood determination performed with FEMA concerning the actual intended this question and answer to when they are reasonably certain that operation of flood insurance policies. provide information on the topic to one of the previously listed ‘‘trigger’’ Several other commenters noted that lenders. The Agencies adopt the events (e.g., the making or increasing) the purchase of a unit owner’s dwelling question and answer as proposed. will occur. The commenters requested policy may not provide adequate Proposed question and answer 29 that this point be clarified. The coverage to the unit owner or the lender (final question and answer 33) Agencies agree with the commenters as a supplement to an RCBAP providing addressed the major factors that are and are deleting the statement that a insufficient coverage to meet the involved with coverage limitations of designated loan requires a flood mandatory purchase requirement. As the individual unit owner’s dwelling determination when application is made noted in the proposed question and policy with respect to the condominium for that loan. The Agencies otherwise answer, a dwelling policy may contain association’s RCBAP coverage. One adopt the question and answer as claim limitations; therefore, it is commenter asked the purpose of this proposed. incumbent upon a lender to understand question and answer and further Proposed question and answer 32 these limitations. asserted that lenders should not be (final question and answer 36) Several commenters also suggested required to explain to borrowers about addressed how much flood insurance is that the Agencies should not put forth the limitations in coverage. The required when a lender makes a second guidance encouraging lenders to apprise Agencies intended this question and mortgage secured by property located in borrowers that there is risk involved answer to be informative in nature and an SFHA. Six commenters argued that a when flood coverage is maintained agree that insurance professionals are in junior lienholder should not have to under a unit owner dwelling policy a better position to explain policy take senior liens into account when along with an RCBAP that does not limitations to their policyholders. The determining the required amount of provide replacement cost coverage. The Agencies adopt the question and answer flood insurance coverage. They asserted Agencies believe that although as proposed. that the current requirement causes insurance professionals are in the best substantial cost and delay, resulting in Section VII. Flood Insurance position to adequately explain the an undue burden due to the need for Requirements for Home Equity Loans, implications of such coverage, lenders either the junior lienholder or its Lines of Credit, Subordinate Liens, and should still be encouraged to alert their servicer to engage in an expensive, time- Other Security Interests in Collateral borrowers to the risk. FEMA’s brochure, consuming search for prior liens. One National Flood Insurance Program: Located in an SFHA commenter contended that the question Condominium Coverage, may provide Proposed Section VII addressed flood and answer should state that the amount some helpful information for borrowers. insurance requirements for home equity of coverage for a junior lien would be The Agencies adopt the question and loans, lines of credit, subordinate liens, 100 percent of the insurable value of the answer as proposed. and other security interests in collateral property. Alternatively, the same Proposed question and answer 27 located in an SFHA. The proposed commenter suggested multiple flood (final question and answer 31) questions and answers primarily insurance policies on buildings with discussed what a lender must do when proposed only minor wording changes multiple liens as a means to address the it determines that a loan secured by a or clarifications to questions and problem. On the other hand, one residential condominium unit is in a answers in the 1997 Interagency commenter believed that the question complex with a lapsed RCBAP. One Questions and Answers without any and answer should remind lenders to commenter requested that the Agencies change in the substance or meaning. add secondary loans to any existing provide more guidance on the steps a Several commenters addressed flood insurance policy’s mortgagee lender should take to determine if there questions and answers in this section. clause. Three commenters requested is a lapse in existing RCBAP coverage. Proposed question and answer 30 more guidance on how and when a As mentioned above, the Agencies are (final question and answer 34), lienholder should determine the value aware that, generally, a lender that is the addressed when a home equity loan is of any other liens on improved mortgagee of a unit owner’s loan would considered a designated loan that collateral property. One of these not receive notice that the requires flood insurance. The Agencies mentioned closing or upon renewal of a condominium association’s RCBAP has did not receive any substantive loan as two possible dates for such expired. However, if a trigger event comments and adopt the question and activity. occurs (that is, the lender makes, answer as proposed. The Agencies believe that, given the increases, extends, or renews a loan to Proposed question and answer 31 provisions of an NFIP policy, a lender the borrower secured by the unit) or if (final question and answer 35), cannot comply with Federal flood the lender otherwise makes a addressed when a draw against an insurance requirements when it makes,

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increases, extends, or renews a loan by the amount of flood insurance in place partnership, association, or any other requiring the borrower to obtain NFIP on the outstanding balance of a senior organized group of persons, including flood insurance solely in the amount of lien (for example, in the context of a State and local governments and the outstanding principal balance of the loan renewal), the final question and agencies thereof. 42 U.S.C. 4121(a)(5). lender’s junior lien without regard to answer provides that the junior The Agencies do not interpret the the flood insurance coverage on any lienholder may presume that the definition as providing for the inclusion liens senior to that of the lender. As amount of insurance coverage relating to of affiliates within a corporate entity as illustrated in the examples in the the senior lien in place at the time the constituting a single ‘‘person’’ except for question and answer, a junior junior lien was first established treating a regulated lending institution lienholder’s failure to take such a step (provided that the amount of flood and its operating subsidiaries as a single can leave that lienholder partially or insurance coverage relating to the senior entity. The Agencies believe that no even fully unprotected by the lien was adequate at the time) continues further revision of the question and borrower’s NFIP policy in the event of to be sufficient. answer is appropriate on this point. The a flood loss. The Agencies have revised the Agencies adopt the question and answer The final question and answer proposed question and answer to as proposed subject to the revisions provides that a junior lienholder should respond to these comments. The discussed above. work with the borrower, senior question and answer also provides Proposed question and answer 34 lienholder, or both these parties, to examples illustrating the application of (final question and answer 38) determine how much flood insurance is these methods of dealing with adequate addressed the issue of whether a loan needed to adequately cover the flood insurance coverage for junior and secured by inventory stored in a improved real estate collateral to the senior liens. Specifically, the examples building located in an SFHA, when the lesser of the total of the outstanding illustrate how a junior lienholder building is not collateral for the loan, principal balances on the junior loan should handle situations such as: when requires flood insurance. One and any senior loans, the maximum a senior lienholder has obtained an commenter asked what sort of legal available under the Act, or the insurable inadequate amount of flood insurance instrument would have to be filed by a value of the structure. The junior coverage, when a senior lienholder is lender to result in the need for flood lienholder should also ensure that the not subject to the Act’s and Regulation’s insurance coverage for a borrower’s borrower adds the junior lienholder’s requirements; and when insurance contents. The Agencies decline to name as mortgagee/loss payee to an coverage in the amount of the improved respond to this inquiry because it existing flood insurance policy. real estate’s insurable value must be involves a business and legal decision The final question and answer also obtained by the junior lienholder. beyond the interpretation of the Act and provides that a junior lienholder should Commenters also raised other issues Regulation. The Agencies adopt the obtain the borrower’s consent in the related to ongoing flood insurance question and answer as proposed. loan agreement or otherwise for the coverage on existing second lien loans Proposed question and answer 35 junior lienholder to obtain information in the context of force placement. The (final question and answer 39) on balance and existing flood insurance final question and answer addresses the addressed flood insurance requirements coverage on senior lien loans from the triggering events of making, increasing, when building contents are security for senior lienholder. Commenters also extending, and renewing a second lien a loan. Seven commenters requested contended that privacy concerns make it loan. further guidance and clarification on difficult for junior lienholders to obtain Proposed question and answer 33 how to calculate flood insurance information from servicers or lenders (final question and answer 37) contents coverage in compliance with about loan balances and existing flood addressed flood insurance requirements Federal regulation. Five commenters insurance coverage. However, the in connection with home equity loans specifically requested that the Agencies Agencies have determined that the secured by junior liens. Ten give examples to illustrate how flood privacy provisions of the Gramm-Leach- commenters requested that the question insurance coverage works for building Bliley Act, as implemented in the and answer be clarified to address other and contents. Two commenters asked Agencies’ regulations, do not prohibit subordinate lien loans, not just junior whether a lender should consider the sharing of the loan and flood insurance lien home equity loans. The Agencies total amount of coverage for both information between two lenders with agree with the commenters and, contents and building together or liens on the same property, even therefore, have revised the question and should consider the two separately. One without the borrower’s consent. answer to clarify that it applies to all commenter asked whether a lender One commenter noted that it is subordinate lien loans. could do the same with contents and sometimes difficult to obtain Another commenter recommended building coverage as is the practice with information about the outstanding that the ‘‘same lender’’ exception also coverage for multiple buildings, that is, principal balance of other liens once a apply to a lender’s affiliates. The Act the contents and building will be loan has been closed, such as at loan provides that a person who increases, considered to have a sufficient amount renewal, and asked what steps might be extends, renews, or purchases a loan of flood insurance coverage for taken in that regard. The final question secured by improved real estate or a regulatory purposes as long as some and answer states that junior mobile home may rely on a previous amount of insurance is allocated to each lienholders have the option of obtaining determination of whether the building category. a borrower’s credit report to establish or mobile home is located in an area The Agencies agree that the practice the outstanding balances of senior liens having special flood hazards, if the for flood insurance coverage for on property to aid in determining how previous determination was made no multiple buildings would also be much flood insurance is necessary upon more than seven years before the date of applicable to coverage for both contents increasing, extending or renewing a the transaction and there have been no and building. That is, both contents and junior lien. subsequent map revisions. 42 U.S.C. building will be considered to have a In the limited situation where a junior 4104b(e). The Act further defines the sufficient amount of flood insurance lienholder or its servicer is unable to term ‘‘person’’ to include any individual coverage for regulatory purposes as long obtain the necessary information about or group of individuals, corporation, as some reasonable amount of insurance

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is allocated to each category. The elaboration is necessary and adopt these renews a designated loan, it must also Agencies have added an example to this questions and answers as proposed. comply with the Act and Regulation. question and answer to illustrate this The Agencies otherwise adopt the Section VIII. Flood Insurance point. The Agencies otherwise adopt the question and answer as proposed. Requirements in the Event of the Sale or question and answer as proposed. Proposed question and answer 42 Proposed question and answer 36 Transfer of a Designated Loan and/or Its (final question and answer 45), (final question and answer 40), Servicing Rights addressed when a lender is required to addressed the flood insurance Proposed Section IX (final Section notify FEMA or the Director’s designee. requirements applicable to collateral or VIII) addressed flood insurance Proposed question and answer 43 (final contents that do not secure a loan. The requirements in the event of the sale or question and answer 46), addressed Agencies did not receive any transfer of a designated loan and/or its whether a RESPA Notice of Transfer substantive comments and adopt it as servicing rights. This section and the sent to the Director of FEMA satisfies proposed. accompanying questions and answers the Act and Regulation. The Agencies Proposed question and answer 37 were originally adopted in the 1997 received one comment that was (final question and answer 41) Interagency Questions and Answers, supportive of these proposed questions addressed the Regulation’s application and any changes proposed by the and answers. The Agencies adopt the where a lender places a lien on property Agencies in the March 2008 Proposal questions and answers as proposed. out of an ‘‘abundance of caution.’’ One were designed to provide greater clarity Proposed question and answer 44 commenter recommended that flood with no intended change in substance (final question and answer 47), insurance coverage should not be and meaning. The comments received indicated that delivery of the notice can required when an interest is taken by a by the Agencies regarding the questions be made electronically, including by lender in improved real estate in a flood and answers in this section were batch transmission if acceptable to the hazard zone out of an ‘‘abundance of generally supportive. Director or the Director’s designee. The caution.’’ Proposed question and answer 41 Agencies did not receive any The Agencies decline to accept this (final question and answer 44) substantive comments and adopt this recommendation. The Act provides that addressed the application of the flood question and answer as proposed. a lender may not make, increase, insurance requirements under the Proposed question and answer 45 extend, or renew any loan secured by Regulation to lenders/loan servicers (final question and answer 48) indicated improved real estate or a mobile home under different scenarios. Upon that if a loan and its servicing rights are in a flood hazard area unless the consideration of the various comments, sold by the lender, the lender is building or mobile home is covered for the Agencies have clarified the question required to provide notice to the FEMA the term of the loan by flood insurance. and answer to apply to both regulated Director or the Director’s designee. The 40 U.S.C. 4012a(b)(1). The statute makes and nonregulated lenders. One Agencies received one comment that no exception for property taken as commenter was supportive of the was supportive of the proposed question collateral by a lender out of an guidance, but recommended that and answer. The Agencies adopt the abundance of caution. The Agencies lenders be allowed to assign a certain question and answer as proposed. adopt the question and answer as level of responsibility for flood Proposed question and answer 46 proposed. insurance compliance through (final question and answer 49), Proposed question and answer 38 contractual arrangements to the servicer. indicated that a lender is not required (final question and answer 42) The commenter asserted that this to provide notice when the servicer, not addressed loans secured by a note on a approach would not absolve lenders of the lender, sells or transfers the single-family dwelling, but not the liability and ultimate responsibility, but servicing rights to another servicer; dwelling itself. Proposed question and would make for a less burdensome and rather the servicer is obligated to answer 39 (final question and answer logical approach. The Agencies believe provide the notice. Proposed question 43) pertained to loans personally that the lender’s responsibilities are and answer 47 (final question and guaranteed by a third party who gave sufficiently clear in the question and answer 50) indicated that in the event the lender a security interest in answer and that further elaboration on one institution is acquired by or merges improved real estate owned by the this point is unnecessary. with another institution, the duty to guarantor. One commenter stated that Another commenter asked that the provide the notice for loans being the two proposed questions and answers Agencies expressly indicate that no serviced by the acquired institution falls conflicted. The Agencies do not believe servicing obligations need be followed to the successor institution if there is a conflict between the two by a lender who has sold both the loan notification is not provided by the questions and answers. In the former and the servicing rights to a acquired institution prior to the question and answer, the Agencies nonregulated party. The Agencies have effective date of the acquisition or concluded that Federal flood insurance elected to clarify in the answer that once merger. The Agencies received one requirements did not apply because the the regulated lender has sold the loan comment that was supportive of these loan was not secured by improved real and the servicing rights, the lender has proposed questions and answers. The estate, but was instead secured by a no further obligation regarding flood Agencies adopt the questions and note. In the latter question and answer, insurance on the loan. The Agencies answers as proposed. the lender was given a security interest have also elected to clarify in the in improved real estate by a third party answer that, depending upon the Section IX. Escrow Requirements in connection with the third party circumstances, safety and soundness Proposed Section X (final Section IX) providing a personal guarantee on a considerations may sometimes addressed escrow requirements for flood loan. In each situation, the absence or necessitate that the lender undertake insurance premiums. This section and presence of a security interest in sufficient due diligence upon purchase the accompanying questions and improved real estate determined of a loan as to put the lender on notice answers were originally adopted in the whether Federal flood insurance of lack of adequate flood insurance. 1997 Interagency Questions and requirements would apply. The Moreover, if the purchasing lender Answers, and any changes proposed by Agencies believe that no further subsequently extends, increases, or the Agencies were designed to provide

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greater clarity with no intended change escrow requirements apply. The regardless of whether the lender makes in substance and meaning. The Agencies otherwise adopt the question a loan for the purchase or refinance of Agencies received few comments on and answer as proposed. a condominium unit, an escrow account this section. Proposed question and answer 49 is not required if dues to the Proposed question and answer 48 (final question and answer 52) condominium association apply to the (final question and answer 51), addressed when escrow accounts must RCBAP premiums. The proposed addressed when multifamily buildings be established for flood insurance question and answer only addressed and mixed-use properties are purposes and indicated that escrow purchase loans; however, the Agencies considered residential real estate. A accounts should look to the definition of agree with the commenter that the same financial institution commenter ‘‘Federally related mortgage loan’’ principle should apply to refinancings. requested two clarifications. First, the contained in the Real Estate Settlement The Agencies, therefore, are clarifying commenter noted that the proposed Procedures Act (RESPA) to see whether the question and answer to provide that answer indicated that lenders are a particular loan is subject to RESPA’s when a lender makes, increases, renews, required to escrow flood insurance escrow requirements. The Agencies did or extends a loan secured by premiums and fees for any mandatory not receive any substantive comments condominium unit that is adequately flood insurance for designated loans if on the proposed question and answer; covered by an RCBAP, and dues to the the lender requires the escrow of taxes, however, the Agencies made condominium association apply to the hazard insurance premiums, ‘‘or other nonsubstantive revisions to the answer RCBAP premiums, an escrow account is loan charges’’ for loans secured by to more directly respond to the question not required. However, if the RCBAP residential improved real estate. The asked and to provide additional clarity. coverage is inadequate and the unit is commenter questioned whether lenders The Agencies received no comments also covered by a dwelling form policy, are required to escrow flood insurance on proposed questions and answers 50 premiums for the dwelling form policy premiums and fees for any mandatory and 51 (final questions and answers 53 would need to be escrowed. The flood insurance for designated loans if and 54 respectively). Proposed question Agencies otherwise adopt the question the lender requires the escrow of and answer 50 (final question and and answer as proposed. mortgage insurance premiums. The answer 53) indicated that voluntary Agencies believe that escrowing flood escrow accounts established at the X. Force Placement of Flood Insurance insurance premiums and fees for request of the borrower do not trigger a Proposed Section XI (final Section X) mandatory flood insurance for requirement for the lender to escrow addressed issues concerning the force designated loans is required by the Act premiums for required flood insurance. placement of flood insurance. This and Regulation where the lender Proposed question and answer 51 (final section and the accompanying questions requires the escrowing of mortgage question and answer 54) indicated that and answers were originally adopted in insurance premiums. The Act and premiums paid for credit life insurance, the 1997 Interagency Questions and Regulation require escrowing if a disability insurance, or similar Answers and any changes proposed by regulated lending institution requires insurance programs should not be the Agencies in March 2008 were the escrowing of ‘‘taxes, insurance viewed as escrow accounts requiring the designed to provide greater clarity with premiums, fees, or any other charges.’’ escrowing of flood insurance premiums. no intended change in substance and Mortgage insurance is a form of The Agencies did not receive any meaning. insurance. It is also an ‘‘other charge’’ substantive comments on these The Agencies received several under the Regulation. To provide greater questions and answers and adopt them comments on proposed question and consistency with the Act and as proposed. answer 54 (final question and answer Regulation, the Agencies are inserting Proposed question and answer 52 57), which provided general guidance the word ‘‘any’’ into the answer so that (final question and answer 55) advised on the force placement requirement it refers to taxes, insurance premiums, that only certain escrow-type accounts under the Act and Regulation. Six fees, ‘‘or any other charges.’’ for commercial loans secured by commenters requested further guidance The commenter also asked the multifamily residential buildings trigger regarding the exact point at which Agencies to expressly state in the the escrow requirement for flood lenders must commence the force answer that a lender is not required to insurance premiums. The Agencies did placement process. Similarly, escrow flood insurance premiums if it not receive any substantive comments commenters requested clarification as to chooses to make an exception on a loan- and adopt this question and answer as precisely when the 45-day notice period by-loan basis not to escrow other items proposed. begins after which a lender or its such as taxes, hazard insurance Proposed question and answer 53 servicer must force place insurance. One premiums, or other loan charges. In (final question and answer 56) of these commenters specifically asked response, the Agencies have added a addressed escrow requirements for the Agencies to clarify whether sentence to the answer providing that a condominium units covered by insurance is required 45 days from the lender is not required to escrow flood RCBAPs. The Agencies received several date the institution received the insurance premiums and fees for a comments on this question and answer. cancellation notice, the date of particular loan if it does not require Two financial institution commenters cancellation on that notice, or the date escrowing of any other charges for that reiterated their comments pertaining to that the borrower receives notice from loan. proposed question and answer 24 (final the lender or servicer. One commenter Finally, because the Agencies are question and answer 28) that lenders or requested clarification from the adopting questions and answers servicers of a loan to a condominium Agencies whether the 45-day notice providing examples of residential and unit owner do not receive a copy of the could be sent prior to the actual date of nonresidential properties, the RCBAP renewal information because expiration of flood insurance coverage. discussion of mixed-use properties has they are not loss payees on the policy. As discussed in the proposed been revised to refer the reader to those This comment was addressed in the question and answer, the Act and questions and answers. If the primary SUPPLEMENTARY INFORMATION pertaining Regulation require the lender, or its use of a mixed-use property is for to Section VI above. A financial servicer, to send notice to the borrower residential purposes, the Regulation’s institution requested clarification that upon making a determination that the

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improved real estate collateral’s of insurance coverage. Assuming clarifications based upon this comment, insurance coverage has expired or is less notification is made immediately upon but otherwise adopt the question and than the amount required for that policy cancellation or nonrenewal, answer as proposed. particular property, such as upon coverage will continue in place for the The Agencies received comments receipt of the notice of cancellation or lender/mortgagee’s benefit for 30 days of regarding terminology used in this expiration from the insurance provider. the 45-day notice period. To cover the section. Specifically, two commenters The notice to the borrower must also risk during the remaining 15-day ‘‘gap,’’ took exception to the use of the term state that if the borrower does not obtain lenders may purchase private flood ‘‘force placement,’’ arguing that the term the insurance within the 45-day period, insurance to cover the collateral conveys an incorrect impression that the the lender will purchase the insurance property, as discussed further in section borrower is being forced to accept the on behalf of the borrower and may XI below regarding private insurance purchase of flood insurance coverage charge the borrower for the cost of policies. Lenders in these situations, when the reverse of the situation premiums and fees to obtain the often purchase what is known in the applies. These commenters suggested coverage. The Act does not permit a insurance industry as a ‘‘30-day that the alternative term ‘‘lender lender or its servicer to send the binder,’’ a form of temporary private placed’’ should be used instead. The required 45-day notice to the borrower insurance. The insurance provided by current term ‘‘force placement’’ is used prior to the institution’s making a such a binder will cover the 15-day gap in the Regulation. Moreover, the term determination that flood insurance is and the 15 days subsequent to the end has been widely used since the insufficient or lacking (for example, the of the notice period. Because these enactment of the National Flood actual expiration date of the flood issues lie outside the scope of the Insurance Reform Act of 1994. Changing insurance policy). If adequate insurance Agencies’ purview, however, the the term may cause confusion. For this is not obtained by the borrower within Agencies decline to include this reason, the Agencies decline to accept the 45-day period, then the insurance guidance in the question and answer. this suggested change. must be obtained by the lender on One commenter contended that one of Another commenter recommended behalf of the borrower. the criteria for force placement in that ‘‘lender single interest policies’’ Another commenter stated that if a proposed question and answer 54 (final should not be allowed and should be lender decides to pay a borrower’s question and answer 57) should be considered in violation of the legal current policy premium, this should not changed from ‘‘[t]he community in requirements of the Act and Regulation be considered to be purchasing a force which the property is located since they are not purchased on the placed policy. The Agencies agree that participates in the NFIP’’ to ‘‘flood borrower’s behalf and do not offer the it is within a lender’s discretion to insurance under the Act is available for same or better policy terms to the absorb the costs of a borrower’s flood improved property securing the loan,’’ borrower. As discussed in further detail insurance policy anytime during the because properties may also be in in the discussion to section XI below, term of the designated loan. This should Coastal Barrier Resource Areas, private insurance policies may only be not, however, eliminate the borrower’s Otherwise Protected Areas, or areas considered an adequate substitute for an opportunity to obtain appropriate flood designated under section 1316 of the SFIP if the policy meets the criteria set insurance coverage, especially during Flood Act. The Agencies have revised forth by FEMA, including the the 45-day period after receiving a force final question and answer 57 to reflect requirement that the coverage be as placement notice from the lender. The this requested change. Another broad as an SFIP. The Agencies have Agencies revised proposed question and commenter asked whether the citation declined to address this comment answer 54 (final question and answer to ‘‘Appendix A of the FEMA specifically because it is believed that 57) to address these commenters’ points. publication’’ in proposed question and the comment is addressed by the general The Agencies also received questions answer 54 was a reference to the guidance in section XI. from commenters regarding coverage immediately previously cited FEMA In response to comments received during the 45-day notice period. Two procedures that were published in the regarding the force placement of flood commenters asked how to ensure that Federal Register. The Agencies have insurance, the Agencies are proposing collateral property is protected against revised final question and answer 57 to three new questions and answers (60, flood damage during the 45-day notice clarify the citation. 61, and 62), which are discussed in the period prior to actual force placement. Proposed question and answer 55 SUPPLEMENTARY INFORMATION Another commenter asked for more (final question and answer 58), immediately following the explanation about the coverage that addressed whether a servicer can force Redesignation Table, to be added to continues in effect for 30 days after the place insurance on behalf of a lender. Section VII to address the following date that a Standard Flood Insurance The Agencies did not receive any force-placement issues: when the 45-day Policy (SFIP) expires under the NFIP. substantive comments and adopt the notice period should begin, how soon a Coverage under FEMA’s SFIP question and answer as proposed. lender should take action after learning continues in effect for 30 days from the Proposed question and answer 56 that improved real estate that secures a date that the SFIP lapses. An SFIP (final question and answer 59) loan is uninsured or underinsured, and specifically provides that, if the insurer addressed the amount of insurance whether a borrower may be charged for decides to cancel or not renew a policy, required when force placement occurs. the cost of flood insurance coverage it will continue in effect for the benefit The Agencies received one comment during the 45-day notice period. of only the mortgagee for 30 days after suggesting that the proposed answer to the insurer notifies the mortgagee of the proposed question 56 not only cross- XI. Private Insurance Policies cancellation or nonrenewal. No reference Section II of the Interagency Proposed Section XII (final Section coverage will be provided for a borrower Questions and Answers, but also refer to XI) addressed the appropriateness of gap under the SFIP during this 30-day Section VII, because proposed question or blanket insurance policies, often period. If a lender monitors a mortgage and answer 36 in that section pertains purchased by lenders to ensure loan with respect to the need for flood to the required amount of flood adequate life-of-loan flood insurance insurance coverage, the lender can time insurance for home equity loans. The coverage for designated loans. The the 45-day period to start with the lapse Agencies have made minor proposed answer to question 57 (final

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question and answer 63) explained, differences between the private out the respective uses of the SFHDF generally, that gap or blanket insurance insurance policy and an NFIP Standard and the borrower notification form. is not an adequate substitute for NFIP Flood Insurance Policy, those Information about the notice of special insurance. The proposed answer, differences must be evaluated carefully flood hazards may be found in section however, did acknowledge that in by the lender to determine whether the XV. The commenter also suggested that limited circumstances, a gap or blanket policy would provide sufficient the Agencies should amend the policy may satisfy flood insurance protection under the Act and proposed answer to provide that the obligations in instances where NFIP and Regulation. Lenders must consider the SFHDF must be used by the lender to private insurance for the borrower are suitability of a private insurance policy determine if the ‘‘improved’’ property otherwise unavailable. only when the mandatory purchase securing the loan is located in an SFHA. The Agencies received several requirements apply. Therefore, if the The Regulation specifically provides comments regarding the proposed Act or Regulation does not require the that a lender must make a flood hazard question and answer. Some industry purchase of flood insurance, the lender determination and use the SFHDF when commenters argued that gap or blanket need not evaluate the policy to determining whether the ‘‘building or insurance is a cost-effective alternative determine whether it meets the criteria mobile home offered as collateral to NFIP insurance and should be set forth by FEMA. security for a loan is or will be located permitted as a substitute for NFIP The guidance proposed in March in an SFHA in which flood insurance is insurance in all cases. Other industry 2008 on the limited circumstances when available under the Act.’’ The Agencies commenters argued that gap or blanket gap or blanket policies are permissible agree that it is appropriate to revise the insurance should be permitted as a has been revised and is being addressed proposed question and answer to substitute for NFIP insurance under in a new separate question and answer conform to the language of the certain circumstances, such as for 64. The answer to final question 64 Regulation and have done so. construction loans or underinsured provides that in the event that a flood Proposed question and answer 59 properties. Still other industry insurance policy has expired and the (final question and answer 66), commenters asked the Agencies to borrower has failed to renew coverage, addressed whether a lender is required clarify the use of the terms ‘‘gap’’ and a private insurance policy that does not to provide a copy of the SFHDF to the ‘‘blanket’’ policies, noting that the meet the criteria set forth by FEMA may applicant/borrower. The Agencies common industry understanding is that nevertheless be useful in protecting the received two comments concerning the ‘‘gap’’ policies are distinguishable from lender during a gap in coverage in the proposed question and answer. The ‘‘blanket’’ policies. In particular, these period of time before a force placed commenters suggested that the answer commenters requested that the Agencies policy takes effect. However, the answer should state that the Act does not eliminate the prohibition on ‘‘gap’’ further states that the lender must force require that the lender provide the policies that are meant to cover the place NFIP-equivalent coverage in a borrower with a copy of the SFHDF. The deficiency between a borrower’s timely manner and may not rely on non- Agencies have revised the proposed coverage and the amount of insurance equivalent coverage on an on-going question and answer to note that, while required under the Act and Regulation. basis. This is consistent with guidance not a statutory requirement, a lender One industry commenter also noted that proposed in March 2008, though the may provide a copy of the flood there are different types of ‘‘gap’’ language has been modified in response determination to the borrower so the policies and suggested that the Agencies to commenters who thought this borrower can provide it to the insurance clarify its intentions to prohibit only guidance was confusing as worded in agent in order to minimize flood zone certain types of ‘‘gap’’ policies. Lastly, the proposal. discrepancies between the lender’s determination and the borrower’s commenters also requested general Section XII. Required Use of the policy. A lender would also need to guidance on whether non-NFIP private Standard Flood Hazard Determination make the determination available to the insurance policies were permitted. Form (SFHDF) Based on these comments, the borrower in case of a special flood Agencies have decided to modify the Proposed Section XIII (final Section hazard determination review, which question and answer to address broader XII) addressed the required use of the must be requested jointly by the lender issues of the appropriateness of private Special Flood Hazard Determination and the borrower. In the event a lender insurance. Instead of focusing on Form (SFHDF). This section and the provides the SFHDF to the borrower, the whether a policy is called a ‘‘gap’’ accompanying questions and answers signature of the borrower is not required insurance policy or a ‘‘blanket’’ were originally adopted in the 1997 to acknowledge receipt of the form. insurance policy, which may depend on Interagency Questions and Answers. Proposed question and answer 60 how the policy is marketed by the The changes proposed by the Agencies (final question and answer 67) insurer, the Agencies have decided that in March 2008 were designed to provide addressed the use of the SFHDF in it is more appropriate to provide greater clarity with no intended change electronic format. The Agencies did not guidance to lenders on private in substance and meaning. The agencies receive any substantive comment and insurance policies in general. received a number of comments on this adopt the question and answer as The Agencies have revised the answer section. proposed. to the question to provide that a private Proposed question and answer 58 Proposed question and answer 61 insurance policy may be an adequate (final question and answer 65), (final question and answer 68) substitute for an NFIP policy if it meets addressed whether the SFHDF replaces addressed the circumstances when a the criteria set forth by FEMA in its the borrower notification form. One lender may rely on a previous special Mandatory Purchase of Flood Insurance commenter suggested the answer clarify flood hazard determination. The Guidelines.8 As FEMA has stated in its the SFHDF’s use to the lender and the Agencies received several comments Mandatory Purchase of Flood Insurance notification form’s use to benefit the concerning this question and answer. Guidelines, to the extent there are any borrower. The Agencies agree with the One commenter suggested that, if a commenter and have revised the lender maintains life-of-loan tracking, 8 FEMA, Mandatory Purchase of Flood Insurance proposed answer to be more responsive there is little benefit in obtaining a new Guidelines, at 57–58. to the question and to more clearly set special flood hazard determination

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when renewing, refinancing, or Section XIII. Flood Determination Fees the Act does not require lenders to extending a loan if the original Proposed Section XIV (final Section identify and resolve flood zone determination is older than seven years. XIII) consisted of proposed questions discrepancies and ensure that a flood The authority to rely on a previous and answers 62 and 63 (final questions insurance policy is properly rated. determination made within the previous and answers 69 and 70 respectively), Other commenters argued that it is an seven years if that determination meets which addressed fees charged when undue burden to expect financial certain requirements is statutory (42 making a flood determination and institutions to resolve discrepancies U.S.C. 4104b(e)). Accordingly, seven charging fees to cover life-of-loan between the SFHDF and the flood years is the maximum period during monitoring of a loan, respectively. The insurance policy. Six commenters maintained that it is an insurance which a lender may rely on a previous Agencies received two comments on agent’s responsibility to determine the determination, even if the lender has these questions and answers. One correct flood zone and that a lender maintained life-of-loan tracking. commenter supported them; the other should not be responsible for auditing commenter asked whether a lender Two commenters suggested that the an NFIP-authorized insurance agent. could charge an up-front, proposed question and answer should These commenters argued that requiring nonrefundable, composite also address whether a lender may rely lenders to document every flood zone determination and life-of-loan fee on one determination if a lender makes discrepancy would be costly and regardless of whether the loan multiple loans to one borrower, all of burdensome and require extensive loan application closes. The Act and which are secured by the same servicing system changes. Regulation allow a lender to charge a improved property. For example, it Two commenters stated that the reasonable fee for determining whether should address when a lender may rely Agencies need to clearly define ‘‘zone a building or mobile home securing a on a single determination when making discrepancy.’’ Another commenter loan is located or will be located in a asked what action would be required to a home purchase loan and a subsequent special flood hazard area if the home equity loan, both secured by the correct any ‘‘violation’’ and further determination is made in connection inquired how much flood insurance same residence. The situation described with the making, increasing, extending, by the commenters is similar to the should be force placed in such a or renewing of a loan that is initiated by situation if a lender wants to correct a example of a refinancing or assumption the borrower. In the commenter’s by a lender, which obtained the original discrepancy by means of force situation, the Agencies would agree that placement. Two other commenters said flood determination on the same a fee for an initial determination could that a borrower will not want to obtain security property. In that case, the be charged when the determination is a Letter of Determination Review from question and answer states that the procured in connection with an FEMA at a cost of $80 when there is a lender may rely on the original application initiated by an applicant, dispute between the lender and determination if the original even if the application does not close. insurance company over a flood zone determination was made not more than However, a lender cannot charge a life- discrepancy, while three other seven years before the date of the of-loan fee if the application does not commenters noted that it is transaction, the basis of the close. Such a fee would be an unearned unreasonable to expect the parties to determination was set forth on the fee and, as such, charging such a fee wait 45 days for a FEMA determination SFHDF, and there were no map would be prohibited by section 8 of review. Finally, two commenters noted revisions or updates affecting the RESPA. Therefore, a lender may not that if a coverage error occurs, the security property since the original charge a nonrefundable, composite borrower or lender may reconcile this determination was made. The Agencies determination and life-of-loan fee when through payment of the premium based this interpretation on the premise a loan application does not close. The differential (the amount of premium that that a refinancing would be the Agencies have adopted the former would have been charged if the policy functional equivalent of either a loan question and answer as proposed. The had been correctly rated) or FEMA may extension or renewal. Subsequent loans Agencies have revised the latter reduce the amount of claim payment. to the same borrower secured by the question and answer in response to the The Agencies disagree with those same improved real estate could be comment. commenters who argued against a lender being responsible for resolving deemed to be the functional equivalent Section XIV. Flood Zone Discrepancies of increasing the amount of the original flood zone designation discrepancies, Proposed Section XV (final Section loan. Therefore, if the original either as a legal matter or because the XIV) addressed flood zone discrepancies determination was made not more than requirement would be burdensome and between the flood hazard designation costly. The Agencies agree, and FEMA seven years before the date of the documented by the lender on the concurs, that Federal law places the transaction, the basis of the SFHDF and the one documented on the ultimate responsibility to ensure determination was set forth on the flood insurance policy and used to rate appropriate flood insurance coverage on SFHDF, and there were no map the policy. There were numerous the lender. The Agencies note that, revisions or updates affecting the negative comments concerning the although coverage errors can be security property since the original Agencies’ proposed guidance for dealing mitigated after a flood loss by paying determination was made, a lender may with such discrepancies. premium differentials or reducing the similarly rely on a previous Proposed question and answer 64 claim payment, these mitigation determination if the lender makes (final question and answer 71) techniques do not relieve a lender of the multiple loans that are secured by the addressed lenders’ recourse when responsibility to ensure that an same building or mobile home. The confronted with a flood zone appropriate amount of flood insurance Agencies have revised the proposed discrepancy. Nineteen commenters were coverage is in place when a loan is question and answer to also address generally opposed to the proposed made. subsequent loans by the same lender treatment of a discrepancy as set forth Commenters, however, raised valid secured by the same improved real in the proposed question and answer. points with respect to the proposed estate. Several of these commenters argued that process for resolving flood zone

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discrepancies. To address these points, lender’s loan portfolio, due to a lack of a fixed time period during which a the Agencies have revised final question effort on the lender’s part to resolve lender must provide the notice to the and answer 71 to specify that lenders such discrepancies using the process borrower. The Agencies generally need only address discrepancies outlined in final question and answer continue to regard ten days as a between high-risk zones (Zones A or V) 71, the Agencies may cite the lender for ‘‘reasonable’’ time interval. The and moderate- or low-risk zones (Zones a violation of the mandatory purchase Agencies adopt the question and answer B, C, D, or X). The revised question and requirements. as proposed. answer further specifies the actions a Proposed question and answer 67 Section XV. Notice of Special Flood lender should take if such a zone (final question and answer 74) Hazards and Availability of Federal discrepancy is found to exist. Those addressed how the notice requirement Disaster Relief steps continue to include attempting to applied to loans secured by mobile determine whether the discrepancy is a Proposed Section XVI (final Section homes where the location of the mobile result of a legitimate reason, such as XV) addressed the notice of special home may not be known until just prior grandfathering, or is a mistake. In flood hazards and the availability of to, or sometimes after, the loan closing. certain circumstances, submitting a Federal disaster relief that lenders are The Agencies did not receive any request for a Determination Review to generally required to provide to substantive comments and adopt the FEMA may be an appropriate means of borrowers. The proposed questions and question and answer as proposed. resolving discrepancies; however, it is answers primarily proposed only minor Proposed question and answer 68 not required in all situations. The wording changes or clarifications to (final question and answer 75), question and answer explains that if the questions and answers in the 1997 addressed when the lender is required discrepancy is not resolved, the lender Interagency Questions and Answers to provide notice to the loan servicer should send a letter to the insurance without any change in the substance or that flood insurance is required. agent and/or the insurance company meaning. Proposed question and answer 69 (final reminding them of FEMA’s April 16, Proposed question and answer 66 question and answer 76) addressed what 2008, instruction that, in cases of (final question and answer 73), constitutes appropriate notice to the determination discrepancies, the policy addressed whether the notice had to be loan servicer. Proposed question and should be written to cover the higher provided to each borrower for each real answer 70 (final question and answer risk zone. Beyond that, no further action estate related loan. The proposed 77) addressed whether it was necessary by the lender is required. If, for its own answer explained that in a transaction for the lender to provide notice to a loan purposes, the lender believes force involving multiple borrowers, the servicer affiliated with the lender. placement is appropriate, then it should lender is only required to send notice to Proposed question and answer 71 (final consult the guidance on that topic found one borrower, but may provide multiple question and answer 78) addressed how in Sections II and X. notices if the lender chooses. The long a lender has to maintain the record Proposed question and answer 65 Agencies received a comment on a of receipt by the borrower of the notice. (final question and answer 72), related issue asking who should receive The Agencies received one comment addressed whether lenders can be found the notice if, at the time of increase, real that was supportive of these proposed in violation of the Act and Regulation estate collateral has been hypothecated questions and answers. The Agencies for flood zone discrepancies. Seven by a guarantor as security on the adopt the questions and answers as commenters either registered their borrower’s loan. If a lender takes a proposed. opposition to the proposed question and security interest in improved real estate Proposed question and answer 72 answer or recommended that it be owned by a guarantor (not simply (final question and answer 79), deleted outright. These commenters pledged by a guarantor) located in an addressed whether a lender can rely on argued, similar to their comments on SFHA, then flood insurance is required a previous notice that is less than seven proposed question and answer 64, that and the notice should be sent to both years old and was given to the same the lender is the wrong person to the borrower and the guarantor. borrower for the same property by the resolve flood zone discrepancies, that it Another commenter asked when same lender. Two commenters stated is instead the responsibility of the borrowers have to be notified that their that lenders should be able to waive a insurance agent and the company secured property is in a flood zone. The notice to a borrower when they already issuing the flood insurance policy to commenter noted that their examiners have adequate flood insurance and one ensure that the flood zone is correct, have previously said ten days prior to commenter said that notice should not and that imposing this requirement on loan closing. As noted in the Regulation, be required when there has not been a lenders is an unnecessary burden not lenders are required to provide notice change in the flood map. The Act and mandated by law. Another commenter within a reasonable time before Regulation require lenders to send argued that by sanctioning lenders for completion of the transaction (loan notice when a lender makes, increases, not successfully identifying and closing). What constitutes ‘‘reasonable’’ extends, or renews a loan secured by a resolving flood zone discrepancies, the notice will necessarily vary according to building or a mobile home located or to two proposed questions and answers the circumstances of particular be located in a special flood hazard area. would create a duty to ensure that the transactions. Regulated lending Therefore, as a statutory requirement, flood policy is rated properly that does institutions should bear in mind, the notice may not be waived. The not presently exist under the Act or the however, that a borrower should receive Agencies adopt the question and answer Regulation. notice timely enough to ensure that (1) as proposed. As noted above, the Act and the the borrower has the opportunity to Proposed question and answer 73 Regulation require lenders to ensure become aware of the borrower’s (final question and answer 80), that an appropriate amount of flood responsibilities under the NFIP; and (2) addressed whether the use of the sample insurance coverage is purchased; where applicable, the borrower can form of notice is mandatory. The lenders, therefore, should take steps to purchase flood insurance before Agencies received one comment that identify and address flood zone completion of the loan transaction. In was supportive of the proposed question discrepancies. If a pattern or practice of light of these considerations, the final and answer; however, another unresolved discrepancies is found in a question and answer does not establish commenter asked whether lenders

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should use the revised version of the 1997 Interagency Current questions 1997 Interagency Current questions Sample Form of the Notice provided by questions and and answers questions and and answers FEMA in 2007 or the sample notice that answers answers accompanies the Regulation. The Section I. Definitions Section V, Question 4 Section XII, Question Agencies do not require the use of a Section I, Question 1 Section IV, Question 68. specific form so long as the form 20. Section V, Question 5 Section VII, Question contains the required information as Section I, Question 2 Section IV, Question 36; and Section specified by the Act and Regulation. 19. VII, Question 37 The Agencies revised the answer, to Section I, Question 3 Section VII, Question Section VI. Force Section X. Force reflect that the sample form of the notice 34. Placement of Flood placement of flood Section I, Question 4 Section VII, Question Insurance. insurance. provided by FEMA in its Mandatory 35. Section VI, Question 1 Section X, Question Purchase of Flood Insurance Guidelines Section I, Question 5 Section VII, Question 57. is also not required to be used. 38. Section VI, Question 2 Section X, Question Section I, Question 6 Section VII, Question 58. Section XVI. Mandatory Civil Money 39; and Section Section VI, Question 3 Section X, Question Penalties VII, Question 40. 59. Section I, Question 7 Section VII, Question Section VII. Deter- Section XIII. Flood Proposed Section XVII (final Section 41. mination Fees. determination fees. XVI) addressed the imposition of Section I, Question 8 Section VII, Question Section VII Question 1 Section XIII, Question mandatory civil money penalties for 42. 69. violations of the flood insurance Section I, Question 9 Section I, Question 5. Section VII Question 2 Section XIII, Question requirements. Proposed question and Section I, Question 10 Section VII, Question 70. answer 74 (final question and answer 43. Section VIII. Notice of Section XV. Notice of Section II. Require- Special Flood Haz- special flood haz- 81) listed the sections of the Act that ment to Purchase ards and Availability ards and avail- trigger mandatory civil money penalties Flood Insurance of Federal Disaster ability of Federal when examiners find a pattern or Where Available. Relief. disaster relief. practice of violations of those sections Section II, Question 1 Section I, Question 1. Section VIII, Question Section XV, Question and included information about Section II, Question 2 Section I, Question 3. 1. 73 statutory limits on the amount of such Section II, Question 3 Section I, Question 6. Section VIII, Question Section XV, Question penalties. The Agencies did not receive Section II, Question 4 Deleted as obsolete. 2. 74. Section II, Question 5 Section II, Question Section VIII, Question Section XV, Question any comments and adopt the question 15. 3. 75. and answer as proposed. Section II, Question 6 Section VIII, Question Section VIII, Question Section XV, Question Proposed question and answer 75 44. 4. 76. (final question and answer 82) Section II, Question 7 Section II, Question Section VIII, Question Section XV, Question addressed the general standards the 14; and Section V, 5. 77. Question 25. Section VIII, Question Section XV, Question Agencies consider when determining Section II, Question 8 Section VI, Question 6. 78. whether violations constitute a pattern 28. Section IX. Notice of Section VIII. Flood in- or practice for which civil money Section II, Question 9 Section VI, Question Servicer’s Identity. surance require- penalties are mandatory. The Agencies 31. ments in the event received one industry trade group Section III. Exemp- Section III. Exemp- of the sale or comment suggesting that proposed tions. tions from the man- transfer of a des- question and answer 75 be amended to datory flood insur- ignated loan and/or ance requirements. clarify that the assessment of civil its servicing rights. Section III, Question 1 Section III, Question Section IX, Question 1 Section VIII, Question money penalties be based on an overall 18. 45. assessment of the entire loan portfolio Section IV. Escrow Section IX. Escrow Section IX, Question 2 Section VIII, Question and not randomly selected Requirements. requirements. 46. representations. The Agencies believe Section IV, Question 1 Deleted as obsolete. Section IX, Question 3 Section VIII, Question that the guidance in this question and Section IV, Question 2 Section IX, Question 47. answer properly sets forth the general 51. Section IX, Question 4 Section VIII, Question Section IV, Question 3 Section IX, Question standards the Agencies consider when 48. 52. Section IX, Question 5 Section VIII, Question determining whether a pattern or Section IV, Question 4 Section IX, Question 49. practice of violations has occurred. As 53. Section IX, Question 6 Section VIII, Question discussed in the March 2008 Proposed Section IV, Question 5 Section IX, Question 50. Interagency Questions and Answers, the 54. Section X Appendix A Section XV. Notice of considerations listed in the proposed Section IV, Question 6 Section IX, Question to the Regulation— special flood haz- question and answer are not dispositive 55. Sample Form of ards and avail- of individual cases, but serve as a Section IV, Question 7 Section IX, Question Notice of Special ability of Federal 56. Flood Hazards and disaster relief. reference point for reviewing the Section V. Required Section XII. Required Availability of Fed- particular facts and circumstances. The Use of Standard use of Standard eral Disaster Relief Agencies adopt the question and answer Flood Hazard De- Flood Hazard De- Assistance. as proposed. termination Form termination Form Section X, Question 1 Section XV, Question (SFHDF). (SFHDF). 80. Redesignation Table Section V, Question 1 Section XII, Question 65. The following redesignation table is Proposed Questions and Answers and Section V, Question 2 Section XII, Question Request for Comment provided as an aid to assist the public 66. in reviewing the revisions to the 1997 Section V, Question 3 Section XII, Question The Agencies are proposing five new Interagency Questions and Answers. 67. questions and answers for public

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comment upon consideration of various insurance provider or other flood insurance provider or other comments received on the March 2008 professionals) should consider the professionals) should consider the Proposed Interagency Questions and replacement cost value under a hazard replacement cost value used in a hazard Answers. The new proposed questions insurance policy, an appraisal based on insurance policy (recognizing that and answers concern the determination a cost-value before depreciation replacement cost for flood insurance of insurable value in calculating the deductions (not a market-value) will include the foundation), an maximum limit of coverage available for approach, and/or a construction cost appraisal based on a cost-value the particular type of property under the calculation. approach before depreciation Act and force placement of required The statutory and regulatory deductions (not a market-value), and/or flood insurance. In anticipation of the requirement that flood insurance be a construction cost calculation.fi possible adoption of these proposed obtained in the amount of the lesser of In considering the comments questions and answers, the applicable the principal balance of the designated submitted on the subject of insurable question and answer numbers have been loan or the maximum limit of coverage value, the Agencies recognized that reserved and the remaining questions available for the particular type of there are situations when insuring some and answers have been renumbered building under the Act is separate from nonresidential buildings at RCV would accordingly. the amount of a recovery if the result in the building being over- Insurable value. The Agencies improved property is destroyed by insured. The Agencies, in consultation received numerous comments to flood. Insurable value is replacement with FEMA, are proposing two proposed question and answer 7 stating cost value and would be the amount alternatives to determine replacement that implementing insurable value was required for adequate insurance cost value for nonresidential buildings confusing and that the term needed coverage assuming that amount does not used for ranching, farming, or industrial clear and objective standards. exceed the principal balance of the purposes, which the borrower either Commenters asked for guidance on the designated loan or the maximum limit would not replace if damaged or terms ‘‘overall value’’ and ‘‘repair or of coverage under the Act. Actual cash destroyed by a flood or would replace replacement cost’’ as they relate to a value, which would be determined by a with a structure more closely aligned to lender’s determination of the required claims adjuster at the time of loss, is the the function the building is providing at amount of flood insurance for a amount that will be paid by the NFIP for the time of the flood. Industrial use, as designated loan. Commenters similarly nonresidential properties and certain opposed to the broader commercial use, asked the Agencies to define the term residential properties. To lessen the is defined as those buildings not ‘‘actual cash value.’’ In response to these effect of a potential difference between directly engaged in the retail and/or comments, the Agencies are proposing the two values with certain wholesale sale of the business’s goods, new questions and answers 9 and 10 for nonresidential buildings, the Agencies, such as warehouses or storage, public comment to address how to with FEMA’s concurrence, are manufacturing, or maintenance calculate insurable value. Calculating proposing new questions and answers 9 facilities. insurable value is important because in and 10. The first alternative is the ‘‘functional addition to the maximum caps under It is important for lenders to recognize building cost value,’’ which is the cost the Act, the Regulation provides that that insurable value is only relevant to to repair or replace a building with ‘‘flood insurance coverage under the Act the extent that it is lower than either the commonly used, less costly construction is limited to the overall value of the outstanding principal balance of the materials and methods that are property securing the designated loan loan or the maximum amount of functionally equivalent to obsolete, minus the value of the land on which insurance available under the NFIP. antique, or custom construction the property is located.’’ The Agencies Therefore, if the insurable value of a materials and methods used in the use the term ‘‘insurable value’’ in the building is the lesser of the outstanding original construction of the building. proposed question and answer to mean principal balance of the loan or the Borrowers and/or lenders can choose the overall value minus the value of the maximum amount of insurance this alternative when the building being land. allowable under the NFIP, then the insured is important to the business FEMA guidelines state that the full building must be insured at its insurable operation and would be replaced if insurable value of a building is the same value, which for single family, 2–4 damaged or destroyed by a flood, but as 100 percent replacement cost value family, other residential or not to its original condition. The (RCV) of the insured building.9 nonresidential buildings, is equivalent ‘‘functional building cost value’’ Replacement cost value, according to to its RCV. The Agencies are proposing recognizes that insurance to the FEMA’s Mandatory Purchase of Flood new question and answer 9 to provide replacement cost is not needed as the Insurance Guidelines, is the cost to more concrete guidance on insurable borrower would not repair or replace replace property with the same kind of value. the building back to its original form but to a condition that represents the material and construction without fl9. What is the insurable value of a deduction for depreciation.10 As such, it function the building is providing to the building? business operation. is important to make clear that the RCV Answer: Per FEMA guidelines, the The second alternative is the of a building is not its contributory insurable value of a building is the same ‘‘demolition/removal cost value,’’ which value to the overall appraised value of as 100 percent replacement cost value of is the cost to demolish the remaining the collateral and does not include any the insured building. FEMA’s structure and remove the debris after a value for any land that is also part of Mandatory Purchase of Flood Insurance flood. Borrowers and/or lenders can collateral. When determining the RCV of Guidelines defines replacement cost as choose this alternative when the a building, lenders (either by themselves ‘‘The cost to replace property with the building being insured is not important or in consultation with the flood same kind of material and construction to the business operation and would not without deduction for depreciation.’’ be repaired or replaced if damaged or 9 FEMA, Mandatory Purchase of Flood Insurance Guidelines, at 27. When determining replacement cost destroyed by a flood. The ‘‘demolition/ 10 FEMA, Mandatory Purchase of Flood Insurance value of a building, lenders (either by removal cost value’’ recognizes that the Guidelines, at GLS10. themselves or in consultation with the building has limited-to-no-value and

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that it does not provide an important of insurance should be made by the however, the 45-day period cannot enough function to necessitate that the lender and/or borrower. This alternative begin until the lender or servicer has business repair or replace it. may be chosen when the building is sent notice to the borrower. When a borrower or lender chooses important to the ongoing nature of the Furthermore, the Act does not permit a one of these two replacement cost value business and would be replaced if lender or its servicer to send the 45-day alternatives they have determined that damaged or destroyed in a flood, but not notice to the borrower prior to the actual the building to be insured will not be to its original form. For example, a expiration date of the flood insurance insured to its full replacement cost farming operation would replace an old policy. value. Both the borrower and the lender dairy barn currently used for storage Another commenter suggested that should ensure that they consider the with a storage building of pole, or some flood insurance be force placed through impact this may have on the ongoing other type of less costly construction private insurers since this would allow nature of the business and the value of found currently in storage buildings. flood insurance coverage to be the collateral securing the loan. Full • The lender may calculate the immediately available instead of having replacement cost is always the preferred insurable value as the ‘‘demolition/ to wait 45 days. Whether the lender insurance amount. These alternatives removal cost value,’’ that is the cost to plans to force place coverage through are available only for those situations demolish the remaining structure and FEMA or private insurers, lenders must where full replacement cost would remove the debris. The ‘‘demolition/ allow the borrower 45 days in which to result in a building used for farming, removal cost value’’ may be used when obtain flood insurance. The Agencies ranching, or industrial purposes being a building is not important to the are proposing new question and answer over-insured. The Agencies are ongoing nature of the business and as 60 to address these commenters’ issues. proposing new question and answer 10 such would not be replaced if damaged fl60. Can the 45-day notice period be to address this issue. or destroyed by a flood. The amount of accelerated by sending notice to the fl10. Are there alternative approaches flood insurance should be calculated by borrower prior to the actual date of to determining the insurable value of a the lender and/or borrower to be at least expiration of flood insurance coverage? the cost of demolition and removal of building? Answer: No. Although a lender or the insured debris. Answer: Yes, in the case of buildings servicer may send a notice warning a used for ranching, farming, and Regardless of what method the lender borrower that flood insurance on the industrial purposes, insurable value and/or borrower selects to determine collateral is about to expire, the Act and may also be determined by the insurable value (replacement cost value Regulation do not allow a lender or its functional building cost value or the or one of the two alternatives), all terms servicer to shorten the 45-day force- demolition/removal cost value. The and conditions of the Standard Flood placement notice period by sending Agencies recognize that there are Insurance Policy apply including its notice to the borrower prior to the actual situations where insuring some Loss Settlement provision.fi expiration date of the flood insurance nonresidential buildings to the Force placement. In response to policy. The Act provides that a lender replacement cost value will result in the comments received regarding the force or its servicer must notify a borrower if building being over-insured. Therefore, placement of flood insurance, the it determines that the improved real borrowers and/or lenders have two Agencies are proposing new questions estate collateral’s insurance coverage alternative approaches to determine the and answers 60, 61, and 62, which has expired or is less than the amount insurable value for buildings used in would be added to Section X to address required for that particular property. 42 ranching, farming, and for industrial the following force-placement issues: U.S.C. 4012a(e). A lender must send the purposes when the borrower would whether a borrower may be charged for notice upon making a determination either not replace the building if the cost of flood insurance coverage that the flood insurance coverage is damaged or destroyed by a flood or during the 45-day notice period, when inadequate or has expired, such as upon would replace the building with a the 45-day notice period should begin, receipt of the notice of cancellation or structure more closely aligned with the and how soon a lender should take expiration from the insurance provider function the building is presently action after learning that improved real or as a result of an internal flood policy providing. Industrial use, as opposed to estate that secures a loan is uninsured monitoring system. This notice must the broader commercial use, means or under-insured. allow the borrower 45 days in which to those buildings not directly engaged in Several commenters requested obtain flood insurance.fi the retail and/or wholesale sale of the clarification regarding timing issues Three commenters asserted that it business’s goods, such as warehouses, related to the 45-day notice. One would be appropriate for the Agencies storage, manufacturing, or maintenance commenter requested clarification on to allow a reasonable period to facilities. whether the 45-day notice could be sent implement force placement after the end • The lender may calculate the prior to the actual date of expiration of of the 45-day notice period. The insurable value as the ‘‘functional flood insurance coverage. The Act and Regulation provides that the lender or building cost value,’’ that is, the cost to Regulation require the lender, or its its servicer shall purchase insurance on replace a building with a lower-cost servicer, to send notice to the borrower the borrower’s behalf if the borrower functional equivalent. The ‘‘functional upon making a determination that the fails to obtain flood insurance within 45 building cost value’’ is the cost to repair improved real estate collateral’s days after notification. Given that the or replace a building with commonly insurance coverage has expired or is less lender is already aware during the 45- used, less costly construction materials than the amount required for that day notice period that it may be and methods that are functionally particular property, such as upon required to force place insurance if there equivalent to obsolete, antique, or receipt of the notice of cancellation or is no response from the borrower, any custom construction materials and expiration from the insurance provider delay should be brief. Where there is a methods used in the original or as a result of an internal flood policy brief delay in force placing required construction of the building. The monitoring system. The borrower must insurance, the Agencies will expect the determination of the appropriate obtain flood insurance within 45 days lender to provide a reasonable ‘‘functional building cost value’’ amount after notification by the lender; explanation for the delay. The Agencies

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are proposing new question and answer Public Comments Liens, and Other Security Interests in 61 to address these commenters’ Collateral Located in an SFHA The Agencies specifically invite VIII. Flood Insurance Requirements in the concern. public comment on the proposed new One commenter suggested that a Event of the Sale or Transfer of a questions and answers. If financial Designated Loan and/or Its Servicing lender’s procurement of the flood institutions, bank examiners, Rights insurance binder should be acceptable community groups, or other interested IX. Escrow Requirements under the Act and Regulation to satisfy parties have unanswered questions or X. Force Placement of Flood Insurance the force placement requirement. The comments about the Agencies’ flood XI. Private Insurance Policies Agencies believe that the insurance insurance regulation, they should XII. Required Use of Standard Flood Hazard binder may provide a reasonable Determination Form (SFHDF) submit them to the Agencies. The XIII. Flood Determination Fees explanation for a delay in force placing Agencies will consider including these the formal flood insurance policy. XIV. Flood Zone Discrepancies questions and answers in future XV. Notice of Special Flood Hazards and However, an insurance binder is proof guidance. Availability of Federal Disaster Relief only of temporary coverage for a limited XVI. Mandatory Civil Money Penalties period of time until the formal Solicitation of Comments Regarding the insurance policy is either accepted or Use of ‘‘Plain Language’’ I. Determining When Certain Loans Are denied. Lenders should have sufficient Section 722 of the Gramm-Leach- Designated Loans for Which Flood internal controls in place to ensure that Bliley Act of 1999, 12 U.S.C. 4809, Insurance Is Required Under the Act if a formal policy is not issued, it should requires the Federal banking Agencies and Regulation force place required insurance to use ‘‘plain language’’ in all proposed 1. Does the Regulation apply to a loan immediately. and final rules published after January where the building or mobile home fl61. When must the lender have flood 1, 2000. Although this document is not securing such loan is located in a insurance in place if the borrower has a proposed rule, comments are community that does not participate in not obtained adequate insurance within nevertheless invited on whether the the National Flood Insurance Program the 45-day notice period? proposed questions and answers are (NFIP)? stated clearly and how they might be Answer: Yes. The Regulation does Answer: The Regulation provides that revised to be easier to read. the lender or its servicer shall purchase The text of the Interagency Questions apply; however, a lender need not insurance on the borrower’s behalf if the and Answers follows: require borrowers to obtain flood borrower fails to obtain flood insurance insurance for a building or mobile home within 45 days after notification. Interagency Questions and Answers located in a community that does not However, where there is a brief delay in Regarding Flood Insurance participate in the NFIP, even if the force placing required insurance, the The Interagency Questions and building or mobile home securing the Agencies will expect the lender to Answers are organized by topic. Each loan is located in a Special Flood provide a reasonable explanation for the topic addresses a major area of the Act Hazard Area (SFHA). Nonetheless, a delay.fi and Regulation. For ease of reference, lender, using the standard Special Flood Two commenters asked whether it is the following terms are used throughout Hazard Determination Form (SFHDF), permissible to charge a borrower for the this document: ‘‘Act’’ refers to the must still determine whether the cost of insurance during all or a portion National Flood Insurance Act of 1968 building or mobile home is located in an of the 45-day notice period. Regardless and the Flood Disaster Protection Act of SFHA. If the building or mobile home of whether the flood insurance coverage 1973, as revised by the National Flood is determined to be located in an SFHA, is obtained through FEMA or by private Insurance Reform Act of 1994 (codified a lender is required to notify the means, under the Act and Regulation, at 42 U.S.C. 4001 et seq.). ‘‘Regulation’’ borrower. In this case, a lender, lenders may not impose the cost of refers to each agency’s current final generally, may make a conventional coverage for that 45-day period at any rule.11 The OCC, Board, FDIC, OTS, loan without requiring flood insurance, time. The Agencies are proposing new NCUA, and FCA (collectively, ‘‘the if it chooses to do so. However, a lender question and answer 62 to address this Agencies’’) are providing answers to may not make a government-guaranteed comment. questions pertaining to the following or insured loan, such as a Small Business Administration, Veterans fl62. Does a lender or its servicer have topics: Administration, or Federal Housing the authority to charge a borrower for I. Determining When Certain Loans Are Administration loan secured by a the cost of insurance coverage during Designated Loans for Which Flood building or mobile home located in an the 45-day notice period? Insurance Is Required Under the Act and Regulation SFHA in a community that does not Answer: No. There is no authority II. Determining the Appropriate Amount of participate in the NFIP. See 42 U.S.C. under the Act and Regulation to charge Flood Insurance Required Under the Act 4106(a). Also, a lender is responsible for a borrower for a force-placed flood and Regulation exercising sound risk management insurance policy until the 45-day notice III. Exemptions From the Mandatory Flood practices to ensure that it does not make period has expired. The ability to Insurance Requirements IV. Flood Insurance Requirements for a loan secured by a building or mobile impose the costs of force placed flood Construction Loans home located in an SFHA where no insurance on a borrower commences 45 V. Flood Insurance Requirements for flood insurance is available, if doing so days after notification to the borrower of Nonresidential Buildings would be an unacceptable risk. a lack of insurance or of inadequate VI. Flood Insurance Requirements for insurance coverage. Therefore, lenders Residential Condominiums 2. What is a lender’s responsibility if a may not charge borrowers for coverage VII. Flood Insurance Requirements for Home particular building or mobile home that during the 45-day notice period. This Equity Loans, Lines of Credit, Subordinate secures a loan, due to a map change, is holds true regardless of whether the no longer located within an SFHA? 11 The Agencies’ rules are codified at 12 CFR part force placed flood insurance is obtained 22 (OCC), 12 CFR part 208 (Board), 12 CFR part 339 Answer: The lender is no longer through the NFIP or a private (FDIC), 12 CFR part 572 (OTS), 12 CFR part 614 obligated to require mandatory flood provider.fi (FCA), and 12 CFR part 760 (NCUA). insurance; however, the borrower can

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elect to convert the existing NFIP policy situations where such a group of lenders take action on any part of its existing to a Preferred Risk Policy. For risk decides to extend, renew or increase a portfolio for safety and soundness management purposes, the lender may, loan. Although the agreement among the purposes, or if it knows or has reason by contract, continue to require flood lenders may assign compliance duties to to know of the need for NFIP coverage. insurance coverage. a lead lender or agent, and include Regardless of the lack of such clauses in which the lead lender or 3. Does a lender’s purchase of a loan, requirement in the Act and Regulation, agent indemnifies participating lenders secured by a building or mobile home however, sound risk management against flood losses, each participating located in an SFHA in which flood practices may lead a lender to conduct lender remains individually responsible insurance is available under the Act, scheduled periodic reviews that track for ensuring compliance with the Act from another lender trigger any the need for flood insurance on a loan and Regulation. Therefore, the Agencies requirements under the Regulation? portfolio. will examine whether the regulated Answer: No. A lender’s purchase of a institution/participating lender has II. Determining the Appropriate loan, secured by a building or mobile performed upfront due diligence to Amount of Flood Insurance Required home located in an SFHA in which ensure both that the lead lender or agent Under the Act and Regulation flood insurance is available under the has undertaken the necessary activities 8. The Regulation states that the amount Act, alone, is not an event that triggers to ensure that the borrower obtains of flood insurance required ‘‘must be at the Regulation’s requirements, such as appropriate flood insurance and that the least equal to the lesser of the making a new flood determination or lead lender or agent has adequate outstanding principal balance of the requiring a borrower to purchase flood controls to monitor the loan(s) on an designated loan or the maximum limit insurance. Requirements under the ongoing basis for compliance with the of coverage available for the particular Regulation, generally, are triggered flood insurance requirements. Further, type of property under the Act.’’ What when a lender makes, increases, the Agencies expect the participating is meant by the ‘‘maximum limit of extends, or renews a designated loan. A lender to have adequate controls to coverage available for the particular lender’s purchase of a loan does not fall monitor the activities of the lead lender type of property under the Act’’? within any of those categories. or agent to ensure compliance with Answer: ‘‘The maximum limit of However, if a lender becomes aware at flood insurance requirements over the coverage available for the particular any point during the life of a designated term of the loan. loan that flood insurance is required, type of property under the Act’’ the lender must comply with the 5. Does the Regulation apply to loans depends on the value of the secured Regulation, including force placing that are being restructured or modified? collateral. First, under the NFIP, there insurance, if necessary. Depending upon Answer: It depends. If the loan are maximum caps on the amount of the circumstances, safety and soundness otherwise meets the definition of a insurance available. For single-family considerations may sometimes designated loan and if the lender and two-to-four family dwellings and necessitate such due diligence upon increases the amount of the loan, or other residential buildings located in a purchase of a loan as to put the lender extends or renews the terms of the participating community under the on notice of lack of adequate flood original loan, then the Regulation regular program, the maximum cap is insurance. If the purchasing lender applies. $250,000. For nonresidential structures subsequently extends, increases, or located in a participating community renews a designated loan, it must also 6. Are table funded loans treated as new under the regular program, the comply with the Regulation. loan originations? maximum cap is $500,000. (In Answer: Yes. Table funding, as participating communities that are 4. How do the Agencies enforce the defined under HUD’s Real Estate under the emergency program phase, mandatory purchase requirements Settlement Procedure Act (RESPA) rule, the caps are $35,000 for single-family under the Act and Regulation when a 24 CFR 3500.2, is a settlement at which and two-to-four family dwellings and lender participates in a loan syndication a loan is funded by a contemporaneous other residential structures, and or participation? advance of loan funds and the $100,000 for nonresidential structures). Answer: As with purchased loans, the assignment of the loan to the person In addition to the maximum caps acquisition by a lender of an interest in advancing the funds. A loan made under the NFIP, the Regulation also a loan either by participation or through a table funding process is provides that ‘‘flood insurance coverage syndication after that loan has been treated as though the party advancing under the Act is limited to the overall made does not trigger the requirements the funds has originated the loan. The value of the property securing the of Act or Regulation, such as making a funding party is required to comply designated loan minus the value of the new flood determination or requiring a with the Regulation. The table funding land on which the property is located,’’ borrower to purchase flood insurance. lender can meet the administrative which is commonly referred to as the Nonetheless, as with purchased loans, requirements of the Regulation by ‘‘insurable value’’ of a structure. The depending upon the circumstances, requiring the party processing and NFIP does not insure land; therefore, safety and soundness considerations underwriting the application to perform land values should not be included in may sometimes necessitate that the those functions on its behalf. the calculation. lender undertake due diligence to An NFIP policy will not cover an protect itself against the risk of flood or 7. Is a lender required to perform a amount exceeding the ‘‘insurable value’’ other types of loss. review of its, or of its servicer’s, existing of the structure. In determining coverage Lenders who pool or contribute funds loan portfolio for compliance with the amounts for flood insurance, lenders that will be simultaneously advanced to flood insurance requirements under the often follow the same practice used to a borrower or borrowers as a loan Act and Regulation? establish other hazard insurance secured by improved real estate would Answer: No. Apart from the coverage amounts. However, unlike the all be subject to the requirements of Act requirements mandated when a loan is insurable valuation used to underwrite or Regulation. Federal flood insurance made, increased, extended, or renewed, most other hazard insurance policies, requirements would also apply to those a regulated lender need only review and the insurable value of improved real

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estate for flood insurance purposes also 13. How much insurance is required on Æ Insurable value (for each nonresidential includes the repair or replacement cost a building located in an SFHA in a building for which insurance is required, of the foundation and supporting participating community? which is $100,000, or $300,000 total). structures. It is very important to Amount of insurance required for the three Answer: The amount of insurance buildings is $150,000. This amount of calculate the correct insurable value of required by the Act and Regulation is required flood insurance could be allocated the property; otherwise, the lender the lesser of: among the three buildings in varying might inadvertently require the • The outstanding principal balance amounts, so long as each is covered by flood borrower to purchase too much or too of the loan(s); or insurance. little flood insurance coverage. For • The maximum amount of insurance 15. If the insurable value of a building example, if the lender fails to exclude available under the NFIP, which is the or mobile home, located in an SFHA in the value of the land when determining lesser of: which flood insurance is available the insurable value of the improved real Æ The maximum limit available for under the Act, securing a designated estate, the borrower will be asked to the type of structure; or loan is less than the outstanding purchase coverage that exceeds the Æ The ‘‘insurable value’’ of the principal balance of the loan, must a amount the NFIP will pay in the event structure. lender require the borrower to obtain of a loss. (Please note, however, when flood insurance up to the balance of the Example: (Calculating insurance required taking a security interest in improved loan? real estate where the value of the land, on a nonresidential building): Loan security includes one equipment Answer: No. The Regulation provides excluding the value of the shed located in an SFHA in a participating improvements, is sufficient collateral for that the amount of flood insurance must community under the regular program. be at least equal to the lesser of the the debt, the lender must nonetheless • Outstanding loan principal is $300,000. require flood insurance to cover the • Maximum amount of insurance available outstanding principal balance of the value of the structure if it is located in under the NFIP: designated loan or the maximum limit a participating community’s SFHA). Æ Maximum limit available for type of of coverage available for a particular structure is $500,000 per building type of property under the Act. The 9. What is insurable value? (nonresidential building). Regulation also provides that flood Æ Insurable value of the equipment shed is insurance coverage under the Act is Answer: [Reserved] $30,000. limited to the overall value of the The minimum amount of insurance 10. Are there any alternatives to the property securing the designated loan required by the Regulation for the equipment minus the value of the land on which definition of insurable value? shed is $30,000. the building or mobile home is located. Answer: [Reserved] 14. Is flood insurance required for each Since the NFIP policy does not cover building when the real estate security land value, lenders should determine 11. What are examples of residential contains more than one building located the amount of insurance necessary buildings? in an SFHA in a participating based on the insurable value of the Answer: Residential buildings include community? If so, how much coverage is improvements. required? one-to-four family dwellings; apartment 16. Can a lender require more flood or other residential buildings containing Answer: Yes. The lender must insurance than the minimum required more than four dwelling units; determine the amount of insurance by the Regulation? condominiums and cooperatives in required on each building and add these which at least 75 percent of the square individual amounts together. The total Answer: Yes. Lenders are permitted to footage is residential; hotels or motels amount of required flood insurance is require more flood insurance coverage where the normal occupancy of a guest the lesser of: than required by the Regulation. The borrower or lender may have to seek is six months or more; and rooming • The outstanding principal balance such coverage outside the NFIP. Each houses that have more than four of the loan(s); or lender has the responsibility to tailor its roomers. A residential building may • The maximum amount of insurance own flood insurance policies and have incidental nonresidential use, such available under the NFIP, which is the procedures to suit its business needs as an office or studio, as long as the total lesser of: and protect its ongoing interest in the area of such incidental occupancy is Æ The maximum limit available for collateral. However, lenders should limited to less than 25 percent of the the type of structures; or avoid creating situations where a square footage of the building, or 50 Æ The ‘‘insurable value’’ of the building is ‘‘over-insured.’’ percent for single-family dwellings. structures. The amount of total required flood 17. Can a lender allow the borrower to 12. What are examples of nonresidential use the maximum deductible to reduce buildings? insurance can be allocated among the secured buildings in varying amounts, the cost of flood insurance? Answer: Nonresidential buildings but all buildings in an SFHA must have Answer: Yes. However, it is not a include those used for small businesses, some coverage. sound business practice for a lender to churches, schools, farm activities Example: Lender makes a loan in the allow the borrower to use the maximum (including grain bins and silos), pool principal amount of $150,000 secured by five deductible amount in every situation. A houses, clubhouses, recreation, nonresidential buildings, only three of which lender should determine the mercantile structures, agricultural and are located in SFHAs within participating reasonableness of the deductible on a communities. industrial structures, warehouses, hotels • case-by-case basis, taking into account and motels with normal room rentals for Outstanding loan principal is $150,000. • Maximum amount of insurance available the risk that such a deductible would less than six months’ duration, nursing under the NFIP. pose to the borrower and lender. A homes, and mixed-use buildings with Æ Maximum limit available for the type of lender may not allow the borrower to less than 75 percent residential square structure is $500,000 per building use a deductible amount equal to the footage. (nonresidential buildings); or insurable value of the property to avoid

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the mandatory purchase requirement for and roofed are eligible for coverage and roofed.12 However, the lender must flood insurance. except when construction has been require the borrower to have flood halted for more than 90 days and/or if III. Exemptions From the Mandatory insurance in place before the lender the lowest floor used for rating purposes Flood Insurance Requirements disburses funds to pay for building is below the Base Flood Elevation (BFE). construction (except as necessary to 18. What are the exemptions from Materials or supplies intended for use in pour the slab or perform preliminary coverage? such construction, alteration, or repair site work, such as laying utilities, Answer: There are only two are not insurable unless they are clearing brush, or the purchase and/or exemptions from the purchase contained within an enclosed building delivery of building materials) on the requirements. The first applies to State- on the premises or adjacent to the property securing the loan. If the lender owned property covered under a policy premises. elects this approach and does not of self-insurance satisfactory to the FEMA, Flood Insurance Manual at p. require flood insurance to be obtained at Director of FEMA. The second applies if GR 4 (FEMA’s Flood Insurance Manual loan origination, then it must have both the original principal balance of is updated every six months). The adequate internal controls in place at the loan is $5,000 or less, and the definition section of the Flood origination to ensure that the borrower original repayment term is one year or Insurance Manual defines ‘‘start of obtains flood insurance no later than less. construction’’ in the case of new when the foundation slab has been IV. Flood Insurance Requirements for construction as ‘‘either the first poured and/or an elevation certificate Construction Loans placement of permanent construction of has been issued. a building on site, such as the pouring 19. Is a loan secured only by land that of a slab or footing, the installation of 23. Does the 30-day waiting period is located in an SFHA in which flood piles, the construction of columns, or apply when the purchase of the flood insurance is available under the Act and any work beyond the stage of insurance policy is deferred in that will be developed into buildable excavation; or the placement of a connection with a construction loan? lot(s) a designated loan that requires manufactured (mobile) home on a flood insurance? foundation.’’ FEMA, Flood Insurance Answer: No. The NFIP will rely on an insurance agent’s representation on the Answer: No. A designated loan is Manual, at p. DEF 9. While an NFIP defined as a loan secured by a building policy may be purchased prior to the application for flood insurance that the or mobile home that is located or to be start of construction, as a practical purchase of insurance has been properly located in an SFHA in which flood matter, coverage under an NFIP policy deferred unless there is a loss during the insurance is available under the Act. is not effective until actual construction first 30 days of the policy period. In that Any loan secured only by land that is commences or when materials or case, the NFIP will require located in an SFHA in which flood supplies intended for use in such documentation of the loan transaction, insurance is available is not a construction, alteration, or repair are such as settlement papers, before designated loan since it is not secured contained in an enclosed building on adjusting the loss. by a building or mobile home. the premises or adjacent to the premises. V. Flood Insurance Requirements for 20. Is a loan secured or to be secured Nonresidential Buildings by a building in the course of 22. When must a lender require the construction that is located or to be purchase of flood insurance for a loan 24. Some borrowers have buildings with located in an SFHA in which flood secured by a building in the course of limited utility or value and, in many insurance is available under the Act a construction that is located in an SFHA cases, the borrower would not replace designated loan? in which flood insurance is available? them if lost in a flood. Is a lender required to mandate flood insurance for Answer: Yes. Therefore, a lender must Answer: Under the Act, as such buildings? always make a flood determination prior implemented by the Regulation, a to loan origination to determine whether lender may not make, increase, extend, Answer: Yes. Under the Regulation, a building to be constructed that is or renew any loan secured by a building lenders must require flood insurance on security for the loan is located or will or a mobile home, located or to be real estate improvements when those be located in an SFHA in which flood located in an SFHA in which flood improvements are part of the property insurance is available under the Act. If insurance is available, unless the securing the loan and are located in an so, then the loan is a designated loan property is covered by adequate flood SFHA and in a participating and the lender must provide the insurance for the term of the loan. One community. requisite notice to the borrower prior to way for lenders to comply with the The lender may consider ‘‘carving loan origination that mandatory flood mandatory purchase requirement for a out’’ buildings from the security it takes insurance is required. The lender must loan secured by a building in the course then comply with the mandatory of construction that is located in an on the loan. However, the lender should purchase requirement under the Act and SFHA is to require borrowers to have a fully analyze the risks of this option. In Regulation. flood insurance policy in place at the particular, a lender should consider whether it would be able to market the 21. Is a building in the course of time of loan origination. property securing its loan in the event construction that is located in an SFHA Alternatively, a lender may allow a of foreclosure. Additionally, the lender in which flood insurance is available borrower to defer the purchase of flood should consider any local zoning issues under the Act eligible for coverage insurance until either a foundation slab or other issues that would affect its under an NFIP policy? has been poured and/or an elevation collateral. Answer: Yes. FEMA’s Flood Insurance certificate has been issued or, if the Manual, under general rules, states: building to be constructed will have its Buildings in the course of lowest floor below the Base Flood 12 FEMA, Mandatory Purchase of Flood Insurance construction that have yet to be walled Elevation, when the building is walled Guidelines, at 30.

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25. What are a lender’s requirements purchased). The maximum amount of (replacement cost) of the building, under the Regulation for a loan secured building coverage that can be purchased including amounts to repair or replace by multiple buildings located under an RCBAP is either 100 percent the foundation and its supporting throughout a large geographic area of the replacement cost value of the structures, or the total number of units where some of the buildings are located building, including amounts to repair or in the condominium building times in an SFHA in which flood insurance is replace the foundation and its $250,000, whichever is less; or available and other buildings are not? supporting structures, or the total • Obtain a dwelling policy if there is What if the buildings are located in number of units in the condominium no RCBAP, as explained in question and several jurisdictions or counties where building times $250,000, whichever is answer 29, or if the RCBAP coverage is some of the communities participate in less. RCBAP coverage is available only less than 100 percent of the replacement the NFIP and others do not? for residential condominium buildings cost value of the building or the total Answer: A lender is required to make in Regular Program communities. number of units in the condominium building times $250,000, whichever is a determination as to whether the 28. What is the amount of flood less, as explained in question and improved real property securing the insurance coverage that a lender must answer 30. loan is in an SFHA. If secured improved require with respect to residential real estate is located in an SFHA, but condominium units, including those Example: Lender makes a loan in the not in a participating community, no located in multi-story condominium principal amount of $300,000 secured by a flood insurance is required, although a condominium unit in a 50-unit complexes, to comply with the condominium building, which is located in lender can require the purchase of flood mandatory purchase requirements insurance (from a private insurer) as a an SFHA within a participating community, under the Act and the Regulation? with a replacement cost of $15 million and matter of safety and soundness. insured by an RCBAP with $12.5 million of Conversely, where secured improved Answer: To comply with the Regulation, the lender must ensure that coverage. real estate is located in a participating • Outstanding principal balance of loan is community but not in an SFHA, no the minimum amount of flood insurance $300,000. insurance is required. A lender must covering the condominium unit is the • Maximum amount of coverage available provide appropriate notice and require lesser of: under the NFIP, which is the lesser of: • Æ the purchase of flood insurance for The outstanding principal balance Maximum limit available for the residential condominium unit is $250,000; or designated loans located in an SFHA in of the loan(s); or • The maximum amount of insurance Æ Insurable value of the unit based on 100 a participating community. available under the NFIP, which is the percent of the building’s replacement cost ÷ VI. Flood Insurance Requirements for lesser of: value ($15 million 50 = $300,000). Residential Condominiums Æ The maximum limit available for The lender does not need to require additional flood insurance since the RCBAP’s the residential condominium unit; or ÷ 26. Are residential condominiums, Æ $250,000 per unit coverage ($12.5 million The ‘‘insurable value’’ allocated to 50 = $250,000) satisfies the Regulation’s including multi-story condominium the residential condominium unit, complexes, subject to the statutory and mandatory flood insurance requirement. which is the replacement cost value of (This is the lesser of the outstanding regulatory requirements for flood the condominium building divided by principal balance ($300,000), the maximum insurance? the number of units. coverage available under the NFIP Answer: Yes. The mandatory flood Effective October 1, 2007, FEMA ($250,000), or the insurable value insurance purchase requirements under required agents to provide on the ($300,000)). the Act and Regulation apply to loans declaration page of the RCBAP the The guidance in this question and answer replacement cost value of the will apply to any loan that is made, secured by individual residential increased, extended, or renewed after the condominium units, including those condominium building and the number effective date of this revised guidance. This located in multi-story condominium of units. Lenders may rely on the revised guidance will not apply to any loans complexes, located in an SFHA in replacement cost value and number of made prior to the effective date of this which flood insurance is available units on the RCBAP declaration page in guidance until a trigger event occurs (that is, under the Act. The mandatory purchase determining insurable value unless they the loan is refinanced, extended, increased, requirements also apply to loans have reason to believe that such or renewed) in connection with the loan. secured by other condominium amounts clearly conflict with other Absent a new trigger event, loans made prior available information. If there is a to the effective date of this new guidance will property, such as loans to a developer be considered compliant if they complied for construction of the condominium or conflict, the lender should notify the with the Agencies’ previous guidance, which loans to a condominium association. borrower of the facts that cause the stated that an RCBAP that provided 80 lender to believe there is a conflict. If 27. What is an NFIP Residential percent RCV coverage was sufficient. the lender believes that the borrower is Condominium Building Association underinsured, it should require the 29. What action must a lender take if Policy (RCBAP)? purchase of a Dwelling Policy for there is no RCBAP coverage? Answer: The RCBAP is a master supplemental coverage. Answer: If there is no RCBAP, either policy for residential condominiums Assuming that the outstanding because the condominium association issued by FEMA. A residential principal balance of the loan is greater will not obtain a policy or because condominium building is defined as than the maximum amount of coverage individual unit owners are responsible having 75 percent or more of the available under the NFIP, the lender for obtaining their own insurance, then building’s floor area in residential use. must require a borrower whose loan is the lender must require the individual It may be purchased only by secured by a residential condominium unit owner/borrower to obtain a condominium owners associations. The unit to either: dwelling policy in an amount sufficient RCBAP covers both the common and • Ensure the condominium owners to meet the requirements outlined in individually owned building elements association has purchased an NFIP Question 28. within the units, improvements within Residential Condominium Building A dwelling policy is available for the units, and contents owned in Association Policy (RCBAP) covering condominium unit owners’ purchase common (if contents coverage is either 100 percent of the insurable value when there is no or inadequate RCBAP

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coverage. When coverage by an RCBAP insurance requirements (see question elements in the building, such as is inadequate, the dwelling policy may and answer 29). electricity, heating, plumbing, and provide individual unit owners with Example: Lender makes a loan in the elevators. It is incumbent on the lender supplemental building coverage to the principal amount of $300,000 secured by a to understand these limitations. RCBAP. The RCBAP and the dwelling condominium unit in a 50-unit 31. What must a lender do when a loan policy are coordinated such that the condominium building, which is located in secured by a residential condominium dwelling policy purchased by the unit an SFHA within a participating community, unit is in a complex whose owner responds to shortfalls on building with a replacement cost value of $10 million; condominium association allows its coverage pertaining either to however, the RCBAP is at 80 percent of replacement cost value ($8 million or existing RCBAP to lapse? improvements owned by the insured $160,000 per unit). unit owner or to assessments. However, • Outstanding principal balance of loan is Answer: If a lender determines at any the dwelling policy does not extend the $300,000. time during the term of a designated RCBAP limits, nor does it enable the • Maximum amount of coverage available loan that the loan is not covered by condominium association to fill in gaps under the NFIP, which is the lesser of: flood insurance or is covered by such Æ in coverage. Maximum limit available for the insurance in an amount less than that residential condominium unit is $250,000; or required under the Act and the Example: The lender makes a loan in the Æ Insurable value of the unit based on 100 principal amount of $175,000 secured by a percent of the building’s replacement value Regulation, the lender must notify the condominium unit in a 50-unit ($10 million ÷ 50 = $200,000). individual unit owner/borrower of the condominium building, which is located in The lender must require the individual unit requirement to maintain flood insurance an SFHA within a participating community, owner/borrower to purchase a flood coverage sufficient to meet the with a replacement cost value of $10 million; insurance dwelling policy in the amount of Regulation’s mandatory requirements. however, there is no RCBAP. • $40,000 to satisfy the Regulation’s mandatory The lender should encourage the Outstanding principal balance of loan is flood insurance requirement of $200,000. $175,000. individual unit owner/borrower to work • (This is the lesser of the outstanding with the condominium association to Maximum amount of coverage available principal balance ($300,000), the maximum under the NFIP, which is the lesser of: acquire a new RCBAP in an amount Æ coverage available under the NFIP Maximum limit available for the ($250,000), or the insurable value sufficient to meet the Regulation’s residential condominium unit is $250,000; or mandatory flood insurance requirement Æ ($200,000).) The RCBAP fulfills only Insurable value of the unit based on 100 $160,000 of the Regulation’s flood insurance (see question and answer 28). Failing percent of the building’s replacement cost requirement. that, the lender must require the value ($10 million ÷ 50 = $200,000). The lender must require the individual While the individual unit owner’s individual unit owner/borrower to unit owner/borrower to purchase a flood purchase of a separate dwelling policy obtain a flood insurance dwelling policy insurance dwelling policy in the amount of that provides for adequate flood in an amount sufficient to meet the at least $175,000, since there is no RCBAP, insurance coverage under the Regulation’s mandatory flood insurance to satisfy the Regulation’s mandatory flood Regulation will satisfy the Regulation’s requirement (see questions and answers insurance requirement. (This is the lesser of mandatory flood insurance 29 and 30). If the borrower/unit owner the outstanding principal balance ($175,000), requirements, the lender and the or the condominium association fails to the maximum coverage available under the purchase flood insurance sufficient to NFIP ($250,000), or the insurable value individual unit owner/borrower may ($200,000).) still be exposed to additional risk of meet the Regulation’s mandatory loss. Lenders are encouraged to apprise requirements within 45 days of the 30. What action must a lender take if borrowers of this risk. The dwelling lender’s notification to the individual the RCBAP coverage is insufficient to policy provides individual unit owners unit owner/borrower of inadequate meet the Regulation’s mandatory with supplemental building coverage to insurance coverage, the lender must purchase requirements for a loan the RCBAP. The policies are force place the necessary flood secured by an individual residential coordinated such that the dwelling insurance. condominium unit? policy purchased by the unit owner 32. How does the RCBAP’s co-insurance Answer: If the lender determines that responds to shortfalls on building penalty apply in the case of residential flood insurance coverage purchased coverage pertaining either to condominiums, including those located under the RCBAP is insufficient to meet improvements owned by the insured in multi-story condominium complexes? the Regulation’s mandatory purchase unit owner or to assessments. However, requirements, then the lender should the dwelling policy does not extend the Answer: In the event the RCBAP’s request that the individual unit owner/ RCBAP limits, nor does it enable the coverage on a condominium building at borrower ask the condominium condominium association to fill in gaps the time of loss is less than 80 percent association to obtain additional in coverage. of either the building’s replacement cost coverage that would be sufficient to The risk arises because the individual or the maximum amount of insurance meet the Regulation’s requirements (see unit owner’s dwelling policy may available for that building under the question and answer 28). If the contain claim limitations that prevent NFIP (whichever is less), then the loss condominium association does not the dwelling policy from covering the payment, which is subject to a co- obtain sufficient coverage, then the individual unit owner’s share of the co- insurance penalty, is determined as lender must require the individual unit insurance penalty, which is triggered follows (subject to all other relevant owner/borrower to purchase a dwelling when the amount of insurance under conditions in this policy, including policy in an amount sufficient to meet the RCBAP is less than 80 percent of the those pertaining to valuation, the Regulation’s flood insurance building’s replacement cost value at the adjustment, settlement, and payment of requirements. The amount of coverage time of loss. In addition, following a loss): under the dwelling policy required to be major flood loss, the insured unit owner A. Divide the actual amount of flood purchased by the individual unit owner may have to rely upon the insurance carried on the condominium would be the difference between the condominium association’s and other building at the time of loss by 80 RCBAP’s coverage allocated to that unit unit owners’ financial ability to make percent of either its replacement cost or and the Regulation’s mandatory flood the necessary repairs to common the maximum amount of insurance

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available for the building under the value, the loss assessment coverage under the located in an SFHA in which flood NFIP, whichever is less. dwelling policy will pay that part of a loss insurance is available under the Act is B. Multiply the amount of loss, before that exceeds 80 percent of the association’s a designated loan and, therefore, application of the deductible, by the building replacement cost allocated to that requires a flood determination before figure determined in A above. unit. • The loss assessment coverage under the the loan is made, draws against an C. Subtract the deductible from the dwelling policy will not cover the approved line do not require further figure determined in B above. association’s policy deductible purchased by determinations. However, a request The policy will pay the amount the condominium association. made for an increase in an approved determined in C above, or the amount • If building elements within units have line of credit may require a new of insurance carried, whichever is less. also been damaged, the dwelling policy pays determination, depending upon whether Example 1: (Inadequate insurance amount to repair building elements after the RCBAP a previous determination was done. (See to avoid penalty). limits that apply to the unit have been response to question 68 in Section XIII. Replacement value of the building: exhausted. Coverage combinations cannot Required use of Standard Flood Hazard exceed the total limit of $250,000 per unit. $250,000. Determination Form.) 80% of replacement value of the building: Example 2: (RCBAP insured to less than 80 $200,000. percent of building replacement cost). 36. When a lender makes, increases, Actual amount of insurance carried: • If the unit owner purchases building extends or renews a second mortgage $180,000. coverage under the dwelling policy and there secured by a building or mobile home Amount of the loss: $150,000. is an RCBAP that was insured to less than 80 located in an SFHA, how much flood Deductible: $ 500. percent of the building replacement cost insurance must the lender require? Step A: 180,000 ÷ 200,000 = .90 value at the time of loss, the loss assessment (90% of what should be carried to avoid co- coverage cannot be used to reimburse the Answer: The lender must ensure that insurance penalty) association for its co-insurance penalty. adequate flood insurance is in place or • Step B: 150,000 × .90 = 135,000 Loss assessment is available only to require that additional flood insurance Step C: 135,000 ¥ 500 = 134,500 cover the building damages in excess of the coverage be added to the flood The policy will pay no more than 80-percent required amount at the time of insurance policy in the amount of the $134,500. The remaining $15,500 is not loss. Thus, the covered damages to the lesser of either the combined total condominium association building must be covered due to the co-insurance penalty outstanding principal balance of the ($15,000) and application of the deductible greater than 80 percent of the building replacement cost value at the time of loss first and second loan, the maximum ($500). Unit owners’ dwelling policies will amount available under the Act not cover any assessment that may be before the loss assessment coverage under the imposed to cover the costs of repair that are dwelling policy becomes available. Under the (currently $250,000 for a residential not covered by the RCBAP. dwelling policy, covered repairs to the unit, building and $500,000 for a if applicable, would have priority in payment nonresidential building), or the Example 2: (Adequate insurance amount to over loss assessments against the unit owner. avoid penalty). insurable value of the building or Example 3: (No RCBAP), mobile home. The junior lienholder Replacement value of the building: • $250,000. If the unit owner purchases building should also ensure that the borrower 80% of replacement value of the building: coverage under the dwelling policy and there adds the junior lienholder’s name as $200,000. is no RCBAP, the dwelling policy covers mortgagee/loss payee to the existing assessments against unit owners for damages Actual amount of insurance carried: flood insurance policy. Given the $200,000. to common areas up to the dwelling policy limit. provisions of NFIP policies, a lender Amount of the loss: $150,000. • However, if there is damage to the cannot comply with the Act and Deductible: $ 500. building elements of the unit as well, the Regulation by requiring the purchase of Step A: 200,000 ÷ 200,000 = 1.00 combined payment of unit building damages, (100% of what should be carried to avoid co- an NFIP flood insurance policy only in which would apply first, and the loss insurance penalty) the amount of the outstanding principal assessment may not exceed the building Step B: 150,000 × 1.00 = 150,000 balance of the second mortgage without coverage limit under the dwelling policy. Step C: 150,000 ¥ 500 = 149,500 regard to the amount of flood insurance In this example there is no co-insurance VII. Flood Insurance Requirements for coverage on a first mortgage. penalty, because the actual amount of Home Equity Loans, Lines of Credit, A junior lienholder should work with insurance carried meets the 80 percent Subordinate Liens, and Other Security the senior lienholder, the borrower, or requirement to avoid the co-insurance with both of these parties, to determine penalty. The policy will pay no more than Interests in Collateral Located in an SFHA how much flood insurance is needed to $149,500 ($150,000 amount of loss minus the cover improved real estate collateral. A $500 deductible). This example also assumes 34. Is a home equity loan considered a junior lienholder should obtain the a $150,000 outstanding principal loan designated loan that requires flood balance. borrower’s consent in the loan insurance? agreement or otherwise for the junior 33. What are the major factors involved Answer: Yes. A home equity loan is a lienholder to obtain information on with the individual unit owner’s designated loan, regardless of the lien balance and existing flood insurance dwelling policy’s coverage limitations priority, if the loan is secured by a coverage on senior lien loans from the with respect to the condominium building or a mobile home located in an senior lienholder. association’s RCBAP coverage? SFHA in which flood insurance is Junior lienholders also have the Answer: The following examples available under the Act. option of pulling a borrower’s credit demonstrate how the unit owner’s report and using the information from 35. Does a draw against an approved dwelling policy may cover in certain that document to establish how much line of credit secured by a building or loss situations: flood insurance is necessary upon mobile home, which is located in an increasing, extending or renewing a Example 1: (RCBAP insured to at least 80 SFHA in which flood insurance is percent of building replacement cost). junior lien, thus protecting the interests • available under the Act, require a flood of the junior lienholder, the senior If the unit owner purchases building determination under the Regulation? coverage under the dwelling policy and if lienholders, and the borrower. In the there is an RCBAP covering at least 80 Answer: No. While a line of credit limited situation where a junior percent of the building replacement cost secured by a building or mobile home lienholder or its servicer is unable to

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obtain the necessary information about loss because Lender A would have prior Example: Lender A makes a loan for the amount of flood insurance in place claim on the entire $70,000 loss payment $200,000 that is secured by a warehouse with on the outstanding balance of a senior towards the insurable value of $90,000. an insurable value of $150,000 and inventory in the warehouse worth $100,000. The Act lien (for example, in the context of a 37. If a borrower requesting a loan and Regulation require that flood insurance loan renewal), the lender may presume secured by a junior lien provides coverage be obtained for the lesser of the that the amount of insurance coverage evidence that flood insurance coverage outstanding principal balance of the loan or relating to the senior lien in place at the is in place, does the lender have to the maximum amount of flood insurance that time the junior lien was first established make a new determination? Does the is available under the NFIP. The maximum (provided that the amount of flood lender have to adjust the insurance amount of insurance that is available for both building and contents is $500,000 for each insurance relating to the senior lien was coverage? adequate at the time) continues to be category. In this situation, Federal flood Answer: It depends. Assuming the insurance requirements could be satisfied by sufficient. requirements in Section 528 of the Act placing $150,000 worth of flood insurance Example 1: Lender A makes a first (42 U.S.C. 4104b) are met and the same coverage on the warehouse, thus insuring it mortgage with a principal balance of lender made the first mortgage, then a to its insurable value, and $50,000 worth of contents flood insurance coverage on the $100,000, but improperly requires only new determination may not be $75,000 of flood insurance coverage, which inventory, thus providing total coverage in the borrower satisfied by obtaining an NFIP necessary, when the existing the amount of the outstanding principal policy. Lender B issues a second mortgage determination is not more than seven balance of the loan. Note that this holds true with a principal balance of $50,000. The years old, there have been no map even though the inventory is worth $200,000. insurable value of the residential building changes, and the determination was securing the loans is $200,000. Lender B recorded on an SFHDF. If, however, a 40. If a loan is secured by Building A, must ensure that flood insurance in the lender other than the one that made the which is located in an SFHA, and amount of $150,000 is purchased and first mortgage loan is making the junior contents, which are located in Building maintained. If Lender B were to require lien loan, a new determination would be B, is flood insurance required on the additional flood insurance only in an amount equal to the principal balance of the second required because this lender would be contents securing a loan? mortgage ($50,000), its interest in the secured deemed to be ‘‘making’’ a new loan. In Answer: No. If collateral securing the property would not be fully protected in the either situation, the lender will need to loan is stored in Building B, which does event of a flood loss because Lender A would determine whether the amount of not secure the loan, then flood have prior claim on $100,000 of the loss insurance in force is sufficient to cover insurance is not required on those payment towards its principal balance of the lesser of the combined outstanding contents whether or not Building B is $100,000, while Lender B would receive only principal balance of all loans (including located in an SFHA. $25,000 of the loss payment toward its the junior lien loan), the insurable principal balance of $50,000. value, or the maximum amount of 41. Does the Regulation apply where the Example 2: Lender A, who is not directly coverage available on the improved real lender takes a security interest in a covered by the Act or Regulation, makes a estate. This will hold true whether the building or mobile home located in an first mortgage with a principal balance of SFHA only as an ‘‘abundance of $100,000 and does not require flood subordinate lien loan is a home equity insurance. Lender B, who is directly covered loan or some other type of junior lien caution’’? by the Act and Regulation, issues a second loan. Answer: Yes. The Act and Regulation mortgage with a principal balance of $50,000. look to the collateral securing the loan. The insurable value of the residential 38. If the loan request is to finance inventory stored in a building located If the lender takes a security interest in building securing the loans is $200,000. improved real estate located in an Lender B must ensure that flood insurance in within an SFHA, but the building is not SFHA, then flood insurance is required. the amount of $150,000 is purchased and security for the loan, is flood insurance maintained. If Lender B were to require flood required? 42. If a borrower offers a note on a insurance only in an amount equal to the Answer: No. The Act and the single-family dwelling as collateral for a principal balance of the second mortgage loan but the lender does not take a ($50,000) through an NFIP policy, then its Regulation provide that a lender shall interest in the secured property would not be not make, increase, extend, or renew a security interest in the dwelling itself, is protected in the event of a flood loss because designated loan, that is a loan secured this a designated loan that requires Lender A would have prior claim on the by a building or mobile home located or flood insurance? entire $50,000 loss payment towards its to be located in an SFHA, ‘‘unless the Answer: No. A designated loan is a principal balance of $100,000. building or mobile home and any loan secured by a building or mobile Example 3: Lender A made a first mortgage personal property securing such loan’’ is home. In this example, the lender did with a principal balance of $100,000 on covered by flood insurance for the term not take a security interest in the improved real estate with a fair market value of the loan. In this example, the of $150,000. The insurable value of the building; therefore, the loan is not a residential building on the improved real collateral is not the type that could designated loan. secure a designated loan because it does estate is $90,000; however, Lender A 43. If a lender makes a loan that is not not include a building or mobile home; improperly required only $70,000 of flood secured by real estate, but is made on insurance coverage, which the borrower rather, the collateral is the inventory the condition of a personal guarantee by satisfied by purchasing an NFIP policy. alone. Lender B later takes a second mortgage on the a third party who gives the lender a property with a principal balance of $10,000. 39. Is flood insurance required if a security interest in improved real estate Lender B must ensure that flood insurance in building and its contents both secure a owned by the third party that is located the amount of $90,000 (the insurable value) loan, and the building is located in an in an SFHA in which flood insurance is is purchased and maintained on the secured SFHA in which flood insurance is available, is it a designated loan that property to comply with the Act and available? requires flood insurance? Regulation. If Lender B were to require flood insurance only in an amount equal to the Answer: Yes. Flood insurance is Answer: Yes. The making of a loan on principal balance of the second mortgage required for the building located in the condition of a personal guarantee by a ($10,000), its interest in the secured property SFHA and any contents stored in that third party and further secured by would not be protected in the event of a flood building. improved real estate, which is located in

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an SFHA, owned by that third party is force placement, and flood hazard designated loan, it must also comply so closely tied to the making of the loan determination fee provisions of the Act with the Act and Regulation. that it is considered a designated loan and Regulation primarily so that they Where a regulated lender purchases that requires flood insurance. may perform the administrative tasks for only the servicing rights to a loan the regulated lender, without fear of originated by a nonregulated lender, the VIII. Flood Insurance Requirements in liability to the borrower for the regulated lender is obligated only to the Event of the Sale or Transfer of a imposition of unauthorized charges. It is follow the terms of its servicing contract Designated Loan and/or Its Servicing the Agencies’ longstanding position, as with the owner of the loan. In the event Rights described in the preamble to the the regulated lender subsequently sells 44. How do the flood insurance Regulation that the obligation of a loan or transfers the servicing rights on that requirements under the Regulation servicer to fulfill administrative duties loan, the regulated lender must notify apply to regulated lenders under the with respect to the flood insurance FEMA or its designee of the identity of following scenarios involving loan requirements arises from the contractual the new servicer, if required to do so by servicing? relationship between the loan servicer the servicing contract with the owner of and the regulated lender or from other Scenario 1: A regulated lender the loan. commonly accepted standards for originates a designated loan secured by performance of servicing obligations. 45. When a regulated lender makes a a building or mobile home located in an The regulated lender remains ultimately designated loan and will be servicing SFHA in which flood insurance is liable for fulfillment of those that loan, what are the requirements for available under the Act. The regulated responsibilities, and must take adequate notifying the Director of FEMA or the lender makes the initial flood steps to ensure that the loan servicer Director’s designee? determination, provides the borrower will maintain compliance with the flood Answer: FEMA stated in a June 4, with appropriate notice, and flood insurance requirements. insurance is obtained. The regulated 1996, letter that the Director’s designee Scenario 2: A nonregulated lender is the insurance company issuing the lender initially services the loan; originates a designated loan, secured by however, the regulated lender flood insurance policy. The borrower’s a building or mobile home located in an purchase of a policy (or the regulated subsequently sells both the loan and the SFHA in which flood insurance is servicing rights to a nonregulated party. lender’s force placement of a policy) available under the Act. The will constitute notice to FEMA when What are the regulated lender’s nonregulated lender does not make an requirements under the Regulation? the regulated lender is servicing that initial flood determination or notify the loan. What are the regulated lender’s borrower of the need to obtain requirements under the Regulation if it In the event the servicing is insurance. The nonregulated lender subsequently transferred to a new only transfers or sells the servicing sells the loan and servicing rights to a rights, but retains ownership of the servicer, the regulated lender must regulated lender. What are the regulated provide notice to the insurance loan? lender’s requirements under the company of the identity of the new Answer: The regulated lender must Regulation? What are the regulated servicer no later than 60 days after the comply with all requirements of the lender’s requirements if it only effective date of such a change. Regulation, including making the initial purchases the servicing rights? flood determination, providing Answer: A regulated lender’s 46. Would a RESPA Notice of Transfer appropriate notice to the borrower, and purchase of a loan and servicing rights, sent to the Director of FEMA (or the ensuring that the proper amount of secured by a building or mobile home Director’s designee) satisfy the insurance is obtained. In the event the located in an SFHA in which flood regulatory provisions of the Act? regulated lender sells or transfers the insurance is available under the Act, is loan and servicing rights, the regulated not an event that triggers any Answer: Yes. The delivery of a copy lender must provide notice of the requirements under the Regulation, of the Notice of Transfer or any other identity of the new servicer to FEMA or such as making a new flood form of notice is sufficient if the sender its designee. Once the regulated lender determination or requiring a borrower to includes, on or with the notice, the has sold the loan and the servicing purchase flood insurance. The following information that FEMA has rights, the lender has no further indicated is needed by its designee: Regulation’s requirements are triggered • obligation regarding flood insurance on when a regulated lender makes, Borrower’s full name; • the loan. increases, extends, or renews a Flood insurance policy number; If the regulated lender retains designated loan. A regulated lender’s • Property address (including city ownership of the loan and only transfers purchase of a loan does not fall within and State); or sells the servicing rights to a any of those categories. However, if a • Name of lender or servicer making nonregulated party, the regulated lender regulated lender becomes aware at any notification; must notify FEMA or its designee of the point during the life of a designated • Name and address of new servicer; identity of the new servicer. The loan that flood insurance is required, and servicing contract should require the then the regulated lender must comply • Name and telephone number of servicer to comply with all the with the Regulation, including force contact person at new servicer. requirements that are imposed on the placing insurance, if necessary. 47. Can delivery of the notice be made regulated lender as owner of the loan, Depending upon the circumstances, electronically, including batch including escrow of insurance safety and soundness considerations transmissions? premiums and force placement of may sometimes necessitate that the insurance, if necessary. lender undertake sufficient due Answer: Yes. The Regulation Generally, the Regulation does not diligence upon purchase of a loan as to specifically permits transmission by impose obligations on a loan servicer put the lender on notice of lack of electronic means. A timely batch independent from the obligations it adequate flood insurance. If the transmission of the notice would also be imposes on the owner of a loan. Loan purchasing lender subsequently permissible, if it is acceptable to the servicers are covered by the escrow, extends, increases, or renews a Director’s designee.

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48. If the loan and its servicing rights as ‘‘real estate upon which a home or cooperatives, although covered by are sold by the regulated lender, is the other residential building is located or Section 10 of RESPA, are not insurable regulated lender required to provide to be located.’’ A loan secured by under the NFIP and are not covered by notice to the Director or the Director’s residential improved real estate located the Regulation.) Loans on multi-family designee? or to be located in an SFHA in which dwellings with five or more units are Answer: Yes. Failure to provide such flood insurance is available is a not covered by RESPA requirements. notice would defeat the purpose of the designated loan. Lenders are required to Pursuant to the Regulation, however, notice requirement because FEMA escrow flood insurance premiums and lenders must escrow premiums and fees would have no record of the identity of fees for mandatory flood insurance for for any required flood insurance if the either the owner or servicer of the loan. such loans if the lender requires the lender requires escrows for other escrow of taxes, hazard insurance purposes, such as hazard insurance or 49. Is a regulated lender required to premiums or any other charges for loans taxes. provide notice when the servicer, not the secured by residential improved real 53. Do voluntary escrow accounts regulated lender, sells or transfers the estate. A lender is not required to established at the request of the servicing rights to another servicer? escrow flood insurance premiums and borrower trigger a requirement for the fees for a particular loan if it does not Answer: No. After servicing rights are lender to escrow premiums for required require escrowing of any other charges sold or transferred, subsequent flood insurance? notification obligations are the for that loan. Answer: No. If escrow accounts for responsibility of the new servicer. The Multi-family buildings. For the other purposes are established at the obligation of the regulated lender to purposes of the Act and the Regulation, voluntary request of the borrower, the notify the Director or the Director’s the definition of residential improved lender is not required to establish designee of the identity of the servicer real estate does not make a distinction escrow accounts for flood insurance transfers to the new servicer. The duty between whether a building is single- or premiums. Examiners should review the to notify the Director or the Director’s multi-family, or whether a building is loan policies of the lender and the designee of any subsequent sale or owner- or renter-occupied. Single- underlying legal obligation between the transfer of the servicing rights and family dwellings (including mobile homes), two-to-four family dwellings, parties to the loan to determine whether responsibilities belongs to that servicer. and multi-family properties containing the accounts are, in fact, voluntary. For For example, a financial institution five or more residential units are example, when a lender’s loan policies makes and services the loan. It then covered under the Act’s escrow require borrowers to establish escrow sells the loan in the secondary market provisions. If the building securing the accounts for other purposes and the and also sells the servicing rights to a loan meets the Regulation’s definition of contractual obligation permits the mortgage company. The financial residential improved real estate and the lender to establish escrow accounts for institution notifies the Director’s lender requires the escrow of any other those other purposes, the lender will designee of the identity of the new charges such as taxes or hazard have the burden of demonstrating that servicer and the other information insurance premiums, then the lender is an existing escrow was made pursuant requested by FEMA so that flood required to also escrow premiums and to a voluntary request by the borrower. insurance transactions can be properly fees for flood insurance. administered by the Director’s designee. Mixed-use properties. The lender 54. Will premiums paid for credit life If the mortgage company later sells the should look to the primary use of a insurance, disability insurance, or servicing rights to another firm, the building to determine whether it meets similar insurance programs be viewed mortgage company, not the financial the definition of ‘‘residential improved as escrow accounts requiring the escrow institution, is responsible for notifying real estate.’’ (See questions and answers of flood insurance premiums? the Director’s designee of the identity of 11 and 12 for guidance on residential Answer: No. Premiums paid for these the new servicer. and nonresidential buildings.) If the types of insurance policies will not 50. In the event of a merger or primary use of a mixed-use property is trigger the escrow requirement for flood acquisition of one lending institution for residential purposes, the insurance premiums. Regulation’s escrow requirements apply. with another, what are the 55. Will escrow-type accounts for responsibilities of the parties for 52. When must escrow accounts be commercial loans, secured by multi- notifying the Director’s designee? established for flood insurance family residential buildings, trigger the Answer: If an institution is acquired purposes? escrow requirement for flood insurance by or merges with another institution, Answer: If a lender requires the premiums? the duty to provide notice for the loans escrow of taxes, insurance premiums, Answer: It depends. Escrow-type being serviced by the acquired fees, or any other charges for a loan accounts established in connection with institution will fall to the successor secured by residential improved real the underlying agreement between the institution in the event that notification estate or a mobile home, the lender must buyer and seller, or that relate to the is not provided by the acquired also require the escrow of all flood commercial venture itself, such as institution prior to the effective date of insurance premiums and fees. When ‘‘interest reserve accounts,’’ the acquisition or merger. administering loans secured by one-to- ‘‘compensating balance accounts,’’ IX. Escrow Requirements four family dwellings, lenders should ‘‘marketing accounts,’’ and similar look to the definition of ‘‘Federally accounts are not the type of accounts 51. Are multi-family buildings or mixed- related mortgage loan’’ contained in the that constitute escrow accounts for the use properties included in the definition Real Estate Settlement Procedures Act purpose of the Regulation. However, of ‘‘residential improved real estate’’ (RESPA) to see whether a particular escrow accounts established for the under the Regulation for which escrows loan is subject to the escrow protection of the property, such as are required? requirements in Section 10 of RESPA. escrows for hazard insurance premiums Answer: ‘‘Residential improved real (This includes individual units of or local real estate taxes, are the types estate’’ is defined under the Regulation condominiums. Individual units of of escrow accounts that trigger the

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requirement to escrow flood insurance the borrower and may charge the 62. Does a lender or its servicer have the premiums. borrower for the cost of premiums and authority to charge a borrower for the fees to obtain the coverage. The Act cost of insurance coverage during the 56. Which requirements for escrow does not permit a lender or its servicer 45-day notice period? accounts apply to properties adequately to send the required 45-day notice to the covered by RCBAPs? Answer: [Reserved] borrower prior to making a Answer: RCBAPs (Residential determination that flood insurance XI. Private Insurance Policies Condominium Building Association coverage is inadequate. If adequate 63. May a lender rely on a private Policies) are policies purchased by the insurance is not obtained by the insurance policy to meet its obligation condominium association on behalf of borrower within the 45-day notice to ensure that its designated loans are itself and the individual unit owners in period, then the lender must purchase covered by an adequate amount of flood the condominium. A portion of the insurance on the borrower’s behalf. insurance? periodic dues paid to the association by Standard Fannie Mae/Freddie Mac Answer: It depends. A private the condominium owners applies to the documents permit the servicer or lender insurance policy may be an adequate premiums on the policy. When a lender to add those charges to the principal substitute for NFIP insurance if it meets makes, increases, renews, or extends a amount of the loan. loan secured by a condominium unit the criteria set forth by FEMA in its FEMA developed the Mortgage Mandatory Purchase of Flood Insurance that is adequately covered by an RCBAP Portfolio Protection Program (MPPP) to and dues to the condominium Guidelines. Similarly, a private assist lenders in connection with force insurance policy may be used to association apply to the RCBAP placement procedures. FEMA published premiums, an escrow account is not supplement NFIP insurance for these procedures in the Federal Register designated loans where the property is required. However, if the RCBAP on August 29, 1995 (60 FR 44881). coverage is inadequate and the unit is underinsured if it meets the criteria set Appendix A of FEMA’s September 2007 forth by FEMA in its Mandatory also covered by a dwelling form policy, Mandatory Purchase of Flood Insurance Purchase of Flood Insurance Guidelines. premiums for the dwelling form policy Guidelines sets out the MPPP FEMA states that, to the extent that a would need to be escrowed if the lender Guidelines and Requirements, including private policy differs from the NFIP requires escrow for other purposes, such force placement procedures and Standard Flood Insurance Policy, the as hazard insurance or taxes. Lenders examples of notification letters to be differences should be carefully should exercise due diligence with used in connection with the MPPP. examined before the policy is accepted respect to continuing compliance with as sufficient protection under the law. the insurance requirements on the part 58. Can a servicer force place on behalf FEMA also states that the suitability of of the condominium association. of a lender? private policies need only be considered X. Force Placement of Flood Insurance Answer: Yes. Assuming the statutory when the mandatory purchase requirement applies. 57. What is the requirement for the force prerequisites for force placement are placement of flood insurance under the met, and subject to the servicing 64. When may a lender rely on a private Act and Regulation? contract between the lender and the insurance policy that does not meet the servicer, the Act clearly authorizes criteria set forth by FEMA? Answer: The Act and Regulation servicers to force place flood insurance require a lender to force place flood on behalf of the lender, following the Answer: A lender may rely on a private insurance policy that does not insurance, if all of the following procedures set forth in the Regulation. circumstances occur: meet the criteria set forth by FEMA only • The lender determines at any time 59. When force placement occurs, what in limited circumstances. For example, during the life of the loan that the is the amount of insurance required to when a flood insurance policy has property securing the loan is located in be placed? expired and the borrower has failed to an SFHA; renew coverage, private insurance Answer: The amount of flood • Flood insurance under the Act is policies that do not meet the criteria set insurance coverage required is the same available for improved property forth by FEMA, such as private regardless of how the insurance is securing the loan; insurance policies providing portfolio- placed. (See Section II. Determining the • The lender determines that flood wide blanket coverage, may be useful appropriate amount of flood insurance insurance coverage is inadequate or protection for the lender for a gap in required under the Act and Regulation does not exist; and coverage in the period of time before a and also Section VII. Flood Insurance • After required notice, the borrower force placed policy takes effect. Requirements for Home Equity Loans, fails to purchase the appropriate amount However, the lender must still force Lines of Credit, Subordinate Liens, and of coverage. place adequate coverage in a timely The Act and Regulation require the Other Security Interests in Collateral manner, as required, and may not rely lender, or its servicer, to send notice to Located in an SFHA.) on a private insurance policy that does the borrower upon making a 60. Can the 45-day notice period be not meet the criteria set forth by FEMA determination that the improved real accelerated by sending notice to the on an ongoing basis. estate collateral’s insurance coverage borrower prior to the actual date of XII. Required Use of Standard Flood has expired or is less than the amount expiration of flood insurance coverage? Hazard Determination Form (SFHDF) required for that particular property, such as upon receipt of the notice of Answer: [Reserved] 65. Does the SFHDF replace the borrower notification form? cancellation or expiration from the 61. Is a reasonable period of time insurance provider. The notice to the allowed after the end of the 45-day Answer: No. The SFHDF is used by borrower must also state that if the notice period for a lender or its servicer the lender to determine whether the borrower does not obtain the insurance to implement force placement? building or mobile home offered as within the 45-day period, the lender collateral security for a loan is or will will purchase the insurance on behalf of Answer: [Reserved] be located in an SFHA in which flood

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insurance is available under the Act. transaction, the basis for the agree that a determination fee may The notification form, on the other determination was set forth on the include, among other things, reasonable hand, is used to notify the borrower(s) SFHDF, and there were no map fees for a lender, servicer, or third party that the building or mobile home is or revisions or updates affecting the to monitor the flood hazard status of will be located in an SFHA and to security property since the original property securing a loan in order to inform them about flood insurance determination was made. A loan make determinations on an ongoing requirements and the availability of refinancing or assumption made by a basis. Federal disaster relief assistance. lender different from the one who However, the life-of-loan fee is based on the authority to charge a 66. May a lender provide the SFHDF to obtained the original determination determination fee and, therefore, the the borrower? constitutes a new loan, thereby requiring a new determination. Further, monitoring fee may be charged only if Answer: Yes. While not a statutory if the same lender makes multiple loans the events specified in the answer to requirement, a lender may provide a to the same borrower secured by the Question 69 occur. Further, a lender copy of the flood determination to the same improved real estate, the lender may not charge a composite borrower so the borrower can provide it may rely on its previous determination determination and life-of-loan fee if the to the insurance agent in order to if the original determination was made loan does not close, because the life-of- minimize flood zone discrepancies not more than seven years before the loan fee would be an unearned fee in between the lender’s determination and date of the transaction, the basis for the violation of the Real Estate Settlement the borrower’s policy. A lender would determination was set forth on the Procedures Act. also need to make the determination SFHDF, and there were no map XIV. Flood Zone Discrepancies available to the borrower in case of a revisions or updates affecting the special flood hazard determination security property since the original 71. What should a lender do when there review, which must be requested jointly determination was made. is a discrepancy between the flood by the lender and the borrower. In the hazard zone designation on the flood event a lender provides the SFHDF to XIII. Flood Determination Fees determination form and the flood the borrower, the signature of the 69. When can lenders or servicers insurance policy? borrower is not required to acknowledge charge the borrower a fee for making a receipt of the form. A lender should only be concerned determination? about a discrepancy on the Standard 67. May the SFHDF be used in electronic Answer: There are four instances Flood Hazard Determination Form (the format? under the Act and Regulation when the SFHDF) and the one on the flood Answer: Yes. In the final rule borrower can be charged a specific fee insurance policy if the discrepancy is adopting the SFHDF, FEMA stated: ‘‘If for a flood determination: between a high-risk zone (A or V) and an electronic format is used, the format • When the determination is made in a low- or moderate-risk zone (B, C, D, and exact layout of the Standard Flood connection with the making, increasing, or X). In other words, a lender need not Hazard Determination Form is not extending, or renewing of a loan that is be concerned about subcategory required, but the fields and elements initiated by the borrower; differences between flood zones on listed on the form are required. Any • When the determination is these two documents. Once in electronic format used by lenders must prompted by a revision or updating by possession of a copy of the flood contain all mandatory fields indicated FEMA of floodplain areas or flood-risk insurance policy, a lender should on the form.’’ It should be noted, zones; systematically compare the flood zone however, that the lender must be able to • When the determination is designation on the policy with the zone reproduce the form upon receiving a prompted by FEMA’s publication of shown on the SFHDF. If the flood document request by its Federal notices or compendia that affect the area insurance policy shows a lower risk supervisory agency. in which the security property is zone than the SFHDF, then lender located; or should investigate. As noted in FEMA’s 68. May a lender rely on a previous • When the determination results in Mandatory Purchase of Flood Insurance determination for a refinancing or force placement of insurance. Guidelines, Federal law sets the assumption of a loan or multiple loans Loan or other contractual documents ultimate responsibility to place flood to the same borrower secured by the between the parties may also permit the insurance on the lender, with limited same property? imposition of fees. reliance permitted on third parties to Answer: It depends. Section 528 of the the extent that the information that Act, 42 U.S.C. 4104b(e), permits a 70. May charges made for life-of-loan those third parties provide is lender to rely on a previous flood reviews by flood determination firms be guaranteed. determination using the SFHDF when it passed along to the borrower? A lender should first determine is increasing, extending, renewing, or Answer: Yes. In addition to the initial whether the difference results from the purchasing a loan secured by a building determination at the time a loan is application of the NFIP’s ‘‘Grandfather or a mobile home. Under the Act, the made, increased, renewed, or extended, Rule.’’ This rule provides for the ‘‘making’’ of a loan is not listed as a many flood determination firms provide continued use of a rating on an insured permissible event that permits a lender a service to the lender to review and property when the initial flood to rely on a previous determination. report changes in the flood status of a insurance policy was issued prior to When the loan involves a refinancing or dwelling for the entire term of the loan. changes in the hazard rating for the assumption by the same lender who The fee charged for the service at loan particular flood zone where the property obtained the original flood closing is a composite one for is located. The Grandfather Rule allows determination on the same property, the conducting both the original and policyholders who have maintained lender may rely on the previous subsequent reviews. Charging a fee for continuous coverage and/or who have determination only if the original the original determination is clearly built in compliance with the Flood determination was made not more than within the permissible purpose Insurance Rate Map to continue to seven years before the date of the envisioned by the Act. The Agencies benefit from the prior, more favorable

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rating for particular pieces of improved either by finding a legitimate reason for permanent foundation and is located in property. A discrepancy resulting from such discrepancy or by attempting to an SFHA in which flood insurance is application of the NFIP’s Grandfather resolve the discrepancy, for example, by available under the Act, flood insurance Rule is reasonable and acceptable, but contacting FEMA to review the coverage becomes mandatory and the lender should substantiate these determination, no violation will be appropriate notice must be given to the findings. cited. If a pattern or practice of borrower under those provisions. If the A lender should also determine unresolved discrepancies is found in a borrower fails to purchase flood whether a difference in flood zone lender’s loan portfolio due to a lack of insurance coverage within 45 days after designations is the result of a mistake. effort on the lender’s part to resolve notification, the lender must force place To do so, a lender should facilitate such discrepancies, the Agencies may the insurance. communication between itself or the cite the lender for a violation of the 75. When is the lender required to third-party service provider that mandatory purchase requirements. performed the flood hazard provide notice to the servicer of a loan determination for the lender. If it XV. Notice of Special Flood Hazards that flood insurance is required? appears that the discrepancy is the and Availability of Federal Disaster Answer: Because the servicer of a loan result of a mistake, a lender should Relief is often not identified prior to the recheck its determination. If there still 73. Does the notice have to be provided closing of a loan, the Regulation appears to be a discrepancy after this to each borrower for a real estate related requires that notice be provided no later step has been taken, a lender and loan? than the time the lender transmits other borrower may jointly request that FEMA loan data, such as information Answer: No. In a transaction involving review the determination to confirm or concerning hazard insurance and taxes, multiple borrowers, the lender need review the accuracy of the original to the servicer. determination performed by a lender or only provide the notice to any one of the on the lender’s behalf. However, FEMA borrowers in the transaction. Lenders 76. What will constitute appropriate will only conduct this review if the may provide multiple notices if they form of notice to the servicer? request is submitted within 45 days of choose. The lender and borrower(s) Answer: Delivery to the servicer of a the date the lender notified the borrower typically designate the borrower to copy of the notice given to the borrower that a building or manufactured home is whom the notice will be provided. The is appropriate notice. The Regulation in an SFHA and flood insurance is notice must be provided to a borrower also provides that the notice can be required. when the lender determines that the made either electronically or by a If, despite these efforts, the property securing the loan is or will be written copy. discrepancy is not resolved, or in the located in an SFHA. 77. In the case of a servicer affiliated course of attempting to resolve a 74. Lenders making loans on mobile discrepancy, a borrower or an insurance with the lender, is it necessary to homes may not always know where the provide the notice? company or its agent is uncooperative in home is to be located until just prior to, assisting a lender in this attempt, the or sometimes after, the time of loan Answer: Yes. The Act requires the lender should notify the insurance agent closing. How is the notice requirement lender to notify the servicer of special about the insurer’s duty pursuant to applied in these situations? flood hazards and the Regulation FEMA’s letter of April 16, 2008 (W– reflects this requirement. Neither 08021), to write a flood insurance policy Answer: When it is not reasonably contains an exception for affiliates. that covers the most hazardous flood feasible to give notice before the zone. When providing this notification, completion of the transaction, the notice 78. How long does the lender have to the lender should include its zone requirement can be met by lenders in maintain the record of receipt by the information and it should also notify the mobile home loan transactions if notice borrower of the notice? insurance company itself. The lender is provided to the borrower as soon as Answer: The record of receipt should substantiate these practicable after determination that the provided by the borrower must be communications in its loan file. mobile home will be located in an maintained for the time that the lender SFHA. Whenever time constraints can owns the loan. Lenders may keep the 72. Can a lender be found in violation be anticipated, regulated lenders should record in the form that best suits the of the requirements of the Regulation if, use their best efforts to provide adequate lender’s business practices. Lenders despite the lender’s diligence in making notice of flood hazards to borrowers at may retain the record electronically, but the flood hazard determination, the earliest possible time. In the case of they must be able to retrieve the record notifying the borrower of the risk of loan transactions secured by mobile within a reasonable time pursuant to a flood and the need to obtain flood homes not located on a permanent document request from their Federal insurance, and requiring mandatory foundation, the Agencies note that such supervisory agency. flood insurance, there is a discrepancy ‘‘home only’’ transactions are excluded between the flood hazard zone from the definition of mobile home and 79. Can a lender rely on a previous designation on the flood determination the notice requirements would not notice if it is less than seven years old, form and the flood insurance policy? apply to these transactions. and it is the same property, same Answer: As noted in question and However, as indicated in the borrower, and same lender? answer 71 above, lenders should have a preamble to the Regulation, the Answer: No. The preamble to the process in place to identify and resolve Agencies encourage a lender to advise Regulation states that subsequent flood zone discrepancies. A lender is in the borrower that if the mobile home is transactions by the same lender with the best position to coordinate between later located on a permanent foundation respect to the same property will be the various parties involved in a in an SFHA, flood insurance will be treated as a renewal and will require no mortgage loan transaction to resolve any required. If the lender, when notified of new determination. However, neither flood zone discrepancy. If a lender is the location of the mobile home the Regulation nor the preamble able to substantiate in its loan file a subsequent to the loan closing, addresses waiving the requirement to bona fide effort to resolve a discrepancy, determines that it has been placed on a provide the notice to the borrower.

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Therefore, the lender must provide a into the National Flood Mitigation Fund transactions. (Depending on the new notice to the borrower, even if a held by the Department of the Treasury circumstances, however, violations that new determination is not required. for the benefit of FEMA. involve only a small percentage of an institution’s total activity could 80. Is use of the sample form of notice 82. What constitutes a ‘‘pattern or constitute a pattern or practice); mandatory? practice’’ of violations for which civil • Whether a financial institution was Answer: No. Although lenders are money penalties must be imposed under cited for violations of the Act and required to provide a notice to a the Act? Regulation at prior examinations and borrower when it makes, increases, Answer: The Act does not define the steps taken by the financial extends, or renews a loan secured by an ‘‘pattern or practice.’’ The Agencies institution to correct the identified improved structure located in an SFHA, make a determination of whether a deficiencies; use of the sample form of notice pattern or practice exists by weighing • provided in Appendix A of the the individual facts and circumstances Whether a financial institution’s Regulation or in Appendix 4 of FEMA’s of each case. In making the internal and/or external audit process Mandatory Purchase of Flood Insurance determination, the Agencies look both had not identified and addressed Guidelines is not mandatory. It should to guidance and experience with deficiencies in its flood insurance be noted that the sample form includes determinations of pattern or practice compliance; and other information in addition to what is under other regulations (such as • Whether the financial institution required by the Act and the Regulation. Regulation B (Equal Credit Opportunity) lacks generally effective flood insurance Lenders may personalize, change the and Regulation Z (Truth in Lending)), as compliance policies and procedures format of, and add information to the well as Agencies’ precedents in and/or a training program for its sample form of notice, if they choose. assessing civil money penalties for flood employees. However, a lender-revised notice must insurance violations. Although these guidelines and provide the borrower with at least the The Policy Statement on considerations are not dispositive of a minimum information required by the Discrimination in Lending (Policy final resolution, they do serve as a Act and Regulation. Therefore, lenders Statement) provided the following reference point in assessing whether should consult the Act and Regulation guidance on what constitutes a pattern there may be a pattern or practice of to determine the information needed. or practice: violations of the Act and Regulation in XVI. Mandatory Civil Money Penalties Isolated, unrelated, or accidental a particular case. As previously stated, occurrences will not constitute a pattern or the presence or absence of one or more 81. Which violations of the Act can practice. However, repeated, intentional, of these considerations may not result in a mandatory civil money regular, usual, deliberate, or institutionalized eliminate a finding that a pattern or penalty? practices will almost always constitute a practice exists. Answer: A pattern or practice of pattern or practice. The totality of the circumstances must be considered when End of text of the Interagency violations of any of the following Questions and Answers Regarding requirements of the Act and their assessing whether a pattern or practice is present. Flood Insurance. implementing Regulation triggers a mandatory civil money penalty: In determining whether a financial Dated: May 15, 2009. • Purchase of flood insurance where institution has engaged in a pattern or John C. Dugan, available (42 U.S.C. 4012a(b)); practice of flood insurance violations, Comptroller of the Currency. • Escrow of flood insurance the Agencies’ considerations may By order of the Board of Governors of the premiums (42 U.S.C. 4012a(d)); include, but are not limited to, the Federal Reserve System, July 14, 2009. • Force placement of flood insurance presence of one or more of the following Jennifer J. Johnson, (42 U.S.C. 4012a(e)); factors: • Notice of special flood hazards and • Whether the conduct resulted from Secretary of the Board. the availability of Federal disaster relief a common cause or source within the Dated at Washington, DC, this 8th day of assistance (42 U.S.C. 4104a(a)); and financial institution’s control; July, 2009. • Notice of servicer and any change of • Whether the conduct appears to be Robert E. Feldman, servicer (42 U.S.C. 4101a(b)). grounded in a written or unwritten Executive Secretary, Federal Deposit The Act states that any regulated policy or established practice; Insurance Corporation. lending institution found to have a • Whether the noncompliance Dated: April 2, 2009. pattern or practice of certain violations occurred over an extended period of By the Office of Thrift Supervision. ‘‘shall be assessed a civil penalty’’ by its time; Federal supervisor in an amount not to • The relationship of the instances of John E. Bowman, exceed $350 per violation, with a ceiling noncompliance to one another (for Acting Director. per institution of $100,000 during any example, whether the instances of Date: July 8, 2009 calendar year (42 U.S.C. 4012a(f)(5)). noncompliance occurred in the same Roland E. Smith, Each Agency adjusts these limits area of a financial institution’s Secretary, Farm Credit Administration Board. pursuant to the Federal Civil Penalties operations); Inflation Adjustment Act of 1990, as • Whether the number of instances of By the National Credit Union Administration Board, on June 5, 2009. amended by the Debt Collection noncompliance is significant relative to Improvement Act of 1996, 28 U.S.C. the total number of applicable Mary F. Rupp, 2461 note.13 Lenders pay the penalties Secretary of the Board. (FDIC); 12 CFR 509.103(c) (OTS); 12 CFR 622.61(b) [FR Doc. E9–17129 Filed 7–20–09; 8:45 am] 13 Please refer to 12 CFR 19.240(a) (OCC); 12 CFR (FCA); and 12 CFR 747.1001(a) (NCUA) for the BILLING CODE 4810–33–P; 6210–01–P; 6714–01–P; 263.65(b)(10) (Board); 12 CFR 308.132(c)(xvi) Agencies’ current civil penalty limits. 6720–01–P; 6705–01–P; 7535–01–P

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Part III

Department of Transportation Federal Railroad Administration

49 CFR Parts 229, 234, 235 et al. Positive Train Control Systems; Proposed Rule

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DEPARTMENT OF TRANSPORTATION www.regulations.gov including any Table of Contents for Supplementary personal information. Please see the Information Federal Railroad Administration Privacy Act heading in the I. Introduction SUPPLEMENTARY INFORMATION section of II. Background 49 CFR Parts 229, 234, 235, and 236 this document for Privacy Act A. The Need for Positive Train Control [Docket No. FRA–2008–0132, Notice No. 1] information related to any submitted Technology comments or materials. B. Earlier Efforts to Encourage Voluntary RIN 2130–AC03 PTC Implementation Docket: For access to the docket to C. Technology Advances Under Subpart H Positive Train Control Systems read background documents or III. The Rail Safety Improvement Act of 2008 comments received, go to http:// IV. RSAC AGENCY: Federal Railroad www.regulations.gov at any time or to V. Use of Performance Standards Administration (FRA), Department of Room W12–140 on the Ground level of VI. Section-by-Section Analysis Transportation (DOT). the West Building, 1200 New Jersey VII. Regulatory Impact and Notices ACTION: Notice of proposed rulemaking. Avenue, SE., Washington, DC between 9 A. Executive Order 12866 and DOT Regulatory Policies and Procedures a.m. and 5 p.m. Monday through Friday, B. Regulatory Flexibility Act and Executive SUMMARY: FRA proposes regulations except Federal Holidays. implementing a requirement of the Rail Order 13272 C. Paperwork Reduction Act Safety Improvement Act of 2008 that FOR FURTHER INFORMATION CONTACT: Thomas McFarlin, Office of Safety D. Federalism Implications certain passenger and freight railroads E. Environmental Impact install positive train control systems. Assurance and Compliance, Staff F. Unfunded Mandates Reform Act of 1995 The proposal includes required Director, Signal & Train Control G. Energy Impact functionalities of the technology and the Division, Federal Railroad H. Privacy Act means by which it would be certified. Administration, Mail Stop 25, West VIII. The Rule Building 3rd Floor West, Room W35– The proposal also describes the contents I. Introduction of the positive train control 332, 1200 New Jersey Avenue, SE., This proposed rule provides new implementation plans required by the Washington, DC 20590 (telephone: 202– performance standards for the statute and contains the proposed 493–6203); or Jason Schlosberg, Trial implementation and operation of PTC process for submission of those plans Attorney, Office of Chief Counsel, RCC– systems as mandated by RSIA08 and as for review and approval by FRA. These 10, Mail Stop 10, West Building 3rd otherwise voluntarily adopted. The proposed regulations could also be Floor, Room W31–217, 1200 New Jersey proposed rule also details the process voluntarily complied with by entities Avenue, SE., Washington, DC 20590 (telephone: 202–493–6032). and identifies the documents that not mandated to install positive train railroads and operators of passenger control systems. SUPPLEMENTARY INFORMATION: FRA is trains are to utilize and incorporate in DATES: (1) Written comments must be issuing this proposed rule to provide their PTC implementation plans received by August 20, 2009. Comments regulatory guidance and performance required by the Railroad Safety received after that date will be standards for the development, testing, Improvement Act of 2008 section 104, considered to the extent possible implementation, and use of Positive Public Law 110–432, 122 Stat. 4854, without incurring additional expenses Train Control (PTC) systems for (Oct. 16, 2008) (codified at 9 U.S.C. or delays. railroads mandated by the Railroad 20157) (hereinafter ‘‘RSIA08’’). The (2) FRA will hold an oral public Safety Improvement Act of 2008 section proposal also details the process and hearing on a date to be announced in a 104, Public Law 110–432, 122 Stat. 4854 procedure for obtaining FRA approval of forthcoming notice. (Oct. 16, 2008) (codified at 9 U.S.C. such plans. ADDRESSES: Comments: Comments 20157) (hereinafter ‘‘RSIA08’’) to install FRA began the process of developing related to Docket No. FRA–2008–0132, PTC systems. These regulations may a proposed rule after RSIA08 was signed may be submitted by any of the also be voluntarily complied with by into law. While developing the following methods: entities not mandated to install PTC in proposed rule, FRA applied the • Web Site: Comments should be filed lieu of the requirements contained in performance-based principles embodied at the Federal eRulemaking Portal, subpart H of part 236. The proposed in existing subpart H of part 236 to http://www.regulations.gov. Follow the rule establishes requirements for PTC identify and remedy any weaknesses online instructions for submitting system standard design and discovered in the subpart H regulatory comments. functionality, the associated approach, while exploiting lessons • Fax: 202–493–2251. submissions for FRA PTC system learned from products developed under • Mail: Docket Management Facility, approval and certification, requirements subpart H. FRA has continued to make U.S. Department of Transportation, 1200 for training, and required risk-based performance-based safety decisions New Jersey Avenue, SE., W12–140, criteria. The RSIA08 mandates that while supporting railroads in their Washington, DC 20590. widespread implementation of PTC development and implementation of • Hand Delivery: Room W12–140 on across a major portion of the U.S. rail PTC system technologies. the Ground level of the West Building, industry be accomplished by December Development of the proposed rule 1200 New Jersey Avenue, SE., 31, 2015. This proposed rule is intended was enhanced with the participation of Washington, DC between 9 a.m. and 5 to provide the necessary Federal the Railroad Safety Advisory Committee p.m. Monday through Friday, except oversight, guidance, and assistance (RSAC), which tasked a PTC Working Federal holidays. toward successful completion of that Group to provide advice regarding Instructions: All submissions must congressional requirement. This development of implementing include the agency name and docket proposed rule also necessitates or regulations for PTC systems and their number or Regulatory Identification results in some minimal revision or deployment that are required under Number (RIN) for this rulemaking. Note amendment to parts 229, 234 and 235, RSIA08. The PTC Working Group made that all comments received will be as well as previously existing subparts a number of consensus posted without change to http:// A through H of part 236. recommendations, which have been

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identified and included in this proposed against operator error and prevent train of ATCS and a similar system known as rule. The preamble discusses the collisions. Following the Darien Advanced Railroad Electronic Systems statutory background, the regulatory accident, the NTSB continued to (ARES) were tested relatively background, the RSAC proceedings, the investigate one railroad accident after successfully, but the systems were never alternatives considered and the another caused by human error. During deployed on a wide scale primarily due rationale for the option selected, the the next two decades, the NTSB issued to cost. However, sub-elements of these proceedings to date, as well as the a number of safety recommendations systems were employed for various comments and conclusions on general asking for train control measures. purposes, particularly for replacement issues. Other comments and resolutions Following its investigation of the May 7, of pole lines associated with signal are discussed within the corresponding 1986, rear-end collision involving a systems. section-by-section analysis. Boston and Maine Corporation Collisions, derailments, and commuter train and a Consolidated Rail incursions into work zones used by II. Background Incorporated (Conrail) freight train in roadway workers continued as a result A. The Need for Positive Train Control which 153 people were injured, the of the absence of effective enforcement Technology NTSB recommend that FRA promulgate systems designed to compensate for the effects of fatigue and other human Since the early 1920s, systems have standards to require the installation and factors. Renewed emphasis on rules been in use that can intervene in train operation of a train control system that compliance and Federal regulatory operations by warning crews or causing would provide for positive train initiatives, including rules for the trains to stop if they are not being separation. NTSB Recommendation R– 87–16 (May 19, 1987), available at control of alcohol and drug use in operated safely because of inattention, railroad operations, operational testing misinterpretation of wayside signal http://www.ntsb.gov/Recs/letters/1987/ _ and inspection programs designed to indications, or incapacitation of the R87 16.pdf. When the NTSB first established its Most Wanted List of verify railroad rules compliance, crew. Pursuant to orders of the Interstate requirements for qualification and Commerce Commission (ICC)—whose Transportation Safety Improvements in 1990, the issue of Positive Train certification of locomotive engineers, safety regulatory activities were later and negotiated rules for roadway worker transferred to FRA when it was Separation was among the improvements listed, and it remained protection led to some reduction in risk. established in 1967—cab signal systems, However, the lack of an effective automatic train control, and automatic on the list until just after enactment of RSIA08. Original ‘‘Most Wanted’’ list of collision avoidance system allowed the train stop systems were deployed on a continued occurrence of accidents, significant portion of the national rail Transportation Safety Improvements, as adopted September 1990, available at some involving tragic losses of life and system to supplement and enforce the significant property damage. indications of wayside signals and http://www.ntsb.gov/Recs/mostwanted/ _ operating speed limitations. However, original list.htm. The NTSB continues B. Earlier Efforts To Encourage these systems were expensive to install to follow the progress of the Voluntary PTC Implementation and maintain, and with the decline of technology’s implementation closely As the NTSB continued to highlight intercity passenger service following the and participated through staff in the the opportunities for accident Second World War, the ICC and the most recent PTC Working Group prevention associated with emerging industry allowed many of these systems deliberations. train control technology through its to be discontinued. During this period, Meanwhile, enactment of the Staggers investigations and findings, Congress railroads were heavily regulated with Rail Act of 1980 signaled a shift in showed increasing interest, mandating respect to rates and service public policy that permitted the three separate reports over the period of responsibilities. The development of the railroads to shed unprofitable lines, a decade. In 1994, FRA reported to Interstate Highway System and other largely replace published ‘‘tariffs’’ with Congress on this problem, calling for factors led to reductions in the railroads’ appropriately priced contract rates, and implementation of an action plan to revenues without regulatory relief, generally respond to marketplace deploy PTC systems (Railroad leading to bankruptcies, railroad realities, which increasingly demanded Communications and Train Control, mergers, and eventual abandonment of flexible service options responsive to July 1994 (hereinafter ‘‘1994 Report’’)). many rail lines. Consequently, railroads customer needs. The advent of The 1994 Report forecasted substantial focused on fiscal survival, and microprocessor-based electronic control benefits of advanced train control investments in expensive relay-based systems and digital data radio technology in supporting a variety of train control technology were technology during the mid-1980s led the business and safety purposes, but noted economically out of reach. The removal freight railroad industry, through the that an immediate regulatory mandate of these train control systems, which Association of American Railroads for PTC could not be justified based had never been pervasively installed, (AAR) and the Railway Association of upon normal cost-benefit principals permitted train collisions to continue, Canada, to explore the development of relying on direct safety benefits. The notwithstanding enforcement of railroad Advanced Train Control Systems report outlined an aggressive Action operating rules designed to prevent (ATCS). With broad participation by Plan implementing a public-private them. suppliers, railroads, and FRA, detailed sector partnership to explore technology As early as 1970, following its specifications were developed for a potential, deploy systems for investigation of the August 20, 1969, multi-level ‘‘open’’ architecture that demonstration, and structure a head-on collision of two Penn Central would permit participation by many regulatory framework to support Commuter trains near Darien, suppliers while ensuring that systems emerging PTC initiatives. Connecticut, in which 4 people were deployed on various railroads would Following through on the 1994 killed and 45 people were injured, the work in harmony as trains crossed Report, FRA committed approximately National Transportation Safety Board corporate boundaries. ATCS was $40 million through the Next (NTSB) asked FRA to study the intended to serve a variety of business Generation High Speed Rail Program feasibility of requiring a form of purposes, in addition to enhancing the and the Research and Development automatic train control system to protect safety of train operations. Pilot versions Program to support development,

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testing, and deployment of PTC Public Transit Association), Passenger standards for interoperability of PTC prototype systems in the Pacific Train Emergency Preparedness rules, systems also proved elusive. Northwest, Michigan, Illinois, Alaska, and proposals for improving locomotive In addition to financially supporting and some Eastern railroads. FRA also crashworthiness (including improved the NAJPTC Program, FRA continued to initiated a comprehensive effort to fuel tank standards) have targeted work with the rail carriers, rail labor, structure an appropriate regulatory reduction in collision and derailment and suppliers on regulatory reforms to framework for facilitating voluntary consequences. facilitate voluntary PTC implementation of PTC and for In 2003, in light of technological implementation. The regulatory reform evaluating future safety needs and advances and potential increased cost effort culminated when FRA issued a opportunities. and system savings related to prioritized final rule on March 7, 2005, establishing In September of 1997, FRA asked the deployment of PTC systems, the a technology neutral safety-based RSAC to address the issue of PTC. The Appropriations Committees of Congress performance standard for processor- RSAC accepted three tasks: Standards requested that FRA update the costs and based signal and train control systems. for New Train Control Systems (Task benefits for the deployment of PTC and This new regulation, codified as subpart 1997–06), Positive Train Control related systems. As requested, FRA H to part 236, was carefully crafted to Systems—Implementation Issues (Task carried out a detailed analysis that was encourage the voluntary 1997–05), and Positive Train Control filed in August of 2004 (‘‘2004 Report’’), implementation and operation of Systems—Technologies, Definitions, which indicated that under one set of processor-based signal and train control and Capabilities (Task 1997–04). The highly controversial assumptions, systems without impairing PTC Working Group was established, substantial public benefits would likely technological development. 70 FR comprised of representatives of labor flow from the installation of PTC 11052 (Mar. 7, 2005). FRA intended that final rule— organizations, suppliers, passenger and systems on the railroad system. Further, developed in close cooperation with rail freight railroads, other Federal agencies, the total amount of these benefits was management, rail labor, and suppliers— and interested state departments of subject to considerable controversy. to further facilitate individual railroad transportation. The PTC Working Group While many of the other findings of the efforts to voluntarily develop and was supported by FRA counsel and 2004 Report were disputed, there were deploy cost effective PTC technologies staff, analysts from the Volpe National no data submitted to challenge the 2004 that would make system-wide Transportation Systems Center, and Report finding that reaffirmed earlier deployment more economically viable. advisors from the NTSB staff. conclusions that the safety benefits of In 1999, the PTC Working Group It also appeared very possible that major PTC systems were relatively small in provided to the Federal Railroad railroads would elect to make voluntary comparison to the large capital and Administrator a consensus report investments in PTC to enhance safety, (‘‘1999 Report’’) with an indication that maintenance costs. Accordingly, FRA improve service quality, and foster it would be continuing its efforts. The continued to believe that an immediate efficiency (e.g., better asset utilization, report defined the PTC core functions to regulatory mandate for widespread PTC reduced fuel use through train pacing). include: Prevention of train-to-train implementation could not be justified C. Technology Advances Under Subpart collisions (positive train separation); based upon traditional cost-benefit H enforcement of speed restrictions, principles relying on direct railroad including civil engineering restrictions safety benefits. Benefits and Costs of While FRA and RSAC worked to (curves, bridges, etc.) and temporary Positive Train Control (Report in develop consensus on the regulations slow orders; and protection for roadway Response to Committees on that would become subpart H, the workers and their equipment operating Appropriations, August 2004). railroads continued with PTC prototype under specific authorities. The PTC Despite the economic infeasibility of development. The technology neutral, Working Group identified additional PTC based on safety benefits alone, as performance-based regulatory process safety functions that might be included outlined in the 1994, 1999, and 2004 established by subpart H proved to be in some PTC architectures: Provide Reports, FRA continued with regulatory very successful in facilitating the warning of on-track equipment and other efforts to facilitate and development of other PTC operating outside the limits of authority; encourage the voluntary installation of implementation approaches. Although receive and act upon hazard PTC systems. As part of the High Speed the railroads prototype development information, when available, in a more Rail Initiative, and in conjunction with efforts were generally technically timely or more secure manner (e.g., the National Railroad Passenger successful and offered significant compromised bridge integrity, wayside Corporation (Amtrak), the AAR, the improvements in safety, costs of detector data); and provide for future State of Illinois, and the Union Pacific nationwide deployment continued to be capability by generating data for transfer Railroad Company (UP), FRA created untenable. Information gained from to highway users to enhance warning at the North American Joint Positive Train prototype efforts did little to reduce the highway-rail grade crossings. The PTC Control (NAJPTC) Program, which set estimated costs for widespread Working Group stressed that efforts to out to describe a single standardized implementation of the core PTC safety enhance highway-rail grade crossing open source PTC architecture and functions on the nation’s railroads. safety must recognize the train’s system. UP’s line between Springfield Working under subpart H, the BNSF necessary right of way at grade crossings and Mazonia, Illinois was selected for Railway Company (BNSF), CSX and that it is important that warning initial installation of a train control Transportation, Inc. (CSXT), the Norfolk systems employed at highway-rail grade system to support Amtrak operations up Southern Corporation (NS), and UP crossings be highly reliable and ‘‘fail- to 110 mph, and the system was undertook more aggressive design and safe’’ in their design. installed and tested on portions of that implementation work. The new subpart As the PTC Working Group’s work line. Although the system did not prove H regulatory approach also made it continued, other collaborative efforts, viable as then conceived, the project feasible for smaller railroads such as the including development of Passenger hastened the development of PTC Alaska Railroad and the Ohio Central Equipment Safety Standards (including technology that was subsequently Railroad to begin voluntary design and private standards through the American employed in other projects. Promised implementation work on PTC systems

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that best suited their needs. FRA of ETMS that would support BNSF passenger and freight operators in the provided, and continues to provide, operations on more complex track New Haven-Boston segment to equip technical assistance and guidance configurations, at higher allowable train their locomotives with ACSES. See 63 regarding regulatory compliance to speeds, and with additional types of rail FR 39343 (July 22, 1998). ACSES was enable the railroads to more effectively traffic. Meanwhile, CSXT was in the installed between 2000 and 2002, and design, install, and test their respective process of redesigning and relocating has functioned successfully between systems. the test bed for its Communications New Haven and Boston, and on selected In December 2006, FRA approved the Based Train Management (CBTM) high speed segments between initial version of the Electronic Train system, which it has tested for several Washington and New York for a number Management System (ETMS) product years, and UP and NS were working on of years. for deployment on 35 of BNSF’s similar systems using vital onboard Amtrak voluntarily began subdivisions (‘‘ETMS I Configuration’’) processing. development of an architecturally comprising single track territory that As congressional consideration of different PTC system, the Incremental was either non-signaled or equipped legislation that resulted in the RSIA08 Train Control System (ITCS), for with traffic control systems. In a commenced, all four major railroads had installation on its Michigan Line. separate proceeding, FRA agreed that settled on the core technology Amtrak developed and installed ITCS ETMS could be installed in lieu of developed for them by Wabtec Railway under waivers from specific sections of restoring a block signal system on a line Electronics (‘‘Wabtec’’). As the 49 CFR part 236, subparts A through G, for which discontinuance had been legislation progressed, the railroads and granted by FRA. ITCS was applied to authorized followed by a significant Wabtec worked toward greater tenant NS locomotives as well as increase in traffic. During the same commonality in the basic functioning of Amtrak locomotives traversing the period, BNSF successfully demonstrated the onboard system with a view toward route. Highway-rail grade crossings on a Switch Point Monitoring System interoperability. Accordingly, ETMS is the route were fitted with ITCS units to (SPMS)—a system that contains devices now a generic architectural description pre-start the warning systems for high- attached to switches that electronically of one type of PTC system. Examples of speed trains and to monitor crossing report the position of the switches to the ETMS include the non-vital PTC warning system health in real time. The railroad’s central dispatching office or systems of BNSF’s ETMS I and ETMS II, ITCS was tested extensively in the field the crew of an approaching train—and CSXT’s CBTM, UP’s Vital Train for safety and reliability, and it was a Track Integrity Warning System Management System (VTMS), and NS’s placed in revenue service in 2001. As (TIWS)—a system that electronically Optimized Train Control (OTC). Further experience was gained, FRA authorized reports to the railroad’s central work is being undertaken by BNSF to increases in speed to 95 mph; and FRA dispatching office or the crew of an advance the capability of ETMS by is presently awaiting final results of an approaching train if there are any breaks integrating Amtrak operations (ETMS independent assessment of verification in the rail that might lead to III). For a description of system and validation for the system with a derailments. FRA believes both of these enhancements planned by BNSF as per view toward authorizing operations at technologies help to reduce risk in non- the Product Safety Plan filed in the design speed of 110 mph. signaled territory and are forward- accordance with subpart H, see FRA Despite these successes, the compatible for use with existing and Docket No. 2006–23687, Document widespread deployment of these various new PTC systems. To be forward- 0017, at pp. 40–43. train control systems, particularly on compatible, not to be confused with the While the freight railroads’ efforts for the general freight system, remained similar concept of extensibility, a developing and installing PTC systems very much constrained by prohibitive system must be able to gracefully progressed over a relatively long period capital costs. While the railroads were provide input intended for use in later of time, starting with demonstrations of committed to installing these new system versions. The introduction of a ATCS and ARES in the late 1980s and systems to enhance the safety afforded forward-compatible technology implies culminating in the initial ETMS Product to the public and their employees, the that older devices can partly understand Safety Plan approval in December of railroad’s actual widespread and provide data generated or used by 2006, Amtrak demonstrated its ability to implementation remained forestalled new devices or systems. The concept turn on revenue-quality PTC systems on due to an inability to generate sufficient can be applied to electrical interfaces, its own railroad in support of high funding for these new projects in excess telecommunication signals, data speed rail. Beginning in the early 1990s, of the capital expenditures necessary to communication protocols, file formats, Amtrak developed plans for enhanced cover the ongoing operating and and computer programming languages. high speed service on the Northeast maintenance costs. Accordingly, the A standard supports forward- Corridor (NEC), which included railroads continued to plan very slow compatibility if older product versions electrification and other improvements deployments of PTC system can receive, read, view, play, execute, or between New Haven and Boston and technologies. transmit data to the new standard. In the introduction of the Acela trainsets as the III. The Rail Safety Improvement Act of case of wayside devices, they are said to premium service from Washington to 2008 be forward compatible if they can New York and New York to Boston. In appropriately communicate and interact connection with these improvements, On May 1, 2007, the House of with a PTC system when later installed. which support train speeds up to 150 Representatives introduced H.R. 2095, A wayside device might serve the mph, Amtrak undertook to install the which would, among other things, function of providing only information Advanced Civil Speed Enforcement mandate the implementation and use of or providing information and accepting System (ACSES) as a supplement to PTC systems. The bill passed the House commands from a new system. existing cab signals and automatic train on October 17, 2007. The bill was then In addition to scheduling the control (speed control). Together, these amended and passed by the Senate on installation of the ETMS I configuration systems deliver PTC core August 1, 2008. While the bill was as capital funding became available, functionalities. In support of this effort, awaiting final passage, the FRA BNSF voluntarily undertook the design FRA issued an order for the installation Administrator testified before Congress and testing of complementary versions of the system, which required all that ‘‘FRA is a strong supporter of PTC

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technology and is an active advocate for equipped with a Traffic Control System In light of the timetable instituted by its continued development and (TCS) in the Chatsworth district of Los Congress, and to better support railroads deployment.’’ Senate Commerce Angeles, California. Although NTSB has with their installation while Committee Briefing on Metrolink not yet released its final report, maintaining safety, FRA decided that it Accident, 110th Cong. (Sept. 23, 2008) evidence summarized at the NTSB’s is appropriate for mandatory PTC (written statement of Federal Railroad public hearing suggested that the systems to be reviewed by FRA Administrator Joseph H. Boardman), Metrolink passenger train was operated differently than the regulatory approval available at http://www.fra.dot.gov/ past a signal displaying a stop process provided under subpart H. FRA downloads/PubAffairs/09-23-08Final indication and entered a section of believes that it is important to develop StatementFRAAdministratorPTC_Sen_ single track where the opposing UP a process more suited specifically for Boxer_Meeting.pdf. freight train was operating on a signal PTC systems that would better facilitate On September 24, 2008, the House indication permitting it to proceed over railroad reuse of safety documentation concurred with the Senate amendment a switch and into a siding (after which and simplify the process of showing that and added another amendment the switch would have been lined for the installation of the PTC system did pursuant to H. Res. 1492. When the Metrolink train to proceed). As a not degrade safety. FRA also believes considering the House’s amendment, consequence of the accident, 25 people that subpart H does not clearly address various Senators made statements died and over 130 more were seriously the statutory mandates and that such referencing certain train accidents that injured. lack of clarity would complicate were believed to be PTC-preventable. Prior to the accidents in Graniteville railroad efforts to comply with the new For instance, Senator Lautenberg (NJ) and Chatsworth, the railroads’ slow statutory requirements. Accordingly, took notice of the collision at incremental deployment of PTC FRA is hereby proposing to amend part Graniteville, South Carolina in 2005, technologies—while not uniformly 236 by modifying existing subpart H and Senators Lautenberg, Hutchinson agreed upon by the railroads, FRA, and and adding a new subpart I. FRA (TX), Boxer (CA), Levin (MI), and Carper NTSB—was generally deemed requests comments on whether this (DE) took notice of an accident at acceptable by them in view of the proposed regulation exercises the Chatsworth, California, on September tremendous costs involved. Partially as appropriate level of discretion and 12, 2008. According to Senator Levin, a consequence and severity of these very flexibility to comply with RSIA08 in the Federal investigators have said that a public accidents, coupled with a series most cost effective and beneficial collision warning system could have of other less publicized accidents, manner. prevented that crash and the subject Congress passed the Rail Safety legislation would require that new IV. RSAC Improvement Act of 2008 into law on In March 1996, FRA established the technology to prevent crashes be October 16, 2008, marking a public installed in high risk tracks. Senators RSAC, which provides a forum for policy decision that, despite the Carper and Boxer made similar collaborative rulemaking and program implementation costs, railroad statements, indicating that PTC systems development. The RSAC includes employee and general public safety are designed to prevent train representatives from all of the agency’s warranted mandatory and accelerated derailments and collisions, like the one major stakeholder groups, including installation and operation of PTC in Chatsworth. 154 Cong. Rec. S10283– railroads, labor organizations, suppliers systems. S10290 (2008). Ultimately, on October and manufacturers, and other interested 1, 2008, the Senate concurred with the As immediately relevant to this parties. When appropriate, FRA assigns House amendment. rulemaking, RSIA08 requires the a task to RSAC, and after consideration The Graniteville accident referenced installation and operation of PTC and debate, RSAC may accept or reject by Senator Lautenberg was an early systems on all main lines, meaning all the task. If accepted, RSAC establishes morning collision between two NS intercity and commuter lines—with a working group that possesses the trains in non-signaled (dark) territory limited exceptions entrusted to FRA— appropriate expertise and representation near the Avondale Mills Textile plant. and on freight-only lines when they are of interests to develop recommendation One of the trains—which was part of a Class I railroad system, to FRA for action on the task. These transporting chlorine gas, sodium carrying at least 5 million gross tons of recommendations are developed by hydroxide, and cresol on the main freight annually, and carrying any consensus. The working group may track—approached an improperly lined amount of poison- or toxic-by-inhalation establish one or more task forces or hand-operated switch. As the train (PIH or TIH) materials. While the statute other subgroups to develop facts and diverged through the switch, it ran onto vests certain responsibilities with the options on a particular aspect of a given the siding track where it collided with Secretary of the U.S. Department of task. The task force, or other subgroup, a parked train. Various tank cars Transportation, the Secretary has since reports to the working group. If a ruptured, releasing at least 90 tons of delegated those responsibilities to the working group comes to consensus on chlorine gas. Nine people died due to FRA Administrator. See 49 CFR recommendations for action, the chlorine inhalation and at least 250 1.49(oo); 74 FR 26,981 (June 5, 2009); package is presented to the RSAC for a people were treated for chlorine see also 49 U.S.C. 103(g). vote. If the proposal is accepted by a exposure. In addition, 5,400 residents In RSIA08, Congress established very simple majority of the RSAC, the within a mile of the crash site were aggressive dates for PTC system build- proposal is formally recommended to forced to evacuate for nearly two weeks out completion. Each subject railroad is FRA. FRA then determines what action while hazardous materials (hazmat) required to submit to FRA by April 16, to take on the recommendation. Because teams and cleanup crews 2010, an implementation plan FRA staff has played an active role at decontaminated the area. indicating where and how it intends to the working group and subgroup levels The Chatsworth train collision install PTC systems by December 31, in discussing the issues and options and occurred on the afternoon of September 2015. As a result of this accelerated PTC in drafting the language of the 12, 2008, when a Union Pacific freight system deployment schedule, railroads consensus proposal, and because the train and a Metrolink commuter train must immediately engage in a massive RSAC recommendation constitutes the collided head-on on a single main track reprogramming of capital funds. consensus of some of the industry’s

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leading experts on a given subject, FRA • Offer recommendations on the inclusion into the rule by the PTC is generally favorably inclined toward specific content of implementing Working Group. the RSAC recommendation. However, regulations; and The task also required The passenger task force discussed FRA is in no way bound to follow the the PTC Working Group to: testing issues relating to parts 236 and recommendation and the agency • Report on the functionalities of PTC 238 and the definition of ‘‘main line’’ exercises its independent judgment on systems; under the statute, including possible whether the recommended rule achieves • Describe the essential elements passenger terminal and limited the agency’s regulatory goals, is soundly bearing on interoperability and the operations exceptions to PTC supported, and was developed in requirements for consultation with other implementation. Recommendations of accordance with the applicable policy railroads in joint operations; and the task force were presented to the PTC and legal requirements. Often, FRA • Determine how PTC systems will Working Group, which adopted or varies in some respects from the RSAC work with the operation of non- refined each suggestion. recommendation in developing the equipped trains. The short line and regional railroad actual regulatory proposal. The PTC Working Group was formed task group was formed to address the In developing this proposal, FRA from interested organizations that are questions pertaining to Class II and adopted the RSAC PTC Working Group members of the RSAC. The following Class III railroads. Specifically, the approach. As part of this effort, FRA is organizations contributed members: group discussed issues regarding the working with the major stakeholders American Association of State Highway trackage rights of Class II and III affected by this subpart in as much a & Transportation Officials (AAHSTO) railroads using trains not equipped with collaborative manner as possible. FRA American Chemistry Council (ACC) PTC technology over a Class I railroad’s believes establishing a collaborative American Public Transportation PTC territory, passenger service over relationship early in the product Association (APTA) track owned by a Class II or Class III development and regulatory American Short Line and Regional railroads where PTC would not development cycles can help bridge the Railroad Association (ASLRRA) otherwise be required, and railroad divide between the railroad carrier’s Association of American Railroads crossings-at-grade involving a Class I management, railroad labor (AAR) railroad’s PTC-equipped train and a organizations, the suppliers, and FRA Association of State Rail Safety Class II or III railroad’s PTC unequipped train. After much discussion, there were by ensuring that all stakeholders are Managers (ASRSM) no resolutions reached to any of the working with the same set of data and Brotherhood of Maintenance of Way main issues raised. However, the have a common understanding of Employees Division (BMWED) discussion yielded insights utilized by product characteristics or their related Brotherhood of Locomotive Engineers and Trainmen Division (BLETD) FRA in preparing this proposed rule. processes production methods, The radio and communications task Brotherhood of Railroad Signalmen including the regulatory provisions, force addressed wireless Federal Transit Administration* with which compliance is mandatory. communications issues, particularly as International Brotherhood of Electrical However, where the group failed to it relates to communications security, Workers reach consensus on an issue, FRA used and recommended language for National Railroad Construction and its authority to resolve the issue, proposed § 236.1033. Maintenance Association attempting to reconcile as many of the FRA staff worked with the PTC National Railroad Passenger Corporation divergent positions as possible through Working Group and its task forces in traditional rulemaking proceedings. (Amtrak) developing many facets of this proposal. On December 10, 2008, the RSAC National Transportation Safety Board FRA gratefully acknowledges the accepted a task (No. 08–04) entitled (NTSB)* participation and leadership of ‘‘Implementation of Positive Train Railway Supply Institute (RSI) representatives who served on the PTC Control Systems.’’ The purpose of this Transport Canada* Working Group and its task forces. task was defined as follows: ‘‘To Tourist Railway Association Inc. These points are discussed to show the United Transportation Union (UTU) provide advice regarding development origin of certain issues and the course *Indicates associate (non-voting) of implementing regulations for Positive of discussion on these issues at the task member. Train Control (PTC) systems and their force and working group levels. We deployment under the Rail Safety From January to April 2009, FRA met believe this helps illuminate the factors Improvement Act of 2008.’’ The task with the entire PTC Working Group five FRA weighed in making its regulatory called for the RSAC PTC Working Group times over the course of twelve days. decisions regarding this proposed rule to perform the following: During those meetings, in order to and the logic behind those decisions. • Review the mandates and objectives efficiently accomplish the tasks In general, the PTC Working Group of the Act related to deployment of PTC assigned to it, the PTC Working Group agreed on the process for implementing systems; empowered three task forces to work PTC under the statute, including • Help to describe the specific concurrently. These task forces were the decisional criteria to be applied by FRA functional attributes of systems meeting passenger, short line and regional in evaluating safety plans, adaptation of the statutory purposes in light of railroad, and the radio and subpart H principles to support this available technology; communications task forces. Each mandatory implementation, and • Review impacts on small entities discussed issues specific to their refinements to subpart H and the part and ascertain how best to address them particular interests and needs and 236 appendices necessary to dovetail in harmony with the statutory produced proposed rule language for the the two regulatory regimes and take requirements; PTC Working Group’s consideration. lessons from early implementation of • Help to describe the details that The majority of the proposals were subpart H, including most aspects of the should be included in the adopted into the rule as agreed upon by training requirements. Notable accords implementation plans that railroads the working group, with rule language were reached, as well, on major must file within 18 months of related to a remaining few issues being functionalities of PTC and on enactment of the Act; further discussed and enhanced for exceptions applicable to passenger

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service (terminal areas and main line Like subpart H of part 236, proposed configurations and a variety of exceptions). Major areas of disagreement subpart I provides for the same level of operational scopes involved. FRA included whether to allow non- product confidence and versatility in believes that the information requested equipped trains on PTC lines, extension determining what PTC technology a under subpart I should be sufficient to of PTC to lines not within the statutory railroad may elect to implement and permit FRA to predict whether a PTC mandate, and whether to provide for operate, even if the railroad chooses to system is fully adequate from a safety additional onboard displays when two modify its PTC system over time. Unlike perspective. Subparts H and I require or more persons are regularly assigned subpart H, however, proposed subpart I submission of similar technical data. duties in the cab. Some additional areas requires specific deployment of PTC Given the degree of uncertainty of concern were discussed but could not while simplifying the application associated with the underlying analysis be resolved in the time available. It was process, potentially reducing the size of of a complex PTC system and its understood that where discussion did the regulatory filings through environs, subpart I—much like subpart not yield agreement, FRA would make facilitation of safety documentation H—requires application of FRA’s proposals and receive public comment. reuse, and more narrowly defining the judgment and expertise. Given the required performance targets based on complexity of the underlying analysis— V. Use of Performance Standards railroad operations and in terms of more and FRA’s need to ensure an acceptable Given the statutory mandate for the specific functional PTC behaviors. The level of safety and analytical uniformity implementation of PTC systems, FRA approach under subpart I also reduces between functionally equivalent but intends the proposed rule to accelerate the likelihood of continually changing architecturally different systems—it is the promotion of, and not hinder, cost safety targets, which may vary based on incumbent upon the subject railroad, effective technological innovation by each railroad’s , and possibly in concert with the vendor, encouraging an efficient utilization of provides for incremental improvements supplier, or manufacturer of its PTC resources, an increased level of in safety in coordination with FRA. system, to make a persuasive case in its competition, and more innovative user To ensure sufficient confidence in filings that the applicable performance applications and technological each PTC system implemented under standards are met. Primarily, the risk developments. FRA believes that, subpart I, FRA expects that all safety- assessments required by the proposed wherever possible, regulation must and risk-related data be supported by rule should provide an objective allow technologies the full freedom to credible evidence or information. Such measure of the safety risk levels exploit market opportunities, must credible evidence or information may be involved, which will be reviewed by support the challenges and developed through laboratory or field FRA for comparison purposes. As such, opportunities resulting from the testing, augmented by appropriate FRA believes that each risk assessment combination of emerging and varying analysis and inspection, which may be should determine relative risk levels, technologies within an evolving monitored or reviewed by FRA. FRA rather than absolute risk levels, but expects that, as a practical matter, lab marketplace, and should not against a clearly delineated base case testing would be performed in the discriminate between PTC systems acceptable to FRA under the proposed majority of cases. FRA does not believe vendors due to the technology or regulation. it is necessary to require any railroad to Thus, this proposed rule attempts to services provided. lab test. However, field testing may be emphasize the determination of relative Accordingly, wherever possible, FRA required in certain instances to test risk. FRA believes that the guidelines has attempted to refrain as much as certain points of the PTC system in captured in Appendix B adequately possible from developing technical or various conditions. state the objectives and major design standards, or even requiring If the railroad or FRA determines that considerations of any risk assessment it implementation of particular PTC the complexity of the technology or the would expect to see submitted under technologies that may prevent supporting safety case warrants, proposed subpart I. FRA also believes technological innovation or the credibility of this information may also that these guidelines allow sufficient development of alternative means to be evaluated through an assessment of flexibility in the conduct of risk achieve the statutorily defined PTC Verification and Validation performed assessments, yet provide sufficient functions. If FRA were to implement by an acceptable independent third uniformity by helping to ensure that specific technical standards, emerging party selected and paid for by the final results are presented in familiar technologies may render those railroad, subject to FRA approval. units of measurement. standards obsolete. Thus, Ultimately, however, it is FRA’s One of the major characteristics of a implementation of systems by the responsibility to determine whether risk assessment is whether it is railroads using new technologies that each PTC system’s performance results performed using qualitative or are not addressed by the specific in an acceptable level of safety to quantitative methods. FRA continues to standards would require railroads and railroad employees and the general believe that both quantitative and FRA to manage the deployment of public and whether any such system qualitative risk assessment methods alternative technologies using a shall receive PTC System Certification, may be used, as well as combinations of cumbersome and time consuming as required by statute. In order to the two. FRA expects that qualitative waiver process. Consequently, for the provide meaningful flexibility, FRA is methods should be used only where same reasons FRA expressed in the final prepared to consider use of alternative appropriate, and only when rule implementing subpart H (70 FR risk analysis methods and proposals accompanied by an explanation as to 11052, 11055–11059 (Mar. 7, 2005)), regarding the extent to which a product why the particular risk cannot be fairly FRA continues to believe that it is best exhibits fail-safe behavior. FRA still quantified. FRA also continues to to pursue a performance-based standard emphasizes that higher speed and believe that railroads and suppliers while providing sufficient basic higher risk rail service should be should not be limited in the type of risk parameters within which the PTC supported by more highly competent assessments they should be allowed to system’s architectures and train control technology and analysis. perform to demonstrate compliance functionalities must be developed, FRA recognizes that there may with the minimum performance implemented, and maintained. potentially be various PTC system standard. The state of the art of risk

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assessment methods could potentially sound engineering analysis, testing, or control system which is qualified using change more quickly than the regulatory investigation. the subpart H process, shall also be process will allow, and not taking governed by those requirements, VI. Section-by-Section Analysis advantage of these innovations could including approval of a Product Safety slow the progress of implementation of Unless otherwise noted, all section Plan. Particularly with respect to high safer signal and train control systems. references below refer to sections in title speed rail, FRA anticipates that PTC Thus, as in subpart H, FRA is allowing 49 of the Code of Federal Regulations systems will in some cases incorporate risk assessment methods not meeting (CFR). FRA seeks comments on all new or novel technology to provide for the guidelines of this rule, so long as it proposals made in this NPRM. crossing pre-starts (reducing the length can be demonstrated to the satisfaction Proposed Amendments to 49 CFR Part of approach circuits for high speed of the FRA Associate Administrator for 229 trains), verify crossing system health as Railroad Safety/Chief Safety Officer between the wayside and approaching (hereinafter Associate Administrator) Section 229.135 Event Recorders trains, or slow trains approaching that the risk assessment method used is Advances in electronics and software locations where storage has been suitable in the context of the particular technology have not only enabled the detected on a crossing, among other PTC system. FRA believes this development of PTC systems, but have options. Indeed, each of these functions determination is best left to the also resulted in changes to the is presently incorporated in at least one Associate Administrator because the implementation of locomotive control train control system, and others may FRA retains authority to ultimately systems. These technological changes one day be feasible (including in-vehicle prevent implementation of a system have provided for the introduction of warning). There would appear to be no whose plans do not adequately new functional capabilities and the reason why such a functionality demonstrate compliance with the integration of different functions in intended for inclusion in a PTC system performance standard under the ways that advance the building, mandated by subpart I could not be proposed rule. operation, and maintenance of qualified with the rest of the PTC FRA is aware that some types of risk locomotive control systems. FRA also system under subpart I. On the other are more amenable to measurement by recognizes that advances in technology hand, care should be taken to set an using certain methods rather than others may further eliminate the traditional appropriate safety standard taking into because of the type and amount of data distinctions between locomotive control consideration highway users, occupants available. If a railroad does elect to use and train control functionalities. Indeed, of the high speed trains, and others different risk assessment methods, FRA technological advances may provide potentially affected. will consider this as a factor for PTC opportunities for increased or improved In fact, with new emphasis on high System Certification (see § 236.1015). functionalities in train control systems speed rail, FRA needs to consider the Also, in such cases, when the margin of that run concurrently with locomotive ability of PTC systems to integrate this uncertainty has been inadequately control. type of new technology and thereby described, FRA will be more likely to Train control and locomotive control, reduce risk associated with high speed require FRA monitored field or however, remain two fundamentally rail service. Risk includes derailment of laboratory testing (see § 236.1035) or an different operations with different a high speed train with catastrophic independent third-party assessment (see objectives. FRA does not want to restrict consequences after encountering an § 236.1017). the adoption of new locomotive control obstacle at a highway-rail grade When FRA issued the final rule functions and technologies by imposing crossing. To avoid such consequences, establishing subpart H, FRA considered regulations on locomotive control as many crossings as possible should be the criteria of simplicity, relevancy, systems intended to address safety eliminated. To that end, 49 CFR 213.347 reliability, cost, and objectivity. FRA issues associated with train control. requires a warning and barrier plan to believes that these criteria remain Accordingly FRA is reviewing and be approved for Class 7 track (speeds applicable. FRA has attempted to make enhancing the Locomotive Safety above 110 mph) and prohibits grade the requirements under subpart I Standards (49 CFR part 229) to address crossings on Class 8 and 9 track (above simpler than the requirements of the use of advanced electronics and 125 mph). That leaves significant subpart H, so that railroads will be software technologies to improve safe, exposure on Class 5 and 6 track that is provided with a greater amount of efficient, and economical locomotive currently not addressed by regulation. flexibility to more easily demonstrate that its PTC system is certifiable by operations when a new or proposed Comment is requested on how best to FRA. Like subpart H, subpart I focuses locomotive control system function does approach this issue, ensuring that on the safety-relevant characteristics of not interface or commingle with a various FRA regulations, including systems and emphasizes all relevant safety-critical train control system. In subpart I, address this safety need aspects of product performance. FRA the meantime, FRA proposes to amend effectively and in harmony with one also drafted performance standards that § 229.135 to ensure its applicability to another. subpart I. can be applied reliably and precisely in Proposed Amendments to 49 CFR Part a manner which should yield similar Proposed Amendments to 49 CFR Part 235 results each time it is applied to the 234 same subject. Although RSIA08 appears Section 235.7 Changes Not Requiring to make cost a consideration secondary Section 234.275 Processor-Based Filing of Application to safety, FRA believes that Systems FRA proposes to amend this section demonstrating compliance under Section 234.275 of title 49 presently of the regulation which allows specified subpart I should minimize those costs requires that each processor-based changes within existing signal or train while not degrading the primary system, subsystem, or component used control systems be made without the objective of public safety. FRA also for active warning at highway-rail grade necessity of filing an application. The believes that subpart I includes an crossings that is new or novel amendment consists of adding objective performance standard where technology, or that provides safety- allowance for a railroad to remove an compliance can be determined through critical data to a railroad signal or train intermittent automatic train stop system

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in conjunction with the implementation accidents are measured strictly in terms discounted in the risk analysis. Second, of a PTC system approved under subpart of fatalities. allowing fatalities to serve as the only I of part 236. Currently, § 236.909(e)(1) indicates risk metrics of accident consequences The changes allowable under this how safety and risk should be measured confused the industry and the risk section, without filing of an application, for the full risk assessment, but does not assessment analysts attempting to are those identified on the basis that the accentuate the need for running a determine the overall risk associated resultant condition will be at least no sensitivity analysis on chosen risk with the use of certain types of train less safe than the previous condition. metrics to assure that the worst case control systems. As a result, some risk The required functions of PTC within scenarios for the proposed system analysts inappropriately converted subpart I provide a considerably higher failures or malfunctions are accounted injuries and property damages for level of functionality related to both for in the risk assessment. On the other observed accidents into relative alerting and enforcing necessary hand, Appendix B to this part mandates estimates of fatalities. This method operating limitations than an that each risk metric for the proposed cannot be considered acceptable intermediate automatic train stop product must be expressed with an because, while distorting the overall system does. Additionally, in the event upper bound, as estimated with a picture of accident consequences, it also of the loss of PTC functionality (i.e., a sensitivity analysis. The FRA’s raises questions on appropriateness of failure en route), the operating experience gained while reviewing conversion coefficients. Therefore, FRA restrictions required will provide the product safety plans submitted to FRA considers it appropriate to eliminate needed level of safety in lieu of the in accordance with subpart H, revealed from the rule the alternative option for railroad being expected to keep and that the railroad’s did not understand a consequences to be measured in maintain an underlying system such as sensitivity analysis for the chosen risk fatalities only. intermittent automatic train stop for metrics to be a mandatory requirement. Subpart I—Positive Train Control only in such cases. FRA therefore Accordingly, to ensure clarity regarding Systems believes that with the implementation of FRA’s expectations, FRA proposes to PTC under the requirements of subpart amend paragraph (e)(1) to explicitly Section 236.1001 Purpose and Scope I, the safety value of any previously require the performance of a sensitivity existing intermittent automatic train analysis for the chosen risk metrics. The This section describes both the stop system is entirely obviated. There language proposed in this rule explains purpose and the scope of subpart I. were no objections in the PTC Working the need for the sensitivity analysis and Subpart I provides performance-based Group to this amendment. describes the key input parameters that regulations for the development, test, must be analyzed. installation, and maintenance of Proposed Amendments to 49 CFR Part The proposed modification to Positive Train Control (PTC) Systems, 236 paragraph (e)(2) is intended to clarify and the associated personnel training Section 236.0 Applicability, Minimum how the exposure and its consequences, requirements, that are mandated for Requirements, and Penalties as main components of the risk installation by FRA. This subpart also computation formula, must be details the process and identifies the FRA proposes to amend this existing measured. Under the proposed rule text, documents that railroads and operators section of the regulation to remove the exposure must be measured in train of passenger trains are to utilize and manual block from the methods of miles per year over the relevant railroad incorporate in their PTC operation permitting speeds of 50 miles infrastructure where a proposed system implementation plans. This subpart also per hour or greater for freight trains and is to be implemented. When details the process and procedure for 60 miles per hour or greater for determining the consequences of obtaining FRA approval of such plans. passenger trains. Manual block rules do potential accidents, the railroad must create a reasonably secure means of identify the total costs involved, Section 236.1003 Definitions preventing train collisions. However, including those relating to fatalities, Given that a natural language such as where the attributes of block signal injuries, property damage, and other English contains, at any given time, a systems are not present, misaligned incidentals. FRA proposes to eliminate finite number of words, any switches, broken rails, or fouling the option of using an alternative risk comprehensive list of definitions must equipment may cause a train accident. metric, which would allow the either be circular or leave some terms FRA believes that contemporary measurement of consequences strictly in undefined. In some cases, it is not expectations for safe operations require terms of fatalities. It is FRA’s experience possible and indeed not necessary to this adjustment, which also provides a that measuring consequences of state a definition. Where possible and more orderly foundation for the accidents strictly in terms of fatalities practicable, FRA prefers to provide application of PTC to the subject did not serve as an adequate alternative explicit definitions for terms and territories. There were no objections in to metrics of total cost of accidents for concepts rather than rely solely on a the PTC Working Group to this change. two main reasons. First, the statistical shared understanding of a term through data on railroad accidents shows that Section 236.909 Minimum use. accidents involving fatalities also cause Performance Standard injuries and significant damage to Paragraph (a) reinforces the FRA is proposing to modify existing railroad property and infrastructure for applicability of existing definitions of § 236.909 to make the risk metric both freight and especially passenger subparts A through H. The definitions of sensitivity analysis an integral part of operations. Even though the cost of subparts A through H are applicable to the full risk assessment required to be human life is often the highest subpart I, unless otherwise modified by submitted with a product safety plan in component of monetary estimates of this part. accordance with § 236.907(a)(7). The accident consequences, the dollar Paragraph (b) introduces definitions proposed amendment of this section estimates of injuries, property losses, for a number of terms that have specific would also eliminate an alternative and damage to the environment meanings within the context of subpart option for a railroad to use a risk metric associated with accidents involving I. In lieu of analyzing each definition in which consequences of potential fatalities cannot and should not be here, however, some of the delineated

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terms will be discussed as appropriate might occur at restricted speed. In While these locations are specifically while analyzing other sections below. signaled territory, there are referenced in paragraph (a)(1)(i), their As a general matter, however, FRA circumstances under which trains may inclusion is merely illustrative and does believes it is important to explain pass red signals, other than absolute not necessarily preclude any other type certain organizational changes required signals except with verbal authority, of potential train-to-train collision. pursuant to RSIA08. The statute either at restricted speed or after Moreover, a host railroad may have establishes the position of a Chief Safety stopping and then proceeding at alternative arrangements to the specific Officer. The Chief Safety Officer has restricted speed. Available PTC protections referenced in the associated been designated as the Associate technology does not track the rear end table under paragraph (a)(1)(i), which it Administrator for Railroad Safety. Thus, of each train as a target that another must submit in its PTC Safety Plan the use of the term Associate train must be stopped short of but (PTCSP)—discussed in detail below— Administrator in this subpart refers to instead relies on the signal system to and receive a PTC System Certification the Associate Administrator for Railroad indicate the appropriate action. In this associated with that PTCSP. Safety and Chief Safety Officer. example, the PTC system would display Rail-to-rail crossings-at-grade that Section 236.1005 Requirements for ‘‘restricted speed’’ to the locomotive have one or more PTC routes Positive Train Control Systems engineer as the action required and intersecting with one or more routes would enforce the upper limit of RSIA08 specifically requires that each without a PTC system must have an restricted speed (i.e., 15 or 20 miles per interlocking signal arrangement in place PTC system be designed to prevent hour, depending on the railroad). This train-to-train collisions, overspeed developed in accordance with subparts means that more serious rear end A through G of part 236 and a PTC derailments, incursions into established collisions will be prevented, because the work zone limits, and the movement of enforced stop on all PTC routes. FRA upper limit of restricted speed is has also determined that the level of risk a train through a switch left in the enforced, and it also means that fewer wrong position. Section 236.1005 varies based upon the speeds at which low speed rear-end collisions will occur the trains operate through such includes the minimum statutory because a continuous reminder of the requirements and provides amplifying crossings, as well as the presence, or required action will be displayed to the lack, of PTC equipped lines leading into information defining the necessary PTC locomotive engineer (rather than the the crossing. Accordingly, under a functions and the situations under engineer relying on the aspect displayed compromise accepted by the PTC which PTC systems must be installed. by the last signal, which may have been Working Group, if the maximum speed Each PTC system must be reliable and passed some time ago). However, some on at least one of the intersecting tracks perform the functions specified in potential for a low-speed rear-end is more than 40 miles per hour, then the RSIA08. FRA requests comments on collision will remain in these cases, and routes without a PTC system must also whether the definitions and amplifying the rule is clear that this limitation has have either some type of positive stop information within § 236.1005 are been accepted. Similar exposure may enforcement or a split-point derail on appropriate interpretations of RSIA08 occur in non-signaled territory where each approach to the crossing and and whether FRA is exercising the trains are conducting switching appropriate level of discretion and operations or other activities under joint incorporated into the signal system, and flexibility to comply with RSIA08 in the authorities. The PTC system can enforce a permanent maximum speed limit of 20 most cost effective and efficient manner. the limits of the authority and the upper miles per hour. FRA expects that these Train-to-train collisions. Paragraph limit of restricted speed, but it cannot protections be instituted as far in (a)(1)(i) proposes to apply the statutory guarantee that the trains sharing the advance of the crossing as is necessary requirement that a mandatory PTC authority will not collide. Again, to stop the encroaching train from system must be designed to prevent however, the likelihood and average entering the crossing. The 40 miles per train-to-train collisions. FRA severity of any potential collisions hour threshold appears to be understands this to mean head-to-head, would be greatly reduced. FRA may appropriate given three factors. First, rear-end, and side and raking collisions address this issue in a later modification the frequency of collisions at these rail between trains on the same, converging, to subpart I if necessary as technology intersections is low, because typically or intersecting tracks. PTC technology becomes available. one of the routes is favored on a regular now available can meet these needs The proposed rule text does, however, basis and train crews expect delays until through guidance to the locomotive provide an example of a potential train- signals clear for their movement. engineer that is current and continuous to-train collision that a PTC system Second, the special track structure used and through enforcement using should be designed to prevent. Rail-to- at these intersections, known as crossing predictive braking to stop short of rail crossings-at-grade—otherwise diamonds, experiences heavy wear; and known targets. FRA notes that the known as diamond crossings—present a railroads tend to limit speeds over these technology associated with currently risk of side collisions. FRA recognizes locations to no more than 40 miles per available PTC systems may not that such intersecting lines may or may hour. Finally, FRA recognizes that for a completely eliminate all collisions risks. not require PTC system implementation train on either intersecting route, For instance, a PTC system mandated by and operation. Since a train operating elevated speed will translate into higher this subpart is not required to prevent with a PTC system cannot necessarily kinetic energy available to do damage in a collision caused by a train that derails recognize a train not operating with a a collision-induced derailment. Thus, and moves over an area not covered by PTC system or moving on an for the relatively small number of rail track and onto a neighboring or adjacent intersecting track without a PTC system, crossings with one or more routes track (known in common parlance as a the PTC system—no matter how having an authorized train speed above ‘‘secondary collision’’). intelligent—may not be able to prevent 40 miles per hour, including higher During discussions regarding a train-to-train collision in such speed passenger routes, it is particularly available PTC technology, it has been circumstances. important that any collision be noted that this technology also has Accordingly, paragraph (a)(1)(i) prevented. FRA appreciates that a more inherent limitations with respect to proposes to require certain protections protective approach could be prevention of certain collisions that for such rail-to-rail crossings-at-grade. considered and welcomes any data or

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commentary that might bear on this speed restrictions are to be enforced by Terminal, FRA will scrutinize PTC issue. the system. Safety Plans to determine whether they FRA believes that these more Roadway work zones. Paragraph leave no opportunity for single point aggressive measures are required to (a)(1)(iii) proposes that PTC systems human failure in the enforcement of ensure train safety in the event the mandated under subpart I be designed work zone limits. FRA again notes that engineer does not stop a train before to prevent incursions into established some approaches in the past have reaching the crossing when the engineer work zone limits. Work zone limits are provided that the locomotive engineer does not have a cleared route displayed defined by time and space. The length could simply acknowledge a work zone by the interlocking signal system and of time a work zone limit is applicable warning, even if inappropriately, after higher speed operations are possible on is determined by human elements. which the train could proceed into the the route intersected. The split-point Working limits are obtained by work zone. FRA proposes that more derail would prevent a collision in such contacting the train dispatcher, who secure procedures be included in safety a case by derailing the offending train will confirm an authority only after it plans under the new proposed subpart. onto the ground before it reaches the has been transmitted to the PTC server. Movement over main line switches. crossing. Should the train encounter a Paragraph (a)(1)(iii) emphasizes the Paragraph (a)(1)(iv) proposes to require split-point derail as a result of the importance of the PTC systems to that PTC systems mandated under crew’s failure to observe the signal provide positive protection for roadway subpart I be designed to prevent the indication, the slower speed at which workers working within the limits of movement of a train through a main line the unequipped train is required to their work zone. Accordingly, once a switch in the improper position. Given travel would minimize the damage to work zone limit has been established, the complicated nature of switches— the unequipped train and the potential the PTC system must be notified. The especially when operating in concert affect on the surrounding area. As an PTC system must continue to obey that with wayside, cab, or other similar alternative to split-point derails, the limit until it is notified from the signal systems—the proposed rule non-PTC line may be outfitted with dispatcher or roadway worker in charge, provides more specific requirements in some other mechanism that ensures a with verification from the other, either paragraph (e) as discussed further positive stop of the unequipped crossing that the limit is released and the train below. train. If a PTC system or systems are is authorized to enter or the roadway In numerous paragraphs, the installed and operated on all crossing worker in charge authorizes movement proposed rules require various operating lines, there are no speed restrictions of the train through the work zone. requirements based primarily on signal other than those that might be enforced As a way to achieve this technological indications. Generally, these indications as part of a civil or temporary speed functionality, FRA’s Office of Railroad are communicated to the engineer, who restriction. However, the crossing must Development has funded the would then be expected to operate the be interlocked and the PTC system or development of a Roadway Worker train in accordance with the indications systems must ensure that each of the Employee in Charge (EIC) Portable and authorities provided. However, a crossing trains can be brought safely to Terminal that allows the EIC to control technology that receives the same a stop before reaching the crossing in the entry of trains into the work zone. information does not necessarily have the event that another train is already While no rule includes the commonly the wherewithal to respond unless it is cleared through or occupying the used term EIC, FRA recognizes that it is programmed to do so. Thus, paragraph crossing. the equivalent to the ‘‘Roadway Worker (a)(2) requires PTC systems Overspeed derailments. Paragraph In Charge’’ as used in part 214. With the implemented under subpart I to obey (a)(1)(ii) proposes that PTC systems portable terminal, the EIC can directly and enforce all such indications and mandated under subpart I be designed control the entry of trains into the work authorities provided by these safety- to prevent overspeed derailments and zone and restrict the speed of the train critical underlying systems. The addresses specialized requirements for through the work zone. If the EIC does integration of the delivery of the doing so. FRA notes that a number of not grant authority for the train to enter indication or authority with the PTC passenger train accidents with the work zone, the train is forced to a system’s response to those significant numbers of injuries have stop prior to violating the work zone communications must be described and been caused by trains exceeding the authority limits. If the EIC authorizes justified in the PTC Development Plan maximum allowable speed at turnouts entry of the train into the work zone, the (PTCDP)—further described below—and and crossovers and upon entering EIC may establish a maximum operating the PTCSP, as applicable, and then must stations. Accordingly, FRA emphasizes speed for the train consistent with the comply with those descriptions and the importance of enforcement of safety of the roadway work employees. justifications. turnout and crossover speed This speed is then enforced on the train The PTC Working Group had restrictions, as well as civil speed authorized to enter and pass through the extensive discussions concerning the restrictions. work zone. The technology is monitoring of main line switches and For instance, in the Chicago region, significantly less complex than the came to the following general two serious train accidents occurred on technology associated with dispatching conclusions: the same Metra commuter line when systems and the PTC onboard system. In First, signal systems do a good job of locomotive engineers operated trains at view of this, FRA strongly encourages monitoring switch position, and more than 60 miles per hour while deployment of such portable terminals enforcement of restrictions imposed in traversing between tracks using as opposed to current approaches which accordance with the signal system is the crossovers, which were designed to be only require the locomotive engineer to best approach within signaled territory safely traversed at 10 miles per hour. in some manner ‘‘acknowledge’’ his or (main track and controlled sidings). As For illustrative purposes, the rule text her authority to operate into or through a general rule, the enforcement required makes clear that such derailments may the limits of the work zone (e.g., by for crossovers, junctions, and entry into be related to railroad civil engineering pressing a soft key on the onboard and departure from controlled sidings speed restrictions, slow orders, and display, even if in error). will be a positive stop, and the excessive speeds over switches and Pending the adoption of more secure enforcement provided for other switches through turnouts and these types of technology such as the EIC Portable (providing access to industry tracks and

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non-signaled sidings and auxiliary crews, and the public and to accomplish passing train(s) and preventing possible tracks) will be display and enforcement the goals of the PTC system’s essential derailment or other potential unsafe of the upper limit of restricted speed. core functions. Under paragraph conditions. Proper track rail alignment National Transportation Safety Board (a)(4)(i), FRA proposes to prevent is also necessary to prevent derailments, representatives were asked to evaluate unintended movements onto PTC main either of which again could result in whether this strategy meets the needs of lines and possible collisions at switches damage to the bridge or a train derailing safety from their perspective. They by ensuring proper integration and off the bridge. returned with a list of accidents caused enforcement of the PTC system as it Paragraph (a)(4)(v) proposes that by misaligned switches that the Board relates to derails and switches hazard detectors integrated into the PTC had investigated in recent years, none of protecting access to the main line. system—as required by paragraph (c) of which was in signaled territory. Based Paragraph (a)(4)(ii) intends to account this section or the FRA approved on that data, the NTSB staff decided that for operating restrictions associated PTCSP—must provide an appropriate it was not necessary to monitor with a highway-rail grade crossing warning and associated applicable individual switches in signaled active warning system that is in a enforcement through the PTC system. territory. reduced or non-operative state and There are many types of hazard Second, switch monitoring functions unable to provide the required warning detection systems and devices. Each of contemporary PTC systems provide for the motoring public. In this type has varying operational an excellent approach to addressing this situation, the PTC system must provide requirements, limitations, and warnings requirement in dark territory. However, positive protection and enforcement based on the types and levels of hazard it is important to ensure that switch related to the operational restrictions of indications and severities. FRA expects position is determined with the same alternative warning that are issued to this enforcement to include a positive degree of integrity that one would the crew of any train operating over stop where necessary to protect the train expect within a signaling system (e.g., such crossing in accordance with part (e.g., areas with high water, flood, rock fail safe point detection, proper 234. Paragraph (a)(4)(iii) concerns the slide, or track structure flaws) or to verification of adjustment). The PTC movement of a PTC operated train in provide an appropriate warning with Working Group puzzled over sidings in conjunction with the issuance of an possible movement restriction be dark territory and how to handle the after arrival mandatory directive. While acknowledged (i.e., hot journal or flat requirement for switch monitoring in FRA recognizes that the use of after wheel detection). The details of these connection with those situations. (While arrival mandatory directives poses a risk warnings and associated required these are not ‘‘controlled’’ sidings, as that the train crew will misidentify one enforcements are to be specifically such, they will often be mapped so that or more trains and proceed prematurely, addressed within a PTCDP and PTCSP train movements into and out of the PTC provides a means to intervene subject to FRA approval, and the PTC sidings are appropriately constrained.) should that occur. Further, such system functions are to be maintained in At the final PTC Working Group directives may sometimes be considered accordance with the system meeting, a proposal was accepted that operationally useful. Accordingly, FRA specifications. FRA does not expect that would treat a siding as part of the main fully expects that the PTC system will all hazard detectors be integrated into line track structure requiring monitoring prevent collisions between the receiving the PTC systems, but where they are, of each switch off of the siding if the trains and the approaching train or they must interact properly with the PTC system to protect the train from the siding is non-signaled and the trains. authorized train speed within the siding hazard that the detector is monitoring. exceeds 20 miles per hour. FRA recognizes that movable bridges, Paragraph (a)(5) addresses the issue of This issue is more fully discussed including draw bridges, present an broken rails, which is the leading cause below. operational issue for PTC systems. of train derailments. FRA proposes to Other functions. While FRA has Under subpart C, § 236.312 already strictly limit the speed of passenger and included the core PTC system governs the interlocking of signal freight operations in those areas where requirements in § 236.1005, there is the appliances with movable bridge devices broken rail detection is not provided. possibility that other functions may be and FRA believes that this section Under § 236.0(c), as amended in this explicitly or implicitly required should equally apply to PTC systems rule, 24 months after the effective date elsewhere in subpart I. Accordingly, governing movement over such bridges. of a final rule, freight trains operating at under paragraph (a)(3), each PTC system While subparts A through H apply to or above 50 miles per hour, and required by subpart I must also perform PTC systems—as stated in § 236.1001— passenger trains operating at or above 60 any other functions specified in subpart paragraph (a)(4)(iv) proposes to make miles per hour are required to have a I. According to 49 U.S.C. 20157(g), FRA this abundantly clear. Accordingly, in block signal system unless a PTC system must prescribe regulations specifying in paragraph (a)(4)(iv) and consistent with meeting the requirements of this part is appropriate technical detail the § 236.312, movable bridges within a installed. Since current technology for essential functionalities of positive train PTC route are to be equipped with an block signal systems relies on track control systems and the means by which interlocked signal arrangement which is circuits—which also provide for broken those systems will be qualified. also to be integrated into the PTC rail detection—FRA proposes limiting In addition to the general performance system. A train shall be forced to stop speeds where broken rail detection is standards required under paragraphs prior to the bridge in the event that the not available to the maximums allowed (a)(1)–(3), paragraph (a)(4) proposes bridge locking mechanism is not locked, under § 236.0 when a block signal more prescriptive performance the locking device is out of position, or system is not installed. standards relating to the situations the bridge rails of the movable span are Deployment requirements. Paragraph paragraphs (a)(1)–(3) intend to prevent. out of position vertically or horizontally (b) contains proposed requirements for Paragraph (a)(4) defines specific from the rails of the fixed span. Effective where and when PTC systems must be situations where FRA has determined locking of the bridge is necessary to installed. Under RSIA08, each that specific warning and enforcement assure that the bridge is properly seated applicable railroad carrier must measures are necessary to provide for and thereby capable to support both the implement a PTC system in accordance the safety of train operations, their weight of the bridge and that of a with its PTC Implementation Plan

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(PTCIP), as further discussed below. The Class I railroads and intercity or with this provision, instead suggesting PTCIP is statutorily required to be commuter passenger systems. that a Class I railroad’s main line submitted by April 16, 2010, and must The Surface Transportation Board include only those lines owned and explain how the railroad or railroads (STB) has established a statutory ‘‘operated’’ by the Class I railroad. FRA intend to implement an operating PTC definition for Class I, II, and III railroads believes that the underlying ASLRRA system by December 31, 2015. based on the reported revenues in 1992. concern is that many of its member Essentially, a PTC system must be A reference to Class I railroads in this railroads may go out of business if they installed on certain tracks. In addition, subpart refers to those railroads that are mandated to install PTC systems and except as provided under § 236.1006, have been designated as such by the incur the associated untenable financial onboard components required for and Surface Transportation Board (STB). costs. FRA agrees that, from the point of responsive to the PTC system must be According to STB, a Class I railroad has view of the congressional mandate, a installed on each lead locomotive that revenues greater than $250 million narrower concept is appropriate at this operates over those tracks. (adjusted annually for inflation); a Class time. However, in light of future The lead locomotive means the first II railroad has revenues ranging from circumstances relating to railroad locomotive proceeding in the direction $20 million to $250 million (adjusted revenue, safety opportunities, traffic of movement. In addition to the lead annually for inflation); and a Class III patterns, and other variables, FRA also locomotive that controls the train while railroad has revenues that are less than recognizes that it may later require PTC moving in a forward direction, a PTC $20 million (adjusted annually for system implementation and operation system must be installed on any rear inflation). All switching and terminal on certain Class II and III railroad tracks. end unit control cab locomotive that is railroads, regardless of revenue size, are To avoid confusion, FRA proposes to capable of controlling the train when it Class III railroads. The STB railroad define main line by standards moves in the reverse direction. These classification determines the amount of applicable to a single element. In its proposed requirements assume that reporting which a carrier must file with effort to define a Class I railroad’s main locomotives controlling the train may be the STB. Class I railroads are required line as track owned and controlled by placed only at each end. At this time, to file an annual R–1 Report, a detailed the Class I railroad, FRA focuses the FRA is unaware of any locomotives not income, expense, and operating data proposed definition on the status of the placed at either end of the train that report, quarterly and annual freight track. To also focus on the issue of may independently control the train. carload commodity reports, and reports operations could raise confusion and FRA seeks comments and information on types of employees and employee irreconcilable understandings. Thus, regarding these assumptions and compensation (Wage Form A and B). FRA is not comfortable with ASLRRA’s From time to time, as some Class II understandings. suggestion. To accomplish FRA’s goal railroads approached the Class I railroad and respond to ASLRRA’s concerns, As a threshold matter, RSIA08 revenue threshold, these carriers however, FRA has limited a Class I requires that a PTC system be installed petitioned the STB to remain as Class II railroad’s main lines to tracks and on certain main lines of each entity railroads, so that these carriers would segments documented in the timetables required to file a PTCIP. According to not be burdened with the additional last filed before October 16, 2008, by the the statute, a main line is, with certain reporting requirements. Generally the Class I railroads with FRA under § 217.7 exceptions, a Class I railroad track over STB allowed this exemption. of this title over which 5 million or which 5 million or more gross tons of Accordingly, there may be some large more gross tons of railroad traffic is railroad traffic is transported annually. railroads—including Montana Rail Link transported annually. For most of its Pursuant to the statute, FRA may also and Florida East Coast—that are Class II territory, each railroad is already designate additional tracks as main line railroads ‘‘by waiver,’’ thereby freeing required to track tonnage in order to and may provide exceptions for them from having to file Class I railroad satisfy the requirements for joint bar and intercity rail or commuter passenger reports with the STB. internal rail flaw inspections. See transportation over track where limited In drafts of this proposed rule 213.119 (table), 213.237. Thus, FRA or no freight railroad operations occur. provided to the RSAC PTC Working does not expect this determination to be The statutory language does not indicate Group, it was suggested that a Class I difficult for railroads. For railroads that whether the phrase ‘‘main line’’ refers to railroad’s main line be defined as track are required to submit a PTCIP by April the route used or actual trackage owned owned and controlled by the Class I 16, 2010, the gross tonnage will be by the subject railroad. It is clear, railroad. By also including track based on 2008 year traffic. To the extent however, that Congress intended to ‘‘controlled’’ by the Class I railroad, rail traffic exceeds 5 million gross tons focus implementation and operation of FRA intended to include tracks not in any year after 2008, the tonnage shall PTC systems on freight lines owned or owned by Class I railroads, but used in be calculated for the preceding two used by Class I railroads for operations a manner as if the Class I railroad did calendar years in determining whether a specifically identified in the statute. own that track. For instance, under the PTCIP or its amendment is required. For instance, by referencing Class I term ‘‘controlled,’’ FRA intended that a FRA seeks comments on whether any railroads—and not referencing any other track owned by a Class II or III railroad tracks intended to be covered would be type of freight railroad—FRA believes would be considered a main line if a missed under this approach and on that Congress did not intend, as a Class I railroad had effective control whether there is a better approach. general matter, to have smaller freight over the Class II or III railroad or that The RSIA08 requires certain tracks to railroads incur the tremendous costs specific track. Without the ‘‘control’’ be considered main line where a certain involved in PTC system implementation requirement, Class I railroads could amount of railroad traffic is transported. and operation unless they own track divest themselves of track ownership However, in certain yard or terminal over which is provided regularly while maintaining effective control for locations, trains are prepared for schedule intercity or commuter rail the purposes of avoiding PTC system transportation, but railroad traffic is not passenger transportation. Congress gives implementation. ‘‘transported.’’ Moreover, FRA the Secretary discretion in 49 U.S.C. The American Short Line and recognizes that in such locations, PTC 20157(f) to require the installation of Regional Railroad Association system operation would be especially PTC systems on railroads other than (ASLRRA), however, expressed concern cumbersome and onerous and possibly

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resulting in a reduction of safety due to commuter service within an urban, Amtrak’s route system includes inappropriate interventions by the PTC suburban, or metropolitan area. The predominately trackage owned or system that could lead to ‘‘train term includes a passenger train controlled by others. Many commuter handling’’ derailments or hazards to provided by an instrumentality of a railroads operate partially or even personnel riding the sides of rolling State or a political subdivision of a exclusively over lines owned by freight stock. Accordingly, in such locations, State.’’ Section 238.5 also defines railroads. On the other hand, FRA is FRA may not consider the subject tracks passenger service as ‘‘a train or persuaded that the same intention does as main line. For such locations that passenger equipment that is carrying, or not apply as to Class I freight railroads. only include freight operations, FRA available to carry, passengers. A Class I freight railroad might operate proposes to consider these tracks other Passengers need not have paid a fare in a train under trackage rights over a Class than main line by definition if all trains order for the equipment to be II or III railroad, but it does not appear in the location are limited to restricted considered in passenger or in revenue that was intended to burden the smaller speed. service.’’ According to § 238.5, a railroad with the responsibility to install However, for any tracks used by passenger train is ‘‘a train that PTC. passenger trains, FRA proposes that any transports or is available to transport Accordingly, FRA is proposing to designation of track as other than main members of the general public. If a train consider as passenger train main lines line should be performed on a case-by- is composed of a mixture of passenger all tracks across the nation over which case basis in accordance with and freight equipment, that train is a intercity or commuter passenger trains § 236.1019. FRA seeks comments on this passenger train for purposes of this are transported. For the purposes of issue. FRA also seeks comments on part.’’ passenger trains, a main line is whether this explanation comports with While the statute generally limits determined regardless of the amount the railroads’ understanding of the rule mandatory PTC system implementation (i.e., 5 million or more gross tons text. and operation to certain main lines— annually), except where temporary Once a Class I railroad’s main lines defined for freight purposes as track rerouting may occur in accordance with are determined, a PTC system must be over which 5 million or more gross tons §§ 236.1005(g)–(k) as further discussed installed and operated on those main of railroad traffic is transported below. Thus, if an intercity or commuter line tracks over which passenger trains annually—FRA is required to define passenger train is transported over a are operated or any PIH materials are is passenger main line by regulation. See track, the track requires PTC transported. As a corollary, PTC systems 49 U.S.C. 20157(i)(2)(B). In that regard, implementation and operation, are not required on a Class I railroad’s FRA has determined that freight regardless of whether the track is owned lines over which no PIH materials are density, as such, is not a relevant factor. by a passenger railroad entity, a Class I transported and no passenger trains are FRA intends to cover the same intercity railroad, or any smaller freight railroads, operated. In addition to an applicable and commuter passenger services as 49 including Class II and short line Class I railroad’s main lines, a PTC CFR part 238 (Passenger Equipment railroads. system must be implemented and Safety Standards), which excludes This approach, permissible under 49 operated on all railroads’ main lines tourist railroads (49 CFR 238.3). See U.S.C. 20157(a)(1)(C), is consistent with over which regularly scheduled also, 49 CFR part 209, Appendix A. both FRA’s understanding of intercity rail passenger transportation or As a corollary, after December 31, congressional intent and FRA’s commuter rail passenger transportation, 2015, no intercity or commuter historical safety sensitivity to regulating as defined by 49 U.S.C. 24102, is passenger operations may operate on passenger transportation. For example, provided. However, FRA does not any track that does not have a PTC in the relatively recent final rule intend to apply this requirement to system installed, except as described in governing continuous welded rail, tracks operated by tourist railroads, as the proposed rule. A PTC system must different schedules were developed for described in 49 U.S.C. 20103(f), be installed on any track—regardless of track inspection intervals associated because, inter alia, they are not Class I its ownership or the weight of annual with freight and passenger train railroads and they do not provide traffic—before any intercity or operations. See 71 FR 59,677, 59,681 regularly scheduled intercity or commuter rail passenger operation may (Oct. 11, 2006). According to FRA, the commuter passenger service. operate. Thus, any passenger or freight different schedules for track inspection According to 49 U.S.C. 24102, track over which such passenger trains were developed to consider the ‘‘intercity rail passenger transportation’’ operate must be PTC-equipped. potentially greater severity, especially in means rail passenger transportation, The RSIA08 requires each intercity terms of loss of life, from possible future except commuter rail passenger and commuter passenger railroad to track-related passenger train accidents. transportation. 49 U.S.C. 24102 defines implement PTC on ‘‘its main line over If FRA were to otherwise restrict PTC commuter rail passenger transportation which intercity rail passenger systems to passenger train main lines as ‘‘short-haul rail passenger transportation or commuter rail that are only owned by the passenger transportation in metropolitan and passenger transportation, as defined in railroads, then PTC systems would only suburban areas usually having reduced section 24102, is regularly provided.’’ be required on 11 percent of all track fare, multiple-ride, and commuter Section 24102 uses the terms ‘‘intercity’’ used by the passenger railroads across tickets and morning and evening peak and ‘‘commuter’’ in essentially the same the nation, which would mostly include period operations.’’ way FRA has used the terms for safety the Northeast Corridor (NEC) and some 49 CFR 238.5 provides further regulatory purposes. The single question passenger lines in Michigan. guidance, defining a long-distance that has been puzzling in considering Considering Congress’ concern with intercity passenger train as ‘‘a passenger this mandate has been the meaning of accidents involving multiple passenger train that provides service between large the possessive article, ‘‘its,’’ before fatalities, which appears to be a cities more than 125 miles apart and is ‘‘main line.’’ It appears clear from the significant impetus for Congress’ final not operated exclusively in the National course of congressional consideration passage of RSIA08, FRA believes that Railroad Passenger Corporation’s that the expression was intended to Congress did not intend in 49 U.S.C. Northeast Corridor’’ and a commuter apply to the passenger railroad’s entire 20157 to limit PTC system operation to train as ‘‘a passenger train providing route system, regardless of ownership. this narrow passenger territory.

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Nevertheless, while all passenger describe the heart or ‘‘core’’ of the Class manufacturing 85 percent of their routes, including those over track I freight network, albeit with some gaps. products. Chlorine chemistry is also owned by freight railroads, are However, the railroads carry only used in 25 percent of all medical automatically deemed main lines under about 100,000 carloads of PIH products plastics, and 70 percent of all disposable the proposed rule, the proposed rule annually (approximately 0.3% of all rail medical applications. The single largest also provides an exception for those traffic). Facing an extraordinary use of chlorine is for the production of main lines that would not be main lines potential for tort liability associated polyvinyl chloride (PVC), which is used but for the existence of passenger trains with this traffic, the railroads have for building and construction materials and are not deemed by FRA main lines sought through various means to reduce such as siding, windows, pipes, decks due to limited or no freight railroad the potential for release of these and fences. operations. This exception is commodities through safety The only effective modal alternative permissible pursuant to 49 U.S.C. improvements; but they have also for transporting PIH materials is by 20157(i)(2)(B). The proposed procedure sought to be relieved of their common road, and for the present insufficient for such exceptions can be found under carrier obligation to carry them. The capacity exists in the form of suitable §§ 236.1011 and 236.1019, as further RSIA08 mandate, which entails an packages (tank trucks, intermodal discussed below. expenditure of billions of dollars, most tanks). Further, diversion to highways In addition to determining which of it nominally because the lines in would entail significantly higher tracks require PTC system question carry PIH, presents an societal costs, including adverse safety implementation and operation, additional enormous incentive for the trade-offs from more trucks on the paragraph (b) requires such installation Class I railroads to shed PIH traffic and, highways—even before the potential for be performed by the ‘‘host railroad.’’ further, to concentrate the remaining accidental release of product or further Subpart I makes a distinction between PIH traffic on the fewest possible lines security vulnerabilities are considered. FRA is also concerned that PIH traffic the railroad that has effective operating of railroad. FRA is concerned that PIH traffic could be retained on the railroads but control over a segment of track, and a could be diverted from the rail mode. concentrated in such a way as to result railroad that is simply passing its trains Although the risks of transporting these in circuitous routings with greater across the same segment of track. While commodities can be reduced by product exposure to derailment hazards and the concept of actual ownership of the substitution, by coordination of security threats. Although security track segment plays a significant role in transportation that reduces length of concerns may be addressed to some determining the host railroad, a PTC haul, and by other means, and although extent by rerouting during periods of system may be required on a track the U.S. DOT continues to support these high alert in specified urban areas, these segment that is not owned by a PTC means where feasible, for the present detour routes would inevitably be over railroad. To avoid confusion, FRA there are still realistic and supportable lines not equipped with PTC systems. designates the host railroad as the demands for transportation of these PIH These are the kinds of unfavorable railroad that exercises operational commodities that implicate the national trade-offs that the recent amendments to control of the movement of trains on the interest in a very strong way. Hazardous PHMSA’s rail security rule—based on a segment, irrespective of the actual materials are vital to maintaining the separate statutory mandate and ownership of the segment. This is in health of the economy of the United developed in concert with FRA—were contrast to a tenant railroad, which is States and are essential to the well-being intended to prevent. See, e.g., 73 FR any railroad that uses a segment of track of its people. These materials are used 20752 (April 16, 2008); 73 FR 72182 but does not exercise operational in water purification, farming, (Nov. 26, 2008).); 49 CFR 172.820. control of the movements of its trains. manufacturing, and other industrial Finally, FRA believes that, while the The terms ‘‘host railroad’’ and ‘‘tenant applications. The need for hazardous presence of PIH traffic on the rail railroad’’ are defined as such in the materials to support essential services network was viewed by the Congress as definitions listed under § 235.1003. means that transportation of hazardous a good proxy for risk sufficient to The requirements for PTC contained materials is unavoidable. There are over warrant PTC system installation and in RSIA08 pertaining to freight lines 20 hazardous materials considered to be operation, FRA is not persuaded that it define the intended route structure by PIH that are shipped by rail in tank car was the intent of Congress that PIH reference to the presence or absence of quantities. In 2003, over 77,000 tank car traffic be driven from the railroads or PIH traffic and the annual gross tonnage. loads of PIH materials were shipped by concentrated on a smaller number of The law requires installation and rail. lines with more circuitous routings. The operation of a PTC system where it (1) Examples of PIH materials include final legislation constituting the RSIA08 is part of a Class I railroad system, (2) anhydrous ammonia and chlorine. emerged following the Chatsworth carries at least 5 million gross tons of Anhydrous ammonia is an important collision of September 12, 2008, which rail traffic, and (3) carries at least some source of nitrogen fertilizer for crops claimed 25 lives (one rail employee and PIH traffic. Based upon information and is used in the continuous cycle 24 passengers). However, neither H.R. available to FRA, and assuming a level cooling units found in various 2095, as initially passed by the House of of rail operations consistent with appliances and vehicles and in the Representatives on October 17, 2007, normal economic conditions, these production of explosives and nor the Senate version of the bill passed requirements describe approximately manufacturing of nitric acid and certain on August 1, 2008, was limited to PIH 45,000 miles of freight-only territory alkalies, pharmaceuticals, synthetic routes. All versions of the bill, including plus almost 18,000 miles where both textile fibers, plastics, and latex that finally enacted, preserved FRA’s PIH and passengers are carried. There stabilizers. Chlorine is used as an ability to apply the technology to are another 6,000 miles of track owned elemental disinfectant for over 84 additional routes. by a Class I railroad and used for percent of large drinking water systems Although FRA recognizes that the passenger service that would not (those serving more than 10,000 people), congressional trade-offs in September otherwise be required to be equipped, according to the American Water Works 2008 were driven by the impending end for a total build-out of about 69,000 Association. For pharmaceuticals, of the 110th Congress, the Chatsworth route miles. These lines basically chlorine chemistry is essential to accident, and the desire on the part of

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some senators to see a rapid deployment inoperative unless such discontinuance first priority. The proposal in paragraph of PTC technology (more rapid, in fact, or modification is approved by FRA in (b) states that, after December 31, 2015, than provided in either the Senate- or accordance with § 236.1021, as no intercity or commuter rail passenger House-enacted versions), FRA does not discussed below. This is the case even service could continue or commence believe that the Congress intended an if the track segment ceases to be defined until a PTC system has been installed implementation that would create as a main line in accordance with and made operative. FRA requests substantial incentives to drive PIH subpart I due to traffic pattern or consist comment on this proposal and on traffic off of the railroads or concentrate changes, such as annual traffic levels whether a new rail passenger service it in such a way that large urban areas possibly dipping below the 5 million commenced after April 10, 2010, but would see an increase in volume above gross ton threshold referenced in the before December 31, 2015, should be that expected using normal, direct statute and in §§ 236.1003 and 236.1005 permitted any leeway for installation of routing of the shipments. Accordingly, or the rerouting of PIH traffic. This PTC after 2015 and, if so, what special FRA proposes to use its discretion in result is consistent with longstanding circumstances would warrant that crafting implementing regulations to practice under 49 U.S.C. 20502 (see 49 treatment. preserve the presumed congressional CFR part 235). To the extent traffic Paragraph (c) provides amplifying intent. FRA does this by proposing in levels decline or PIH traffic ceases prior information regarding the installation paragraph (b) that implementation plans to April 16, 2010, or during the and integration of hazard detectors into required to be filed by April 16, 2010, implementation period, a railroad could PTC systems. Paragraph (c)(1) reiterates be based on 2008 traffic levels. ask FRA to except a line segment from FRA’s position that any hazard detectors Although rail traffic, including PIH the requirement that it be equipped. The that are currently integrated into an traffic, declined in the second half of the railroad would need to provide existing signal and train control system year, 2008 constitutes a much more estimated traffic projections for the next must be integrated into mandatory PTC ‘‘normal’’ base year than 2009 is 5 years (e.g., as a result of planned systems and that the PTC system will expected to be due to the current rerouting, coordinations, location of enforce as appropriate on receipt of a economic conditions. It was also the new business on the line). Where the warning from the detector. Paragraph year during which the Congress enacted request involves prior or planned (c)(2) proposes to require each PTCSP the subject mandate. rerouting of PIH traffic, the railroad submitted by a railroad to also identify In taking this action, FRA departs would be required to provide a any additional hazard detector to from the PTC Working Group’s supporting analysis that takes into provide warnings to the crew that a consensus that 2009 be used as the base consideration the rail security railroad may elect to install. The PTCSP year. Since the RSAC initially took up provisions of the PHMSA rail routing must also clearly define the actions this subject, rail traffic levels have rule, including any railroad-specific and required by the crew upon receipt of the continued to plummet, and that interline routing impacts. See 49 CFR alarm or other warning or alert. FRA decision now appears to be 172.820. For example, the request does not expect a railroad to install inappropriate. FRA did advise the PTC should include information where hazard detectors at every location where Working Group that it reserved the right multiple railroad carriers may a hazard might possibly exist. to ‘‘lock in’’ the PTC route structure as coordinate traffic, especially where Paragraph (c)(3) proposes, in the case of passage of RSIA08 to prevent there are parallel lines directing traffic of high speed service (as described in unintended consequences. From a in opposite directions. FRA could § 236.1007 as any service operating at technical standpoint, § 236.1005(b) approve an exception if FRA finds that speeds greater than 90 mph) that FRA attempts to do just that, but with ample it would be consistent with safety and will require the to room for adjustment in light of normal in the public interest. address any hazards on the route, along changes in market conditions. Once a PTC system is required to be with a reason why additional hazard Paragraph (b)(2) would require that installed, it cannot be removed or detectors are not required to provide the determination of Class I freight treated as inoperative unless such warning and enforcement for hazards railroad main lines required to be discontinuance or modification is not already protected by an existing equipped be initially established and approved by FRA in accordance with hazard detector. The hazard analysis reported as follows using a 2008 traffic § 236.1021, as discussed below. This is must clearly identify the risk associated base for gross tonnage and determine the case even if the track segment ceases with the hazard, and the mitigations the presence of PIH traffic based on to be defined as a main line in taken if a hazard detector is not 2008 shipments and routings. If accordance with subpart I due to traffic installed and interfacing with a PTC increases in traffic occur that require a pattern or consist changes, such as system. For instance, in the past, large line to be equipped and the PTCIP has annual traffic levels possibly dipping motor vehicles have left parallel or already been filed, an amendment below the 5 million gross ton threshold overhead structures and have fouled would be required. As suggested by the referenced in the statute and in active passenger rail lines. Depending RSAC, gross tonnage would be §§ 236.1003 and 236.1005 or the upon the circumstances, such events measured over two years to avoid rerouting of PIH traffic. can cause catastrophic train accidents. unusual spikes in traffic driving There was discussion in the PTC Although not every such event can be investments inappropriately. However, Working Group regarding how to handle prevented, detection of obstacles such if the 5 million gross tons threshold was new passenger service. Amtrak in as this may make it more likely that the met based on the prior two years of particular suggested that FRA might accident could be prevented. traffic, and PIH was added to the route, consider some leeway for new intercity Under paragraph (d), FRA proposes the railroad would be required to service that could be instituted within a that each lead locomotive operating promptly file a PTCIP amendment and short period if the sponsor (most likely with a PTC system be equipped with an thereafter equip the line by the end of a state government) requested. FRA operative event recorder that captures December 31, 2015 or within two years, considered this contingency but safety-critical data routed to the whichever is later. concluded that new passenger service engineer’s display that the engineer Once a PTC system is installed, it should be adequately planned and must obey, as well as the text of cannot be removed or treated as deliberately executed with safety as its mandatory directives and authorized

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speeds. FRA intends that this enforcement, and work zone protection. cases no more than several hundred feet information be available in the event of The addition of switch point monitoring away from it. In contrast, in PTC an accident with a PTC-equipped and run through prevention would have territory adhering to the aforementioned system to determine root causes and the eliminated the Graniteville, South overly aggressive requirement, a train necessary actions that must be taken to Carolina accident where a misaligned would have to stop at the signal, which prevent reoccurrence. Although FRA switch resulted in the unintended may be in close proximity to its expects implemented PTC systems will divergence of a train operating on the associated switch, and operate at no prevent PTC-preventable accidents, in main track onto a siding track and the more than the upper limit of restricted the event of system failure FRA believes collision of that train with another speed to that switch, where it would it is necessary to capture available data parked train on the siding. The resulting have to stop again. FRA believes that, relating to the event. Further, FRA sees release of chlorines gas caused nine since the train would be required to stop value in capturing information deaths and required the evacuation of at the signal, and must operate at no regarding any accident that may occur the entire town for two weeks while more than the upper limit of restricted outside of the control of a PTC system remediation efforts were in progress. speed until it completely passes the as it is currently designed—including As discussed above, FRA considered switch (with the crew by rule watching the prevention of collisions with trains requiring PTC systems to be for and prepared to stop short of, among not equipped with PTC systems—and interconnected with each main line other concerns, an improperly lined accidents that could otherwise have switch and to individually monitor each switch), another enforced stop at the been prevented by PTC technology, but switch’s point position in such a switch would be unnecessarily were unanticipated by the system manner as to provide for a positive stop redundant. short of any misalignment condition. developers, the employing railroad, or Operations using hand-operated However, after further consideration FRA. switches would provide different, and The data may be captured in the and discussion with the PTC Working arguably greater, difficulties and locomotive event recorder, or a separate Group, FRA believes that such an potential risks. Generally, in between memory module. If the locomotive is approach may be overly aggressive and each successive interlocking and control placed in service on or after October 1, terribly expensive in signaled territory. point, signal spacing along the right of 2009, the event recorder and memory Under paragraph (e), FRA instead way can approximately be 1 to 3 miles module, if used, shall be crashworthy, proposes to treat switches differently, or more apart, determined by the usual otherwise known as crash-hardened, in depending upon whether they are accordance with § 229.135. For within a wayside or cab signal system— length of track circuits and the sufficient locomotives built prior to that period, or are provided other similar safeguards number of indications that would the data shall be protected to the (i.e., distant switch indicators and provide optimal use for train operations. maximum extent possible within the associated locking circuitry) required to Each signal governs the movement limits of the technology being used in meet the applicable switch position through the entire associated block up the event recorder and memory module. standards and requirements of subparts to the next signal. Thus, a train As required by the RSIA08 and by A–G—or are within non-signaled (dark) approaching a hand-operated switch paragraph (a)(1)(iv), as noted above, a territory. may encounter further difficulties since PTC system required by subpart I must While a PTC system in dark territory its governing signal may be much be designed to prevent the movement of would be required to enforce a positive further away than one would be for a a train through a main line switch in the stop—as discussed in more detail power-operated switch. If within wrong position. Paragraph (e) provides below—a PTC system in signaled signaled territory a hand-operated amplifying information on switch point territory would require a train to operate switch outside of an interlocking or monitoring, indication, warning of at no more than the upper limit of control point were in a condition misalignment, and associated restricted speed between the associated resulting in the signal system displaying enforcement. According to the statute, signal, over any switch in the block a restricted speed signal indication, an each PTC system must be designed to governed by the signal, and until approaching train may be required to prevent ‘‘the movement of a train reaching the next subsequent signal that stop before entering the block governed through a switch left in the wrong is displaying a signal indication more by the signal and proceed at restricted position.’’ FRA understands ‘‘wrong permissive than proceed at restricted speed, or to otherwise reduce its speed position’’ to mean not in the position for speed. to restricted speed as it enters the block the intended movement of the train. Signaled territory includes various governed by the signal, and be operated FRA believes that Congress’ use of the types of switches, including power- at restricted speed until the train phrase ‘‘left in the wrong position’’ was operated switches, hand-operated reaches the next signal displaying an primarily directed at switches in non- switches, spring switches, electrically- indication more permissive than signaled (dark) territory such as the locked switches, electro-pneumatic proceed at restricted speed, including switch involved in the aforementioned switches, and hydra switches, to name while passing over any switch within accident at Graniteville, South Carolina. the majority. Each type of switch poses the block. The governing signal, FRA also believes that, in order to different issues as it relates to PTC however, may be anywhere from a few prevent potential derailment or system enforcement. We look at power- feet to more than a mile from the hand- divergence to an unintended route, it is and hand-operated switches as operated switch. For instance, if a signal critical that all switches be monitored examples. governs a 3 mile long block, and there by a PTC system in some manner to On a territory without a PTC system, is a switch at 1.8 miles after passing the detect whether they are in their proper if a power-operated switch at an governing signal (stated in advance of position for train movements. If a switch interlocking or control point were in a the signal), and that switch is is misaligned, the PTC system shall condition resulting in the signal system misaligned, the train would have to provide an acceptable safe state of train displaying a stop indication, an travel that 1.8 miles at restricted speed. operations. approaching train would have to stop Even if the train crew members were Prior to the statute, PTC provided for generally only a few feet from the able to normal the misaligned switch, positive train separation, speed switch, and in the large majority of they would need to remain at restricted

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speed at least until the next signal independent WIU. There could be many movements also provides an incentive (absent an upgrade of a cab signal switches within the same block in a city to retain existing signal systems, with indication). or other congested area. Thus, there is substantial additional benefits in the In signaled territory, to require a PTC a possibility that one or more switches form of broken rail detection and system to enforce a positive stop of an may be not in its proper position and detection of equipment fouling the main approaching train at each individual the signal system is unable to transmit line. switch that is misaligned would be an which switch or switches are not in Paragraph (e)(2) addresses movements unnecessary burden on the industry, normal position. The governing signal over switches in dark territory and particularly since movement beyond the could also be displaying a red aspect on under conditions of excessive risk, even governing signal would be enforced by account of a broken rail, broken bond if in block signal territory. In dark the PTC system to a speed no more than wire, broken or wrapped line wire, bad territory, by definition, there are no the upper limit of restricted speed. insulated joint, bad insulated switch or signals available to provide any signal Accordingly, in signaled territory, FRA gage rods, or other defective condition. indication or to interconnect with the proposes in paragraph (e)(1) to require FRA believes that requiring a PTC switches or PTC system. Without the a PTC system to enforce the upper limit system to enforce the upper limit of benefit of a wayside or cab signal of restricted speed through the block. By restricted speed in the aforementioned system, or other similar system of definition, at restricted speed, the situations is statutorily acceptable. The equivalent safety, the PTC system will locomotive engineer must be prepared statute requires each PTC system to have no signals to obey. In such a case, to stop within one-half the range of prevent ‘‘the movement of a train the PTC system may be designed to vision short of any misaligned switch or through a switch left in the wrong allow for virtual signals, which are broken rail, etc., not to exceed 15 or 20 position.’’ Under this statutory waypoints in the track database that miles per hour depending on the language, the railroad’s intended route would correspond to the physical operating rule of the railroad. must factor into the question of whether location of the signals had they existed Accordingly, if a PTC system is a switch is in the ‘‘wrong’’ position. In without a switch point monitoring integrated with the signal system, and a other words, in order to determine system. Accordingly, paragraph (e)(2)(i) train is enforced by the PTC system to whether a switch is in the ‘‘wrong proposes to require that in dark territory move at restricted speed past a signal position,’’ we must know the switch’s where PTC systems are implemented displaying a restricted speed indication, ‘‘right position.’’ The ‘‘right position’’ is and governed by this subpart, the PTC FRA feels comfortable that the PTC determined by the intended route of the system must enforce a positive stop for system will meet the statutory mandate railroad. Thus, when determining each misaligned switch whereas the of preventing the movement of the train whether a switch is in the wrong lead locomotive must be stopped short through the switch left in the wrong position, it is necessary to know the of the switch to preclude any fouling of position by continuously displaying the railroad’s intended route and whether the switch. Once the train stops, the speed to be maintained (i.e., restricted the switch is properly positioned to railroad will have an opportunity to speed) and by enforcing the upper limit provide for the train to move through correct the switch’s positioning and of the railroads’ restricted speed rule the switch to continue on that route. then continue its route as intended. (but not to exceed 20 mph). While this The intended route is normally Unlike in signaled territory, FRA would not completely determined by the dispatcher. expects that on lines requiring PTC in eliminate human factors associated with Under the proposed rules, when a dark territory, each switch will be movement through a misaligned switch, switch is in the wrong position, the PTC equipped with a WIU to monitor the it would significantly mitigate the risk system must have knowledge of that switch’s position. A WIU is a device of a train moving through such a switch information, must communicate that that aggregates control and status and would be much more cost effective. information to the railroad (e.g., the information from one or more trackside Moreover, it would be cost prohibitive locomotive engineer or dispatcher), and devices for transmission to a central to require the industry to individually must control the train accordingly. Once office and/or an approaching train’s equip each of the many thousands of the PTC system or railroad has onboard PTC equipment, as well as hand-operated switches with a wayside knowledge of the switch’s position, FRA disaggregating received requests for interface unit (WIU) necessary to expects the position to be corrected in information, and promulgates that interconnect with a PTC system in order accordance with part 218 before the request to the appropriate wayside to provide a positive stop short of any train operates through the switch. See, device. Most of the switches in dark such switch that may be misaligned. e.g., §§ 218.93, 218.103, 218.105, territory are hand-operated with a much Currently each switch in signaled 218.107. smaller amount of them being spring territory has its position monitored by a If the PTC system forces the train to and hydra switches. In dark territory, switch circuit controller (SCC). When a move at no more than the upper limit usually none of the switches have their switch is not in its normal position, the of restricted speed, the railroad has position monitored by a SCC and SCC opens a signal control circuit to knowledge that a misaligned switch railroads have relied on the proper cause the signal governing movement may be within the subject block, and the handling of these switches by railroad over the switch location to display its railroad by rule or dispatcher personnel. When it is necessary to most restrictive aspect (usually red). A permission then makes the decision to throw a main line switch from normal train encountering a red signal at the move through the switch (i.e., the to reverse, an obligation arises under the entrance to a block will be required to railroad’s intent has changed as railroad’s rules to restore the switch operate at restricted speed through the indicated by rule or dispatcher upon completion of the authorized entire block, which can be several miles instructions), the switch is no longer in activity. Switch targets or banners are in length depending on signal spacing. the ‘‘wrong position.’’ The RSAC PTC intended to provide minimal visual The signal system is not capable of Working Group was unanimous in indication of the switch’s position, but informing the train crew which switch, concluding that these arrangements in the typical case trains are not if any, in the block may be in an satisfy the safety objectives of RSIA08. required to operate at a speed permitting improper position since none of Utilization of the signal system to detect them to stop short of open switches. As switches are equipped with an misaligned switches and facilitate safe evidenced by the issuance of Emergency

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Order No. 24 and the subsequent actually enforce the applicable required Paragraph (f) provides amplifying Railroad Operating Rules Final Rule (73 speed. Thus, in reality, the PTC system information for determining whether a FR 8442 (Feb. 13, 2008)), proper would not enforce the restricted speed PTC system is considered to be handling of main line switches cannot condition until each train obtained a configured to prevent train-to-train be guaranteed in every case. However, speed of up to 25 miles per hour. In this collisions, as required under paragraph now with the implementation and scenario, it is conceivable that two (a). FRA will consider the PTC system operation of PTC technology, if a switch trains both operating at a speed of up to as providing the required protection if is not in the normal position, that 25 miles per hour could collide with the PTC system enforces the upper information will be transmitted to the each other at a combined impact speed limits of restricted speed. These criteria locomotive. The PTC system will then (closing speed) of up to 50 miles per will allow following trains to pass know which switch is not in the normal hour. While these examples are intermediate signals displaying a position and require a positive stop at provided in the rule text, they are restricting aspect and will allow for the that switch location only. merely illustrative and do not limit the issuance of joint mandatory directives. In the event that movement through a universe of what FRA may consider an Where a wayside signal displays a misaligned switch would result in an unacceptable risk for the purpose of ‘‘Stop,’’ ‘‘Stop and Proceed,’’ or unacceptable risk, whether in dark or paragraph (e). FRA emphasizes that FRA ‘‘Restricted Proceed’’ indication, signaled territory, paragraph (e)(2)(ii) maintains the final determination as to paragraph (f)(1)(i) requires the PTC proposes to require the PTC system to what constitutes acceptable or system to enforce the signal indication enforce a positive stop on each train unacceptable risk in accordance with accordingly. In the case of a ‘‘Stop’’ or before it crosses the switch in the same paragraph (e)(2)(ii). ‘‘Stop and Proceed’’ indication, the train manner as described above for trains The PTC system must also enforce a will be brought to a stop prior to passing operating in dark, PTC territory. FRA positive stop short of any misaligned the signal displaying the indication. The acknowledges that regardless of a switch on a PTC controlled siding in train may then proceed at 15 or 20 miles switch’s position, and regardless of dark territory where the allowable track per hour, as applicable according to the whether the switch is in dark or speed is in excess of 20 miles per hour. host railroad’s operating rule(s) for signaled territory, movement through Sidings are used for meeting and restricted speed. In the case of a certain misaligned switches—even at passing trains and where those siding ‘‘Restricted Proceed’’ indication, the low speeds—may still create an movements are governed by the PTC train would be allowed to pass the unacceptable risk of collision with system, safety necessitates the position signal at 15 or 20 miles per hour. In another train. of the switches located on them to be either event, the speed restriction would FRA understands the term monitored in order to protect train be enforced until the train passes a more ‘‘unacceptable risk’’ to mean risk that favorable signal indication. In dark movements operating on the siding. cannot be tolerated by the managing territory where trains operate by Conversely, on signaled sidings, train activity. It is a type of identified risk mandatory directive, the PTC system movements are governed and protected that must be eliminated or controlled. would be expected to enforce the upper by the associated signal indications, For instance, such an unacceptable risk limit of restricted speed on a train when track circuits, and monitored switches, may exist with a hand-operated the train was allowed into a block none of which are present in dark crossover between two main tracks, already occupied by another preceding territory. between a main track and a siding or train traveling in the same direction. auxiliary track, or with a hand-operated Paragraph (e)(3) provides that the FRA would expect each PTC system to switch providing access to another PTCSP may include a safety analysis for function in this way and that each subdivision or branch line. The PTC system enforcement associated railroad will test each system to ensure switches mentioned in (e)(2)(ii) are in with switch position and an such proper functioning. locations where, if the switch is left identification and justification of any Paragraphs (g) through (k) all concern lined in the wrong position, a train alternate means of protection other than situations where temporary rerouting would be allowed to traverse through that provided in this section shall be may be necessary and would affect the crossover or turnout and potentially identified and justified. FRA recognizes application of the operational rules into the path of another train operating that in certain circumstances this under subpart I. While the proposed on an adjoining main track, siding, or flexibility may allow the reasonable use rule attempts to reduce the opportunity other route. Even if such switches were of a track circuit in lieu of individually for PTC and non-PTC trains to co-exist located within a signaled territory, the monitored switches. on the same track, FRA recognizes that signal governing movements over the Paragraph (e)(4) provides amplifying this may not always be possible, switch locations, for both tracks as may information regarding existing standards especially when a track segment is out be applicable, would be displaying their of subparts A through G related to of service and a train must be rerouted most restrictive aspect (usually red). switches, movable-point frogs, and in order to continue to destination. This restrictive signal indication would derails in the route governed that are Accordingly, paragraph (g) allows for in turn allow both trains to approach the equally applicable to PTC systems temporary rerouting of traffic between location at restricted speed where one or unless otherwise provided in a PTCSP PTC equipped lines and lines not both of the crossover switches are lined approved under this subpart. This equipped with PTC systems. FRA in the reverse position. Since the PTC paragraph explains that the FRA anticipates two situations—emergencies system is not capable of actually required and accepted railroad industry and planned maintenance—that would enforcing restricted speed other than its standard types of components used to justify such rerouting. upper limits, the PTC system would monitor switch point position and how Paragraph (g) provides the enforce a 15 or 20 mile per hour speed those devices are required to function. preconditions and procedural rules to limit dependent upon the operating This paragraph allows for some allow or otherwise effectuate a rules of the railroad. However, there is alternative method to be used to temporary rerouting in the event of an normally up to as much as a 5 mile per accomplish the same level of protection emergency or planned maintenance that hour tolerance allowed for each speed if it is identified and justified in a would prevent usage of the regularly limit before the PTC system will PTCSP approved under this subpart. used track. Historically, FRA has dealt

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with temporary rerouting on an ad hoc of the conditions set forth in this section When an emergency circumstance basis. For instance, on November 12, if it operates on a PTC line that is other occurs that would prevent usage of the 1996, FRA granted UP, under its than its ‘‘normal route,’’ which is regularly used track, and would require application RS&I–AP–No. 1099, equipped and functionally responsive to temporary rerouting, the subject railroad conditional approval for relief from the the PTC system over which it is must notify FRA within one business requirements of § 236.566, which subsequently operated, or if it is a non- day after the rerouting commences. To required equipping controlling PTC train (not a passenger train or a provide for communicative flexibility in locomotives with an operative apparatus freight train having any PIH materials) emergency situations, the proposed rule responsive to all automatic train stop, operating on a non-PTC line that is provides for such notification to be train control, or cab signal territory other than its ‘‘normal route.’’ made in writing or by telephone. FRA equipment. The conditional approval Paragraph (g) effectively provides proposes that written notification may provided for ‘‘detour train movements temporary civil penalty immunity from be accomplished via overnight mail, necessitated by catastrophic occurrence various applicable requirements of this e-mail, or facsimile. In any event, the such as derailment, flood, fire, or subpart, including provisions under railroad should take the steps necessary hurricane’’ on certain listed UP subpart I relating to lead locomotives, for the method of notification selected territories configured with automatic similar to how waivers from FRA have to include confirmation that an cab signals (ACS) or automatic train provided certain railroads immunity appropriate person actually on duty stop (ATS). Ultimately, the relief would from § 236.566. FRA seeks comments on with FRA receives the notification and allow trains not equipped with the what other requirements under part 236 FRA is duly aware of the situation. FRA apparatus required under § 236.566 to should also be included. is considering whether to employ the enter those ACS and ATS territories. FRA expects that emergency rerouting National Response Center (NRC) for However, the relief was conditional will require some flexibility in order to such communications, whereas upon establishing an absolute block in respond to circumstances outside of the notification may be made to the NRC advance of each train movement—as railroad’s control—most notably clearly describing the actions taken and prescribed by General Code of Operating changes in the weather, vandalism, and providing the railroad’s point of contact Rules (GCOR) 11.1 and 11.2—and other unexpected occurrences—that so that FRA may follow up for notifying the applicable FRA Regional would result in potential loss of life or additional information if necessary. Headquarters. The detour would only be property or prevent the train from While the NRC provides full time permissible for up to seven days and continuing on its normal route. While telephonic services, 24 hours a day, 7 FRA could modify or rescind the relief paragraph (g) lists a number of possible days a week, 365 days a year, the light for railroad non-compliance. emergency circumstances, they are volume of calls FRA expects for On February 7, 2006, that relief was primarily included for illustrative rerouting purposes under this section temporarily extended to include defined purposes and are not a limiting factor in may make the option cost prohibitive. territory where approximately two determining whether an event rises to FRA is currently reviewing this option months of extensive track improvements an emergency. For instance, FRA would and seeks comments on this issue. were necessary. Additional conditions also consider allowing rerouting in the While telephone notification may for this relief included a maximum train event use of the track is prevented by provide for easy communications by the speed of 65 miles per hour and vandalism or terrorism. While these railroad, a mere phone call would not notification to the FRA Region 8 events are not the primary reasons FRA provide for documentation of Headquarters within 24 hours of the proposes paragraph (g) to allow information required under paragraph beginning of the non-equipped detour rerouting, FRA recognizes that they may (g). Moreover, if for some reason the train movements and immediately upon fall outside of the railroad’s control. phone call is made at a time when the any accident or incident. On February In the event of an emergency that designated telephone operator is not on 27, 2007, FRA provided similar would prevent usage of the track, duty or if the caller is only able to leave temporary relief for another three temporary rerouting may occur instantly a message with the FRA voice mail months on the same territory. by the railroad without immediate FRA system, the possibility exists that the While the aforementioned conditional notice or approval. By contrast, the vast applicable FRA personnel would not be relief was provided on an ad hoc basis, majority of maintenance activities can timely notified of the communication FRA feels that codifying rules regulating be predicted by railroad operators. and its contents. Thus, while not in the temporary rerouting involving PTC While the proposed rule provides for proposed rules, FRA is considering system track or locomotive equipment is temporary rerouting for such activities, requiring any telephonic notification necessary due to the potential dangers the lack of exigent circumstances does performed in accordance with of allowing mixed PTC and non-PTC not require the allowance of paragraph (g) to be followed up with traffic on the same track and the instantaneous rerouting without an written notification within 48 hours. inevitable increased presence of PTC appropriate request and, in cases where FRA seeks comments on this issue. and PTC-like technologies. Moreover, the request is for rerouting to exceed 30 FRA is also considering using FRA believes that the subject railroads days, FRA approval. Accordingly, under particular contact mail and e-mail and FRA would benefit from more paragraph (g), procedurally speaking, addresses and telephone and facsimile regulatory flexibility to work more temporary rerouting for emergency numbers to be used exclusively for the quickly and efficiently to provide for circumstances will be treated differently notifications required by paragraph (g) temporary rerouting to mitigate the than temporary rerouting for planned as they relate to emergency rerouting. problems associated with emergency maintenance. While FRA continues to Otherwise, if a railroad would notify a situations and infrastructure have an interest in monitoring all particular member of the FRA staff in maintenance. temporary rerouting to ensure that it is writing, and that staff member is Under the proposed rule, FRA is occurring as contemplated by FRA and unavailable (e.g., on annual or sick providing for temporary rerouting of within the confines of the rule, the leave, working in the field, or otherwise non-PTC trains onto PTC track and PTC timing of FRA notification, and the indisposed), FRA would not be timely trains onto non-PTC track. A train will approval procedures, reflect the notified of the emergency situation and not be considered rerouted for purposes aforementioned differences. the rerouting actions that are occurring.

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If there is a singular contact address for expects that the review and approval to—the Regional Administrator may each form of written notification, FRA process will provide more confidence prevent the temporary rerouting from could attempt to provide continuous that a higher level of safety will be starting by simply notifying the railroad personnel assignment to monitor maintained, the rerouting period for or railroads that its request is not incoming notifications. FRA seeks planned maintenance activities may be approved. The Regional Administrator comments on this issue. FRA also seeks more than the 14 days allotted for may otherwise provide conditional comments on the possible need to emergency rerouting. approval, request that further include requirements relating to Regardless of whether the temporary information be supplied to the Regional confirmation of receipt of notifications rerouting is the result of an emergency Administrator or Associate required under paragraph (g). situation or planned maintenance, the Administrator, or disapprove the Emergency rerouting can only occur communication to FRA required under request altogether. If the railroad still without FRA approval for fourteen (14) paragraph (g) must include the seeks to reroute due to planned consecutive calendar days. If the information listed under paragraph (i). maintenance activities, it must provide railroad requires more time, it must This information is necessary to provide the Regional Administrator or Associate make a request to the Associate FRA with context and details of the Administrator, as applicable, the Administrator. The request must be rerouting. To attempt to provide requested information. If the Regional made directly to the Associate railroads with the flexibility intended Administrator requests further Administrator and separately from the under paragraph (g), and to attempt to information, no planned maintenance initial notification sometime before the prevent enforcement of the rules from rerouting may occur until the 14-day emergency rerouting period which the railroad should be receiving information is received and reviewed expires. Unless the Associate relief, FRA must be able to coordinate and the Regional Administrator Administrator notifies the railroad of his with its inspectors and other personnel. provides his or her approval. Likewise, or her approval before the end of the This information may also eventually be no planned maintenance rerouting may allowable emergency rerouting important to FRA in developing occur if the Regional Administrator timeframe, the relief provided by statistical analyses and models, disapproves of the request. If the paragraph (g) will expire at the end of reevaluating its rules, and determining Regional Administrator does not that timeframe. the actual level of danger inherent in provide notice preventing the temporary While a mere notification is necessary mixing PTC and non-PTC traffic on the rerouting, then the planned to commence emergency rerouting, a same tracks. maintenance rerouting may begin and request must be made, with subsequent For emergency rerouting purposes, occur as requested. However, once the FRA approval, to perform planned the information is also necessary for planned maintenance rerouting begins, maintenance rerouting. The relative FRA to determine whether it should the Regional Administrator may at any predictability of planned maintenance order the railroad or railroads to cease time order the railroad or railroads to activities allows railroads to provide rerouting or provide additional cease the rerouting in accordance with FRA with much more advance request conditions that differ from the standard paragraph (k). of any necessary rerouting and allows conditions specified in paragraph (i). Requests for planned maintenance FRA to review that request. FRA FRA recognizes the importance of rerouting exceeding 30 days, however, proposes that the request must be made allowing temporary rerouting to occur must be made to the Associate at least 10 calendar days before the automatically in emergency Administrator and are not self- planned maintenance rerouting circumstances. However, FRA must also executing. No such rerouting may occur commences. maintain its responsibility of ensuring without Associate Administrator To ensure a retrievable record, the that such rerouting occurs lawfully and approval, even if the date passes on request must be made in writing. It may as intended by the rules. Accordingly, which the planned maintenance was be submitted to FRA by fax, e-mail, or the proposed rules provide for the scheduled to commence. Under courier. Because of security protocols opportunity for FRA to review the paragraph (h)(3), like the Regional placed in effect after 9/11, regular mail information required by paragraph (g) to Administrator, the Associate undergoes irradiation to ensure that any be submitted in accordance with Administrator may provide conditional pathogens have been destroyed prior to paragraph (i) and order the railroad or approval, request further information, or delivery. The irradiation process adds railroads to cease rerouting if FRA finds disapprove of the request to reroute. significant delay to FRA’s receipt of the that such rerouting is not appropriate or Once approved rerouting commences, document, and the submitted document permissible in accordance with the the Associate Administrator may also may be damaged due to the irradiation requirements of paragraphs (g) through order the rerouting to cease in process. The lack of emergency (i), and as may be so directed in accordance with paragraph (k). circumstances makes telephonic accordance with paragraph (k), as Paragraph (j) requires that, once communication less necessary and less discussed further below. temporary rerouting commences, preferable. Like notifications for For rerouting due to planned regardless of whether it is for emergency emergency rerouting, the request for maintenance, the information required or planned maintenance purposes, the planned rerouting must include the under paragraph (i) is equally applicable track segments upon which the train number of days that the rerouting and will be used to determine whether will be rerouted must have an absolute should occur. If the planned the railroad should not reroute at all. If block established in advance of each maintenance will require rerouting up the request for planned maintenance is rerouted train movement and that each to 30 days, then the request must be for a period of up to 30 days, then the rerouted train movement shall not made with the Regional Administrator. request and information must be sent in exceed 59 miles per hour for passenger If it will require rerouting for more than writing to the Regional Administrator of and 49 miles per hour for freight. FRA 30 days, then the request must be made the region in which the temporary requests comment on whether these with the Associate Administrator. These rerouting will occur. While such a speed restrictions should be limited to longer time periods reflects FRA’s request is self-executing—meaning that trains actually transporting PIH opportunity to review and approve the it will automatically be considered materials or intercity or commuter request. In other words, since FRA permissible if not otherwise responded passengers and whether a higher limit

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should be provided on cab signal actual train in question is a passenger over Class I railroad lines that will be territory where the detoured train is led train or includes cars containing PIH required to be equipped with PTC by a locomotive equipped with materials. systems in a substantial number of operative cab signals. FRA also requests It should be noted that this paragraph locations. These operations are comment on whether the more stringent (j) was added by FRA after further principally related to the receipt and requirements of § 236.1029 (trains failed consideration of this issue and was not delivery of carload traffic in en route on PTC lines) should apply. part of the PTC Working Group interchange. The small railroad service Finally, FRA requests comment on the consensus. FRA believes that special extends onto the Class I railroad track in extent to which the host railroad’s precautions may be appropriate given order to hold down costs and permit PTCSP might provide for alternative the heightened safety expectations both the small railroad and the Class I safety measures. suggested by the statutory mandate. railroad to retain traffic that might be Moreover, as referenced in paragraph Comment is requested on the priced off the railroad if the Class I had (g) as it applies to both emergency and appropriateness of these restrictions, to dispatch a crew to pick up or place planned maintenance circumstances, including any impact on other rail the cars. This, in turn, supports the track upon which FRA expects the traffic. competitive transportation options for rerouting to occur would require certain Paragraph (k), as previously noted, small businesses, including marginal mitigating protections listed under provides the Regional Administrator small businesses in rural areas. paragraph (j) in light of the mixed PTC with the ability to order the railroad or The ASLRRA advocated an exception and non-PTC traffic. While FRA railroads to cease rerouting operations that would permit the trains of its purposefully intends paragraph (j) to that were requested for up to 30 days. members and other small railroads to apply similarly to § 236.567, FRA The Associate Administrator may order continue use of existing trackage rights recognizes that § 236.567 does not a railroad or railroads to cease rerouting and agreements without the necessity account for the statutory mandates of operations regardless of the length of for equipping their locomotives with interoperability and the core PTC safety planned maintenance rerouting PTC. They suggested that any functions. Accordingly, paragraph (j) requested. FRA believes this is an incremental risk be mitigated by must be more restrictive. important measure necessary to prevent requiring that such trains proceed Section 236.567, which applies to rerouting performed not in accordance subject to the requirement for an territories where ‘‘an automatic train with the rules and FRA’s expectations absolute block in advance (similar to stop, train control, or cab signal device based on the railroad’s communications operating rules consistent with fails and/or is cut out en route,’’ and to ensure the protection of train § 236.567 applicable to trains with requires trains to proceed at either crews and the public. However, FRA is failed onboard train control systems). restricted speed or, if an automatic confident that in the vast majority of This position was consistently opposed block signal system is in operation cases railroads will utilize the afforded both by the rail labor organizations and according to signal indication, at no latitude reasonably and only under the Class I railroads. These more than 40 miles per hour to the next necessary circumstances. organizations took the position that all available point of communication where FRA expects each host railroad to trains should be equipped with PTC in report must be made to a designated develop a plan to govern operations in order to gain the benefits sought by the officer. Where no automatic block signal the event temporary rerouting is congressional mandate and to provide system is in use, the train shall be performed in accordance with this the host railroad the full benefit of its permitted to proceed at restricted speed section. Thus, as noted further below in investment in safety. Informal or where an automatic block signal § 236.1015, FRA proposes each PTCSP discussions suggested that Class I system is in operation according to to include a plan accounting for such railroads might offer technical or signal indication but not to exceed rerouted operations. financial assistance to certain small medium speed to a point where absolute railroads in equipping their Section 236.1006 Equipping block can be established. Where an locomotives, but that this would, of Locomotives Operating in PTC Territory absolute block is established in advance course, be done based on the corporate of the train on which the device is The PTC Working Group discussed at interest of the Class I railroad. inoperative, the train may proceed at great length the issues related to In the PTC Working Group and in not to exceed 79 miles per hour. operation of PTC-equipped locomotives, informal discussions around its Paragraph (j) utilizes that absolute block and locomotives not equipped with PTC activities, Class I railroads indicated condition, which more actively engages onboard apparatus, over lines equipped that they intended to take a strong the train dispatcher in managing with PTC. The PTC Working Group position against non-equipped trains movement of the train over the territory recognized that the typical rule with operating on their PTC lines, and that in (in both signaled and non-signaled respect to train control territory is that order to enforce this restriction fairly territory). Recognizing that re-routes all controlling locomotives must be they understood that they would need under this section will occur in non- equipped and operative (see § 236.566). to equip their own locomotives, signaled territory, the maximum It was also noted in the discussion that including older road switchers that authorized speeds associated with such the Interstate Commerce Commission might venture onto PTC-equipped lines territory are used as limitations on the (FRA’s predecessor agency in the only occasionally. However, during speed of re-routed trains. FRA agrees regulation of this subject matter) and these discussions, FRA was not able to with the comments of labor FRA have provided some relief from develop a clear understanding representatives in the PTC Working this requirement in discrete regarding, outside the scope of FRA Group who contend that the statutory circumstances where safety exposure regulations, the extent to which the mandate alters to some extent what was considered relatively low and the Class I railroads under previously would otherwise be considered hardship associated with equipping executed private agreements enjoy the reasonable for these circumstances. FRA additional locomotives was considered effective ability to enforce a requirement welcomes comments on whether substantial. that all trains be equipped. FRA restrictions associated with re-routing The ASLRRA noted that its member presumes for purposes of this proposal should vary depending on whether the railroads conduct limited operations that there will be circumstances rooted

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in previously executed private qualifications and exceptions to PTC Implementation Plans should be agreements under which the Class I paragraph (a). required to include power management railroad would be entitled to require the First, it is understood that during the elements describing how this will be small railroad to use a controlling time PTC technology is being deployed accomplished to the degree feasible. locomotive equipped with PTC as a to meet the statutory deadline of Third, the section provides a cross- condition of operating onto the December 31, 2015, there will be reference to § 236.1029 pertaining to property. FRA wishes to emphasize that, movements over PTC lines by trains PTC onboard apparatus failing en route. in making this regulatory proposal, FRA with lead locomotives not equipped Fourth, this provision proposes does not intend to influence the exercise with a PTC onboard apparatus. In exceptions for trains operated by Class of private rights or to suggest that public general, Class I railroad locomotives are II and III railroads, including tourist or policy would disfavor an otherwise used throughout the owning railroad’s excursion railroads. The exceptions are legitimate restriction on the use of system and, under shared power limited to lines not carrying intercity or unequipped locomotives on PTC lines. agreements, on other railroads commuter passenger service, except Rather, this proposal is intended to nationally. FRA anticipates that the where the Class I freight railroad and explore limited exceptions that might be gradual equipping of locomotives— the passenger railroad have requested an acceptable from the point of view of which will occur at a relatively small exception in the PTC Implementation safety, and helpful from the point of number of specialized facilities and Plan’s main line track exception view of the public interest in rail which will require a day or two out of addendum (MTEA) in accordance with service, where it might be compatible service as well as time in transit—will § 236.1019, as further discussed below, with prior rights of the railroads extend well into the implementation and FRA has approved that element of involved. FRA also notes that, in the period that ends on December 31, 2015. the plan. absence of clear guidance on this issue, It will not be feasible to tie locomotives FRA has considered whether to a substantial number of waiver requests down to PTC lines, and the RSAC provide an exception to requiring each could be expected that would have to be stakeholders fully understood that Class II and III railroad locomotive to be resolved without the benefit of point. Labor organizations did urge that equipped with a PTC onboard apparatus decisional criteria previously examined railroads make every effort to use when operating over passenger routes to and refined through the rulemaking equipped locomotives as controlling be equipped with a PTC system, but process. units, and FRA believes that in general, FRA has not been able to define Paragraph (a) proposes that, as general railroads will do so in order to obtain conditions that would apparently be rule, all trains operating over PTC the benefits of their investment. suitable in every case. FRA is open to territory must be PTC-equipped. In Second, FRA has included a consideration of exceptions within the other words, paragraph (a) would transitional provision, related to PTC context of a PTC Implementation Plan. require that each lead locomotive to be apparatus that fails upon attempted To the extent that the host Class I or operated with a PTC onboard apparatus initialization, specifically intended to passenger railroad would need to be if it is controlling a train operating on encourage placement of PTC-equipped supportive of the exception, FRA a track equipped with a PTC system in locomotives on the point during the recognizes that options may be accordance subpart I. The PTC onboard period when reliability may be an issue. foreclosed prior to FRA consideration. apparatus should operate and function This provision would allow a stated, However, railroads have historically in accordance with the PTCSP declining percentage of locomotives exercised substantial control of governing the particular territory. equipped with PTC to be dispatched operations over track that they own or Accordingly, it must successfully and even if the onboard apparatus fails. dispatch, and in this case those interests sufficiently interoperate with the host Although FRA agrees with the objective significantly parallel the apparent intent railroad’s PTC system. of rail labor’s suggestion for ‘‘consist of the Congress to achieve a high level Generally, the four parts of each PTC management’’ that puts equipped of safety in mixed freight and passenger system are office, wayside, locomotives on the point, FRA also operations. If FRA were to handle communications, and onboard recognizes that a number of factors exceptions through PTC Implementation components. FRA recognizes that a PTC related to the age and condition of Plans, FRA seeks comments on how that onboard apparatus for a lead locomotive locomotives may influence this should be accomplished. FRA also seeks owned and operated by one railroad decision. Further, in the early stages of comments on whether there should be may not be part of the PTC system upon implementation, requiring that power be an assumption that the lead locomotives which the locomotive operates. For switched if initialization fails could not equipped with PTC onboard example, a Class II railroad lead result in significant train delays and apparatus’ on four unequipped Class II locomotive equipped with a PTC contribute to congestion in yards and or III railroad trains will be permitted onboard apparatus may operate on a terminals. Some ‘‘slack’’ in the system daily on a segment of PTC-equipped Class I railroad’s PTC line. Throughout will be required to implement PTC track and that variances from that are this rule, the use of the term ‘‘PTC intelligently and successfully. Of permitted in a PTC Implementation system,’’ depending upon its context, course, if FRA determines during Plan. If so, FRA questions whether that usually refers to the host railroad’s PTC implementation that good faith efforts should be subject to the agreement of system, and not the tenant railroad’s are not being made to take advantage of both railroads. If agreement by the Class lead locomotive. When using the term, PTC-equipped locomotives, FRA could II or III railroad is not required, FRA PTC onboard apparatus, however, FRA step in with more prescriptive seeks comments on what assurance intends to cover all such mobile requirements after providing notice and there would be that the Class I railroad equipment, regardless of whether it on an opportunity for comment. would not effectively shut out the Class a locomotive owned or controlled by a Recognizing that matching PTC lines II or III railroad’s operation. host or tenant railroad. with PTC-equipped controlling FRA recognizes that most of the Under proposed § 236.1006, FRA may locomotives will be a key factor in justifications stated for these proposed enforce paragraph (a). Proposed obtaining the benefits of this technology exceptions pertain to short movements paragraphs (b) and (c), however, in the period up to December 31, 2015, for interchange that would constitute a contains a series of proposed FRA requests comments on whether small portion of the movements over the

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PTC-equipped line. The accident/ to FRA indicates that this would and intercity passenger rail service, and incident data show that the risk accommodate a substantial majority of the President’s announcement in April attendant upon these movements is the affected operations. FRA questions 2009 of a Vision for High Speed Rail in small. A review of the last seven years and seeks comments as to whether this America, FRA expects those efforts to of accident data covering 3,312 latitude should be available if one or increase considerably. FRA believes that accidents that were potentially more locomotives subsequently railroads conducting high speed preventable by PTC showed that there acquired by the small railroad were operations in the United States can were only two of those accidents which equipped for PTC. provide a world class service as safe as, involved a Class I railroad’s train and a To the extent the movements in or better than, any high speed Class II or III railroad’s train. FRA question exceed 20 miles, the exception operations conducted elsewhere. In believes that the low level of risk would be available only until December anticipation of such service, and to revealed by these statistics justifies an 31, 2020. In some cases, small railroads ensure public safety, FRA proposes exception for Class II and III railroad operate over Class I railroad tracks for three tiers of requirements for PTC trains traversing a PTC-equipped line over one hundred miles, and these systems operating in high speed service. for a relatively short distance. FRA operations may be integral to their The proposed performance thresholds notes that the cost of equipping those service plans (e.g., permitting the small are intended to increase safety trains would be high when viewed in railroad to reach lines branching off performance targets as the maximum the context of the financial strength of from the Class I railroad’s route speed limits increase to compensate for the Class II or III railroad and the structure for which the smaller railroad increased risks, including the potential marginal safety benefits would be provides local service). FRA recognizes frequency and adverse consequences of relatively low in those cases where a that in these circumstances the smaller a collision or derailment. small volume of traffic is moved over railroads would face overwhelming Section 236.1007 proposes setting the the PTC-equipped line. competition for supplier attention and intervals for the high speed safety FRA also believes that it is clearly significant challenges related to pricing performance targets for operations with: desirable to eventually have each train that will attend the initial period of maximum speeds at or greater than 60 using a PTC-equipped line to have a implementation. Accordingly, FRA and 50 miles per hour for passenger lead locomotive equipped with a PTC proposes to provide for these railroads service and freight operations, onboard apparatus. However, FRA seeks to equip the necessary locomotives with respectively, under paragraph (a); comments on the length of time the additional time beyond the statutory maximum speeds greater than 90 miles exception should last and a justification deadline that applies to Class I per hour under paragraph (b); maximum of that length of time. Other railroads. In conjunction with this speeds greater than 125 miles per hour considerations aside, FRA seeks latitude, FRA would ask for progress under paragraph (c); and maximum comments on whether FRA should not reports to focus the attention of the speeds greater than 150 mph under require a Class II or III railroad railroads’ management teams and to paragraph (d). The reader should note locomotive used on a PTC-equipped ensure that the agency could not be that the requirements increase as speed line to be equipped with PTC when it presented with unreasonable demands rises. Thus, for instance, operations is rebuilt or replaced (i.e., when the cost for further extensions at the end of the with trains moving above 125 miles per of equipping a locomotive is lowest). In extended implementation period. hour must, in addition to the other cases, the Class II or III railroad FRA recognizes that small railroads requirements under paragraph (c), has dedicated locomotives serving the carry a wide variety of commodities, adhere to the requirements under line to be equipped with PTC. From the including PIH traffic. FRA invites paragraphs (a) and (b). facts presently available to FRA, it comments on whether the small railroad Paragraph (a) addresses the PTC appears to be appropriate for those exceptions for freight operations that system requirements for territories locomotives to be equipped with PTC. FRA is proposing should be altered if where speeds are greater than 59 miles Moreover, FRA is aware of other cases the small railroad is transporting PIH per hour for passenger service and 49 where Class II and III railroads have traffic on PTC equipped track through a miles per hour for freight service. Under rather more extensive operations over densely populated area. Commenters are existing regulations (49 CFR 236.0), Class I railroad lines; and, in these requested to detail any alternative block signal systems are required at cases, the risks incurred could be more standards they believe should be these speeds (unless a manual block substantial. Further, in some of these adopted to address such a situation. system is in place, an option that this proposal would phase out). The cases the smaller railroads are aligned Section 236.1007 Additional with the Class I railroads over which proposed rule expects covered Requirements for High Speed Service they operate or may even be under operations moving at these speeds to common ownership and control. For Since the early 1990s, there has been have implemented a PTC system that purposes of prompting a more complete an interest centered around designated provides, either directly or with another public dialogue on this issue, FRA is high speed corridors for the technology, all of the statutory PTC proposing to limit unequipped introduction of high speed rail, and a system functions along with the safety- movements by any single Class II or III number of States have made progress in critical functions of a block signal railroad to not more than 4 trains per preparing rail corridors through safety system as defined in the existing day over any given track segment on a improvements at highway-rail grade standards of subparts A–F of part 236. PTC-equipped line. A train moving from crossings, investments in track The safety-critical functions of a block the small railroad to the point of structure, and other areas. FRA has signal system include track circuits, interchange and back within the same administered limited programs of which assist in broken rail detection calendar day would count as two trains. assistance using appropriated funds. and unintended track occupancies To the extent the movements in With the passage of the American (equipment rolling out), and fouling question do not exceed 20 miles, this Recovery and Reinvestment Act of 2009, circuits, which can identify equipment exception would be available at least Public Law 111–5, 123 Stat. 115 (2009), that is intruding on the clearance until FRA next considered the issue of which provides $8 billion in capital envelope and may prevent raking PTC deployment. Information available assistance for high speed rail corridors collisions.

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FRA recognizes that advances in provide appropriate control of trains or commuter rail passenger technology may render current block operating on the higher speed line if a transportation develop and submit to signal, fouling, and broken rail detection violation is not prevented for whatever FRA a plan for implementing a PTC systems obsolete and FRA does not reason. system by December 31, 2015, and that want to preclude the introduction of Paragraph (c) addresses high speed FRA shall not permit the installation of suitable and appropriate advanced rail operations exceeding 125 miles per any PTC system or component in technologies. Accordingly, FRA believes hour, which is the maximum speed for revenue service unless the that alternative mechanisms providing Class 7 track under § 213.307. At these Administrator has certified them the same functionality are entirely higher speeds, the consequences of a through the approval process contained acceptable and FRA encourages their derailment or collision are significantly in this part. FRA understands development and use to the extent they greater than at lower speeds due to the implementation to include design, do not have an adverse impact on the involved vehicle’s increased kinetic testing, potential Verification and level of safety. energy. In such circumstances, in Validation, installation, and operation Paragraph (b) addresses system addition to meeting the requirements over the PTC system’s life cycle. requirements for territories where under paragraphs (a) and (b), including Current subpart H of part 236 operating speeds are greater than 90 having a fail-safe PTC system, the entity provides a technically sound procedure miles per hour, which is currently the operating above 125 miles per hour for obtaining FRA approval of various maximum allowable operating speed for must provide an additional safety processor-based signal and train control passenger trains on Class 5 track. At analysis (the HSR–125) providing systems. However, as based on these higher speeds, the implemented suitable evidence to the Associate experience gained during BNSF’s ETMS PTC system must not only comply with Administrator that the PTC system can 1 project, FRA believes that its process paragraph (a), but also be shown to be support a level of safety equivalent to, does not support rapid FRA review and fail-safe (as defined in Appendix C) and or better than, the best level of safety of decision making and requires redundant at all times prevent unauthorized comparable rail service in either the submission of information common to intrusion of rail traffic onto the higher United States or a foreign country over multiple railroads. FRA also believes speed line operating with a PTC system. the 5-year period preceding the that although the risk analysis required FRA intends this concept of fail-safe submission of the PTCSP. Additionally, by subpart H fully reflects operational application to be understood in its PTC systems on these high speed lines parameters associated with the different commonplace meaning, i.e., that insofar must provide the capability, as type of operations, it is excessively as feasible the system is designed to fail appropriate, to detect incursion from cumbersome and overly time consuming to a safe state, which normally means outside the right of way and provide for the purposes of deploying PTC that trains will be brought to a stop. warnings to trains. Each subject railroad system technologies at the rate required Further, FRA understands that there are is free to suggest in its HSR–125 any under RSIA08. Moreover, subpart H aspects of current system design and method to the Associate Administrator does not require an implementation operation that may create a remote that ensures that the subject high speed plan and does not provide for opportunity for a ‘‘wrong-side’’ or lines are corridors effectively sealed and ‘‘certification.’’ Arguably FRA could unsafe failure and that these issues protected from such incursions (see simply amend subpart H to include would be described in the PTCSP and § 213.347 of this title), including such requirements relating to implementation mitigations would be provided. FRA hazards as large motor vehicles falling plans and to modify the language to recognizes that, as applied in the on the track structure from highway equate ‘‘approval’’ under subpart H with general freight system, this proposal bridges. ‘‘certification’’ under the statute. could create a significant challenge Paragraph (d) addresses the highest However, FRA believes that such a related to interoperability of freight speeds existing or currently resultant amended subpart H would equipment operating over the same contemplated for rail operations remain unsuitable for a PTC system territory. Accordingly, FRA requests exceeding 150 miles per hour. FRA certification process in light of the comment on whether, where operations expects these operations to be governed congressional mandates. Those potential do not exceed 125 miles per hour or by a Rule of Particular Applicability and amendments alone would not remedy some other value, the requirement for the HSR–125 required by paragraph (c) subpart H’s inability to provide quick compliance with Appendix C safety shall be developed as part of an overall and efficient FRA review. assurance principles might be limited to system safety plan approved by the Accordingly, for PTC system the passenger trains involved, with Associate Administrator. The implementation, certification, and ‘‘non-vital’’ onboard processing quantitative risk showing required for build-out completion to occur within permitted for the intermingled freight operations above 125 miles per hour is the very aggressive dates set by trains. not required to include consideration of Congress, FRA is proposing a new As speed increases, it also becomes acts of deliberate violence. The reason subpart I, with some minor more important that inadvertent for this exclusion is simply to remove modifications to subpart H. Under incursions on the PTC-equipped track speculative or extraordinary subpart I, § 236.1007 proposes and be prevented at switch locations. FRA considerations from the analysis. FRA explains the process by which each proposes that this be done by effective and the Department of Homeland railroad may ultimately receive PTC means that might include use of split- Security will of course expect that System Certification for its PTC system. point derails properly placed, equipping security considerations are taken into Under § 236.1007, FRA intends to avoid of tracks providing entry with PTC, or account in system planning. procedural redundancy, provide arrangement of tracks and switches in sufficient procedural flexibility to such a way as to divert an approaching Section 236.1009 Procedural accompany the varying needs of those movement which is not authorized to Requirements seeking certification, mitigate the enter onto the PTC line. The protection RSIA08 and the proposed rule financial risk associated with mechanism on the slower speed line requires that by April 16, 2010, each technological investment necessary to must be integrated with the PTC system Class I railroad carrier and each entity comply with the regulatory on the higher speed line in a manner to providing regularly scheduled intercity requirements, and otherwise develop a

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streamlined process to provide for quick that host intercity or commuter rail PTC (December 15, 2015). Railroads review and resolution of the issues service will need to file implementation beginning operations after April 16, leading to certification. plans, whether or not they directly 2010, but before December 31, 2015, Generally speaking, there are three procure or manage installation of the that must install PTC would be expected major elements of the proposed PTC PTC system. to file a PTCIP that meets the System Certification process: PTC The tenant passenger railroad will requirements of paragraph (a) as soon as Implementation Plan (PTCIP) need to file jointly with the Class I, II possible after the decision to proceed. It submission and approval, receipt or use or III railroad. This is consistent with is FRA’s position for purposes of this of a Type Approval number—which RSIA08, which requires each subject proposal that any railroad commencing may be provided with approval of a PTC passenger railroad to file an operations after December 31, 2015, that Development Plan (PTCDP)—and PTC implementation plan. In the case of an require PTC will not be authorized to Safety Plan (PTCSP) submission to intercity or commuter railroad commence revenue operations until the receive PTC System Certification. While providing service over a Class I railroad, PTC installation is complete. FRA § 236.1009 provides for the procedural it may be sufficient for the passenger requests comment on whether there are requirements for this process, the railroad to file a letter associating itself any legitimate exceptions to this contents for the applicable filings are with the Class I’s plan to the extent it approach, which appears to be the only provided for under §§ 236.1011, impacts the passenger service. FRA does approach consistent with the RSIA08. 236.1013, and 236.1015. The PTCIP is not propose any requirement for joint Paragraph (b) contains the proposed the written plan that defines the specific filing in the more common case where process for receiving a Type Approval details of how and when the railroad another railroad has freight trackage number for a particular PTC system. will implement the PTC system. The rights over a Class I railroad’s PTC line. Under the proposed rule, each PTC PTCDP provides a detailed discussion of However, the Class I railroad will, of system must receive a Type Approval specific elements of the proposed course, address these joint operations number. The Type Approval is a technology and product that will be and discuss the issue of interoperability number assigned to a particular off-the- used to implement PTC as required by in its plan as required by law. shelf PTC system product—described in RSIA08. Approval of the PTCDP comes If a host freight railroad and tenant a PTCDP in accordance with in the form of a Type Approval number passenger railroad cannot come to an § 236.1013—indicating FRA’s belief that that applies to the subject PTC system. agreement on a PTCIP to jointly file by the product could fulfill the The PTCSP provides the railroad- April 16, 2010, they must instead each requirements of subpart I. FRA’s specific elements demonstrating that the file a PTCIP separately with a issuance of a Type Approval does not system, as installed, meets the required notification separate from the PTCIP to mean that the product will meet the safety performance objectives. Approval the Associate Administrator indicating requirements of subpart I. The Type of the PTCSP comes in the form of a that a joint filing was not possible and Approval applies to the technology PTC System Certification. an explanation of why the subject designed and developed, but not yet Under paragraph (a), the PTCIP railroads could not agree upon a final implemented, and does not bestow any submission deadline of April 16, 2010, PTCIP draft for joint filing. Under such ownership or other similar interests or applies to all host railroads—as defined a circumstance, each freight or rights to any railroad. Each Type in § 236.1003—that exist at that time passenger railroad may still be subject to Approval number remains under the and are required to install a PTC system a civil penalty assessed for each day control of the FRA, and can be issued on one or more main lines in past the deadline that a PTCIP is not or revoked in accordance with this accordance with § 236.1005(b). Intercity jointly filed. FRA believes that these subpart. and commuter railroads that are tenants measures are necessary to ensure timely FRA expects the proposed Type on Class I, II, or III freight lines must PTC system implementation and Approval process to provide a variety of also join with their host railroad in operation under the statute and are in benefits to FRA and the industry. If a filing these plans. FRA believes that the the interest of public safety. FRA railroad submits a PTCDP describing a railroad that maintains operational believes that when subject railroads PTC system, and the PTC system control over a particular track segment have an obligation to submit a joint receives a Type Approval, then other is generally in the best position to filing, they also carry the obligation to railroads intending to use the same PTC develop and submit the PTCIP, since seek dispute resolution by private system without variances may, in that railroad is more knowledgeable of means if needed. accordance with proposed paragraph the conditions of and operations over its If a PTCIP or request for amendment (b)(1), simply rely on the Type Approval track. FRA recognizes that in cases (RFA), as provided in § 236.1021, must number without having to file a separate where a tenant passenger railroad be submitted in accordance with the PTCDP. While the railroad filing the operates over a Class II or III railroad, rule after April 16, 2010, paragraph (a) PTCDP must expend resources to the passenger railroad may be required does not propose to provide the subject develop and submit the PTCDP, all to take a more active role in planning railroads with an opportunity to file other railroads using the same PTC the PTC system deployment by working separately. If a railroad intends to use system would not. This would not only with the host railroad. track that would require the installation provide significant cost and time Paragraph (a), proposes to require that of a PTC system in accordance with savings for a number of railroads, but a PTCIP will be filed by railroads that paragraph (a)(3), and the parties have will remove a significant level of are host railroads upon which passenger difficulty reaching agreement, then such redundancy from the approval process trains traverse and thus require PTC usage would merely be delayed until the that is currently inherent in subpart H. installation and operation. FRA parties come to a mutually acceptable If, however, a railroad intends to use recognizes that the statute requires PTCIP for joint filing. a modified version of a PTC system that timely submission of a PTCIP by each FRA notes that new passenger has already received a Type Approval Class I railroad and each entity railroads are likely to begin operations number, and the variances between the providing regularly scheduled intercity during the period between issuance of two systems are of a safety-critical or commuter rail passenger the final rule in this proceeding and the nature, the railroad must submit a new transportation. Class II and III railroads end of the implementation period for PTCDP. The new PTCDP can either fully

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comply with the content requirements to meet the December 31, 2015, reduce each railroad’s financial risk under § 236.1013 or supply a Type completion date required by RSIA08. related to implementing a technological Approval number for the other PTC Such delays will increase the length of system requiring governmental system upon which the modified PTC time that the risk to the public and approval. Members of the PTC Working system will rely and a document railroad employees remains unmitigated Group expressed concern about having fulfilling the content requirements by PTC technologies. More specifically, to expend significant resources to under § 236.1013 as it applies to the FRA recognizes that any loss of time implement and test a PTC system prior safety-critical variances. would make it more difficult for a to submitting a PTCSP reflecting its In any event, to receive a new Type railroad to perform the installation, findings in order to receive PTC System Approval number, the railroad must testing, and analyses necessary to Certification. FRA believes that submit to FRA a PTCDP, drafted in submit its PTCSP for PTC System proposed paragraphs (b) and (e) address accordance with § 236.1013, no later Certification. Such installation, testing, this concern. By requiring submission of than when it submits its PTCIP. While and analyses cannot occur until the a PTCDP earlier in the process, FRA the PTCDP may be drafted by the PTC railroad knows the PTC system that it intends to be involved in the design and system vendor, FRA believes it is the may use, as identified by a Type implementation process from the railroads’ regulatory responsibility and Approval number. Accordingly, beginning. After contemporaneously duty to submit its PTCIP to FRA. FRA paragraph (b) proposes that each PTCDP reviewing a railroad’s PTCIP and believes that requiring the submission of be filed no later than when its PTCDP, FRA may be able to the PTCDP with the PTCIP will facilitate associated PTCIP is submitted in order predetermine, and share with the a reduction in regulatory activities, thus to preserve as much time as possible to railroad, an appropriate course of action maximizing the time available for the ensure that each railroad meets the to adequately address the various issues railroads to carry out the necessary statutory deadline and that Congress’ specific to the railroad and related to activities to complete PTC intent is not otherwise frustrated. drafting a successful PTCSP. Moreover, implementation within the 65 months FRA believes that the existence of in accordance with paragraph (e)—as available between April 2010, and certain overlapping issues in each discussed further below—each subject December 2015. During that time, the PTCDP and PTCIP also requires their railroad may have the benefit of FRA each railroad is expected to carry out all contemporaneous submission and monitoring its progress in implementing of the required actions necessary to review. FRA strongly believes that a its PTC system. With FRA’s complete design, manufacture, test, and meaningful implementation plan cannot involvement in the process, each subject installation of the PTC office, onboard, be created if the railroad has not railroad’s financial risk associated with and wayside subsystems. FRA believes identified and understands the implementing a PTC system prior to that the process proposed in paragraph technology they propose to implement. PTCSP approval will be mitigated. (b) provides the railroads considerable Without an understanding of the While FRA expects each subject flexibility. By requiring that a railroad’s technology, and the issues associated railroad to submit its PTCDP with its PTCDP be submitted no later than its with its design, test, and PTCIP, the proposed rule does not PTCIP, FRA intends to ensure that FRA implementation, any schedules preclude a railroad from submitting its has the opportunity early in the developed by the railroad may be PTCDP before its PTCIP for FRA review regulatory approval process to review meaningless. Unless there is an and approval. FRA encourages an earlier and determine whether the proposed understanding of the PTC system it submission of the PTCDP to further technical solution in the PTCDP has the hopes to use, and how it expects to reduce the required regulatory effort potential to satisfy the statutory implement that system, evaluation of a necessary to review the PTCIP and requirements. If a PTCDP is submitted at deployment schedule can not be PTCDP if submitted together. More a later time, the length of time available undertaken. importantly, it would present an to the railroad to perform a complete Moreover, the PTCIP requires that the opportunity for FRA to issue a Type PTC implementation will be decreased railroad address the issue of Approval for the proposed PTC system even further. interoperability with other PTC systems. before April 16, 2010, thus providing Many issues relating to FRA’s review Any meaningful discussion regarding other railroads intending to use the of the railroad’s PTCDP may also cause interoperability requires that the same or similar PTC system the further delays, thus reducing the time railroad have a clear understanding of opportunity to leverage off of the work between the receipt of a Type Approval the technical capabilities of the system already accomplished by simply and the statutory deadline of December that it proposes to implement before it submitting the Type Approval—and a 15, 2015, upon which the PTC system can make an informed judgment of how much less burdensome PTCDP in the must be installed and operating. For the system will interoperate with other event of variances. FRA also believes instance, FRA may find that the PTCDP systems. The information required in that the proposed regulatory procedure does not adequately conform to this the PTCDP provides the implementing may incentivize railroads using the subpart or otherwise has insufficient railroad, other railroads with which the same or similar PTC system to jointly information to justify approval. FRA implementing railroad interfaces, and develop and submit a PTCDP, thus may also determine that there are issues FRA with an understanding of the further reducing the paperwork burden raised by the PTCDP that would technical requirements necessary for on FRA and the industry as a whole and adversely affect the ability of FRA to interoperability. FRA believes that early increasing confidence in the eventually certify the system. If such a identification of technical capabilities of interoperability between systems. situation were to arise, the railroad and the proposed PTC systems will allow Paragraph (c) proposes to require that its vendor would need to address the the concerned parties to make more each subject railroad must either file a issues, and resubmit the PTCDP for FRA timely design adjustments to facilitate Request for Expedited Certification approval. interoperability, reducing any delays (REC) or submit an approved PTCIP, a Given the magnitude of the tasks that may increase the level of risk of the Type Approval, and a PTCSP developed faced by the railroads, any additional railroad meeting its statutory deadline. in accordance with § 236.1015 in order delays beyond April 16, 2010, will FRA also believes that the process to receive PTC System Certification. A increase the risk of the railroad failing proposed by paragraph (b) will also REC applies only to PTC systems that

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have already been in revenue service 552(b)(4)—and submit the information or parts provide for confidential and meet the criteria of § 236.1031(a), as in accordance with § 209.11. FRA treatment under § 209.11, FRA will then further discussed below. If a PTC system believes that the same concept should consider whether amendment of is not eligible for expedited be applied to materials submitted in § 209.11 would be appropriate at that certification, the railroad must submit a accordance with proposed subpart I. time. PTCSP. As required under proposed FRA continues to believe that the As discussed more specifically below, § 236.1015, the PTCSP must include referenced information should receive FRA is considering requiring the information relating to the operation the protections under the Freedom of submission of an adequate GIS shapefile and safety of the PTC system as defined Information Act (FOIA) (5 U.S.C. 552) to fulfill some of the PTCIP content in the PTCDP and as applied to the and the Trade Secrets Act (18 U.S.C. requirements under § 236.1011. railroad’s actual territory. To determine 1905). FRA also continues to believe Redacting word processing documents the sufficiency of the PTC system’s that it cannot make any flat includes the simple task of blocking the applicability on the railroad’s territory, pronouncements about the text wished to be deemed confidential. the railroad may be required, as confidentiality of information it has not However, in a GIS shapefile, which referenced in paragraph (e), to perform yet received. Should a FOIA request be includes primarily map data, visually laboratory or field testing or have an made for information submitted under blocking out the information would independent assessment performed. this rule that the submitting party has defeat the purpose. For instance, a black Ultimately, PTC System Certification— claimed should be withheld, the dot over a particular map location, or a issued by FRA based on a review and submitting company will be notified of black line over a particular route, would approval of the PTCSP—is FRA’s formal the request in accordance with the actually reveal the location. FRA recognition that the PTC system, as submitter consultation provisions of the expects that a railroad seeking described and implemented, meets the Department’s FOIA regulations (§ 7.17) confidentiality for portions of a GIS statutory requirements and the and will be afforded the opportunity to shapefile will submit three versions of provisions of subpart I. It does not submit detailed written objections to the the shapefile to comply with paragraph imply FRA endorsement or approval of release of information protected by (d). FRA expects that the version for the PTC system itself. exemption 4 as provided for in § 7.17(a). public consumption would merely not To be clear, paragraph (d) requires Since FRA proposes to place the include the confidential information. that each PTCIP, PTCDP, and PTCSP redacted versions of the submitted plans FRA seeks comments on this proposal. must comply with the content in a docket for public comment, FRA FRA also seeks comments on how a requirements proposed in §§ 236.1011, strongly encourages submitting parties third version of the GIS shapefile would 236.1013, and 236.1015, respectively. If to request protection from withholding indicate, without fully obscuring, the the submissions do not comply with only for those portions of documents confidential portions. As previously noted, FRA expects that their respective regulatory requirements, that truly justify such treatment (i.e., FRA-monitored laboratory or field then they may not be approved. Without trade secrets and security sensitive testing or an independent third party approval, a PTC system may not receive information). a Type Approval or PTC System assessment may be necessary to support Certification. While FRA continues to believe that conclusions made and included in a Paragraph (d) also proposes that the there is no need at this time to railroad’s submitted PTCDP or PTCSP. contents of the submitted plans be substantially revise § 209.11, FRA This issue is initially addressed in understood by FRA personnel. In the proposes in subpart I to require an paragraph (e). The procedural interest of an open market, FRA does additional document to assist FRA in requirements to effectuate either of not want to preclude the ability of PTC efficiently and correctly reviewing those requirements can be found in system suppliers outside of the United confidential information. Under §§ 236.1035 and § 236.1017, States from manufacturing PTC systems § 209.11, a redacted and an unredacted respectively. or selling them to the subject railroads. copy of the same document must be Proposed paragraph (f) makes clear However, in order to ensure the safety submitted. When FRA review is that FRA approval of a plan submitted and reliability of those systems, FRA required to determine whether under subpart I may be contingent upon needs to adequately review the confidentiality should be afforded, FRA any number of factors and that once the submitted plans. Accordingly, FRA personnel must painstakingly compare plan is approved, FRA maintains the proposes to require that all materials side-by-side the two versions to authority to modify or revoke the submitted in accordance with this determine what information has been resulting Type Approval or PTC System subpart be in the English language, or be redacted. To reduce this burden, FRA Certification. Under paragraph (f)(1), translated into the English language and proposes that any material submitted for FRAs would reserve the right to attach attested as true and correct. FRA seeks confidential treatment under subpart I additional requirements as a condition comments on this proposal and whether and § 209.11 must include a third for approval of a PTCIP, PTCDP, or any additional requirements are version that would indicate, without PTCSP. A risk-informed and necessary to ensure FRA’s adequate fully obscuring, the redacted portions. performance-based approach is one in understanding of the submissions. For instance, to indicate, without which the risk insights, and engineering Under subpart H of part 236, a obscuring, the plan’s redacted portions, analysis and performance history, are railroad may seek confidential treatment the railroad may use the color or light used to: (1) Focus attention on the most for certain information required to be gray highlighting, underlining, or important activities; (2) establish submitted under that subpart. strikethrough functions of its word objective criteria based upon risk According to § 236.901(c), a railroad processing program. This document will insights for evaluating performance; (3) may label that information as also be treated as confidential under develop measurable or calculable confidential—if it deems it to be trade § 209.11. While FRA could instead parameters for monitoring systems secrets, or commercial or financial amend § 209.11 to include this performance; and (4) focus on the information that is privileged or requirement, FRA does not believe it to results as the primary basis of regulatory confidential under Exemption 4 of the be necessary at this time. If more decision-making. To accomplish these Freedom of Information Act, 5 U.S.C. regulatory procedures in other subparts tasks, it is necessary to identify, analyze,

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assess, and control hazards and risks information as well as the qualification ensure that a railroad is in compliance within all components of a system— and experience of the team of analysts, with subpart I. FRA inspections may be including people, cultures and attitudes, and the resource limitations of both the required to determine whether a procedures, materials, tools, equipment, railroad and FRA. particular railroad has not implemented facilities and software. In the In proposed paragraph (f)(3), FRA a PTC system where necessary. For preparation of any of these plans, indicates that the railroad may be instance, FRA may need to confirm railroads may have inadvertently failed allowed to continue operations using whether a track segment has traversing to fully address hazards and risks the system, although such continued over it 5 million gross tons or more of associated with all of these components. operations may have special conditions annual railroad traffic, PIH materials, or FRA believes that proposed paragraph attached to mitigate any adverse passenger traffic. FRA may also need to (f)(1) will make the regulatory process consequences. It is FRA’s intent, to the inspect locomotives to determine more efficient and stable. Rather than maximum extent possible and when whether they are equipped with a PTC reject a railroad’s plan completely, and consistent with safety, to assist railroads onboard apparatus or to review consequently delay the railroad’s in keeping the systems in operation. locomotive logs to determine whether it implementation of its PTC system, FRA FRA expects that if it places a condition has entered PTC territory. Paragraph (g) would prefer to add additional on PTC system operations, each railroad makes clear FRA’s statutorily provided conditions during the approval process will have a predefined process and power to inspect the railroads and to address these oversights. When procedure in place that would allow gather information necessary to enforce determining whether to attach continued railroad operations, albeit subpart I. conditions to plan approval, FRA will under reduced capability, until As noted above, in order to maintain consider whether: (1) The plan includes appropriate mitigations are in place, and an open marketplace, the proposed rule a well-defined and discrete technical or the system can be restored to full has been drafted to allow domestic security issue that affects system safety; operation. In certain dire situations, railroads to purchase PTC systems from (2) the risk or safety significance of an FRA may actually order the suspension outside of the United States. FRA issue can be adequately determined; (3) or discontinuation of operations until recognizes that PTC systems have been the issue affects public health and the root cause of the situation is used in revenue service across the globe safety; (4) the issue is not already being understood and adequate mitigations and that acceptable products may be processed under an existing program or are in place. FRA believes that available in other countries. FRA also process; and (5) the issue cannot be suspending a Type Approval or a PTC recognizes that such use may come readily addressed through other System Certification pending a more under a regulatory entity much like regulatory programs and processes, detailed analysis of the situation may be FRA. Accordingly, under paragraph (h), existing regulations, policies, guidance, appropriate, and that any such in the event information relating to a or voluntary industry initiatives. suspension must be done without particular PTC system has been certified Proposed paragraph (f)(2) provides prejudice. FRA expects to take such an under the auspices of a regulatory entity FRA the right to withdraw a Type action only in the most extreme in a foreign government, FRA is willing Approval or a PTC System Certification circumstances and after consultation to consider that information as as a consequence of the discovery of with the affected parties. independently Verified and Validated in new information regarding system safety After reconsidering its issuance of a accordance with the proposed rule to that was not previously identified. FRA Type Approval or PTC System support the railroad’s PTCSP issuance of each Type Approval or PTC Certification, under paragraph (f)(4), development. The phrase ‘‘under the System Certification under FRA may either dismiss its auspices’’ intends to reflect the performance-based regulations assumes reconsideration, continue to recognize possibility of certification contractually that the model of the train control the existing FRA approved Type performed by a private entity on behalf system and its associated probabilistic Approval or PTC System Certification, of a foreign government agency. data adequately accounts for the allow continued operations with certain However, the foreign regulatory entity behavior of all design features of the conditions attached, or order the must be one recognized by the Associate system that could contribute to system railroad to cease applicable operations Administrator. A railroad seeking to risk. Different system design approaches by revoking its Type Approval or PTC enjoy the benefits of paragraph (h) must may result in different levels of detail System Certification. If FRA dismisses communicate that interest in its PTCSP. introducing different approximations/ its reconsideration or continues to errors associated with the safety recognize the Type Approval, any Section 236.1011 PTC Implementation performance. There are some conditions required during the Plan Content Requirements characteristics for which modeling reconsideration period would no longer This proposed section describes the methods may not fully capture the be applicable. If FRA will allow minimum required contents of a PTC behavior of the system, or there may be continued operations, FRA may order Implementation Plan. A PTCIP is a elements of the system for which that the same or other conditions apply. railroad’s plan for complying with the historical performance data may not be FRA expects that revocation of a Type installation of mandatory PTC systems currently available. These potential Approval or PTC System Certification required by RSIA08. The PTCIP consists inconsistencies in the failure analysis may occur in very narrow of implementation schedules, could introduce significant variations in circumstances, where the risks to safety narratives, rules, technical the predicted performance from the appear insurmountable. Regrettably, documentation, and relevant excerpts of actual performance. Because of the there may be a few situations in which agreements that an individual railroad design complexity associated with train the inconsistencies are the result of will use to complete mandatory PTC control systems, FRA recognizes that deliberate fraudulent representations. In implementation. FRA will measure the these inconsistencies are not the results such situations, FRA may also seek railroad’s progress in meeting the of deliberate acts by any individuals or criminal or civil penalties against the required implementation date based on organizations, but simply reflects the entities involved. the schedule and other information in level of detail of the analysis, the Proposed paragraph (g) enables FRA the PTCIP. While the proposed rule availability of comprehensive to engage in the proper inspection to does not specify or mandate any format

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for the PTCIP, it must at least clearly is a data format structure compatible interoperability—so that it may indicate which portions intend to with most Geographic Information successfully communicate and exchange address compliance with the various System (GIS) software packages. Using a data with other PTC systems—and plan requirements under § 236.1011. GIS provides an efficient means for semantic interoperability—so that it The PTCIP must also clearly identify organizing basic transportation-related may automatically, accurately, and each referenced document and either geographic data to facilitate the input, meaningfully interpret the exchanged include a copy of each document (or its analysis, and display of transport information to prove useful to the end applicable excerpt) or indicate where networks. Railways around the world user of each communicating PTC FRA and the public may view that rely on GIS to manage key information system. To achieve semantic document. Should FRA not be able to for rail operations, maintenance, asset interoperability, both sides must defer readily determine adequate response to management, and decision support to a common information exchange the required information, FRA will systems. FRA believes that the railroads reference model. In other words, the assume that the information has not may have already identified track content of the information sent must be been submitted, and will handle the segments, and their physical and the same as what is received and document accordingly. The lack of the operational characteristics, in shapefile understood. Taking syntactic and required information may result in format. For instance, FRA believes that semantic interoperability together, FRA FRA’s disapproval of a PTCIP. To it may be preferable that for each track expects each PTC system to provide facilitate timely and successful segment, a shapefile should provide the services to, and accept services from, submittals, FRA, through assistance following identifiable information: other PTC systems and to use those from a PTCIP Task Force drawn from Owning railroad(s); distance; signal services exchanged to enable the PTC the PTC Working Group, is developing system; track class; subdivision; number systems to operate effectively together a template that could be used to format and location of sidings; maximum and to provide the intended results. The the documents that must be submitted. allowable speed; number and location of degree of interoperability should be FRA, however, wishes to emphasize that mainline tracks; annual volume of gross defined in the PTCIP when referring to the use of such a template is strictly tonnage; annual number of cars carrying specific cases. voluntary, and encourages railroads to hazmat; annual number of cars carrying Interoperability is achieved through prepare and submit the documents in PIH; passenger traffic volume; average four interrelated means: Product testing, whatever structure is most economical daily through trains; WIUs; switches; industry and community partnership, for the railroad. FRA does believe it is and at-grade rail-to-rail crossings. The common technology and intellectual necessary to require that the railroads requirements under paragraph (a) may property, and standard implementation. expend their limited resources in be changed to accommodate any of Product testing includes conformance reformatting of documents when such these informational elements. FRA seeks testing and product comparison. an activity adds no real value. However, comments on this proposal. Conformance testing ensures that the while the template may be a useful tool, Paragraph (a)(1) proposes that the product complies with an appropriate and in light of the various forms a railroad describe the technology that standard. FRA recognizes that certain PTCIP may be required to take due to will be employed in its PTC system. standards attempt to create a framework the system the railroad intends to Here, FRA intends to use the term that would result in the development of implement, complete adherence to the ‘‘technology’’ broadly to include all the same end product. However, many template will not guarantee FRA applicable tools, machines, methods, standards apply only to core elements approval of the submitted PTCIP. and techniques. and allow developers to enhance or FRA expects each PTCIP to include In proposed paragraph (a)(2), FRA otherwise modify products as long as various highly specific and descriptive addresses the statutory requirements they adhere to those core elements. elements relating to each railroad’s that the PTCIP shall describe how the Thus, if an end product is developed in infrastructure and operations. FRA PTC system will provide different ways to conform to the same recognizes that to manually assemble interoperability with movements of standard, there may still be each piece of data into a PTCIP may be trains of other railroad carriers over its discrepancies between each exceptionally onerous and time lines. Practically speaking, this means instantiation of the end product due to consuming and may make the PTCIP that each locomotive operating within the existence of those variables. prone to errors. In light of the foregoing PTC territory must be able to Accordingly, FRA believes that and due to the statutory requirement communicate with and respond to the comparison testing must also occur to that Congress be apprised of the PTC systems installed on each PTC ensure that each instantiation of the progress of the railroad carriers in territory’s track and signal system, same product, regardless of the means implementing their PTC systems, FRA except in limited situations established upon which it is created to meet the believes that electronic submission of elsewhere in this proposed rule. For same standard, is ultimately identical. much of this information may be similar reasons, paragraph (a)(3) In regards to PTC systems, such warranted and preferred. To facilitate proposes that the PTCIP should describe comparison testing must occur on all collection of this data, FRA proposes to how the PTC system will provide for portions that relate to each system’s require submission of this data in interoperability of the system between interoperability with other systems. electronic format. Such electronic the host and all tenant railroads on the Thus, it is also important that the PTC submission would fulfill the lines required to be equipped with PTC system be formally tested in a requirements under § 236.1011 to which systems under this subpart. production scenario—as they will be they apply. Interoperability means the ability of finally implemented—to ensure that it FRA believes that the preferred, least diverse systems and organizations to will actually intercommunicate and costly, and least error-prone method to work together (inter-operate), taking into interoperate with other PTC systems as comply with § 236.1011 is for railroads account the technical, operational, and advertised and intended. to submit an electronic geographic organizational factors that may impact To reach interoperability between the digital system map containing the system-to-system performance. FRA various applicable PTC systems, each aforementioned segment attribute expects each PTC system required by PTCDP must also show that the systems information in shapefile format, which subpart I to exhibit syntactic share common product engineering.

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Product engineering refers to the Since each of these interrelated means categories of segments), and, as common standard, or a sub-profile has an important role in reducing provided in paragraph (a)(5), the dates thereof, as defined by the industry and variability in intercommunication, each that implementation of each segment community partnerships, specifically railroad’s PTCIP must clearly describe will be completed, taking into account intended to achieve interoperability. the elements required under paragraph the time necessary to fulfill the Without common product engineering, (a)(1)–(3). procedural requirements related to the systems will be unable to Much of the remaining information PTCSP submission, review, and intercommunicate or otherwise interact required in a PTCIP under the proposed approval. At a minimum, the as necessary to comply with the rule relies on the location, length, and deployment decisions must be based on proposed rule. characteristics of each track segment. segment traffic characteristics such as FRA expects that each interoperability Therefore, a common understanding of passenger and freight traffic volumes, standard for PTC systems will be a track segment is necessary. A track is the quantity of PIH and other hazardous developed by a partnership between the main designation for describing a materials, current methods of various industry participants. Industry physical linear portion of the network. operations, existence of block signals and community partnerships, either Each line of railroad has a station and other traditional train control domestic or international, usually location referencing system, which technologies, the number and class of sponsor standard workgroups to define serves to locate inventory features and tracks, authorized and allowable speeds a common standard to provide system defects along the length of the track. for each segment, and other unusual intercommunications for a specific Because some tracks can be very long, characteristics that may adversely purpose. At times, an industry or track segments are established to divide impact safety, such as unusual ruling community will sub-profile an existing the track into smaller ‘‘management grades and other track geometries. In standard produced by another units.’’ Typically, segment’s boundaries cases where deployment of the PTC organization to reduce options and thus are established at point of switch (POS) system cannot be accomplished in order making interoperability more locations, but may also be located at of areas with the greatest risk to areas achievable. Thus, in each PTCDP, the mile markers, grade crossings, or other with the least risk, paragraph (a)(9) railroad must discuss how it developed readily identifiable locations. proposes that the railroad must explain or adopted a standard commonly Inspection, condition assessment, and why such a deployment was not accepted by that partnership. maintenance planning is performed practical and the steps that will be taken individually on each segment. After the Means of achieving interoperability to minimize adverse consequences to track network hierarchy is established, include having the various entities the public until the line segment can be the attribute information associated involved using the same PTC system equipped. with each track is defined. This attribute Proposed paragraphs (a)(6) and (a)(7) product or obtaining its components information describes the track layout require the PTCIP to include from the same developer. While FRA (e.g., curves and grades), the track information regarding the rolling stock does not necessarily require this structure (e.g., rail weights and tie and wayside devices that will be approach—since the agency seeks to specifications), track clearance issues, equipped with the appropriate PTC maintain an open and competitive and other track related items such as technology. For a PTC system to work marketplace—FRA believes that this is a turnouts, rail-to-rail at-grade crossings, as intended, PTC system components suitable means to achieve highway-rail grade crossings, drainage must be installed and operated in all interoperability. This technique may culverts, and bridges. Inventory applicable offices and on all applicable provide similar technical results when information about these track attributes onboard and wayside subsystems. using PTC system products from can be quite detailed. The benefits of a Accordingly, the PTCIP must identify different vendors relying on the same complete and accurate track inventory which technologies will be installed on intellectual property. FRA recognizes provides a record of the track network’s each subsystem and when they are that certain developers with an properties and information about the scheduled to be installed. intellectual property interest in a existing track materials at the specific Under paragraph (a)(6), each host particular technology may provide a locations when maintenance or repair is railroad filing the PTCIP must include a non-exclusive license of its intellectual necessary. comprehensive list of all rolling stock property to another entity so that the Proposed paragraphs (a)(4) and (a)(5) upon which a PTC onboard apparatus licensee may introduce into the require the railroad to put its entire must be operative. FRA understands marketplace a substantially similar implementation plan into an that in most situations, the rolling stock product reliant on that intellectual understandable context, primarily as it referenced in paragraph (a)(6) may only property. In such a case, FRA foresees relates to the sequence and schedule of apply to lead locomotives. However, in that the use of a common PTC system line segment implementation events. the interest of not hindering creative technology—even if it is proprietary to Under RSIA08, § 20157(a)(2), Congress technological innovations, FRA a single or multiple entities and requires each subject railroad, in its presumes the possibility that PTC licensed to railroads—could reduce the PTCIP, to describe how it shall, to the system technology may also be attached variability between components, thus extent practical, implement the PTC to additional rolling stock to provide providing for a more efficient means to system in a manner that addresses areas other functions, including determining achieve interoperability. of greater risk before areas of lesser risk. train capacity and length or providing In order for interoperability to Accordingly, under paragraph (a)(4), the certain acceptable and novel train actually occur between multiple PTCIP must discuss the railroad’s areas controls. To be kept apprised of these entities’ PTC systems, there must be of risk and the criteria by which these possibilities, FRA is proposing in some standard to which they all adhere. risks were evaluated and prioritized for paragraph (a)(6) that each PTCIP include Thus, FRA also expects that each PTC system implementation. To this a list of all rolling stock equipped with PTCDP will provide assurances of a end, the railroad must clearly identify PTC technology. FRA believes that the common interoperability standard all track segments that must be PTCIP should also identify any risks agreed to between all entities using PTC equipped, the basis for that decision for associated with trains operated by systems that must interoperate. each segment (which might be done by tenant railroads and not equipped with

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PTC system technology and the efforts Because of the critical role that WIU’s that risk-based prioritization required by that the host railroad has made to play in the proper and safe operation of paragraph (a)(4) of this section is not establish the extent of that risk. PTC systems, paragraph (a)(7) proposes practical. FRA recognizes that there may Although FRA believes that this is that the railroad identify the number of be situations where risk is somewhat inherent to reviewing the risk in the WIU’s required to be installed on any evenly distributed and where other system, FRA asks for comment as to given track segment and the schedule factors related to practical whether a requirement should be for installing the WIU’s associated with considerations—such as the need to specifically called out in the rule text. that segment. This information is establish reliable operation of the FRA understands that a host railroad necessary to fully and meaningfully system in less complex environments may not receive cooperation from a fulfill the RSIA08 requirement that by before installing it in more complex tenant railroad in collecting the December 31, 2012, Congress shall environments—may be the prudent necessary rolling stock information. receive a report on the progress of the course. However, the burden of Nevertheless, FRA expects each host railroad carriers in implementing PTC establishing the reasonableness of this railroad to make a good faith effort. systems. See 49 U.S.C. 20157(d). To approach would be on the railroad, Identification of those tenant railroads comply with this statutory requirement, starting with a showing that risk does that the host railroad attempted to each railroad must determine the not vary substantially among the line obtain the requisite and applicable number of WIUs it will need to procure segments in question. information from and that failed to and the location—as defined by the As previously mentioned, address a host railroad’s written request applicable subdivision—that each WIU § 236.1005(a) requires each applicable may establish a good faith effort by the will be installed. FRA believes that if a PTC system to be designed to prevent host railroad. railroad does not perform these train-to-train collisions. Under that Proposed paragraph (a)(7) requires the traditional engineering tasks, it will risk section, FRA has proposed various PTCIP to provide a detailed schedule of exceeding the statutory implementation requirements that would apply to at- and the railroad to subsequently report deadline of December 31, 2015. FRA grade rail-to-rail crossings, also known WIU installation. The selection and considers this information an integral as diamond crossings. While the identification of a technology selected part of the PTCIP that must be proposed rule text includes certain as part of the PTCIP will also, to a great submitted to FRA for approval. specific technical requirements, it also extent, determine the distribution of the FRA recognizes the potential for provides the opportunity for each functional behaviors of each of the PTC technological improvements that may subject railroad to submit an alternative subsystems (e.g., office, wayside, modify the number and types of WIU’s arrangement providing an equivalent communications, and back office). The required. FRA also recognizes that level of safety as specified in an FRA WIU is a type of remote terminal unit during testing and installation, it may be approved PTCSP. Accordingly, under (RTU) that is part of a larger PTC discovered that additional WIU proposed paragraph (a)(10), if the system, which is a type of Supervisory installation may be necessary. In either railroad intends to utilize alternative Control and Data Acquisition System case, the railroad will be required to arrangements providing an equivalent (SCADA). As a whole, the safe and submit an RFA in accordance with level of safety to that of the table efficient operation of a SCADA—a § 236.1021 indicating how the railroad provided under § 236.1005(a)(1)(i), each centralized system that covers large intends to appropriately revise its PTCSP must identify those alternative areas, monitors and control systems, schedule to reflect the resulting arrangements and methods, with any and passes status information from, and necessary changes. Nevertheless, associated risk reduction measures, in operational commands to, RTUs—is regardless of whether FRA approves or its PTCSP. largely dependent on the ability of each disapproves of the RFA, if a railroad is Paragraph (b) contains proposed of its RTUs to accurately receive and required to submit its PTCIP by April provisions related to further deployment distribute the required information. As 16, 2010, implementation must still be of PTC. As noted elsewhere in this such, a PTC system cannot properly completed by the statutory deadline preamble, the specific characteristics of operate without properly functioning December 31, 2015. the PTC route structure, with the focus WIUs to provide and receive status Under proposed paragraph (a)(8), each on PIH traffic as an indicator of risk, information and react appropriately to railroad must also identify in its PTCIP was a late addition to the bill that would control information. which of its track segments are either become RSIA08, not having appeared in It is commonly understood that a WIU main line or not main line. This list either the House or Senate bills until the device is capable of communicating must be made based solely on the final package was assembled using directly to the office, train, or other statutory and regulatory definitions consultations between the committee wayside unit. FRA recognizes that there regardless of whether FRA may later staffs in lieu of a formal committee of may not be the same amount of WIUs deem a track segment as other than conference. Although the statutory and devices that they monitor. main line. If a railroad has a main line construct (Class I rail line with 5 million Depending on the architecture and that it believes should be considered not gross tons and some PIH materials) technology used, a single WIU may main line, it may file with the PTCIP a adequately defines most of the core of communicate the necessarily main line track exception addendum the national freight rail system, it is a information as it relates to multiple (MTEA) in accordance with § 236.1019, construct that will introduce distortions devices. FRA is comfortable with this as further discussed below. Each track at both ends of the spectrum of risk. type of consolidation provided that, in segment included in the MTEA should On one hand, a line with a maximum the event of a failure of any one of the be indicated as much on the list speed limit of 25 miles per hour ending devices being monitored, the most required under paragraph (a)(8) so that at a grain elevator that receives a few restrictive condition will be transmitted the PTCIP accounts for each track cars of anhydrous ammonia per year is to the train or office, except where the segment with an appropriate cross- a ‘‘main line’’ if it has at least 5 million system may uniquely identify the failed reference to the subject MTEA. gross tons of traffic (a very low device in a manner that will provide Paragraph (a)(9) requires that the plan threshold for a Class I railroad). This is safe movement of the train when it call out the basis for this determination not a line without risk, particularly if it reaches the subject location. to the extent the railroad determines lacks wayside signals, but FRA analysis

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shows that the potential for a Shared Assets, a large regional monitoring systems, track integrity catastrophic release from a pressure switching railroad that is owned by NS circuits, digital data links and other tank car is very low at an operating and CSXT and is comprised of major technology used to address dark speed of 25 miles per hour, and the low segments of the former Conrail, then a territory issues should be and, as tonnage is likely associated with Class I railroad, is perhaps the classic presently conceived, are forward- relatively infrequent train movements— example. compatible with PTC. FRA proposes in limiting the chance of a collision. As FRA notes that there has also been a paragraph (b) to dovetail these FRA understands the congressional trend, only recently and temporarily requirements by requiring that each mandate, the law gives FRA little choice abated by the downturn in the economy, Class I railroad include in its PTCIP but to require PTC under these toward higher train counts on some deployment strategies indicating how it circumstances. non-signaled lines of the Class I will approach the further build-out of On the other end of the spectrum, railroads. On a train-mile basis, these full PTC, or partial implementation of lines with greater risk may go operations present about twice the risk PTC (e.g., using PTC technology to unaddressed. For instance, a line as similar operations on signalized prevent train-to-train collisions but carrying perhaps a much higher level of lines. These safety gaps need to be perhaps not monitoring all switches in train traffic and significant volumes of filled; and, while most will be filled due the territory; or using PTC to protect other hazardous materials at higher to the presence of PIH traffic, FRA movements of the Class I over a speeds, without any PIH or passenger cannot verify that this is the case in switching or terminal railroad without traffic, would not be equipped. This every instance. initially requiring all controlling example is not likely to be present to FRA concludes that the mandated locomotives of the switching or terminal any significant extent under current deployment of PTC will leave some railroad to be equipped). These railroads conditions. However, should the Class I substantial gaps in the Class I route would then be required to include in the railroads raise freight rates sufficiently structure, including gaps in some major technology elements of their initial Risk to eliminate PIH traffic by making rail urban areas. FRA believes that these Reduction plans a specification of transportation prohibitively expensive, gaps will, over time, be ‘‘filled in’’ by which lines will be equipped and with the issue would be presented as a voluntary actions of the Class I railroads what PTC system elements. Proposed substantial one. Most of the as they establish the reliability of their paragraph (b) makes clear that there transportation risk—including hazards PTC systems, verify effective would be no expectation regarding to train crews and roadway workers and interoperability, and begin to enjoy the additional lines being equipped until exposure to other hazardous materials if safety and other business benefits from those mandated by subpart I have been released—would remain, but not the use of these systems. FRA fully addressed. FRA shares the view of the few carloads of PIH. FRA believes that understands both the desire of the labor Class I railroads and the passenger stakeholders in the PTC Working Group the intent of Congress with respect to railroads that the December 31, 2015, to see a broader build-out of PTC deployment of PTC might be defeated, deadline already presents a substantial systems than that ‘‘minimally’’ required even though the literal language of the challenge for railroads, suppliers and by RSIA08 and the concerns of the Class legislation would be satisfied. Other the employees affected. lines carrying very heavy volumes of I railroads’ representatives who noted bulk commodities such as coal and the extreme challenge associated with Paragraph (c) proposes to codify in intermodal traffic may or may not equipping tens of thousands of wayside regulation the statutory mandate that include PIH traffic. Putting aside the units, some 20,000 locomotives, and FRA review the PTCIP and determine, risk associated with PIH materials, their dispatching centers’ back offices within 90 days upon receipt of the plan, significant risk exists to train crews and within the statutory implementation whether to provide its approval or persons in the immediate vicinity of the period. disapproval. FRA believes it is also right-of-way if a collision or other PTC- The Congress recognized that all of important to provide procedural rules to preventable accident occurs. Any place these issues are legitimate concerns and communicate approval or disapproval. on the national rail system is a potential so mandated the establishment of Risk Thus, under paragraph (c), FRA roadway work zone, but special Reduction Programs under the same proposes that any approval or challenges are presented in providing legislation. Section 103 of RSIA08 disapproval of a PTCIP requires FRA to for on-track safety where train codifies language that includes, within provide written notice. In the event that movements are very frequent. the Risk Reduction Program, a FRA disapproves of the PTCIP, the Risk on the larger Class II and III Technology Implementation Plan that is notice will also include a narrative railroads’ lines is also a matter of specifically required to address explaining the reasons for disapproval. concern, and the presence of significant technology alternatives, including PTC. Once the railroad receives notification numbers of Class I railroad trains on Accordingly, the PTC and Risk that its PTCIP has been disapproved by some of those properties presents the Reduction provisions in RSIA08 are FRA, it will have 30 days to resubmit its opportunity for further risk reduction, clearly aligned in purpose; and there are PTCIP for review and approval. While since over the coming years virtually all also references in the technology plan FRA may provide assistance to remedy Class I railroad locomotives will be elements of the Risk Reduction language a faulty PTCIP, it is ultimately the equipped with PTC onboard apparatus’. that address installation of PTC by other railroad’s responsibility and burden to Examples include trackage and haulage railroads. Further, FRA has been develop and submit a PTCIP worthy of rights retained over Class II and III charged with a separate rulemaking FRA approval. A railroad may be subject railroads following asset sales in which under section 406 of RSIA08 regarding to civil penalties if it fails to timely file the Class I railroads divested the subject risk in non-signaled (dark) territory that its PTCIP under this section. As noted lines. Other prominent examples significantly overlaps the issue set in previously, subpart I applies to each involve switching and terminal this rulemaking and the Risk Reduction railroad that Congress and FRA has railroads, the largest of which are section. Use of technologies that are mandated to install a PTC system. A owned and controlled by two or more integral to PTC systems constitute the railroad that is not required to install a Class I railroads and function, in effect, best response to hazards associated with PTC system may still do so under its as extensions of their systems. Conrail non-signaled lines. Switch position own volition. In such a case, it may

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either seek approval of its system under Approval, presents the opportunity for should already be done when either subpart H or I. Paragraph (d) other railroads to reduce the effort developing safety-critical software. intends to make this choice clear. required to obtain a PTC System In proposed §§ 236.1013 and Paragraph (e) responds to comments Certification. If a Type Approval for a 236.1015, various adjectives may by labor organizations in the PTC PTC system exists, another railroad may precede the several of the requirements. Working Group. These employee also use that Type Approval provided For instance, certain paragraphs require representatives sought the opportunity there are no variances in the system as ‘‘a complete description,’’ ‘‘a detailed to comment on major PTC filings. The described in the Type Approval’s description,’’ or simply a ‘‘description.’’ paragraph provides that, upon receipt of PTCDP. In such cases, the other railroad These phrases are inherited from a PTCIP, PTCDP, or PTCSP, FRA posts may avoid submitting its own PTCDP by subpart H. Their inclusion in subpart I on its public Web site notice of receipt simply incorporating by reference the are similarly not to imply that any and reference to the public docket in supporting information in the Type description should be more or less which a copy of the filing has been Approval’s PTCDP and certifying that detailed or complete than any other placed. FRA may consider any public no variances in the PTC system have description required. By contrast, they comment on each document to the been made. are included merely for the purposes of extent practicable within the time This proposed section describes the emphasis. allowed by law and without delaying contents of the PTCDP required to Paragraph (a)(1) proposes to require implementation of PTC systems. The obtain FRA approval in the form of that the PTCDP include system version of any filing initially placed in issuance of a Type Approval number. specifications that describe the overall the public docket would be the redacted The proposed provisions of this section product and identify each component copy as filed by the railroad. If FRA require each PTCDP to include all the and its physical relationship in the system. FRA will not dictate specific later determined that additional elements and practices listed in this product architectures, but will examine material was not deserving of protection section to provide reasonable assurance each PTC system to fully understand as confidential, that material would be that the subject PTC system will meet how its various parts interrelate. Safety- added to the docket. the statutory requirements and are critical functions in particular will be developed consistent with generally- Section 236.1013 PTCDP Content reviewed to determine whether they are accepted principles and risk-oriented Requirements and Type Approval designed to be fail-safe. FRA believes proof of safety methods surrounding As noted in the discussion above this provision is an important element this technology. FRA believes it is regarding § 236.1009, each PTCSP must that can be applied to determine necessary to include the provisions be submitted with a Type Approval whether safety is maximized and number identifying a PTC system that contained in this section in order to maintainability can be achieved. FRA believes could fulfill the provide reasonable assurance that the Paragraph (a)(2) proposes to require a requirements of subpart I. Under product, when developed and deployed, description of the operation where the § 236.1009, a railroad may submit an will have no adverse impact on the product will be used. Upon receipt of existing Type Approval number in lieu safety of railroad employees, the public, this information within a PTCDP, FRA of a PTC Development Plan (PTCDP) if and the movement of trains. will have better contextual knowledge the PTC system it intends to implement FRA recognizes that much of the of the product as it applies to the type and operate is identical to the one information required by § 236.1013 of operation on which it is designed to described in that Type Approval’s normally resides with the PTC system’s be used. Where operational behaviors associated PTCDP. In the event, developer or supplier maintains and not are not applicable to a particular however, that a railroad intends to the client railroad. While FRA expects railroad, or the product design is not install a system for which a Type that each railroad and its PTC system intended to address a particular Approval number has not yet been supplier may jointly draft a PTCDP, the operational behavior, FRA would expect assigned, or to use a system with an railroad has the primary responsibility a short statement indicating which assigned Type Approval number that for the safety of its operations and for operational characteristics do not apply may have certain variances to its safety- providing the information required and why they are not applicable. critical functions, then the railroad must under § 236.1013. Accordingly, each Paragraph (a)(3) proposes that the submit a PTCDP to obtain a new Type railroad required to submit a PTCDP PTCDP include a concept of operations, Approval number. under subpart I should make the a list of the product’s functional The PTCDP is the core document that necessary arrangements to ensure that characteristics, and a description provides the Associate Administrator the requisite information is readily explaining how various components sufficient information to determine available from the supplier for within the system are controlled. FRA whether the PTC system proposed for submission to the agency. FRA believes expects that the information provided installation by the railroad could meet that suppliers and railroads will under paragraphs (a)(2) and (a)(3) will the statutory requirements for PTC develop a PTCDP for most products that together provide a thorough systems specified by RSIA08 and the adequately address the requirements of understanding of the PTC system. FRA regulatory requirements under subpart I. the new subpart without substantial will review this information—primarily Issuance of a product Type Approval additional expense. As part of the by comparing the subject PTC system’s number is contingent upon the approval design and evaluation process, it is functionalities with those underlying of the PTCDP by the Associate essential to ensure that an adequate principles contained in standards for Administrator. While filing of a PTCDP analysis of the features and capabilities existing signal and train control is optional in the sense that the railroad is made to minimize the possibility of systems—to determine whether the PTC may proceed directly to submission of conflicts resulting from any use or system is designed to account for all the PTCSP by the April 16, 2010 feature, including a software fault. Since relevant safety issues. While FRA deadline (see § 236.1009), FRA this analysis is a normal cost of software proposes to not prescribe PTC system encourages railroads engaged in joint engineering development, FRA does not design standards, FRA expects that each operations to do so. Approval of the believe this requirement imposes any applicant compare the concepts PTCDP, and issuance of a Type additional significant costs beyond what contained in existing standards to the

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operational concepts, functionalities, development of safety-critical PTC the PTC system both within, and and controls contemplated for the PTC systems. FRA expects the information between, railroads. system in order to determine whether a provided under paragraph (a)(5) to Paragraph (a)(7) proposes to require sufficient level of safety will be cover: identification of all safety an analysis regarding how subparts A achieved. For example, the proposed requirements that govern the operation through G of part 236 apply, or no requirements prescribe that where a of a system; evaluation of the total longer apply, to the subject PTC system. track relay is de-energized, a switch or system to identify known or potential FRA recognizes that while a PTC system derail is improperly lined, a rail is safety hazards that may arise over the may be designed in accordance with the removed, or a control circuit is opened, life-cycle of the system; identification of underlying safety concepts of subparts each signal governing movements into all safety issues during the design phase A through G, the specific existing the subject block occupied by a train, of the process; elimination or reduction requirements contained in those locomotive, or car must display its most of the risks posed by the hazards subparts are not applicable. In any restrictive aspect for the safety of train identified; resolution of safety issues event, the PTCDP must identify each operations. The principle behind the presented; development of a process to pertinent requirement considered to be requirement is that, when a condition track progress; and development of a inapplicable, fully describe the exists in the operating environment, or program of testing and analysis to alternative method used to fulfill that with respect to the functioning of the demonstrate that safety requirements are underlying safety concept, and explain system, that entails a potential hazard, met. Paragraph (a)(5) also requires that how the proposed PTC system supports the system will assume its most each railroad identify the PTC system’s the underlying safety principle. FRA restrictive state to protect the safety of safety assurance concepts. notes that certain sections in subparts A train operations. Paragraph (a)(6) proposes to require a though G may always be applicable to Paragraph (a)(4) proposes that each submission of a preliminary human PTC systems certified under subpart I. PTCDP include a document that factors analysis that addresses each FRA is concerned about all identifies and describes each safety- applicable human-machine interface dimensions of system security. Thus, critical function of the subject PTC (HMI) and all proposed product paragraph (a)(8) proposes to require the system. The product architecture functions to be performed by humans to PTCDP to include a description of the includes both hardware and software enhance or preserve safety. FRA expects security measures necessary to meet the aspects that identify the protection this analysis to place special emphasis specifications for each PTC system. developed against random hardware on proposed human factors responses— Security is an important element in the faults and systematic errors. Further, the and the result of any failure to perform design and development of PTC systems document should identify the extent to such a response—to safety-critical and covers issues such as developing which the architecture is fault tolerant. hazards, including the consequences of measures to prevent hackers from FRA intends to use this information to human failure to perform. For each gaining access to software and to determine whether appropriate safety HMI, the PTCDP should address the preclude sudden system shutdown, concepts have been incorporated into proposed basis of assumptions used for mechanisms to provide message the proposed PTC system. For example, selecting each such interface, its integrity, and means to authenticate the existing regulations require that when a potential affect upon safety, and all communicating parties. Safety and route has been cleared for a train potential hazards associated with each security are two closely related topics. movement, it cannot be changed until interface. Where more than one Both are elements for ensuring that a the governing signal has been caused to employee is expected to perform duties subject is protected and without risk of display its most restrictive indication dependent upon HMI input or output, harm. In the industrial marketplace, the and a predetermined time interval has the analysis must address the goals of safety and security are to create expired where time locking is used or consequences of failure by one or an environment protecting assets from where a train is in approach to the multiple employees. FRA intends to use hazards or harm. While activities to location where approach locking is this information to determine the ensure safety usually relate to the used. FRA intends to use this proposed HMI’s effect upon the safety of possibility of accidental harm, activities information to determine whether all railroad operations. The preliminary to ensure security usually relate to the safety-critical functions are human factors analysis must propose protecting a subject from intentional included. Where such functionalities how the railroad or its PTC system malicious acts such as espionage, theft, are not clearly determined to exist as a supplier plans to address the HMI or attack. Since system performance result of technology development, FRA criteria listed in Appendix E to part 236 may be affected by either inadvertent or will expect the reasoning to be stated or any alternatives proposed by the deliberate hazards or harms, the safety and a justification provided describing railroad and deemed acceptable by the and security involved in the how that technology provides the Associate Administrator. implementation and operation of a PTC required level of safety. Where FRA Paragraph (a)(6) also proposes that the system must both be considered. identifies a void in safety-critical PTCDP explain how the proposed HMI Integrated security recognizes that functions, FRA may not approve the will affect interoperability. RSIA08 optimum protection comes from three PTCDP until remedial action is taken to requires that each subject railroad mutually supporting elements: physical rectify the concern. explain how it intends to obtain system security measures, operational FRA recognizes that the information interoperability. The ability of a train procedures, and procedural security required under paragraph (a)(4) may crew member to operate another measures. Today, the convergence of already be provided when complying railroad’s PTC system significantly information and physical security is with paragraph (a)(1). In such a case, the depends upon a commonly understood being driven by several powerful forces, railroad shall cross reference where in HMI. The HMI provides the end user including: interdependency, efficiency the PTCDP that both paragraphs (a)(1) with a method of interacting with the and organizational simplification, and (a)(4) are jointly satisfied. underlying system and accessing the security awareness, regulations, Paragraph (a)(5) proposes to require PTC functionality. FRA expects that directives, standards, and the evolving that each PTCDP address the minimum each railroad will adopt an HMI global communications infrastructure. requirements under § 236.1005 for standard that will ensure ease of use of Physical security describes measures

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that prevent or deter attackers from extensively review the fundamental failed en route using the flexibility accessing a facility, resource, or assumptions. provided by paragraph (c) of that information stored on physical media FRA expects each subject railroad to section, a justification must be provided and guidance on how to design confirm the validity of initial in the PTCDP. Paragraph (c) of proposed structures to resist various hostile acts. assumptions by comparing them to § 236.1029 provides that, in order for a Communications security describes actual in-service data. FRA is aware that PTC train that operates at a speed above measures and controls taken to deny mechanical and electronic component 90 miles per hour to deviate from the unauthorized persons information failure rates and times to repair are operating limitations contain in derived from telecommunications and easily quantified data, and usually are paragraph (b) of that section, the ensure the authenticity of such kept as part of the logistical tracking and deviation must be described and telecommunications. Because of the maintenance management of a railroad. justified in the FRA approved PTCDP or integrated nature of security, FRA FRA believes that this proposed PTCSP, or by reference to an Order of expects that each PTCDP will address criterion will enhance the quality of risk Particular Applicability, as applicable. assessments conducted pursuant to this security as a holistic concept, and not be For instance, if Amtrak wished to subpart by forcing PTC system designers restricted to limited or specific aspects. continue to operate at up to 125 miles and users to consider the long-term per hour with cab signals and automatic Paragraph (a)(9) proposes to require effects of operation over the course of train control in the case of failure of documentation of assumptions the PTC system’s projected life-cycle. If onboard ACSES equipment, Amtrak concerning reliability and availability a PTC system can be used beyond its would request to do so based on the targets of mechanical, electrical, and design life-cycle, FRA expects that any applicable language of the Order of electronic components. When building a continued use would be only under a Particular Applicability that required PTC system, designers may make waiver provided in accordance with installation of that system on portions of numerous presumptions that will part 211 or under a PTCDP or PTCSP the Northeast Corridor. Similarly, a directly impact specific implementation amended in accordance with railroad wishing more liberal decisions. These fundamental § 236.1021. In its request for waiver or requirements for a high speed rail assumptions usually come in the form request for amendment, the railroad system on a dedicated right-of-way of data (e.g., facts collected as the result should address any new risks associated could request that latitude by explaining of experience, observation or with the life-cycle extension. how the safety of all affected train experiment, or processes, or premises) Paragraph (a)(9) also proposes to movements would be maintained. that can be randomly sampled. FRA require specification of the target safety Paragraph (a)(12) requires a complete does not expect to audit all of the levels. This includes the identity of each description of how the PTC system will fundamental assumptions on which a potential hazard and how the events appropriately and timely enforce all PTC system has been developed. leading to a hazard will be identified for hazard detectors that are interconnected Instead, FRA envisions sampling and each safety-critical subsystem; the with the PTC system in accordance with reviewing fundamental assumptions proposed safety integrity level of each § 236.105(c)(3), as may be applicable. prior to product implementation and safety-critical subsystem, and the Proposed paragraph (b) specifies the after operation for some time. FRA proposed means that accomplishment of approval standard that will be employed expects that the data sampled may vary, these targets will be evaluated. This by the Associate Administrator. The depending upon the PTC system. It is paragraph also requires identification of PTCDP is not expected to provide the proposed backup methods of absolute assurance to the Associate not possible to provide a single set of operation and safety-critical Administrator that every potential quantitative numbers applicable to all assumptions regarding availability of hazard will be eliminated with complete systems, especially when systems have the product. FRA believes this certainty. It only needs to establish that yet to be designed and for which the information is essential for making the PTC system meets the appropriate fundamental assumptions are yet to be determinations about the safety of a statutory and regulatory requirements determined. Quantification is part of the product and both the immediate and for a PTC system required under this risk management process for each long-term effect of its failure. FRA subpart, and that there is a reasonable project. FRA believes that the actual contends that availability is directly chance that once built, it will meet the performance of the system observed related to safety to the extent the backup required safety standards for its during the pre-operational testing and means of controlling operations intended use. FRA emphasizes that post-implementation phases will involves greater risk (either inherently approval of a PTCDP and issuance of a provide indications of the validity of the or because it is infrequently practiced). Type Approval does not constitute final fundamental assumptions. FRA Paragraph (a)(10) proposes to require approval to operate the product in proposes that this review process will a complete description of how the PTC revenue service. Such approval only occur for the life of the PTC system (i.e., system will enforce all pertinent comes when the Associate as long as the product is kept in authorities and block signal, cab signal, Administrator issues an applicable PTC operation). The depth of details required or other signal related indications. FRA System Certification. will depend upon what FRA observes. appreciates that not all PTC Paragraph (c) proposes a time limit on The range of difference between a PTC architectures will seek to enforce the the validity of a Type Approval. system’s predicted and actual speed restrictions associated with Provided that at least one product is performance may indicate to FRA the intermediate signals directly, but certified within the 5 year period after validity of the underlying fundamental nevertheless a clear description of these issuance of the Type Approval, the Type assumptions. Generally, if the actual functions is necessary for clarity and Approval remains valid until final performance matches the predicted evaluation. retirement of the system. The main performance, FRA believes that it will Proposed paragraph (a)(11) requires purpose of this requirement is to not have to extensively review the that, if the railroad is seeking to deviate incentivize installation, not just fundamental assumptions. If the actual from the requirements of section creation, of a PTC system. This performance does not match predicted 236.1029 with respect to movement of paragraph would also allow FRA to performance, FRA may need to more trains with onboard equipment that has periodically clean out its records

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relating to Type Approvals and PTCDPs where its vendor has inadequate quality FRA recognizes the possibility that for obsolete PTC systems. control procedures and processes to between PTCIP or PTCDP approval, and Paragraph (d) proposes the conditions support the proper development of a prior to PTCSP submission, there may under which a Type Approval may be safety critical product. be changes to the former two used by another railroad. These Paragraph (f) proposes language documents. While such changes may conditions consist of the railroad retaining the Associate Administrator’s only be made in accordance with maintaining a continually updated ability to impose any conditions § 236.1021, documentation of those PTCPVL pursuant to § 236.1023(c) and necessary to ensure the safety of the changes may not be readily apparent to the railroad providing licensing public, train crews, and train operations the reader of the PTCSP. Accordingly, information associated with the use of when approving the PTCDP and issuing under proposed paragraph (b)(2), FRA the Type Approval. Under paragraph a Type Approval. While FRA expects expects that each PTCSP shall include (d), FRA intends to ensure the that adherence to the remainder of this a clear and complete description of any implementation of the proper section’s requirements should justify such changes by specifically and technology and not any orphan product issuance of a Type Approval, FRA also rigorously documenting each variance. using apparently similar, but actually recognizes that there may be situations Paragraph (b)(2) also proposes to require different, technology. When a railroad where other unaccounted for variables that the PTCSP include an explanation submits a previously issued Type may reduce the Associate of each variance’s significance. To Approval for its PTC system, FRA Administrator’s confidence in the PTC ensure that there are no other existing expects that all the proper licensing system, its manufacturer, supplier, variances not documented in the agreements provide for continued use vendor, or operator. PTCSP, FRA also proposes under this and maintenance of the PTC system are paragraph to require the railroad to in place. To ensure FRA’s confidence in Section 236.1015 PTCSP Content attest that there are no further variances. this area, FRA proposes to require each Requirements and PTC System For the same reason, paragraph (b)(3) Type Approval submission to include Certification proposes that, if there have been no this relevant licensing information. FRA The PTC Safety Plan (PTCSP) is the changes to the plans or to the PTC recognizes that there may be various core document that provides the system as intended, the railroad be licensing arrangements available Associate Administrator the information required to attest that there are no such relating to the exclusivity and necessary to certify that the as-built PTC variances. Proposed paragraph (c) delineates the sublicensing of manufacturing or system fulfills the required statutory vending of a particular PTC system. contents of the PTCSP. The first PTC functions and is in compliance There may be other intellectual property elements of the PTCSP are the same with the requirements of this subpart. variables that may make arrangements elements as the PTCDP (and are Issuance of a PTC System Certification even more complex. To adequately described more fully in the section by is contingent upon the approval of the capture all applicable arrangements, section for 236.1013). If the railroad had PTCSP by the Associate Administrator. FRA proposes to generally require the already submitted, and FRA had already Under the proposed rules, the filing and submission of ‘‘licensing information.’’ approved, the PTCDP, then attachment approval of the PTCSP and issuance of More specific language may preclude of the PTCDP to the PTCSP should a PTC System Certification is a FRA’s ability to collect information fulfill this requirement. mandatory prerequisite for PTC system necessary to fulfill its intent. If any of The additional, proposed railroad this information were to change, either operation in revenue service. Each specific elements are as follows: through any type of sale, transfer, or PTCSP is unique to each railroad and Paragraph (c)(1) proposes to require sublicense of any right or ownership, must addresses railroad-specific that the PTCSP include a hazard log then FRA would expect the railroad to implementation issues associated with comprehensively describing all hazards submit a request for amendment of its the PTC system identified by the to be addressed during the life-cycle of PTCDP in accordance with § 236.1021. submitted Type Approval. Paragraph (a) the product, including maximum FRA recognizes that this may be proposes language explaining these threshold limits for each hazard. For difficult for a railroad to accomplish, meanings and limits. unidentified hazards, the threshold given the railroad may not be privy to When filing a PTCSP, proposed shall be exceeded at one occurrence. In any intellectual property transactions paragraph (b) proposes to require each other words, if the hazard has not been that may occur outside of its control. In railroad to: Include the applicable and predicted, then any single occurrence of any event, FRA would expect that a approved PTCIP, PTCDP, and Type that hazard is unacceptable. The hazard railroad would ensure, either through Approval; describe any changes log addresses safety-relevant hazards, or contractual obligation or otherwise, that subsequently made to the PTC system, incidents or failures that affect the its vendor or supplier provide it with as reflected in the PTCSP, that would safety and risk assumptions of the PTC updated licensing information on a require amendment of the PTCIP or system. Safety relevant hazards include continuing basis. FRA seeks comments PTCDP; and assure FRA whether the events such as false proceed signal on this proposal. PTC system built is the same PTC indications and false restrictive signal Paragraph (e) proposes to require that system described in the PTCDP and indications. If false restrictive signal a railroad submitting a PTCDP PTCSP. Paragraph (b)(1) effectively indications occur with any type of demonstrate that its vendor has a merges the approved PTCIP and PTCDP frequency, they could influence train suitable quality control system. This into the PTCSP so that there will be a crew members, roadway workers, requirement provides protection to the single ‘‘package’’ available for PTC dispatchers, or other users to develop an railroad and FRA that there is a operations and FRA review before and apathetic attitude towards complying reasonable probability that the vendor after issuance of a PTC System with signal indications or instructions can design and manufacture the product Certification. If a PTCSP is approved, from the PTC system, creating human such that it will meet the design targets and the railroad receives a PTC System factors problems. specified in paragraph (a). FRA expects Certification, all three plans continue to Incidents in which stop indications that compliance with paragraph (e) will ‘‘live’’ and can only be amended in are inappropriately displayed may also eliminate the operation of a PTC system accordance with § 236.1021. necessitate sudden brake applications

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that may involve risk of derailment due with the system have been efficiencies, less troubleshooting, and to in-train forces. Other unsafe or comprehensively identified; (2) hazards decreased costs. FRA expects any wrong-side failures which affect the have been appropriately categorized training program to include employees, safety of the product will be recorded on according to risk (likelihood and supervisors, and contractors engaged in the hazard log. The intent of this severity); (3) appropriate techniques for railroad operations, installation, repair, paragraph is to identify all possible mitigating the hazards have been modification, testing, or maintenance of safety-relevant hazards which would identified; and (4) hazard mitigation equipment and structures associated have a negative effect on the safety of techniques have been effectively with the product. the product. Right-side failures, or applied. See Leveson, Nancy G., Paragraph (c)(6) proposes to require product failures which have no adverse Safeware: System Safety and the PTCSP to identify specific effect on the safety of the product (i.e., Computers, (Addison-Wesley procedures and test equipment do not result in a hazard) would not be Publishing Company, 1995). necessary to ensure the safe operation, required to be recorded on the hazard FRA does not expect that the safety installation, repair, modification and log. assessment will prove that a product is testing of the product. Requirements for Paragraph (c)(2) proposes to require absolutely safe. However, the safety operation of the system must be that a risk assessment be included in the assessment should provide evidence succinct in every respect. The PTCSP. FRA will use this information as that risks associated with the product procedures must be specific about the a basis to confirm compliance with the have been carefully considered and that methodology to be employed for each appropriate performance standard. A steps have been taken to eliminate or test to be performed that is required for performance standard specifies the mitigate them. Hazards associated with installation, repair, or modification outcome required, but leaves the product use need to be identified, with including documenting the results specific measures to achieve that particular focus on those hazards found thereof. FRA will review and compare outcome up to the discretion of the to have significant safety effects. The the repair and test procedures for regulated entity. In contrast to a design risk assessment proposed under adequacy against existing similar standard or a technology-based standard paragraph (c)(2) must include each requirements prescribed for signal and that specifies exactly how to achieve hazard that cannot be mitigated by train control systems. FRA intends to compliance, a performance standard system designs (e.g., human over- use this information to ascertain sets a goal and lets each regulated entity reliance of the automated systems) no whether the product will be properly decide how to meet that goal. An matter how low its probability may be. installed, maintained, tested, and appropriate performance standard After the risk assessment, the designer repaired. should provide reasonable assurance of must take steps to remove them or Paragraph (c)(7) proposes that each safe and effective performance by mitigate their effects. Hazard analysis railroad develop a manual covering the making provision for: (1) Considering methods are employed to identify, requirements for the installation, the construction, components, eliminate, and mitigate hazards. Under periodic maintenance and testing, ingredients, and properties of the device certain circumstances, FRA may require modification, and repair for its PTC and its compatibility with other systems an independent third party assessment system. The railroad’s Operations and and connections to such systems; (2) in accordance with proposed § 236.1017 Maintenance Manual must address the testing of the product on a sample basis to review these methods as a issues of warnings and describe the or, if necessary, on an individual basis; prerequisite to FRA approval. warning labels to be placed on each (3) measurement of the performance Paragraph (c)(4) also proposes that the piece of PTC system equipment as characteristics; and (4) requiring that the PTCSP address safety Verification and necessary. Such warnings include, but results of each or of certain of the tests Validation procedures as defined under are not limited to: Means to prevent required show that the device is in part 236. FRA believes that Verification unauthorized access to the system; conformity with the portions of the and Validation for safety are vital parts warnings of electrical shock hazards; standard for which the test or tests were of the PTC system development process. cautionary notices about improper required. Typically, the specific process Verification and Validation require usage, testing, or operation; and used to design, verify and validate the forward planning. Consequently, the configuration management of memory product is specified in a private or PTCSP should identify the testing to be and databases. The PTCSP should public standard. The Administrator may performed at each stage of development provide an explanation justifying each recognize all or part of an appropriate and the levels of rigor applied during such warning and an explanation of standard established by a nationally or the testing process. FRA will use this why there are no alternatives that would internationally recognized standard information to ensure that the adequacy mitigate or eliminate the hazard for development organization. and coverage of the tests are which the warning is placed. Paragraph (c)(3) proposes to require appropriate. Paragraph (c)(8) proposes to require that the PTCSP include a hazard Paragraph (c)(5) proposes to require that the PTCSP identify the various mitigation analysis. The hazard the railroad to include in its PTCSP the configurable applications of the mitigation analysis must identify the training, qualification, and designation product, since this rule mandates use of techniques used to investigate the program for workers regardless of the product only in the manner consequences of various hazards and whether those railroad employees will described in its PTCDP. Given the list all hazards addressed in the system perform inspection, testing, and importance of proper configuration hardware and software including failure maintenance tasks involving the PTC management in safety-critical systems, mode, possible cause, effect of failure, system. FRA believes many benefits FRA believes it is essential that and remedial actions. A safety-critical accrue from the investment in railroads learn of and take appropriate system must satisfy certain specific comprehensive training programs and configuration control of hardware and safety requirements specified by the are fundamental to creating a safe software. FRA believes that a system designer or procuring entity. To workforce. Effective training programs requirement for configuration determine whether these requirements can result in fewer instances of human management control will enhance the are satisfied, the safety assessor must casualties and defective equipment, safety of these systems and ultimately determine that: (1) Hazards associated leading to increased operating provide other benefits to the railroad as

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well. Under this proposed paragraph, product are discussed in proposed Under proposed § 236.1029(b), FRA railroads are responsible—through its § 236.1037. proposes to require certain limitations applicable Operations and Maintenance Paragraph (c)(12) proposes to require on PTC trains operating over 90 miles Plan and other supporting a safety analysis of unintended per hour. Under § 236.1029(c), FRA documentation maintained throughout incursions into a work zone. Measuring provides railroads with an opportunity the system’s life-cycle—for all changes incursion risks is a key safety risk to deviate from those limitations if the to configuration of their products in use, assumption. Failing to identify railroad describes and justifies the including both changes resulting from incursion risk can have the effect of deviation in its PTCDP, PTCSP, or by maintenance and engineering control making a system seem safer on paper reference to an Order of Particular changes, which result from than it actually is. The requirements set Applicability, as applicable. Thus, manufacturer modifications to the forth in this paragraph attempt to proposed paragraph (c)(16) to product. Since not all railroads may mandate design consideration of § 236.1015 reminds railroads that this is experience the same software faults or incursion protection at an early stage in one of the optional elements that may be hardware failures, the configuration the product development process. The included in a PTCSP. This need may management and fault reporting totality of the arrangements made to also be addressed through review of the tracking system play a crucial role in the prevent unintended incursions or PTCDP, and FRA reserves the right to so ability of the railroad and the FRA to operation at higher than authorized provide in the final rule. determine and fully understand the speed within the work zone must be Railroads are required under risks and their implications. Without an analyzed. That is, in addition to the § 236.1005(c) to submit a complete effective configuration management functions of the PTC system, the description of its compliance regarding tracking system in place, it is difficult, required actions for dispatchers, train hazard detector integration and under if not impossible, to fairly evaluate risks crews, and roadway workers in charge §§ 236.1005(g)–(k) to submit a associated with a product over the life must be evaluated. Regardless of temporary rerouting plan in the event of of the product. whether a PTC system has been emergencies and planned maintenance. Paragraph (c)(9) proposes to require previously approved or recognized, FRA Railroads must also submit a document the railroad to develop comprehensive will not accept a system that allows a indicating any alternative arrangements plans and procedures for product single point human failure to defeat the for each rail at-grade crossing not implementation. Implementation (field essential protection intended by the adhering to the table under validation or cutover) procedures must Congress. See NTSB Recommendations § 236.1005(a)(1)(i). Proposed paragraphs be prepared in detail and identify the R–08–05 and R–08–06. FRA believes (c)(17), (c)(18), and (c)(19) to § 236.1015 processes necessary to verify that the that exposure should be identified reminds railroads that such because increases in risk due to requirements must be fulfilled with the PTC system is properly installed and increased exposure could be easily submission of the PTCSP. For example, documented, including measures to distinguished from increases in risk due under proposed paragraph (c)(18), FRA provide for the safety of train operations solely to implementation and use of the expects each temporary rerouting plan during installation. FRA will use this proposed PTC system. to explain the host railroad’s procedure information to ascertain whether the In the past, little attention was given relating to detouring the applicable product will be properly installed, to formalizing incursion protection traffic. In other words, FRA expects that maintained, and tested. FRA also procedures. Training for crews has also each temporary rerouting plan address believes that configuration management not been uniform among organizations, how the host railroad will choose the should reduce disarrangement issues. and has frequently received inadequate track that traffic will be rerouted onto. Further, configuration management will attention. As a result, a variety of For instance, the plan should explain reduce the cost of troubleshooting by procedures and techniques evolved the factors that will be considered in reducing the number of variables and based on what has been observed or determining whether and how the will be more effective in promoting what just seemed correct at the time. railroad should take advantage of safety. This lack of structure, standardization, temporary rerouting. FRA remains Paragraph (c)(10) proposes to require and formal training is inconsistent with concerned about the unnecessary the railroad to provide a complete the goal of increasing the safety and commingling of PTC and non-PTC description of the particulars efficiency. traffic on the same track and expects concerning measures required to assure Paragraph (c)(13) proposes to require each temporary rerouting plan to that the PTC system, once implemented, a more detailed description of any address this possibility. More continues to provide the expected safety alternative arrangements provided specifically, each plan should describe level without degradation or variation under proposed § 236.1011(a)(10), how the railroad expects to make over its life-cycle. The measures pertaining to at grade rail-to-rail decisions to reroute non-PTC train specifically provide the prescribed crossings. traffic onto a PTC line, especially where intervals and criteria for the following: Paragraph (c)(14) proposes to require another non-PTC line may be available. testing; scheduled preventive a complete description of how the PTC While FRA recognizes each railroad maintenance requirements; procedures system will enforce mandatory may seek to use the most cost effective for configuration management; and directives and signal indications, unless route, FRA expects the railroad to also procedures for modifications, repair, already addressed in the PTCDP. FRA consider the level of risk associated replacement and adjustment of recognizes that all systems will enforce with that route. equipment. FRA intends to use this all signal indications; however, the In paragraph (d), FRA proposes to information, among other data, to PTCDP must describe where the state the criteria that FRA will refer to monitor the PTC system to assure it architecture of the system performs this when evaluating the PTCSP, depending continually functions as intended. function. upon the underlying technical Paragraph (c)(11) proposes to include Proposed paragraph (c)(15) refers to approach. Whereas in subpart H the in each PTCSP a description of each the requirement of § 236.1019(e) that the safety case is evaluated to determine record concerning safe operation. PTCSP is aligned with the PTCIP, whether it demonstrates with a high Recordkeeping requirements for each including any amendments. degree of confidence that relevant risk

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will be no greater under the new universe which is the basis of analysis submitted to the Associate product than previously, the statutory comparison. Although it is understood Administrator must show that the mandate for PTC calls for a different that the system will endeavor to system does not introduce any new approach. In crafting the proposed eliminate 100% of this risk—meaning hazards that have not been acceptably approach, FRA has attempted to limit that if the system worked as intended mitigated, based upon all proposed requirements for quantitative risk every time and was always available, changes in railroad operation. The assessment to those situations where the 100% of the target risk would be required analysis for standalone systems technique is truly needed. Regardless of eliminated—the analysts will need to is much more comprehensive than that the type of PTC system, the safety case account for cases where wrong side required for vital overlay systems, since for the system must demonstrate that it failure of the technology is coincident it must provide sufficient information to will reliably execute all of the functions with a human failure potentially the Associate Administrator to make a required by this subpart (particularly induced by reliance on the technology. decision with a high degree of those provided under proposed Since, within an appropriate confidence. FRA will uniquely and §§ 236.1005 and 236.1007). With this conservative engineering analysis (i.e., separately consider each request for foundation, the additional criteria that pro forma analysis), non-vital standalone operations, and will render must be met depend upon the type of processing has the theoretical potential decisions in the context of the proposed PTC technology to be employed. to result in more failures than will operation and the associated risks. FRA It is FRA’s understanding that PTC typically be experienced, a 20% margin recognizes that application of this systems may be categorized as one of is provided. In preparing the PTCSP, the standard to a new rail system for which the following four system types: Non- railroad will want to affirmatively there is no clear North American vital overlay; vital overlay; standalone; address how training and oversight— antecedent could present a conceptual and mixed. Initially, however, all PTC including programs of operational challenge. FRA invites comments systems will have some features that are testing under 49 CFR 217.9—will reduce regarding how best to frame the risk not fully fail-safe in nature, even if the potential for inappropriate reliance assessment showing for a standalone onboard processing and certain wayside by those charged with functioning in system applied to a new rail operation. functions are fully fail-safe. Common accordance with the underlying method Proposed paragraph (d)(4) addresses causes include surveying errors of the of operation. mixed systems (i.e., systems that track database, errors in consist weight The 80% reduction in risk for PTC include a combination of the systems or makeup from the railroad information preventable accidents must be identified in paragraphs (d)(1) through technology systems, and the crew input demonstrated by an appropriate risk (d)(3). Because of the inherent errors of critical operational data. To the analysis acceptable to the Associate complexity of these systems, FRA will extent computer-aided dispatching Administrator and must address all determine an appropriate approach to systems are the only check on potential intended track segments upon which demonstrating compliance after dispatcher error in the creation or the system will be installed. Again, FRA consultation with the railroad. Any inappropriate cancellation of mandatory does not expect, or require, that these approach will, of course, require that directives, some room for undetected types of systems will prevent all wrong the system perform the PTC wrong-side failure will continue to exist side failures. However, FRA expects that requirements as proposed in in this function as well. This issue is the systems will be designed to be §§ 236.1005 and 236.1007. addressed under paragraph (g) of this robust, all pertinent risk factors Paragraph (e) discusses proposed section. (including human factors) will be fully factors that the Associate Administrator Proposed paragraph (d)(1) specifies addressed, and that no corners will be will consider in reviewing the PTCSP. the required behavior for non-vital cut to ‘‘take advantage’’ of the nominal In general, PTC systems will have some overlay systems. Based on previous allowance provided for non-vital features that are not failsafe in nature. experience with non-vital systems, FRA approaches. FRA also encourages those Examples include surveys of the track believes it is well within the technical using non-vital approaches to preserve database, errors in consist data from the capability of the railroads to reduce the as much as possible the potential for a railroad such as weight and makeup, level of risk on any particular track transition to vital processing. and crew input errors. FRA segment to a level of risk 80% lower Proposed paragraph (d)(2) addresses participation in the design and testing of than the level of risk prior to installation vital overlays. Unlike a non-vital the PTC system product helps FRA to of PTC on that segment. For subsequent system, the vital system must be better understand the strengths and PTC system installations on the same designed to address, at a minimum, the weaknesses of the product for which line segment, FRA recognizes that factors delineated in Appendix C. The approval is requested, and facilitates the requiring an additional 80% railroad and their vendors are approval process. improvement may not be technically or encouraged to carry out a more thorough The railroad must establish through economically practical. Therefore, FRA design analysis addressing any other safety analysis that its assertions are is only proposing that an entity potential product specific hazards. FRA true. This standard places the burden on installing or modifying an existing PTC cannot overemphasize that vital overlay the railroad to demonstrate that the system need only demonstrate that the system designs must be fully designed safety analysis is accurate and level of safety is equal to, and preferably to address the factors contained in sufficiently supports certification of the greater than, the level of safety of the Appendix C. The associated risk PTC system. The FRA Associate prior PTC system. The risk that must be analysis supporting this design analysis Administrator will determine whether reduced is the risk against which the demonstrating compliance may be the railroad’s case has been made. As PTC functionalities are directed, accomplished using any of the risk provided in subpart H, FRA believes assuming a high level of availability. analysis approaches in subpart H, that final agency determinations under Note that the required functionalities including abbreviated risk analysis. this new subpart I should also be made themselves do not call for elimination of Proposed paragraph (d)(3) addresses at the technical level, rather than the all risk of mishaps. It is scope of risk stand-alone PTC systems that are used policy level, due to the complex and reduction that the functionalities to replace existing methods of sometimes esoteric subject matters describe that becomes the 100% operations. The PTCSP design and risk associated with risk analysis and

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evaluation. This is particularly the PTCDP and PTCSP, FRA may deem unable to certify the system without the appropriate in light of the RSIA08’s it necessary to require a third party additional information). designation of the Associate assessment at any time during the Section 236.1019 Main Line Track Administrator for Railroad Safety as the review process. Exceptions Chief Safety Officer of FRA. When Proposed paragraph (b) is intended to considering the PTC system’s make it clear that it is FRA that will The RSIA08 generally defines ‘‘main compliance with recognized standards make the determination of the line’’ as ‘‘a segment of railroad tracks in product development, FRA will acceptability of the independence of the over which 5,000,000 or more gross tons weigh appropriate factors, including: third party to avoid any potential issues of railroad traffic is transported The use of recognized standards in downstream regarding the acceptability annually.’’ See 49 U.S.C. 20157(i)(2). system design and safety analyses; the of the assessor’s independence. If a third However, FRA may also define ‘‘main acceptable methods in risk estimates; party assessment is required, each line’’ by regulation ‘‘for intercity rail the proven safety records for proposed railroad is encouraged to identify in passenger transportation or commuter components; and the overall complexity writing what entity it proposes to utilize rail passenger transportation routes or and novelty of the product design. In as its third party assessor. Compliance segments over which limited or no those cases where the submission lacks with paragraph (b) is not mandatory. freight railroad operations occur.’’ See information the Associate Administrator However, if FRA determines that the 49 U.S.C. 20157(i)(2)(B); 49 CFR deems necessary to make an informed railroad’s choice of a third party does 1.49(oo). FRA recognizes that there may safety decision, FRA will solicit the data not meet the level of independence be circumstances where certain from the railroad. If the railroad does contemplated under proposed statutory PTC system implementation not provide the requested information, paragraph (c), then the railroad will be and operation requirements are not practical and provide no significant FRA may determine that a safety hazard obligated to have the assessment safety benefits. In those circumstances, exists. Depending upon the amount and repeated, at its expense, until it has FRA proposes to exercise its statutory scope of the missing data, PTCSP been completed by a third party suitable discretion provided under 49 U.S.C. approval, and the subsequent system to FRA. 20157(i)(2)(B). certification, may be denied. Paragraph (c) proposes a definition of While paragraph (e) summarizes how In accordance with the authority the term ‘‘independent third party’’ as FRA intends to evaluate the risk provided by the statute and with used in this section. It limits analysis, proposed paragraph (f) applies carefully considered recommendations independent third parties to those that specifically to cases where a PTC system from the RSAC, FRA proposes to are compensated by the railroad or an has already been installed and the consider requests for designation of association on behalf of one or more railroad subsequently wants to put in a track over which rail operations are railroads that is independent of the PTC new PTC system. Paragraph (f) re- conducted as ‘‘other than main line system supplier. FRA believes that emphasizes that FRA policy regarding track’’ for passenger and commuter requiring the railroad to compensate a the safety of PTC systems is not, and railroads, or freight railroads operating cannot expect to be, static. Rather, FRA third party will heighten the railroad’s jointly with passenger or commuter policy may evolve as railroad operations interest in obtaining a quality analysis railroads. Such relief may be granted evolve, operating rules are refined, and will avoid ambiguous relationships only after request by the railroad or related hazards are addressed (e.g., between suppliers and third parties that railroads filing a PTCIP and approval by broken rails), and other readily available could indicate possible conflicts of the Associate Administrator. options for risk reduction emerge and interest. Paragraph (a), therefore, proposes to become more affordable. FRA embraces Proposed paragraph (d) explains that require the submittal of a main line the concept of progressive improvement the minimum requirements of a third track exclusion addendum (MTEA) to and expects that when new systems are party audit are outlined in Appendix F any PTCIP filed by a railroad that seeks installed to replace existing systems that (which is modeled on current Appendix to have any particular track segment actual safety outcomes equal or exceed D, which is used in conjunction with deemed as other than main line. Since those for the existing systems. subpart H) and that FRA has discretion the statute only provides for such to limit the extent of the third party regulatory flexibility as it applies to Section 236.1017 Independent Third assessment. FRA intends to limit the passenger transportation routes or Party Review of Verification and scope of the assessment to areas of the segments which limited or no freight Validation safety Verification and Validation as railroad operations occur, only a As previously noted in the discussion much as possible, within the bounds of passenger railroad may file an MTEA as of proposed § 236.1009(e), FRA may FRA’s regulatory obligations. This will part of its PTCIP. This may include a require a railroad to engage in an allow reviewers to focus on areas of PTCIP jointly filed by freight and independent assessment of its PTC greatest safety concern and eliminate passenger railroads. In fact, FRA expects system. In the event an independent any unnecessary expense to the railroad. that in the case of joint operations, only assessment is required, § 236.1017 In order to limit the number of third- one MTEA should be agreed upon and proposes the applicable rules and party assessments, FRA first strives to submitted by the railroads filing the procedures. inform the railroad as to what portions PTCIP. After reviewing a submitted Proposed paragraph (a) establishes of a submittal could be amended to MTEA, FRA may provide full or partial factors considered by FRA when avoid the necessity and expense of a approval for the requested exemptions. requiring a third-party assessment. FRA third-party assessment altogether. Each MTEA must clearly identify and will attempt to make a determination of However, FRA wishes to make it clear define the physical boundaries, use, and the necessary level of third party that Appendix F represents minimum characterization of the trackage for assessment as early as possible in the requirements and that, if circumstances which exclusion is requested. When approval process. However, based on warrant, FRA may expand upon the describing the tracks’ use and issues that may arise during the Appendix F requirements as necessary characterization, FRA expects the development and testing processes, or to enable FRA to render a decision that requesting railroad or railroads to during the detailed technical reviews of is in the public interest (i.e., if FRA is include copies of the applicable track

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and signal charts. Ultimately, FRA engineers moving in this environment prudent to require such enforcement expects each MTEA to include expect conflicting traffic and restrictive when the technology is available on the information sufficiently specific to signals. Although low-speed collisions operating locomotives. This can be enable easy segregation between main do occasionally occur in these accomplished in cab signal territory line track and non-main line track. In environments, the consequences are using existing automatic train stop the event the railroad subsequently low; and the rate of occurrence is very technology and outside of cab signal requests additional track to be low in relation to the exposure. It is the territory by mapping the terminal and considered for exclusion, a well-defined nature of current-generation PTC causing the onboard computer to MTEA should reduce the amount of systems that they work with averages in enforce the maximum speed allowed. future information required to be terms of stopping distance and use Under paragraph (b)(2), FRA proposes submitted to FRA. Moreover, if FRA conservative braking algorithms. to also limit relief under paragraph (b) decides to grant only certain requests in Applying this approach in congested to operations that enforce interlocking an MTEA, the portions of track for terminals would add to congestion and rules. Under interlocking rules, trains which FRA has determined should frustrate efficient passenger service, in are prohibited from moving in reverse remain considered as main line track the judgment of those who operate these directions without dispatcher can be easily severed from the MTEA. railroads. The density of wayside permission on track where there are no Otherwise, the entire MTEA, and thus infrastructure required to effect PTC signal indications. FRA believes that its concomitant PTCIP, may be entirely functions in these terminal areas would such a restriction would minimize the disapproved by FRA, increasing the risk also be exceptionally costly in relation potential for a head-on impact. of the railroad or railroads not meeting to the benefits obtained. FRA agrees that Also, under proposed paragraph its statutory deadline for PTC technical solutions to address these (b)(3), such operations would only be implementation and operation. concerns are not presently available. allowed in yard or terminal areas where For each particular track segment, the FRA does believe that the appropriate no freight operations are permitted. MTEA must also provide a justification role for PTC in this context is to enforce While the definition of main line may for such designation in accordance with the maximum allowable speed (which is not include yard tracks used solely by paragraphs (b) or (c) of this section. presently accomplished in cab signal freight operations, FRA does not Proposed paragraph (b) specifically territory through use of automatic speed propose to extend any relief or addresses the conditions for relief for control, a practice which could continue exception to tracks within yards or passenger and commuter railroads with where already in place). terminals shared by freight and respect to passenger-only terminal areas. If FRA grants relief, the proposed passenger operations. The collision of a As noted previously in the analysis of conditions of (b)(1), (b)(2), or (b)(3), as passenger train with a freight consist is § 236.1005(b), FRA proposes to except applicable, must be strictly adhered to. typically a more severe condition from the definition of main line any These three conditions represent the because of the greater mass of the freight track within a yard used exclusively by minimum conditions FRA believes is equipment. freight operations moving at restricted necessary for safe operations. FRA Paragraph (c) proposes the conditions speed. In those situations, operations reserves the right to add more restrictive under which joint limited passenger and are usually limited to preparing trains conditions if necessary to provide for freight operations may occur on defined for transportation and do not usually the safety of the public and train crews. track segments without the requirement include actual transportation. FRA does If FRA approves a MTEA and the for installation of PTC. This paragraph not propose to extend this automatic railroad subsequently violates any of the proposes three alternative paths to the exclusion to yard or terminal tracks that applicable conditions, civil penalties main line exception. include passenger operations. Such may apply. First, under paragraph (c)(1), an operations may also include the Under paragraph (b)(1), FRA proposes exception may be available where both boarding and disembarking of to limit relief under paragraph (b) to the freight and passenger trains are passengers, heightening FRA’s operations that do not exceed 20 miles limited to restricted speed. Such sensitivity to safety and blurring the per hour. The PTC Working Group operations are feasible only for short lines between what defines agreed upon the 20 miles per hour distances, and FRA would examine the ‘‘transportation’’ and ‘‘preparing for limitation, instead of requiring circumstances involved to ensure that transportation.’’ Moreover, while FRA restricted speed, because the operations the exposure is limited and that could not expend its resources to review in question will be by signal indication appropriate operating rules and training whether a freight-only yard should be in congested and complex terminals are in place. deemed other than main line track, FRA with short block lengths and numerous Second, under paragraph (c)(2), FRA believes that the relatively lower turnouts. FRA agrees with the PTC will consider an exception where number of passenger yards and Working Group that the use of restricted temporal separation of the freight and terminals would allow for such review. speed in this environment would passenger operations can be ensured. A Accordingly, FRA believes that it is exacerbate congestion, delay trains, and more complete definition of temporal appropriate to review these diminish the quality of rail passenger separation is provided in paragraph (d). circumstances on a case-by-case basis. service. Temporal separation of passenger and During the PTC Working Group Moreover, when trains on the freight services reduces risk because the discussions, the major passenger excluded track are controlled by a likelihood of a collision is reduced (e.g., railroads requested an exception for locomotive with an operative PTC due to freight cars engaged in switching tracks in passenger terminal areas onboard apparatus, FRA proposes to that are not properly secured) and the because of the impracticability of require that PTC system component to possibility of a relatively more severe installing PTC. These are locations enforce the regulatory speed limit or collision between a passenger train and where signal systems govern movements actual maximum authorized speed, much heavier freight consist is obviated. over very complex special track work whichever is less. While the actual track Third, under paragraph (c)(3), FRA divided into short signal blocks. may not be outfitted with a PTC system will consider commingled freight and Operating speeds are low (not to exceed in light of a MTEA approval, FRA passenger operations provided that a 20 miles per hour), and locomotive believes it would be nevertheless jointly agreed risk analysis is provided

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by the passenger and freight railroads, other changes to the documents or to the subpart. For instance, if a railroad seeks and the level of safety is the same as that PTC system, as implemented, have been to modify the geographical limits of its which would be provided under one of made. PTC implementation, such changes the two prior options selected as the FRA understands that as a railroad would not be reflected in the PTCIP. base case. FRA seeks comments on implements its PTC system in Accordingly, under paragraph (a), after whether FRA or the subject railroad accordance with its PTCIP or even after a plan is approved by FRA and before should determine the appropriate base it receives PTC System Certification, the any change is made to the PTC system’s case. FRA recognizes that there may be railroad may decide to modify the scope development, implementation, or situations where temporal separation of which tracks it believes to be other operation, FRA proposes that the may not be possible. In such situations, than main line. To effectuate such railroad file a RFA to the subject plan. FRA may allow commingled operations changes, paragraph (f) proposes to FRA considers an amendment to be a provided the risk to the passenger require FRA review. In the case that the formal or official change made to the operation is no greater than if the railroad believes that such relief is PTC system or its associated PTCIP, passenger and freight trains where warranted, the railroad may file in PTCDP, or PTCSP. Amendments can operating under temporal separation or accordance with proposed § 236.1021 a add, remove, or update parts of these with all trains limited to restricted request for amendment of the PTCIP, documents, which may reflect proposed speed. For an exception to be made which will eventually be incorporated changes to the development, under paragraph (c)(3), FRA requires a into the PTCSP upon PTCSP implementation, or operation of its PTC risk analysis jointly agreed to and submission. Each request, however, system. FRA believes that an amending submitted by the applicable freight and must be fully justified to and approved procedure provides a simpler and passenger services. This ensures that the by the Associate Administrator before cleaner option than requiring the risks and consequences to both parties the requested change can be made to the railroad to file an entirely new plan. have been fully analyzed, understood, PTCIP. If such a RFA is submitted While the railroad may develop a RFA and mitigated to the extent practical. simultaneously with the PTCSP, the without FRA input or involvement, FRA Paragraph (d) proposes the definition RFA may not be approved, even if the believes that it is more advantageous for of temporal separation with respect to PTCSP is otherwise acceptable. A the railroad to informally confer with paragraph (c)(2). The temporal change made to a MTEA subsequent to FRA before formally submitting its RFA. separation approach is currently used FRA approval of its associated PTCIP If FRA is not involved in the drafting under the FRA–Federal Transit that involves removal or reduction in process, FRA may not have a complete Administration Joint Policy on Shared functionality of the PTC system is understanding of the system, making it Use, which permits co-existence of light treated as a material modification. In difficult for FRA to evaluate the impact rail passenger services (during the day) keeping with traditional signaling of the proposed changes on public and local freight service (during the principles, such requests must be safety. After RFA submission, all nighttime). See Joint Statement of formally submitted for review and applicable correspondence between Agency Policy Concerning Shared Use approval by FRA. FRA and the railroad must be made of the Tracks of the General Railroad formally in the associated docket, as Section 236.1021 Discontinuances, System by Conventional Railroads and further discussed below. In such a Material Modifications, and Light Rail Transit Systems, 65 FR. situation, FRA’s review may take a Amendments 42,526 (July 10, 2000); FRA Statement of significantly longer time than usual. If Agency Policy Concerning Jurisdiction FRA recognizes that after submittal of FRA continues to not understand the Over the Safety of Railroad Passenger a plan or implementation of a train impact, it may request a third party Operations and Waivers Related to control system, the subject railroad may audit, which would only further delay Shared Use of the Tracks of the General have legitimate reasons for making a decision on the request. Accordingly, Railroad System by Light Rail and changes in the system design and the FRA believes it is more advantageous Conventional Equipment, 65 FR 42529 locations where the system is installed. for the railroad drafting an RFA to (July 10, 2000). Conventional rail In light of the statutory and regulatory informally confer with FRA before its technology and secure procedures are mandates, however, FRA believes that formal submission of the change used to ensure that these services do not the railroad should be required to request. The railroad would then be commingle. Amtrak representatives in request FRA approval prior to provided an opportunity to discuss the the PTC Working Group were confident effectuating certain changes. Section details of the change and to assure that more refined temporal separation 236.1021 proposes the scope and FRA’s understanding of what the strategies could be employed on smaller procedure for requesting and approving railroad wishes to change and of the railroads that carry light freight volumes those changes. For example, all requests change’s potential impact. and few Amtrak trains (e.g., one train for covered changes must be made in a Paragraph (b) proposes a mechanism per day or one train per day in each request for amendment (RFA) of the for requesting such change. Once the direction). The Passenger Task Force subject PTC system or plan. While RFA is approved, the railroad may— agreed. § 236.1021 includes lengthy and, in fact, is required under paragraph Proposed paragraph (e) ensures that descriptions of what changes may, or (b)—to adopt those changes into the by the time the railroad submits its may not, require FRA approval, there subject plan and immediately ensure PTCSP, it has made no unapproved are various places elsewhere in subpart that its PTC complies with the plan, as changes to the MTEA and that the PTC I that also require the filing of a RFA. amended. FRA expects that each PTC system, as implemented, reflects the Under paragraph (a), FRA proposes to system accurately reflects the PTCIP and its MTEA. Under the require FRA approval prior to certain information in its associated approved proposed rule, the PTCSP shall reflect PTC system changes. FRA expects that plans. FRA believes that this the PTCIP, including its MTEA, as it if a railroad wants to make a PTC system requirement will also incentivize was approved or how it has been change covered by subpart I, then any railroads to make approved changes as modified in accordance with proposed such change would result in quickly as possible. Otherwise, if a § 236.1021. FRA believes that it is also noncompliance with one of the railroad delays in implementing the important that the railroad attest that no railroad’s plans approved under this changes reflected in an approved RFA,

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FRA may find it difficult to enforce its system, but have not yet implemented. system that may have been concurrently regulations until implementation is These changes provide enhanced submitted. While the economic impact completed, since they plans and PTC functionality to the system, and FRA to the affected parties may be system to not accurately and adequately strongly encourages railroads to include considered by the FRA, the primary and reflect each other. In such PTC system improvements that further final deciding factor on any FRA circumstances, railroads may be increase safety. A planned change may decision is safety. FRA will consider not assessed a civil penalty for violating its require FRA approved regression testing only how safety is affected by plan or for falsifying records. to demonstrate that its implementation installation of the system, but how Any change to a PTCIP, PTCDP, or has not had an adverse affect on the safety is impacted by the failure modes PTCSP, which may include removal or system it is augmenting. Each planned of the system. discontinuance of any signal system, change must be clearly identified as part may not take effect until after FRA has of the PTCSP, and the PTCSP safety The purpose of proposed paragraph approved the corresponding submitted analysis must show the affect that its (g) is to emphasize the right of FRA to or amended PTCIP, PTCDP, or PTCSP. implementation will have on safety. unilaterally issue a new Type Approval, FRA may provide partial or conditional Unplanned changes are those either with whatever conditions are necessary approval. Until FRA has granted not foreseen by the railroad or to ensure safety based on the impact of appropriate relief or approval, the developer, but nevertheless necessary to the proposed changes. railroad may not make the change, and ensure system safety, or are unplanned In proposed paragraph (h), FRA once a requested change has been made, functional enhancements from the makes clear that it considers any the railroad must comply with original core system. The scope of any implemented PTC system to be a safety requested change. additional necessary work necessary to device. Accordingly, the FRA recognizes that a railroad may ensure safety may depend upon when in discontinuance, modification, or other wish to remove an existing train control the development cycle phase the change of the implemented system or its system due to new and appropriate PTC changes are introduced. For instance, if geographical limits will not be system implementation. For train the PTCDP has not yet been submitted authorized without prior FRA approval. control systems existing prior to to FRA, no FRA involvement is While this requirement primarily promulgation of subpart I, any request required. However if the PTCDP has for a material modification or been submitted to FRA, or if the change applies to safety critical changes, FRA discontinuance must be made pursuant impacts the safety functionality of the believes that they should also apply to to part 235. FRA proposes in paragraph system once a Type Approval has been all changes that will affect (c), however, to provide the railroads issued, and a PTCSP has not yet interoperability. FRA seeks comments with an opportunity to instead request submitted, the railroad must submit a on this issue. The principles expressed such changes in accordance with RFA requesting and documenting that in the paragraph parallel those proposed § 236.1021. FRA believes that change. Once FRA approves that RFA, embodied in part 235, which this proposal would reduce the number FRA expects the subsequently filed implements 49 U.S.C. 20502(a). of required filings and would otherwise PTCSP to account for the change in That said, FRA recognizes that there simplify the process requesting material analysis. are a limited number of situations where modifications or discontinuances. If the change is made after approval changes of the PTC system may not have Paragraph (d) proposes the minimum of the PTCSP and the system has been an adverse impact upon public safety. information required to be submitted to certified by FRA, a RFA must be Specific situations where prior FRA FRA when requesting an amendment. submitted to FRA for approval. Because approval is required are proposed in While FRA proposes to promulgate this requires significant effort by FRA paragraphs (h)(1) through (h)(4). procedural rules here different than and the railroad, FRA expects that every those in part 235, FRA expects that the effort will be made to eliminate the need Paragraph (i) proposes the exceptions same or similar information be for unplanned changes. If the railroad from the requirement for prior approval provided. Accordingly, under paragraph and the vendor submit unplanned safety in cases where the discontinuance of a (d)(1), the RFA must contain the related changes that FRA believes are a system or system element will be treated information required in 235.10. significant amount or inordinately as pre-approved, as when a line of Paragraph (d)(1) also requires the complex, FRA may revoke any railroad is abandoned. railroad to submit, upon FRA request, approvals previously granted and Paragraph (j) proposes exceptions for certain additional information, disallow the use of the product until certain lesser changes that are not including the information referenced in such time the railroad demonstrates the expected to materially affect system § 235.12. Paragraphs (d)(2) through product is sufficiently mature. risk, such as removal of an electric lock (d)(7) provide further examples of such Paragraph (e) proposes that if a RFA from a switch where speed is low and information. While such information is submitted for a discontinuance or a trains are not allowed to clear. may only be required upon request, FRA material modification to a portion or all urges each railroad to include this of its PTC system, a notice of its Paragraph (k) proposes additional information in its RFA to help expedite submission shall be published in the exceptions consisting of modifications the review process. Federal Register. Interested parties will associated with changes in the track FRA believes that proposed be provided an opportunity to comment structure or temporary construction. paragraphs (d)(2) through (d)(6) are self- on the RFA, which will be located in an FRA notes that only temporary removal explanatory. However, according to identified docket. of the PTC system without prior FRA proposed paragraph (d)(7), FRA may Proposed paragraph (f) makes it clear approval is allowed to support highway require with each RFA an explanation of that FRA will consider all impacts on rail separation construction or damage whether each change to the PTCSP is public safety prior to approval or to the PTC system by catastrophic planned or unplanned. Planned changes disapproval of any request for events. In both cases, the PTC system are those that the system developer and discontinuance, modification, or must be restored to operation no later the railroad have included in the safety amendment of a PTC system and any than 6 months after completion of the analysis associated with the PTC associated changes in the existing signal event.

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Section 236.1023 Errors and communication between a railroad and ensure the safety of the general public Malfunctions supplier. and the railroad personnel. Paragraph (b) proposes a similar Proposed paragraph (g) is intended to Because PTC systems are approved, in responsibility on the part of the railroad limit unnecessary reporting. If the part, based on certain assumptions to report safety relevant failures to the failure was the result of improper regarding expected failure modes and supplier and FRA, and to keep the operation of the PTC system outside of frequencies, reporting and recording of vendor and FRA apprised of any the design parameters or of non- errors and malfunctions takes on critical subsequent failures. To aid FRA in compliance with the applicable importance. If the number of errors and understanding the scope of a problem operating instructions, FRA believes malfunctions exceeds those originally on a railroad, and to aid the railroad in that compliance with paragraph (f) is anticipated in the design, or errors and communicating any PTC system failures not necessary. Instead, FRA expects, malfunctions that were not predicted to the appropriate vendor, paragraph (c) and proposes to require, the railroad to are observed to occur, the validity of the proposes to require that each railroad engage in more narrow remedial risk analysis becomes suspect. Since not keep a currently updated PTC Product measures, including remedial training all railroads may experience the same Vendor List (PTCVPL), which must by the railroad in the proper operation software faults or hardware failures, the identify each supplier of PTC of the PTC system. Similarly, once a developer’s development, configuration equipment on its railroad. problem has been identified to all management, and fault reporting Paragraph (d) proposes the stakeholders, FRA does not believe it is tracking system play a crucial role in the requirement that each railroad identify necessary for a manufacturer to ability of the railroad and FRA to the procedures for action upon repeatedly submit a formal report in determine and fully understand the notification from the manufacturer of a accordance with paragraph (f). In either risks and their implications. Without an safety-critical upgrade, patch, or situation, however, FRA expects that all effective configuration management revision performed within the scope of users of the equipment are proactively tracking system in place, it is difficult, the applicable PTCDP. FRA expects that and timely notified of the misuse that if not impossible, to fairly evaluate PTC when issues are discovered that may occurred and the corrective actions system risks during the system’s life adversely affect the safe operation of the taken. Such reports, however, do not have to cycle. system, regardless if the railroad has be made within seven days of In the event of a safety-essential PTC experienced the problem, the railroad occurrence, as required for other system component failing to perform as will take corrective action without notifications under paragraph (e), but intended, FRA intends to propose under undue delay (see § 236.11). FRA within a reasonable time appropriate to § 236.1023 that the cause be identified believes this is necessary to ensure that and corrective action be taken without the nature and extent of the problem. each railroad promptly addresses Proposed paragraph (h) is intended to undue delay. Until the repair is applicable errors to maintain a common make clear that the reporting completed, the railroad and vendors are safety baseline by performing requirements of part 233 are not a required to take appropriate measures to component changes that, if left substitute for the proposed reporting assure the safety of train movements, uncorrected, would increase risk or requirements of this subpart. Both roadway workers, and on-track interfere with the safety of train requirements apply. In the case of a equipment. This requirement mirrors operations. If the action were to take a false proceed signal indication, FRA the current requirements of 49 CFR significant amount of time, FRA would not expect the railroad to wait for 236.11, which applies to all signal proposes to require the railroad to the frequency of such occurrences to system components. FRA recognizes provide FRA with periodic frequent exceed the threshold reporting level that there may be situations where progress reports. assigned in the hazard log of the PTCSP. reducing the severity of such hazards Paragraph (e) proposes time limits for Rather, current § 233.7 requires all such will suffice for an equivalent reduction reporting failures and malfunctions and instances to be reported. in risk. For example, a reduction in the minimum reporting requirements. operating speeds may not reduce the FRA has no specific format for the Section 236.1027 Exclusions frequency of certain hazards involving reports, and will accept any format This section retains similarities to, but safety-critical products, but it may provided it contains at least the also establishes contrasts with, reduce the severity of such hazards in information required by this proposed § 236.911, which deals with exclusions most cases. rule. FRA will accept delivery of these from subpart H. In particular, Paragraph (a) proposes a direct reports by commercial courier, fax, and § 236.911(c) offers reassurance that a obligation on suppliers to report safety- e-mail. stand-alone computer aided dispatching relevant failures, including ‘‘wrong- Paragraph (f) proposes to require the (CAD) system would not be considered side’’ failures and other failures manufacturer to provide a detailed a safety-critical processor-based system significantly impacting availability, explanation of the problem and the within the purview of subpart H. CADs where the PTCSP indicates availability intended or performed corrective action have long been used by large and small to be a material issue in the safety to FRA upon request, in the event that railroads to assist dispatchers in performance of the larger railroad a PTC system is found to be unsafe due managing their workload, tracking system. FRA expects each applicable to a design or manufacturing defect. information required to be kept by supplier to identify the problem and the While the railroad may be able to report regulation, and—most importantly— necessary corrective actions, symptoms of a problem, it is the providing a conflict checking function recommended risk mitigations, and manufacturer who is in the best position designed to alert dispatchers to provide an estimated amount of time it to determine its underlying root cause. incipient errors before authorities are expects to complete the corrective FRA may require this information to delivered. Even § 236.911, however, actions. FRA believes that it should be determine the full impact of the states that ‘‘a subsystem or component informed to ensure public safety in any problem, and to determine if any of an office system must comply with case where a commercial dispute (e.g., additional restrictions or limitations on the requirements of this subpart if it over liability) might disrupt the use of the PTC may be warranted to performs safety-critical functions

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within, or affects the safety performance note conflicting actions by the control systems to directly operate a of, a new or next-generation train dispatching center—FRA will insist on valve that accomplished a service control system.’’ In fact, FRA is explanations sufficient to provide reduction of brake pipe pressure and currently working with a vendor on a reasonable confidence that additional application of the brakes as well as simple CAD that provides authorities in errors will not be introduced. reduction in locomotive tractive power. an automated fashion, without the Paragraph (b) proposes requirements In keeping with this physical and direct involvement of a dispatcher. for modifications of excluded PTC functional separation, train control For subpart I, FRA wishes to retain systems. At some point when a change equipment on board a locomotive came the exception referred to in § 236.911 for results in degradation of safety or in a under part 236, rather than the CAD systems not associated with a PTC material increase in safety-critical locomotive inspection requirements of system. Many smaller railroads use CAD functionality, changes to excluded PTC part 229. systems to good effect, and there is no systems or subsystems may be Advances in hardware and software reason to impose additional regulations significant enough to require technology have allowed the various where dispatchers contemporaneously application of subpart I’s safety PTC systems’ and components’ original retain the function of issuing mandatory assurance processes. FRA believes that equipment manufacturers (OEMs) to directives. However, in the present all modifications caused by unforeseen repackage individual components, context, it is necessary to recognize that implementation factors will not eliminating parts and system function PTC systems utilize CAD systems as the necessarily cause the product to become control points access. Access to control ‘‘front end’’ of the logic chain that subject to subpart I. These types of functions became increasingly restricted defines authorities enforced by the PTC implementation modifications will be to the processor interfaces using system, particularly in non-signaled minor in nature and be the result of site proprietary software. While this resulted territory. specific physical constraints. However, in significant simplification of the Accordingly, paragraph (a) proposes FRA expects that implementation previously complex discrete pneumatic the potential exclusion of certain office modifications that will result in a and mechanical control train and systems technologies from subpart I degradation of safety or a material locomotive control systems into fewer, compliance. These existing systems increase in safety-critical functionality, more compact and reliable devices, it have been implemented voluntarily to such as a change in executive software, also creates significant challenges with enhance productivity and have proven will cause the PTC system or subsystem respect to compatibility of the to provide a reasonably high level of to be subject to subpart I and its application programs and configuration safety, reliability, and functionality. requirements. FRA is concerned, management. FRA recognizes that full application of however, that a series of incremental FRA encourages such enhancements, subpart I to these systems would present changes, while each individually not and believes, if properly done, can the rail industry with a tremendous meeting the threshold for compliance result in significant safety, as well as burden. The burdens of subpart I may with this subpart, may when aggregated operational, improvements. Locomotive discourage voluntary PTC result in a product which differs manufacturers can certainly provide implementation and operation by the sufficiently so as to be considered a new secure locomotive and train controls, smaller railroads. product. Therefore, FRA reserves the and it is important that they do so if However, FRA proposes to apply right to require products that have been locomotives are to function safely in subpart I to those subsystems or incrementally changed in this manner to their normal service environment. FRA components that perform safety critical comply with the requirements of this highly encourages the long-term goal of functions or affect the safety subpart. Prior to FRA making such a common platform integration. However, performance of the associated PTC determination, the affected railroad will when such an integration occurs, it system. The level and extent of safety be allowed to present detailed technical must not be done at the expense of analysis and review of the office evidence why such a determination decreasing the safe, and reliable systems will vary depending upon the should not be made. This provision operation of the train control system. type of PTC system with which the mirrors paragraph (d) of existing Accordingly FRA expects that the office system interfaces. For example, to § 236.911. complete integrated system will be prevent the issuance of overlapping and Proposed paragraph (c) addresses the shown to have been designed to fail-safe inconsistent authorities, FRA expects integration of train control systems with principles, and then demonstrated that that each PTC system demonstrate other locomotive electronic control the system operates in a fail safe mode. sufficient credible evidence that the systems. The earliest train control Any commingled system must have a requisite safety-critical, conflict systems were electro-mechanical manual failsafe fall back up that allows resolution (although not necessarily systems that were independent of the the engineer to be brought to a safe stop vital) hardware and software functions discrete pneumatic and mechanical in the event of an electronic system of the system will work as intended. control systems used by the locomotive failure. This analysis must be provided FRA also expects that the applicable engineer for normal throttle and braking to FRA for approval in the PTCDP and PTCDP’s and PTCSP’s risk analysis will functions. Examples of these train PTCSP as appropriate. This provision identify the associated hazards and control systems included cab signals mirrors the heightened scrutiny called describe how they have been mitigated. and ACS/ATC appliances. These for by § 236.913(c) of subpart H for Particularly where mandatory directives systems included a separate antenna for commingled systems, but is more and work authorities are evaluated for interfacing with the track circuit or explicit with respect to FRA’s use in a PTC system use without inductive devices on the wayside. Their expectations. The provision in general separate oral transmission from the power supply and control logic were accords with the requirements for dispatcher to the train crew or employee separate from other locomotive locomotive systems that are currently in charge—with the opportunity for functions, and the cab signals were under development in the RSAC’s receiving personnel to evaluate and displayed from a separate special- Locomotive Safety Standards Working confirm the integrity of the directive or purpose unit. Penalty brake applications Group. authority received and the potential for by the train control system bypassed the Finally proposed paragraph (d) others overhearing the transmission to locomotive pneumatic and mechanical clarifies the application of subparts A

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through H to products excluded from train failing en route in relation to its location where an absolute block has compliance with Subpart I. These applicable automatic cab signal, train been established in advance of the train, products are excluded from the stop, and train control system. FRA the train may proceed in accordance requirements of subpart I, but FRA believes that it would be desirable to with the limitations that follow in expects that the developing activity impose somewhat more restrictive paragraphs (b)(3)(i), (ii), or (iii). demonstrates compliance of products conditions given the statutory mandate Proposed paragraph (b)(3)(i) requires with Subparts A through H. FRA and the desire to have an appropriate that where no block signal system is in believes that railroads not mandated to incentive to properly maintain the use, the train may proceed at medium implement PTC, or that are equipment and to timely respond to en speed; however, if the involved train is implementing other non-PTC related route failures. For instance, FRA a train which is that of the criteria processor based products should be recognizes that the limitations of requiring the PTC system installation given the option to have those products § 236.567 do not account for the (i.e., a passenger train or a train hauling approved under subpart H by statutory mandates of the core PTC any amount of PIH material), it may submitting a PSP and otherwise safety functions. However, during the only proceed at a speed not to exceed complying with subpart H or voluntarily PTC Working Group meetings, no 30 miles per hour. Paragraph (b)(3)(ii) complying with subpart I. This consensus was reached on how to requires that where a block signal provision mirrors § 236.911(e) of regulate en route failures on PTC system is in use, a passenger train may subpart H. territory. Nevertheless, proposed proceed at a speed not to exceed 59 § 236.1029, and in particular proposed miles per hour and a freight train may Section 236.1029 PTC System Use and paragraph (b), purposefully intend to proceed at a speed not to exceed 49 En Route Failures parallel the limitations contained in miles per hour. Paragraph (b)(3)(iii) This section proposes minimum § 236.567. In other words, FRA intends requires that except as provided in requirements, in addition to those found that § 236.567 and proposed paragraph paragraph (c), where a cab signal system in the PTC system’s plans, for each PTC (b) to § 236.1029 will share the common with an automatic train control system system with a PTC System Certification. purpose of maintaining a level of safety is in operation, the train may proceed at Railroads are allowed, and encouraged, generally in accord with that expected a speed not to exceed 79 miles per hour. to adopt more restrictive rules that with the train control system fully Paragraph (c) requires that, in order increase safety. functional. This is accomplished by for a PTC train that operates at a speed Paragraph (a) proposes to require that, requiring supplementary procedures to above 90 miles per hour to deviate from in the event of the failure of a heighten awareness and provide the operating limitations contained in component essential to the safety of a operational control (limiting the paragraph (b) of this section, the PTC system to perform as intended, the frequency of unsafe events) and by deviation must be described and cause be identified and corrective action restricting the speed of the failed train justified in the FRA approved PTCDP or taken without undue delay. The (reducing the potential severity of any PTCSP, or the Order of Particular paragraph also requires that until the unsafe event). Applicability, as applicable. corrective action is completed, the Paragraph (b)(1) proposes to allow the Paragraph (d) proposes to require that railroad is required at a minimum, to subject train to proceed at restricted the railroad operate its PTC system take the appropriate measures, speed—or at medium speed if a block within the design and operational including those specified in the PTCSP, signal system is in operation according parameters specified in the PTCDP and to assure the safety of train movements, to signal indication—to the next PTCSP. Railroads will not exceed roadway workers, and on-track available point where communication of maximum volumes, speeds, or any other equipment. This proposed requirement a report can be made to a designated parameter provided for in the PTCDP or mirrors current requirements of railroad officer of the host railroad. The PTCSP. On the other hand, a PTCDP or § 236.11, which applies to all signal and intent of this requirement is to ensure PTCSP could be based upon speed or train control system components. Under that the occurrence of an en route volume parameters that are broader than proposed paragraph (a), FRA intends to failure may be appropriately recorded the intended initial application, so long apply to PTC systems provided PTC and that the necessary alternative as the full range of sensitivity analyses System Certification under subpart I the protection of absolute block is is included in the supporting risk same standard in current § 236.11. established. assessment. FRA feels this requirement Paragraph (b) proposes the After a report is made in accordance will help ensure that comprehensive circumstance where a PTC onboard with paragraph (b)(1), or made product risk assessments are performed apparatus on a lead locomotive that is electronically and immediately by the before products are implemented. operating in or is to be operated within PTC system itself, paragraph (b)(2) Paragraph (e) sets forth the a PTC system fails or is otherwise cut- proposes to allow the train to continue requirement that any testing of the PTC out while en route. Under proposed to a point where an absolute block can system must not interfere with its paragraph (b), the subject train may only be established in advance of the train in normal safety-critical functioning, continue such operations in accordance accordance with the limitations that unless an exception is obtained with specific limitations. An en route follow in paragraphs (b)(2)(i) and (ii). pursuant to 49 CFR 236.1035, where failure is applicable only in instances Paragraph (b)(2)(i) proposes to require special conditions have been after the subject train has departed its that where no block signal system is in established to protect the safety of the initial terminal, having had a successful use, the train may proceed at restricted public and the train crew. Otherwise, initialization, and subsequently speed. Alternatively, under proposed paragraph (e) requires that each railroad rendering it no longer responsive to the paragraph (b)(2)(ii), the train may ensure that the integrity of the PTC PTC system. For example, FRA believes proceed at a speed not to exceed system not be compromised, by that an en route failure may occur when medium speed where a block signal prohibiting the normal functioning of the PTC onboard apparatus incurs an system is in operation according to such system to be interfered with by onboard fault or is otherwise cut out. signal indication. testing or otherwise without first taking Under subpart H, existing § 236.567 Paragraph (b)(3) proposes to require measures to provide for the safety of provides specific limitations on each that, upon the subject train reaching the train movements, roadway workers, and

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on-track equipment that depend on the from the PTC display. However, FRA order. Proposed paragraphs (a)(2) and normal safety-critical functioning of the believes that there is a strong likelihood (a)(3) intend to cover those systems. system. This provision parallels current that railroads will at some point in the If a PTC system complying with § 236.4, which applies to all systems. By future seek to deliver electronically all paragraph (a)(1) is provided expedited requiring this paragraph, FRA also mandatory directives from the certification, the system plans should intends to clarify that the standard in dispatcher to the PTC onboard ultimately match the criteria required current § 236.4 also applies to subpart I apparatus, obviating the need for oral for each PTCDP and PTCSP. As PTC systems. transmission. When this occurs, FRA previously noted, a railroad may seek to Paragraph (f) proposes to require that believes that having a second crew use a PTC system that has already each member of the operating crew has member involved in receipt and received a Type Approval. To extend appropriate access to the information confirmation of the authority will be this benefit as it applies to previously and functions necessary to perform his useful to verify situational used systems for which expedited or her job safely when products are appropriateness and avoid information certification is provided, paragraph (b) implemented and used in revenue overload of the locomotive engineer. proposes to give the Associate service. Where two-person crews are Administrator the ability to provide a employed, availability of a screen and Section 236.1031 Previously Approved Type Approval to systems receiving any needed function keys will enable PTC Systems expedited certification in accordance the second crew person to carry out PTC FRA recognizes that substantial effort with paragraph (a)(1). onboard computer-related activities has been voluntarily undertaken by the FRA recognizes that certain systems without distracting the locomotive railroads to develop, test, and deploy eligible for expedited certification may engineer from maintaining situational PTC systems prior to the passage of the not entirely comply with the awareness of activities outside the RSIA08, and that some of the PTC subsequently issued statutory mandate. locomotive cab. FRA’s existing systems have accumulated a significant Accordingly, under paragraph (c), FRA regulations for train control in § 236.515 history of safe and reliable operations. is compelled to propose that before any requires that the cab signal display be In order to facilitate the ability of the Type Approval or expedited clearly visible to each member of the railroads to leverage the results of PTC certification may be provided, the PTC crew. FRA believes the decision to design, development, and system must be shown to reliably operate with one PTC screen, only implementation efforts that have been execute the same functionalities of accessible to the engineer, can only be previously been approved or recognized every other PTC system required by made after careful analysis of the human by FRA prior to the adoption of this subpart I. Nothing in this abbreviated factor implications, the associated risks, subpart, FRA is proposing an expedited process should be construed as and the sensitivity of the safety analysis certification process in this section. implying the automatic granting by FRA that is used to potentially justify the Under proposed paragraph (a), each of a Type Approval or PTC System decision. FRA notes that the principles railroad that has a PTC system that may Certification. Each expedited request for of crew resource management and qualify for expedited treatment would a Type Approval or PTC System current crew briefing practices in the have to submit a Request for Expedited Certification must be submitted by the railroad industry require that all Certification (REC) letter. Products that railroad under this abbreviated process members of a functioning team (e.g., have not received approval under the and, as required under subpart I, must engineer, conductor, dispatcher, subpart H, or that have not been demonstrate that the system reliably roadway worker in charge) have all previously recognized by FRA, would enforces positive train separation and relevant information available to be ineligible. The REC letter may be prevents overspeed derailments, facilitate constructive interactions and jointly submitted by PTC railroads and incursions into roadway worker zones, permit incipient errors to be caught and suppliers as long as there is at least one and movements through misaligned corrected. Retaining and reinforcing this PTC railroad. A PTC system may qualify switches. level of cooperation will be particularly for expedited certification if it fulfills at Under proposed paragraph (d), FRA crucial during the early PTC least one of the descriptions proposed in encourages railroads, to the maximum implementation as errors in train consist paragraphs (a)(1) through (a)(3). While extent possible, to use proven service information, errors generated in on- these descriptions are objective in history data to support their requests for board processing, delays in delivery of nature, FRA intends them to cover Type Approval and PTC System safety warnings due to radio frequency ETMS, ITCS, and ACSES, respectively. Certification. While proven service congestion, and occasional errors in Proposed paragraph (a)(1) applies to history cannot be considered a complete dispatching challenge the integrity of systems that have been recognized or replacement for an engineering analysis PTC systems even as the normal approved by FRA after submission of a of the risks and mitigations associated reliability of day-to-day functioning product safety plan (PSP) in accordance with a PTC product, it provides great supports reductions in vigilance. Loss of with subpart H. Subpart I generally creditability for the accuracy of the crew cooperation could easily spill over reflects the same criteria required for a engineering analysis. Testing and to other functions, including switching PSP under subpart H. Thus, FRA operation can only show the absence or operations and management of believes that most of the PTCDP and mitigation of a particular failure mode, emergency situations. PTCSP requirements in subpart I can be and FRA believes that there will always This issue was the subject of fulfilled with the submission of the be some failure modes that may only be significant disagreement within the PTC existing and approved PSP. However, determined through analysis. Due to Working Group. FRA appreciates the FRA notes that the subject railroad will this inherent limitation associated with views of those who suggest that the cost also need to submit the information testing and operation, FRA also strongly of additional displays is not warranted required in a PTCDP and PTCSP that is encourages the railroads to also submit and the argument that, where there is an not in the current PSP. any available analysis or information. additional crew member assigned, no FRA also recognizes that certain PTC Paragraph (e) proposes that, to the value may be added by isolating the systems may currently operate in extent that the PTC system proposed for second crew member from potentially revenue service with FRA approval implementation under this subpart is corrupted information communicated through the issuance of a waiver or different in significant detail from the

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system previously approved or degree of direct access to the service for PTC system messages. Proposed recognized, the changes shall be fully history of these systems. Transit § 236.1033 originated from the radio and analyzed in the PTCDP or PTCSP as systems—except those that are communications task force within the would be the case absent prior approval connected to the general railroad PTC Working Group. The objectives of or recognition. FRA understands that system—are not directly regulated by the proposal are to ensure data integrity the PTC product for which expedited FRA. FRA has had limited positive and authentication for communications Type Approval and PTC System experience eliciting safety with and within a PTC system. Certification is sought may differ in documentation from foreign authorities, In data communications, ‘‘cleartext’’ terms of functionality or particularly given the influence of is a message or data in a form that is implementation from the PTC product national industrial policies. immediately comprehensible to a previously approved or recognized by However, FRA believes that, while human being without additional FRA. In such a case, the service history complete exclusion may not be available processing. In particular, it implies that and analysis may not align directly with in those circumstances, procedural this message is transferred or stored the new variant of the product. simplification may be possible. FRA is without cryptographic protection. It is Similarly, the available service history considering a procedure under which related to, but not entirely equivalent to, and analysis associated with a PTC the railroad and supplier could establish the term ‘‘plaintext.’’ Formally, product may be inconclusive about the safety performance at the highest level plaintext is information that is fed as an reliability of a particular function. It is of analysis for the particular product, input to a cryptographic process, while because of these possible situations that relying in part on experience in the ‘‘ciphertext’’ is what comes out of that FRA can not unequivocally promise that other service environments and showing process. Plaintext might be compressed, all requests for expedited Type why similar performance should be encrypted, or otherwise manipulated Approval and PTC System Certification expected in the U.S. environment. before the cryptographic process is submitted by a railroad under this Foreign signal suppliers should be in a applied, so it is quite common to find subpart will be automatically granted. good position to marshal service plaintext that is not cleartext. Cleartext FRA will, however, apply the available histories for these products and present material is sometimes in plain text form, service history and analytical data as them as part of the railroad’s PTCSP. meaning a sequence of characters credible evidence to the maximum For any change, the applicant must without formatting, but this is not extent possible. FRA believes that this provide additional information that will strictly required. The security still greatly simplifies each railroad’s enable FRA to make an informed requirements proposed in this task in making its safety case, since the decision regarding the potential impact document are consistent with the additional testing and analysis required of the change on safety. This Department of Homeland Security need only address those areas for which information must include, but is not (DHS) guidance for SCADA systems and credible evidence is insufficient. To limited to, the following: (1) A detailed the National Institute of Standards and reduce the overall level of financial description of the change; (2) a detailed Technology guidance. FRA has resources and effort necessary to obtain description of the hardware and coordinated this proposal with DHS. sufficient credible evidence to support software impacted by the change; (3) a Proposed paragraph (a) establishes the the claims being made for the safety detailed description of any new requirement for message integrity and performance of the product, FRA also functional data flows resulting from the authentication. Integrity is the assurance encourages each railroad to share with change; (4) the results of the analysis that data is consistent and correct. other railroads a system’s service history used to verify that the change did not Generally speaking, in cryptography and and the results of any analysis, even in introduce any new safety risks or, if the information security, integrity refers to the case where the shared information change did introduce any new safety the validity of data. Integrity can be does not fully support a particular risks, a detailed description of the new compromised through malicious railroad’s safety analysis. safety risks and the associated risk altering—such as an attacker altering an Proposed paragraph (f) defines terms mitigation actions taken; (5) the results account number in a bank transaction, used only in this section. ‘‘Approved’’ of the tests used to verify and validate or forgery of an identity document—or refers to approval of a Product Safety the correct functionality of the product accidental altering—such as a Plan under subpart H. As this NPRM after the change has been made; (6) a transmission error, or a hard disk crash. was being prepared, only BNSF detailed description of any required A level of data integrity can be achieved Railway’s ETMS Configuration I had modifications in the railroad training by mechanisms such as parity bits and been so approved, but other systems plan that are necessary for continued Cyclic Redundancy Codes (CRCs). Such were under development. ‘‘Recognized’’ safe operation of the product after the techniques, however, are designed only refers to official action permitting a change; and (7) a detailed description of to detect some proportion of accidental system to be implemented for control of any new test equipment and bit errors; they are powerless to thwart train operations under an order or maintenance procedures required for deliberate data manipulation by a waiver, after review of safety case the continued safe operation of the determined adversary whose goal is to documentation for the implementation. product. FRA requests comment on modify the content of the data for his or As this NPRM was being prepared, only whether and in what way these her own gain. To protect data against ACSES I had been recognized under an concepts might be captured in the final this sort of attack, cryptographic order of particular applicability, and rule. techniques are required. Thus, ACSES II was under review for potential In the same vein, paragraph (g) appropriate algorithms and keys must approval. Only one system, the ITCS in encourages re-use of safety case be employed and commonly understood place on Amtrak’s Michigan line, had documentation previously reviewed, between the entity wanting to provide been approved for unrestricted revenue whether under subpart H or subpart I. data integrity and the entity wanting to service under waiver. be assured of data integrity. FRA was unable to fashion an outright Section 236.1033 Communications Authentication is the act of ‘‘grandfathering’’ of equipment and Security Requirements establishing or confirming something (or previously used in transit and foreign Subpart I proposes specific someone) as authentic. Various systems service. FRA does not have the same communications security requirements have been invented to provide a means

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for readers to reliably authenticate the combinations by which a key can be confidentiality is elected to be sender. In any event, the selected manually or in automation implemented by a railroad, that the communication must be properly amongst one or multiple parties. same protection mechanisms applicable protected; otherwise, an eavesdropper Proposed paragraph (b)(3) establishes to the cryptographic primitives that can simply copy the relevant data and the conditions under which support integrity and authentication later replay it, thereby successfully cryptographic keys must be revoked. must also be provided for the masquerading as the original, legitimate Paragraph (b)(3)(i) addresses the cryptographic primitives that support entity. situation when a key has actually been confidentiality. Sender authentication typically finds found to have been compromised and It is only the difficulty of obtaining application in two primary contexts. when the possibility of key compromise the key that determines security of the Entity identification serves simply to exists. Cryptographic algorithms are part system, provided that there is no identify the specific entity involved, of the foundations of the security house, analytic attack (i.e., a ‘‘structural essentially in isolation from any other and any house with weak foundations weakness’’ in the algorithms or activity that the entity might want to will collapse. Adequate procedures protocols used), and assuming that the perform. The second context is data should be foreseen to take an algorithm key is not otherwise available (such as origin identification, which identifies a out of service or to upgrade an algorithm via theft, extortion, or compromise of specific entity as the source or origin of which has been used beyond its lifetime computer systems). A key should a given piece of data. This is not entity Proposed paragraph (d) addresses therefore be large enough that a brute identification in isolation, nor is it physical protection as applied to force attack (possible against any entity identification for the explicit cryptographic equipment. Compliance encryption algorithm) is infeasible, purpose of enabling some other activity. does not necessitate locking devices whereas the attack would take too long Rather, this is identification with the within mechanical safes or enclosing to execute. Under information theory, to intent of statically and irrevocably their electronics within thick steel or achieve perfect secrecy, it is necessary binding the identified entity to some concrete shields (i.e. making them for the key length to be at least as large particular data, regardless of any tamper-proof). Compliance does, as the message to be transmitted and subsequent activities in which the entity however, involve using sound design only used once (this algorithm is called might engage. Cryptographically based practices to construct a system capable the one-time pad). In light of this, and signatures provide nearly irrefutable of attack detection by a comprehensive the practical difficulty of managing such evidence that can be used subsequently range of sensors (i.e. tamper resistant). long keys, modern cryptographic to prove to a third party that this entity The level of physical security suggested practice has discarded the notion of did originate—or at least possess—the should be such that unauthorized perfect secrecy as a requirement for data. attempts at access or use will either be encryption, and instead focuses on Proposed paragraph (b)(1) requires unsuccessful or will have a high computational security. Under this that cryptographic algorithms and keys probability of being detected during or definition, the computational used to establish integrity and after the event. Additionally, the requirements of breaking an encrypted authenticity be approved by either the cryptographic equipment should be text must be infeasible for an attacker. National Institute of Standards or a prominently situated in operation so Paragraph (e)(2) proposes to require that similar standards organization that its condition (outward appearance, in the event that a railroad elects to acceptable to FRA. As a practical matter, indicators, controls, etc.) is easily implement confidentiality, the chosen cryptographic algorithms can be visible to minimize the possibility of key length should provide the believed secure by competent, undetected penetration. In any system appropriate level of computational experienced, practicing cryptographers. containing detection and destruction complexity to protect the information This requires that the algorithms be methods as described here, there is being protected, and that this publicly known and have been seriously naturally a cost penalty for providing information be included in the PTCSP. studied by working cryptographers. very high levels of tamper resistance, Both academic and private Algorithms that have been approved by due to construction and test organizations provide recommendations NIST (or similar standards bodies) can requirements by the manufacturer. It is and mathematical formulas to be assured of being both publicly known naturally important to analyze the risks approximate the minimum key size and seriously studied. of key disclosure against cost of requirement for security based on Proposed paragraph (b)(2) allows the protection and specify a suitable mathematic attacks; they generally do use of either manual or automated implementation. not take algorithmic attacks, hardware means to distribute keys. Key Confidentiality has been defined by flaws, or other such issues into account. distribution is the most important the International Organization for Key management—the process of component in secure transmissions. The Standardization (ISO) as ‘‘ensuring that handling and controlling cryptographic general key distribution problem refers information is accessible only to those keys and associated material during to the task of distributing keys between authorized to have access.’’ their life cycle in a cryptographic communicating parties to provide the Confidentiality, integrity, and system—includes ordering, generating, required security properties. Frequent authentication all rely on the same basic distributing, storing, loading, escrowing, key changes are usually desirable to cryptographic primitives—algorithms archiving, auditing, and destroying the limit the amount of data compromised with basic cryptographic properties— different types of material. Paragraph (e) if an attacker learns the key. Therefore, and their relationship to other proposes to require that cleartext stored the strength of any cryptographic system cryptographic problems. These cryptographic keys be protected from results with the key distribution primitives provide fundamental unauthorized disclosure, modification, technique, a term that refers to the properties, which guarantee one or more or substitution. During key means of delivering a key to two parties of the high-level security properties. In management, however, it may be that wish to exchange data without proposed paragraph (e)(1), FRA makes it necessary to validate the accuracy of the allowing others to see the key. Key clear that while providing for key being entered, especially in cases distribution can be achieved in a confidentiality of message data is not a where the key management process is number of ways. There are various regulatory requirement, if being done manually. During the key

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entry process, keys not encrypted to conduct test operations on the general would apply. FRA intends that the protect against disclosures may be rail system. This paragraph proposes an meanings of those sections in subpart H, temporarily displayed to allow visual alternative to the waiver process when as described in the preamble to its verification. However, if the key has only part 236 regulations are involved. proposed and final rules, would also been encrypted to protect against When regulations concerning track apply equally in the context of this disclosure, then the cleartext version of safety grade crossing safety or when proposal. While FRA has considered the key may not be displayed. This does operational rules are involved, however, amending these sections in subpart H to not, however, preclude the display of this process would not be available. incorporate references to subpart I, FRA the encrypted version of the key. Such testing may also implicate other believes such an attempt and its results In proposed paragraph (f), FRA safety issues, including adequacy of would be cumbersome and awkward. requires that each railroad implement a warning at highway-rail crossings Thus, FRA has included the provisions service restoration and mitigation plan (including part 234 compliance), in proposed subpart I for clarity. FRA to address restoral of communications qualification of passenger equipment seeks comments on this issue. services in the event of their loss or (part 238), sufficiency of the track Appendix B to Part 236—Risk disruption and to make this plan structure to support higher speeds or Assessment Criteria available to FRA. Loss of unbalance (part 213), and a variety of communications services reduces or other safety issues, not all of which can FRA proposes modifying Appendix B eliminates the effectiveness of a PTC be anticipated in any special approval of part 236 to enhance the language for system and FRA requires that these procedure. Approval under this part for risk assessment criteria in a light of critical safety systems, once testing does not grant relief from other experience gained during the initial implemented, are restored to operation parts of this title and the railroads must stage of PTC system implementation as soon as practical. FRA believes that still apply for relief from the non-part under subpart H and to accommodate the restoration plan must include testing 236 regulations under the discrete the requirements of subpart I regulating and validating the plan, communicating special approval sections of those the use of mandatory PTC systems. As the plan, and validating backup and regulations, the provisions of part 211 modified, Appendix B will modify restoration operations. related to waivers, or both. certain headings and incorporate new To ensure that these or any other The information required for this language in paragraphs (a) through (h). procedures work in the railroads filing is described in proposed Paragraph (a) reflects the change in operational environment, the railroad paragraphs 236.1035(a)(1) through the required length of time over which must validate each procedure intended (a)(7). This information is necessary in the system’s risk must be computed. for implementation. The backup and order for FRA to make informed FRA replaces the requirement to assess restoration plan should clearly describe decisions regarding the safety of testing risk for the system ‘‘over the life-cycle who is to implement procedures and operations. FRA would prefer that the of 25 years or greater’’ with the how they are to do it. The primary informational filings to test under this requirement to assess risk ‘‘over the information to be communicated part be accompanied by any requests for designed life-cycle of the product.’’ FRA includes: the team or person (specified relief from non-part 236 regulations so believes that the proposed language is as an individual or a role) that is that they may be considered as a whole. consistent with the preamble discussion responsible for determining when Proposed paragraph (b) provides of the subpart H final rule inasmuch restoration of service is required and the notification that FRA may—based on that they do not specify the length of a procedures to be used to restore service, the results of the review of the system’s life cycle, thereby providing as well as the team or person information provided in paragraph (a) flexibility for new processor-based responsible for implementing and in order to provide additional systems to have a life cycle other than procedures for each restoration scenario; oversight to ensure the safety of rail 25 years. the criteria for determining which operations—impose special conditions FRA proposes to modify paragraph (b) restoration procedures are most on the execution of the testing, only to clarify FRA’s intent. appropriate for a specific situation; the including the appointment of a FRA test FRA proposes to modify the heading time estimates for restoration of service monitor. When a test monitor is and content of paragraph (c) to better in each restoration scenario; the appointed, he or she has the authority identify the main purpose of this restoration procedures to be used, to stop testing if unsafe conditions arise, requirement and to ensure its including the tools required to complete require additional tests as necessary to consistency with the associated each procedure; and the information demonstrate the safe operation of the requirements of §§ 236.909(c) and (d). required to restore data and settings. system, or have tests rerun when the FRA believes that current paragraph (c) Finally, paragraph (g) is proposed to results are in question. and its heading do not fully support or make clear that railroads are permitted Paragraph (c) reemphasizes the earlier clarify the main intent of subpart H, to implement more restrictive security discussion that either temporary or which requires that the total cost of requirements provided the requirements permanent requests for relief for other hazardous events should be the risk do not adversely impact the than requirements of part 236 must be measure for a full risk assessment and interoperability. submitted in accordance with the that the mean time to hazardous event waiver processes specified by part 211. (MTTHE) calculations for all hazardous Section 236.1035 Field Testing events should be the risk measure for Requirements Sections 236.103 Through 236.1049 the abbreviated risk assessment. The Initial field or subsequent regression In subpart H, §§ 236.917 through existing subpart H text asks for both the testing of a PTC product on the general 236.929 contain various requirements base case and the proposed case to be rail system is often required before the that involve PSPs. FRA believes that expressed in the same metrics. product has been certified in order to these requirements should apply Paragraph (c) of this appendix, as obtain data to support the safety case equally to PTC systems governed by currently written, does not fully reflect presented in the PTCSP. To ensure the subpart I. FRA has included proposed FRA’s intent that the same risk metric safety of the public and train crews, §§ 236.1037 to 236.1049 to inform is to be used in the risk assessment for prior FRA approval is required to interested parties how these elements both the previous and current

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conditions (see § 236.913(g)(2)(vii). FRA be easily obtained for the system external influencing, and procedures believes that the revised title of this software components. Therefore, the and policies related to maintenance, paragraph poses the right question and proposed modification intends to repair, and modification of the system. that its new language provides better outline the significance of detailed FRA also proposes adding language guidance on how to perform risk software fault/failure analysis and indicating that these principles must assessment for previous and current software testing to demonstrate also be applicable to PTC systems conditions. repeatable predictive results that all designed and implemented under the FRA proposes to modify the heading software defects are identified and requirements of subpart I. FRA’s intent and text of paragraph (d) to create a corrected. in promulgating Appendix C was to comprehensive and detailed list of FRA proposes to modify paragraph (g) ensure that safety principles are system characteristics that must be to clarify that MMTHE calculations followed during the design stage and included in the risk assessment for each should account for the restoration time that Verification and Validation proposed PTC system subject to after system or component failure and methods are used to assure that the requirements of subpart H or subpart I, that the system design must be assessed product meets the safety criteria or both, as applicable. FRA believes that for adequacy through the Verification established in § 236.909. The heading of the extended description of system and Validation process. this paragraph and its subparagraphs are characteristics better suits the risk FRA proposes to modify paragraph (h) changed to more adequately and assessment requirements of subpart H to emphasize the need to document all precisely capture this paragraph’s and subpart I. For example, the assumptions made during the risk purpose. For instance, FRA proposes to proposed revisions clarify that the risk assessment process. FRA believes that modify the heading of paragraph (b)(1) assessment must account for the total the assumptions should be documented to better suit the chosen base of volume of traffic, the type of transported while deriving the total cost of potential classification for all safety principles freight materials (PIH, PIH), and any accident consequences for full risk under paragraph (b). additional requirements for PTC assessment or MTTHE values for Under paragraph (b)(3), FRA proposes systems with trains operating at certain abbreviated risk assessment, rather than to amend the definition of Closed Loop speeds. only documenting assumptions for her Principle to reflect its industry accepted FRA proposes to modify paragraph (e) intermediate parameters, such as MTTF definition provided by the AREMA to clarify its intent and reflect the and MTTR, as currently required. These Manual. FRA believes that the current industry’s experience in risk assessment two referenced parameters may or may definition is too general and does not techniques gained during the initial not be relevant for the risk assessment. reflect the essence of the most stage of PTC system implementation Appendix C to Part 236—Safety significant principles of safe signaling under subpart H. In the proposed Assurance Criteria and Processes system design. language of paragraph (e), FRA provides Under paragraph (b)(4), FRA proposes more specific guidance on how to derive FRA proposed to modify Appendix C to add a list of Safety Assurance the main risk characteristics, MTTHE, to Part 236 to enhance and clarify its Concepts that the designer may consider and what role reliability and availability language, re-organize the existing list of for implementation to assure sail-safe parameters, such as mean time to failure safe system design principles in system design and operation. These (MTTF) or mean time between failures accordance with the well established principles are predominantly applicable (MTBF), for different system models of system safety engineering, for the safe system software design and components can play while assessing and augment the list of safe system quoted from the IEEE–1483 standard. risk for vital and non-vital hardware or design principles with the principles Based on this proposed amendment, software components of the system. related to safe system software design. A FRA also proposes to renumber some of FRA emphasizes that it is critical that safe state is a system configuration that the remaining subparagraphs of each railroad and its vendors include the system defaults to in the event of a paragraph (b) to follow the chosen the software failure rates into risk fault or failure or when unacceptable or scheme for the proper classification and assessments for the system. FRA also dangerous conditions are detected. The sequence of safety principles. finds it necessary to advise each railroad safe state is a state of the process FRA proposes to amend paragraph (c) and its vendors to include reliability operation where the hazardous event reflect the changes in recommended and availability characteristics, such as cannot occur. Paragraph (a), as standards. For instance, the standard MTTF or MTBF, into its risk assessment proposed, is revised to reflect the main ‘‘EN50126: 1999, Railway Applications: to account for potential system exposure purpose of this appendix in clear, Specification and Demonstration of to hazards during system failures or accurate, and consistent language that Reliability, Availability, Maintainability malfunctioning when the system will be repeatedly used throughout the and Safety’’ (RAMS) is superseded by operates in its fall back mode—the back- appendix. It also outlines that the the standard IEC62278: 2002 under the up operation, as described in the requirements of this appendix will be same title. The standard ‘‘EN50128 (May PTCSP, when the PTC system fails to applicable to each railroad’s PTCIP and 2001), Railway Applications: Software operate. PTCSP, as required by subpart I. for Railway Control and Protection FRA believes that the proposed Paragraph (b), as proposed, is Systems’’ is superseded by the Standard modifications to paragraph (e) more modified and restructured to IEC62279: 2002 under the same title. accurately address the industry’s need consistently present a complete list of Under paragraph (c)(3)(i), FRA for clarity in interpretation and safety assurance principles properly references additional IEEE standards execution of the requirements related to classified or categorized in accordance that have become available and will risk assessment. with well established system safety support the designs of PTC systems that FRA proposes to modify paragraph engineering principles that need to be are widely using communications as (f)(2) to reflect FRA’s understanding that followed by the designer of the system their main component. In addition to a software failure analysis may not to assure that all system components existing reference under paragraph necessarily be based on MTTHE perform safely under normal operating (c)(3)(i)(A) for IEEE–1483 Standard, the ‘‘Verification and Validation’’ processes conditions and under failures, following standards are added to and that MTTHE characteristics cannot accounting for human factor impacts, paragraph (c)(3)(i): IEEE 1474.2–2003,

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Standard for user interface requirements that make up the central office; (2) associated with FRA’s proposed rule, in communications based train control hardware costs for onboard locomotive using both 7 percent and 3 percent (CBTC) systems; and IEEE 1474.1–2004, system components, including discount rates, and two types of Standard for Communications-Based installation; (3) hardware costs for sensitivity analyses. The first is Train Control (CBTC) Performance and wayside system components, including associated with varying cost Functional Requirements. installation; and (4) maintenance costs assumptions used for estimating PTC After an analysis of the current for all system components. implementation costs. The second takes applicability of ATCS Specification 130 Two types of benefits are expected to into account potential business benefits and 140, FRA believes that they are not result from the implementation of this from realizing service efficiencies and being used. Thus, FRA proposes to proposed rule—benefits from railroad related additional societal benefits from remove these standards from the list of accident reduction and business attainment of environmental goals and referenced standards. However, FRA benefits from efficiency gains. The first an overall reduction in transportation also proposes to add the ATCS 200, Data type would include safety benefits or risk from modal diversion. Communication standard that remains savings expected to accrue from the relevant for communication segment of reduction in the number and severity of The 20-year total cost estimates are PTC system designs. casualties arising from train accidents $10.00 billion (PV, 7%) and $13.85 FRA also considers it necessary to that would occur on lines equipped billion (PV, 3%). Annualized costs are reference several additional sections of with PTC systems. Casualty mitigation $0.95 billion (PV, 7%) and $0.93 billion the current AREMA 2009 estimates are based on a value of (PV, 3%). Using high-cost assumptions, Communications and Signal Manual of statistical life of $6 million. In addition, the 20-year total cost estimates would be Recommended Practices. In addition to benefits related to accident preventions $17.12 billion (PV, 7%) and $23.76 Section 17 of this manual referenced in would accrue from a decrease in billion (PV, 3%). Using low-cost a previous version of Appendix C, FRA damages to property such as: assumptions, the 20-year cost estimates proposes to add to the list of references Locomotives, railroad cars, and track; would be $7.09 billion (PV, 7%) and Section 16 Vital Circuit and Software environmental damage; track closures; $9.84 billion (PV, 3%). The later the Design; Section 21 Data Transmission; road closures; and evacuations. Benefits expenditures are made, the lower the and Section 23 Communication-Based more difficult to monetize—such as the discounted cost impact, which in any Signaling. avoidance of hazmat accident related event is a very small portion of the total VII. Regulatory Impact and Notices costs incurred by Federal, State, and PTC costs. local governments and impacts to local Twenty-year railroad safety (railroad A. Executive Order 12866 and DOT businesses—will also result. FRA also accident reduction) benefit estimates Regulatory Policies and Procedures expects that once PTC systems are associated with implementation of the This proposed rule has been refined, there would likely be proposed rule are $608 million (PV, 7%) evaluated in accordance with existing substantial additional business benefits and $931 million (PV, 3%). Annualized policies and procedures, and resulting from more efficient benefits are $57 million (PV, 7%), and determined to be significant under both transportation service; however such Executive Order 12866 and DOT benefits are not included because of $63 million (PV, 3%). Some forecasts policies and procedures (44 FR 11034; significant uncertainties regarding predict significant growth of both Feb. 26, 1979). We have prepared and whether and when individual elements passenger and freight transportation placed in the docket a regulatory impact will be achieved and given the demands, and it is thus possible that analysis (RIA) addressing the economic complicating factor that some benefits greater activity on the system could impact of this proposed rule. FRA might, absent deployment of PTC, be present the potential for larger safety invites comments on this RIA. captured using alternative technologies benefits than estimated in this analysis. The costs anticipated to accrue from at lower cost. FRA requests comments The presence of a very large PTC- adopting this proposed rule would on whether this proposed regulation equipped freight locomotive fleet also include: (1) Costs associated with exercises the appropriate level of supports the opportunity for developing implementation plans and discretion and flexibility to comply with introduction of new passenger services administrative functions related to the RSIA08 in the most cost effective and of higher quality at less cost to the implementation and operation of PTC beneficial manner. sponsor of that service. Information is systems, including the information This document presents a 20-year not presently available to quantify that technology and communication systems analysis of the costs and benefits benefit.

TOTAL 20—YEAR BENEFITS AND DISCOUNTED BENEFITS [At 3% and 7%]

Discount rate ...... 3.00% 7.00% Costs: Central Office and Development ...... $283,025,904 $263,232,675 Wayside Equipment ...... 3,109,098,494 2,586,453,456 On-Board Equipment ...... 1,643,839,209 1,416,706,349 Maintenance ...... 8,812,624,111 5,741,220,231

Total ...... 13,848,587,717 10,007,612,712

Railroad Safety Benefits ...... 931,253,681 607,711,640

The Port Authority Trans Hudson apparently considering the system used on the Canarsie line. This system, which (PATH), a commuter railroad, is by the New York City Transit Authority is known as Communication-Based

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Train Control, is not similar in concept implementation. The element least aggressive implementation schedule for to any of the other PTC systems sensitive to an implementation’s PTC and the resulting need to issue a (including the CSX CBTC, with which schedule appears to be onboard costs. rule promptly, FRA has not formally its name might easily be confused), and Each PTC system’s onboard equipment updated this study. Nevertheless, FRA would not be suitable, as FRA seems similar and is not very different believes that there is opportunity for understands the system, except on a from existing onboard systems. Further, significant business benefits to accrue railroad with operating characteristics the 2015 deadline is not so restrictive several years after implementation once similar to a heavy rail mass transit that it would cause railroads to pull the systems have been refined to the system. FRA believes that, in absence of locomotives out of service just to install degree necessary. Thus, FRA conducted the statutory mandate or this on board PTC equipment. Locomotives a sensitivity analysis of potential rulemaking, PATH would have adopted must be inspected thoroughly every 90 business benefits based on the 2004 PTC for business reasons. and more extensively every 360 days. Report. Although costs associated with The inspections can last from one to The 2004 Report included business implementation of the proposed rule are several days. Railroads usually bring benefits from improved or enhanced significant and such costs would far locomotives into their shops to perform locomotive diagnostics, fuel savings exceed the benefits, FRA is constrained these inspections, during which time a attributable to train pacing, precision by the requirements of RSIA08, which skilled and experienced team could dispatch, and capacity enhancement. do not provide latitude to for install the on board equipment for PTC. Although railroads are enhancing implementing PTC differently. System development is much less locomotive diagnostics using other Nevertheless, FRA has taken several certain, and more time would enable technologies, FRA believes that PTC steps to avoid triggering unnecessary vendors to develop, test, and implement could provide the basis for significant costs in the proposed rule. For instance, the software at a more reasonable cost. gains in the other three areas. FRA is not proposing to require use of Wayside costs are also sensitive to the In the years since the 2004 Report, separate monitoring of switch position installation timetable, as the wayside developing technology and rising fuel in signal territory or that the system be must be mapped and measured, and costs have caused the rail supply designed to determine the position of then the railroads must install wayside industry and the railroads to focus on the end of the train. FRA also interface units (WIUs). Wayside additional means of conserving diesel minimized costs, such as by proposing mapping and measurement takes a fuel while minimizing in-train forces a requirement to monitor derails highly skilled workforce. A larger that can lead to derailments and delays protecting the mainline, but limiting it workforce is necessary to timely from train separations (usually broken to derails connected to the signal implement the required PTC systems in coupler knuckles). Software programs system; and by proposing a requirement a shorter amount of time. WIU exist that can translate information to monitor hazard detectors protecting installation is likely similar to existing concerning throttle position and brake the mainline, but limiting it to hazard signal or communication systems use, together with consist information detectors connected to the signal installation, and is likely to involve use and route characteristics, to produce system. FRA also minimized costs of existing railroad skilled workers. The advice for prospective manipulation of related to diamond crossings, where a shorter the installation time period, the the locomotive controls to limit in-train PTC equipped railroad crosses a non- more work will be done at overtime forces. Programs are also being PTC equipped railroad at grade; rates, which are, of course, higher. conceived that project arrival at meet included exceptions to main track for FRA believes that lower costs could points and other locations on the passenger train operations, and result from a longer installation period, railroad. These types of tools can be proposed provisions that would permit but FRA also believes that the consolidated into programs that either some Class III railroad operation of differences in costs would be within the coaches the locomotive engineer trains not equipped with PTC over Class range of the low costs provided in the regarding how to handle the train or I railroad freight lines equipped with main analysis of the proposed rule. The even take over the controls of the PTC. 2004 report included some lower cost locomotive under the engineer’s RSIA08 requires the railroads to have estimates, but in light of current supervision. The ultimate purpose of all mandatory PTC systems operational discussions with railroads, the cost integrating this technology is to on or before December 31, 2015. estimates in the 1998 report seem more conserve fuel use while handling the Members of the PTC Working Group, accurate. The lower estimates FRA train properly and arriving at a especially railroad and supplier received in preparing the 2004 report designated location ‘‘just in time’’ (e.g., representatives, said that the timeframe were both overly optimistic, and to meet or pass a train or enter a was very tight, and that the scheduled excluded installation costs, as well as terminal area in sequence ahead of or implementation dates would be difficult higher costs which stem from meeting behind other traffic). Further integrating to meet. In general, the faster a the performance standards. this technology with PTC government agency requires a regulated Some of the costs of PTC communications platforms and traffic entity to adopt new equipment of implementation, operation, and planning capabilities could permit procedures, the more expensive maintenance may be offset by business transmittal of ‘‘train pacing’’ compliance becomes. In part, this is due benefits, especially in the long run, information to the locomotive cab in to supply elasticity being less over although there is uncertainty regarding order to conserve fuel. Like the shorter time periods. the timing and level of those benefits. communications backbone, survey data FRA is unable to estimate the Economic and technical feasibility of concerning route characteristics can be potential savings if Congress provided a the necessary system refinements and shared by both systems. The cost of longer implementation schedule or modifications to yield the potential diesel fuel for road operations to the provided incentives, rather than business benefits has not yet been Class I railroads is approximately $3.5 mandates, for PTC system installation. demonstrated. FRA analyzed business billion annually and is gradually rising. In order to estimate the likely reduction benefits associated with PTC system If PTC technology helps to spur the in costs in such situations, FRA would implementation and presented its growth and effective use of train pacing, need to develop some other schedule for findings in the 2004 Report. Due to the fuel savings of 5% ($175,000,000

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annually) or greater could very likely be unlikely during the first several years of societal benefits cannot be estimated achieved. Clearly, if the railroads are this rule. with any certainty. able to conserve use of fuel, they will Applying current factors to the FRA recognizes that the likelihood of also reduce emissions and contribute to variables used in the 2004 Report to business benefits is uncertain and that attainment of environmental goals, even Congress, the resulting analysis the cost-to-benefit comparison of this before modal diversion occurs. indicates that diversion could result in rule, excluding any business benefits, is The improvements in dispatch and highway annual safety benefits of $744 not favorable. However, FRA has taken capacity have further implications. With million by 2022, and $1,148 million by measures to minimize the rule’s adverse those improvements, railroads could 2032. Of course, these benefits require impacts and to provide as much improve the reliability of shipment that the productivity enhancing systems flexibility as FRA is authorized to grant arrival time and, thus, dramatically be added to PTC, and are heavily under RSIA08. increase the value of rail transportation dependent on the underlying to shippers, who in turn would divert assumptions of the 2004 model. B. Regulatory Flexibility Act and certain shipments from highway to rail. Modal diversion would also yield Executive Order 13272 Such diversion would yield greater environmental benefits. The 2004 The Regulatory Flexibility Act (5 overall transportation safety benefits Report estimated that reduced air U.S.C. 601 et seq.) and Executive Order since railroads have much lower pollution costs would have been 13272 require a review of proposed and accident risk than highways, on a point- between $68 million and $132 million final rules to assess their impacts on to-point ton-mile basis. The total in 2010 (assuming PTC would be small entities. An agency must prepare societal benefits of PTC system implemented by 2010), and between an initial regulatory flexibility analysis implementation and operation, $103 million and $198 million in 2020. (IRFA) unless it determines and certifies following the analysis, would be much This benefit would have accrued to the that a rule, if promulgated, would not greater than total societal costs, general public. FRA has not broken out have a significant impact on a although the costs would fall the pollution cost benefit of the current substantial number of small entities. disproportionately more heavily on the rule, but offers the estimates from the FRA has not determined whether this railroads. 2004 Report as a guide to the order of proposed rule would have a significant At present, the PTC systems magnitude of such benefits. economic impact on a substantial contemplated by the railroads, with the While railroads argued that many of number of small entities. Therefore, we possible exception of PATH, would not the benefits identified in FRA’s 2004 are publishing this IRFA to aid the increase capacity, at least not for some report were exaggerated, shortly after public in commenting on the potential time. If the locomotive braking the publication of the report, several small business impacts of the proposals algorithms need to be made more railroads began developing strategies for in this NPRM. We invite all interested conservative in order to ensure that each PTC system development and parties to submit data and information train does not exceed the limits of its implementation. This investment by the regarding the potential economic impact authority, PTC system operation may railroads would seem to illustrate that that would result from adoption of the actually decrease rail capacity where they believe that there is some potential proposals in this NPRM. We will applied in the early years. Further for PTC to provide a boost to railroad consider all comments received in the investment would be required to bring profits, beyond providing any of the public comment process when making a about the synergy that would result in aforementioned societal benefits. determination in the Final Regulatory capacity gains. A more significant Modal diversion is highly sensitive to Flexibility Assessment. business benefit of PTC system service quality. Problems with terminal In accordance with the Regulatory operation would be derived from congestion and lengthy dwell times Flexibility Act, an IRFA must contain: precision dispatching, which decreases might overwhelm the benefits of PTC or (1) A description of the reasons why the variance of arrival times of delivered other initiatives which the railroads action by the agency is being freight. To avoid the risk of running out have been pursuing (reconfiguration of considered; of stock, shippers often overstock their yards, pre-blocking of trains, shared (2) A succinct statement of the inventory at an annual cost of power arrangements, car scheduling, objectives of, and the legal basis for, the approximately 25% of its inventory Automatic Equipment Identification, proposed rule; value, regardless of the material being etc.) might actually work in synergy (3) A description of, and where stored. This estimate accounts for with PTC. It should also be noted that, feasible, an estimate of the number of shrinkage, borrowing costs, and storage in the years since the 2004 Report was small entities to which the proposed costs. Of course, freight with more value developed, the Class I railroads have rule will apply; per unit of mass or volume tends to shown an increased ability to retain (4) A description of the projected have greater storage costs per unit. At operating revenue as profit, rather than reporting, recordkeeping and other present, no rail precision dispatch surrendering it in the form of reduced compliance requirements of the system exists. However, if a shipper rates. This was particularly true during proposed rule, including an estimate of would take advantage of precision the period prior to the current recession, the classes of small entities that will be dispatching, thus increasing freight when strained highway capacity favored subject to the requirement and the type arrival time accuracy, then it could the growth of rail traffic. The sensitivity of professional skills necessary for reduce its overstock inventory. Accurate analysis performed by FRA indicates preparation of the report or record; train data is a necessary, but not a that realization of business benefits (5) An identification, to the extent sufficient condition, for precision could yield benefits sufficient to close practicable, of all relevant Federal rules dispatch. At least two of the Class I the gap between PTC implementation that may duplicate, overlap, or conflict railroads have unsuccessfully attempted costs and rail accident reduction with the proposed rule; and to develop precision dispatch systems. benefits within the first 20 years of the (6) A description of any significant The mandatory installation of PTC rule, applying a 3% discount rate, and alternatives to the proposed rule that systems is likely to divert any resources by year 25 of the rule, applying a accomplish the stated objectives of that might have been devoted to discount rate of 7%. Accordingly, the applicable statutes and which minimize precision dispatch, so these benefits are precise partition of business and any significant economic impact of the

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proposed rule on small entities. 5 U.S.C. as a ‘‘small entity’’) is 1,500 employees Class III railroads that operate on Class 603(b), (c). for ‘‘Line-Haul Operating’’ railroads, I railroad lines required to be equipped and 500 employees for ‘‘Short-Line with PTC will depend on the nature of 1. Reasons for Considering Agency Operating’’ railroads. See ‘‘Table of Size such operations. Class III railroads often Action Standards,’’ U.S. Small Business make short moves on Class I railroad PTC systems will be designed to Administration, January 31, 1996, 13 lines for interchange purposes. To the prevent train-to-train collisions, CFR part 121; see also NAICS Codes extent that their moves do not exceed overspeed derailments, incursions into 482111 and 482112. four per day or 20 miles in length of established work zone limits, and the SBA size standards may be altered by haul (one way), Class III railroads will movement of a train through a switch Federal agencies in consultation with be exempt from the requirement to left in the wrong position. SBA, and in conjunction with public equip the locomotives. However some As discussed in more detail in section comment. Pursuant to the authority Class III railroads operate much more I of the preamble, the RSIA08 mandates provided to it by SBA, FRA has extensively on Class I railroad lines that that widespread implementation of PTC published a final policy, which formally will be required to have PTC and would across a major portion of the U.S. rail establishes small entities as railroads have to equip some of their locomotives. industry be accomplished by December that meet the line haulage revenue It is likely that Class III railroads will 31, 2015. RSIA08 requires each Class I requirements of a Class III railroad. See dedicate certain locomotives to such carrier and each entity providing 68 FR 24,891 (May 9, 2003). Currently, service, if they have not done so regularly scheduled intercity or the revenue requirements are $20 already. FRA estimates that commuter rail passenger transportation million or less in annual operating approximately 55 small railroads would to develop a plan for implementing PTC revenue, adjusted annually for inflation. have to equip locomotives with PTC by April 16, 2010. The Secretary of The $20 million limit (adjusted system components because they have Transportation is responsible for annually for inflation) is based on the trackage rights on Class I freight railroad reviewing and approving or Surface Transportation Board’s PIH lines that would be required to have disapproving such plans. The Secretary threshold of a Class III railroad carrier, PTC and would not be able to qualify for has delegated this responsibility to FRA. which is adjusted by applying the any of the operational exceptions This proposed rule details the process railroad revenue deflator adjustment. discussed. and procedure for obtaining FRA See also 49 CFR part 1201. The same FRA further estimates that 10 small approval of the plans. dollar limit on revenues is established railroads have trackage rights on to determine whether a railroad shipper intercity passenger or commuter 2. Legal Basis for the Proposed Rule or contractor is a small entity. FRA railroads or other freight railroads As discussed earlier in the preamble, proposes to use this definition for this hosting such operations, and might need FRA is issuing this proposed rule to rulemaking. to equip some locomotives with PTC provide regulatory guidance and The IRFA’s ‘‘universe’’ of considered systems. Half of these would need to performance standards for the entities generally includes only those equip locomotives anyway, because development, testing, implementation, small entities that can reasonably be they also have trackage rights on Class and use of Positive Train Control (PTC) expected to be directly regulated by the I railroads that haul PIH and would systems for railroads mandated by the proposed action. One type of small otherwise be required to have PTC. Rail Safety Improvement Act of 2008. entity is potentially affected by this Thus, a total of 60 railroads would section 104, Public Law 110–432, 122 proposed rule: railroads. The level of need to equip locomotives. FRA Stat. 4848, 4856, (Oct. 16, 2008) impact on small railroads will vary from estimates that the average small railroad (codified at 49 U.S.C. 20157). railroad to railroad. Class III railroads will need to equip four locomotives, at will be impacted for one or more of the a per railroad cost of $55,000 each, 3. Description and Estimate of Small following reasons: (1) They operate on totaling $220,000, and that the total cost Entities Affected Class I railroad lines that carry PIH for all 60 small railroads which will ‘‘Small entity’’ is defined in 5 U.S.C. materials and are required to have PTC, need to equip locomotives would be 601. Section 601(3) defines a ‘‘small in which case they would need to equip $13,200,000. The annual maintenance entity’’ as having the same meaning as the portion of their locomotive fleet that cost would be 15% of that total, ‘‘small business concern’’ under section operates on such lines; (2) they operate equaling $33,000 per railroad or 3 of the Small Business Act. This on Amtrak or commuter rail lines, $1,980,000 total for all small railroads. includes any small business concern including freight railroad lines that host FRA requests comments regarding this that is independently owned and such service; (3) they host regularly cost estimate. operated, and is not dominant in its scheduled intercity or commuter rail In addition, 15 small railroads host field of operation. Section 601(4) transportation; or (4) they have at-grade commuter or intercity passenger includes not-for-profit enterprises that railroad crossings over lines required by operations on what might be defined as are independently owned and operated, RSIA08 to have PTC. Generally, to the main line track under the accompanying and are not dominant in their field of extent that Class III railroads incur costs rulemaking; however, only five of these operations within the definition of associated with implementation of PTC railroads are neither terminal or port ‘‘small entities.’’ Additionally, section it will limited to equipping locomotives, railroads, which tend to be owned and 601(5) defines as ‘‘small entities’’ and not the wayside, for the reasons operated by large railroads or port governments of cities, counties, towns, discussed below. authorities, nor subsidiaries of large townships, villages, school districts, or The proposed rule would apply to short line holding companies with the special districts with populations less small railroads’ tracks over which a expertise and resources across the than 50,000. passenger railroad conducts intercity or disciplines comparable to larger The U.S. Small Business commuter operations and locomotives railroads. Of those five railroads, only Administration (SBA) stipulates ‘‘size operating on main lines of Class I freight one has trackage exceeding 3.8 miles. standards’’ for small entities. It provides railroads required to have PTC and on The other four railroads may request that the largest a for-profit railroad railroads conducting intercity passenger that FRA define such track as other than business firm may be (and still classify or commuter operations. The impact on main line after ensuring that all trains

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will be limited to restricted speed. The 4. Description of Reporting, of RSIA08 and that would minimize the cost burden on the remaining railroad Recordkeeping, and Other Compliance economic impact on small entities. FRA will likely be reduced by restricting Requirements and Impacts on Small is exercising its discretion to provide speed, temporally separating passenger Entities Resulting From Specific the greatest flexibility for small entities train operations, or by passing the cost Proposed Requirements available under RSIA08 by proposing to to the passenger railroad. Thus, the Class III railroads that host intercity or allow operations of unequipped trains expected burden to small entities commuter rail service will need to file operated by small entities on the main hosting passenger operations is implementation plans, whether or not lines of Class I railroads, and in defining minimal. FRA requests comments they directly procure or manage main track on passenger railroads to related to this analysis. installation of the PTC system. FRA avoid imposing undue burdens on small believes that although the entities. The definition of passenger At rail-to-rail crossings where at least main track was adopted based on PTC one of the intersecting tracks allows implementation plan must be jointly filed by the small host railroad and Working Group recommendations that operating speeds in excess of 40 miles were backed strongly by representatives per hour, the approaching non-PTC line passenger tenant railroad, the cost of these plans will be borne by the of small railroads. The provisions must have a permanent maximum speed passenger railroads. FRA believes that permitting operations of unequipped limit of 20 miles per hour and either only one small entity, as described trains of Class I railroads exceeded the have some type of positive stop above, is likely to have PTC installed on maximum flexibility for which the PTC enforcement or a split-point derail its lines. The implementation plan is Working Group could reach a incorporated into the signal system on likely to be an extension of the consensus. FRA requests comments on the non-PTC route.. FRA believes that passenger railroad’s plan, and the this finding of no significant alternative the cost of the derail would be borne by marginal cost will be the cost of related to small entities. FRA also the PTC-equipped railroad, and that tailoring the plan to the host railroad, requests comments on whether this slowing to 20 miles per hour reflects which will be borne by the passenger proposed regulation exercises the current practice at most diamond railroad, and maintaining copies of the appropriate level of discretion and crossings. FRA estimates that ten plan at the host railroad, which FRA flexibility to comply with RSIA08 in the crossings exist, on five small railroads estimates to be approximately $1,000 most cost effective and beneficial with two crossings each, where the per year. manner. newly burdened small railroad will be The total cost to small entities would The process by which this proposed slowing to 20 miles per hour from a include the initial cost of equipping rule was developed provided outreach higher track speed. FRA estimates that locomotives, $13,200,000; annual costs to small entities. As noted earlier in the the average traffic on the newly of $1,980,000 for maintenance; $219,000 preamble, this notice was developed in consultation with industry burdened route is two trains per day, due to operating speed restrictions at representatives via the RSAC, which and that the cost to slow from a higher diamond crossings; and $1,000 to includes small railroad representatives. track speed is $30 per train, for a total maintain a copy of the PTC From January to April 2009, FRA met cost of $60 per crossing per day, a per implementation plan. The total annual costs to small entities after initial with the entire PTC Working Group five railroad cost of $120 per day, and a total times over the course of twelve days. national cost for all ten small railroads acquisition would be $2,200,000 ($1,980,000 + $219,000 + $1,000). This PTC Working Group established a of $600 per day and an annual cost of Individual railroads affected would task force to focus on issues specific to $43,800 per railroad and a total for all either face an initial cost of $220,000 to short line and regional railroads. The small railroads of $219,000 per year. equip locomotives, and an annual cost discussions yielded many insights and FRA estimates that only five railroads of $33,000 to maintain the PTC systems this proposed rule takes into account will be affected by this provision, and on those locomotives, or would face a the concerns expressed by small that they will be railroads not affected per railroad cost of $43,800 per year to railroads during the deliberations. by the requirement to equip slow at diamond crossings. C. Paperwork Reduction Act locomotives, because railroads with equipped locomotives could simply use 5. Identification of Relevant Duplicative, The information collection the PTC system and avoid the Overlapping, or Conflicting Federal requirements in this proposed rule have requirement to slow down. This Rules been submitted for approval to the analysis yields a total of 65 affected There are no Federal rules that would Office of Management and Budget small entities that may be impacted by duplicate, overlap, or conflict with this (OMB) under the Paperwork Reduction implementation of the proposed rule. proposed rule. Act of 1995, 44 U.S.C. 3501 et seq. The sections that contain the new FRA requests comments regarding this 6. Alternatives Considered estimate of small entities potentially information collection requirements and impacted. FRA is unaware of any significant the estimated time to fulfill each alternatives that would meet the intent requirement are as follows:

Average time CFR section Respondent universe Total annual responses per response Total annual (hours) burden hours

234.275—Processor-Based Systems—Deviations 20 Railroads ...... 25 letters ...... 4 100 from Product Safety Plan (PSP)—Letters. 236.18—Software Mgmt Control Plan ...... 184 Railroads ...... 184 plans ...... 2,150 395,600 —Updates to Software Mgmt. Control Plan ...... 90 Railroads ...... 20 updates ...... 1.50 30 236.905—Updates to RSPP ...... 78 Railroads ...... 6 plans ...... 135 810 —Response to Request For Additional Info ...... 78 Railroads ...... 1 updated doc ...... 400 400

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Average time CFR section Respondent universe Total annual responses per response Total annual (hours) burden hours

—Request for FRA Approval of RSPP Modifica- 78 Railroads ...... 1 request/modified RSPP 400 400 tion. 236.907—Product Safety Plan (PSP)—Dev ...... 5 Railroads ...... 5 plans ...... 6,400 32,000 236.909—Minimum Performance Standard. —Petitions For Review and Approval ...... 5 Railroads ...... 2 petitions/PSP ...... 19,200 38,400 —Supporting Sensitivity Analysis ...... 5 Railroads ...... 5 analyses ...... 160 800 236.913—Notification/Submission to FRA of Joint 6 Railroads ...... 1 joint plan ...... 25,600 25,600 Product Safety Plan (PSP). —Petitions for Approval/Informational Filings ...... 6 Railroads ...... 6 petitions ...... 1,928 11,568 —Responses to FRA Request For Further Info. 6 Railroads ...... 2 documents ...... 800 1,600 After Informational Filing. —Responses to FRA Request For Further Info. 6 Railroads ...... 6 documents ...... 16 96 After Agency Receipt of Notice of Product De- velopment. —Consultations ...... 6 Railroads ...... 6 consults ...... 120 720 —Petitions for Final Approval ...... 6 Railroads ...... 6 petitions ...... 16 96 —Comments to FRA by Interested Parties ...... Public/RRs ...... 7 comments ...... 240 1,680 —Third Party Assessments of PSP ...... 6 Railroads ...... 1 assessment ...... 104,000 104,000 —Amendments to PSP ...... 6 Railroads ...... 15 amendments ...... 160 2,400 —Field Testing of Product—Info. Filings ...... 6 Railroads ...... 6 documents ...... 3,200 19,200 236.917—Retention of Records. —Results of tests/inspections specified in PSP .. 6 Railroads ...... 3 documents/records ...... 160,000; 360,000 160,000; 40,000 —Report to FRA of Inconsistencies with fre- 6 Railroads ...... 1 report ...... 104 104 quency of safety-relevant hazards in PSP. 236.919—Operations & Maintenance Man. —Updates to O & M Manual ...... 6 Railroads ...... 6 updated docs ...... 40 240 —Plans For Proper Maintenance, Repair, In- 6 Railroads ...... 6 plans ...... 53,335 320,010 spection of Safety-Critical Products. —Hardware/Software/Firmware Revisions ...... 6 Railroads ...... 6 revisions ...... 6,440 38,640 236.921—Training Programs: Development ...... 6 Railroads ...... 6 Tr. Programs ...... 400 2,400 —Training of Signalmen & Dispatchers ...... 6 Railroads ...... 300 signalmen; 20 dis- 40; 20 12,400 patchers. 236.923—Task Analysis/Basic Requirements: Nec- 6 railroads ...... 6 documents ...... 720 4,320 essary Documents. —Records ...... 6 railroads ...... 350 records ...... 1 10 58 SUBPART I—NEW REQUIREMENTS 236.1001—RR Development of More Stringent Rules 30 railroads ...... 3 rules ...... 80 240 Re: PTC Performance Stds. 236.1005—Requirements for PTC Systems. —Temporary Rerouting: Emergency Requests ... 30 railroads ...... 50 requests ...... 8 400 —Written/Telephonic Notification to FRA Re- 30 railroads ...... 50 notifications ...... 2 100 gional Administrator. —Temporary Rerouting Requests Due to Track 30 railroads ...... 95 requests ...... 8 760 Maintenance. —Temporary Rerouting Requests That Exceed 30 railroads ...... 800 requests ...... 8 6,400 30 Days. 236.1006—Requirements for Equipping Locomotives Operating in PTC Territory. —Reports of Movements in Excess of 20 Miles/ 35 railroads ...... 35 reports ...... 16 560 RR Progress on PTC Locomotives. 236.1007—Additional Requirements for High Speed Service. —Required HSR–125 Documents with approved 30 railroads ...... 11 documents ...... 3,200 35,200 PTCSP. —Requests to Use Foreign Service Data ...... 30 railroads ...... 2 requests ...... 8,000 16,000 —PTC Railroads Conducting Operations at More 30 railroads ...... 11 documents ...... 4,000 44,000 than 150 MPH with HSR–125 Documents. 236.1009–Procedural Requirements. —PTC Implementation Plans (PTCIP) ...... 30 Railroads ...... 30 plans ...... 535 16,050 —Host Railroads Filing PTCIP or Request for 30 Railroads ...... 1 PCTIP; 15 RFAs ...... 535; 320 5,335 Amendment (RFAs). —Notification of Failure to File Joint PTCIP ...... 30 Railroads ...... 30 notifications ...... 32 960 —Comprehensive List of Issues Causing Non- 30 Railroads ...... 30 lists ...... 80 2,400 Agreement. —Conferences to Develop Mutually Acceptable 30 Railroads ...... 3 conf. calls ...... 1 30 2 PCTIP. —Type Approval ...... 30 Railroads ...... 10 Type Appr...... 8 80 —PTC Development Plans Requesting Type Ap- 30 Railroads ...... 20 Ltr. + 20 App. + 5 8; 8; 6,400 32,320 proval. Plans.

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Average time CFR section Respondent universe Total annual responses per response Total annual (hours) burden hours

—PTCIP/PTCDP/PTCSP Plan Contents—Docu- 30 Railroads ...... 1 document ...... 8,000 8,000 ments Translated into English. —Requests for Confidentiality ...... 30 Railroads ...... 30 ltrs; 30 docs ...... 8; 800 24,240 —Field Test Plans/Independent Assessments— 30 Railroads ...... 150 field tests; 2 assess- 800 121,600 Req. by FRA. ments. —FRA Access: Interviews with RR PTC Per- 30 Railroads ...... 60 interviews ...... 1 30 30 sonnel. 236.1011—PTCIP Requirements—Review and Pub- 7 Interested Groups ...... 21 reviews + 60 com- 143; 8 3,483 lic Comments on PTCIPs, PTCDPs, and PTCSPs. ments. 236.1015—PTCSP Content Requirements & PTC System Certification. —Non-Vital Overlay ...... 30 Railroads ...... 2 PTCSPs ...... 16,000 32,000 —Vital Overlay ...... 30 Railroads ...... 16 PTCSPs ...... 22,400 358,400 —Stand Alone ...... 30 Railroads ...... 10 PTCSPs ...... 32,000 320,000 —Mixed Systems—Conference with FRA re- 30 Railroads ...... 3 conferences ...... 32 96 garding Case/Analysis. —Mixed Sys. PTCSPs (incl. safety case) ...... 30 Railroads ...... 2 PTCSPs ...... 28,800 57,600 —FRA Request for Additional PTCSP Data ...... 30 Railroads ...... 15 documents ...... 3,200 48,000 —PTCSPs Applying to Replace Existing Cer- 30 Railroads ...... 15 PTCSPs ...... 3,200 48,000 tified PTC Systems. —Non-Quantitative Risk Assessments Supplied 30 Railroads ...... 15 assessments ...... 3,200 48,000 to FRA. 236.1017—PTCSP Supported by Independent Third 30 Railroads ...... 1 assessment ...... 8,000 8,000 Party Assessment. —Written Requests to FRA to Confirm Entity 30 Railroads ...... 1 request ...... 8 8 Independence. —Provision of Additional Information After FRA 30 Railroads ...... 1 document ...... 160 160 Request. —Independent Third Party Assessment: Waiver 30 Railroads ...... 1 request ...... 160 160 Requests. —RR Request for FRA to Accept Foreign Rail- 30 Railroads ...... 1 request ...... 32 32 road Regulator Certified Info. 236.1019—Main Line Track Exceptions. —Submission of Main Line Track Exclusion 30 Railroads ...... 30 MTEAs ...... 160 4,800 Addendums (MTEAs). —Passenger Terminal Exception—MTEAs ...... 30 Railroads ...... 23 MTEAs ...... 160 3,680 —Limited Operation Exception—Risk Mitigation 30 Railroads ...... 30 plans ...... 160 4,800 Plans. —Temporal Separation Procedures ...... 30 Railroads ...... 15 procedures ...... 160 2,400 236.1021—Discontinuances, Material Modifications, 30 Railroads ...... 15 RFAs ...... 80 1,200 Amendments—Requests to Amend (RFA) PTCIP, PTCDP or PTCSP. —Review and Public Comment on RFA ...... 7 Interested Groups ...... 7 reviews + 20 comments 3; 16 341 236.1023—PTC Errors and Malfunctions—Notifica- 30 Railroads ...... 60 notifications ...... 32 1,920 tions. —Notifications of PTC Defect That Decreases 30 Railroads ...... 150 notifications ...... 16 2,400 Safety. —Notification Updates of PTC Defect ...... 30 Railroads ...... 150 updates ...... 16 2,400 —PTC Product Vendor Lists (PTCPVL) ...... 30 Railroads ...... 30 lists ...... 8 240 —RR Procedures Upon Notification of PTC Sys- 30 Railroads ...... 30 procedures ...... 16 480 tem Safety-Critical Upgrades, Rev., Etc. —Manufacturer’s Report of Investigation of PTC 5 System Suppliers ...... 5 reports ...... 400 2,000 Defect. 236.1029—Report of On-Board Lead Locomotive 30 Railroads ...... 960 reports ...... 96 92,160 PTC Device Failure. 236.1031—Previously Approved PTC Systems. —Request for Expedited Certification (REC) for 30 Railroads ...... 3 REC Letters ...... 160 480 PTC System. —Requests for Grandfathering on PTCSPs ...... 30 Railroads ...... 3 requests ...... 1,600 4,800 236.1035—Field Testing Requirements ...... 30 railroads ...... 150 field test plans ...... 800 120,000 236.1037—Records Retention. —Results of Tests in PTCSP and PTCDP ...... 30 railroads ...... 960 records ...... 4 3,840 —PTC Service Contractors Training Records ..... 30 Railroads ...... 9,000 records ...... 1 30 4,500 —Reports of Safety Relevant Hazards Exceed- 30 Railroads ...... 4 reports ...... 8 32 ing Those in PTCSP and PTCDP. —Final Report of Resolution of Inconsistency .... 30 Railroads ...... 4 final reports ...... 160 640 236.1039—Operations & Maintenance Manual 30 railroads ...... 30 manuals ...... 250 7,500 (OMM): Development. —Positive Identification of Safety-critical Compo- 30 railroads ...... 75,000 i.d. components ... 1 75,000 nents. —Designated RR Officers in OMM regarding 30 railroads ...... 60 designations ...... 2 120 PTC issues.

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Average time CFR section Respondent universe Total annual responses per response Total annual (hours) burden hours

236.1041—PTC Training Programs ...... 30 Railroads ...... 30 programs ...... 400 12,000 236.1043—Task Analysis/Basic Requirements: Train- 30 railroads ...... 6 evaluations ...... 720 4,320 ing Evaluations. —Training Records ...... 30 railroads ...... 350 records ...... 1 10 58 236.1045—Training Specific to Office Control Per- 30 railroads ...... 20 trained employees ...... 20 400 sonnel. 236.1047—Training Specific to Loc. Engineers & Other Operating Personnel. —PTC Conductor Training ...... 30 railroads ...... 5,000 trained conductors 3 15,000 1 In minutes.

All estimates include the time for control number, if required. FRA and local officials in the process of reviewing instructions; searching intends to obtain current OMB control developing the regulation. existing data sources; gathering or numbers for any new information FRA has determined that this maintaining the needed data; and collection requirements resulting from proposed rule would not have reviewing the information. Pursuant to this rulemaking action prior to the substantial direct effects on the States, 44 U.S.C. 3506(c)(2)(B), FRA solicits effective date of the final rule. The OMB on the relationship between the national comments concerning: Whether these control number, when assigned, will be government and the States, nor on the information collection requirements are announced by separate notice in the distribution of power and necessary for the proper performance of Federal Register. responsibilities among the various the functions of FRA, including whether levels of government. In addition, FRA D. Federalism Implications the information has practical utility; the has determined that this proposed rule, accuracy of FRA’s estimates of the This proposed rule has been analyzed which is required by the Railroad Safety burden of the information collection in accordance with the principles and Improvement Act of 2008, would not requirements; the quality, utility, and criteria contained in Executive Order impose any direct compliance costs on clarity of the information to be 13132, ‘‘Federalism’’ (64 FR 43255, State and local governments. Therefore, collected; and whether the burden of Aug. 4, 1999). the consultation and funding collection of information on those who As discussed earlier in the preamble, requirements of Executive Order 13132 are to respond, including through the this proposed rule would provide do not apply. use of automated collection techniques regulatory guidance and performance However, this proposed rule would or other forms of information standards for the development, testing, have preemptive effect. Section 20106 of technology, may be minimized. For implementation, and use of Positive Title 49 of the United States Code information or a copy of the paperwork Train Control (PTC) systems for provides that States may not adopt or package submitted to OMB, contact Mr. railroads mandated by the Railroad continue in effect any law, regulation, or Robert Brogan, Information Clearance Safety Improvement Act of 2008. order related to railroad safety or Officer, at 202–493–6292, or Ms. Nakia Executive Order 13132 requires FRA security that covers the subject matter of Jackson at 202–493–6073. to develop an accountable process to a regulation prescribed or order issued Organizations and individuals ensure ‘‘meaningful and timely input by by the Secretary of Transportation (with desiring to submit comments on the State and local officials in the respect to railroad safety matters) or the collection of information requirements development of regulatory policies that Secretary of Homeland Security (with should direct them to Mr. Robert Brogan have Federalism implications.’’ Policies respect to railroad security matters), or Ms. Nakia Jackson, Federal Railroad that have ‘‘Federalism implications’’ are except when the State law, regulation, Administration, 1200 New Jersey defined in the Executive Order to or order qualifies under the local safety Avenue, SE., 3rd Floor, Washington, DC include regulations that have or security exception to section 20106. 20590. Comments may also be ‘‘substantial direct effects on the States, The intent of § 20106 is to promote submitted via e-mail to Mr. Brogan or on the relationship between the national national uniformity in railroad safety Ms. Jackson at the following address: government and the States, or on the and security standards. 49 U.S.C. [email protected]; distribution of power and 20106(a)(1). Thus, subject to a limited [email protected]. responsibilities among the various exception for essentially local safety or OMB is required to make a decision levels of government.’’ Under Executive security hazards, this proposed rule concerning the collection of information Order 13132, the agency may not issue would establish a uniform Federal requirements contained in this proposed a regulation with Federalism safety standard that must be met, and rule between 30 and 60 days after implications that imposes substantial State requirements covering the same publication of this document in the direct compliance costs and that is not subject matter would be displaced, Federal Register. Therefore, a comment required by statute, unless the Federal whether those State requirements are in to OMB is best assured of having its full government provides the funds the form of a State law, regulation, or effect if OMB receives it within 30 days necessary to pay the direct compliance order. of publication. The final rule will costs incurred by State and local In sum, FRA has analyzed this respond to any OMB or public governments, or the agency consults proposed rule in accordance with the comments on the information collection with State and local government principles and criteria contained in requirements contained in this proposal. officials early in the process of Executive Order 13132. As explained FRA is not authorized to impose a developing the proposed regulation. above, FRA has determined that this penalty on persons for violating Where a regulation has Federalism proposed rule has no Federalism information collection requirements implications and preempts State law, implications, other than the preemption which do not display a current OMB the agency seeks to consult with State of State laws covering the subject matter

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of this proposed rule, which occurs by paperwork to prove compliance with VIII. The Rule operation of law under 49 U.S.C. 20106 RSIA08. In consideration of the foregoing, FRA whenever FRA issues a rule or order. G. Energy Impact proposes to amend chapter II, subtitle B Accordingly, FRA has determined that of title 49, Code of Federal Regulations preparation of a Federalism summary Executive Order 13211 requires as follows: impact statement for this proposed rule Federal agencies to prepare a Statement of Energy Effects for any ‘‘significant is not required. PART 229—[AMENDED] energy action.’’ 66 FR 28355 (May 22, E. Environmental Impact 2001). Under the Executive Order, a 1. The authority citation for part 229 FRA has evaluated this proposed rule ‘‘significant energy action’’ is defined as continues to read as follows: any action by an agency (normally in accordance with its ‘‘Procedures for Authority: 49 U.S.C. 20102–03, 20107, Considering Environmental Impacts’’ published in the Federal Register) that 20133, 20137–38, 20143, 20701–03, 21301– (‘‘FRA’s Procedures’’) (64 FR 28545, promulgates or is expected to lead to the 02, 21304; 28 U.S.C. 2401, note; and 49 CFR May 26, 1999) as required by the promulgation of a final rule or 1.49(c), (m). regulation, including notices of inquiry, National Environmental Policy Act (42 2. Section 229.135 is amended by U.S.C. 4321 et seq.), other advance notices of proposed rulemaking, and notices of proposed revising paragraphs (b)(3)(xxv) and environmental statutes, Executive (b)(4)(xxi) to read as follows: Orders, and related regulatory rulemaking: (1)(i) That is a significant requirements. FRA has determined that regulatory action under Executive Order § 229.135 Event Recorders. this proposed rule is not a major FRA 12866 or any successor order, and (ii) is likely to have a significant adverse effect * * * * * action (requiring the preparation of an (b) * * * environmental impact statement or on the supply, distribution, or use of energy; or (2) that is designated by the (3) * * * environmental assessment) because it is (xxv) Safety-critical train control data categorically excluded from detailed Administrator of the Office of Information and Regulatory Affairs as a routed to the locomotive engineer’s environmental review pursuant to significant energy action. FRA has display with which the engineer is section 4(c)(20) of FRA’s Procedures. In evaluated this proposed rule in required to comply, specifically accordance with section 4(c) and (e) of accordance with Executive Order 13211. including text messages conveying FRA’s Procedures, the agency has FRA has determined that this proposed mandatory directives and maximum further concluded that no extraordinary rule is not likely to have a significant authorized speed. The format, content, circumstances exist with respect to this adverse effect on the supply, and proposed duration for retention of regulation that might trigger the need for distribution, or use of energy. such data shall be specified in the a more detailed environmental review. Consequently, FRA has determined that product safety plan or PTC Safety Plan As a result, FRA finds that this this regulatory action is not a submitted for the train control system proposed rule is not a major Federal ‘‘significant regulatory action’’ within under subparts H or I, respectively, of action significantly affecting the quality the meaning of Executive Order 13211. part 236 of this chapter, subject to FRA of the human environment. approval under this paragraph. If it can H. Privacy Act F. Unfunded Mandates Reform Act of be calibrated against other data required 1995 FRA wishes to inform all interested by this part, such train control data may, parties that anyone is able to search the at the election of the railroad, be The Unfunded Mandates Reform Act electronic form of any written retained in a separate certified of 1995 (Pub. L. 104–4, 2 U.S.C. 1531) communications and comments crashworthy memory module. requires agencies to prepare a written received into any of our dockets by the (4) * * * assessment of the costs, benefits, and name of the individual submitting the (xxi) Safety-critical train control data other effects of proposed or final rules document (or signing the document), if routed to the locomotive engineer’s that include a Federal mandate likely to submitted on behalf of an association, display with which the engineer is result in the expenditures by State, local business, labor union, etc.). Interested required to comply, specifically or tribal governments, in the aggregate, parties may also review DOT’s complete including text messages conveying or by the private sector, of more than Privacy Act Statement in the Federal mandatory directives and maximum $100 million annually (adjusted Register published on April 11, 2000 authorized speed. The format, content, annually for inflation with base year of (65 FR 19477) or visit http:// and proposed duration for retention of 1995). The value equivalent of $100 www.regulations.gov. such data shall be specified in the million in CY 195, adjusted annually for product safety plan or PTC Safety Plan inflation to CY 2008 levels by the List of Subjects submitted for the train control system Consumer Price Index for All Urban 49 CFR Part 234 under subparts H or I, respectively, of Consumers (CPI–U) is $141.3 million. Highway safety, Penalties, Railroad part 236 of this chapter, subject to FRA The assessment may be included in safety, Reporting and recordkeeping approval under this paragraph. If it can conjunction with other assessments, as requirements. be calibrated against other data required it is here. by this part, such train control data may, 49 CFR Part 235 The proposed rule itself would not at the election of the railroad, be create an unfunded mandate in excess Administrative practice and retained in a separate certified of the threshold amount. The bulk of procedure, Penalties, Railroad safety, crashworthy memory module. unfunded mandate for implementation Reporting and recordkeeping of PTC is attributable to RSIA08. The requirements. PART 234—[AMENDED] effects are discussed earlier in this document in the Regulatory Impact 49 CFR Part 236 3. The authority citation for part 234 Analysis. Any unfunded mandates Penalties, Positive Train Control, continues to read as follows: attributable to the proposed rulemaking Railroad safety, Reporting and Authority: 49 U.S.C. 20103, 20107; 28 would pertain to the costs of filing recordkeeping requirements. U.S.C. 2461, note; and 49 CFR 1.49.

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4. In § 234.275 revise paragraphs 6. In § 235.7, add paragraph (a)(5) to stop, or automatic train control system (b)(1), (b)(2), (c), and (f) to read as read as follows: complying with the provisions of this follows: part shall be installed, unless an FRA § 235.7 Changes not requiring filing of approved PTC system meeting the application. § 234.275 Processor-based systems. requirements of this part for the subject * * * * * (a) * * * speed and other operating conditions, is (b) Use of performance standard (5) Removal of an intermittent installed. authorized or required. (1) In lieu of automatic train stop system in (2) Subpart I of this part sets forth compliance with the requirements of conjunction with the implementation of requirements for installation of PTC this subpart, a railroad may elect to a positive train control system approved systems under conditions specified in qualify an existing processor-based by FRA under subpart I of part 236. that subpart. product under part 236, subparts H or * * * * * (e) Nothing in this section authorizes I, of this chapter. the discontinuance of a block signal (2) Highway-rail grade crossing PART 236—[AMENDED] system, interlocking, traffic control warning systems, subsystems, or 7. The authority citation for Part 236 system, automatic train control or train components that are processor-based is revised to read as follows: stop system, cab signal system, or PTC and that are first placed in service after system without approval by the FRA June 6, 2005, which contain new or Authority: 49 U.S.C. 20102–20103, 20107, under part 235 of this title. However, a novel technology, or which provide 20133, 20141, 20157, 20301–20303, 20306, railroad may apply for approval of 21301–21302, 21304; 28 U.S.C. 2461, note; safety-critical data to a railroad signal or and 49 CFR 1.49. discontinuance or material modification train control system that is governed by of a signal or train control system in * * * * * part 236, subpart H or I, of this chapter, connection with a request for approval 8. Section 236.0 is amended by shall also comply with those of a Positive Train Control Development revising paragraphs (c) through (e) to requirements. New or novel technology Plan (PTCDP) or Positive Train Control read as follows: refers to a technology not previously Safety Plan (PTCSP) as provided in recognized for use as of March 7, 2005. § 236.0 Applicability, minimum subpart I of this part. * * * * * requirements, and penalties. * * * * * (c) Plan justifications. The Product * * * * * 9. Section 236.909 is amended by Safety Plan in accordance with 49 CFR (c)(1) Prior to [insert date 24 months adding a new sentence directly after the 236.903—or a PTC Development Plan from publication of the final rule in the first sentence of paragraph (e)(1) and by (PTCDP) and PTC Safety Plan (PTCSP) Federal Register], where a passenger revising paragraph (e)(2)(i) to read as required to be filed in accordance with train operates at a speed of 60 or more follows: miles per hour, or a freight train 49 CFR 236.1011 and 236.1013—must § 236.909 Minimum performance explain how the performance objective operates at a speed of 50 or more miles standards. sought to be addressed by each of the per hour— * * * * * particular requiremnts of this subpart is (i) A block signal system complying (e) * * * met by the product, why the objective with the provisions of this part shall be (1) * * * The total risk assessment is not relevant to the product’s design, installed; or must have a supporting sensitivity or how the safety requirements are (ii) A manual block system shall be analysis. The analysis must confirm that satisfied using alternative means. placed permanently in effect that shall the risk metrics of the system are not Deviation from those particular conform to the following conditions: negatively affected by sensitivity requirements is authorized if an (A) A train shall not be admitted, analysis input parameters including, for adequate explanation is provided, except for emergency purposes, to a example, component failure rates, making reference to relevant elements of block occupied by another train unless human factor error rates, and variations the applicable plan, and if the product both trains are operating at restricted in train traffic affecting exposure. The satisfies the performance standard set speed. sensitivity analysis must document the forth in § 236.909 of this chapter. (See (B) A freight train, including a work sensitivity to worst case failure § 236.907(a)(14) of this chapter.) train, may be authorized to follow a scenarios. * * * freight train, including a work train, into * * * * * (2) * * * (f) Software management control for a block but the following train must (i) In all cases exposure must be certain systems not subject to a proceed at restricted speed. expressed as total train miles traveled performance standard. Any processor- (2) On and after [insert date 24 per year over the relevant railroad based system, subsystem, or component months from publication of the final infrastructure. Consequences must subject to this part, which is not subject rule in the Federal Register], where a identify the total cost, including to the requirements of part 236, subpart passenger train is permitted to operate fatalities, injuries, property damage, and H or I, of this chapter but which at a speed of 60 or more miles per hour, other incidental costs, such as potential provides safety-critical data to a signal or a freight train is permitted to operate consequences of hazardous materials or train control system shall be included at a speed of 50 or more miles per hour, involvement, resulting from preventable in the software management control a block signal system complying with accidents associated with the plan requirements as specified in the provisions of this part shall be function(s) performed by the system. § 236.18 of this chapter. installed, unless an FRA approved PTC system meeting the requirements of this * * * * * 10. Add a new subpart I to part 236 PART 235—[AMENDED] part for the subject speed and other operating conditions, is installed. to read as follows: 5. The authority citation for part 235 (d)(1) Prior to December 31, 2015, Subpart I—Positive Train Control Systems continues to read as follows: where any train is permitted to operate Sec. Authority: 49 U.S.C. 20103, 20107; 28 at a speed of 80 or more miles per hour, 236.1001 Purpose and scope. U.S.C. 2461, note; and 49 CFR 1.49. an automatic cab signal, automatic train 236.1003 Definitions.

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236.1005 Requirements for Positive Train under § 236.1015 provides for such an PTC means positive train control as Control systems. exception per § 236.1013. further described in § 236.1005. 236.1006 Equipping locomotives operating PTCDP means a PTC Development in PTC territory. § 236.1003 Definitions. Plan as further described in § 236.1013. 236.1007 Additional requirements for high- (a) Definitions contained in subparts PTCIP means a PTC Implementation speed service. G and H of this part apply equally to 236.1009 Procedural requirements. Plan as required under 49 U.S.C. 20157 this subpart. and further described in § 236.1011. 236.1011 PTCIP content requirements. (b) The following definitions apply to 236.1013 PTCDP content requirements and PTC railroad means each Class I Type Approval. terms used only in this subpart unless railroad and each entity providing 236.1015 PTCSP content requirements and otherwise stated: regularly scheduled intercity or PTC System Certification. After-arrival mandatory directive commuter rail passenger transportation 236.1017 Independent third party means any mandatory directive that required to implement or operate a PTC Verification and Validation. makes the authority for train movement system. 236.1019 Main line track exceptions. contingent upon the arrival of another 236.1021 Discontinuances, material PTCSP means a PTC Safety Plan as train. further described in § 236.1015. modifications, and amendments. Associate Administrator means the PTCPVL means a PTC Product Vendor 236.1023 Errors and malfunctions. FRA Associate Administrator for List as further described in § 236.1023. 236.1027 Exclusions. Railroad Safety and Chief Safety Officer. 236.1029 PTC system use and en route PTC System Certification means Class I railroad means a railroad failures. which in the last year for which certification as required under 49 U.S.C. 236.1031 Previously approved PTC systems 20157 and further described in 236.1033 Communications and security revenues were reported exceeded the threshold established under regulations §§ 236.1009 and 236.1015. requirements. Request for Amendment (‘‘RFA’’) 236.1035 Field testing requirements. of the Surface Transportation Board (49 means a request for an amendment of a 236.1037 Records retention. CFR part 1201.1–1 (2008)). 236.1039 Operations and Maintenance Cleartext means the un-encrypted text plan or system made by a PTC railroad Manual. in its original, human readable, form. It in accordance with § 236.1021. 236.1041 Training and qualification is the input of an encryption or encipher Request for Expedited Certification program, general. process, and the output of an decryption (‘‘REC’’) means, as further described in 236.1043 Task analysis and basic or decipher process. § 236.1031, a request by a railroad to requirements. Host railroad means a railroad that receive expedited consideration for PTC 236.1045 Training specific to office control System Certification. personnel. has effective operating control over a segment of track. Restricted speed means, Speed, 236.1047 Training specific to locomotive restricted, as defined in subpart G of this engineers and other operating personnel. Interoperability means the ability of a 236.1049 Training specific to roadway controlling locomotive to communicate part. workers. with and respond to the PTC railroad’s Safe State means a system positive train control system, including configuration that cannot cause harm Subpart I—Positive Train Control uninterrupted movements over property when the system fails. Systems boundaries. Segment of track means any part of Limited operations means operations the railroad where a train operates. § 236.1001 Purpose and scope. on main line track that have limited or Temporal separation means the (a) This subpart prescribes minimum, no freight operations and are approved process or processes in place to assure performance-based safety standards for to be excepted from this subpart’s PTC that limited passenger and freight PTC systems required by 49 U.S.C. system implementation and operation operations do not operate on any 20157, this subpart, or an FRA order requirements in accordance with segment of shared track during the same including requirements to ensure that § 236.1019(c); period and as further defined under the development, functionality, Main line means, except as provided § 236.1019. architecture, installation, in § 236.1019 or where all trains are Tenant railroad means a railroad, implementation, inspection, testing, limited to restricted speed within a yard other than a host railroad, operating on operation, maintenance, repair, and or terminal area or on auxiliary or track upon which a PTC system is modification of those PTC systems will industry tracks, a segment or route of required. achieve and maintain an acceptable railroad tracks: Track segment means segment of level of safety. This subpart also (1) of a Class I railroad, as track. prescribes standards to ensure that documented in current timetables filed Type Approval means a number personnel working with, and affected by the Class I railroad with the FRA assigned to a particular PTC system by, safety-critical PTC system related under § 217.7 of this title, over which indicating FRA agreement that the PTC products receive appropriate training 5,000,000 or more gross tons of railroad system could fulfill the requirements of and testing. traffic is transported annually; or this subpart. (b) Each railroad may prescribe (2) used for regularly scheduled Train means one or more locomotives, additional or more stringent rules, and intercity or commuter passenger service, coupled with or without cars. other special instructions, that are not as defined in 49 U.S.C. 24102, or both. inconsistent with this subpart. Tourist, scenic, historic, or excursion § 236.1005 Requirements for Positive Train (c) This subpart does not exempt a operations as defined in part 238 of this Control systems. railroad from compliance with any chapter are not considered intercity or (a) PTC system requirements. Each requirement of subpart A through H of commuter passenger service for PTC system required to be installed this part or parts 233, 234, and 235 of purposes of this part. under this subpart shall: this chapter, unless: Main line track exclusion addendum (1) Reliably and functionally prevent: (1) it is otherwise explicitly excepted (‘‘MTEA’’) means the document (i) Train-to-train collisions—including by this subpart; or submitted under §§ 236.1011 and collisions between trains operating over (2) the applicable PTCSP, as defined 236.1019 requesting to designate track at-grade crossings of rail lines—where under § 236.1003 and approved by FRA as other than main line. the risk associated with such collisions

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is unacceptable in accordance with the level of safety as specified in an FRA following table or alternative approved PTCSP: arrangements providing an equivalent

Crossing type Max speed * Protection required

Interlocking—one or more PTC routes ≤40 miles per hour Interlocking signal arrangement in accordance with the requirements of sub- intersecting with one or more non-PTC parts A–G of this part and PTC enforced stop on PTC routes. routes. Interlocking—one or more PTC routes >40 miles per hour Interlocking signal arrangement in accordance with the requirements of sub- intersecting with one or more non-PTC parts A–G of this part, PTC enforced stop on all PTC routes, and either the routes. use of other than full PTC technology that provides positive stop enforce- ment or a split-point derail incorporated into the signal system accompanied by 20 miles per hour maximum allowable speed on the approach of any intersecting non-PTC route. Interlocking—all PTC routes intersecting Any speed ...... Interlocking signal arrangements in accordance with the requirements of sub- parts A–G of this part, and PTC enforced stop on all routes.

(ii) Overspeed derailments, including (v) A hazard detector integrated into with § 236.1021. The following criteria derailments related to railroad civil the PTC system that is required by apply: engineering speed restrictions, slow paragraph (c) of this section, or (i) To the extent rail traffic exceeds 5 orders, and excessive speeds over otherwise provided for in the applicable million gross tons in any year after switches and through turnouts; PTCSP, detects an unsafe condition or 2008, the tonnage shall be calculated for (iii) Incursions into established work transmits an alarm; and the preceding two calendar years in zone limits without first receiving (5) Limit the speed of passenger and determining whether a PTCIP or its appropriate authority and verification freight trains to 59 miles per hour and amendment is required. from the dispatcher or roadway worker 49 miles per hour, respectively, in areas (ii) To the extent PIH traffic is carried in charge, as applicable and in without broken rail detection or on a line segment as a result of a request accordance with part 214 of this equivalent safeguards. for rail service or rerouting warranted chapter; and (b) PTC system installation. (1) After under part 172 of this title, and if the (iv) The movement of a train through December 31, 2015, a PTC system line carries in excess of 5 million gross a main line switch in the improper certified under § 236.1015 shall be tons of rail traffic as determined under position as further described in installed by the host railroad on each: this paragraph. This does not apply paragraph (e) of this section. (i) Main line over which is when temporary rerouting is authorized (2) Include safety-critical integration transported any quantity of poison- or in accordance with paragraph (g) of this of all authorities and indications of a toxic-by-inhalation (PIH) hazardous section. (iii) Once a railroad is notified by FRA wayside or cab signal system, or other materials, as defined in §§ 171.8, that its RFA filed in accordance with similar appliance, method, device, or 173.115 and 173.132 of this title; this paragraph has been approved, the system of equivalent safety, in a manner (ii) Main line used for regularly railroad shall equip the line with the by which the PTC system shall provide provided intercity or commuter applicable PTC system by December 31, associated warning and enforcement to passenger service, except as provided in 2015, or within 24 months, whichever is the extent, and except as, described and § 236.1019; and (iii) Additional line of railroad as later. justified in the FRA approved PTCDP or required by the applicable FRA- (4) If a railroad has filed, and FRA has PTCSP, as applicable; approved PTCSP, this subpart, or an approved, its initial PTCIP, a railroad (3) As applicable, perform the FRA order requiring installation of a may file an RFA to request review of the additional functions specified in this PTC system. requirement to install PTC on a line subpart; (2) For the purposes of paragraph segment where a PTC system is (4) Provide an appropriate warning or (b)(1)(i) of this section, the information required, but has not yet been installed, enforcement when: necessary to determine whether a Class based upon changes in rail traffic such (i) A derail or switch protecting access I railroad’s track segment shall be as reductions in total traffic volume or to the main line required by § 236.1007, equipped with a PTC system shall be cessation of local PIH service. Any such or otherwise provided for in the determined and reported as follows: RFA shall be accompanied by estimated applicable PTCSP, is not in its derailing (i) The traffic density threshold of 5 traffic projections for the next 5 years or protecting position, respectively; million gross tons shall be based upon (e.g., as a result of planned rerouting, (ii) An operational restriction is calendar year 2008 gross tonnage. coordinations, location of new business issued associated with a highway-rail (ii) The presence or absence of any on the line). Where the request involves grade crossing warning system quantity of PIH hazardous materials prior or planned rerouting of PIH traffic, malfunction as required by §§ 234.105, shall be determined by whether one or the railroad must provide a supporting 234.106, or 234.107; more cars containing such product(s) analysis that takes into consideration (iii) An after-arrival mandatory was transported over the line segment in the requirements of subpart I, part 172 directive has been issued and the train calendar year 2008. of this title, including any railroad- or trains to be waited on has not yet (3) To the extent increases in freight specific and interline routing impacts. passed the location of the receiving rail traffic occur subsequent to calendar FRA may approve the RFA if FRA finds train; year 2008 that might affect the that it would be consistent with safety (iv) Any movable bridge within the requirement to install a PTC system on and in the public interest. route ahead is not in a position to allow any line not yet equipped, the railroad (5) After December 31, 2015, no permissive indication for a train shall seek to amend its PTCIP by intercity or commuter rail passenger movement pursuant to § 236.312; and promptly filing an RFA in accordance service shall continue or commence

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until a PTC system certified under this recorder requirements contained in circuit controller or functionally subpart has been installed and made § 229.135 of this chapter. equivalent device, for each switch, operative. (e) Switch position. The following movable-point frog, or derail in the (c) Hazard detectors. (1) All hazard requirements apply with respect to route governed. Circuits or electronic detectors integrated into a signal or train determining proper switch position equivalent shall be arranged so that any control system on or after October 16, under this section. When a main line movement authorities can only be 2008, shall be integrated into PTC switch position is unknown or provided when each switch, movable- systems required by this subpart; and improperly aligned for a train’s route in point frog, or derail in the route their warnings shall be appropriately advance of the train’s movement, the governed is in proper position, and shall and timely enforced as described in the PTC system will provide warning of the be in accordance with subparts A applicable PTCSP. condition associated with the following through G of this part unless it is (2) The applicable PTCSP may enforcement: otherwise provided in a PTCSP provide for receipt and presentation to (1) A PTC system must enforce approved under this subpart. the locomotive engineer and other train restricted speed over any switch: (f) Train-to-train collision. A PTC crew of warnings from additional (i) Where train movements are made system shall be considered to be hazard detectors using the PTC data with the benefit of the indications of a configured to prevent train-to-train network, onboard displays, and audible wayside or cab signal system or other collisions within the meaning of alerts. If the PTCSP so provides, the similar appliance, method, device, or paragraph (a) of this section if trains are action to be taken by the system and by system of equivalent safety proposed to required to be operated at restricted the crew members shall be specified. FRA and approved by the Associate speed and if the onboard PTC (3) The PTCDP (as applicable) and Administrator in accordance with this equipment enforces the upper limits of PTCSP for any service described in part; and the railroad’s restricted speed rule (15 or (ii) Where wayside or cab signal § 236.1007 to be conducted above 90 20 miles per hour). This application system or other similar appliance, miles per hour shall include a hazard applies to: method, device, or system of equivalent analysis describing the hazards relevant (1) Operating conditions under which safety requires the train to be operated to the specific route(s) in question (e.g., trains are required by signal indication at restricted speed. or operating rule to: potential for track obstruction due to (2) A PTC system must enforce a (i) Stop before continuing; or events such as falling rock or positive stop short of any main line undermining of the track structure due switch, and any switch on a siding (ii) Reduce speed to restricted speed to high water or displacement of a where the allowable speed is in excess and continue at restricted speed until bridge over navigable waters), the basis of 20 miles per hour, if movement of the encountering a more favorable for decisions concerning hazard train over the switch: indication or as provided by operating detectors provided, and the manner in (i) Is made without the benefit of the rule. which such additional hazard detectors indications of a wayside or cab signal (2) Operation of trains within the will be interfaced with the PTC system. system or other similar appliance, limits of a joint mandatory directive. (d) Event recorders. (1) Each lead method, device, or system of equivalent (g) Temporary rerouting. A train locomotive, as defined in part 229, of a safety proposed to FRA and approved equipped with a PTC system as required train equipped and operating with a by the Associate Administrator in by this subpart may be temporarily PTC system required by this subpart accordance with this part; or rerouted onto a track not equipped with must be equipped with an operative (ii) Would create an unacceptable a PTC system and a train not equipped event recorder, which shall: risk. Unacceptable risk includes with a PTC system may be temporarily (i) Record safety-critical train control conditions when traversing the switch, rerouted onto a track equipped with a data routed to the locomotive engineer’s even at low speeds, could result in PTC system as required by this subpart display that the engineer is required to direct conflict with the movement of in the following circumstances: comply with; another train (including a hand- (1) Emergencies. In the event of an (ii) Specifically include text messages operated crossover between main tracks, emergency—including conditions such conveying mandatory directives and a hand-operated crossover between a as derailment, flood, fire, tornado, maximum authorized speeds; and main track and an adjoining siding or hurricane, or other similar circumstance (iii) Include the display format, auxiliary track, or a hand-operated outside of the railroad’s control—that content, and data retention duration switch providing access to another would prevent usage of the regularly requirements specified in the PTC safety subdivision or branch line, etc.). used track if: plan submitted and approved pursuant (3) A PTC system required by this (i) The rerouting is applicable only to this paragraph. If such train control subpart shall be designed, installed, and until the emergency condition ceases to data can be calibrated against other data maintained to perform the switch exist and for no more than 14 required by this part, it may, at the position detection and enforcement consecutive calendar days, unless election of the railroad, be retained in a described in paragraphs (e)(1) and (e)(2) otherwise extended by approval of the separate memory module. of this section, except as provided for Associate Administrator; (2) Each lead locomotive, as defined and justified in the applicable, FRA- (ii) The railroad provides written or in part 229, manufactured and in service approved PTCDP or PTCSP. telephonic notification to the applicable after October 1, 2009, that is equipped (4) The control circuit or electronic Regional Administrator of the and operating with a PTC system equivalent for any movement authorities information listed in paragraph (i) required by this subpart, shall be over any switches, movable-point frogs, within one business day of the equipped with an event recorder or derails shall be selected through beginning of the rerouting made in memory module meeting the crash circuit controller or functionally accordance with this paragraph; and hardening requirements of § 229.135 of equivalent device operated directly by (iii) The conditions under paragraph this chapter. switch points, derail, or by switch (j) are followed. (3) Nothing in this subpart excepts locking mechanism, or through relay or (2) Planned maintenance. In the event compliance with any of the event electronic device controlled by such of planned maintenance that would

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prevent usage of the regularly used track provided under paragraph (g) or (h) of transportation traffic and the applicable if: this section. PTCIP permits the operation of a train (i) The maintenance period does not operated by a Class II or III railroad and exceed 30 days; § 236.1006 Equipping locomotives controlled by a locomotive not equipped operating in PTC territory. (ii) A request is filed with the with an onboard PTC apparatus; applicable Regional Administrator in (a) Except as provided in paragraph (ii) Where operations are restricted to accordance with paragraph (i) of this (b) of this section, each train operating less than four such unequipped trains section no less than 10 business days on any track segment equipped with a per day, whereas a train conducting a prior to the planned rerouting; and PTC system shall be controlled by a ‘‘turn’’ operation (e.g., moving to a point (iii) the conditions contained in locomotive equipped with an on-board of interchange to drop off or pick up paragraph (j) of this section are PTC apparatus that is fully operative cars and returning to the track owned by followed. and functioning in accordance with the a Class II or III railroad) is considered (h) Rerouting requests. (1) For the applicable PTCSP approved under this two trains for this purpose; and purposes of paragraph (g)(2) of this subpart. (iii) Where each movement shall section, the rerouting request shall be (b) Exceptions. (1) Prior to December either: self-executing unless the applicable 31, 2015, each train controlled by a (A) Not exceed 20 miles in length; or Regional Administrator responds with a locomotive not equipped with an (B) To the extent any movement notice disapproving of the rerouting or onboard PTC apparatus is permitted to exceeds 20 miles in length, such providing instructions to allow operate. movement is not permitted without the rerouting. Such instructions may (2) Prior to December 31, 2013, each controlling locomotive being equipped include providing additional train controlled by a locomotive with an onboard PTC system after information to the Regional equipped with an onboard PTC December 31, 2020, and each applicable Administrator or Associate apparatus that is not fully operative is Class II or III railroad shall report to Administrator prior to the permitted only if: FRA its progress in equipping each commencement of rerouting. Once the (i) The subject locomotive failed necessary locomotive with an onboard Regional Administrator responds with a initialization at the point of origin for PTC apparatus to facilitate continuation notice under this paragraph, no the train or at the location where the of the movement. The progress reports rerouting may occur until the Regional locomotive was added to the train; shall be filed not later than December Administrator or Associate (ii) The railroad has included in its 31, 2017 and, if all necessary Administrator provides his or her FRA approved PTC Implementation locomotives are not yet equipped, on approval. Plan a system for identifying PTC December 31, 2019. (2) In the event the temporary system reliability exceptions and (c) When a train movement is rerouting described in paragraph (g)(2) responding with appropriate remedial conducted under the exceptions of this section is to exceed 30 actions, the railroad executes that plan, described in paragraph (b)(4) of this consecutive calendar days: and the documentation for execution of section, that movement shall be made in (i) The railroad shall provide a request the plan is currently available to FRA accordance with § 236.1029. in accordance with paragraphs (i) and (j) upon request; and of this section with the Associate (iii) The percentage of controlling § 236.1007 Additional requirements for high-speed service. Administrator no less than 10 business locomotives operating out of each days prior to the planned rerouting; and railroad’s initial terminals after (a) A PTC railroad that conducts a (ii) The rerouting contemplated by receiving a failed initialization and over passenger operation at or greater than 60 this paragraph shall not commence until a track segment equipped with a PTC miles per hour or a freight operation at receipt of approval from the Associate system, does not during each calendar or greater than 50 miles per hour shall Administrator. month exceed: have installed a PTC system including (i) Content of rerouting request. Each (A) 20 percent until December 31, or working in concert with technology notice or request referenced in 2011; that includes all of the safety-critical paragraph (g) of this section must (B) 15 percent from the end of the functional attributes of a block signal indicate: period in paragraph (A) to December 31, system meeting the requirements of this (1) The dates that such temporary 2012; and part, including appropriate fouling rerouting will occur; (C) 10 percent from the end of the circuits and broken rail detection (or (2) The number and types of trains period in paragraph (B) to December 31, equivalent safeguards). that will be rerouted; 2013. (b) In addition to the requirements of (3) The location of the affected tracks; (3) A train controlled by a locomotive paragraph (a), a host railroad that and with an onboard PTC apparatus that has conducts a freight or passenger (4) A description of the necessity for failed en route is permitted to operate in operation at more than 90 miles per the temporary rerouting. accordance with § 236.1029. hour shall: (j) Rerouting conditions. Rerouting of (4) A train operated by a Class II or (1) Have an approved PTCSP operations under paragraph (g) of this Class III railroad, including a tourist or establishing that the system was section may only occur if: excursion railroad, and controlled by a designed and will be operated to meet (1) An absolute block is established in locomotive not equipped with an the failsafe operation criteria described advance of each rerouted train onboard PTC apparatus is permitted to in Appendix C to this part; and movement; and operate on a PTC operated track (2) Prevent unauthorized or (2) Each rerouted train movement segment: unintended entry onto the main line shall not exceed 59 miles per hour for (i) That either: from any track not equipped with a PTC passenger and 49 miles per hour for (A) Has no regularly scheduled system compliant with this subpart by freight. intercity or passenger rail passenger placement of split-point derails or (k) Rerouting cessation. The transportation traffic; or equivalent means integrated into the applicable Regional Administrator may (B) Has regularly scheduled intercity PTC system; and order a railroad to cease any rerouting or passenger rail passenger (3) Comply with § 236.1029(c).

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(c) In addition to the requirements of required to be filed in accordance with (3) If the Associate Administrator paragraphs (a) and (b), a host railroad this paragraph (a)(1) or (a)(2) of this finds that the PTCSP and supporting that conducts a freight or passenger section must be jointly filed with each documentation support a finding that operation at more than 125 miles per entity providing regularly scheduled the system complies with this part, the hour shall have an approved PTCSP intercity or commuter rail passenger Associate Administrator may approve accompanied by a document (‘‘HSR– transportation over that subject trackage. the PTCSP. If the Associate 125’’) establishing that the system: If railroads are unable to jointly file a Administrator approves the PTCSP, the (1) Will be operated at a level of safety PTCIP in accordance with paragraphs railroad shall receive PTC System comparable to that achieved over the 5- (a)(1) and (a)(3) of this section, then they Certification for the subject PTC system year period prior to the submission of each shall: and shall implement the PTC system the PTCSP by other train control (i) Separately file a PTCIP in according to the PTCSP. systems that perform PTC functions accordance with paragraph (a)(1); (4) A required PTC system shall not: required by this subpart, and which (ii) Notify the Associate Administrator (i) Be used in service until it receives have been utilized on high-speed rail that the subject railroads were unable to from FRA a PTC System Certification; systems with similar technical and agree on a PTCIP to be jointly filed; and operational characteristics in the United (iii) Provide the Associate (ii) Receive a PTC System States or in foreign service, provided Administrator with a comprehensive list Certification unless FRA receives and that the use of foreign service data must of all issues not in agreement between approves an applicable: be approved by the Associate the railroads that would prevent the (A) PTCIP and PTCSP; or Administrator before submittal of the subject railroads from jointly filing the (B) Request for Expedited PTCSP; and PTCIP; and Certification (REC) as defined by (2) Has been designed to detect (iv) Confer with the Associate § 236.1031(a). incursions into the right-of-way, Administrator to develop and submit a (d) Plan contents. (1) No PTCIP shall including incidents involving motor PTCIP mutually acceptable to all subject receive approval unless it complies with vehicles diverting from adjacent roads railroads. § 236.1011. No railroad shall receive a and bridges, where conditions warrant. (b) Type Approval. A host railroad, or Type Approval or PTC System (d) In addition to the requirements of one or more system suppliers and one Certification unless the applicable paragraphs (a) through (c) of this or more host railroads, shall file prior to PTCDP or PTCSP, respectively, comply section, a host railroad that conducts a or simultaneously with the filing made with §§ 236.1013 and 236.1015, freight or passenger operation at more in accordance with paragraph (a) of this respectively. than 150 miles per hour, which is section: (2) All materials filed in accordance (1) An unmodified Type Approval governed by a Rule of Particular with this subpart must be in the English previously issued by the Associate Applicability, shall have an approved language, or have been translated into Administrator in accordance with PTCSP accompanied by a HSR–125 English and attested as true and correct. § 236.1013 or § 236.1031(b) with its developed as part of an overall system (3) Each filing referenced in this associated docket number; safety plan approved by the Associate section may include a request for full or Administrator. (2) A PTCDP requesting a Type Approval for: partial confidentiality in accordance § 236.1009 Procedural requirements. (i) A PTC system that does not have with § 209.11 of this chapter. If (a) PTC Implementation Plan (PTCIP). a Type Approval; or confidentiality is requested as to a (1) By April 16, 2010, each host railroad (ii) A PTC system with a previously portion of any applicable document, that is required to implement and issued Type Approval that requires one then in addition to the filing operate a PTC system in accordance or more variances; requirements under § 209.11 of this with § 236.1005(b) shall develop and (3) A PTCSP subject to the conditions chapter, the person filing the document submit in accordance with § 236.1011(a) set forth in paragraph (c) of this section, shall also file a copy of the original a PTCIP for implementing a PTC system with or without a Type Approval; or unredacted document, marked to required under § 236.1005. Filing of the (4) A document attesting that a Type indicate which portions are redacted in PTCIP shall not exempt the required Approval is not necessary since the host the document’s confidential version filings of a PTCSP, PTCDP, or Type railroad has no territory for which a PTC without obscuring the original Approval. system is required under this subpart. document’s contents. (2) After April 16, 2010, a host (c) PTCSP and PTC System (e) Supporting documentation and railroad shall file: Certification. The following apply to information. (1) Issuance of a Type (i) A PTCIP if it becomes a host each PTCSP and PTC System Approval or PTC System Certification is railroad of a main line track; or Certification. contingent upon FRA’s confidence in (ii) A request for amendment (‘‘RFA’’) (1) A PTC System Certification for a the implementation and operation of the of its current and approved PTCIP in PTC system may be obtained by subject PTC system. This confidence accordance with § 236.1021 if it intends submitting an acceptable PTCSP. If the may be based on FRA-monitored field to: PTC system is the subject of a Type testing or an independent assessment (A) Initiate a new category of service Approval, the safety case elements performed in accordance with (i.e., passenger or freight); or contained in the PTCDP may be § 236.1035 or § 236.1017, respectively. (B) Add, subtract, or otherwise incorporated by reference into the (2) Upon request by FRA, the railroad materially modify one or more lines of PTCSP, subject to finalization of the requesting a Type Approval or PTC railroad for which installation of a PTC human factors analysis contained in the System Certification must engage in system is required. PTCDP. field testing or independent assessment (3) If the host railroad is a freight (2) Each PTCSP requirement under performed in accordance with railroad, and the subject trackage would § 236.1015 shall be supported by § 236.1035 or § 236.1017, respectively, require installation and operation of a information and analysis sufficient to to support the assertions made in any of PTC system in accordance with establish that the requirements of this the plans submitted under this subpart. §§ 236.1005(b)(2) or (b)(3), then a PTCIP subpart have been satisfied. These assertions include any of the

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plans’ content requirements under this independently Verified and Validated of each rolling stock to be PTC system subpart. and used to support each railroad’s equipped and the date each will be (f) FRA conditions, reconsiderations, development of the PTCSP. equipped; and and modifications. (1) As necessary to (B) Include each tenant railroad’s ensure safety, FRA may attach special § 236.1011 PTCIP content requirements. response to the host railroad’s written conditions to approving a PTCIP or (a) Contents. A PTCIP filed pursuant request made in accordance with issuing a Type Approval or PTC System to this subpart shall, at a minimum, paragraph (a)(6)(iii)(A) of this section; Certification. describe: (7) The number of wayside devices (2) After granting a Type Approval or (1) The technology that will be required for each line segment and the PTC System Certification, FRA may employed; installation schedule to complete reconsider the Type Approval or PTC (2) How the PTC railroad intends to wayside equipment installation by System Certification upon revelation of comply with § 236.1009(c); December 31, 2015; any of the following factors concerning (3) How the PTC system will provide (8) which track segments the railroad the contents of the PTCIP, PTCDP or for interoperability of the system considers mainline and non-mainline PTCSP: between the host and all tenant track. If the PTCIP includes a MTEA, as (i) Potential error or fraud; railroads on the lines required to be defined by § 236.1019, the PTCIP should (ii) Potentially invalidated equipped with PTC systems under this identify the tracks included in the assumptions determined as a result of subpart and: MTEA as main line track with a in-service experience or one or more (i) Include copies of relevant reference to the MTEA; and unsafe events calling into question the provisions of any agreements, executed (9) to the extent the railroad safety analysis supporting the approval. by all applicable railroads, in place to determines that risk-based prioritization (3) During FRA’s reconsideration in achieve interoperability; required by paragraph (a)(4) of this accordance with this paragraph, the PTC (ii) List all technologies used to obtain section is not practical, the basis for this system may remain in use if otherwise interoperability; and determination; and consistent with the applicable law and (iii) Identify any railroads with (b) Additional Class I railroad PTCIP regulations and FRA may impose respect to which interoperability requirements. Each Class I railroad shall special conditions for use of the PTC agreements or compatible technology include: system. have not been achieved as of the time (1) In its PTCIP a strategy for full (4) After FRA’s reconsideration in the plan is filed, the practical obstacles deployment of its PTC system, accordance with this paragraph, FRA that were encountered that prevented describing the criteria that it will apply may: resolution, and the further steps in identifying additional rail lines on its (i) Dismiss its reconsideration and planned to overcome those obstacles; own network, and rail lines of entities continue to recognize the existing FRA (4) How, to the extent practical, the that it controls or engages in joint approved Type Approval; PTC system will be implemented to operations with, for which full or partial (ii) Allow continued operations under address areas of greater risk to the deployment of PTC technologies is such conditions the Associate public and railroad employees before appropriate, beyond those required to be Administrator deems necessary to areas of lesser risk; equipped under this subpart. Such ensure safety; or (5) The sequence and schedule in criteria shall include consideration of (iii) Revoke the Type Approval or PTC which line segments will be equipped the policies established by 49 U.S.C. System Certification and direct the and the basis for those decisions, and 20156 (railroad safety risk reduction railroad to cease operations where PTC shall at a minimum address the program), and regulations issued systems are required under this subpart. following risk factors by line segment: thereunder, as well as non-safety (g) FRA access. The Associate (i) Segment traffic characteristics such business benefits that may accrue. Administrator, or that person’s as typical annual passenger and freight (2) In the Technology Implementation designated representatives, shall be train volume and volume of poison- or Plan of its Risk Reduction Program, afforded reasonable access to monitor, toxic-by-inhalation (PIH or TIH) when first required to be filed in test, and inspect processes, procedures, shipments (loads, residue); accordance with 49 U.S.C. 20156 and facilities, documents, records, design (ii) Segment operational any regulation promulgated thereunder, and testing materials, artifacts, training characteristics such as current method a specification of rail lines selected for materials and programs, and any other of operation (including presence or full or partial deployment of PTC under information used in the design, absence of a block signal system), the criteria identified in its PTCIP. development, manufacture, test, number of tracks, and maximum (3) Nothing in this paragraph shall be implementation, and operation of the allowable train speeds, including construed to create an expectation or system, as well as interview any planned modifications; and requirement than additional rail lines personnel: (iii) Route attributes bearing on risk, beyond those required to be equipped (1) Associated with a PTC system for including ruling grades and extreme by this subpart must be equipped or that which a Type Approval or PTC System curvature; such lines will be equipped during the Certification has been requested or (6) The following information relating period of primary implementation provided; or to rolling stock: ending December 31, 2015. (2) To determine whether a railroad (i) What rolling stock will be (4) As used in this paragraph, ‘‘partial has been in compliance with this equipped with PTC technology; implementation’’ of a PTC system refers subpart. (ii) The schedule to equip that rolling to use, pursuant to subpart H of this (h) Foreign regulatory entity stock by December 31, 2015; and part, of technology embedded in PTC verification. Information that has been (iii) Unless the tenant railroad is filing systems that does not employ all of the certified under the auspices of a foreign its own PTCIP, the host railroad’s PTCIP functionalities required by this subpart. regulatory entity recognized by the shall: (c) FRA review. Within 90 days of Associate Administrator may, at the (A) Attest that the host railroad has receipt of a PTCIP, the Associate Associate Administrator’s sole made a formal written request to each Administrator will approve or discretion, be accepted as tenant railroad requesting identification disapprove of the plan and notify in

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writing the affected railroad or other which those requirements are otherwise Certification. If the Associate entity. If the PTCIP is not approved, the fulfilled; Administrator finds that the PTCSP and notification will include the plan’s (8) A description of the necessary supporting documentation support a deficiencies. Within 30 days of receipt security measures for the system; finding that the system complies with of that notification, the railroad or other (9) A description of target safety levels this part, the Associate Administrator entity that submitted the plan shall (e.g., MTTHE for major subsystems as approves the PTCSP and issues a PTC correct all deficiencies and resubmit the defined in subpart H), including System Certification. Receipt of a PTC plan in accordance with § 236.1009 and requirements for system availability and System Certification affirms that the paragraph (a) of this section, as a description of all backup methods of PTC system has been reviewed and applicable. operation and any critical assumptions approved by FRA in accordance with, (d) Subpart H. A railroad that elects associated with the target levels; and meets the requirements of, this part. to install a PTC system when not (10) A complete description of how (b) A PTCSP submitted in accordance required to do so may elect to proceed the PTC system will enforce authorities with this subpart shall: under this subpart or under subpart H. and signal indications; (1) Include the applicable FRA (e) Upon receipt of a PTCIP, PTCDP, (11) A description of the deviation approved PTCIP and, if applicable, the or PTCSP, FRA posts on its public Web required under § 236.1029(c), if PTCDP and Type Approval; site notice of receipt and reference to applicable; and (2)(i) Specifically and rigorously the public docket in which a copy of the (12) A complete description of how document each variance, including the filing has been placed. FRA may the PTC system will appropriate and significance of each variance between consider any public comment on each timely enforce all integrated hazard the PTC system and its applicable document to the extent practicable detectors in accordance with operating conditions as described in the within the time allowed by law and § 236.1005(c)(3), if applicable. applicable PTCIP and any applicable without delaying implementation of (b) If the Associate Administrator PTCDP from that as described in the PTC systems. finds that the system described in the PTCSP, and attest that are no other such PTCDP would satisfy the requirements variances; or § 236.1013 PTCDP content requirements for PTC systems under this subpart and (ii) Attest that there are no variances and Type Approval. that the applicant has made a reasonable between the PTC system and its (a) For a PTC system to obtain a Type showing that a system built to the stated applicable operating conditions as Approval from FRA, the PTCDP shall be requirements would achieve the level of described in the applicable PTCIP and filed in accordance with § 236.1009 and safety mandated for such a system any applicable PTCDP from that as shall include: under § 236.1015, the Associate described in the PTCSP; and (1) A complete description of the PTC Administrator may grant a numbered (3) Attest that the system was system, including a list of all PTC Type Approval for the system. otherwise built in accordance with the system components and their physical (c) Each Type Approval shall be valid applicable PTCDP and PTCSP and relationships in the subsystem or for a period of 5 years, subject to achieves the level of safety represented system; automatic and indefinite extension therein. (2) A description of the railroad provided that at least one PTC System (c) A PTCSP shall include the same operation or categories of operations on Certification using the subject PTC information required for a PTCDP under which the PTC system is designed to be system has been issued within that § 236.1013(a). If a PTCDP has been filed used, including train movement density period and not revoked. and approved prior to filing of the (passenger, freight), operating speeds, (d) A PTCSP submitted under this PTCSP, PTCSP may incorporate the track characteristics, and railroad subpart may reference and utilize in PTCDP by reference, with the exception operating rules; accordance with this subpart any Type that a final human factors analysis shall be provided. The PTCSP shall contain (3) An operational concepts Approval previously issued by the Associate Administrator to any railroad, the following additional elements: document, including a list with (1) A hazard log consisting of a complete descriptions of all functions provided that the railroad: (1) Maintains a continually updated comprehensive description of all safety- which the PTC system will perform to relevant hazards not previously enhance or preserve safety; PTCPVL pursuant to § 236.1023; and (2) Provides the applicable licensing addressed by the vendor to be addressed (4) A document describing the information. during the life cycle of the PTC system, manner in which the PTC architecture (e) A railroad submitting a PTCDP including maximum threshold limits for satisfies safety requirements; under this subpart must show that the each hazard (for unidentified hazards, (5) A description of the safety supplier from which they are procuring the threshold shall be exceeded at one assurance concepts that are to be used the PTC system has established and can occurrence); for system development, including an maintain a quality control system for (2) A risk assessment of the as-built explanation of the design principles and PTC system design and manufacturing PTC system described; assumptions; acceptable to the Associate (3) A hazard mitigation analysis, (6) A preliminary human factors Administrator. including a complete and analysis, including a complete (f) The Associate Administrator may comprehensive description of each description of all human-machine prescribe special conditions, hazard and the mitigation techniques interfaces and the impact of amendments, and restrictions to any used; interoperability requirements on the Type Approval as necessary for safety. (4) A complete description of the same; safety assessment and Verification and (7) An analysis of the applicability to § 236.1015 PTCSP content requirements Validation processes applied to the PTC the PTC system of the requirements of and PTC System Certification. system, their results, and whether these subparts A–G of this part that may no (a) Before placing a PTC system processes address the safety principles longer apply or are satisfied by the PTC required under this part in service, the described in Appendix C to this part system using an alternative method, and host railroad must submit to FRA a directly, using other safety criteria, or a complete explanation of the manner in PTCSP and receive a PTC System not at all;

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(5) A complete description of the (13) A more detailed description of (3) Stand-alone. A PTC system railroad’s training plan for railroad and any alternative arrangements as already proposed on a newly constructed track, contractor employees and supervisors provided under § 236.1011(a)(10); an existing track for which no signal necessary to ensure safe and proper (14) A complete description of how system exists, as a replacement for an installation, implementation, operation, the PTC system will enforce authorities existing signal or train control system, maintenance, repair, inspection, testing, and signal indications, unless already or to otherwise intend to replace or and modification of the PTC system; completely provided for in the PTCDP; materially modify the existing method (6) A complete description of the (15) A description of how the PTCSP of operation, shall: specific procedures and test equipment complies with § 236.1019(e), if (i) Demonstrate to reliably execute the necessary to ensure the safe and proper applicable; functions required by § 236.1005; and installation, implementation, operation, (16) A description of the deviation (ii) Have a PTCSP establishing, with maintenance, repair, inspection, testing, required under § 236.1029(c), if a high degree of confidence, that the and modification of the PTC system on applicable and unless already system will not introduce new hazards the railroad and establish safety-critical completely provided for in the PTCDP; that have not been mitigated. The hazards are appropriately mitigated. (17) A complete description of how supporting risk assessment shall These procedures, including calibration the PTC system will appropriate and evaluate all intended changes in requirements, shall be consistent with timely enforce all integrated hazard railroad operations in relation to the or explain deviations from the detectors in accordance with § 236.1005; introduction of the new system and equipment manufacturer’s (18) An emergency and planned shall examine in detail the direct and recommendations; maintenance temporary rerouting plan indirect effects of all changes in the (7) A complete description of any indicating how operations on the method of operations. (4) Mixed systems. If a PTC system additional warning to be placed in the subject PTC system will take advantage combining overlay, stand-alone, vital, or Operations and Maintenance Manual in of the benefits provided under non-vital characteristics is proposed, the the same manner specified in § 236.919 § 236.1005(g)–(k); and railroad shall confer with the Associate and all warning labels to be placed on (19) Any alternative arrangements for Administrator regarding appropriate equipment as necessary to ensure safety; each rail at-grade crossing not adhering to the table under § 236.1005(a)(1)(i). structuring of the safety case and (8) A complete description of the (d) The following additional analysis. configuration or revision control requirements apply to: (e) When determining whether the measures designed to ensure that the (1) Non-vital overlay. A PTC system PTCSP fulfills the requirements under railroad or its contractor does not proposed as an overlay on the existing paragraph (d) of this section, the adversely affect the safety-functional method of operation and not built in Associate Administrator may consider requirements and that safety-critical accordance with the safety assurance all available evidence concerning the hazard mitigation processes are not principles set forth in Appendix C of reliability and availability of the compromised as a result of any such this part must, to the satisfaction of the proposed system and any and all safety change; Associate Administrator, be shown to: consequences of the proposed changes. (9) A complete description of all (i) Reliably execute the functions set In any case where the PTCSP lacks data initial implementation testing forth in § 236.1005; regarding safety impacts of the proposed procedures necessary to establish that (ii) Obtain at least 80 percent changes, the Associate Administrator safety-functional requirements are met reduction of the risk associated with may request the necessary data from the and safety-critical hazards are accidents preventable by the functions applicant. If the requested data is not appropriately mitigated; set forth in § 236.1005, when all effects provided, the Associate Administrator (10) A complete description of all of the change associated with the PTC may find that potential hazards could or post-implementation testing (validation) system are taken into account. The will arise. and monitoring procedures, including supporting risk assessment shall (f) If a PTCSP applies to a system the intervals necessary to establish that evaluate all intended changes in designed to replace an existing certified safety-functional requirements, safety- railroad operations coincident with the PTC system, the PTCSP will be critical hazard mitigation processes, and introduction of the new system; and approved provided that the PTCSP safety-critical tolerances are not (iii) Maintain a level of safety for each establishes with a high degree of compromised over time, through use, or subsequent system modification that is confidence that the new system will after maintenance (adjustment, repair, equal to or greater than the level of provide a level of safety not less than or replacement) is performed; safety for the previous PTC systems. the level of safety provided by the (11) A complete description of each (2) Vital overlay. A PTC system system to be replaced. record necessary to ensure the safety of proposed on a newly constructed track (g) When reviewing the issue of the the system that is associated with or as an overlay on the existing method potential data errors (for example, errors periodic maintenance, inspections, of operation and is built in accordance arising from data supplied from other tests, adjustments, repairs, or with the safety assurance principles set business systems needed to execute the replacements, and the system’s resulting forth in Appendix C of this part must, braking algorithm, survey data needed conditions, including records of to the satisfaction of the Associate for location determination, or component failures resulting in safety- Administrator, be shown to: mandatory directives issued through the relevant hazards (see § 236.1033); (i) Reliably execute the functions set computer-aided dispatching system), (12) A safety analysis to determine forth in § 236.1005; and the PTCSP must include a careful whether, when the system is in (ii) Have sufficient documentation to identification of each of the risks and a operation, any risk remains of an demonstrate that the PTC system, as discussion of each applicable unintended incursion into a roadway built, fulfills the safety assurance mitigation. In an appropriate case, such work zone due to human error. If the principles set forth in Appendix C of as a case in which the residual risk after analysis reveals any such risk, the this part. The supporting risk mitigation is substantial or the PTCDP and PTCSP shall describe how assessment may be abbreviated as that underlying method of operation will be that risk will be mitigated; term is used in subpart H of this part. significantly altered, the Associate

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Administrator may require submission § 236.1019 Main line track exceptions. operations were conducted under of a quantitative risk assessment (a) Scope and procedure. This section paragraph (c)(1) or (c)(2) of this section. addressing these potential errors. pertains exclusively to exceptions from (d) Temporal separation. As used in the rule that trackage over which this section, temporal separation means § 236.1017 Independent third party the processes or physical arrangements, Verification and Validation. scheduled intercity and commuter passenger service is provided is or both, in place to assure that limited (a) The PTCSP must be supported by considered main line track requiring passenger and freight operations do not an independent third-party assessment installation of a PTC system. One or operate on any segment of shared track when the Associate Administrator more intercity or commuter passenger during the same period. The use of concludes that it is necessary based railroads, or freight railroads conducting exclusive authorities under mandatory upon the same criteria set forth in joint passenger and freight operation directives is not, by itself, sufficient to § 236.913 of this chapter, with the over the same segment of track may file establish that temporal separation is exception that consideration of the a main line track exclusion addendum achieved. Procedures to ensure temporal methodology used in the risk (‘‘MTEA’’) to its PTCIP requesting to separation shall include verification assessment (§ 236.913(g)(2)(vii)) shall designate track as not main line subject checks between passenger and freight apply only to the extent that a to the condition that such trackage may and effective physical means to comparative risk assessment was not be trackage otherwise required to be positively ensure segregation of required. To the extent practicable, FRA equipped (e.g., because of tonnage and passenger and freight operations in makes this determination not later than PIH traffic) and to the further conditions accordance with this paragraph. (e) PTCSP requirement. No PTCSP review of the PTCIP and the set forth in paragraphs (b) and (c) of this filed after the approval of a PTCIP with accompanying PTCDP or PTCSP. If an section. No track shall be designated as an MTEA shall be approved by FRA independent assessment is required, the yard or terminal unless it is identified unless it attests that no changes, except assessment may apply to the entire in a MTEA that is part of an FRA for those included in a FRA approved system or a designated portion of the approved PTCIP. RFA, have been made to the information system. (b) Passenger terminal exception. FRA in the PTCIP and MTEA required by will consider an exception in the case (b) If a PTC system is to undergo an paragraph (b) or (c) of this section. independent assessment in accordance of trackage used exclusively as yard or (f) Designation modifications. If with this section, it may submit to the terminal tracks by or in support of subsequent to approval of its PTCIP or Associate Administrator a written regularly scheduled intercity or PTCSP the railroad seeks to modify request that FRA confirm whether a commuter passenger service where the which track or tracks should be particular entity would be considered MTEA describes in detail the physical designated as main line or not main an independent third party pursuant to boundaries of the trackage in question, line, it shall request modification of its this section. The request should include its use and characteristics (including PTCIP or PTCSP, as applicable, in supporting information in accordance track and signal charts) and all of the accordance with § 236.1021. with paragraph (c) of this section. FRA following apply: may request further information to make (1) The maximum authorized speed § 236.1021 Discontinuances, material a determination or provide its for all movements is not greater than 20 modifications, and amendments. determination in writing. miles per hour, and that maximum is (a) No changes, as defined by this enforced by any available onboard PTC section, to a PTC system, PTCIP, (c) As used in this section, equipment within the confines of the PTCDP, or PTCSP, shall be made unless: ‘‘independent third party’’ means a yard or terminal; (1) The railroad files a request for technically competent entity (2) Interlocking rules are in effect amendment (‘‘RFA’’) to the applicable responsible to and compensated by the prohibiting reverse movements other PTCIP, PTCDP, or PTCSP with the railroad (or an association on behalf of than on signal indications without Associate Administrator; and one or more railroads) that is dispatcher permission; and (2) The Associate Administrator independent of the PTC system supplier approves the RFA. and vendor. An entity that is owned or (3) No freight operations are permitted. (b) After approval of a RFA in controlled by the supplier or vendor, accordance with paragraph (a) of this that is under common ownership or (c) Limited operations exception. FRA will consider an exception in the case section, the railroad shall immediately control with the supplier or vendor, or adopt and comply with the amendment. of trackage used for limited operations that is otherwise involved in the (c) In lieu of a separate filing under by at least one passenger railroad development of the PTC system is not part 235 of this chapter, a railroad may considered ‘‘independent’’ within the subject to at least one of the following request approval of a discontinuance or meaning of this section. conditions: material modification of a signal or train (1) All trains are limited to restricted control system by filing a RFA to its (d) The independent third party speed; assessment must, at a minimum, consist PTCIP, PTCDP, or PTCSP with the (2) Temporal separation of passenger Associate Administrator. of the activities and result in the and other trains is maintained as production of documentation meeting (d) A RFA made in accordance with provided in paragraph (d) of this this section will not be approved by the requirements of Appendix F to this section; or part, unless excepted by this part or by FRA unless the request includes: (3) Passenger service is operated (1) The information listed in § 235.10 FRA order or waiver. under a risk mitigation plan submitted of this chapter and the railroad provides (e) Information provided that has been by all railroads involved in the joint FRA upon request any additional certified under the auspices of a foreign operation and approved by FRA. The information necessary to evaluate the railroad regulatory entity recognized by risk mitigation plan must be supported RFA (see § 235.12), including: the Associate Administrator may, at the by a risk assessment establishing that (2) The proposed modifications; Associate Administrator’s discretion, be the proposed mitigations will achieve a (3) The reasons for each modification; accepted as having been independently level of safety not less than the level of (4) The changes to the PTCIP, PTCDP verified. safety that would obtain if the or PTCSP, as applicable;

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(5) Each modification’s effect on PTC (h) Changes requiring filing of an Railroad Administration or any section system safety; RFA. Except as provided by paragraph of part 236 of this title; (6) An approximate timetable for (i), an RFA shall be filed to request the (2) Installation of devices used to filing of the PTCDP, PTCSP, or both, if following: provide protection against unusual the amendment pertains to a PTCIP; and (1) Discontinuance of a PTC system, contingencies such as landslide, burned (7) An explanation of whether each or other similar appliance or device; bridges, high water, high and wide change to the PTCSP is planned or (2) Decrease of the PTC system’s loads, or dragging equipment; unplanned. limits; (3) Elimination of existing track other (A) Unplanned changes that affect the (3) Modification of a safety critical than a second main track; Type Approval’s PTCDP require element of a PTC system; or (4) Extension or shortening of a submission and approval in accordance (4) Modification of a PTC system that passing siding; with § 236.1013 of a new PTCDP, affects the safety critical functionality of (5) A line relocation; followed by submission and approval in any other PTC system with which it (6) Installation of new track; or accordance with § 236.1015 of a new interoperates. (7) The temporary or permanent PTCSP for the PTC system. (i) Discontinuances not requiring the arrangement of existing systems (B) Unplanned changes that do not filing of an RFA. It is not necessary to necessitated by highway rail separation affect the Type Approval’s PTCDP file an RFA for the following construction. Temporary arrangements require submission and approval of a discontinuances: shall be removed within six months new PTCSP. (1) Removal of a PTC system from following completion of construction. (C) Unplanned changes are changes track approved for abandonment by affecting system safety that have not § 236.1023 Errors and malfunctions. formal proceeding; been documented in the PTCSP. The (a) Except as provided in paragraph (2) Removal of PTC devices used to impact of unplanned changes on PTC (g) of this section, when any PTC provide protection against unusual system safety has not yet been system, subsystem, component, product, contingencies such as landslide, burned determined. or process fails, malfunctions, or (D) Planned changes may be bridge, high water, high and wide load, otherwise experiences a defect that implemented after they have undergone or tunnel protection when the unusual decreases, or eliminates, any safety suitable regression testing to contingency no longer exists; functionality, its vendor—regardless of demonstrate, to the satisfaction of the (3) Removal of the PTC devices that whether any railroad has indicated Associate Administrator, they have been are used on a movable bridge that has whether it experienced the same—shall correctly implemented and their been permanently closed by the formal notify FRA and the affected railroads of implementation does not degrade safety. approval of another government agency the following: (E) Planned changes are changes and is mechanically secured in the (1) The nature and specificity of the affecting system safety in the PTCSP closed position for rail traffic; or failure, malfunction, or defect; and have been included in all required (4) Removal of the PTC system from (2) The vendor’s procedures for analysis under § 236.1017. The impact service for a period not to exceed six responding to the issue until the failure, of these changes on the PTC system’s months that is necessitated by malfunction, or defect is cured; safety has been incorporated as an catastrophic occurrence such as (3) Any corrective action required; integral part of the approved PTCSP derailment, flood, fire, or hurricane. (4) The risk mitigation actions to be safety analysis. (j) Changes not requiring the filing of taken pending resolution of the failure (e) If the RFA includes a request for an RFA. When the resultant change to cause and issuance of the corrective approval of a discontinuance or material the PTC system will comply with an action; and modification of a signal or train control approved PTCSP of this part, it is not (5) The estimated time to correct the system, FRA will publish a notice in the necessary to file for approval to decrease failure. Federal Register of the application and the limits of a system when it involves (b) Any railroad implementing or will invite public comment in the: operating a PTC system, subsystem, accordance with part 211 of this (1) Decrease of the limits of a PTC component, product, or process that chapter. system when interlocked switches, fails, malfunctions, or otherwise (f) When considering the RFA, FRA derails, or movable-point frogs are not experiences a defect that decreases, or will review the issue of the involved; eliminates, any safety or interoperability discontinuance or material modification (2) Removal of an electric or functionality, shall: and determine whether granting the mechanical lock from hand-operated (1) Notify the applicable vendor and request is in the public interest and switch in a PTC system where train FRA of the failure, malfunction, or consistent with railroad safety, taking speed over switch does not exceed 20 defect that decreased or eliminated the into consideration all changes in the miles per hour; or safety functionality; and method of operation and system (3) Removal of an electric lock from (2) Keep the applicable vendor and functionalities, both within normal PTC hand-operated switch in a PTC system FRA apprised on a continual basis of the system availability and in the case of a where trains are not permitted to clear status of any and all subsequent failures. system failed state (unavailable), the main track at such switch and the (c) Each railroad implementing a PTC contemplated in conjunction with electric lock has not been a part of the system on its property shall maintain a installation of the PTC system. The conditional approval of a PTCSP. PTC Product Vendor List (PTCPVL) railroad submitting the RFA must, at (k) Modifications not requiring the continually updated to include all FRA’s request, perform field testing in filing of an RFA. When the resultant vendors of each PTC system, subsystem, accordance with § 236.1035 or engage in arrangement will comply with an component, product, and process Verification and Validation in approved PTCSP of this part, it is not currently used in its PTC system. The accordance with § 236.1017. necessary to file an application for PTCPVL shall be made available to FRA (g) FRA may issue at its discretion a approval of the following modifications: upon request and without undue delay. new Type Approval number for a PTC (1) A modification that is required to (d) The railroad shall specify to system modified under this section. comply with an order of the Federal FRA—and the applicable vendor if

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appropriate—its procedures for action that performs safety-critical functions block can be established in advance of upon notification of a safety critical within, or affects the safety performance the train in accordance with the upgrade, patch, or revision for the PTC of, the PTC system. For purposes of this following: system, subsystem, component, product, section, ‘‘office automation system’’ (i) Where no block signal system is in or process, and until the revision has means any centralized or distributed use, the train may proceed at restricted been installed. computer-based system that directly or speed, or (e) Each notification required by this indirectly controls the active movement (ii) Where a block signal system is in section shall: of trains in a rail network. operation according to signal indication, (1) Be made within 7 days after the (b) Changes or modifications to PTC the train may proceed at a speed not to vendor or railroad discovers the failure, systems otherwise excluded from the exceed medium speed. malfunction, or defect. However, a requirements of this subpart by this (3) Upon reaching the location where report that is due on a Saturday or a section do not exclude those PTC an absolute block has been established Sunday may be delivered on the systems from the requirements of this in advance of the train, as referenced in following Monday and one that is due subpart if the changes or modifications paragraph (b)(2) of this section, the train on a holiday may be delivered on the result in a degradation of safety or a may proceed in accordance with the next workday; material decrease in safety-critical following: (2) Be transmitted in a manner and functionality. (i) Where no block signal system is in form acceptable to the Associate (c) Primary train control systems use, the train may proceed at medium Administrator and by the most cannot be integrated with locomotive speed; however, if the involved train is expeditious method available; and electronic systems unless the complete a passenger train or a train hauling any (3) Include as much available and integrated systems: amount of PIH material, it may only applicable information as possible, (1) Have been shown to be designed proceed at a speed not to exceed 30 including: on fail safe principles; miles per hour. (i) PTC system name and model; (2) Have demonstrated to operate in a (ii) Where a block signal system is in (ii) Identification of the part, fail safe mode; use, a passenger train may proceed at a component, or system involved. The (3) Have a manual fail safe fallback speed not to exceed 59 miles per hour identification must include the part and override to allow the locomotive to and a freight train may proceed at a number; be brought to a safe stop in the event of speed not to exceed 49 miles per hour. (iii) Nature of the failure, any loss of electronic control; and (iii) Except as provided in paragraph malfunctions, or defects; (4) Are included in the approved and (c), where a cab signal system with an (iv) Mitigation to ensure the safety of applicable PTCDP and PTCSP. automatic train control system is in the crews and public; and (d) PTC systems excluded by this operation, the train may proceed at a (v) The estimated time to correct the section from the requirements of this speed not to exceed 79 miles per hour. failure. subpart remain subject to subparts A (c) In order for a PTC train that (f) Whenever any investigation of an through H of this part as applicable. operates at a speed above 90 miles per accident or service difficulty report hour to deviate from the operating shows that an article is unsafe because § 236.1029 PTC system use and en route limitations contained in paragraph (b) of failures. of a manufacturing or design defect, the this section, the deviation must be manufacturer shall, upon request of the (a) When any safety-critical PTC described and justified in the FRA Associate Administrator, report to the system component fails to perform its approved PTCDP or PTCSP, or the Associate Administrator the results of intended function, the cause must be Order of Particular Applicability, as its investigation and any action taken or determined and the faulty component applicable. proposed by the manufacturer to correct adjusted, repaired, or replaced without (d) Each railroad shall comply with that defect. undue delay. Until repair of such all provisions in the applicable PTCDP (g) The requirements of this section essential components are completed, a and PTCSP for each PTC system it uses do not apply to failures, malfunctions, railroad shall take appropriate action as and shall operate within the scope of or defects that: specified in its PTCSP. initial operational assumptions and (1) Are caused by improper (b) Where a PTC onboard apparatus predefined changes identified. maintenance or improper usage; or on a lead locomotive that is operating in (e) The normal functioning of any (2) Have been previously identified to or is to be operated within a PTC system safety-critical PTC system must not be the FRA, vendor, and applicable fails or is otherwise cut-out while en interfered with in testing or otherwise railroads. route (i.e., after the train has departed without first taking measures to provide (h) Any railroad experiencing a failure it’s initial terminal), the train may only for the safe movement of trains, of a system resulting in a more favorable continue in accordance with the locomotives, roadway workers, and on- aspect than intended or another following: track equipment that depend on the condition hazardous to movement of a (1) The train may proceed at restricted normal functioning of the system. train shall comply with the reporting speed, or if a block signal system is in (f) The PTC system’s onboard requirements, including the making of a operation according to signal indication apparatus shall be so arranged that each telephonic report of an accident or at medium speed, to the next available member of the crew assigned to perform incident under part 233 of this chapter. point where communication of a report duties in the locomotive can view a PTC Filing of one or more reports under part can be made to a designated railroad display and execute any functions 233 of this chapter does not exempt a officer of the host railroad; necessary to that crew member’s duties. railroad or vendor from the reporting (2) Upon completion and The locomotive engineer shall not be requirements contained in paragraphs communication of the report required in required to perform functions related to (a) through (e) of this section. paragraph (b)(1) of this section, or where the PTC system while the train is immediate electronic report of said moving that have the potential to § 236.1027 Exclusions. condition is appropriately provided by distract the locomotive engineer from (a) The requirements of this subpart the PTC system itself, a train may performance of other safety-critical apply to each office automation system continue to a point where an absolute duties.

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§ 236.1031 Previously approved PTC case documentation for the PTCDP or PTCSP as required by systems. implementation. §§ 236.1013 or 236.1015, as applicable, (a) Any PTC system fully (g) Upon receipt of a REC, FRA will and made available to FRA upon implemented and operational prior to consider all safety case information to request, without undue delay, for [insert effective date of final rule], may the extent feasible and appropriate, restoration of communication services receive PTC System Certification if the given the specific facts before the that support PTC system services. applicable PTC railroad, or one or more agency. Nothing in this section limits re- (g) Each railroad may elect to impose system suppliers and one or more PTC use of any applicable safety case more restrictive requirements than those railroads, submits a Request for information by a party other than the in this section, consistent with Expedited Certification (REC) letter to party receiving: interoperability requirements specified the Associate Administrator. The REC (1) A prior approval or recognition in the PTCSP for the system. letter must do one of the following: referred to in this section; or (1) Reference a product safety plan (2) A Type Approval or PTC System § 236.1035 Field testing requirements. (PSP) recognized or approved by FRA Certification under this subpart. (a) Before any field testing of an under subpart H of this part and include uncertified PTC system, or a product of a document fulfilling the requirements § 236.1033 Communications and security an uncertified PTC system, or any requirements. under §§ 236.1011 and 236.1013 not regression testing of a certified PTC already included in the PSP; (a) All wireless communications system is conducted on the general rail (2) Attest that the PTC system has between the office, wayside, and system, the railroad requesting the been approved by FRA and in operation onboard components in a PTC system testing must provide: for at least 5 years and has already shall provide cryptographic message (1) A complete description of the PTC received an assessment of Verification integrity and authentication. system; and Validation from an independent (b) Cryptographic keys required under (2) An operational concepts third party under part 236 or a waiver paragraph (a) shall: document; supporting such operation; or (1) Use an algorithm approved by the (3) A complete description of the (3) Attest that the PTC railroad has National Institute of Standards (NIST) or specific test procedures, including the implemented and is operating a PTC a similarly recognized and FRA measures that will be taken to protect system required by a FRA order issued approved standards body; trains and on-track equipment; prior to [insert effective date of final (2) Be distributed using manual or (4) An analysis of the applicability of rule]. automated methods, or a combination of the requirements of subparts A–G of this (b) If a REC letter conforms to both; and part to the PTC system that will not paragraph (a)(1) of this section, the (3) Be revoked: apply during testing; Associate Administrator, at his or her (i) If compromised by unauthorized (5) The date the proposed testing shall sole discretion, may also issue a new disclosure of the cleartext key; or begin; Type Approval for the PTC system. (ii) When the key algorithm reaches (6) The test locations; and (c) In order to receive a Type its lifespan as defined by the standards (7) The effect on the current method Approval or PTC System Certification body responsible for approval of the of the PTC system under test operation. under paragraph (a) or (b) of this algorithm. (b) FRA may impose additional section, the PTC system must be shown (c) The cleartext form of the testing conditions that it believes may to reliably execute the functionalities cryptographic keys shall be protected be necessary for the safety of train required by §§ 236.1005 and 236.1007 from unauthorized disclosure, operations. and otherwise conform to this subpart. modification, or substitution, except (c) Relief from regulations other than (d) Previous approval or recognition during key entry when the cleartext from subparts A–G of this part that the of a train control system, together with keys and key components may be railroad believes are necessary to an established service history, may, at temporarily displayed to allow visual support the field testing, must be the request of the PTC railroad, and verification. When encrypted keys or requested in accordance with part 211 consistent with available safety data, be key components are entered, the of this title. credited toward satisfaction of the safety cryptographically protected cleartext case requirements set forth in this part key or key components shall not be § 236.1037 Records retention. for the PTCSP with respect to all displayed. (a) Each railroad with a PTC system functionalities and implementations (d) Access to cleartext keys shall be required to be installed under this contemplated by the approval or protected by a tamper resistant subpart shall maintain at a designated recognition. mechanism. office on the railroad: (e) To the extent that the PTC system (e) Each railroad electing to also (1) A current copy of each FRA proposed for implementation under this provide cryptographic message approved Type Approval, if any, subpart is different in significant detail confidentiality shall: PTCDP, and PTCSP that it holds; from the system previously approved or (1) Comply with the same (2) Adequate documentation to recognized, the changes shall be fully requirements for message integrity and demonstrate that the PTCSP and PTCDP analyzed in the PTCDP or PTCSP as authentication under this section; and meet the safety requirements of this would be the case absent prior approval (2) Only use keys meeting or subpart, including the risk assessment; or recognition. exceeding the security strength required (3) An Operations and Maintenance (f) As used in this section— to protect the data as defined in the Manual, pursuant to § 236.1039; and (1) Approved refers to approval of a railroad’s PTCSP and required under (4) Training and testing records Product Safety Plan under subpart H of § 236.1017(a)(8). pursuant to § 236.1043(b). this part. (f) Each railroad, or its vendor, shall (b) Results of inspections and tests (2) Recognized refers to official action have a prioritized service restoration specified in the PTCSP and PTCDP must permitting a system to be implemented and mitigation plan for scheduled and be recorded pursuant to § 236.110. for control of train operations under an unscheduled interruptions of service. (c) Each contractor providing services order or waiver, after review of safety This plan shall be included in the relating to the testing, maintenance, or

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operation of a PTC system required to be (d) Safety-critical components, target population (craft, experience installed under this subpart shall including spare equipment, must be level, scope of work, etc.), task(s), and maintain at a designated office training positively identified, handled, replaced, desired success rate; records required under § 236.1039(b). and repaired in accordance with the (2) Based on a formal task analysis, (d) After the PTC system is placed in procedures specified in the PTCDP and identify the installation, maintenance, service, the railroad shall maintain a PTCSP. repair, modification, inspection, testing, database of all safety-relevant hazards as (e) Each railroad shall designate in its and operating tasks that must be set forth in the PTCSP and PTCDP and Operations and Maintenance Manual an performed on a railroad’s PTC systems. those that had not been previously appropriate railroad officer responsible This includes the development of identified in either document. If the for issues relating to scheduled failure scenarios and the actions frequency of the safety-relevant hazards interruptions of service contemplated by expected under such scenarios; exceeds the threshold set forth in either § 236.1029. (3) Develop written procedures for the of these documents, then the railroad § 236.1041 Training and qualification performance of the tasks identified; shall: program, general. (4) Identify the additional knowledge, (1) Report the inconsistency in skills, and abilities above those required (a) Training program for PTC writing by mail, facsimile, e-mail, or for basic job performance necessary to personnel. Employers shall establish hand delivery to the Director, Office of perform each task; and implement training and Safety Assurance and Compliance, FRA, qualification programs for PTC systems (5) Develop a training and evaluation 1200 New Jersey Ave., SE., Mail Stop subject to this subpart. These programs curriculum that includes classroom, 25, Washington, DC 20590, within 15 must meet the minimum requirements simulator, computer-based, hands-on, or days of discovery. Documents that are set forth in the PTCDP and PTCSP in other formally structured training hand delivered must not be enclosed in §§ 236.1039 through 236.1045 as designed to impart the knowledge, an envelope; appropriate, for the following personnel: skills, and abilities identified as (2) Take prompt countermeasures to (1) Persons whose duties include necessary to perform each task; reduce the frequency of each safety- installing, maintaining, repairing, (6) Prior to assignment of related relevant hazard to below the threshold modifying, inspecting, and testing tasks, require all persons mentioned in set forth in the PTCSP and PTCDP; and safety-critical elements of the railroad’s § 236.1041(a) to successfully complete a (3) Provide a final report when the PTC systems, including central office, training curriculum and pass an inconsistency is resolved to the FRA wayside, or onboard subsystems; examination that covers the PTC system Director, Office of Safety Assurance and (2) Persons who dispatch train and appropriate rules and tasks for Compliance, on the results of the operations (issue or communicate any which they are responsible (however, analysis and countermeasures taken to mandatory directive that is executed or such persons may perform such tasks reduce the frequency of the safety- enforced, or is intended to be executed under the direct onsite supervision of a relevant hazard(s) below the threshold or enforced, by a train control system qualified person prior to completing set forth in the PTCSP and PTCDP. subject to this subpart); such training and passing the examination); § 236.1039 Operations and Maintenance (3) Persons who operate trains or Manual. serve as a train or engine crew member (7) Require periodic refresher training subject to instruction and testing under and evaluation at intervals specified in (a) The railroad shall catalog and part 217 of this chapter, on a train the PTCDP and PTCSP that includes maintain all documents as specified in operating in territory where a train classroom, simulator, computer-based, the PTCDP and PTCSP for the control system subject to this subpart is hands-on, or other formally structured installation, maintenance, repair, in use; training and testing, except with respect modification, inspection, and testing of (4) Roadway workers whose duties to basic skills for which proficiency is the PTC system and have them in one require them to know and understand known to remain high as a result of Operations and Maintenance Manual, how a train control system affects their frequent repetition of the task; and readily available to persons required to safety and how to avoid interfering with (8) Conduct regular and periodic perform such tasks and for inspection its proper functioning; and evaluations of the effectiveness of the by FRA and FRA-certified State (5) The direct supervisors of persons training program specified in inspectors. listed in paragraphs (a)(1) through (a)(4) § 236.1041(a)(1) verifying the adequacy (b) Plans required for proper of this section. of the training material and its validity maintenance, repair, inspection, and (b) Competencies. The employer’s with respect to current railroads PTC testing of safety-critical PTC systems program must provide training for systems and operations. must be adequate in detail and must be persons who perform the functions (b) Training records. Employers shall made available for inspection by FRA described in paragraph (a) of this retain records which designate persons and FRA-certified State inspectors section to ensure that they have the who are qualified under this section where such PTC systems are deployed necessary knowledge and skills to until new designations are recorded or or maintained. They must identify all effectively complete their duties related for at least one year after such persons software versions, revisions, and to operation and maintenance of the leave applicable service. These records revision dates. Plans must be legible and PTC system. shall be kept in a designated location correct. and be available for inspection and (c) Hardware, software, and firmware § 236.1043 Task analysis and basic replication by FRA and FRA-certified revisions must be documented in the requirements. State inspectors. Operations and Maintenance Manual (a) Training structure and delivery. As according to the railroad’s configuration part of the program required by § 236.1045 Training specific to office management control plan and any § 236.1041, the employer shall, at a control personnel. additional configuration/revision minimum: (a) Any person responsible for issuing control measures specified in the (1) Identify the specific goals of the or communicating mandatory directives PTCDP and PTCSP. training program with regard to the in territory where PTC systems are or

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will be in use must be trained in the proper functioning of onboard train under part 214, subpart C of this chapter following areas, as applicable: control equipment. (‘‘Roadway Worker Protection’’), (1) Instructions concerning the (b) Locomotive engineer training. consistent with task analysis interface between the computer-aided Training required under this subpart for requirements of § 236.1039. This dispatching system and the train control a locomotive engineer, together with training must provide instruction for system, with respect to the safe required records, must be integrated roadway workers who provide movement of trains and other on-track into the program of training required by protection for themselves or roadway equipment; part 240 of this chapter. work groups. (2) Railroad operating rules applicable (c) Full automatic operation. The (b) Training subject areas. (1) to the train control system, including following special requirements apply in Instruction for roadway workers must provision for movement and protection the event a train control system is used ensure an understanding of the role of of roadway workers, unequipped trains, to effect full automatic operation of the processor-based signal and train control trains with failed or cut-out train control train: equipment in establishing protection for onboard systems, and other on-track (1) The PTCDP and PTCSP must roadway workers and their equipment. equipment; and identify all safety hazards to be (2) Instruction for all roadway (3) Instructions concerning control of mitigated by the locomotive engineer. workers working in territories where trains and other on-track equipment in (2) The PTCDP and PTCSP must PTC is required under this subpart must case the train control system fails, address and describe the training ensure recognition of processor-based including periodic practical exercises or required with provisions for the signal and train control equipment on simulations, and operational testing maintenance of skills proficiency. As a the wayside and an understanding of under part 217 of this chapter to ensure minimum, the training program must: how to avoid interference with its the continued capability of the (i) As described in § 236.1047(a)(2), proper functioning. personnel to provide for safe operations develop failure scenarios which (3) Instructions concerning the under the alternative method of incorporate the safety hazards identified recognition of system failures and the operation. in the PTCDP and PTCSP including the provision of alternative methods of on- (b) [Reserved] return of train operations to a fully track safety in case the train control manual mode; system fails, including periodic § 236.1047 Training specific to locomotive (ii) Provide training, consistent with practical exercises or simulations and engineers and other operating personnel. § 236.1047(a), for safe train operations operational testing under part 217 of (a) Operating personnel. Training under all failure scenarios and this chapter to ensure the continued provided under this subpart for any identified safety hazards that affect train capability of roadway workers to be free locomotive engineer or other person operations; from the danger of being struck by a who participates in the operation of a (iii) Provide training, consistent with moving train or other on-track train in train control territory must be § 236.1047(a), for safe train operations equipment. defined in the PTCDP as well as the under manual control; and 11. Revise Appendix B to part 236 to PTCSP. The following elements must be (iv) Consistent with § 236.1047(a), read as follows: addressed: ensure maintenance of manual train Appendix B to Part 236—Risk (1) Familiarization with train control operating skills by requiring manual Assessment Criteria equipment onboard the locomotive and starting and stopping of the train for an the functioning of that equipment as appropriate number of trips and by one The safety-critical performance of each part of the system and in relation to or more of the following methods: product for which risk assessment is required other onboard systems under that (A) Manual operation of a train for a under this part must be assessed in person’s control; 4-hour work period; accordance with the following minimum (2) Any actions required of the criteria or other criteria if demonstrated to (B) Simulated manual operation of a the Associate Administrator for Safety to be onboard personnel to enable, or enter train for a minimum of 4 hours in a data to, the system, such as consist data, equally suitable: Type I simulator as required; or (a) How are risk metrics to be expressed? and the role of that function in the safe (C) Other means as determined The risk metric for the proposed product operation of the train; following consultation between the must describe with a high degree of (3) Sequencing of interventions by the railroad and designated representatives confidence the accumulated risk of a train system, including pre-enforcement of the affected employees and approved control system that operates over the notification, enforcement notification, by FRA. The PTCDP and PTCSP must designated life-cycle of the product. Each risk penalty application initiation and post- designate the appropriate frequency metric for the proposed product must be expressed with an upper bound, as estimated penalty application procedures; when manual operation, starting, and (4) Railroad operating rules and with a sensitivity analysis, and the risk value stopping must be conducted, and the selected must be demonstrated to have a high testing (part 217) applicable to the train appropriate frequency of simulated degree of confidence. control system, including provisions for manual operation. (b) How does the risk assessment handle movement and protection of any (d) Conductor training. Training interaction risks for interconnected unequipped trains, or trains with failed required under this subpart for a subsystems/components? The risk or cut-out train control onboard systems conductor, together with required assessment of each safety-critical system and other on-track equipment; records, must be integrated into the (product) must account not only for the risks (5) Means to detect deviations from program of training required under this associated with each subsystem or component, but also for the risks associated proper functioning of onboard train chapter. control equipment and instructions with interactions (interfaces) between such regarding the actions to be taken with § 236.1049 Training specific to roadway subsystems. workers. (c) What is the main principle in respect to control of the train and computing risk for the previous and current notification of designated railroad (a) Roadway worker training. Training conditions? The risk for the previous personnel; and required under this subpart for a condition must be computed using the same (6) Information needed to prevent roadway worker must be integrated into metrics as for the new system being unintentional interference with the the program of instruction required proposed. A full risk assessment must

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consider the entire railroad environment hardware/software subsystem or component, (4) The railroad shall document all of the where the product is being applied, and or both. The human factor impact must be identified safety-critical fault paths to a show all aspects of the previous condition included in the assessment, whenever mishap as predicted by the safety analysis that are affected by the installation of the applicable, to provide the integrated MTTHE methodology. The documentation shall be in product, considering all faults, operating value. The MTTHE calculation must consider such a form as to facilitate later comparisons errors, exposure scenarios, and consequences the rates of failures caused by permanent, with in-service faults. that are related as described in this part. For transient, and intermittent faults accounting 12. Revise Appendix C to read as the full risk assessment, the total societal cost for the fault coverage of the integrated of the potential numbers of accidents hardware/software subsystem or component, follows: assessed for both previous and new system phased-interval maintenance, and restoration Appendix C to Part 236—Safety conditions must be computed for of the detected failures. Assurance Criteria and Processes comparison. An abbreviated risk assessment (2) Software fault/failure analysis must be must, as a minimum, clearly compute the based on the proper assessment of the design (a) What is the purpose of this appendix? MTTHE for all of the hazardous events and implementation of the application code, This appendix provides safety criteria and identified for both previous and current its operating/executive program, and processes that the designer must use to conditions. The comparison between MTTHE associated device drivers, historical develop and validate the product that meets for both conditions is to determine whether performance data, analytical methods and safety requirements of this part. FRA uses the the product implementation meets the safety experimental safety-critical performance criteria and processes set forth in this criteria as required by Subpart H or Subpart testing performed on the subsystem or appendix to evaluate the validity of safety I as applicable. component. The software assessment process targets and the results of system safety (d) What major system characteristics must must demonstrate through repeatable analyses provided in the RSPP, PSP, PTCIP, be included when relevant to risk predictive results that all software defects PTCDP, and PTCSP documents as assessment? Each risk calculation must have been identified and corrected by appropriate. An analysis performed under consider the total signaling and train control process with a high degree of confidence. this appendix must: system and method of operation, as subjected (g) How are non-processor-based (1) Address each of the safety principles of to a list of hazards to be mitigated by the subsystems/components assessed? (1) The paragraph (b) of this appendix, or explain signaling and train control system. The safety-critical behavior of all non-processor- why they are not relevant, and methodology requirements must include the based components, which are part of a (2) Employ a validation and verification following major characteristics, when they processor-based system or subsystem, must process pursuant to paragraph (c) of this are relevant to the product being considered: be quantified with an MTTHE metric. The appendix. (1) Track plan infrastructure, switches, rail MTTHE assessment methodology must (b) What safety principles must be followed consider failures caused by permanent, during product development? The designer crossings at grade and highway-rail grade transient, and intermittent faults, phase- shall address each of the following safety crossings as applicable; interval maintenance and restoration of considerations principles when designing (2) Train movement density for freight, operation after failures and the effect of fault and demonstrating the safety of products work, and passenger trains where applicable coverage of each non-processor-based covered by subpart H or I of this part. In the and computed over a time span of not less subsystem or component. event that any of these principles are not than 12 months; (2) MTTHE compliance verification and followed, the PSP or PTCDP or PTCSP shall (3) Train movement operational rules, as validation must be based on the assessment state both the reason(s) for departure and the enforced by the dispatcher, roadway worker/ of the design for adequacy by a documented alternative(s) utilized to mitigate or eliminate Employee in Charge, and train crew verification and validation process, historical the hazards associated with the design behaviors; performance data, analytical methods and principle not followed. (4) Wayside subsystems and components; experimental safety-critical performance (1) System safety under normal operating (5) Onboard subsystems and components; testing performed on the subsystem or conditions. The system (all its elements (6) Consist contents such as hazardous component. The non-processor-based including hardware and software) must be material, oversize loads; and quantification compliance must be designed to assure safe operation with no (7) Operating speeds if the provisions of demonstrated to have a high degree of hazardous events under normal anticipated Part 236 cite additional requirements for confidence. operating conditions with proper inputs and certain type of train control systems to be (h) What assumptions must be documented within the expected range of environmental used at such speeds for freight and passenger for risk assessment? (1) The railroad shall conditions. All safety-critical functions must trains. document any assumptions regarding the be performed properly under these normal (e) What other relevant parameters must be derivation of risk metrics used. For example, conditions. Absence of specific operator determined for the subsystems and for the full risk assessment, all assumptions actions or procedures will not prevent the components? In order to derive the frequency made about each value of the parameters system from operating safely. The designer of hazardous events (or MTTHE) applicable used in the calculation of total cost of must identify and categorize all hazards that for a product, subsystem or component accidents should be documented. For may lead to unsafe system operation. Hazards included in the risk assessment, the railroad abbreviated risk assessment, all assumptions categorized as unacceptable or undesirable, may use various techniques, such as made for MTTHE derivation using existing which is determined by hazard analysis, reliability and availability calculations for reliability and availability data on the current must be eliminated by design. Those subsystems and components, Fault Tree system components should be documented. undesirable hazards that cannot be Analysis (FTA) of the subsystems, and results The railroad shall document these eliminated should be mitigated to the of the application of safety design principles assumptions in such a form as to permit later acceptable level as required by this part. as noted in Appendix C. Such failure automated comparisons with in-service (2) System safety under failures. frequency is to be derived for both fail-safe experience. (i) It must be shown how the product is and non-fail-safe subsystems or components. (2) The railroad shall document any designed to eliminate or mitigate or eliminate The lower bounds of the MTTF or MTBF assumptions regarding human performance. unsafe systematic failures—those conditions determined from the system sensitivity The documentation shall be in such a form which can be attributed to human error that analysis, which account for all necessary and as to facilitate later comparisons with in- could occur at various stages throughout well justified assumptions, may be used to service experience. product development. This includes unsafe represent the estimate of MTTHE for the (3) The railroad shall document any errors in the software due to human error in associated non-fail-safe subsystem or assumptions regarding software defects. the software specification, design or coding component in the risk assessment. These assumptions shall be in a form which phases, or both; human errors that could (f) How are processor-based subsystems/ permits the railroad to project the likelihood impact hardware design; unsafe conditions components assessed? (1) An MTTHE value of detecting an in-service software defect. that could occur because of an improperly must be calculated for each processor-based These assumptions shall be documented in designed human-machine interface; subsystem or component, or both, indicating such a form as to permit later automated installation and maintenance errors; and the safety-critical behavior of the integrated comparisons with in-service experience. errors associated with making modifications.

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(ii) The product must be shown to operate following Safety Assurance Concepts as The fail-safe operation for a product or safely under conditions of random hardware described in IEEE–1483 standard to ensure subsystem designed using this principle failure. This includes single as well as that failures are detected and the product is concept requires a verification that the effect multiple hardware failures, particularly in placed in a safe state. One or more different of every relevant failure mode of each instances where one or more failures could principles may be applied to each individual component, and relevant combinations of occur, remain undetected (latent) and react in subsystem or component, depending on the component failure modes, be considered, combination with a subsequent failure at a safety design objectives of that part of the analyzed, and documented. This is typically later time to cause an unsafe operating product. performed by a comprehensive failure modes situation. In instances involving a latent (i) Design diversity and self-checking and effects analysis (FMEA) which must failure, a subsequent failure is similar to concept. This concept requires that all show no residual unmitigated failures. In the there being a single failure. In the event of critical functions be performed in diverse event of critical failures, the safety-critical a transient failure, and if so designed, the ways, using diverse software operations and/ functions and outputs must default to a system should restart itself if it is safe to do or diverse hardware channels, and that known safe state. so. Frequency of attempted restarts must be critical hardware be tested with Self- (5) Human factor engineering principle. considered in the hazard analysis required by Checking routines. Permissive outputs are The product design must sufficiently § 236.907(a)(8). allowed only if the results of the diverse incorporate human factors engineering that is (iii) There shall be no single point failures operations correspond, and the Self-Checking appropriate to the complexity of the product; in the product that can result in hazards process reveals no failures in either the educational, mental, and physical categorized as unacceptable or undesirable. execution of software or in any monitored capabilities of the intended operators and Occurrence of credible single point failures input or output hardware. If the diverse maintainers; the degree of required human that can result in hazards must be detected operations do not agree or if the checking interaction with the component; and the and the product must achieve a known safe reveals critical failures, safety-critical environment in which the product will be state before falsely activating any physical functions and outputs must default to a used. appliance. known safe state. (6) System safety under external (iv) If one non-self-revealing failure (ii) Checked redundancy concept. The influences. The product must be shown to combined with a second failure can cause a Checked Redundancy concept requires operate safely when subjected to different hazard that is categorized as unacceptable or implementation of two or more identical, external influences, including: undesirable, then the second failure must be independent hardware units, each executing (i) Electrical influences such as power detected and the product must achieve a identical software and performing identical supply anomalies/transients, abnormal/ known safe state before falsely activating any functions. A means is to be provided to improper input conditions (e.g., outside of physical appliance. periodically compare vital parameters and normal range inputs relative to amplitude (v) Another concern of multiple failures and frequency, unusual combinations of results of the independent redundant units, involves common mode failures in which inputs) including those related to a human requiring agreement of all compared two or more subsystems or components operator, and others such as electromagnetic parameters to assert or maintain a permissive intended to compensate one another to interference or electrostatic discharges, or output. If the units do not agree, safety- perform the same function all fail by the both; critical functions and outputs must default to same mode and result in unsafe conditions. (ii) Mechanical influences such as This is of particular concern in instances in a known safe state. vibration and shock; and which two or more elements (hardware or (iii) N-version programming concept. This (iii) Climatic conditions such as software, or both) are used in combination to concept requires a processor-based product temperature and humidity. ensure safety. If a common mode failure to use at least two software programs (7) System safety after modifications. exists, then any analysis performed under performing identical functions and executing Safety must be ensured following this appendix cannot rely on the assumption concurrently in a cycle. The software modifications to the hardware or software, or that failures are independent. Examples programs must be written by independent both. All or some of the concerns identified include: The use of redundancy in which two teams, using different tools. The multiple in this paragraph may be applicable or more elements perform a given function in independently written software programs depending upon the nature and extent of the parallel and when one (hardware or software) comprise a redundant system, and may be modifications. Such modifications must element checks/monitors another element (of executed either on separate hardware units follow all of the concept, design, hardware or software) to help ensure its safe (which may or may not be identical) or implementation and test processes and operation. Common mode failure relates to within one hardware unit. A means is to be principles as documented in the PSP for the independence, which must be ensured in provided to compare the results and output original product. Regression testing must be these instances. When dealing with the states of the multiple redundant software comprehensive and documented to include effects of hardware failure, the designer shall systems. If the system results do not agree, all scenarios which are affected by the address the effects of the failure not only on then the safety-critical functions and outputs change made, and the operating modes of the other hardware, but also on the execution of must default to a known safe state. changed product during normal and failure the software, since hardware failures can (iv) Numerical assurance concept. This state (fallback) operation. greatly affect how the software operates. concept requires that the state of each vital (c) What standards are acceptable for (3) Closed loop principle. System design parameter of the product or system be verification and validation? (1) The standards adhering to the closed loop principle requires uniquely represented by a large encoded employed for verification or validation, or that all conditions necessary for the existence numerical value, such that permissive results both, of products subject to this subpart must of any permissive state or action be verified are calculated by pseudo-randomly be sufficient to support achievement of the to be present before the permissive state or combining the representative numerical applicable requirements of subpart H and action can be initiated. Likewise the requisite values of each of the critical constituent subpart I of this part. conditions shall be verified to be parameters of a permissive decision. Vital (2) U.S. Department of Defense Military continuously present for the permissive state algorithms must be entirely represented by Standard (MIL–STD) 882C, ‘‘System Safety or action to be maintained. This is in contrast data structures containing numerical values Program Requirements’’ (January 19, 1993), is to allowing a permissive state or action to be with verified characteristics, and no vital recognized as providing appropriate risk initiated or maintained in the absence of decisions are to be made in the executing analysis processes for incorporation into detected failures. In addition, closed loop software, only by the numerical verification and validation standards. design requires that failure to perform a representations themselves. In the event of (3) The following standards designed for logical operation, or absence of a logical critical failures, the safety-critical functions application to processor-based signal and input, output or decision shall not cause an and outputs must default to a known safe train control systems are recognized as unsafe condition, i.e., system safety does not state. acceptable with respect to applicable depend upon the occurrence of an action or (v) Intrinsic fail-safe design concept. elements of safety analysis required by logical decision. Intrinsically fail-safe hardware circuits or subpart H and subpart I of this part. The (4) Safety assurance concepts. The product systems are those that employ discrete latest versions of the standards listed below design must include one or more of the mechanical and/or electrical components. should be used unless otherwise provided.

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(i) IEEE standards as follows: (I) IEC62279: 2002 Railway Applications: (e) The reviewer shall analyze the (A) IEEE 1483–2000, Standard for the Software for Railway Control and Protection Preliminary Hazard Analysis (PHA) for Verification of Vital Functions in Processor- Systems; comprehensiveness and compliance with Based Systems Used in Rail Transit Control. (4) Use of unpublished standards, industry, national, or international standards. (B) IEEE 1474.2–2003, Standard for user including proprietary standards, is (f) The reviewer shall analyze all Fault interface requirements in communications authorized to the extent that such standards Tree Analyses (FTA), Failure Mode and based train control (CBTC) systems. are shown to achieve the requirements of this Effects Criticality Analysis (FMECA), and (C) IEEE 1474.1–2004, Standard for part. However, any such standards shall be other hazard analyses for completeness, Communications-Based Train Control (CBTC) available for inspection and replication by correctness, and compliance with industry, Performance and Functional Requirements. FRA and for public examination in any national, or international standards. (ii) CENELEC Standards as follows: public proceeding before the FRA to which (g) The reviewer shall randomly select (A) EN50129: 2003, Railway Applications: they are relevant. various safety-critical software modules, as well as safety-critical hardware components Communications, Signaling, and Processing 13. A new Appendix F to part 236 is Systems-Safety Related Electronic Systems if required by FRA for audit to verify whether for Signaling; and added to read as follows: the vendors and industry, national, or (B) EN50155:2001/A1:2002, Railway Appendix F to Part 236—Requirements international standards were followed. The number of modules audited must be Applications: Electronic Equipment Used in of Mandatory Independent Third-Party Rolling Stock. determined as a representative number Assessment of PTC System Safety sufficient to provide confidence that all (iii) ATCS Specification 200 Verification and Validation Communications Systems Architecture. unaudited modules were developed in (iv) ATCS Specification 250 Message (a) This appendix provides minimum compliance industry, national, or Formats. requirements for mandatory independent international standards (v) AREMA 2009 Communications and third-party assessment of PTC system safety (h) The reviewer shall evaluate and comment on the plan for installation and test Signal Manual of Recommended Practices, verification and validation pursuant to procedures of the PTC system for revenue Part 16, Part 17, 21, and 23. subpart H or I of this part. The goal of this service. (vi) Safety of High Speed Ground assessment is to provide an independent (i) The reviewer shall prepare a final report Transportation Systems. Analytical evaluation of the PTC system manufacturer’s of the assessment. The report shall be Methodology for Safety Validation of utilization of safety design practices during the PTC system’s development and testing submitted to the railroad prior to the Computer Controlled Subsystems. Volume II: commencement of installation testing and Development of a Safety Validation phases, as required by the applicable PSP, PTCDP, and PTCSP, the applicable contain at least the following information: Methodology. Final Report September 1995. (1) Reviewer’s evaluation of the adequacy Author: Jonathan F. Luedeke, Battelle. DOT/ requirements of subpart H or I of this part, and any other previously agreed-upon of the PSP or PTCSP including the supplier’s FRA/ORD–95/10.2. MTTHE and risk estimates for the PTC (vii) IEC 61508 (International controlling documents or standards. (b) The supplier may request advice and system, and the supplier’s confidence Electrotechnical Commission), Functional interval in these estimates; Safety of Electrical/Electronic/ assistance of the independent third-party reviewer concerning the actions identified in (2) PTC system vulnerabilities, potentially Programmable/Electronic Safety (E/E/P/ES) hazardous failure modes, or potentially Related Systems, Parts 1–7 as follows: paragraphs (c) through (g) of this appendix. However, the reviewer should not engage in hazardous operating circumstances which (A) IEC 61508–1 (1998–12) Part 1: General design efforts in order to preserve the the reviewer felt were not adequately requirements and IEC 61508–1 Corr. (1999– reviewer’s independence and maintain the identified, tracked or mitigated; 05) Corrigendum 1–Part 1: General supplier’s proprietary right to the PTC (3) A clear statement of position for all Requirements. system. parties involved for each PTC system (B) IEC 61508–2 (2000–05) Part 2: (c) The supplier shall provide the reviewer vulnerability cited by the reviewer; Requirements for electrical/electronic/ access to any and all documentation that the (4) Identification of any documentation or programmable electronic safety-related reviewer requests and attendance at any information sought by the reviewer that was systems. design review or walkthrough that the denied, incomplete, or inadequate; (C) IEC 61508–3 (1998–12) Part 3: Software reviewer determines as necessary to complete (5) A listing of each applicable vendor, requirements and IEC 61508–3 Corr.1 (1999– and accomplish the third party assessment. industry, national or international standard, 04) Corrigendum 1–Part3: Software The reviewer may be accompanied by process, or procedure which was not requirements. representatives of FRA as necessary, in FRA’s properly followed; (D) IEC 61508–4 (1998–12) Part 4: judgment, for FRA to monitor the assessment. (6) Identification of the hardware and Definitions and abbreviations and IEC (d) The reviewer shall evaluate with software verification and validation 61508–4 Corr.1 (1999–04) Corrigendum 1– respect to safety and comment on the procedures for the PTC system’s safety- Part 4: Definitions and abbreviations. adequacy of the processes which the supplier critical applications, and the reviewer’s (E) IEC 61508–5 (1998–12) Part 5: applies to the design and development of the evaluation of the adequacy of these Examples of methods for the determination PTC system. At a minimum, the reviewer procedures; of safety integrity levels and IEC 61508–5 shall compare the supplier processes with (7) Methods employed by PTC system Corr.1 (1999–04) Corrigendum 1 Part 5: acceptable methodology and employ any manufacturer to develop safety-critical Examples of methods for determination of other such tests or comparisons if they have software, such as use of structured language, safety integrity levels. been agreed to previously with FRA. Based code checks, modularity, or other similar (F) IEC 61508–6 (2000–04) Part 6: on these analyses, the reviewer shall identify generally acceptable techniques; and Guidelines on the applications of IEC 61508– and document any significant safety (8) If directed by FRA, methods employed 2 and –3. vulnerabilities which are not adequately by PTC system manufacturer to develop (G) IEC 61508–7 (2000–03) Part 7: mitigated by the supplier’s (or user’s) safety-critical hardware. Overview of techniques and measures. processes. Finally, the reviewer shall Karen J. Rae, (H) IEC62278: 2002, Railway Applications: evaluate the adequacy of the railroad’s Specification and Demonstration of applicable PSP or PTCSP, and any other Deputy Administrator. Reliability, Availability, Maintainability and documents pertinent to the PTC system being [FR Doc. E9–17184 Filed 7–15–09; 4:15 pm] Safety (RAMS); assessed. BILLING CODE 4910–06–P

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Part IV

Department of Homeland Security Transportation Security Administration

49 CFR Part 1503 Revision of Enforcement Procedures; Final Rule

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DEPARTMENT OF HOMELAND Administration, 601 South 12th Street, public regulatory docket. Please submit SECURITY Arlington, VA 20598–6002; telephone such comments separately from other (571) 227–3964; facsimile (571) 227– comments on the rulemaking. Transportation Security Administration 1380; e-mail [email protected]. Comments containing this type of SUPPLEMENTARY INFORMATION: information should be appropriately 49 CFR Part 1503 marked as containing such information Comments Invited [Docket No. TSA–2009–0013] and submitted by mail to the address TSA invites interested persons to listed in the FOR FURTHER INFORMATION RIN 1652–AA62 participate in this rulemaking by CONTACT section. submitting written comments, data, or TSA will not place comments Revision of Enforcement Procedures views. TSA also invites comments containing SSI in the public docket and AGENCY: Transportation Security relating to the economic, environmental, will handle them in accordance with Administration, DHS. energy, or Federalism impacts that applicable safeguards and restrictions on access. TSA will hold documents ACTION: Final rule; request for might result from this rulemaking containing SSI, confidential business comments. action. See ADDRESSES above for information on where to submit information, or trade secrets in a SUMMARY: The Transportation Security comments. separate file to which the public does Administration (TSA) amends its With each comment, please identify not have access, and place a note in the Investigative and Enforcement the docket number at the beginning of public docket that TSA has received Procedures in this final rule to conform your comments. TSA encourages such materials from the commenter. to the Implementing Recommendations commenters to provide their names and However, if TSA determines that of the 9/11 Commission Act of 2007. addresses. The most helpful comments portions of these comments may be The rule establishes procedures by reference a specific portion of the made publicly available, TSA may which TSA may issue civil monetary rulemaking, explain the reason for any include a redacted version of the penalties for violations of any statutory recommended change, and include comment in the public docket. If TSA requirement administered by TSA, supporting data. The public may submit receives a request to examine or copy including surface transportation comments and material electronically, information that is not in the public requirements and Transportation in person, by mail, or fax as provided docket, TSA will treat it as any other Worker Identification Credentials under ADDRESSES, but please submit request under the Freedom of requirements. The rule also clarifies and your comments and material by only Information Act (FOIA), 5 U.S.C. 552, reorganizes TSA’s investigative and one means. If you submit comments by and the Department of Homeland enforcement procedures, and makes mail or delivery, submit them in an Security’s (DHS’) FOIA regulation found inflation adjustments to the maximum unbound format, no larger than 8.5 by in 6 CFR part 5. civil monetary penalty amounts. 11 inches, suitable for copying and Reviewing Comments in the Docket DATES: Effective Date: This rule is electronic filing. Please be aware that anyone is able to effective August 20, 2009. If you want TSA to acknowledge search the electronic form of all Comment Date: Comments must be receipt of comments submitted by mail, comments received into any of our received by September 21, 2009. include with your comments a self- addressed, stamped postcard on which dockets by the name of the individual ADDRESSES: You may submit comments, submitting the comment (or signing the identified by the TSA docket number to the docket number appears. We will stamp the date on the postcard and mail comment, if submitted on behalf of an this rulemaking, to the Federal Docket association, business, labor union, etc.). Management System (FDMS), a it to you. TSA will file in the public docket all You may review the applicable Privacy government-wide, electronic docket Act Statement published in the Federal management system, using any one of comments received by TSA, except for comments containing confidential Register on April 11, 2000 (65 FR the following methods: 19477), or you may visit http:// Electronically: You may submit information and sensitive security information (SSI).1 TSA will consider DocketInfo.dot.gov. comments through the Federal You may review TSA’s electronic eRulemaking portal at http:// all comments received on or before the closing date for comments and will public docket on the Internet at http:// www.regulations.gov. Follow the online www.regulations.gov. In addition, DOT’s instructions for submitting comments. consider comments filed late to the extent practicable. The docket is Docket Management Facility provides a Mail, In Person, or Fax: Address, physical facility, staff, equipment, and hand-deliver, or fax your written available for public inspection before and after the comment closing date. assistance to the public. To obtain comments to the Docket Management assistance or to review comments in Facility, U.S. Department of Handling of Confidential or Proprietary TSA’s public docket, you may visit this Transportation, 1200 New Jersey Information and Sensitive Security facility between 9 a.m. to 5 p.m., Avenue, SE., West Building Ground Information (SSI) Submitted in Public Monday through Friday, excluding legal Floor, Room W12–140, Washington, DC Comments holidays, or call (202) 366–9826. This 20590–0001; Fax 202–493–2251. The Do not submit comments that include docket operations facility is located in Department of Transportation (DOT), the West Building Ground Floor, Room which maintains and processes TSA’s trade secrets, confidential commercial or financial information, or SSI to the W12–140 at 1200 New Jersey Avenue, official regulatory dockets, will scan the SE., Washington, DC 20590. submission and post it to FDMS. 1 ‘‘Sensitive Security Information’’ or ‘‘SSI’’ is SUPPLEMENTARY INFORMATION Availability of Rulemaking Document See for information obtained or developed in the conduct format and other information about of security activities, the disclosure of which would You can get an electronic copy using comment submissions. constitute an unwarranted invasion of privacy, the Internet by— FOR FURTHER INFORMATION CONTACT: reveal trade secrets or privileged or confidential information, or be detrimental to the security of (1) Searching the electronic Federal Sarah Tauber, Office of Chief Counsel, transportation. The protection of SSI is governed by Docket Management System (FDMS) TSA–2, Transportation Security 49 CFR part 1520. Web page at http://www.regulations.gov;

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(2) Accessing the Government 6. Computation of Time (§ 1503.411) Adjustment Act of 1990, Public Law Printing Office’s Web page at http:// 7. Notice of Proposed Civil Penalty 101–410 (Adjustment Act), 28 U.S.C. www.gpoaccess.gov/fr/index.html; or (§ 1503.413) 2461 note. (3) Visiting TSA’s Security 8. Request for Portions of the Enforcement Investigative Report (EIR) (§ 1503.415) II. Background Regulations Web page at http:// 9. Final Notice of Proposed Civil Penalty This rulemaking implements certain www.tsa.gov and accessing the link for and Order (§ 1503.417) ‘‘Research Center’’ at the top of the page. 10. Order Assessing Civil Penalty provisions of the 9/11 Act that expand 2 In addition, copies are available by (§ 1503.419) TSA’s civil penalty authority. This writing or calling the individual in the 11. Streamlined Civil Penalty Procedures section describes the relevant 9/11 Act FOR FURTHER INFORMATION CONTACT for Certain Security Violations provisions and TSA’s enforcement section. Make sure to identify the docket (§ 1503.421) process. number of this rulemaking. 12. Consent Orders (§ 1503.423) 13. Compromise Orders (§ 1503.425) A. New Civil Penalty Authority Small Entity Inquiries 14. Request for a Formal Hearing Section 1302(a) of the 9/11 Act The Small Business Regulatory (§ 1503.427) applies civil penalties provisions to: 15. Filing of Documents With the (1) Any provision of title 49 U.S.C. Enforcement Fairness Act (SBREFA) of Enforcement Docket Clerk (§ 1503.429) 1996 requires TSA to comply with small 16. Certification of Documents (§ 1503.431) administered by TSA, including entity requests for information and D. Subpart G—Rules of Practice in TSA violations of any surface transportation advice about compliance with statutes Civil Penalty Actions requirements; and (2) any violations of and regulations within TSA’s 1. Applicability (§ 1503.601) ch. 701 of title 46 U.S.C., which governs jurisdiction. Any small entity that has a 2. Administrative Law Judges (§ 1503.607) transportation worker identification question regarding this document may 3. Complaint (§ 1503.609) credentials (TWIC).3 TSA may assess a contact the person listed in FOR FURTHER 4. Consolidation and Separation of Cases maximum penalty per case of $50,000 if (§ 1503.613) INFORMATION CONTACT the violation is committed by an . Persons can 5. Extension of Time (§ 1503.617) obtain further information regarding 6. Withdrawal of Complaint or Request for individual or small business. TSA may SBREFA on the Small Business Hearing (§ 1503.623) assess a maximum penalty amount per Administration’s Web page at http:// 7. Discovery (§ 1503.633) case of $400,000 if the violation is www.sba.gov/advo/laws/law_lib.html. 8. Standard of Proof (§ 1503.637) committed by a person other than an 9. Argument Before the ALJ (§ 1503.653) individual or small business.4 A Federal Abbreviations and Terms Used in This 10. Initial Decision (§ 1503.655) court may assess penalties exceeding Document 11. Appeal From Initial Decision these amounts.5 9/11 Act—Implementing Recommendations (§ 1503.657) Prior to imposing a civil penalty, TSA of the 9/11 Commission Act of 2007 V. Administrative Procedure Act must provide to the person against VI. Paperwork Reduction Act ALJ—Administrative Law Judge whom the penalty is to be imposed: (1) CPI—Consumer Price Index VII. Economic Impact Analyses A. Regulatory Evaluation Summary Written notice of the proposed penalty; FNPCP—Final Notice of Proposed Civil and (2) the opportunity to request a Penalty B. Executive Order 12866 Assessment FOIA—Freedom of Information Act C. Costs and Benefits hearing on the proposed penalty, if TSA NPCP—Notice of Proposed Civil Penalty D. Regulatory Flexibility Act Assessment receives the request not later than 30 OACP—Order Assessing Civil Penalty E. International Trade Impact Assessment days after the date on which the person SSI—Sensitive Security Information F. Unfunded Mandates Assessment receives notice.6 Investigations and TWIC—Transportation Worker Identity VIII. Other Analyses proceedings governing such cases must Credential A. Executive Order Federalism follow the requirements set forth in ch. USCG—United States Coast Guard B. Environmental Analysis C. Energy Impact Analysis 461 of title 49 U.S.C., which govern 7 Table of Contents List of Subjects in 49 CFR Part 1503 aviation security matters. The Amendments The 9/11 Act establishes additional I. Summary of the Rulemaking procedural requirements in cases II. Background I. Summary of the Rulemaking involving public transportation A. New Civil Penalty Authority B. Summary of the Civil Penalty Process In this rule, TSA makes several agencies. Under section 1304(e) of the 1. Notice of Proposed Civil Penalty changes to TSA’s enforcement 9/11 Act, prior to imposing a civil 2. Informal Conference procedures, codified at 49 CFR part penalty against a public transportation 3. Order Assessing a Civil Penalty 1503. As described more fully below, agency, TSA is required to give written 4. Final Notice of Proposed Civil Penalty this rule— notice of the violation and a reasonable 5. Formal Hearing • Reorganizes and clarifies TSA’s opportunity to correct the violation or 6. Appeal From the ALJ Initial Decision enforcement procedures and make them propose an alternative means of 7. Appeal From the TSA Decision Maker’s easier to use; compliance acceptable to TSA. TSA Final Decision and Order • Applies TSA’s enforcement III. Reorganization Summary may not take legal enforcement action IV. Section-by-Section Analysis procedures to violations of surface against a public transportation agency A. Subpart B—Scope of Investigative and transportation requirements and of unless TSA has provided such notice Enforcement Procedures TSA’s Transportation Worker and the public transportation agency 1. TSA Requirements (§ 1503.101) Identification Credential requirements, fails to correct the violation or propose 2. Terms Used in This Part (§ 1503.103) as provided in sections 1302 and B. Subpart D—Non-Civil Penalty 1304(e) of the Implementing 2 Pub. L. 110–53, section 1302(a), 121 Stat. 390 Enforcement Recommendations of the 9/11 (Aug. 3, 2007). C. Subpart E—Assessment of Civil Commission Act of 2007, Public Law 3 Pub. L. 110–53, section 1302(a), 121 Stat. 390 Penalties by TSA (Aug. 3, 2007). TSA exercises this function under 1. Maximum Penalty Amounts (§ 1503.401) 110–53, 121 Stat. 266, 390, Aug. 3, 2007 delegated authority from the Secretary. (9/11 Act); and 4 2. Delegation of Authority (§ 1503.403) • 49 U.S.C. 114(v)(3)(D). 3. Injunctions (§ 1503.405) Adjusts for inflation the maximum 5 49 U.S.C. 114(v)(3)(C). 4. Military Personnel (§ 1503.407) civil penalty amounts, in accordance 6 49 U.S.C. 114(v)(3)(E). 5. Service of Documents (§ 1503.409) with the Federal Civil Penalty Inflation 7 49 U.S.C. 114(v)(5).

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an alternative means of compliance TSA first gives the public transportation 5. Formal Hearing acceptable to TSA within the timeframe agency written notice of the violation A respondent must request a formal provided in the notice.8 and a reasonable opportunity to correct hearing in writing within 30 days of Prior to enactment of section 1302 of the violation, or to propose an receipt of the NPCP, or within 15 days the 9/11 Act, TSA assessed alternative means of compliance of receipt an FNPCP. The respondent administrative civil penalties only for acceptable to TSA, and the public must send the request for a formal violations of aviation security related transportation agency fails to do so hearing to the Enforcement Docket Clerk statutes under 49 U.S.C. ch. 449, and 49 within the timeframe provided in the and a copy of the request for a formal U.S.C. 46302 and 46303. TSA’s notice.11 Reasonableness will depend hearing to the TSA counsel. procedures for assessing civil penalties on the totality of the circumstances, for such violations are set forth at 49 including the security consequences of An Administrative Law Judge (ALJ) CFR part 1503. This rule amends part the violation. conducts the formal hearing. The 1503 to expand its application to procedural rules governing formal violations of any statutory requirement 2. Informal Conference hearings are set forth at 49 CFR part administered by TSA, including surface 1503, subpart G. Within 20 days of The informal conference provides the transportation requirements and TWIC receipt of a timely request for hearing, respondent with an opportunity to requirements, in accordance with the TSA counsel will file a Complaint discuss the alleged violation informally provisions of the 9/11 Act. reciting the allegations in the NPCP or with TSA counsel and to present FNPCP, as applicable. The respondent B. Summary of the Civil Penalty Process exculpatory evidence. This conference must file a written Answer to the The following is a general summary of can be held by telephone or in person. Complaint within 30 days of receipt. the process TSA currently uses to assess Many TSA enforcement cases settle as a The matter proceeds to a formal a civil penalty for violations of the result of information exchanged or hearing unless the ALJ grants a motion statutes, regulations, and orders it representations made at (or after) the to dismiss or a motion for a decision (or administers. The rule applies this informal conference. unless the case settles). At the formal process, with certain changes discussed 3. Order Assessing a Civil Penalty hearing, both parties have the below, to violations of surface opportunity to present witnesses and transportation and TWIC requirements, If the respondent elects to pay the other evidence. The ALJ will issue an to include: (1) TWIC; 9 (2) commercial penalty, or if the matter settles (either at Initial Decision at the close of a hearing drivers’ licenses with hazardous the informal conference or before or or shortly thereafter. material endorsements (49 CFR parts after the informal conference), TSA 1570 and 1572); and (3) rail counsel issues an Order Assessing a 6. Appeal From the ALJ Initial Decision transportation security (49 CFR part Civil Penalty (OACP). The order states Either party may appeal the ALJ 1580).10 the law violated, the facts establishing Initial Decision to the TSA Decision 1. Notice of Proposed Civil Penalty the violation, the amount of the penalty, Maker. The TSA Decision Maker is the and how and by when the respondent Assistant Secretary of Homeland TSA initiates a civil penalty action by is to pay the penalty. Security (Transportation Security sending the alleged violator (the Administration) or his or her designee. 4. Final Notice of Proposed Civil respondent) a Notice of Proposed Civil The party appealing the decision must Penalty Penalty (NPCP), which states the statute, file a written Notice of Appeal with the regulation, or order allegedly violated, In the event the respondent does not Enforcement Docketing Center within the facts TSA believes establish the 10 days of receipt of the Initial Decision violation, and the amount of the penalty respond to the NPCP within 30 days, or in the event the respondent and TSA and must also file an appeal brief with TSA proposes to impose for the the Docketing Center within 50 days of violation. The NPCP also informs the counsel cannot agree on a penalty amount during settlement discussions, receipt of the Initial Decision. Reply respondent that he or she has 30 days briefs may be filed up to 35 days after from receipt to either: (1) Pay the TSA counsel issues a Final Notice of Proposed Civil Penalty (FNPCP). The receipt of the appeal brief. The address penalty; or (2) provide information of the Docketing Center is: Docketing demonstrating that a violation did not FNPCP gives the respondent 15 days from receipt to: (1) Pay the penalty; (2) Center, U.S. Coast Guard, 40 S. Gay occur, that the penalty should be lower Street, Room 412, Baltimore, MD because of mitigating circumstances, or reach an agreed penalty amount with TSA counsel; or (3) request a formal 21202–4022, Attn: Enforcement Docket that the respondent is unable to pay the Clerk. proposed penalty. If the respondent hearing before an ALJ. Under the does not pay the penalty, they must also current regulations, the FNPCP also After receipt of the appeal brief (and request an informal conference with states that if the respondent does not any reply brief), the TSA Decision TSA counsel; or request a formal respond to the FNPCP within 15 days, Maker will render a Final Decision and hearing before an Administrative Law or if the matter has not settled and the Order. A party may request the TSA Judge (ALJ). respondent has not requested a formal Decision Maker to reconsider a Final Pursuant to section 1304(e) of the 9/ hearing within 15 days, TSA counsel Decision and Order by filing a Petition 11 Act, TSA will not send an NPCP to will issue an OACP in the penalty for Reconsideration within 30 days of a public transportation agency unless amount proposed by the FNPCP. One of the Final Decision. the changes this rule makes is to have 7. Appeal From the TSA Decision 8 See Pub. L. 110–53, section 1304(e)(2), 121 Stat. the FNCP automatically convert to an Maker’s Final Decision and Order 393. OACP, if within 15 days the respondent 9 TWIC is a joint program with the United States has not responded to the FNPCP, settled Either party may appeal a Final Coast Guard. TSA enforces its regulatory program Decision of the TSA Decision Maker to at 49 CFR parts 1570 and 1572, and the Coast Guard the case, or requested a formal hearing. enforces its regulations at 33 CFR parts 101–106. an appropriate U.S. Circuit Court of 10 See Rail Transportation Security; final rule, 73 11 See Pub. L. 110–53, section 1304(e)(2), 121 Stat. Appeals within 60 days after the Final FR 72130 (Nov. 26, 2008). 393. Order has been served on the party.

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III. Reorganization Summary recodification of these regulations, to contradictions, and other imperfections. conform to the understood policy, The reorganization is illustrated in the This rule reorganizes part 1503 and intent, and purpose of the original accompanying redistribution table in clarifies its provisions without regulations, with such amendments and Table 1 that follows. substantive change. TSA intends, in the corrections as will remove ambiguities,

TABLE 1—REDISTRIBUTION OF 49 CFR PART 1503

Former section New section New title

1503.1 ...... 1503.201 ...... Reports of violations. 1503.3 ...... 1503.203 ...... Investigations. 1503.5 ...... 1503.801 ...... Formal complaints. 1503.7 ...... 1503.205 ...... Records, documents, and reports. 1503.11 ...... 1503.301 ...... Warning notices and letters of correction. 1503.12 ...... 1503.415 ...... Request for portions of the enforcement investigative report (EIR). 1503.13 ...... 1503.423 ...... Consent orders. 1503.15 ...... 1503.701 ...... Applicability of this subpart. 1503.703 ...... Civil penalty letter; referral. 1503.16 ...... 1503.401 ...... Maximum penalty amounts; jurisdiction. 1503.403 ...... Delegation of authority. 1503.413 ...... Notice of Proposed Civil Penalty. 1503.417 ...... Final Notice of Proposed Civil Penalty and Order. 1503.419 ...... Order Assessing Civil Penalty. 1503.425 ...... Compromise orders. 1503.427 ...... Request for a formal hearing. 1503.657(a) ...... Appeal from initial decision. 1503.21 ...... 1503.407 ...... Military personnel. 1503.25 ...... 1503.405 ...... Injunctions. 1503.29 ...... 1503.421 ...... Streamlined civil penalty procedures for certain secu- rity violations. 1503.419 ...... Order Assessing Civil Penalty. 1503.201 ...... 1503.601 ...... Applicability. 1503.202 ...... 1503.103 ...... Terms used in this part. 1503.203 ...... 1503.603 ...... Separation of functions. 1503.204 ...... 1503.605 ...... Appearances and rights of parties. 1503.651 ...... Record. 1503.205 ...... 1503.607 ...... Administrative law judges. 1503.206 ...... 1503.619 ...... Intervention. 1503.207 ...... 1503.431 ...... Certification of documents. 1503.208 ...... 1503.609 ...... Complaint. 1503.209 ...... 1503.409 ...... Service of documents. 1503.429 ...... Filing of documents with the Enforcement Docket Clerk. 1503.611 ...... Answer. 1503.210 ...... 1503.429 ...... Filing of documents with the Enforcement Docket Clerk. 1503.211 ...... 1503.409 ...... Service of documents. 1503.212 ...... 1503.411 ...... Computation of time. 1503.213 ...... 1503.617 ...... Extension of time. 1503.214 ...... 1503.621 ...... Amendment of pleadings. 1503.215 ...... 1503.623 ...... Withdrawal of complaint or request for hearing. 1503.216 ...... 1503.625 ...... Waivers. 1503.217 ...... 1503.627 ...... Joint procedural and discovery schedule. 1503.218 ...... 1503.629 ...... Motions. 1503.219 ...... 1503.631 ...... Interlocutory appeals. 1503.220 ...... 1503.633 ...... Discovery. 1503.221 ...... 1503.615 ...... Notice of hearing. 1503.222 ...... 1503.635 ...... Evidence. 1503.223 ...... 1503.637 ...... Standard of proof. 1503.224 ...... 1503.639 ...... Burden of proof. 1503.225 ...... 1503.641 ...... Offer of proof. 1503.226 ...... 1503.643 ...... Public disclosure of evidence. 1503.227 ...... 1503.645 ...... Expert or opinion witnesses. 1503.228 ...... 1503.647 ...... Subpoenas. 1503.229 ...... 1503.649 ...... Witness fees. 1503.230 ...... 1503.651 ...... Record. 1503.231 ...... 1503.653 ...... Argument before the ALJ. 1503.232 ...... 1503.655 ...... Initial decision. 1503.233 ...... 1503.655(d) ...... Effect of initial decision. 1503.657 ...... Appeal from initial decision. 1503.234 ...... 1503.659 ...... Petition to reconsider or modify a final decision and order of the TSA decision maker on appeal. 1503.235 ...... 1503.661 ...... Judicial review of a final order. 1503.301 ...... 1503.901 ...... Scope and purpose.

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TABLE 1—REDISTRIBUTION OF 49 CFR PART 1503—Continued

Former section New section New title

1503.303 ...... 1503.903 ...... Definitions. 1503.305 ...... 1503.401 ...... Maximum penalty amounts.

IV. Section-by-Section Analysis The rule codifies the statutory case that TSA may assess. Vision 100— definition of ‘‘public transportation Century of Aviation Reauthorization Act TSA makes amendments and agency’’ as a publicly owned operator of (Vision 100) (Pub. L. 108–176, sec. corrections as will remove ambiguities, public transportation eligible to receive 503(b), 117 Stat. 2490 (Dec. 12, 2003). contradictions, and other imperfections Federal assistance under 49 U.S.C. ch. Section 1503.401 also adds reference in the provisions of part 1503 discussed 53.12 to the maximum civil penalty amounts below. The changes begin with subpart Under the current part 1503, the term under the 9/11 Act for violations of any B. Subpart A is reserved. Sections of the ‘‘respondent’’ is defined as ‘‘a person, statute administered by TSA. Statutes rule that were reorganized without corporation, or company named in a administered by TSA include both change are not discussed in this complaint.’’ This rule amends this aviation security statutes and statutes preamble. definition to be ‘‘the person named in a authorizing or directing TSA to impose A. Subpart B—Scope of Investigative Notice of Proposed Civil Penalty, a Final surface transportation requirements. See and Enforcement Procedures Notice of Proposed Civil Penalty and 49 U.S.C. ch. 449, and secs. 46302, Order, or a complaint.’’ This promotes 46303, and 46 U.S.C. ch. 701. TSA may 1. TSA Requirements (§ 1503.101) clarity in the regulation by permitting impose penalties under these statutes For purposes of this part, TSA adopts the use of ‘‘respondent’’ to refer to the for violations of any aviation or surface the term ‘‘TSA requirements’’ to refer to alleged violator at any stage in the transportation security requirements, the universe of statutory, regulatory, and enforcement process. including violations of TSA’s TWIC other legal requirements, the violation B. Subpart D—Non-Civil Penalty requirements, whether imposed by an of which could give rise to TSA Enforcement implementing regulation or order. enforcement. Accordingly, the revised Subpart D (Warning Notices and Paragraph (d) adjusts the applicable part 1503 applies to enforcement actions Letters of Correction (§ 1503.301)) maximum penalties for inflation as for violations of any TSA surface broadens the scope of these provisions described below. transportation requirement under title making them applicable to cases The Federal Civil Penalties Inflation 49 U.S.C. and the TWIC requirements involving any TSA requirement. It also Adjustment Act of 1990, Public Law TSA has issued under 46 U.S.C. ch. 701. codifies the provisions of section 101–410 (Adjustment Act), 28 U.S.C. 2. Terms Used in This Part (§ 1503.103) 1304(e) of the 9/11 Act requiring that: 2461 note, provides for the regular (1) TSA give written notice of a evaluation of civil monetary penalties to Section 1503.103 removes the violation and a reasonable opportunity ensure that they continue to maintain definition of ‘‘complainant’’ because it to correct the violation or propose an their deterrent effect and that penalty is no longer used in the revised part alternative means of compliance before amounts due the Federal Government 1503. The definitions of ‘‘complaint’’ taking legal enforcement action against are properly accounted for and and ‘‘order assessing civil penalty’’ are a public transportation agency; and (2) collected. removed because they are defined in the TSA not initiate civil enforcement On April 26, 1996, the President specific sections where they are used. action for violations of administrative signed into law the Omnibus Section 1503.103 adds a definition of and procedural requirements pertaining Consolidated Rescissions and ‘‘enforcement investigative report to transportation security grant Appropriations Act of 1996, Public Law (EIR)’’, which appears in the current programs under Public Law 110–53.13 In 104–134. Section 31001 of that Act, also part 1503, but is not defined. determining reasonableness under this known as the Debt Collection This rule amends the definition of provision, TSA will consider the totality Improvement Act of 1996 (Improvement ‘‘mail’’ by clarifying that it includes of the circumstances. Act), amended the Adjustment Act to regular U.S. mail service. In addition, provide more effective tools for the rule deletes reference to overnight C. Subpart E—Assessment of Civil government-wide collection of express courier service in the definition Penalties by TSA delinquent debt. Section 31001(s)(1) of of ‘‘mail.’’ Overnight express courier 1. Maximum Civil Penalty Amounts the Improvement Act added a new service is more appropriately covered (§ 1503.401) section 7 to the Adjustment Act under the current definition of Section 1503.401 updates the providing that any increase in a civil ‘‘personal delivery,’’ which includes maximum civil penalty amounts for monetary penalty made pursuant to this ‘‘use of a contract or express messenger civil penalties assessed by TSA. Act shall apply only to violations that service.’’ Accordingly, the definition of Congress raised the maximum civil occur after the date the increase takes ‘‘personal delivery’’ is amended to penalty amounts per violation for effect. The Improvement Act provides include reference to an overnight certain aviation security statutes. that the adjustments for inflation express courier service. Homeland Security Act of 2002, Public required by the Adjustment Act should The rule amends the definition of Law 107–296, section 1602, 116 Stat. be made at least every four years. ‘‘pleading’’ to include not only a 2135 (Nov. 25, 2002). Congress also The amounts of the adjustments are complaint, answer, and amendment to raised the total civil penalty amount per determined according to a detailed the complaint or answer, but also any formula specified in the Adjustment other written submission to the ALJ or 12 9/11 Act at section 1402(5). Act, incorporating a ‘‘cost-of-living a party during the course of the hearing 13 See Pub. L. 110–53, section 1304(e), 121 Stat. adjustment’’ that is defined in section proceedings. 393. 5(b) of the Adjustment Act as being the

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percentage (if any) for each civil Deputy Chief Counsel and makes 7. Notice of Proposed Civil Penalty monetary penalty by which— explicit the authority of the Chief (§ 1503.413) (1) The Consumer Price Index for the Counsel or Deputy Chief Counsel for When TSA determines that a person month of June of the calendar year Enforcement to negotiate lower civil has violated a TSA requirement and that preceding the adjustment, exceeds penalties than those that TSA initially a civil penalty is warranted, the agency (2) The Consumer Price Index for the proposed. issues a Notice of Proposed Civil month of June of the calendar year in 3. Injunctions (§ 1503.405) Penalty to the alleged violator. Section which the amount of such civil Section 1503.405 incorporates the 1503.413 revises without significant monetary penalty was last set or change the provisions governing the adjusted pursuant to law. provisions regarding the institution of injunctions currently codified in issuance of Notices of Proposed Civil Section 31001(s)(2) of the Penalty currently codified at Improvement Act also provides that the § 1503.25, and expands their scope to cover any violation of title 49 U.S.C. § 1503.16(d) and updates the address for first adjustment of a civil monetary TSA’s Enforcement Docket Clerk, which penalty made pursuant to these administered by TSA or TSA’s TWIC requirements under 46 U.S.C. ch. 701. now is located at the United States procedures may not exceed 10 percent Coast Guard (USCG) ALJ Docketing of the penalty. Congress reenacted the 4. Military Personnel (§ 1503.407) Center, 40 S. Gay Street, Room 412, penalties in 2003. This rule, Baltimore, Maryland 21202–4022. accordingly, represents the first The current regulation provides that adjustment of the civil monetary the Chief Counsel or Deputy Chief 8. Request for Portions of the penalties after the last Congressional Counsel for Civil Enforcement will refer Enforcement Investigative Report (EIR) action. such cases to the appropriate military (§ 1503.415) Subpart E of this rule incorporates the authority for such disciplinary action, as that authority considers appropriate. Section 1503.415 revises slightly the provisions previously in subpart H and provisions currently codified at establishes new civil penalty maximums Section 1503.407 of this rule expands the delegation to authorize any § 1503.12 governing the release of based on an adjustment for inflation for limited investigative materials to the violations of 49 U.S.C. ch. 449 (except designated agency official to make such referrals and expands the scope of the recipient of a Notice of Proposed Civil secs. 44902, 44903(d), 44907(a)– Penalty. When TSA issues a Notice of (d)(1)(A), 44907(d)(1)(C)–(f), 44908, and section to encompass violations of any TSA requirement. Proposed Civil Penalty, the respondent 44909), or 49 U.S.C. 46302 or 46303. may request portions of the relevant TSA has adjusted maximum penalties 5. Service of Documents (§ 1503.409) investigative report that are not as follows: Section 1503.409 amends current privileged (e.g., under the deliberative The CPI increased by 21.63 percent process, attorney work-product, or 14 § 1503.211, which governs service of from June 2002 to June 2008. documents in the context of a formal attorney-client privileges). This Based on this increase, the inflation hearing. Section 1503.409 governs the information may contain Sensitive adjusted maximum for the $10,000 civil service of documents at all stages of the Security Information (SSI), which is penalty amount would be $12,163. civil enforcement process, beginning restricted from public disclosure under However, the $10,000 maximum with the service of a notice of proposed 49 CFR part 1520. TSA will provide this amount is adjusted to $11,000 because civil penalty. In addition, this section, information to the respondent for the this is the first adjustment after as amended, permits service to be made sole purpose of preparing a response to Congress increased the penalties in by electronic mail or facsimile the allegations contained in the Notice 2003. As such, it is limited to an transmission, if consented to in writing of Proposed Civil Penalty. The increase of 10 percent. The inflation by the person served. Even in such individual receiving SSI under this adjusted maximum for the $25,000 civil cases, however, service by electronic provision must comply with 49 CFR penalty amount would be $30,408. mail or facsimile transmission will not part 1520, which permits TSA to require However, as adjusted the amount is be effective if the party making service a background check and imposes other $27,500, 10 percent above the amount as obtained credible information indicating conditions, as well as the requirements increased by Congress in 2003. Upon that the attempted service did not reach to manage the information in the effective date of today’s rule, these the person to be served. In addition, for accordance with part 1520. Any new civil penalty maximums become pleadings served during the formal violation of 49 CFR part 1520 by the effective. The $10,000 maximum for hearing process, the party making respondent would be a violation of TSA violations of other provisions of title 49 service must file with the Enforcement requirements and subject to additional and title 46 U.S.C. ch. 701 is not being Docket Clerk a copy of the opposing enforcement action. adjusted at this time because it is a party’s consent to receive service by newly enacted penalty amount. 9. Final Notice of Proposed Civil electronic mail or facsimile Penalty and Order (§ 1503.417) 2. Delegation of Authority (§ 1503.403) transmission. The date of service by electronic mail or facsimile Section 1503.417 makes one Section 1503.403 makes minor transmission is the date of transmission. significant change in the provisions revisions to former § 1503.16(c), See F.R. Civ. P. 5(b)(2)(E). governing the issuance of Final Notices delegating to TSA’s Chief Counsel and of Proposed Civil Penalty currently the Deputy Chief Counsel for 6. Computation of Time (§ 1503.411) codified at § 1503.16(e). The change is Enforcement the authority to prosecute Section 1503.411 amends current intended to reduce the time necessary to civil enforcement cases and refer them § 1503.212, which governs the resolve civil penalty cases. to the Attorney General, as necessary. computation of time for purposes of Under the current regulation, TSA Section 1503.403 changes the title of the deadlines applicable in the context of issues a Final Notice of Proposed Civil the formal hearing process. Section Penalty when: (1) The alleged violator 14 Table 24, Historical Consumer Price Index for All Urban Consumers (CPI–U): U.S. City Average, 1503.411 expands the application of this fails to respond to the Notice of All Items.’’ See http://www.bls.gov/cpi/ section to time requirements at any Proposed Civil Penalty within 30 days cpid0904.pdf. stage of the civil enforcement process. after receipt of that notice; or (2) the

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parties have engaged in settlement screening checkpoint or in checked 15. Filing of Documents With the discussions but have not reached a baggage, and where the amount of the Enforcement Docket Clerk (§ 1503.429) settlement. After the Final Notice of proposed civil penalty is less than Section 1503.429 of this rule revises Proposed Civil Penalty is issued, the $5,000. A Notice of Violation contains a slightly the provisions of § 1503.210 to respondent has 15 days from receipt to: statement of the charges, the amount of add provisions permitting the filing of (1) Pay the proposed civil penalty; (2) the proposed civil penalty, and an offer documents with the Enforcement negotiate and pay a lesser amount; or (3) to settle the matter for a lesser specified Docket Clerk by electronic mail or request a formal hearing. If the penalty amount. Under the current facsimile transmission. The amended respondent pays the penalty or fails to regulation, the recipient of a Notice of rule also updates the address of the exercise the other two options, TSA Violation has the option to request an Enforcement Docket Clerk, which now issues an Order Assessing Civil Penalty, Informal Conference with an agency is located at the United States Coast which ends the enforcement process attorney. Under this rule, an Informal Guard (USCG) ALJ Docketing Center, 40 and makes the civil penalty final. S. Gay Street, Room 412, Baltimore, Amended § 1503.417, in conjunction Conference with an agency attorney or another agency official, as determined Maryland 21202–4022. If this address with amended § 1503.419(b), shortens changes in the future, TSA will this process by making the Final Notice by TSA, is available. This change allows TSA to increase its capacity to provide announce the change through a notice of Proposed Civil Penalty automatically in the Federal Register. convert to an Order Assessing Civil Informal Conferences and therefore Penalty if one of the events in resolve cases more quickly. 16. Certification of Documents § 503.419(b) has occurred, eliminating (§ 1503.431) 12. Consent Orders (§ 1503.423) the need for TSA to issue a separate Section 1503.431 of this rule revises Order Assessing Civil Penalty. This Under § 1503.13 of the current slightly the provisions of § 1503.207 of change will not affect the procedural regulation, a consent order must the current regulation governing the rights of the alleged violator; rather, it contain: (1) An admission of all certification of documents filed with the will streamline the process and allow jurisdictional facts; (2) an express Enforcement Docket clerk by adding quicker resolution of cases, once a waiver of the right to further procedural several items to the certification. One of respondent has exercised, or failed to steps and of all rights to judicial review; the items to which one must certify exercise, those procedural rights that are and (3) an incorporation of the notice of under the current regulation at available. TSA currently uses this § 1503.207(b)(1) is that the document is streamlined process for routine proposed civil penalty by reference and an acknowledgment that the notice may ‘‘[w]arranted by existing law or that a enforcement actions against individuals good faith argument exists for extension, who bring prohibited items through be used to construe the terms of the order. modification, or reversal of existing airport screening checkpoints. Thus, the law.’’ This rule requires that a good faith revision to § 1503.417 primarily affects Section 1503.423 revises slightly the and non-frivolous argument exist for enforcement actions against entities, provisions of this section by eliminating extension, modification, or reversal of such as airports and air carriers. Under the reference to the notice of proposed existing law. This rule also adds that a § 1503.417, the Final Notice of Proposed civil penalty, thereby making the certification includes that the document Civil Penalty is now called a Final consent order a self-contained is supported by evidence, and any Notice of Civil Penalty and Order document. The consent order includes: denials of factual contentions are (‘‘Final Notice and Order’’). (1) An admission of all jurisdictional warranted on the evidence. These issues 10. Order Assessing Civil Penalty facts; (2) an admission of agreed-upon are implicit in the requirements (§ 1503.419) allegations; (3) a statement of the law governing certification of documents Section 1503.419 revises the violated; (4) a finding of violation; and under the current regulation; this rule provisions governing the issuance of (5) an express waiver of the right to makes them explicit. Orders Assessing Civil Penalty currently further procedural steps and of all rights D. Subpart G—Rules of Practice in TSA codified at § 1503.16(b), with the change to administrative and judicial review. Civil Penalty Actions discussed above regarding the automatic 13. Compromise Orders (§ 1503.425) conversion of a Final Notice and Order 1. Applicability (§ 1503.601) to an Order Assessing Civil Penalty. Section 1503.425 incorporates and Section 1503.601 of this rule revises TSA has moved the provisions of makes slight revisions to the provisions the provisions of § 1503.201 of the current § 1503.16(b) regarding the status of § 1503.16(l) of the current regulation. current regulation, regarding the of ALJ decisions as orders assessing Section 1503.425 provides explicitly applicability of TSA’s formal hearing civil penalty to § 1503.655(c). that a compromise order will include all procedures. First, in accordance with jurisdictional facts and allegations. the 9/11 Act, paragraph (a) expands the 11. Streamlined Civil Penalty applicability of the formal hearing Procedures for Certain Security 14. Request for a Formal Hearing procedures to cases involving violations Violations (§ 1503.421) (§ 1503.427) of any statutory requirement Section 1503.421 reorganizes and administered by TSA, including surface makes minor revisions to the provisions Section 1503.427 revises slightly the transportation requirements and TWIC of § 1503.29 of the current regulation, provisions of § 1503.16(f) of the current requirements. which provide for the issuance of regulations to make clear that the filing Second, paragraph (b) of this rule Notices of Violation for certain types of of a request for a formal hearing does makes clear that the formal hearing common security violations at a not guarantee a person an opportunity procedures cannot be used to conduct passenger screening or baggage to appear before an ALJ in person. The an adjudication of the validity of any screening checkpoint. TSA issues ALJ may issue an initial decision or TSA rule or other requirement under the Notices of Violation when an individual dispositive order resolving the case U.S. Constitution, the Administrative presents a weapon, explosive, or prior to the commencement of the Procedure Act, or any other law. Put incendiary for screening at a passenger formal hearing. differently, a person may not use a

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formal hearing under subpart G to changes from 20 to 30 the number of should not be automatically precluded challenge the legal basis of a TSA rule days within which TSA has to file a from refiling. In addition, the amended or other requirement, the violation of complaint after a respondent requests a rule permits a party to withdraw a which gave rise to the issuance of a civil formal hearing. A 30-day period is request for hearing without prejudice at penalty. The purpose of the formal consistent with the length of most of the any time before a complaint has been hearing is to adjudicate whether a other response periods allowed under filed. This is intended to address violation occurred and whether the civil TSA’s enforcement procedures. situations where respondents penalty is appropriate. See Appeal of Second, § 1503.609 omits provisions mistakenly request a hearing when they Rendon, 2004 DOT Av. LEXIS 1287, at on the manner of service of the intended to ask for an informal *3, (ALJ lacks authority to determine complaint, because service of all conference or another procedural whether a TSA regulation was documents is addressed in § 1503.409. option. unconstitutional) aff’d sub nom. Rendon 4. Consolidation and Separation of 7. Discovery (§ 1503.633) v. Transportation Security Admin., 424 Cases (§ 1503.613) F.3d 475 (6th Cir. 2005). Section 1503.633 of this rule Third, paragraph (d) of this rule adds This rule adds a new provision incorporates the provisions in a provision clarifying that the governing the consolidation and § 1503.220 of the current regulation and consolidation of two or more cases that separation of cases. In addition to adds a new provision at § 1503.633(g) individually are below the Federal clarifying the process for consolidation clarifying a party’s access to Sensitive district court jurisdictional threshold and separation of cases, § 1503.613 Security Information through discovery. does not cause the consolidated action makes clear that consolidation of two or Specifically, at the request of a party, to exceed that threshold and thereby fall more actions that individually involve TSA may provide SSI to the party when, within the exclusive jurisdiction of the amounts in controversy below the in the sole discretion of TSA, access to Federal district court. The issue of jurisdictional maximum of the the SSI is necessary for the party to consolidation of cases is addressed administrative court will not cause the prepare a response to allegations further in § 1503.613. resulting action to exceed that contained in the complaint. TSA may jurisdictional maximum and thereby provide such information, subject to 2. Administrative Law Judges come under the exclusive jurisdiction of such restrictions on further disclosure (§ 1503.607) the Federal district courts, as specified and such safeguarding requirements as Section 1503.607 of this rule revises in 49 U.S.C. 46301(d)(4)(A). TSA determines appropriate. This new the provisions of § 1503.205 of the provision largely reiterates a similar current rule, with the following 5. Extension of Time (§ 1503.617) provision in 49 CFR 1520.15(d) of TSA’s changes. First, paragraph (a) makes Section 1503.617 of this rule revises regulation governing Sensitive Security explicit the following implicit powers slightly the provisions of § 1503.213 of Information. TSA repeats it here for that an ALJ holds under the current the current rule by adding a new clarity. regulation: (1) To issue scheduling provision specifically governing 8. Standard of Proof (§ 1503.637) orders and other appropriate orders requests for continuances of a hearing. regarding discovery or other matters that Paragraph (c) provides that either party Section 1503.637 of this rule amends come before him or her; (2) to hold may request a continuance of the date the provisions of § 1503.223 of the conferences to settle or to simplify the of a hearing, for good cause shown, no current regulation regarding the issues on his or her own motion; (3) to later than seven days before the date of standard of proof in a formal hearing. strike unsigned documents unless the hearing. Good cause does not The current regulation states that a party omission of the signature is corrected include a scheduling conflict involving must prove its case or defense by ‘‘a promptly after being called to the the parties or their attorneys which by preponderance of reliable, probative, attention of the attorney or party; and due diligence could have been foreseen. and substantial evidence.’’ This (4) to order payment of witness fees. This new provision is intended to statement of the standard may be Second, paragraph (b) of this rule establish certainty and predictability for confusing because it refers to adds an express limitation on an ALJ’s the parties as they prepare for a formal ‘‘substantial evidence.’’ The ‘‘substantial powers, consistent with current law. hearing and discourage undue delay in evidence’’ standard is a standard of Specifically, the amended rule provides the proceedings. judicial review applicable to an agency’s that an ALJ is not authorized to decide finding of fact. See American Textile 6. Withdrawal of Complaint or Request issues involving the validity of a TSA Mfrs. Inst. v. Donovan, 452 U.S. 490, for Hearing (§ 1503.623) regulation, order, or other requirement 522 (1981). Courts have defined under the U.S. Constitution, the Section 1503.623 of this rule revises ‘‘substantial evidence’’ as ‘‘such Administrative Procedure Act, or other slightly the provision of § 1503.215 of relevant evidence as a reasonable mind law. See Appeal of Rendon, 2004 DOT the current regulation, which permits an might accept as adequate to support a Av. LEXIS 1287, at *3, (ALJ lacks agency attorney to withdraw a conclusion.’’ Id. Moreover, courts have authority to determine whether a TSA complaint or a respondent to withdraw consistently held that substantial regulation was unconstitutional) aff’d a request for a hearing without the evidence ‘‘requires more than a scintilla sub nom. Rendon v. Transportation consent of the ALJ, at any time before but less than a preponderance.’’ Id. Security Admin., 424 F.3d 475 (6th Cir. or during a hearing. The rule now Thus, the substantial evidence standard 2005). Nor may the ALJ adopt or follow permits the ALJ to dismiss the and the preponderance standard differ. a standard of proof or procedure proceedings without prejudice if the By using the term ‘‘substantial contrary to that set forth in TSA’s formal withdrawing party shows good cause for evidence’’ in the description of the hearing procedures. dismissal without prejudice. The preponderance standard, § 1503.223 of current regulation requires dismissal the current regulation appears to 3. Complaint (§ 1503.609) with prejudice in all cases. This change introduce confusion about the Section 1503.609 of this rule revises is intended to leave open the possibility appropriate standard of proof. To slightly the provisions of § 1503.208 of that the withdrawing party may have a eliminate any confusion, TSA has the current regulation. First, § 1503.609 bona fide reason for withdrawing and restated the standard of proof simply as

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proof of a party’s case or defense by a rulings and initial decisions. That Surface Mode Administrative preponderance of the evidence. section now states that any issue, Penalties. This portion of the rule would Preponderance of the evidence means finding or conclusion, order, ruling, or codify provisions of the proof by information that, compared initial decision of an ALJ that has not 9/11 Act that bring surface mode with information opposing it, leads to been appealed to the TSA decision violations within the scope of TSA’s the conclusion that the fact at issue is maker is not precedent in any other civil civil penalty authority. Sections 1302 more probably true than not. penalty action. While this is correct in and 1304(e) of the 9/11 Act consist of that such decisions are not binding in 9. Argument Before the ALJ (§ 1503.653) specific directions to TSA for assessing other civil penalty actions, the language civil penalties for surface transportation Section 1503.653 of this rule revises of this provision appeared to preclude and Transportation Worker slightly the provisions in § 1503.231 of reliance on such prior decisions as Identification Credential violations. the current regulation. Current instructive or persuasive. In the interest Prior to enactment of the 9/11 Act, TSA § 1503.231(a) states that the ALJ may of promoting predictability and could assess civil penalties primarily for request written arguments during the consistency in enforcement, it is violations of ch. 449 of title 49 U.S.C., hearing if he or she finds that appropriate that ALJ initial decisions be which relates to aviation. Accordingly, submission of written arguments would recognized as persuasive authority in this rule would make TSA’s current be ‘‘reasonable.’’ This rule changes this subsequent civil penalty actions. civil penalty enforcement procedures at standard by providing that the ALJ may Consequently, paragraph (d) revises the 49 CFR part 1503, which now only request written arguments during the current regulation by providing that an apply to violations of ch. 449 of title 49 hearing if written argument is initial decision of an ALJ may be U.S.C. (aviation), applicable to the ‘‘necessary to issue the ruling or order considered as persuasive authority in additional types of violations added by to which the argument pertains.’’ The any other civil penalty action, unless the 9/11 Act, such as violations of purpose of this change is simply to appealed and reversed by the TSA surface transportation requirements. As clarify to the parties and the ALJ what decision maker or a court of competent an application of the existing constitutes a reasonable ground to jurisdiction. procedures to a new substantive area of request written arguments. 11. Appeal From Initial Decision regulation, the rule remains a 10. Initial Decision (§ 1503.655) (§ 1503.657) procedural rule that may be excepted Section 1503.655 of this rule from notice and comment under 5 Section 1503.657 of this rule revises U.S.C. 553(a)(2). Advance notice-and- regarding the initial decision of the ALJ the reference in paragraph (b) to the comment, moreover, is unnecessary and revises slightly the provision of preponderance-of-the-evidence standard would not serve the public interest § 1503.232 of the current regulation. of proof, as discussed previously. Paragraph (a) makes a conforming under 5 U.S.C. 553(b)(3)(B) because change by clarifying that the ALJ’s V. Administrative Procedure Act these rules already apply to all other issuance of an initial decision may The Administrative Procedure Act civil penalties before TSA. follow the party’s submission of written (APA) requires TSA to provide public Civil Monetary Penalty Adjustment. posthearing briefs. notice and seek public comment on This rule makes inflation adjustments to Paragraph (b) changes the requirement substantive regulations. 5 U.S.C. 553. the maximum civil penalty amounts in as to when an initial decision must be The APA, however, excludes certain accordance with the Federal Civil issued and whether it must be written. types of regulations and permits Penalty Inflation Adjustment Act of Under the current regulation, the ALJ exceptions for other types of regulations 1990, 28 U.S.C. 2461 note. TSA has no must issue the initial decision and order from this public notice and comment discretion over the amounts of these orally on the record at the conclusion of requirement. TSA issues this rule increases. The Adjustment Act specifies the hearing, unless the ALJ finds that without providing the opportunity for an arithmetic calculation of the inflation issuing a written initial decision is prior notice and comment for the adjustment. This rule is a reasonable. In such cases the ALJ must reasons described below. TSA is nondiscretionary ministerial action to issue a written initial decision not later requesting, however, and will consider, conform to the Adjustment Act. than 30 days after the conclusion of the public comments submitted during the Therefore, advance public notice and an hearing or submission of the last public comment period as described in opportunity for public comment is posthearing brief. This rule changes this the ‘‘Comments Invited’’ section. unnecessary and not in the public practice by making the issuance of a Reorganization and clarification of 49 interest. 5 U.S.C. 553(b)(3)(B). written initial decision mandatory in all CFR part 1503. The Administrative VI. Paperwork Reduction Act cases. Specifically, paragraph (b) Procedure Act (APA) exempts from the provides that, after the conclusion of the prior notice and opportunity for The Paperwork Reduction Act of 1995 hearing, the ALJ may issue the initial comment requirements ‘‘rules of agency (PRA), 44 U.S.C. 3501 et seq., requires decision and order orally on the record. organization, procedure or practice.’’ 5 that TSA consider the impact of The ALJ must issue a written initial U.S.C. 553(b)(A). The reorganization paperwork and other information decision and order not later than 30 and clarification of part 1503 makes collection burdens imposed on the days after the conclusion of the hearing changes such as making it explicit that public and, under the provisions of PRA or submission of the last post-hearing an ALJ can issue scheduling orders or section 3507(d), obtain approval from brief. The ALJ must serve a copy of any hold conferences changing from 20 to 30 the Office of Management and Budget written initial decision on each party. the number of days within which TSA (OMB) for each collection of TSA has made this change to better must file a complaint after a respondent information it conducts, sponsors, or document ALJ decisions and preserve requests a formal hearing. Accordingly, requires through regulations. As guidance for future enforcement to the extent that this rule adopts rules protection provided by the Paperwork proceedings. of agency organization, procedure or Reduction Act, as amended, an agency Paragraph (d) revises the provision in practice, those portions of the rule are may not conduct or sponsor, and a § 1503.233(j)(3) of the current regulation excepted from the notice-and-comment person is not required to respond to, a regarding the precedential value of ALJ requirements under 5 U.S.C. 553(b)(A). collection of information unless it

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displays a currently valid OMB control does not expect to impose maximum F. Unfunded Mandates Assessment number. penalties in most enforcement actions. TSA has determined that there are no More importantly, however, the costs of The Unfunded Mandates Reform Act current or new information collection these penalties only affect those that of 1995 is intended, among other things, requirements associated with this rule. engage in conduct prohibited by statute to curb the practice of imposing unfunded Federal mandates on State, VII. Economic Impact Analyses or related regulations. Those who comply with the law will not be local, and tribal governments. Title II of A. Regulatory Evaluation Summary affected. the Act requires each Federal agency to prepare a written statement assessing Changes to Federal regulations must D. Regulatory Flexibility Act Assessment the effects of any Federal mandate in a undergo several economic analyses. proposed or final agency rule that may First, Executive Order 12866, Regulatory The Regulatory Flexibility Act (RFA) result in a $100 million or more Planning and Review 15 directs each of 1980 requires that agencies perform a expenditure (adjusted annually for Federal agency to propose or adopt a review to determine whether a rule will inflation) in any one year by State, local, regulation only upon a reasoned have a significant economic impact on and tribal governments, in the aggregate, determination that the benefits of the a substantial number of small entities. If or by the private sector; such a mandate intended regulation justify its costs. the agency determines that a rule will is deemed to be a ‘‘significant regulatory Second, the Regulatory Flexibility Act have a significant economic impact on action.’’ of 1980, 5 U.S.C. 601 et seq., as a substantial number of small entities, amended by the Small Business the agency must prepare a regulatory This rulemaking does not contain Regulatory Enforcement Fairness Act flexibility analysis as described in the such a mandate. The requirements of (SBREFA) of 1996, requires agencies to RFA. For purposes of the RFA, small Title II of the Act, therefore, do not analyze the economic impact of entities include small businesses, not- apply and TSA has not prepared a regulatory changes on small entities. for-profit organizations, and small statement under the Act. governmental jurisdictions. 5 U.S.C. Third, the Trade Agreements Act, 19 601(6). Individuals and States are not VIII. Other Analyses U.S.C. 2531–2533, prohibits agencies included in the definition of a small from setting standards that create A. Executive Order 13132, Federalism entity. Pursuant to 5 U.S.C. 603(a), unnecessary obstacles to the foreign however, the requirement to perform a TSA has analyzed this rule under the commerce of the United States. Fourth, regulatory flexibility analysis does not principles and criteria of Executive the Unfunded Mandates Reform Act of apply where, as is the case in today’s Order 13132, Federalism. TSA has 1995, 2 U.S.C. 1531–1538, requires rule, the agency is not required to issue determined that this action will not agencies to prepare a written assessment a proposed rule prior to issuing a final have a substantial direct effect on the of the costs, benefits, and other effects rule. States, on the relationship between the of proposed or final rules that include This rule provides guidance for the National Government and the States, or a Federal mandate likely to result in the parties as to how civil penalties are on the distribution of power and expenditure by State, local, or tribal imposed. The rules state the procedures responsibilities among the various governments, in the aggregate, or by the for investigations, enforcement actions, levels of government, and therefore does private sector, of $100 million or more for TSA civil penalty actions, and other not have Federalism implications. annually (adjusted for inflation). details of imposing and adjudicating B. Environmental Analysis B. Executive Order 12866 Assessment civil penalties. The civil penalties implemented by this rule will only In conducting these analyses, TSA has TSA has reviewed this action for affect those that engage in conduct determined: purposes of the National Environmental 1. This rulemaking is not a prohibited by statute or related Policy Act of 1969 (NEPA), 42 U.S.C. ‘‘significant regulatory action’’ as regulations. Those who comply with the 4321–4347, and has determined that defined in the Executive Order. The law will not be affected by these civil this action will not have a significant Office of Management and Budget penalties. Pursuant to § 1503.401, effect on the human environment. maximum civil penalties for individuals agrees with this conclusion. C. Energy Impact Analysis 2. This rulemaking does not have a and small businesses are lower than significant economic impact on a those for larger entities. The energy impact of the notice has substantial number of small entities. E. International Trade Impact been assessed in accordance with the 3. This rulemaking does not constitute Assessment Energy Policy and Conservation Act a barrier to international trade. (EPCA), Public Law 94–163, as amended The Trade Agreement Act of 1979 4. This rulemaking does not impose (42 U.S.C. 6362). TSA has determined prohibits Federal agencies from an unfunded mandate on State, local, or that this rulemaking is not a major establishing any standards or engaging tribal governments, or on the private regulatory action under the provisions in related activities that create sector. of the EPCA. The bases for these conclusions are unnecessary obstacles to the foreign summarized below. commerce of the United States. List of Subjects in 49 CFR Part 1503 Legitimate domestic objectives, such as C. Costs and Benefits safety, are not considered unnecessary Administrative practice and This is a procedural rule whose costs obstacles. The statute also requires procedure, Investigations, Law and benefits will not significantly consideration of international standards enforcement, Penalties, Transportation. exceed, or be lower than, those imposed and, where appropriate, that they be the The Amendments by TSA’s current rule. While maximum basis for U.S. standards. TSA has penalty amounts have been adjusted for assessed the potential effect of this ■ For the reasons set forth in the inflation, this change is not likely to rulemaking and has determined that it preamble, the Transportation Security have a significant impact because TSA will impose the same costs on domestic Administration revises part 1503 in and international entities and thus have chapter XII of title 49, Code of Federal 15 58 FR 51735 (October 4, 1993). a neutral trade impact. Regulations to read as follows:

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PART 1503—INVESTIGATIVE AND 1503.653 Argument before the ALJ. Columbia, and is not under any order ENFORCEMENT PROCEDURES 1503.655 Initial decision. suspending, enjoining, restraining, 1503.657 Appeal from initial decision. disbarring, or otherwise restricting him Subpart A—[Reserved] 1503.659 Petition to reconsider or modify a or her in the practice of law. final decision and order of the TSA Enforcement Investigative Report or Subpart B—Scope of Investigative and decision maker on appeal. Enforcement Procedures 1503.661 Judicial review of a final order. EIR means a written report prepared by Sec. a TSA Inspector or other authorized 1503.101 TSA requirements. Subpart H—Judicial Assessment of Civil agency official detailing the results of an 1503.103 Terms used in this part. Penalties inspection or investigation of a violation 1503.701 Applicability of this subpart. of a TSA requirement, including copies Subpart C—Investigative Procedures 1503.703 Civil penalty letter; referral. of any relevant evidence. 1503.201 Reports of violations. Subpart I—Formal Complaints Mail includes regular First Class U.S. 1503.203 Investigations. mail service, U.S. certified mail, or U.S. 1503.205 Records, documents, and reports. 1503.801 Formal complaints. registered mail. Subpart D—Non-Civil Penalty Enforcement Authority: 18 U.S.C. 6002; 28 U.S.C. 2461 Party means the respondent or TSA. 1503.301 Warning notices and letters of (note); 49 U.S.C. 114, 20109, 31105, 40113– Personal delivery includes hand- correction. 40114, 40119, 44901–44907, 46101–46107, delivery or use of a contract or express 46109–46110, 46301, 46305, 46311, 46313– messenger service, including an Subpart E—Assessment of Civil Penalties 46314; Sec. 1413(i), Public Law 110–53, 121 overnight express courier service. by TSA Stat. 414 (6 U.S.C. 1142). Personal delivery does not include the 1503.401 Maximum penalty amounts. use of Government interoffice mail 1503.403 Delegation of authority. PART 1503—INVESTIGATIVE AND ENFORCEMENT PROCEDURES service. 1503.405 Injunctions. Pleading means a complaint, an 1503.407 Military personnel. 1503.409 Service of documents. Subpart A—[Reserved] answer, motion and any amendment of 1503.411 Computation of time. these documents permitted under this 1503.413 Notice of Proposed Civil Penalty. Subpart B—Scope of Investigative and subpart as well as any other written 1503.415 Request for portions of the Enforcement Procedures submission to the ALJ or a party during enforcement investigative report (EIR). the course of the hearing proceedings. 1503.417 Final Notice of Proposed Civil § 1503.101 TSA requirements. Properly addressed means a Penalty and Order. (a) The investigative and enforcement document that shows an address 1503.419 Order Assessing Civil Penalty. procedures in this part apply to TSA’s contained in agency records, a 1503.421 Streamlined civil penalty investigation and enforcement of residential, business, or other address procedures for certain security submitted by a person on any document violations. violations of TSA requirements. 1503.423 Consent orders. (b) For purposes of this part, the term provided under this part, or any other 1503.425 Compromise orders. TSA requirements means the following address obtained by other reasonable 1503.427 Request for a formal hearing. statutory provisions and a regulation and available means. 1503.429 Filing of documents with the prescribed or order issued under any of Public transportation agency means a Enforcement Docket Clerk. those provisions: publicly owned operator of public 1503.431 Certification of documents. (1) Those provisions of title 49 U.S.C. transportation eligible to receive Federal Subpart F—[Reserved] administered by the Administrator; and assistance under 49 U.S.C. chapter 53. (2) 46 U.S.C. chapter 701. Respondent means the person named Subpart G—Rules of Practice in TSA Civil in a Notice of Proposed Civil Penalty, a Penalty Actions § 1503.103 Terms used in this part. Final Notice of Proposed Civil Penalty 1503.601 Applicability. In addition to the terms in § 1500.3 of and Order, or a complaint. 1503.603 Separation of functions. this chapter, the following definitions TSA decision maker means the 1503.605 Appearances and rights of parties. apply in this part: Administrator, acting in the capacity of 1503.607 Administrative law judges. the decision maker on appeal, or any 1503.609 Complaint. Administrative law judge or ALJ means an ALJ appointed pursuant to the person to whom the Administrator has 1503.611 Answer. delegated the Administrator’s decision- 1503.613 Consolidation and separation of provisions of 5 U.S.C. 3105. cases. Agency attorney means the Deputy making authority in a civil penalty 1503.615 Notice of hearing. Chief Counsel for Enforcement or an action. As used in this part, the TSA 1503.617 Extension of time. attorney that he or she designates. An decision maker is the official authorized 1503.619 Intervention. agency attorney will not include— to issue a final decision and order of the 1503.621 Amendment of pleadings. (1) Any attorney in the Office of the Administrator in a civil penalty action. 1503.623 Withdrawal of complaint or Chief Counsel who advises the TSA request for hearing. Subpart C—Investigative Procedures 1503.625 Waivers. decision maker regarding an initial 1503.627 Joint procedural and discovery decision or any appeal to the TSA § 1503.201 Reports of violations. schedule. decision maker; or (a) Any person who knows of a 1503.629 Motions. (2) Any attorney who is supervised in violation of a TSA requirement should 1503.631 Interlocutory appeals. a civil penalty action by a person who report it to appropriate personnel of any 1503.633 Discovery. provides such advice to the TSA TSA office. 1503.635 Evidence. decision maker in that action or a (b) TSA will review each report made 1503.637 Standard of proof. factually related action. under this section, together with any 1503.639 Burden of proof. Attorney means any person who is other information TSA may have that is 1503.641 Offer of proof. 1503.643 Public disclosure of evidence. eligible to practice law in, and is a relevant to the matter reported, to 1503.645 Expert or opinion witnesses. member in good standing of the bar of, determine the appropriate response, 1503.647 Subpoenas. the highest court of any State, including additional investigation or 1503.649 Witness fees. possession, territory, or Commonwealth administrative or legal enforcement 1503.651 Record. of the United States, or of the District of action.

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§ 1503.203 Investigations. administrative action in disposition of amounts against a person for the (a) General. The Administrator, or a the case. violation of a TSA requirement. designated official, may conduct (b) An administrative action under (b) In General. Except as provided in investigations, hold hearings, issue this section does not constitute a formal paragraph (c) of this section, in the case adjudication of the matter, and may be subpoenas, require the production of of violation of title 49 U.S.C. or 46 relevant documents, records, and taken by issuing the alleged violator— U.S.C. chapter 701, or a regulation property, and take evidence and (1) A ‘‘Warning Notice’’ that recites depositions. available facts and information about prescribed or order issued under any of (b) Delegation of authority. For the the incident or condition and indicates those provisions, TSA may impose a purpose of investigating alleged that it may have been a violation; or civil penalty in the following amounts: violations of a TSA requirement, the (2) A ‘‘Letter of Correction’’ that (1) $10,000 per violation, up to a total Administrator’s authority may be confirms the TSA decision in the matter of $50,000 per civil penalty action, in exercised by the agency’s various offices and states the necessary corrective the case of an individual or small for matters within their respective areas action the alleged violator has taken or business concern, as defined in section for all routine investigations. When the agrees to take. If the agreed corrective 3 of the Small Business Act (15 U.S.C. compulsory processes of 49 U.S.C. action is not fully completed, legal 632); and 46104 are invoked, the Administrator’s enforcement action may be taken. (2) $10,000 per violation, up to a total authority has been delegated to the (c) The issuance of a Warning Notice Chief Counsel, each Deputy Chief or Letter of Correction is not subject to of $400,000 per civil penalty action, in Counsel, and in consultation with the appeal under this part. the case of any other person. Office of Chief Counsel, the Assistant (d) In the case of a public (c) Certain aviation related violations. Administrator for Security Operations, transportation agency that is determined In the case of a violation of 49 U.S.C. the Assistant Administrator for to be in violation of a TSA requirement, chapter 449 (except sections 44902, Transportation Sector Network an appropriate TSA official will seek 44903(d), 44907(a)–(d)(1)(A), Management, the Assistant correction of the violation through a 44907(d)(1)(C)–(f), 44908, and 44909), or Administrator for Inspections, the written ‘‘Notice of Noncompliance’’ to 49 U.S.C. 46302 or 46303, or a Assistant Administrator for Law the public transportation agency giving regulation prescribed or order issued Enforcement/Director of the Federal Air the public transportation agency under any of those provisions, TSA may Marshal Service, each Special Agent in reasonable opportunity to correct the impose a civil penalty in the following Charge, and each Federal Security violation or propose an alternative amounts: Director. means of compliance acceptable to TSA. (e) TSA will not take legal (1) $10,000 per violation, up to a total § 1503.205 Records, documents, and of $50,000 per civil penalty action, in reports. enforcement action against a public the case of an individual (except an Each record, document, and report transportation agency under subpart E unless it has provided the Notice of airman serving as an airman), any that regulations issued by the person not operating an aircraft for the Transportation Security Administration Noncompliance described in paragraph transportation of passengers or property require to be maintained, exhibited, or (d) of this section and the public submitted to the Administrator may be transportation agency fails to correct the for compensation, or a small business used in any investigation conducted by violation or propose an alternative concern, as defined in section 3 of the the Administrator; and, except to the means of compliance acceptable to TSA Small Business Act (15 U.S.C. 632). extent the use may be specifically within the timeframe provided in the (2) $25,000 per violation, up to a total limited or prohibited by the section that notice. of $400,000 per civil penalty action, in imposes the requirement, the records, (f) TSA will not initiate civil the case of a person operating an aircraft documents, and reports may be used in enforcement action for violations of for the transportation of passengers or administrative and procedural any civil penalty action or other legal property for compensation (except an requirements pertaining to the proceeding. individual serving as an airman). application for, and the expenditure of, Subpart D—Non-Civil Penalty funds awarded pursuant to (d) Inflation adjustment. TSA may Enforcement transportation security grant programs adjust the maximum civil penalty under Public Law 110–53. amounts in conformity with the Federal § 1503.301 Warning notices and letters of Civil Penalties Inflation Adjustment Act correction. Subpart E—Assessment of Civil of 1990, 28 U.S.C. 2461 (note). (a) If TSA determines that a violation Penalties by TSA Minimum and maximum civil penalties or an alleged violation of a TSA within the jurisdiction of TSA are requirement does not require the § 1503.401 Maximum penalty amounts. adjusted for inflation as follows: assessment of a civil penalty, an (a) General. TSA may assess civil appropriate official of the TSA may take penalties not exceeding the following

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TABLE 1—MINIMUM AND MAXIMUM CIVIL PENALTIES—ADJUSTED FOR INFLATION, EFFECTIVE DECEMBER 12, 2003 TO AUGUST 20, 2009

Maximum penalty United States Code Minimum Adjusted amount when last set Maximum penalty citation Civil penalty description penalty minimum or adjusted pursuant amount penalty to law

49 U.S.C. Violation of 49 U.S.C. ch. 449 (except secs. N/A N/A $25,000 per violation, $25,000 per violation. 46301(a)(1), (4). 44902, 44903(d), 44907(a)–(d)(1)(A), reset 12/12/2003. 44907(d)(1)(C)–(f), 44908, and 44909), or 49 U.S.C. 46302 or 46303, a regulation prescribed, or order issued thereunder by a person operating an aircraft for the transportation of passengers or property for compensation. 49 U.S.C. Violation of 49 U.S.C. ch. 449 (except secs. N/A N/A $10,000 per violation, $10,000 per violation. 46301(a)(1), (4). 44902, 44903(d), 44907(a)–(d)(1)(A), reset 12/12/2003. 44907(d)(1)(C)–(f), 44908, and 44909), or 49 U.S.C. 46302 or 46303, a regulation prescribed, or order issued thereunder by an individual (except an airman serving as an airman), any person not operating an aircraft for the transportation of pas- sengers or property for compensation, or a small business concern.

TABLE 2—MINIMUM AND MAXIMUM CIVIL PENALTIES—ADJUSTED FOR INFLATION, EFFECTIVE AUGUST 20, 2009

Maximum penalty United States Code Minimum Adjusted amount when last set Maximum penalty Citation Civil penalty description penalty minimum or adjusted pursuant amount penalty to law

49 U.S.C. Violation of 49 U.S.C. ch. 449 (except secs. N/A N/A $25,000 per violation, $27,500 per violation. 46301(a)(1), (4). 44902, 44903(d), 44907(a)–(d)(1)(A), reset 12/12/2003. 44907(d)(1)(C)–(f), 44908, and 44909), or 49 U.S.C. 46302 or 46303, a regulation prescribed, or order issued thereunder by a person operating an aircraft for the transportation of passengers or property for compensation. 49 U.S.C. Violation of 49 U.S.C. ch. 449 (except secs. N/A N/A $10,000 per violation, $11,000 per violation. 46301(a)(1), (4). 44902, 44903(d), 44907(a)–(d)(1)(A), reset 12/12/2003. 44907(d)(1)(C)–(f), 44908, and 44909), or 49 U.S.C. 46302 or 46303, a regulation prescribed, or order issued thereunder by an individual (except an airman serving as an airman), any person not operating an aircraft for the transportation of pas- sengers or property for compensation, or a small business concern. 49 U.S.C. 114(v) ...... Violation of any other provision of title 49 N/A N/A NA ...... $10,000 per violation. U.S.C. or of 46 U.S.C. ch. 701, a regula- tion prescribed, or order issued under thereunder.

§ 1503.403 Delegation of authority. delegate of the Attorney General, for the appropriate, including mandatory or The Administrator delegates the collection of civil penalties. prohibitive injunctive relief, interim equitable relief, and punitive damages, following authority to the Chief Counsel § 1503.405 Injunctions. and the Deputy Chief Counsel for as provided by 49 U.S.C. 114 and 46107. Whenever it is determined that a Enforcement, which authority may be § 1503.407 Military personnel. redelegated as necessary: person has engaged, or is about to engage, in any act or practice If a report made under this part (a) To initiate and assess civil constituting a violation of a TSA indicates that, while performing official penalties under 49 U.S.C. 114 and requirement, the Chief Counsel or the duties, a member of the Armed Forces, 46301 and this subpart for a violation a Deputy Chief Counsel for Enforcement or a civilian employee of the TSA requirement; may request the Attorney General of the Department of Defense who is subject to (b) To compromise civil penalties United States, or the delegate of the the Uniform Code of Military Justice (10 initiated under this subpart; and Attorney General, to bring an action in U.S.C. chapter 47), has violated a TSA (c) To refer cases to the Attorney the appropriate United States district requirement, an agency official will General of the United States, or the court for such relief as is necessary or send a copy of the report to the

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appropriate military authority for such (h) Service of documents filed with subsequent documents in that civil disciplinary action as that authority the Enforcement Docket. A person must penalty action. considers appropriate and a report to serve a copy of any document filed with (b) Contents. The Notice of Proposed the Administrator thereon. the Enforcement Docket on each party Civil Penalty contains a statement of the and the ALJ or the chief ALJ if no judge facts alleged, the statute, regulation, or § 1503.409 Service of documents. has been assigned to the proceeding at order allegedly violated, the amount of (a) General. This section governs the time of filing. Service on a party’s the proposed civil penalty, and a service of documents required to be attorney of record or a party’s certificate of service. made under this part. designated representative is service on (c) Response. Not later than 30 days (b) Type of service. A person may the party. after receipt of the Notice of Proposed serve documents by: (i) Certificate of service. Each party Civil Penalty, the person charged with (1) Personal delivery; must attach a certificate of service to a violation may take one, and only one, (2) Mail, or any document tendered for filing with of the following options. (3) Electronic mail or facsimile the Enforcement Docket Clerk. A (1) Submit a certified check or money transmission, if consented to in writing certificate of service must consist of a order in the amount of the proposed by the person served, except that such statement, dated and signed by the civil penalty made payable to service is not effective if the party person who effected service, of the Transportation Security Administration, making service receives credible name(s) of the person(s) served, and the at the address specified in the Notice of information indicating that the method by which each person was Proposed Civil Penalty, or make attempted service did not reach the served and the date that the service was payment electronically through http:// person to be served. made. www.pay.gov. (c) If a party serves a pleading on (j) Service by the ALJ. The ALJ must another party during the course of (2) Submit to the agency attorney who serve a copy of each document he or she issued the Notice of Proposed Civil hearing proceedings by electronic mail issues including, but not limited to, or facsimile transmission, the party Penalty one of the following: notices of pre-hearing conferences and (i) A written request that TSA issue an making service must file with the hearings, rulings on motions, decisions, Enforcement Docket Clerk a copy of the Order Assessing Civil Penalty in the and orders, upon each party to the amount stated in the Notice of Proposed consent of the receiving party to accept proceedings. such method of service. Civil Penalty without further notice, in (d) Date of service. The date of service § 1503.411 Computation of time. which case the person waives the right to request a Formal Hearing, and will be: (a) This section applies to any period payment is due within 30 days of (1) The date of personal delivery. of time prescribed or allowed by this receipt of the Order. (2) If mailed, the mailing date stated part, or by notice or order of an ALJ. (ii) Written information and other on the certificate of service, the date (b) The date of an act, event, or evidence, including documents and shown on the postmark if there is no default, after which a designated time witness statements, demonstrating that a certificate of service, or other mailing period begins to run, is not included in violation of the regulations did not date shown by other evidence if there is a computation of time under this occur as alleged, or that the proposed no certificate of service or postmark. subpart. (3) If sent by electronic mail or (c) The last day of a time period is penalty is not warranted by the facsimile transmission, the date of included in a computation of time circumstances. transmission. unless it is a Saturday, Sunday, a legal (iii) A written request to reduce the (e) Valid service. A document served holiday, or a day on which the proposed civil penalty, the amount of by mail or personal delivery that was enforcement docket is officially closed. requested reduction, together with any properly addressed, was sent in If the last day of the time period is a documents supporting a reduction of accordance with this part, and that was Saturday, Sunday, legal holiday, or a the proposed civil penalty, which reflect returned, that was not claimed, or that day on which the enforcement docket is a current financial inability to pay or was refused, is deemed to have been officially closed, the time period runs records showing that payment of the served in accordance with this part. The until the end of the next day that is not proposed civil penalty would prevent service will be considered valid as of a Saturday, Sunday, legal holiday, or a the person from continuing in business. the date and the time that the document day on which the enforcement docket is (iv) A written request for an Informal was deposited with a contract or express officially closed. Conference, at a date to be determined messenger, the document was mailed, or by the agency attorney, to discuss the personal delivery of the document was § 1503.413 Notice of Proposed Civil matter with the agency attorney and to attempted and refused. Penalty. submit supporting evidence and (f) Presumption of service. There will (a) Issuance. TSA may initiate a civil information to the agency attorney be a presumption of service where a penalty action under this section by before the date of the Informal party or a person, who customarily serving a Notice of Proposed Civil Conference. receives mail, or receives it in the Penalty on the person charged with a (3) Submit to the agency attorney and ordinary course of business, at either the violation of a TSA requirement. TSA to TSA’s Enforcement Docket Clerk a person’s residence or the person’s will serve the Notice of Proposed Civil written request for a Formal Hearing principal place of business, Penalty on the individual charged with before an ALJ in accordance with acknowledges receipt of the document. a violation or on the president of the subpart G of this part. TSA’s (g) Additional time after service by corporation or company charged with a Enforcement Docket Clerk is currently mail. Whenever a party has a right or a violation, or other representative or located at the United States Coast Guard duty to act or to make any response employee previously identified in (USCG) ALJ Docketing Center, 40 S. Gay within a prescribed period after service writing to TSA as designated to receive Street, Room 412, Baltimore, Maryland by mail, or on a date certain after service such service. A corporation or company 21202–4022. If this location changes, by mail, 5 days will be added to the may designate in writing to TSA another TSA will provide notice of the change prescribed period. person to receive service of any by notice in the Federal Register.

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§ 1503.415 Request for portions of the proceedings held under (i) Written information and other enforcement investigative report (EIR). § 1503.413(c)(2). evidence, including documents and (a) Upon receipt of a Notice of witness statements, demonstrating that a Proposed Civil Penalty, a person § 1503.419 Order Assessing Civil Penalty. violation of the regulations did not charged with a violation of a TSA (a) Issuance pursuant to a settlement. occur as alleged, or that the proposed requirement, or a representative TSA will issue an Order Assessing Civil penalty is not warranted by the designated in writing by that person, Penalty if the parties have participated circumstances. may request from the agency attorney in an Informal Conference or other (ii) A written request to reduce the who issued the Notice of Proposed Civil informal proceedings as provided in proposed civil penalty, the amount of Penalty portions of the relevant EIR that § 1503.413(c)(2) and agreed to a civil requested reduction, together with any are not privileged (e.g., under the penalty amount in compromise of the documents supporting a reduction of deliberative process, attorney work- matter, in which case the person waives the proposed civil penalty, which reflect product, or attorney-client privileges). the right to request a formal hearing, a current financial inability to pay or This information will be provided for and payment is due within 30 days of records showing that payment of the the sole purpose of providing the receipt of the Order. proposed civil penalty would prevent information necessary to prepare a (b) Automatic issuance. A Final the person from continuing in business. response to the allegations contained in Notice and Order automatically converts (iii) A written request for an Informal the Notice of Proposed Civil Penalty. to an Order Assessing Civil Penalty if— Conference, at a date to be determined Sensitive Security Information (SSI) (1) The person charged with a by an agency official, to discuss the contained in the EIR may be released violation submits a certified check or matter with the agency official and to pursuant to 49 CFR part 1520. money order in the amount reflected in submit supporting evidence and Information released under this section the Final Notice and Order to information to the agency official before is not produced under the Freedom of Transportation Security Administration, the date of the Informal Conference. Information Act. to the address specified in the Final (3) Submit to the office identified in (b) Any person not listed in paragraph Notice and Order, or makes such the Notice of Violation and to TSA’s (a) of this section that is interested in payment electronically through http:// Enforcement Docket Clerk a written obtaining a copy of the EIR must submit www.pay.gov; or request for a formal hearing before an a FOIA request pursuant to 5 U.S.C. 552, (2) The person fails to respond to the ALJ in accordance with subpart G. A et seq., 49 CFR part 7, and any Final Notice and Order or request a request for a formal hearing before an applicable DHS regulations. Portions of formal hearing within 15 days after ALJ must be submitted to the address the EIR may be exempt from disclosure receipt of that notice. provided in § 1503.413(c)(3). pursuant to FOIA. § 1503.421 Streamlined civil penalty (d) Final Notice of Violation and Civil § 1503.417 Final Notice of Proposed Civil procedures for certain security violations. Penalty Assessment Order. TSA may Penalty and Order. (a) Notice of violation. TSA, at the issue a Final Notice of Violation and (a) Issuance. TSA may issue a Final agency’s discretion, may initiate a civil Civil Penalty Assessment Order (‘‘Final Notice of Proposed Civil Penalty and penalty action through issuance of a Notice and Order’’) to the recipient of a Order (‘‘Final Notice and Order’’) to a Notice of Violation for violations Notice of Violation in the following person charged with a violation in the described in the section and as circumstances: following circumstances: otherwise provided by the (1) The individual has failed to (1) The person has failed to respond Administrator. TSA may serve a Notice respond to a Notice of Violation within to a Notice of Proposed Civil Penalty of Violation on an individual who 30 days after receipt of that notice. within 30 days after receipt of that violates a TSA requirement by (2) The individual requested an notice. presenting a weapon, explosive, or Informal Conference under (2) The person requested an Informal incendiary for screening at an airport or § 1503.421(c)(2)(iii) but failed to attend Conference under § 1503.413(c)(2), but in checked baggage, where the amount the conference or continuation of the failed to attend the conference or of the proposed civil penalty is less than conference or provide the agency continuation of the conference or $5,000. official with a written request showing provide the agency attorney with a (b) Contents. A Notice of Violation good cause for rescheduling the written request showing good cause for contains a statement of the charges, the informal conference to a specified rescheduling of the informal conference amount of the proposed civil penalty, alternate date. to a specified alternate date. and an offer to settle the matter for a (3) The parties have participated in an (3) The parties have participated in an lesser specified penalty amount. Informal Conference or other informal Informal Conference or other informal (c) Response. Not later than 30 days proceedings as provided in proceedings as provided in after receipt of the Notice of Violation, § 1503.421(c)(2) and the parties have not § 1503.413(c)(2) and the parties have not the individual charged with a violation agreed to compromise the action or the agreed to compromise the action or the must respond to TSA by taking one, and agency official has not agreed to agency attorney has not agreed to only one, of the following options. withdraw the Notice of Violation. withdraw the notice of proposed civil (1) Submit a certified check or money (e) Order Assessing Civil Penalty. A penalty. order for the lesser specified penalty Final Notice and Order automatically (b) Contents. The Final Notice and amount in the Notice of Violation, made converts to an Order Assessing Civil Order will contain a statement of the payable to Transportation Security Penalty if— facts alleged, the law allegedly violated Administration and sent to the address (1) The individual charged with a by the respondent, and the amount of specified in the Notice of Violation, or violation submits a certified check or the proposed civil penalty. The Final make such payment electronically money order in the amount reflected in Notice and Order may reflect a modified through http://www.pay.gov. the Final Notice and Order to allegation or proposed civil penalty as a (2) Submit to the office identified in Transportation Security Administration result of information submitted to the the Notice of Violation one of the at the address specified in the Final agency attorney during the informal following: Notice and Order, or makes such

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payment electronically through http:// initial decision or dispositive order and the ALJ or the chief ALJ if no judge www.pay.gov; or resolving the case prior to the has been assigned to the proceeding at (2) The individual fails to respond to commencement of the formal hearing. the time of filing. Service on a party’s the Final Notice and Order or request a (b) Form. The person submitting a attorney of record or a party’s formal hearing within 15 days after request for hearing must date and sign designated representative is service on receipt of that notice. the request, and must include his or her the party. (f) Delegation of authority. The current address. The request for hearing authority of the Administrator, under 49 must be typewritten or legibly § 1503.431 Certification of documents. U.S.C. 46301, to initiate, negotiate, and handwritten. (a) General. This section governs each settle civil penalty actions under this (c) Submission of request. A person document tendered for filing with the section is delegated to the Assistant requesting a hearing must file a written Enforcement Docket Clerk under this Administrator for Security Operations. request for a hearing with the part. This authority may be further delegated. Enforcement Docket Clerk in accordance (b) Signature required. The attorney of with § 1503.429 and must serve a copy record, the party, or the party’s § 1503.423 Consent orders. of the request on the agency attorney or representative must sign each document (a) Issuance. At any time before the other agency official who issued the tendered for filing with the Enforcement issuance of an Order Assessing Civil Notice of Proposed Civil Penalty, or Docket Clerk, or served on the ALJ, the Penalty under this subpart, an agency Notice of Violation, as applicable, and TSA decision maker on appeal, or each attorney and a person subject to a Notice any other party, in accordance with party. of Proposed Civil Penalty, or an agency § 1503.429. (c) Effect of signing a document. By official and a person subject to a Notice signing a document, the attorney of of Violation, may agree to dispose of the § 1503.429 Filing of documents with the record, the party, or the party’s Enforcement Docket Clerk. case by the issuance of a consent order representative certifies that he or she by TSA. (a) General. This section governs has read the document and, based on (b) Contents. A consent order contains filing of documents with the reasonable inquiry and to the best of the following: Enforcement Docket Clerk when that person’s knowledge, information, (1) An admission of all jurisdictional required under this part. and belief, the document is— facts. (b) Type of service. A person must file (1) Consistent with the rules in this (2) An admission of agreed-upon a document with the Enforcement part; allegations. Docket Clerk by delivering two copies of (2) Warranted by existing law or that (3) A statement of the law violated. the document as follows: a good faith and nonfrivolous argument (4) A finding of violation. (1) By personal delivery or mail, to exists for extension, modification, or (5) An express waiver of the right to United States Coast Guard (USCG) ALJ reversal of existing law; Docketing Center, ATTN: Enforcement further procedural steps and of all rights (3) Not unreasonable or unduly Docket Clerk, at the address specified in to administrative and judicial review. burdensome or expensive, not made to § 1503.413(c)(3). harass any person, not made to cause § 1503.425 Compromise orders. (2) By electronic mail, to unnecessary delay, not made to cause (a) Issuance. At any time before the [email protected]. If this e- needless increase in the cost of the issuance of an Order Assessing Civil mail address changes, TSA will provide proceedings, or for any other improper Penalty under this subpart, an agency notice of the change by notice in the purpose; and attorney and a person subject to a Notice Federal Register. (4) Supported by evidence, and any of Proposed Civil Penalty, or an agency (3) By facsimile transmission, to 410– denials of factual contentions are official and a person subject to a Notice 962–1746. If this number changes, TSA warranted on the evidence. of Violation, may agree to dispose of the will provide notice of the change by case by the issuance of a compromise notice in the Federal Register. (d) Sanctions. On motion of a party, order by TSA. (c) Contents. Unless otherwise if the ALJ or TSA decision maker finds (b) Contents. A compromise order specified in this part, each document that any attorney of record, the party, or contains the following: must contain a short, plain statement of the party’s representative has signed a (1) All jurisdictional facts. the facts supporting the person’s document in violation of this section, (2) All allegations. position and a brief statement of the the ALJ or the TSA decision maker, as (3) A statement that the person agrees action requested in the document. Each appropriate, will do the following: to pay the civil penalty specified. document must be typewritten or (1) Strike the pleading signed in (4) A statement that TSA makes no legibly handwritten. violation of this section. finding of a violation. (d) Date of filing. The date of filing (2) Strike the request for discovery or (5) A statement that the compromise will be as follows: the discovery response signed in order will not be used as evidence of a (1) The date of personal delivery. violation of this section and preclude prior violation in any subsequent civil (2) If mailed, the mailing date stated further discovery by the party. penalty proceeding. on the certificate of service, the date (3) Deny the motion or request signed shown on the postmark if there is no in violation of this section. § 1503.427 Request for a formal hearing. certificate of service, or other mailing (4) Exclude the document signed in (a) General. Any respondent may date shown by other evidence if there is violation of this section from the record. request a formal hearing, pursuant to no certificate of service or postmark. (5) Dismiss the interlocutory appeal § 1503.413(c)(3) or § 1503.421(c)(3), to (3) If sent by electronic mail or and preclude further appeal on that be conducted in accordance with the facsimile transmission, the date of issue by the party who filed the appeal procedures in subpart G of this part. The transmission. until an initial decision has been filing of a request for a formal hearing (e) Service of documents filed with the entered on the record. does not guarantee a person an Enforcement Docket. A person must (6) Dismiss the appeal of the ALJ’s opportunity to appear before an ALJ in serve a copy of any document filed with initial decision to the TSA decision person, because the ALJ may issue an the Enforcement Docket on each party maker.

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Subpart F—[Reserved] the manner provided in § 1503.409, § 1503.629(f)(6), requesting that an ALJ before participating in any proceeding be disqualified from the proceedings. Subpart G—Rules of Practice in TSA governed by this subpart. The attorney § 1503.609 Complaint. Civil Penalty Actions or representative must include the name, address, and telephone number of (a) Filing. The agency attorney must § 1503.601 Applicability. the attorney or representative in the file the complaint with the Enforcement (a) This subpart applies to a civil notice of appearance. Docket Clerk in accordance with penalty action in which the § 1503.429, or may file a written motion requirements of paragraphs (a)(1) § 1503.607 Administrative law judges. pursuant to § 1503.629(f)(2)(i) instead of through (a)(3) of this section are (a) Powers of an ALJ. In accordance filing a complaint, not later than 30 days satisfied. with the rules of this subpart, an ALJ after receipt by the agency attorney of a (1) There is an alleged violation of a may: request for hearing. The agency attorney TSA requirement. (1) Give notice of, and hold, should suggest a location for the hearing (2) The amount in controversy does prehearing conferences and hearings. when filing the complaint. not exceed— (2) Issue scheduling orders and other (b) Contents. A complaint must set (i) $50,000 if the violation was appropriate orders regarding discovery forth the facts alleged, any statute, committed by an individual or a small or other matters that come before him or regulation, or order allegedly violated business concern; her consistent with the rules of this by the respondent, and the proposed (ii) $400,000 if the violation was subpart. civil penalty in sufficient detail to committed by any other person. (3) Administer oaths and affirmations. provide notice of any factual or legal (3) The person charged with the (4) Issue subpoenas authorized by allegation and proposed civil penalty. violation has requested a hearing in law. accordance with § 1503.427 of this part. (5) Rule on offers of proof. § 1503.611 Answer. (b) This subpart does not apply to the (6) Receive relevant and material (a) Filing. A respondent must file a adjudication of the validity of any TSA evidence. written answer to the complaint in rule or other requirement under the U.S. (7) Regulate the course of the hearing accordance with § 1503.429, or may file Constitution, the Administrative in accordance with the rules of this a written motion pursuant to Procedure Act, or any other law. subpart. § 1503.629(f)(1)–(4) instead of filing an (8) Hold conferences to settle or to answer, not later than 30 days after § 1503.603 Separation of functions. simplify the issues on his or her own service of the complaint. Subject to (a) Civil penalty proceedings, motion or by consent of the parties. paragraph (c) of this section, the answer including hearings, will be prosecuted (9) Rule on procedural motions and may be in the form of a letter, but must only by an agency attorney, except to requests. be dated and signed by the person the extent another agency official is (10) Make findings of fact and responding to the complaint. An answer permitted to issue and prosecute civil conclusions of law, and issue an initial may be typewritten or may be legibly penalties under § 1503.421 of this part. decision. handwritten. The person filing an (b) An agency employee engaged in (11) Strike unsigned documents answer should suggest a location for the the performance of investigative or unless omission of the signature is hearing when filing the answer. prosecutorial functions in a civil corrected promptly after being called to (b) Contents. An answer must penalty action must not, in that case or the attention of the attorney or party. specifically state any affirmative defense a factually related case, participate or (12) Order payment of witness fees in that the respondent intends to assert at give advice in a decision by the ALJ or accordance with § 1503.649. the hearing. A person filing an answer by the TSA decision maker on appeal, (b) Limitations on the power of the may include a brief statement of any except as counsel or a witness in the ALJ. (1) The ALJ may not: relief requested in the answer. public proceedings. (i) Issue an order of contempt. (c) Specific denial of allegations (c) The Chief Counsel or an agency (ii) Award costs to any party. required. A person filing an answer attorney not covered by paragraph (b) of (iii) Impose any sanction not specified must admit, deny, or state that the this section will advise the TSA in this subpart. person is without sufficient knowledge decision maker regarding an initial (iv) Adopt or follow a standard of or information to admit or deny, each decision or any appeal of a civil penalty proof or procedure contrary to that set numbered paragraph of the complaint. action to the TSA decision maker. forth in this subpart. Any statement or allegation contained (v) Decide issues involving the in the complaint that is not specifically § 1503.605 Appearances and rights of validity of a TSA regulation, order, or denied in the answer may be deemed an parties. other requirement under the U.S. admission of the truth of that allegation. (a) Any party may appear and be Constitution, the Administrative A general denial of the complaint is heard in person. Procedure Act, or other law. deemed a failure to file an answer. (b) Any party may be accompanied, (2) If the ALJ imposes any sanction (d) Failure to file answer. A person’s represented, or advised by an attorney not specified in this subpart, a party failure to file an answer without good or representative designated by the may file an interlocutory appeal of right cause, as determined by the ALJ, will be party and may be examined by that pursuant to § 1503.631(c)(3). deemed an admission of the truth of attorney or representative in any (3) This section does not preclude an each allegation contained in the proceeding governed by this subpart. An ALJ from issuing an order that bars a complaint. attorney or representative who person from a specific proceeding based represents a respondent and has not on a finding of obstreperous or § 1503.613 Consolidation and separation previously filed a pleading in the matter disruptive behavior in that specific of cases. must file a notice of appearance in the proceeding. (a) Consolidation. If two or more action, in the manner provided in (c) Disqualification. The ALJ may actions involve common questions of § 1503.429, and must serve a copy of the disqualify himself or herself at any time. law or fact, the Chief Administrative notice of appearance on each party, in A party may file a motion, pursuant to Law Judge may do the following:

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(1) Order a joint hearing or trial on (c) Request for continuance of § 1503.623 Withdrawal of complaint or any or all such questions. hearing. Either party may request in request for hearing. (2) Order the consolidation of such writing a continuance of the date of a At any time before or during a actions. hearing, for good cause shown, no later hearing, an agency attorney may (3) Otherwise make such orders than seven days before the scheduled withdraw a complaint or a respondent concerning the proceedings as may tend date of the hearing. Good cause does not may withdraw a request for a hearing to avoid unnecessary costs or delay. include a scheduling conflict involving without the consent of the ALJ. If an (b) Consolidation shall not affect the the parties or their attorneys which by agency attorney withdraws the applicability of this part. Consolidation due diligence could have been foreseen. complaint or a party withdraws the of two or more actions that individually (d) Failure to rule. If the ALJ fails to request for a hearing and the answer, the meet the jurisdictional amounts set forth rule on a written motion for an ALJ must dismiss the proceedings under in § 1503.601(a)(2) shall not cause the extension of time by the date the this subpart with prejudice, unless the resulting consolidated action to come document was due, the motion for an withdrawing party shows good cause for under the exclusive jurisdiction of the extension of time is deemed granted for dismissal without prejudice, except that district courts of the United States as no more than 20 days after the original a party may withdraw a request for specified in 49 U.S.C. 46301(d)(4)(A). date the document was to be filed. If the hearing without prejudice at any time (c) Separate trials. The Chief ALJ fails to rule on a request for before a complaint has been filed. continuance by the scheduled hearing Administrative Law Judge, in § 1503.625 Waivers. furtherance of convenience or to avoid date, the request is deemed granted for prejudice, or when separate trials will no more than 10 days after the Waivers of any rights provided by be conducive to expedition and scheduled hearing date. statute or regulation must be in writing economy, may order a separate trial of or by stipulation made at a hearing and § 1503.619 Intervention. any claim, or of any separate issue, or entered into the record. The parties any number of claims or issues. (a) A person may file a motion for must set forth the precise terms of the leave to intervene as a party in a civil waiver and any conditions. § 1503.615 Notice of hearing. penalty action. The person must file a § 1503.627 Joint procedural or discovery (a) Notice. The ALJ must give each motion for leave to intervene not later schedule. party at least 60 days notice of the date, than 10 days before the hearing unless time, and location of the hearing. With the person shows good cause for the late (a) General. The parties may agree to the consent of the ALJ, the parties may filing. submit a schedule for filing all agree to hold the hearing on an earlier prehearing motions, a schedule for (b) If the ALJ finds that intervention conducting discovery in the date than the date specified in the will not unduly broaden the issues or notice of hearing. proceedings, or a schedule that will delay the proceedings, the ALJ may govern all prehearing motions and (b) Date, time, and location of the grant a motion for leave to intervene if discovery in the proceedings. hearing. The ALJ to whom the the person will be bound by any order (b) Form and content of schedule. If proceedings have been assigned must or decision entered in the action or the the parties agree to a joint procedural or set a reasonable date, time, and location person has a property, financial, or discovery schedule, one of the parties for the hearing. The ALJ must consider other legitimate interest that may not be must file the joint schedule with the the need for discovery and any joint addressed adequately by the parties. ALJ, setting forth the dates to which the procedural or discovery schedule The ALJ may determine the extent to parties have agreed, and must serve a submitted by the parties when which an intervenor may participate in copy of the joint schedule on each party. determining the hearing date. The ALJ the proceedings. must give due regard to the convenience (1) The joint schedule may include, of the parties, the location where the § 1503.621 Amendment of pleadings. but need not be limited to, requests for discovery, any objections to discovery majority of the witnesses reside or work, (a) Filing and service. A party must requests, responses to discovery and whether the location is served by a file the amendment with the requests to which there are no scheduled air carrier. Enforcement Docket Clerk and must objections, submission of prehearing serve a copy of the amendment on the § 1503.617 Extension of time. motions, responses to prehearing ALJ and all parties to the proceeding. (a) Oral requests. The parties may motions, exchange of exhibits to be (b) Time. A party must file an agree to extend for a reasonable period introduced at the hearing, and a list of amendment to a complaint or an answer the time for filing a document under witnesses that may be called at the within the following: this subpart. If the parties agree, the ALJ hearing. must grant one extension of time to each (1) Not later than 15 days before the (2) Each party must sign the original party. The party seeking the extension scheduled date of a hearing, a party may joint schedule to be filed with the of time must submit a draft order to the amend a complaint or an answer Enforcement Docket Clerk. ALJ to be signed by the ALJ and filed without the consent of the ALJ. (c) Time. The parties may agree to with the Enforcement Docket Clerk. The (2) Less than 15 days before the submit all prehearing motions and ALJ may grant additional oral requests scheduled date of a hearing, the ALJ responses and may agree to close for an extension of time where the may allow amendment of a complaint or discovery in the proceedings under the parties agree to the extension. an answer only for good cause shown in joint schedule within a reasonable time (b) Written motion. A party must file a motion to amend. before the date of the hearing, but not a written motion for an extension of (c) Responses. The ALJ must allow a later than 15 days before the hearing. time not later than 7 days before the reasonable time, but not more than 20 (d) Order establishing joint schedule. document is due unless the party shows days from the date of filing, for other The ALJ must approve the joint good cause for the late filing. The ALJ parties to respond if an amendment to schedule filed by the parties. One party may grant the extension of time if the a complaint, answer, or other pleading must submit a draft order establishing a party shows good cause. has been filed with the ALJ. joint schedule to the ALJ to be signed by

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the ALJ and filed with the Enforcement not later than 10 days before the dismiss, the respondent must file an Docket Clerk. hearing. answer and must serve a copy of the (e) Disputes. The ALJ must resolve (2) Prehearing motions. The ALJ must answer on each party not later than 30 disputes regarding discovery or disputes resolve all pending prehearing motions days after service of the ALJ’s ruling or regarding compliance with the joint not later than 7 days before the hearing. order on the motion to dismiss. If the schedule as soon as possible so that the If the ALJ issues a ruling or order orally, ALJ grants the motion to dismiss and parties may continue to comply with the the ALJ must serve a written copy of the the proceedings are terminated without joint schedule. ruling or order, within 3 days, on each a hearing, the agency attorney may file (f) Sanctions for failure to comply party. In all other cases, the ALJ must an appeal pursuant to § 1503.657. If with joint schedule. If a party fails to issue rulings and orders in writing and required by the decision on appeal, the comply with the ALJ’s order must serve a copy of the ruling or order respondent must file an answer and establishing a joint schedule, the ALJ on each party. must serve a copy of the answer on each may direct that party to comply with a (3) Motions made during the hearing. party not later than 20 days after service motion or discovery request or, limited The ALJ may issue rulings and orders of the decision on appeal. to the extent of the party’s failure to on motions made during the hearing (iii) Motion to dismiss based on comply with a motion or discovery orally. Oral rulings or orders on motions settlement. A party may file a motion to request, the ALJ may do the following: must be made on the record. dismiss based on a mutual settlement of (f) Specific motions. A party may file, (1) Strike that portion of a party’s the parties. but is not limited to, the following pleadings. (3) Motion for more definite motions with the Enforcement Docket statement. A party may file a motion for (2) Preclude prehearing or discovery Clerk: more definite statement of any pleading motions by that party. (1) Motion to dismiss for insufficiency. that requires a response under this (3) Preclude admission of that portion A respondent may file a motion to subpart. A party must set forth, in of a party’s evidence at the hearing. dismiss the complaint for insufficiency detail, the indefinite or uncertain (4) Preclude that portion of the instead of filing an answer. If the ALJ allegations contained in a complaint or testimony of that party’s witnesses at denies the motion to dismiss the response to any pleading and must the hearing. complaint for insufficiency, the submit the details that the party believes § 1503.629 Motions. respondent must file an answer not later would make the allegation or response than 20 days after service of the ALJ’s definite and certain. (a) General. A party applying for an denial of the motion. A motion to (i) Complaint. A respondent may file order or ruling not specifically provided dismiss the complaint for insufficiency a motion requesting a more definite in this subpart must do so by motion. must show that the complaint fails to statement of the allegations contained in A party must comply with the state a violation of a TSA requirement. the complaint instead of filing an requirements of this section when filing If the ALJ grants the motion to dismiss answer. If the ALJ grants the motion, the a motion. A party must serve a copy of the complaint for insufficiency, the agency attorney must supply a more each motion on each party. agency attorney may amend the definite statement not later than 15 days (b) Form and contents. A party must complaint in accordance with after service of the ruling granting the state the relief sought by the motion and § 1503.621. motion. If the agency attorney fails to the particular grounds supporting that (2) Motion to dismiss. A party may file supply a more definite statement, the relief. If a party has evidence in support a motion to dismiss, specifying the ALJ must strike the allegations in the of a motion, the party must attach any grounds for dismissal. If an ALJ grants complaint to which the motion is supporting evidence, including a motion to dismiss in part, a party may directed. If the ALJ denies the motion, affidavits, to the motion. appeal the ALJ’s ruling on the motion to the respondent must file an answer and (c) Filing of motions. A motion made dismiss under § 1503.631(b). must serve a copy of the answer on each prior to the hearing must be in writing (i) Motion to dismiss a request for a party not later than 20 days after service or orally on the record. Unless hearing. An agency attorney may file a of the order of denial. otherwise agreed by the parties or for motion to dismiss a request for a hearing (ii) Answer. An agency attorney may good cause shown, a party must file any as untimely instead of filing a file a motion requesting a more definite prehearing motion, and must serve a complaint. If the motion to dismiss is statement if an answer fails to respond copy on each party, not later than 30 not granted, the agency attorney must clearly to the allegations in the days before the hearing. Motions file the complaint and must serve a copy complaint. If the ALJ grants the motion, introduced during a hearing may be of the complaint on each party not later the respondent must supply a more made orally on the record unless the than 20 days after service of the ALJ’s definite statement not later than 15 days ALJ directs otherwise. ruling or order on the motion to dismiss. after service of the ruling on the motion. (d) Reply to motions. Any party may If the motion to dismiss is granted and If the respondent fails to supply a more file a reply, with affidavits or other the proceedings are terminated without definite statement, the ALJ must strike evidence in support of the reply, not a hearing, the respondent may file an those statements in the answer to which later than 10 days after service of a appeal pursuant to § 1503.657. If the motion is directed. The respondent’s written motion on that party. When a required by the decision on appeal, the failure to supply a more definite motion is made during a hearing, the agency attorney must file a complaint statement may be deemed an admission reply may be made at the hearing on the and must serve a copy of the complaint of unanswered allegations in the record, orally or in writing, within a on each party not later than 30 days complaint. reasonable time determined by the ALJ. after service of the decision on appeal. (4) Motion to strike. Any party may At the discretion of the ALJ, the moving (ii) Motion to dismiss a complaint. A move to strike any insufficient party may file a response to the reply. respondent may file a motion to dismiss allegation or defense, or any redundant, (e) Rulings on motions. The ALJ must a complaint instead of filing an answer, immaterial, or irrelevant matter in a rule on all motions as follows: on the ground that the complaint was pleading. A party must file a motion to (1) Discovery motions. The ALJ must not timely filed or on other grounds. If strike before a response is required resolve all pending discovery motions the ALJ does not grant the motion to under this subpart or, if a response is

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not required, not later than 10 days after not appeal a ruling or decision of the interlocutory appeals in a proceeding in service of the pleading. ALJ to the TSA decision maker until the which there have been frivolous, (5) Motion for decision. A party may initial decision has been entered on the repetitive, or dilatory interlocutory move for decision, regarding all or any record. A decision or order of the TSA appeals. part of the proceedings, at any time decision maker on the interlocutory before the ALJ has issued an initial appeal does not constitute a final order § 1503.633 Discovery. decision in the proceedings. A party of the Administrator for the purposes of (a) Initiation of discovery. Any party may include with a motion for decision judicial appellate review under 49 may initiate discovery described in this affidavits as well as any other evidence U.S.C. 46110. section, without the consent or approval in support of the motion. The ALJ must (b) Interlocutory appeal for cause. If a of the ALJ, at any time after a complaint grant a party’s motion for decision if the party files a written request for an has been filed in the proceedings. pleadings, depositions, answers to interlocutory appeal for cause with the (b) Methods of discovery. The interrogatories, admissions, affidavits, ALJ, or orally requests an interlocutory following methods of discovery are matters that the ALJ has officially appeal for cause, the proceedings are permitted under this section: noticed, or evidence introduced during stayed until the ALJ issues a decision on depositions on oral examination or the hearing show that there is no the request. If the ALJ grants the request, written questions of any person; written genuine issue of material fact and that the proceedings are stayed until the interrogatories directed to a party; the party making the motion is entitled TSA decision maker issues a decision requests for production of documents or to a decision as a matter of law. The on the interlocutory appeal. The ALJ tangible items to any person; and party moving for decision has the must grant an interlocutory appeal for requests for admission by a party. A burden of showing that there is no cause if a party shows that delay of the party is not required to file written genuine issue of material fact. appeal would be detrimental to the discovery requests and responses with (6) Motion for disqualification. A public interest or would result in undue the ALJ or the Enforcement Docket party may file the motion at any time prejudice to any party. Clerk. In the event of a discovery after the ALJ has been assigned to the (c) Interlocutory appeals of right. If a dispute, a party must attach a copy of proceedings but must make the motion party notifies the ALJ of an interlocutory these documents in support of a motion before the ALJ files an initial decision appeal of right, the proceedings are made under this section. in the proceedings. stayed until the TSA decision maker (c) Service on the agency. A party (i) Motion and supporting affidavit. A issues a decision on the interlocutory must serve each discovery request party must state the grounds for appeal. A party may file an directed to the agency or any agency disqualification, including, but not interlocutory appeal, without the employee on the agency attorney of limited to, personal bias, pecuniary consent of the ALJ, before an initial record. interest, or other factors supporting decision has been entered in the (d) Time for response to discovery disqualification, in the motion for following cases: requests. Unless otherwise directed by (1) A ruling or order by the ALJ disqualification. A party must submit an this subpart, agreed by the parties, or by barring a person from the proceedings. affidavit with the motion for order of the ALJ, a party must respond disqualification that sets forth, in detail, (2) Failure of the ALJ to dismiss the proceedings in accordance with to a request for discovery, including the matters alleged to constitute grounds filing objections to a request for for disqualification. § 1503.215. (3) A ruling or order by the ALJ in discovery, not later than 30 days after (ii) Answer. A party must respond to service of the request. the motion for disqualification not later violation of § 1503.607(b). (e) Scope of discovery. Subject to the than 5 days after service of the motion (4) A ruling or order by the ALJ limits on discovery set forth in for disqualification. regarding public access to a particular (iii) Decision on motion for docket or documents. paragraph (f) of this section, a party may disqualification. The ALJ must render a (d) Procedure. Not later than 10 days discover any matter that is not decision on the motion for after the ALJ’s decision forming the privileged and that is relevant to the disqualification not later than 20 days basis of an interlocutory appeal of right subject matter of the proceeding. A after the motion has been filed. If the or not later than 10 days after the ALJ’s party may discover information that ALJ finds that the motion for decision granting an interlocutory relates to the claim or defense of any disqualification and supporting affidavit appeal for cause, a party must file a party including the existence, show a basis for disqualification, the notice of interlocutory appeal, with description, nature, custody, condition, ALJ must withdraw from the supporting documents, and the party and location of any document or other proceedings immediately. If the ALJ must serve a copy of the notice and tangible item and the identity and finds that disqualification is not supporting documents on each party. location of any person having warranted, the ALJ must deny the Not later than 10 days after service of knowledge of discoverable matter. A motion and state the grounds for the the appeal brief, a party must file a reply party may discover facts known, or denial on the record. If the ALJ fails to brief, if any, and the party must serve opinions held, by an expert who any rule on a party’s motion for a copy of the reply brief on each party. other party expects to call to testify at disqualification within 20 days after the The TSA decision maker must render a the hearing. A party may not object to motion has been filed, the motion is decision on the interlocutory appeal, on a discovery request on the basis that the deemed granted. the record and as a part of the decision information sought would not be (iv) Appeal. A party may appeal the in the proceedings, within a reasonable admissible at the hearing if the ALJ’s denial of the motion for time after receipt of the interlocutory information sought during discovery is disqualification in accordance with appeal. reasonably calculated to lead to the § 1503.631(b). (e) Frivolous appeals. The TSA discovery of admissible evidence. decision maker may reject frivolous, (f) Limiting discovery. The ALJ must § 1503.631 Interlocutory appeals. repetitive, or dilatory appeals, and may limit the frequency and extent of (a) General. Unless otherwise issue an order precluding one or more discovery permitted by this section if a provided in this subpart, a party may parties from making further party shows that—

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(1) The information requested is of the motion for protective order on may serve a notice of deposition less cumulative or repetitious; each party. The party or person making than 7 days before the deposition only (2) The information requested can be the motion must show that the with consent of the ALJ and for good obtained from another less burdensome protective order is necessary to protect cause shown. If a subpoena ‘‘duces and more convenient source; the party or the person from annoyance, tecum’’ is to be served on the person to (3) The party requesting the embarrassment, oppression, or undue be examined, the party must attach a information has had ample opportunity burden or expense. As part of the copy of the subpoena duces tecum that to obtain the information through other protective order, the ALJ may do the describes the materials to be produced discovery methods permitted under this following: at the deposition to the notice of section; or (1) Deny the discovery request. deposition. (4) The method or scope of discovery (2) Order that discovery be conducted (4) Use of depositions. A party may requested by the party is unduly only on specified terms and conditions, use any part or all of a deposition at a burdensome or expensive. including a designation of the time or hearing authorized under this subpart (g) Disclosure of Sensitive Security place for discovery or a determination of only upon a showing of good cause. The Information (SSI). At the request of a the method of discovery. deposition may be used against any party, TSA may provide SSI to the party (3) Limit the scope of discovery or party who was present or represented at when, in the sole discretion of TSA, preclude any inquiry into certain the deposition or who had reasonable access to the SSI is necessary for the matters during discovery. notice of the deposition. party to prepare a response to (j) Duty to supplement or amend (l) Interrogatories. A party, the party’s allegations contained the complaint. responses. A party who has responded attorney, or the party’s representative TSA may provide such information to a discovery request has a duty to may sign the party’s responses to subject to such restrictions on further supplement or amend the response, as interrogatories. A party must answer disclosure and such safeguarding soon as the information is known, as each interrogatory separately and requirements as TSA determines follows: completely in writing. If a party objects appropriate. (1) A party must supplement or to an interrogatory, the party must state (h) Confidential orders. A party or amend any response to a question the objection and the reasons for the person who has received a discovery requesting the identity and location of objection. An opposing party may use request for information, other than SSI, any person having knowledge of any part or all of a party’s responses to that is related to a trade secret, discoverable matters. interrogatories at a hearing authorized confidential or sensitive material, (2) A party must supplement or under this subpart to the extent that the competitive or commercial information, amend any response to a question response is relevant, material, and not proprietary data, or information on requesting the identity of each person repetitious. research and development, may file a who will be called to testify at the (1) A party must not serve more than motion for a confidential order with the hearing as an expert witness and the 30 interrogatories to each other party. ALJ and must serve a copy of the motion subject matter and substance of that Each subpart of an interrogatory will be for a confidential order on each party. witness’ testimony. counted as a separate interrogatory. (1) The party or person making the (3) A party must supplement or (2) Before serving additional motion must show that the confidential amend any response that was incorrect interrogatories on a party, a party must order is necessary to protect the when made or any response that was file a motion for leave to serve information from disclosure to the correct when made but is no longer additional interrogatories on a party public. correct, accurate, or complete. with the ALJ and must serve a copy on (2) If the ALJ determines that the (k) Depositions. The following rules each party before serving additional requested material is not necessary to apply to depositions taken pursuant to interrogatories on a party. The ALJ may decide the case, the ALJ must preclude this section: grant the motion only if the party shows any inquiry into the matter by any party. (1) Form. A deposition must be taken good cause for the party’s failure to (3) If the ALJ determines that the on the record and reduced to writing. inquire about the information requested material may be disclosed The person being deposed must sign the previously and that the information during discovery, the ALJ may order deposition unless the parties agree to cannot reasonably be obtained using that the material may be discovered and waive the requirement of a signature. less burdensome discovery methods or disclosed under limited conditions or (2) Administration of oaths. Within be obtained from other sources. may be used only under certain terms the United States, or a territory or (m) Requests for admission. A party and conditions. possession subject to the jurisdiction of may serve a written request for (4) If the ALJ determines that the the United States, a party must take a admission of the truth of any matter requested material is necessary to deposition before a person authorized to within the scope of discovery under this decide the case and that a confidential administer oaths by the laws of the section or the authenticity of any order is warranted, the ALJ must United States or authorized by the law document described in the request. A provide the following: of the place where the examination is party must set forth each request for (i) An opportunity for review of the held. Outside the United States, a party admission separately. A party must document by the parties off the record. will take a deposition in any manner serve copies of documents referenced in (ii) Procedures for excluding the allowed by the Federal Rules of Civil the request for admission unless the information from the record. Procedure (28 U.S.C. App.). documents have been provided or are (iii) An order that the parties must not (3) Notice of deposition. A party must reasonably available for inspection and disclose the information in any manner serve a notice of deposition, stating the copying. and the parties must not use the time and place of the deposition and the (1) Time. A party’s failure to respond information in any other proceeding. name and address of each person to be to a request for admission, in writing (i) Protective orders. A party or a examined, on the person to be deposed, and signed by the attorney or the party, person who has received a request for on the ALJ, on the Enforcement Docket not later than 30 days after service of the discovery may file a motion for Clerk, and on each party not later than request, is deemed an admission of the protective order and must serve a copy 7 days before the deposition. A party truth of the statement or statements

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contained in the request for admission. that may be required for a full and true not be in the public interest, or that the The ALJ may determine that a failure to disclosure of the facts. information is not otherwise required to respond to a request for admission is not (b) Admissibility. A party may be made available to the public. deemed an admission of the truth if a introduce any oral, documentary, or party shows that the failure was due to demonstrative evidence in support of § 1503.645 Expert or opinion witnesses. circumstances beyond the control of the the party’s case or defense. The ALJ An employee of the agency may not party or the party’s attorney. must admit any oral, documentary, or be called as an expert or opinion (2) Response. A party may object to a demonstrative evidence introduced by a witness, for any party other than TSA, request for admission and must state the party, but must exclude irrelevant, in any proceeding governed by this reasons for objection. A party may immaterial, or unduly repetitious subpart. An employee of a respondent specifically deny the truth of the matter evidence. may not be called by an agency attorney or describe the reasons why the party is (c) Hearsay evidence. Hearsay as an expert or opinion witness for TSA unable to truthfully deny or admit the evidence is admissible in proceedings in any proceeding governed by this matter. If a party is unable to deny or governed by this subpart. The fact that subpart to which the respondent is a admit the truth of the matter, the party evidence submitted by a party is hearsay party. must show that the party has made goes only to the weight of the evidence § 1503.647 Subpoenas. reasonable inquiry into the matter or and does not affect its admissibility. that the information known to, or (a) Request for subpoena. A party may § 1503.637 Standard of proof. readily obtainable by, the party is obtain a subpoena to compel the insufficient to enable the party to admit The ALJ may issue an initial decision attendance of a witness at a deposition or deny the matter. A party may admit or may rule in a party’s favor only if the or hearing, or to require the production or deny any part of the request for decision or ruling is supported by a of documents or tangible items, from the admission. If the ALJ determines that a preponderance of the evidence ALJ who is assigned to the case, or, if response does not comply with the contained in the record. In order to no ALJ is assigned or the assigned law requirements of this rule or that the prevail, the party with the burden of judge is unavailable, from the chief ALJ. response is insufficient, the matter is proof must prove the party’s case or The party must complete the subpoena, deemed admitted. defense by a preponderance of the stating the title of the action and the (3) Effect of admission. Any matter evidence. date and time for the witness’ attendance or production of documents admitted or deemed admitted under this § 1503.639 Burden of proof. section is conclusively established for or items. The party who obtained the (a) Except in the case of an affirmative the purpose of the hearing and appeal. subpoena must serve the subpoena on defense, the burden of proof is on the (n) Motion to compel discovery. A the witness or the custodian of the agency. party may move to compel discovery if documents or tangible items sought to (b) Except as otherwise provided by a person refuses to answer a question be produced. statute or rule, the proponent of a during a deposition, a party fails or (b) Motion to quash or modify the motion, request, or order has the burden refuses to answer an interrogatory, if a subpoena. A party, or any person upon of proof. person gives an evasive or incomplete whom a subpoena has been served, may (c) A party who has asserted an answer during a deposition or when file a motion to quash or modify the affirmative defense has the burden of responding to an interrogatory, or a subpoena at or before the time specified proving the affirmative defense. party fails or refuses to produce in the subpoena for compliance. The documents or tangible items. During a § 1503.641 Offer of proof. applicant must describe, in detail, the deposition, the proponent of a question A party whose evidence has been basis for the application to quash or may complete the deposition or may excluded by a ruling of the ALJ may modify the subpoena including, but not adjourn the examination before moving offer the evidence for the record on limited to, a statement that the to compel if a person refuses to answer. appeal. testimony, document, or tangible (o) Failure to comply with a discovery evidence is not relevant to the order or order to compel. If a party fails § 1503.643 Public disclosure of evidence. proceeding, that the subpoena is not to comply with a discovery order or an This section applies to information reasonably tailored to the scope of the order to compel, the ALJ, limited to the other than Sensitive Security proceeding, or that the subpoena is extent of the party’s failure to comply Information (SSI). All release of SSI is unreasonable and oppressive. A motion with the discovery order or motion to governed by § 1503.415 and 49 CFR part to quash or modify the subpoena will compel, may do the following: 1520. stay the effect of the subpoena pending (1) Strike that portion of a party’s (a) The ALJ may order that any other a decision by the ALJ on the motion. pleadings. information contained in the record be (c) Enforcement of subpoena. Upon a (2) Preclude prehearing or discovery withheld from public disclosure. Any showing that a person has failed or motions by that party. person may object to disclosure of refused to comply with a subpoena, a (3) Preclude admission of that portion information in the record by filing a party may apply to the U.S. district of a party’s evidence at the hearing. written motion to withhold specific court having jurisdiction to seek judicial (4) Preclude that portion of the information with the ALJ and serving a enforcement of the subpoena in testimony of that party’s witnesses at copy of the motion on each party. The accordance with 49 U.S.C. 46104. the hearing. party must state the specific grounds for nondisclosure in the motion. § 1503.649 Witness fees. § 1503.635 Evidence. (b) The ALJ must grant the motion to (a) General. Unless otherwise (a) General. A party is entitled to withhold information in the record if, authorized by the ALJ, the party who present the party’s case or defense by based on the motion and any response applies for a subpoena to compel the oral, documentary, or demonstrative to the motion, the ALJ determines that attendance of a witness at a deposition evidence, to submit rebuttal evidence, disclosure would be detrimental to or hearing, or the party at whose request and to conduct any cross-examination transportation safety, disclosure would a witness appears at a deposition or

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hearing, must pay the witness fees rulings of the ALJ, and supporting the TSA decision maker or a court of described in this section. arguments for the findings, conclusions, competent jurisdiction. (b) Amount. Except for an employee or exceptions. At the conclusion of the of the agency who appears at the hearing, a party may waive final oral § 1503.657 Appeal from initial decision. direction of the agency, a witness who argument. (a) Notice of appeal. Either party may appears at a deposition or hearing is (c) Posthearing briefs. The ALJ may appeal the initial decision, and any entitled to the same fees and mileage request written posthearing briefs before decision not previously appealed expenses as are paid to a witness in a the ALJ issues an initial decision in the pursuant to § 1503.631, by filing a court of the United States in comparable proceedings. If a party files a written notice of appeal with the Enforcement circumstances. posthearing brief, the party must Docket Clerk. A party must file the include proposed findings of fact and notice of appeal with USCG ALJ § 1503.651 Record. conclusions of law, exceptions to Docketing Center, ATTN: Enforcement (a) Exclusive record. The request for rulings of the ALJ, and supporting Docket Clerk, 40 S. Gay Street, Room hearing, complaint, answer, transcript of arguments for the findings, conclusions, 412, Baltimore, Maryland 21202–4022. all testimony in the hearing, all exhibits or exceptions. The ALJ must give the A party must file the notice of appeal received into evidence, and all motions, parties a reasonable opportunity, not not later than 10 days after entry of the responses to motions, applications, more than 30 days after receipt of the oral initial decision on the record or requests, and rulings will constitute the transcript, to prepare and submit the service of the written initial decision on exclusive record for decision of the briefs. the parties and must serve a copy of the proceedings and the basis for the notice of appeal on each party. Upon issuance of any orders in the § 1503.655 Initial decision. filing of a notice of appeal, the proceeding. (a) Contents. The ALJ may issue an effectiveness of the initial decision is (b) Examination and copying of initial decision after the conclusion of stayed until a final decision and order record. (1) Generally. Any person the hearing or after the submission of of the TSA decision maker have been interested in reviewing or obtaining a written posthearing briefs, if so ordered. entered on the record. copy of a record may do so only by In each oral or written decision, the ALJ (b) Issues on appeal. A party may submitting a Freedom of Information must include findings of fact and appeal only the following issues: Act (FOIA) request under 5 U.S.C. 552, conclusions of law, and the grounds (1) Whether each finding of fact is et seq., 49 CFR part 7, and any supporting those findings and supported by a preponderance of the applicable DHS regulations. Portions of conclusions, upon all material issues of evidence. the record may be exempt from fact, the credibility of witnesses, the (2) Whether each conclusion of law is disclosure pursuant to FOIA. applicable law, any exercise of the ALJ’s made in accordance with applicable (2) Docket Files or Documents Not for discretion, the amount of any civil law, precedent, and public policy. Public Disclosure. (i) Only the following penalty found appropriate by the ALJ, (3) Whether the ALJ committed any persons may review docket files or and a discussion of the basis for any prejudicial errors during the hearing particular documents that are not for order issued in the proceedings. The that support the appeal. public disclosure: ALJ is not required to provide a written (c) Perfecting an appeal. Unless (A) Parties to the proceedings. explanation for rulings on objections, otherwise agreed by the parties, a party (B) Their designated representatives. procedural motions, and other matters must perfect an appeal, not later than 50 (C) Persons who have a need to know not directly relevant to the substance of days after entry of the oral initial as determined by the Administrator. the initial decision. If the ALJ refers to decision on the record or service of the (ii) Those persons with permission to any previous unreported or unpublished written initial decision on the party, by review these documents or docket files initial decision, the ALJ must make filing an appeal brief with the may view the materials at the TSA copies of that initial decision available Enforcement Docket Clerk. Headquarters, 601 South 12th Street, to all parties and the TSA decision (1) Extension of time by agreement of Arlington, Virginia 20598–6002. Persons maker. the parties. The parties may agree to with access to these records may have (b) Written decision. At the extend the time for perfecting the appeal a copy of the records after payment of conclusion of the hearing, the ALJ may with the consent of the TSA decision reasonable costs. issue the initial decision and order maker. If the TSA decision maker grants orally on the record. The ALJ must issue an extension of time to perfect the § 1503.653 Argument before the ALJ. a written initial decision and order not appeal, the Enforcement Docket Clerk (a) Arguments during the hearing. later than 30 days after the conclusion will serve a letter confirming the During the hearing, the ALJ must give of the hearing or submission of the last extension of time on each party. the parties a reasonable opportunity to posthearing brief. The ALJ must serve a (2) Written motion for extension. If the present arguments on the record copy of any written initial decision on parties do not agree to an extension of supporting or opposing motions, each party. time for perfecting an appeal, a party objections, and rulings if the parties (c) Order assessing civil penalty. desiring an extension of time may file a request an opportunity for argument. Unless appealed pursuant to § 1503.657, written motion for an extension with the The ALJ may request written arguments the initial decision issued by the ALJ Enforcement Docket Clerk and must during the hearing if the ALJ finds that will be considered an order assessing serve a copy of the motion on each submission of written arguments is civil penalty if the ALJ finds that an party. The TSA decision maker may necessary before the ALJ issues the alleged violation occurred and grant an extension if good cause for the ruling or order. determines that a civil penalty, in an extension is shown in the motion. (b) Final oral argument. At the amount found appropriate by the ALJ, is (d) Appeal briefs. A party must file conclusion of the hearing and before the warranted. the appeal brief with the Enforcement ALJ issues an initial decision in the (d) Effect of initial decision. An initial Docket Clerk and must serve a copy of proceedings, the parties are entitled to decision of an ALJ is persuasive the appeal brief on each party. submit oral proposed findings of fact authority in any other civil penalty (1) In the appeal brief, a party must and conclusions of law, exceptions to action, unless appealed and reversed by set forth, in detail, the party’s specific

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objections to the initial decision or (h) Oral argument. The TSA decision violation occurred and a civil penalty is rulings, the basis for the appeal, the maker has sole discretion to permit oral warranted. reasons supporting the appeal, and the argument on the appeal. On the TSA (3) A final decision and order of the relief requested in the appeal. If, for the decision maker’s own initiative or upon Administrator after appeal is binding appeal, the party relies on evidence written motion by any party, the TSA precedent in any other civil penalty contained in the record for the appeal, decision maker may find that oral action unless appealed and reversed by the party must specifically refer in the argument will contribute substantially a court of competent jurisdiction. appeal brief to the pertinent evidence to the development of the issues on (4) The TSA decision maker will contained in the transcript. appeal and may grant the parties an determine whether the decision and (2) The TSA decision maker may opportunity for oral argument. order of the TSA decision maker, with dismiss an appeal, on the TSA decision (i) Waiver of objections on appeal. If the ALJ’s initial decision or order maker’s own initiative or upon motion a party fails to object to any alleged attached, may be released to the public, of any other party, where a party has error regarding the proceedings in an either in whole or in redacted form. In filed a notice of appeal but fails to appeal or a reply brief, the party waives making this determination, the TSA perfect the appeal by timely filing an any objection to the alleged error. The decision maker will consider whether appeal brief. TSA decision maker is not required to disclosure of any of the information in (e) Reply brief. Unless otherwise consider any objection in an appeal the decision and order would be agreed by the parties, any party may file brief or any argument in the reply brief detrimental to transportation security, a reply brief not later than 35 days after if a party’s objection is based on would not be in the public interest, or the appeal brief has been served on that evidence contained in the record and should not otherwise be required to be party. The party filing the reply brief the party does not specifically refer to made available to the public. must serve a copy of the reply brief on the pertinent evidence from the record each party. If the party relies on in the brief. § 1503.659 Petition to reconsider or modify evidence contained in the record for the (j) The TSA decision maker’s decision a final decision and order of the TSA decision maker on appeal. reply, the party must specifically refer on appeal. The TSA decision maker will to the pertinent evidence contained in review the briefs on appeal and the oral (a) General. Any party may petition the transcript in the reply brief. argument, if any, to determine if the ALJ the TSA decision maker to reconsider or (1) Extension of time by agreement of committed prejudicial error in the modify a final decision and order issued the parties. The parties may agree to proceedings or that the initial decision by the TSA decision maker on appeal extend the time for filing a reply brief should be affirmed, modified, or from an initial decision. A party must with the consent of the TSA decision reversed. The TSA decision maker may file a petition to reconsider or modify maker. If the TSA decision maker grants affirm, modify, or reverse the initial not later than 30 days after service of the an extension of time to file the reply decision, make any necessary findings, TSA decision maker’s final decision and brief, the Enforcement Docket Clerk will or may remand the case for any order on appeal and must serve a copy serve a letter confirming the extension proceedings that the TSA decision of the petition on each party. The TSA of time on each party. maker determines may be necessary. decision maker will not reconsider or (2) Written motion for extension. If the (1) The TSA decision maker may raise modify an initial decision and order parties do not agree to an extension of any issue, on the TSA decision maker’s issued by an ALJ that has not been time for filing a reply brief, a party own initiative, that is required for appealed by any party to the TSA desiring an extension of time may file a proper disposition of the proceedings. decision maker and filed with the written motion for an extension and will The TSA decision maker will give the Enforcement Docket Clerk. serve a copy of the motion on each parties a reasonable opportunity to (b) Form and number of copies. A party. The TSA decision maker may submit arguments on the new issues party must file in writing a petition to grant an extension if good cause for the before making a decision on appeal. If reconsider or modify. The party must extension is shown in the motion. an issue raised by the TSA decision file the original petition with the (f) Other briefs. The TSA decision maker requires the consideration of Enforcement Docket Clerk and must maker may allow any person to submit additional testimony or evidence, the serve a copy of the petition on each an amicus curiae brief in an appeal of TSA decision maker will remand the party. an initial decision. A party may not file case to the ALJ for further proceedings (c) Contents. A party must state more than one appeal brief or reply and an initial decision related to that briefly and specifically the alleged brief. A party may petition the TSA issue. If the TSA decision maker raises errors in the final decision and order on decision maker, in writing, for leave to an issue that is solely an issue of law, appeal, the relief sought by the party, file an additional brief and must serve or the issue was addressed at the and the grounds that support the a copy of the petition on each party. The hearing but was not raised by a party in petition to reconsider or modify. party may not file the additional brief the briefs on appeal, the TSA decision (1) If the petition is based, in whole with the petition. The TSA decision maker need not remand the case to the or in part, on allegations regarding the maker may grant leave to file an ALJ for further proceedings but has the consequences of the TSA decision additional brief if the party discretion to do so. maker’s decision, the party must demonstrates good cause for allowing (2) The TSA decision maker will issue describe and support those allegations. additional argument on the appeal. The the final decision and order of the (2) If the petition is based, in whole TSA decision maker will allow a Administrator on appeal in writing and or in part, on new material not reasonable time for the party to file the will serve a copy of the decision and previously raised in the proceedings, additional brief. order on each party. Unless a petition the party must set forth the new (g) Number of copies. A party must for review is filed pursuant to material and include affidavits of file the original appeal brief or the § 1503.659, a final decision and order of prospective witnesses and authenticated original reply brief, and two copies of the Administrator will be considered an documents that would be introduced in the brief, with the Enforcement Docket order assessing civil penalty if the TSA support of the new material. The party Clerk. decision maker finds that an alleged must explain, in detail, why the new

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material was not discovered through (2) $400,000, in the case of violation the Administrator accepts the offer to due diligence prior to the hearing. by any other person. compromise, the agency will send a (d) Repetitious and frivolous petitions. (c) Certain aviation related violations. letter to the person charged with the The TSA decision maker will not In the case of a violation of 49 U.S. C. violation stating that the payment is consider repetitious or frivolous chapter 449 (except sections 44902, accepted in full settlement of the civil petitions. The TSA decision maker may 44903(d), 44907(a)–(d)(1)(A), penalty action and that the matter is summarily dismiss repetitious or 44907(d)(1)(C)–(f), 44908, and 44909), or closed. frivolous petitions to reconsider or a regulation prescribed or order issued (e) Referral for prosecution and modify. under any of those provisions, the collection. If the parties cannot agree to (e) Reply petitions. Any other party amount in controversy exceeds the compromise the civil penalty action or may reply to a petition to reconsider or following: the offer to compromise is rejected and modify, not later than 10 days after (1) $50,000, in the case of violation by the payment submitted in compromise service of the petition on that party, by an individual (except an airman serving is returned, the Administrator may refer filing a reply with the Enforcement as an airman), any person not operating the civil penalty action to the United Docket Clerk. A party must serve a copy an aircraft for the transportation of States Attorney General, or the delegate of the reply on each party. passengers or property for of the Attorney General, to begin (f) Effect of filing petition. Unless compensation, or a small business proceedings in a United States district otherwise ordered by the TSA decision concern, as defined in section 3 of the court, pursuant to the authority in 49 maker, filing a petition pursuant to this Small Business Act (15 U.S.C. 632). U.S.C. 114 or 46305 to prosecute and section will stay the effective date of the (2) $400,000, in the case of violation collect the civil penalty. TSA decision maker’s final decision and by a person operating an aircraft for the (f) The Administrator delegates to the order on appeal. transportation of passengers or property (g) The TSA decision maker’s decision Chief Counsel and the Deputy Chief for compensation (except an individual Counsel for Enforcement the authority on petition. The TSA decision maker serving as an airman). has sole discretion to grant or deny a to carry out any function of the petition to reconsider or modify. The § 1503.703 Civil penalty letter; referral. Administrator described in this TSA decision maker will grant or deny (a) Issuance. In a civil penalty action § 1503.703. a petition to reconsider or modify in which the amount in controversy Subpart I—Formal Complaints within a reasonable time after receipt of exceeds the amounts set forth in the petition or receipt of the reply § 1503.701, the Administrator will send § 1503.801 Formal complaints. petition, if any. The TSA decision a civil penalty letter to the person (a) Any person may file a complaint maker may affirm, modify, or reverse charged with a violation of a TSA with the Administrator with respect to the final decision and order on appeal, requirement. any act or omission by any person in or may remand the case for any (b) Contents. The civil penalty letter contravention of 49 U.S.C., subtitle VII, proceedings that the TSA decision will contain a statement of the charges; part A, (except sections 44902, maker determines may be necessary. the applicable law, rule, regulation, or 44903(d), 44907(a)–(d)(1)(A), order; the amount of civil penalty that 44907(d)(1)(C)–(f), 44908, and 44909) § 1503.661 Judicial review of a final order. the Administrator will accept in full administered by the Administrator, or a For violations of a TSA requirement, settlement of the action or an offer to regulation prescribed or order issued a party may petition for review of a final compromise the civil penalty. order of the Administrator only to the (c) Response. Not later than 30 days under any of those provisions. This courts of appeals of the United States or after receipt of the civil penalty letter, section does not apply to complaints the United States Court of Appeals for the person charged with a violation may against the Administrator or employees the District of Columbia pursuant to 49 present to the agency attorney any of the TSA acting within the scope of U.S.C. 46110. A party seeking judicial material or information in answer to the their employment. review of a final order must file a charges, either orally or in writing, that (b) Complaints filed under this petition for review not later than 60 may explain, mitigate, or deny the section must— days after the final order has been violation or that may show extenuating (1) Be submitted in writing and served on the party. circumstances. The Administrator will identified as a complaint filed for the consider any material or information purpose of seeking an appropriate order Subpart H—Judicial Assessment of or other enforcement action; Civil Penalties submitted in accordance with this paragraph (c) to determine whether the (2) Be submitted to the U.S. § 1503.701 Applicability of this subpart. person is subject to a civil penalty or to Department of Homeland Security, (a) Jurisdictional minimums. This determine the amount for which the Transportation Security Administration, subpart applies to a civil penalty action Administrator will compromise the by following the instructions to under this part in which the total action. complete a ‘‘complaint’’ contact form by amount in controversy exceeds the (d) Compromise. If the person charged following the instructions on the TSA following amounts. with a violation offers to compromise Web site, currently accessible at http:// (b) In general. Except as provided in the civil penalty action for a specific www.tsa.gov/contact/index.shtm. paragraph (c) of this section, in the case amount, that person must send payment (3) Set forth the name and address, if of violation of title 49 U.S.C. or 46 U.S.C in a form and manner acceptable to TSA known, of each person who is the chapter 701, a regulation prescribed, or for that amount to the agency, made subject of the complaint and, with order issued under any of those payable to the Transportation Security respect to each person, the specific provisions, the amount in controversy Administration, or make payment provisions of the statute, regulation, or exceeds the following: electronically through http:// order that the person filing the (1) $50,000, in the case of violation by www.pay.gov. The Chief Counsel or the complaint believes were violated; an individual or small business concern, Deputy Chief Counsel for Civil (4) Contain a concise, but complete, as defined in section 3 of the Small Enforcement may accept the payment or statement of the facts relied upon to Business Act (15 U.S.C. 632). may refuse and return the payment. If substantiate each allegation;

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(5) State the name, address, and Administrator or designated official may record may do so only by submitting a telephone number of the person filing dismiss the complaint without a hearing Freedom of Information Act (FOIA) the complaint; and and, if so, will provide the reason for request under 5 U.S.C. 552, et seq. and (6) Be signed by the person filing the the dismissal, in writing, to the person 49 CFR part 7. Portions of the record complaint or a duly authorized who filed the complaint and the may be exempt from disclosure representative. person(s) named in the complaint. pursuant to FOIA. (c) TSA will consider complaints that (i) If the Administrator, or a (2) Docket files or documents not for do not meet the requirements of designated official, determines that public disclosure. (i) Only the following paragraph (b) of this section as reports reasonable grounds exist, an informal persons may review docket files or under § 1503.1. investigation may be initiated. Each particular documents that are not for (d) TSA will place complaints that person named in the complaint will be public disclosure: meet the requirements of paragraph (b) advised which official has been (A) Parties to the proceedings. of this section in the docket and will delegated the responsibility under mail a copy to each person named in the (B) Representatives designated in § 1503.203 for conducting the writing by a party. complaint. investigation. (e) TSA will refer any complaint (C) Persons who have a need to know against a member of the Armed Forces (j) If the investigation substantiates as determined by the Administrator. the allegations set forth in the of the United States acting in the (ii) Those persons with permission to complaint, a notice of proposed order performance of official duties to the review these documents or docket files may be issued or other enforcement Secretary of the Department concerned may view the materials at the Complaint action taken in accordance with this in accordance with the procedures set Docket, TSA Headquarters, Visitor part. forth in § 1503.407. Center, 601 South 12th Street, (f) The person named in the (k) The complaint and other pleadings Arlington, Virginia 20598–6002, Attn: complaint must file an answer within 20 and official TSA records relating to the Office of Chief Counsel. If this address days after service of a copy of the disposition of the complaint are changes, TSA will give notice by complaint. maintained in current docket form at: publishing a notice in the Federal (g) After the complaint has been U.S. Department of Homeland Security, Register. Persons with access to these answered or after the allotted time in Transportation Security Administration, records may have a copy of the records which to file an answer has expired, the Office of the Chief Counsel, TSA–2, after payment of reasonable costs. Administrator, or a designated official, Complaint Docket, 601 South 12th will determine if there are reasonable Street, Arlington, VA 20598–6002. If Issued in Arlington, Virginia, on July 10, 2009. grounds for investigating the complaint. this location changes, TSA will give (h) If the Administrator, or a notice of the change by publishing a Gale D. Rossides, designated official, determines that a notice in the Federal Register. Acting Administrator. complaint does not state facts that (1) Generally. Any person interested [FR Doc. E9–17133 Filed 7–20–09; 8:45 am] warrant an investigation or action, the in reviewing or obtaining a copy of a BILLING CODE 9110–05–P

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Part V

Department of Commerce National Oceanic and Atmospheric Administration

50 CFR Part 229 Taking of Marine Mammals Incidental to Commercial Fishing Operations; Harbor Porpoise Take Reduction Plan Regulations; Proposed Rule

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DEPARTMENT OF COMMERCE Copies of the draft HPTRP Northeast sink gillnet fishery and the Environmental Assessment (EA) and Mid-Atlantic gillnet fishery. As such, National Oceanic and Atmospheric Regulatory Impact Review/Initial NMFS was required by the MMPA to Administration Regulatory Flexibility Analysis (RIR/ take action by forming a take reduction IRFA) prepared for this proposed rule team to reduce the serious injury and 50 CFR Part 229 may be obtained from the HPTRP Web mortality of harbor porpoises in gillnet [Docket No. 080721862–8864–01] site (http://www.nero.noaa.gov/hptrp) gear. The MMPA directs take reduction or by writing to Amanda Johnson, teams to submit recommendations to RIN 0648–AW51 NMFS, Northeast Region, Protected NMFS to immediately reduce bycatch to Resources Division, 55 Great Republic below PBR within six months and to Taking of Marine Mammals Incidental Drive, Suite 04–400, Gloucester, MA achieve the long-term goal of reducing to Commercial Fishing Operations; 01930. bycatch to insignificant levels Harbor Porpoise Take Reduction Plan approaching a zero mortality and Regulations FOR FURTHER INFORMATION CONTACT: Amanda Johnson, NMFS, Northeast serious injury rate. As stated in Section AGENCY: National Marine Fisheries Region, 978–282–8463, 118(f)(6)(D) of the MMPA, take Service (NMFS), National Oceanic and [email protected]; or Melissa reduction teams are not subject to the Atmospheric Administration (NOAA), Andersen, NMFS, Office of Protected Federal Advisory Committee Act and Commerce. Resources, 301–713–2322, are open to the public. ACTION: Proposed rule; request for [email protected]. NMFS published a notice in the comments. Federal Register on February 12, 1996 SUPPLEMENTARY INFORMATION: (61 FR 5384), establishing the Gulf of SUMMARY: The National Marine Background Maine Harbor Porpoise Take Reduction Fisheries Service (NMFS) proposes to Team (GOMTRT) and announcing the amend the regulations implementing the The 1994 amendments to the Marine first GOMTRT meeting. The GOMTRT Harbor Porpoise Take Reduction Plan Mammal Protection Act (MMPA) included representatives of the (HPTRP) to address the increased established Section 118, which includes Northeast sink gillnet fishery, state incidental mortality and serious injury provisions for addressing commercial fishery management agencies, the of the Gulf of Maine/Bay of Fundy stock fishery interactions with marine Northeast Fishery Management Council of harbor porpoises (Phocoena mammal stocks. The HPTRP was (NEFMC), the Atlantic States Marine phocoena) in gillnet fisheries developed pursuant to Section 118(f) of Fisheries Commission (ASMFC), throughout the stock’s U.S. range. the MMPA to reduce the level of serious environmental organizations, academic injury and mortality of the Gulf of DATES: Comments on the proposed rule and scientific organizations, and NMFS. Maine/Bay of Fundy (GOM/BOF) stock must be received by 5 p.m. EST on The GOMTRT met five times between August 20, 2009. of harbor porpoise interacting with February and July 1996 before Category I and II fisheries (i.e., those ADDRESSES: Comments may be producing a consensus draft TRP that with frequent or occasional incidental was submitted to NMFS on August 8, submitted on this proposed rule, serious injury or mortality of marine identified by RIN 0648–AW51, by any 1996. Additionally, the GOMTRT mammals). Under Section 118, take one of the following methods: convened with the understanding that a reduction plans (TRPs) are required for (1) Electronic Submissions: Submit all separate take reduction team would be electronic public comments via the all strategic marine mammal stocks that formed to address harbor porpoise Federal eRulemaking Portal: http:// are incidentally seriously injured or bycatch in the Mid-Atlantic region. www.regulations.gov. killed in Category I or II commercial In February 1997, NMFS established (2) Mail: Mary Colligan, Assistant fisheries. A strategic stock is a stock: (1) the Mid-Atlantic Harbor Porpoise Take Regional Administrator for Protected For which the level of direct human- Reduction Team (MATRT) to address Resources, NMFS, Northeast Region, caused mortality exceeds the stock’s the incidental serious injury and Protected Resources Division, 55 Great potential biological removal (PBR) level, mortality of harbor porpoises in Mid- Republic Drive, Suite 04–400, (2) that is declining and is likely to be Atlantic gillnet fisheries from New York Gloucester, MA 01930, ATTN: HPTRP listed under the Endangered Species Act through North Carolina (62 FR 8428, Proposed Rule. of 1973 (ESA) in the foreseeable future, February 25, 1997). The MATRT (3) Facsimile (fax) to: 978–281–9394, or (3) that is listed as a threatened or included representatives of the Mid- ATTN: HPTRP Proposed Rule. endangered species under the ESA, or is Atlantic coastal gillnet fisheries, state Instructions: All comments received designated as depleted under the fishery management agencies, the Mid- are a part of the public record and will MMPA. PBR is the maximum number of Atlantic Fishery Management Council generally be posted to http:// animals that may be removed from a (MAFMC), the NEFMC, the ASMFC, www.regulations.gov without change. marine mammal stock annually, not environmental organizations, academic All personal identifying information (for including natural mortalities, while and scientific organizations, and NMFS. example, name, address, etc.) allowing that stock to reach or maintain The MATRT submitted a report to voluntarily submitted by the commenter its optimum sustainable population. NMFS on August 25, 1997, which may be publicly accessible. Do not Because the current average annual included both consensus and non- submit confidential business human-related mortality and serious consensus recommendations. information or otherwise sensitive or injury of harbor porpoise incidental to On September 11, 1998, NMFS protected information. Category I and II commercial gillnet published a proposed rule (63 FR NMFS will accept anonymous fisheries exceeds PBR, the GOM/BOF 48670) to implement the HPTRP, which comments (enter ‘‘N/A’’ in the required stock is considered strategic under the included both GOMTRT and MATRT fields if you wish to remain MMPA (Waring et al., 2007a). recommendations. A final rule anonymous). Attachments to electronic At the time the 1994 amendments to implementing the HPTRP to reduce comments will be accepted in Microsoft the MMPA were enacted, the GOM/BOF serious injury and mortality of harbor Word, Excel, WordPerfect, or Adobe harbor porpoise stock was considered porpoise in both the Gulf of Maine and PDF file formats only. strategic due to interactions with the Mid-Atlantic was published on

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December 2, 1998 (63 FR 66464). implementation of the HPTRP to a low prompted NMFS to initiate a targeted Shortly following, a correction notice of 310 animals per year (Waring et al., HPTRP outreach effort in the fall of was published to remedy incorrect 2004). This was below the stock’s PBR 2006. This effort included development management area coordinates that were level, which increased from 483 to 747 of laminated outreach cards published in the final rule (63 FR 71041, animals as reported in the 2001 Stock summarizing and graphically depicting December 23, 1998). On January 11, Assessment Report (Waring et al., 2001). the HPTRP management areas and 2001, NMFS published a final rule (66 Up to the 2006 Stock Assessment requirements for New England and the FR 2336) amending the HPTRP by Report, harbor porpoise serious injury Mid-Atlantic. In October 2006, the exempting Delaware Bay from HPTRP and mortality levels remained below outreach cards and a laminated pinger regulations landward of the 72 PBR, with a mean annual mortality of training authorization were mailed to COLREGS demarcation line. 515 animals per year between 2000 and over 300 fishermen who had previously The current HPTRP regulations are 2004 (Waring et al., 2007b). Although received pinger training. The pinger separated into two components—Gulf of the HPTRP regulations achieved the training authorization, when kept on Maine (GOM) and Mid-Atlantic. Among immediate goal of reducing harbor board the vessel, allows gillnet fishing other measures, the GOM component porpoise bycatch to levels below PBR, with pingers inside the HPTRP regulates sink gillnet gear or gillnet gear these regulations did not achieve the management areas and illustrates proper capable of catching multispecies long-term goal of reducing bycatch to pinger placement. through time and area regulations from insignificant levels approaching a zero A large component of the outreach Maine to Rhode Island during the mortality and serious injury rate effort involved commercial gillnet months of August through May. In four (referred to as the zero mortality rate industry outreach meetings. Between of the six GOM management areas, goal or ZMRG), as required under the October and November 2006, NMFS measures include seasonal gillnet MMPA. NMFS defined this conducted a series of eight voluntary closures during the months of the year insignificance threshold as ten percent outreach meetings for commercial when harbor porpoises are most of a stock’s PBR (50 CFR 229.2). Instead, gillnet fishermen throughout New concentrated in these areas. During the yearly observed takes and estimated England from Maine through Rhode several other times of the year, the mortality rates have shown an Island. The outreach meetings were HPTRP management areas require the increasing trend rather than a intended to provide commercial gillnet use of acoustic deterrent devices decreasing trend to bycatch levels fishermen with an update on the status (pingers) on sink gillnet gear. approaching the insignificance of the HPTRP, summarize the existing The Mid-Atlantic component of the threshold. HPTRP requirements for both New HPTRP regulates gillnet fishing in three The most recent estimates indicate England and the Mid-Atlantic, and management areas through time and that, when calculating the average provide pinger training where necessary area regulations from New York through estimated mortality for the period (New England only). The outreach North Carolina from January through between 2001 and 2005, bycatch meetings supplemented ongoing efforts April. In lieu of pinger requirements, exceeded PBR. The 2007 Stock by NMFS gear specialists to train local the Mid-Atlantic component of the Assessment Report indicates that the and Federal enforcement personnel. As HPTRP established large and small current annual estimated harbor such, where possible, NMFS and U.S. mesh gear specification requirements in porpoise incidental bycatch of 652 Coast Guard (USCG) enforcement agents which fishermen set gear that is less animals per year exceeds the current also attended the outreach meetings. likely to result in harbor porpoise PBR of 610 animals (Waring et al., In the fall of 2006, while the outreach entanglement. Large mesh gillnets 2007a). Of the 652 takes, 475 are meetings were ongoing, an increase in include gillnets with a mesh size of attributed to the Northeast sink gillnet compliance was already evident. seven to 18 inches (18–46 cm) and small fishery and 177 to the Mid-Atlantic Through May 2007, compliance in 2007 mesh gillnets include gillnets with a gillnet fishery. increased to nearly 60 percent. mesh size of greater than five to less After preliminary discussions, NMFS In addition to conducting outreach to than seven inches (>13–<18 cm). Gear originally believed the recent increase gillnet fishermen, NMFS participated in specification requirements for Mid- in harbor porpoise bycatch was the enforcement cruises with state Atlantic gillnets include measures result of a lack of compliance with the enforcement personnel in Massachusetts specifying a net limit per net string, HPTRP requirements. In New England, and Rhode Island. NMFS held a number twine size, net size, number of nets per compliance rates dropped precipitously of joint meetings with local law vessel, and tie-down provisions. The between 2002 and 2003 (as indicated by enforcement personnel, including eight three management areas of the Mid- the low percentage of observed hauls presentations made in New England Atlantic component of the HPTRP also using the correct number of pingers per between 2003 and 2008. Beginning in include seasonal gillnet closures to string when pingers were required), 2005, the US Coast Guard (USCG) coincide with high abundances of when fewer than 10 percent of the increased patrols in HPTRP harbor porpoises. observed hauls were deployed with the management areas in the Gulf of Maine. Along with implementation of the proper number of pingers (Palka et al., During March of 2006, the HPTRP, regulations implementing 2008). However, after reviewing more Massachusetts Environmental Police restrictions developed under various recent observer information depicting joined the USCG in their patrols. Fishery Management Plans (FMP) have the locations of gillnet hauls in which Increased patrols continued into 2007. closed areas to gillnetting and reduced harbor porpoise takes were recorded, In the Mid-Atlantic, NMFS gear or constrained effort in groundfish, NMFS concluded that the increase in specialists held two meetings (in 2003 monkfish, and dogfish gillnet fisheries. harbor porpoise takes was a two- and 2005) with the Atlantic States pronged problem. It not only involved Marine Fisheries Commission’s Law Need for Additional Action non-compliance with the current Enforcement Committee to review the After implementation of the HPTRP in HPTRP requirements, but also involved current requirements of the HPTRP. late 1998, the annual average harbor observed harbor porpoise takes Outreach and enforcement efforts porpoise bycatch decreased from a high occurring outside of existing HPTRP alone, however, did not address the of 1,500 animals per year prior to management areas. These data increased bycatch of harbor porpoises

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occurring outside of the existing HPTRP Review of Gulf of Maine Harbor V restrictions (Palka et al., 2008). These management areas, where harbor Porpoise Bycatch Information data indicate non-compliance with the porpoise bycatch reduction measures In preparation for the HPTRT current HPTRP requirements, are not in place. Consequently, NMFS December 2007 meeting, NMFS demonstrated through high bycatch determined that it was necessary to analyzed observer data from January 1, rates in the Massachusetts Bay and Mid- reconvene the Harbor Porpoise Take 1999, through May 31, 2007 from Coast Management Areas, as well as Reduction Team (HPTRT). different geographic areas to identify takes occurring outside existing patterns in the overall increase in harbor management areas, demonstrated HPTRT Reconvened porpoise bycatch in the New England through seasonally high bycatch rates in and Mid-Atlantic areas and to identify the proposed Stellwagen Bank The HPTRP utilizes two harbor Management Area. It also demonstrates porpoise take reduction teams (TRT), any trends in compliance with HPTRP requirements. NMFS also identified a takes occurring within the year-round the Gulf of Maine and Mid-Atlantic Western Gulf of Maine Closure Area TRTs, to address the incidental serious number of issues contributing to the observed increase in harbor porpoise under the Multispecies FMP. injury and mortality of harbor porpoises In the Gulf of Maine region from takes, primarily poor compliance with that result from incidental interactions January 1, 1999, through May 31, 2007, existing measures and increased bycatch with gillnet fisheries. Specifically, the the number of vessels using at least 90 outside of existing management areas. TRTs were charged with developing In the Gulf of Maine region, observed percent of the required number of pingers in times and areas when pingers conservation strategies to reduce the harbor porpoise takes from January 1, were required varied throughout the incidental serious injury and mortality 1999, through May 31, 2007, occurred time period examined. Approximately of harbor porpoises to levels below the during all months of the year (although 75 percent of observed vessels used the PBR level and approaching ZMRG. The the bycatch rates were very low during proper number of pingers in 1999, GOMTRT was charged with reducing the summer months) in gear targeting a which was the first year that the HPTRP the serious injury and mortality of variety of fish species, including requirements were in effect. This harbor porpoises that result from American cod, monkfish, pollock, number dropped to a low of 10 percent incidental interactions with gillnet yellowtail flounder, spiny dogfish, in 2003 and 2004, and rose again to fisheries from Maine to Rhode Island, unknown groundfish, and other about 60 percent between January and while the MATRT addressed the serious flounders (Palka et al., 2008). The May of 2007 (Palka et al., 2008), injury and mortality of harbor porpoises highest bycatch rates were observed in possibly as a result of the NMFS that result from incidental interactions the Western Gulf of Maine Closure Area targeted outreach efforts in the fall of with gillnet fisheries from New York (a Northeast Multispecies FMP year- 2006. through North Carolina. The TRTs were round closure) and in the HPTRP Mid- In the New England waters south of each last convened in 2000 to discuss Coast Management Area (from this point Cape Cod (which refers to waters within harbor porpoise/fisheries interactions forward, the HPTRP areas will be the Cape Cod South Management Area and potential mitigation measures on a termed ‘‘management areas’’ rather than and waters surrounding this regional level. ‘‘closure areas’’ unless the area exists management area), all observed takes solely as a closure). A relatively high from January 1, 1999, through May 31, However, to address the recent bycatch rate (0.040 harbor porpoise increase in harbor porpoise bycatch, 2007, occurred during the months of takes per metric tons [mtons] landed) December to May in gear targeting NMFS decided to combine the two was also observed in the currently monkfish or winter skate (Palka et al., TRTs and hold one full HPTRT meeting unregulated Stellwagen Bank 2008). The data show an increasing rate for three reasons. First, since it had been Management Area (proposed as a new of harbor porpoise bycatch in this area nearly eight years since either TRT had management area in this proposed rule). between 1999 and 2007, with rates in met, the updated stock abundance and Bycatch rates were highest during the 2007 (only January through May are bycatch information presented would be following five months, with the rates included) being the highest. The overall pertinent to both TRTs. Additionally, listed in order from highest to lowest: average bycatch rate in this region some members had served on both the November, February, December, April, during this time period was 0.089 GOMTRT and MATRT, and would and March (Palka et al., 2008). More harbor porpoise takes/mtons landed. receive redundant information if two specifically, the highest bycatch rates Bycatch rates were highest from separate meetings were held. Finally, were found in the Massachusetts Bay February through May, and lowest in holding one full HPTRT meeting could and Mid-Coast Management Areas December. The bycatch rate in the area more efficiently utilize limited during March, the Multispecies FMP south of the Cape Cod South resources. Western Gulf of Maine Closure Area and Management Area, which is not proposed Stellwagen Bank Management currently regulated under the HPTRP, The HPTRT was reconvened for a Area during February, and the was about 50 percent higher than the meeting in December 2007, and a Multispecies FMP Western Gulf of bycatch rate observed in the Cape Cod follow-up teleconference meeting was Maine Closure Area and the South Management Area itself, where held on January 31, 2008. The proposed Massachusetts Bay, Mid-Coast, and pingers and closures are seasonally modifications to the HPTRP, as well as proposed Stellwagen Bank Management required (Palka et al., 2008). Most of the the other alternatives considered within Areas during November and December harbor porpoise bycatch occurred in the the draft Environmental Assessment (Palka et al., 2008). Notably, the area south of the Cape Cod South (EA) that accompanies this proposed Massachusetts Bay Management Area Management Area (from the southern rule, were developed through these had a high bycatch rate in the month of boundary of this management area at consultations with the HPTRT to reduce November (0.052 harbor porpoise takes/ 40°40′ N. lat. south to 40°00′ N. lat., and mortality and serious injury of harbor mtons), despite its being closed to east to 70°00′ W. long.) in which pingers porpoises in the Northeast and Mid- gillnet fishing during October and are not required. Atlantic gillnet fisheries to levels below November through the Northeast Of the 1,665 hauls observed in the PBR and approaching ZMRG. Multispecies FMP Rolling Closure Area Cape Cod South Management Area

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during the period and season that In the Southern Mid-Atlantic Waters, Recommendations for the Southern New pingers are required from January 1, the eight harbor porpoise incidental England Region 1999, through May 31, 2007, 47 percent takes between January 1, 1999, and May For the southern New England area, were deployed with 90 percent or more 31, 2007, occurred in February, March, the HPTRT examined the harbor of the required number of pingers. Forty or April, the period in which the HPTRP porpoise bycatch information; locations percent did not have any pingers, and is in effect in these waters (Palka et al., of observed takes occurred primarily the remaining 13 percent had fewer than 2008). Half of the observed takes within and south of the Cape Cod South 90 percent of the required number of occurred in the shad fine mesh gillnet Management Area, as well as to the east pingers (Palka et al., 2008). fishery (mesh size ≤5 inches [13 cm]), of Cape Cod, Massachusetts. The Review of Mid-Atlantic Harbor Porpoise which has since been closed. The four HPTRT recommended the creation of a Bycatch Information other observed takes occurred in large new management area (termed the In the Waters off New Jersey mesh hauls targeting monkfish or Southern New England Management Management Area, the majority of the striped bass and all four were out of Area, which is proposed as a new observed takes from January 1, 1999, compliance with the HPTRP. Only 21 management area in this proposed rule), through May 31, 2007, occurred in the percent of all the large mesh hauls which is a large area located to the Hudson Canyon area in or near the observed in this area were fishing in south and east of Cape Cod. The HPTRT existing Mudhole Management Area, compliance with the current HPTRP recommended adding the area east of and all occurred in monkfish large mesh regulations and no takes were observed Cape Cod to this area to address harbor gillnet gear from January through April in these hauls. Hauls that were out of porpoise bycatch within the waters east (Palka et al., 2008). During this time, the compliance used twine sizes that were of Cape Cod. The HPTRT discussed the possibility of creating a new bycatch rate was 0.233 harbor porpoise too small, did not use tie-downs, and/ management area solely for the waters takes/mtons landed (Palka et al., 2008). or occurred during the February 15 east of Cape Cod. However, the bycatch A number of factors appeared to through March 15 large mesh closure analysis indicated that the harbor correlate well with increased bycatch period. No takes were observed in small rates. Net strings that were greater than porpoise bycatch occurred during the mesh nets, although 35 percent of these same season as the bycatch occurring in 4,000 ft (1,219 m) in total length nets were out of compliance, primarily entangled harbor porpoises three times the Cape Cod South Management Area with the HPTRP twine size requirement more often than net strings that were and the area to its south. Therefore, the (Palka et al., 2008). less than 4,000 ft (1,219 m) in total HPTRT recommended that the waters to length. All of the harbor porpoise takes HPTRT Recommendations the east of Cape Cod be incorporated occurred in nets with soak times that into the Southern New England were greater than 48 hours, even though During the December 2007 meeting, Management Area. In this area, the 37 percent of the observed hauls and 19 the HPTRT considered and discussed HPTRT recommended that pingers be percent of the landings were from nets harbor porpoise bycatch and HPTRP required from December through May, that had soaked for fewer than 48 hours. compliance information, as well as which coincides with the seasonality of Nets hauled after more than one week other information contained within the the Cape Cod South Management Area, had a bycatch rate five times higher than meeting materials provided. NMFS and would be absorbed by this larger hauls of nets that soaked for one week provided the HPTRT with information area. (Palka et al., 2008). about harbor porpoise takes in the Gulf During the December 2007 meeting, Exceeding the allowable net string of Maine, southern New England, and the HPTRT discussed possible ways of reducing harbor porpoise takes that are length—3,900 ft (1,189 m) in the Mid-Atlantic areas. The bycatch occurring within existing HPTRP Mudhole Management Area and 4,800 ft information was based on observed (1,463 m) in the Waters off New Jersey management areas. Rather than harbor porpoise injuries and mortalities Management Area—was the most recommending an immediate closure of common occurrence of non-compliance that occurred after the HPTRP was current HPTRP management areas due recorded from the Waters off New Jersey implemented (January 1, 1999, through to poor pinger compliance in the past, Management Area. This was determined May 31, 2007). Details on the locations the HPTRT recommended a by examining the gear characteristics of and timing of observed takes were management strategy that would gillnets with observed harbor porpoise presented to assist HPTRT discussions. establish ‘‘consequence’’ closure areas. takes. Most of the observed hauls of The follow-up January 2008 meeting Consequence closure areas are specified large mesh nets were out of compliance (via teleconference) focused on those areas of high harbor porpoise bycatch with at least one of the gear restrictions items that lacked consensus, required that would become seasonally closed if of the HPTRP, and a majority of harbor clarification, and would benefit from the observed average bycatch rates over porpoise takes occurred in gear that was reconfirming the recommended two consecutive management seasons out of compliance with the HPTRP approach. At both meetings, the HPTRT indicate that harbor porpoise exceed a (Palka et al., 2008). Observer effort for took a regional approach to discussing specified target bycatch rate. The large mesh gillnet hauls in the Waters the information presented, and based HPTRT’s rationale for recommending off New Jersey and Mudhole their recommendations on the best consequence closure areas is to decrease Management Areas was very low in available information that was harbor porpoise bycatch within HPTRP some years (especially from 2000 management areas by increasing presented. For certain topics, NMFS through 2003). However, it appears that compliance with the HPTRP through completed additional analyses after the compliance rates for the Waters off New targeted outreach and education efforts. Jersey Management Area show a pattern meetings, if needed, and presented the The consequence closure area concept similar to that seen in New England. information for consideration by the was first recommended by the HPTRT Compliance rates decreased rapidly HPTRT. The HPTRT’s for the region south of Cape Cod. Harbor after the first few years of the HPTRP recommendations, summarized below, porpoise takes in commercial gillnet implementation, and increased in 2007 are described in more detail in the draft gear have been observed seasonally after HPTRP outreach occurred. EA that accompanies this proposed rule. within, as well as south of, the Cape

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Cod South Management Area, and to the Therefore, if the target bycatch rate of submitted a proposal to NMFS for east of Cape Cod. The HPTRT 0.023 harbor porpoise takes/mtons for review by the HPTRT for a suggested recommended creating the Southern the Southern New England Management suite of conservation measures for the New England Management Area and Area is exceeded after two consecutive Gulf of Maine. The proposal included requiring pingers there, but also needed management seasons (December through the use of a consequence closure area to address consequences for non- May), both the Cape Cod South similar to the strategy employed for the compliance with the HPTRP pinger Expansion Consequence Closure Area Southern New England Management requirements. After some deliberation, and the Eastern Cape Cod Consequence Area. The proposed area encompasses the HPTRT recommended creating a Closure Area would be closed to gillnet the entire Stellwagen Bank Management consequence area that included the fishing each year from February through Area and portions of the Mid-Coast existing Cape Cod South Management April. (west of 70°15′ W. long.) and Area as well as its expansion to the Massachusetts Bay (north of 42°15′ N. HPTRT Recommendations for the Gulf south (termed the Cape Cod South lat.) Management Areas. This area, of Maine Region Expansion Consequence Closure Area, called the Coastal Gulf of Maine proposed management area in this For the Gulf of Maine region, the Consequence Closure Area, is bounded proposed rule). This area is located HPTRT provided NMFS with a suite of on the west by the coastlines of Maine, entirely within the proposed Southern consensus recommendations for New Hampshire, and Massachusetts, on New England Management Area. reducing harbor porpoise bycatch and the south by 42°15′ N. lat., and on the The HPTRT discussed the conditions increasing compliance with the HPTRP east by 70°15′ W. long. If triggered, the under which the Cape Cod South in this region. These recommendations timing of the consequence closure area Expansion Consequence Closure Area included: (1) Closing the currently was suggested as October and November would become closed. For the unregulated Stellwagen Bank annually, as these two months have a seasonality of the closure, the HPTRT Management Area during February and high bycatch rate in the Mid-Coast recommended that, once triggered, the require pingers in December and Management Area (0.066 and 0.121 area would be closed from February January; (2) expanding the pinger harbor porpoise takes/mtons, through April, as these three months requirements in the Massachusetts Bay respectively) (Palka et al., 2008). The had the highest bycatch rates of the Management Area to include the month proposal was discussed during the months between December and May. of November; (3) expanding the January 2008 meeting and supported by From January 1, 1999, through May 31, northeastern boundary of the Southern the HPTRT and was recommended to 2007, the bycatch rate in the region New England Management Area on the NMFS. south of Cape Cod in February was east side of Cape Cod and implementing The HPTRT recommended that the 0.160 harbor porpoise takes/mtons, targeted closures if allowable bycatch target bycatch rate for the Gulf of Maine 0.065 harbor porpoise takes/mtons in rates are exceeded; (4) codifying the region would be distinct from the March, and 0.145 harbor porpoise takes/ Multispecies FMP year-round Western bycatch rate that applies to the Southern mtons in April (Palka et al., 2008). The Gulf of Maine Closure Area under the New England Management Area to HPTRT also discussed the trigger HPTRP; (5) eliminating the Offshore ensure that the bycatch rate applied is mechanism by which the consequence Management Area; and (6) expanding consistent with the broad area’s past area would close and recommended efforts by states and others to foster and HPTRP compliance. It was not possible using the bycatch rate. Initially, a target certify fishermen in the use of pingers to calculate the target bycatch rate for bycatch rate of 0.03 harbor porpoise as a method of reducing harbor porpoise the three Gulf of Maine management takes/mtons was agreed upon, which bycatch. areas prior to the January 2008 meeting, represents a bycatch rate with 90 During the December 2007 meeting, and as such a target bycatch rate was not percent pinger compliance. After further the HPTRT discussed non-compliance determined at that time. Following the analysis after the meeting, NMFS within existing HPTRP management meeting, NMFS calculated the target determined that the bycatch rate areas in the Gulf of Maine, but did not bycatch rate from observed compliant reflecting 90 percent compliance with discuss a consequence closure area hauls, averaging the rates for the three the pinger requirements in place for the strategy in this region, although management areas, and calculated an entire Southern New England implementing an immediate closure in average rate of 0.031 harbor porpoise Management Area would be 0.023 the Mid-Coast Management Area was takes/mtons. Following the January harbor porpoise takes/mtons. discussed. In the Gulf of Maine region, 2008 meeting, those HPTRT members During the January 2008 meeting, the observed takes of harbor porpoises that responded to follow-up materials HPTRT recommended a second between January 1, 1999 and May 31, sent by NMFS recommended the use of consequence closure area east of Cape 2007, in the Mid-Coast Management this rate. Cod, termed the Eastern Cape Cod Area (0.052 harbor porpoise takes/ Consequence Closure Area. Establishing mtons), indicate a high bycatch rate and HPTRT Recommendations for the Mid- a consequence closure area here would poor compliance with the seasonal Atlantic Region provide an incentive for gillnet pinger requirements (September 15 For the Mid-Atlantic region, HPTRT fishermen fishing east of Cape Cod to through May 31), particularly during the discussions during the December 2007 comply with the new seasonal pinger fall months and in the western half of meeting centered on the high number of requirements established for the the area (Palka et al., 2008). harbor porpoise takes occurring within Southern New England Management Additionally, harbor porpoise takes in the Waters off New Jersey Management Area, as the observed annual bycatch gillnet gear have been observed Area. Many options were discussed for rates would be calculated for the entire seasonally in the northern portion of the addressing the increased harbor Southern New England Management Massachusetts Bay Management Area porpoise bycatch within this area, Area. The target bycatch rate and and throughout the proposed including expanding or shifting the closure time period, if triggered, for the Stellwagen Bank Management Area. existing Mudhole Management Area to Eastern Cape Cod Consequence Closure Prior to the January 2008 HPTRT encompass the locations of observed Area would be the same as the Cape Cod meeting, the states of Maine, New harbor porpoise takes. As a result of the South Expansion Closure Area. Hampshire, and Massachusetts meeting, the HPTRT recommended

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creating a new management area with identified as the preferred, NMFS is the Northeast Closure, Cashes Ledge an annual closure period for large and seeking comments on all of the Closure, and Offshore Management small mesh gillnet gear from February 1 alternatives. NMFS proposes to Areas. through March 15. implement the preferred alternative. Some occurrences of increased harbor Additionally, the HPTRT The Preferred Alternative described in porpoise bycatch are associated with recommended a change to the gear this proposed rule is intended to areas that are not currently regulated modification requirements such that the address the bycatch of the GOM/BOF under the HPTRP. However, bycatch is tie-down spacing for large mesh gillnet stock of harbor porpoises that is also documented within existing HPTRP gear would be increased from the currently above the PBR level in New management areas. In select HPTRP current 15 ft (4.6 m) to no more than 24 England and Mid-Atlantic waters. The management areas, the proposed action ft (7.3 m) apart along the floatline. This Preferred Alternative further pursues expands the areas and seasons during change would not affect the profile of the conservation goals established by which pingers are required. These areas gillnets in the water column and thus the MMPA to reduce harbor porpoise and seasons correspond to the locations not increase harbor porpoise bycatch. bycatch to below the PBR, approaching and times of recently observed harbor The HPTRT also recommended a insignificant levels. porpoise serious injuries and mortalities number of non-regulatory measures, The Preferred Alternative includes a from interactions with commercial mostly related to compliance suite of measures for both New England gillnet gear. This proposed action would monitoring and education/outreach and the Mid-Atlantic. Many of the also incorporate the concept of efforts, which is discussed in further proposed modifications described in ‘‘consequence’’ closure areas. detail later in the preamble. this rule are a result of consensus In southern New England, observed recommendations made by the HPTRT interactions between harbor porpoises Other HPTRT Consensus during their two recent meetings. For and gillnet gear have been occurring in Recommendations New England, NMFS proposes a currently unregulated area south of the In addition to the discussions expanding seasonal and temporal existing Cape Cod South Management focusing on potential new conservation requirements in current HPTRP Area, as well as within this management measures for New England and Mid- management areas, incorporating area. To address this, the proposed Atlantic gillnet fisheries, the HPTRT additional management areas, and action would establish the Southern also emphasized the necessity of a establishing ‘‘consequence’’ closure New England Management Area, in scientific research provision within the areas should a specified target bycatch which pingers would be required HPTRP. At the December 2007 meeting, rate be exceeded by the observed seasonally in a large area to the south NMFS provided a description of a average bycatch rate in certain and east of Cape Cod, Massachusetts suggested scientific research component management areas over the course of from December through May (Figure 1). that could be added to the HPTRP that two consecutive management seasons. This area would include all waters in would allow research within the HPTRP In the Mid-Atlantic, NMFS proposes which harbor porpoise bycatch was management areas provided researchers establishing an additional management observed (generally from the Cape Cod obtain a scientific research permit. The area and modifying the current tie-down South Management Area south to 40° HPTRT recommended including this requirement for large mesh gillnet gear. 00′ N. lat.), as well as sufficient provision in the HPTRP. Additionally, Additionally, NMFS is including a surrounding waters to prevent potential NMFS provided a description of provision within both the New England future shifts in fishing effort to nearby technical corrections, clarifications, and and Mid-Atlantic regulations to allow areas where takes would likely occur. other modifications to the HPTRT at its research to be conducted within the In the Gulf of Maine, harbor porpoise December 2007 meeting. By consensus, HPTRP management areas when the takes have been observed in the the HPTRT recommended the adoption research is authorized through a NMFS unregulated area between the HPTRP of these corrections, clarifications, and scientific research permit. Also, since Massachusetts Bay Management Area other modifications with little finalizing the HPTRP in December 1998 and the Northeast Multispecies FMP discussion. (63 FR 66464, December 2, 1998), NMFS Western Gulf of Maine Closure Area has identified a number of necessary (year-round closure) between December Preferred Alternative for Modifications technical corrections to the regulations. and May. As such, this area, termed the to the HPTRP Finally, in some sections of the current Stellwagen Bank Management Area, As a result of HPTRT discussions and HPTRP regulatory text there are would be created under the HPTRP as recommendations provided to NMFS ambiguities that need clarification. As a pinger management area from after the two HPTRT meetings such, this proposed rule addresses these November through May (Figure 1). The (December 2007 and January 2008), corrections, clarifications, and other HPTRT’s recommendation on the NMFS developed and analyzed five necessary modifications. management strategy for this area differs alternatives in the draft EA, including a from the proposed conservation ‘‘No Action’’ or status quo alternative, to New England Component measures for this area in this proposed modify the HPTRP. In the New England component of the rule. The proposal drafted by the states All five of the alternatives are HPTRP, NMFS proposes to include a of Maine, New Hampshire, and described and analyzed in the draft EA suite of conservation measures to Massachusetts suggested requiring prepared to accompany this proposed augment the existing HPTRP to reduce pingers from December through May in rule (NMFS, 2009). The array of the serious injury and mortality of this area, similar to the Massachusetts alternatives developed for the draft EA harbor porpoises to levels below PBR Bay Management Area, without include many of the concepts and (Figure 1). In three existing HPTRP including the March gillnet closure. The strategies discussed by the HPTRT. Out management areas, modifications are states believed that new pinger of the five alternatives considered, not warranted because the most recent requirements in a currently unregulated NMFS has identified one Preferred harbor porpoise bycatch data indicate area should sufficiently reduce harbor Alternative (Alternative 4, the proposed that existing measures are sufficient. porpoise takes, and that an immediate action) for amending the HPTRP. Management areas for which gillnet closure was not warranted at this Although one alternative has been modifications are not proposed include time. Although the proposal received

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strong support from the HPTRT, NMFS triggered if the observed average bycatch stringent gear restrictions and a closure is proposing in this action a the seasonal rate in the Southern New England period (Figure 3). This additional period for pinger requirements in the Management Area exceeded the target management area is located to the south Stellwagen Bank Management Area that bycatch rate of 0.023 harbor porpoise and east of the current Mudhole includes November for consistency with takes/mtons after two consecutive Management Area and would the proposed addition of November to management seasons (December through encompass many of the recently the pinger requirements in the May), and would be closed annually to observed harbor porpoise takes Massachusetts Bay Management Area. gillnet fishing from February through occurring in that region. The proposed NMFS proposes to amend the April. When the consequence closure management area would be named the seasonal requirements in the areas are not closed (December, January, Mudhole South Management Area, and Massachusetts Bay Management Area to and May), the seasonal pinger the current Mudhole Management Area include the month of November. requirements of the Southern New would be renamed the Mudhole North Currently, pingers are required in the England Management Area would Management Area. The more stringent Massachusetts Bay Management Area remain in effect. The Coastal Gulf of gear modification requirements already from December through May, with the Maine Consequence Closure Area would in effect in the Mudhole North exception of March, during which time be triggered if the observed average Management Area would also be in gillnet fishing is prohibited. The March bycatch rates in the Mid-Coast, effect in the Mudhole South closure is in place due to the high Stellwagen Bank, and Massachusetts Management Area from January 1 abundance of harbor porpoises in the Bay Management Areas (combined) through January 30 and from March 16 area during this time. Pingers are exceeded the target bycatch rate of 0.031 through March 31. Also, the large mesh required during the months before and harbor porpoise takes/mtons after two gillnet closure from April 1 through 20 after the closure to further reduce harbor consecutive management seasons would still apply. porpoise bycatch and to reduce the (September 15 through May 31 for the Additionally, this proposed rule likelihood of harbor porpoises Mid-Coast Management Area, and would increase the current tie-down habituating to the sound of pingers. November 1 through May 31 for the spacing for large mesh gillnet gear from One of the Massachusetts Bay Stellwagen Bank and Massachusetts Bay the required 15 ft (4.6 m) to no more Management Area’s latitudinal Management Areas), and would be than 24 ft (7.3 m) apart along the boundaries, located at 42°12′ N. lat., closed annually to gillnet fishing in floatline. This change would not affect leaves a small gap of unregulated waters October and November. When this area the profile of gillnets in the water between it and the southern boundary of is not closed, the seasonal requirements column and thus not increase harbor the Northeast Multispecies FMP of the three management areas would porpoise bycatch. Western Gulf of Maine Closure Area, remain in effect, including the March Scientific Research which is bounded on the south by gillnet closure in the Massachusetts Bay 42°15′ N. lat. This proposed rule would Management Area. Currently, the HPTRP regulations modify the Massachusetts Bay If any of the consequence closure make no exemption for scientific Management Area to move this areas are triggered, they would remain research on methods for reducing harbor boundary north to 42°15′ N. lat. to in effect until bycatch levels approach a porpoise bycatch in the HPTRP eliminate the small gap of unregulated zero mortality and serious injury rate or management areas when the seasonal waters (Figure 1). until the HPTRT and NMFS develop area requirements are in effect. Since In addition to focusing on harbor and implement new conservation the publication of the HPTRP in 1998 porpoise bycatch located in unregulated measures. If the consequence closure (63 FR 66464, December 2, 1998), waters, this proposed rule would areas are not triggered after the first two subsequent HPTRT meeting address harbor porpoise takes that are management seasons have elapsed, recommendations have urged NMFS to occurring within existing HPTRP NMFS will continue to monitor the promote the advancement of harbor management areas through the HPTRT- observed bycatch rates in these porpoise bycatch reduction research in recommended consequence closure area management areas and adopt a rolling New England and Mid-Atlantic areas. concept. Although pinger compliance trigger in which the most recent two To better facilitate scientific research on was high after implementation of the years of bycatch information would be harbor porpoise bycatch reduction, this HPTRP in 1998 (63 FR 66464, December averaged and compared on an annual proposed rule includes a scientific 2, 1998), since that time compliance basis to the specified bycatch rates for research component to the HPTRP with pinger requirements in New each management area. regulations. The proposed modification England has declined. With increased All impacts of the consequence includes a provision that would allow outreach and enforcement efforts closure areas have been evaluated in the scientific research on gear and/or beginning in the fall of 2006, observer draft EA. If it is necessary to establish fishing practice modifications for information indicated that compliance the consequence closure areas in the reducing harbor porpoise takes to be began to rise again, as evidenced future based on the most recent two conducted within the HPTRP through a calculation of the percentage years of observed harbor porpoise management areas during the times the of observed gillnet hauls that used the bycatch data, NMFS would establish the seasonal requirements are in effect so correct number of pingers per gillnet appropriate consequence closure areas long as the research is authorized string in management areas when via appropriate rulemaking in the through a scientific research permit pingers were required. Federal Register. granted under the MMPA. A scientific In New England, NMFS is proposing research permit would be obtained three consequence areas that are based Mid-Atlantic Component through the existing permit application on the recommendations provided by To address the high harbor porpoise process administered by NMFS. The the HPTRT: Two in southern New bycatch in the Mid-Atlantic region, this scientific research permit application England and one in the Gulf of Maine proposed rule would create an would be managed by NMFS in the (Figure 2). The Cape Cod South additional management area within the same manner that it currently handles Expansion and East of Cape Cod Waters off New Jersey Management permit applications, which includes a Consequence Closure Areas would be Area, which would include more regional review and public comment

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period after publication of an modifications to the Mid-Atlantic COLREGS demarcation lines between announcement in the Federal Register. regulations would clearly specify the these two inlets. net limit of 13 large mesh nets when Technical Corrections and Finally, NMFS proposes to remove fishing in the Waters off New Jersey Clarifications the net tagging requirement for large and Management Area. Also, in the final small mesh gillnet gear in the Mid- Since finalizing the HPTRP in rule implementing the HPTRP (63 FR Atlantic. A net tagging program was not December 1998 (63 FR 66464, December 66464, December 2, 1998), the definition implemented after the final HPTRP was 2, 1998), a number of technical errors in for the Waters off New Jersey published in late 1998 (63 FR 66464, the HPTRP regulations have been Management Area is inconsistent with December 2, 1998). identified. Furthermore, in some the graphic depiction of the area, and is sections of the regulations there are inconsistent with the ‘‘regulated waters’’ Monitoring HPTRP Effectiveness ambiguities that need clarification. This text. This proposed rule would remove NMFS identified a number of issues proposed rule addresses these necessary the current northern boundary of the contributing to the observed increase in corrections, clarifications, and other Waters off New Jersey Management harbor porpoise takes, primarily poor ° ′ modifications, which would also ensure Area, located at 40 40 N. lat. and would compliance with existing measures and consistent and correct terminology for extend the northern boundary to the increased bycatch outside of existing both the New England and Mid-Atlantic southern shoreline of Long Island, NY at management areas. To address these ° ′ ° ′ regulations. 40 50.1 N. lat. and 72 30 W. long. issues, NMFS has based this proposed In New England, HPTRP management For all HPTRP management areas action on recommendations provided by areas are termed ‘‘closure areas’’ though with coordinates that intersect the the HPTRT. To support the some areas are not completely closed to shoreline, this proposed rule includes implementation of this action, NMFS gillnet fishing at any point during the shoreline latitude/longitude coordinates year. This proposed rule would rename will continue to work with various to more clearly specify the boundaries partners (e.g., USCG, NOAA Office of the HPTRP closure areas in both New of HPTRP management areas. England and the Mid-Atlantic Law Enforcement, states, NMFS Additionally, this proposed rule would Northeast Fisheries Observer Program) ‘‘management areas,’’ except for areas clarify the geographical enclosure of the that exist only as a complete closure to monitor compliance and to enforce Offshore and Cashes Ledge Management the regulatory components of the (e.g., the Cashes Ledge Closure Area). Areas by repeating the first area Currently, the regulatory text for the HPTRP. NMFS recognizes that coordinate as the last coordinate. In the compliance with HPTRP requirements Mid-Coast Management Area Mudhole North Management Area, the is critical to maximizing the requirements does not include an current northwestern boundary does not effectiveness of the HPTRP. With this exemption for gillnets equipped with intersect with the shoreline of New considered, NMFS is planning to pingers as described in each of the other Jersey as stated in the current increase HPTRP monitoring to areas requiring pingers. This proposed management area description. This correspond with the expansion of pinger rule would add text to clarify that proposed rule would correct the requirements in New England. The gillnet fishing is allowed within this geographic boundary of the Mudhole expansion of management areas with management area as long as pingers are North Management Area by pinger requirements will require some used. Furthermore, this proposed rule incorporating a coordinate that fishing vessels that have not been would clarify the requirements for intersects with the New Jersey shoreline ‘‘pinger attachment’’ by including a at 40°28.1′ N. lat. and 74°00′ W. long. subject to the HPTRP pinger statement specifying that pingers must The current southern boundary of the requirements to purchase pingers in be placed every 300 ft (91.4 m) for Southern Mid-Atlantic Management order to continue fishing during times gillnets that exceed 300 ft (91.4 m) in Area is the North Carolina/South and in areas where pingers are required. length. Currently the pinger placement Carolina border. It is currently defined The total pinger cost for materials and requirement only specifies that pingers as 33°51′ N. lat., but it does not labor for vessels fishing in New England must be placed at each end of the net accurately reflect the actual border. This can range from $5,953 to $13,969 string and at the bridle of each net. proposed rule would modify the depending on the number of nets being The current eastern boundary of the coordinate to ensure a more accurate fished. More discussion on the impacts Offshore Management Area crosses the reflection of the North Carolina/South of the proposed action can be found in boundary of the U.S. Exclusive Carolina border based on 50 CFR 622.2 the Classification section. Economic Zone (EEZ). This proposed (Fisheries of the Caribbean, Gulf, and NMFS has the resources necessary to rule would create three additional South Atlantic—Definitions and monitor and ensure compliance with coordinates for the eastern edge of the Acronyms). The new border would be the HPTRP. These resources include: Offshore Management Area so the defined as the latitude line observer information for calculating boundary line follows along the corresponding with 33°51.1′ N. lat. bycatch rates, continued enforcement boundary of the EEZ but does not cross This proposed rule would amend the efforts, and education/outreach. To it. HPTRP exempted waters in Virginia assist in achieving this goal, NMFS has For the HPTRP regulations in the from Chincoteague to Ship Shoal Inlet purchased pinger detector devices to Mid-Atlantic, this proposed rule would to be consistent with the exempted monitor the presence of pingers on set clarify the number of nets per string waters for this area in the Atlantic Large gillnet gear during the times when allowed within the management areas Whale and the Bottlenose Dolphin Take pingers are required under the HPTRP. for both large and small mesh gillnet Reduction Plans. Currently, the NMFS has coordinated with the states of gear. Currently, only the allowable net exempted area is landward of a line Maine, Massachusetts, and Rhode Island length (300 ft or 91.4 m) and floatline extending south from Chincoteague to by distributing pinger detectors to state lengths are specified. The number of Ship Shoal Inlet, and this line crosses enforcement personnel, providing them nets per string is implied by dividing the three nautical mile state waters line. with the ability to monitor pinger the floatline length by the allowable net The exempted waters in Virginia from compliance under the HPTRP. NMFS length, but is not clearly defined in the Chincoteague to Ship Shoal Inlet would will continue to use this technology in regulations. For example, the proposed become the waters landward of the 72 conjunction with observer information

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to continually monitor the level of and implement an education and have been identified. A summary of the pinger compliance in New England. enforcement effort to increase analysis follows. In addition, during their recent compliance and to stress the need to All of the entities (fishing vessels) meetings, the HPTRT reached consensus reduce the soak times of gillnets, affected by this action are considered on a number of non-regulatory although this is not a required measure. small entities under the Small Business components that NMFS will pursue The Mid-Atlantic States may also Act size standards for small fishing outside of the rulemaking process. After explore the possibility of certifying businesses. The fisheries affected by this a final rule has been published, NMFS commercial gillnet fishermen and their proposed rule are the Northeast sink will collaborate with the New England gear to further increase compliance, gillnet and Mid-Atlantic gillnet states of Maine, New Hampshire, although the details of this were not fisheries. These fisheries are currently Massachusetts, and Rhode Island to considered during the HPTRT meetings. regulated under the HPTRP to reduce conduct annual workshops with gillnet Finally, in an effort to monitor the the serious injury and mortality of fishermen to further compliance with HPTRP, NMFS will keep the HPTRT harbor porpoises, and the proposed the HPTRP regulations and to provide members informed of annual action implements additional information on recent compliance and compliance information in the Mid- restrictions. The population of vessels harbor porpoise bycatch data. The Atlantic based on observed harbor affected by this proposed action HPTRT state representatives also agreed porpoise serious injuries and includes all commercial gillnet vessels to work within their state regulations to mortalities. fishing in federal waters from the U.S./ codify the HPTRP gear requirements in Canada border to North Carolina, as their individual state laws. This could Classification well as vessels fishing in state waters potentially provide a mechanism for The Office of Management and Budget that are managed under the HPTRP. future increased joint enforcement (OMB) has determined that this action The proposed action incorporates efforts between the states and NMFS, is significant for the purposes of additional measures to the existing and will provide an effective means for Executive Order 12866. HPTRP. For New England (Maine increasing compliance. If a member of the public requests a through Rhode Island), new measures Additionally, NMFS supports the scientific research permit for conducting include (1) Additional pinger states’ efforts to develop and implement research with fishing gear within a requirements, (2) the establishment of an education and enforcement effort to HPTRP management area, an existing new management areas, and (3) the increase HPTRP compliance. The information collection requirement, incorporation of consequence closure HPTRT and NMFS agreed that it is approved under OMB Control No. 0648– areas should the observed average critical to the success of these proposed 0084, would apply. The public reporting bycatch rate in certain management conservation measures for members of burden for completing an application areas exceed a specified target bycatch the commercial gillnet fishing industry for a scientific research permit is rate averaged over the course of two to thoroughly comprehend the estimated to average 32 hours per consecutive management seasons. For mechanisms of the consequence closure response, including the time for the Mid-Atlantic (New York through areas should compliance continue to reviewing instructions, searching North Carolina), new measures include remain low in the Gulf of Maine and existing data sources, gathering and (1) the establishment of a new southern New England. The states may maintaining the data needed, and management area, which includes a also explore the possibility of certifying completing and reviewing the collection seasonal closure, and (2) a modification commercial gillnet fishermen and their of information. Send comments to the large mesh gillnet tie-down gear to further increase compliance, regarding this burden estimate, or any spacing requirement (which is not although the details of this were not other aspect of this data collection, included in the analysis because it considered during the HPTRT meetings. including suggestions for reducing the would not incur additional costs to Finally, in an effort to monitor the burden, to NMFS (see ADDRESSES) and gillnet fishermen). HPTRP to determine if consequence by e-mail to Other regulatory components, closure area implementation is [email protected], or fax to discussed above, are included within warranted, NMFS will provide the (202) 395–7285. Notwithstanding any the new measures, such as the addition HPTRT members with annual other provision of the law, no person is of a provision that would allow research compliance and bycatch information in required to respond to, nor shall any within HPTRP management areas and New England based on observed harbor person be subject to a penalty for failure incorporate technical clarifications and porpoise serious injuries and to comply with, a collection of corrections where needed. None of these mortalities. information subject to the requirements provisions contribute any additional The HPTRT also reached consensus of the PRA, unless that collection of costs to gillnet vessels regulated by the on a number of non-regulatory information displays a currently valid HPTRP and thus are not included in the components targeting the Mid-Atlantic, OMB Control Number. analysis. which include collaborating with Mid- NMFS has prepared an initial For the analysis of impacts, the data Atlantic states to conduct annual regulatory flexibility analysis (IRFA) used are from calendar year 2006 to workshops with gillnet fishermen to that describes the economic impact this correspond to the last full year of data attempt to increase compliance with the proposed rule, if adopted, would have used in the harbor porpoise bycatch HPTRP regulations and to provide on small entities. A description of the analysis described previously in the information on recent compliance and action, why it is being considered, and preamble. In 2006 and under the current harbor porpoise bycatch data. its legal basis are contained in the HPTRP, there were 975 gillnet vessels Additionally, an analysis of observed preamble of this proposed rule. This that landed an estimated 23,276 metric harbor porpoise interactions with gillnet proposed rule does not include any tons, generating approximately gear in the Mid-Atlantic indicated that reporting or recordkeeping $40,643,000 in revenue. NMFS uses a increased soak times may lead to an requirements, or compliance Closed Area Model to distribute an increase in harbor porpoise bycatch requirements other than those described individual vessel’s fishing effort over (Palka et al., 2008). NMFS supports in the preamble. No duplicative, time and space, optimizing its Mid-Atlantic States’ efforts to develop overlapping, or conflicting Federal rules distribution to maximize individual

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profits. The model is able to account for (1) The Pre-closure scenario would South Management Areas. Percent possible changes in fishing effort based have the smallest impact on the gillnet reductions in revenues for these port on regulation changes while predicting industry out of the four scenarios that groups would vary similarly to the behavior that would maximize profits. are possible under this proposed action. percent reductions seen in landings, These possible changes in effort are The model assumes that for Gulf of with the highest being an 11 percent determined by a vessel’s fishing history Maine ports (Maine to South of Boston), reduction for the New Hampshire port as well as the history of similar vessels 82 to 98 percent of these vessels already group, a five percent reduction for the that land in the same port. The model own pingers. Therefore, the expanded North of Boston port group, and a one predicts the most profitable fishing requirements for the use of pingers are percent reduction in each of four port choice based on the measures of the not expected to result in significant groups, including Maine, South of Cape proposed actions outlined in this impacts. The majority of the affected Cod, New York, and New Jersey. proposed rule. vessels under this scenario at the Similar to the Pre-closure scenario, In the event of an area closure to regional, or port, level originate from revenues for affected vessels under the gillnet fishing, a vessel could choose not port groups East of Cape Cod to New GOM-closure scenario vary by vessel to fish at all or could fish in another Jersey due to the creation of the size class. For small vessels, revenues location. Similarly, where management Southern New England Management are reduced by less than one percent to areas that require pingers are Area with new pinger requirements and 28 percent (approximately $160 to established, vessels that had previously the Mudhole South Management Area, $26,400) and by less than one percent to fished in that area could either choose which incorporates a seasonal closure. four percent (approximately $160 to to purchase pingers and continue In addition, the impact of the Pre- $7,800) for large vessels. At the industry fishing in that area, or to not purchase closure scenario in terms of landings is level, approximately 17.5 percent of the pingers and move their fishing activities small. For the East of Cape Cod through gillnet fleet could be affected by the to areas that do not require pingers. New Jersey port groups, percent change GOM-closure scenario, which equates to Note that for the purposes of this in landings vary between a one percent 171 vessels, most being from Gulf of analysis, vessels that had previously increase (East of Cape Cod) and a one Maine port groups. Under this scenario, fished in areas that require pingers percent reduction. Percent reductions in a decrease of approximately two percent under the current HPTRP are assumed revenues for these port groups range (466 metric tons) would be expected, to already possess pingers and thus from a one to three percent reduction, amounting to a decline of approximately would not incur additional costs due to with the highest (three percent) in the $815,000 in revenues. (3) The SNE-closure scenario would expanded pinger requirements in any of New York port group. implement two consequence closure the alternatives. Revenues for affected vessels under the Pre-closure scenario vary for small areas resulting from non-compliance in Pinger costs are calculated as the cost vessels (less than 40 ft [12.2 m]), versus the Southern New England Management per pinger unit, and include the cost of large vessels (40 ft [12.2 m] and greater). Area: The Cape Cod South Expansion the pinger, batteries, and installation. Revenues for small vessels would be and Eastern Cape Cod Consequence The cost is based on the number of nets reduced between one and six percent Closure Areas. As such, the South of per vessel and therefore is calculated (approximately $800 to $4,700), where Cape Cod port group would be most based on the maximum allowable revenues for large vessels would be heavily affected, as 64 percent of number of nets. The total pinger cost for reduced between one and seven percent landings in this port group are caught in materials and labor for vessels fishing in (approximately $2,600 to $7,200). At the the Cape Cod South Expansion New England or the Mid-Atlantic can industry (i.e., small entity) level, the Consequence Closure Area. Reductions range from $5,953 to $13,969. Naturally, Pre-closure scenario can be expected to in landings for the South of Cape Cod vessels with fewer nets have lower affect 10 percent of gillnet vessels in the port group could be as high as six pinger costs. fleet, which is 101 vessels. This equates percent. In addition, closure of the The proposed action incorporates the to less than one percent reduction in Eastern Cape Cod Consequence Closure potential for future closures. As such, landings and revenues. Less than a one Area would affect vessels originating the analysis examines four scenarios for percent (6 metric tons) decline in from the East of Cape Cod port group, the proposed action, based on the industry landings is expected, which with an approximately two percent potential for implementation of equates to an approximate $183,000 reduction in landings. Other affected consequence closure areas. The first decrease in revenues. port groups from New Hampshire scenario examines impacts of additional (2) The GOM-closure scenario would through New Jersey could expect up to HPTRP conservation measures (e.g., implement the Coastal Gulf of Maine an approximately three percent establishment of new pinger and closure Consequence Closure Area as a result of reduction in landings. Percent areas) prior to the trigger of any non-compliance with the HPTRP in reductions in revenues for these port consequence closure area (Pre-closure). three Gulf of Maine management areas. groups vary similarly to the percent The second scenario examines the As such, this scenario would most reductions seen in landings, with the impacts if only the Coastal Gulf of heavily affect Gulf of Maine port groups, highest reduction of ten percent in the Maine Consequence Closure Area is which include Maine to South of South of Cape Cod port group. implemented (GOM-closure), and the Boston. At the regional level, the impact The range of revenue reductions for third scenario analyzes the impacts if on port group landings varies by port affected vessels varies for small versus only the Cape Cod South Expansion and group. The New Hampshire port group, large vessels, with expected reductions Eastern Cape Cod Consequence Closure demonstrating a 14 percent reduction in of one to ten percent (approximately Areas are implemented (SNE-closure). landings, and North of Boston port $1,300 to $8,100) for small vessels and The fourth scenario investigates the group, with a six percent decrease, reductions of one to 25 percent impacts should all three consequence would feel most of the impacts. Slight (approximately $1,500 to $15,300) for closure areas be implemented landings reductions would be apparent large vessels. At the industry level, simultaneously, which would occur if from South of Cape Cod through New approximately 21.1 percent of gillnet both target bycatch rates are exceeded Jersey due to the creation of the vessels could be affected, which equates (GOM/SNE-closures). Southern New England and Mudhole to 206 vessels, with the largest group

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being from the South of Cape Cod port scenarios that involve the triggering of is required to take additional action to group. Under this scenario, a decrease consequence closure areas at any point achieve its mandates under the MMPA. in landings of two percent (378 metric during the ten-year time period after the Alternative 2, immediate closures, tons) could be expected, totaling third year of implementation of the final would immediately implement the approximately $1.2 million decline in rule, the earlier the closure area is Coastal Gulf of Maine, Cape Cod South revenues. implemented, the higher the total PVC Expansion, and Eastern Cape Cod (4) The GOM/SNE-closure scenario would be over the ten-year period. This Closure Areas (which are the same areas would result from non-compliance in occurs because a closure costs more as the consequence closure areas both the Gulf of Maine and Southern than pinger requirements, so delaying described for the proposed action), in New England areas, and would trigger the onset of a closure lowers the total addition to the Mudhole South the closure of all three consequence cost. Management Area closure. Alternative closure areas. Port groups most heavily Of the four proposed action scenarios 3, broad-scale seasonal pinger affected by this scenario include Gulf of examined, the Pre-closure scenario had requirements, would immediately Maine ports from Maine to South of the lowest PVC across the ten-year time implement pinger requirements in New Boston (resulting from implementation period: $1,457,000 for each year, which England and the Mid-Atlantic of the Coastal Gulf of Maine means that no consequence closure throughout much of the range of harbor Consequence Closure Area) and the areas are triggered during that time porpoises. Alternative 4 (Preferred) is South of Cape Cod and East of Cape Cod period. For the GOM-closure scenario, if the proposed action described in this port groups (resulting from the Coastal Gulf of Maine Consequence proposed rule. Alternative 5 would implementation of the Cape Cod South Closure Area were triggered in year implement the components of Expansion and Eastern Cape Cod three, the PVC would be $5,810,000. Alternative 4 (Preferred) with additional Consequence Closure Areas). The New However, if it were triggered in year ten, modifications, including removal of the Hampshire and South of Cape Cod port the PVC would be $1,337,000. Similarly, Offshore Management Area, groups would experience the highest for the SNE-closure scenario, a incorporation of the Multispecies FMP reductions in revenues, with 11 percent consequence closure area implemented Western Gulf of Maine Closure Area (approximately $293,000) and 10 in year three would cost $8,558,000, (year-round) under the HPTRP, and percent (approximately $734,000) whereas it would cost $1,646,000 if elimination of the February 15 to March declines, respectively. Similar percent implemented in year ten. Finally, for the 15 large mesh gillnet closure in the losses in landings for these port groups GOM/SNE-closure scenario, a Southern Mid-Atlantic Management would also be expected. consequence area implemented in year Area. Similar to Alternative 4, two As with the scenarios described three would have a PVC value of scenarios were examined for Alternative previously, the range of revenue $13,585,000, whereas the PVC would be 5: the first being prior to the trigger of reductions for affected vessels varies for $2,211,000 if implemented in year ten. any consequence closure areas small versus large vessels, with Therefore, of the four scenarios (Alternative 5 Pre-closure scenario) and expected reductions of two to 28 presented, the Pre-closure scenario is the second being after the trigger of all percent (approximately $2,600 to the most cost-effective overall. This three consequence closure areas $26,400) for small vessels and demonstrates the necessity for (Alternative 5 GOM/SNE closure reductions of one to 25 percent immediate industry compliance with scenario). (approximately $1,500 to $15,300) for the HPTRP requirements in order to To estimate the cost-effectiveness of large vessels. At the industry level, avoid the trigger of consequence closure each alternative, the model requires an approximately 29.7 percent of gillnet areas and thus higher costs. If any or all estimate of the reduction in harbor vessels could be affected, which equates of the consequence closure areas are porpoise bycatch. To examine the to 290 vessels. Under this scenario, a triggered, it is more cost-effective if they biological effects of each of the five decrease in landings of four percent are triggered later in the ten-year time alternatives on harbor porpoises, the (838 metric tons) can be expected. An period rather than sooner. bycatch analyses discussed in the draft approximately $2 million decrease in Besides the proposed action, NMFS EA provide a minimum and maximum revenues per year could also be examines four additional alternatives in range of outcomes based on fishing expected. the draft EA. All alternatives, which effort and predicted bycatch rates. For Clearly, the Pre-closure scenario has have related components, are analyzed the economic analyses, a harbor the least amount of annual impacts of and compared to Alternative 1 (No porpoise bycatch estimate is calculated the four proposed action scenarios Action). They are compared here for for each alternative by applying the considered because no consequence their ability to reduce impacts on small landings from the Closed Area Model to closure areas would be triggered. A cost- entities, which is related to their cost- the time-area specific bycatch rate used effectiveness analysis using a ten-year effectiveness, as well as their ability to to predict the maximum harbor porpoise time horizon was conducted to examine reduce harbor porpoise bycatch. bycatch. An ‘‘economic bycatch’’ the temporal differences in the impacts Alternative 1, no action, maintains the estimate is determined by calculating of the scenarios considered. Costs in status quo requirements under the the percent reduction in bycatch by future years were discounted at a rate of HPTRP. As such, no additional costs are region and season between Alternative 1 three percent because the future dollar incurred by the gillnet fleet, as vessels and each of the four scenarios of the does not have the same value as today’s that had previously fished in pinger proposed action and applying the dollar. The discounted annual costs management areas are assumed to percent reduction to the bycatch were summed to provide an estimate of already own pingers. Therefore, this estimates (discussed in the draft EA). the Present Value of Cost (PVC) over the alternative is the least costly of the five. The economic bycatch estimates are ten-year time period. The total PVC does While this alternative would result in sensitive to the assumptions used in the not change over the ten-year time period the least impacts on small entities, for Closed Area Model as well as the model for scenarios that are fully implemented the reasons identified in the preamble, used to estimate bycatch rates. To in the first year, such as the Pre-closure this alternative was rejected because the summarize, the economic bycatch is scenario if consequence closure areas status quo HPTRP is no longer achieving another method of calculating a are never triggered. For the other three the goals of the MMPA. As such, NMFS predicted harbor porpoise bycatch

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estimate. In 2006, NMFS estimates that Alternatives 4 and 5 when consequence Atlantic and Gulf of Mexico Marine 1,063 harbor porpoises were closure areas are never triggered or are Mammal Stock Assessments—2006. incidentally taken in gillnet gear. triggered very late in the ten-year time NOAA Tech Memo NMFS–NE–201; 378 When calculating the economic period. Alternative 2 would incur the p. bycatch, the alternatives would achieve Waring, G.T., Pace, R.M., Quintal, J.M., highest cost of all the alternatives over Fairfield, C.P., and Maze-Foley, K., a harbor porpoise bycatch reduction the ten-year time horizon examined and editors. 2004. U.S. Atlantic and Gulf of ranging from 54 to 64 percent, or a would provide the least amount of Mexico Marine Mammal Stock reduction of 573 to 673 animals (i.e., harbor porpoise bycatch reduction of Assessments—2003. NOAA Technical reducing bycatch from 1,063 animals the five alternatives. Memorandum NMFS–NE–182; 287 p. taken in 2006, to a range of between 390 The alternatives can be compared on Waring, G.T., Quintal, J.M., Swartz, S.L., and 490 animals per year), which a cost-effectiveness basis where the editors. 2001. U.S. Atlantic and Gulf of achieves an estimate that is below the costs include lost revenues and pinger Mexico Marine Mammal Stock current PBR of 610 animals. Besides costs for those that did not have pingers, Assessments—2001. NOAA Technical Alternative 1, the ‘‘no action’’ Memorandum NMFS–NE–168; 307 p. and the unit of comparison is the cost Waring, G.T., Quintal, J.M., Swartz, S.L., alternative, which would not result in a per unit of bycatch reduction (dollars editors. 2000. U.S. Atlantic and Gulf of reduction in harbor porpoise bycatch, per animal) where the reductions in Mexico Marine Mammal Stock Alternative 2 has the smallest reduction harbor porpoise bycatch differ between Assessments—2000. NOAA Technical in harbor porpoise bycatch, at 54 the alternatives. This is the most Memorandum NMFS–NE–162; 298 p. percent or 573 fewer animals from the conservative measure of costs when a List of Subjects in 50 CFR Part 229 status quo 2006 estimate of 1,063 full cost-benefits analysis cannot be animals. A reduction of 573 animals completed. If the five alternatives were Administrative practice and would bring the total bycatch to 490 ranked from those with the least impact procedure, Confidential business animals after implementation of this on small entities to those with the most information, Fisheries, Marine alternative. Under Alternative 4 impact based on the costs incurred per mammals, Reporting and recordkeeping (proposed action), the GOM-closure animal, the order would be: Alternative requirements. scenario and the GOM/SNE-closure 5 Pre-closure scenario ($45 per animal), Dated: July 14, 2009. scenario demonstrate similar reductions Alternative 4 Pre-closure scenario ($124 Samuel D. Rauch III, of 63 percent, with the GOM/SNE- per animal), Alternative 3 ($162 per closure scenario showing a slightly Deputy Assistant Administrator for animal), Alternative 4 GOM-closure Regulatory Programs, National Marine higher decline in the number of animals scenario ($882 per animal), Alternative Fisheries Service. taken at 671, bringing the total bycatch 4 SNE-closure scenario ($1,341 per for this alternative scenario to 392 For the reasons stated in the animal), Alternative 5 GOM/SNE- preamble, 50 CFR part 229 is proposed animals. closure scenario ($1,973 per animal), If the five alternatives were ranked to be amended as follows to implement Alternative 4 GOM/SNE-closure the Preferred Alternative: from smallest percent decline in bycatch scenario ($2,054 per animal), and (least favorable for harbor porpoises) to Alternative 2 ($2,985 per animal). The PART 229—AUTHORIZATION FOR the highest percent decline (most discounted costs summed over the ten- COMMERCIAL FISHERIES UNDER THE favorable for harbor porpoises) based on year time horizon (known as the present MARINE MAMMAL PROTECTION ACT their economic bycatch estimates, the value of costs) would not change for OF 1972 order would be Alternative 2 (54 Alternatives 2, 3, 4 Pre-closure, and 5 percent reduction), Alternative 5 Pre- Pre-closure. These costs, however, 1. The authority citation for 50 CFR closure scenario (59 percent reduction), would decrease over the ten-year time part 229 continues to read as follows: Alternative 4 Pre-closure scenario (59 horizon should consequence closure Authority: 16 U.S.C. 1361 et seq. percent reduction), Alternative 4 SNE- areas be implemented in the future closure scenario (60 percent reduction), § 229.2 [Amended] under the closure scenarios for Alternative 3 (60 percent reduction), Alternatives 4 (Preferred) and 5. 2. In § 229.2, the definitions of Alternative 5 GOM/SNE-closure ‘‘Mudhole’’, ‘‘Southern Mid-Atlantic scenario (63 percent reduction), References waters’’, and ‘‘Waters off New Jersey’’ Alternative 4 GOM-closure scenario (63 NMFS. 2009. Draft Environmental are removed. percent reduction), and Alternative 4 Assessment on the Proposed Rule to 3. In § 229.3, paragraphs (q) and (r) are GOM/SNE-closure scenario (63 percent Amend the Harbor Porpoise Take removed, and paragraphs (m), (n), (o), reduction). Reduction Plan. Northeast Region. and (p) are revised to read as follows: In conclusion, at the regional level, Available for download from the HPTRP the impacts on the Maine, South of Web site: http://www.nero.noaa.gov/ § 229.3 Prohibitions. Boston, New Jersey, Virginia, and North hptrp. * * * * * Carolina ports are small (less than or Palka, D.L., C.D. Orphanides, and M.L. (m) It is prohibited to fish with, set, equal to plus or minus 3 percent change Warden. 2008. Summary of harbor haul back, possess on board a vessel porpoise bycatch, covariates and levels from Alternative 1) for all the of compliance in the Northeast and Mid- unless stowed in accordance with alternatives. From an industry Atlantic gillnet fisheries after the § 229.2, or fail to remove sink gillnet perspective, Alternatives 2, 4 (GOM/ implementation of the Take Reduction gear or gillnet gear capable of catching SNE-closure scenario), and 5 (GOM/ Plan: January 1, 1999 through May 31, multispecies from the areas and for the SNE-closure scenario) have the highest 2007. In press. times specified in § 229.33(a), unless the annual impacts on revenues whereas Waring, G.T., Josephson, E., Fairfield-Walsh, vessel owner or operator complies with Alternatives 3, 4 Pre-closure, and 5 Pre- C.P., Maze-Foley, K., editors. 2007a. U.S. closure or pinger provisions specified in closure have the lowest annual impacts Atlantic and Gulf of Mexico Marine § 229.33(a)(1) through (8). This Mammal Stock Assessments—2007. on revenues. The most cost-effective NOAA Tech Memo NMFS NE 205; 415 prohibition does not apply to the use of alternatives from a national perspective p. a single pelagic gillnet (as described and are Alternative 3 due to the initial cost Waring, G.T., E. Josephson, C.P. Fairfield, used as set forth in § 648.81(f)(2)(ii) of of purchasing pingers, as well as and K. Maze-Foley (ed). 2007b. U.S. this title).

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(n) It is prohibited to fish with, set, with, set, haul back, possess on board a a single pelagic gillnet (as described in haul back, possess on board a vessel vessel unless stowed in accordance with § 648.81(f)(2)(ii) of this title). unless stowed in accordance with § 229.2, or fail to remove sink gillnet (ii) Area boundaries. The § 229.2, or fail to remove gillnet gear gear or gillnet gear capable of catching Massachusetts Bay Management Area is from the areas and for the times as multispecies from the Mid-Coast bounded by straight lines connecting specified in § 229.34(b)(1)(i), (b)(2)(i), Management Area, unless the gillnet the following points in the order stated: (b)(3)(i), or (b)(4)(i). gear is equipped with pingers in (o) It is prohibited to fish with, set, accordance with paragraphs (b) and (c) MASSACHUSETTS BAY MANAGEMENT haul back, possess on board a vessel of this section. This prohibition does AREA unless stowed in accordance with not apply to a single pelagic gillnet (as § 229.2, or fail to remove any large mesh described and used as set forth in Point N. lat. W. long. or small mesh gillnet gear from the areas § 648.81(f)(2)(ii) of this title). and for the times specified in (ii) Area boundaries. The Mid-Coast MB1 ...... 42°30.0′ 70°50.1′ (MA § 229.34(b) unless the gear complies Management Area is the area bounded shoreline). with the specified gear restrictions set by straight lines connecting the MB2 ...... 42°30.0′ 70°30.0′ MB3 ...... 42°15.0′ 70°30.0′ forth in the provisions of paragraphs following points in the order stated: ° ′ ° ′ (b)(1)(ii) or (iii), (b)(2)(ii) or (iii), MB4 ...... 42 15.0 70 00.0 MB5 ...... 42°00.0′ 70°00.0′ (b)(3)(ii) or (iii), or (b)(4)(ii) or (iii). MID-COAST MANAGEMENT AREA MB6 ...... 42°00.0′ 70°01.2′ (MA (p) It is prohibited to fish with, set, shoreline). haul back, possess on board a vessel Point N. lat. W. long. MB7 ...... 42°00.0′ 70°04.8′ (MA unless stowed in accordance with shoreline). MC1 ...... 42°30.0′ 70°50.1′ (MA § 229.2, or fail to remove sink gillnet MB8 ...... 42°00.0′ 70°42.2′ (MA shoreline). shoreline). gear or gillnet gear capable of catching MC2 ...... 42°30.0′ 70°15.0′ multispecies in areas where pingers are MC3 ...... 42°40.0′ 70°15.0′ required, as specified under § 229.33 MC4 ...... 42°40.0′ 70°00.0′ (iii) Closing procedures. According to (a)(2) through (5) and (a)(7), unless the MC5 ...... 43°00.0′ 70°00.0′ paragraphs (d)(1), (3), and (4) of this operator on board the vessel during MC6 ...... 43°00.0′ 69°30.0′ section, NMFS shall close a portion of fishing operations possesses and retains MC7 ...... 43°30.0′ 69°30.0′ the Massachusetts Bay Management MC8 ...... 43°30.0′ 69°00.0′ ° ′ on board the vessel a valid pinger ° ′ ° ′ Area (north of 42 15 N. lat.) from training authorization issued by NMFS MC9 ...... 44 17.8 69 00.0 (ME shoreline). October through November annually if, as specified under § 229.33(c). after two consecutive management * * * * * (iii) Closing procedures. According to seasons, the target harbor porpoise 4. Section 229.33 is revised to read as paragraphs (d)(1), (d)(3), and (d)(4) of bycatch rate of 0.031 harbor porpoises follows: this section, NMFS shall close the per metric tons of landings is exceeded western portion of the Mid-Coast by the average observed bycatch rate for § 229.33 Harbor Porpoise Take Reduction the Massachusetts Bay, Mid-Coast, and Plan Regulations—New England. Management Area (west of 70°15′ W. long.) from October through November Stellwagen Bank Management Areas (a) Restrictions—(1) Northeast Closure combined. Area—(i) Area restrictions. From August annually by incorporating it into the (4) Stellwagen Bank Management 15 through September 13, it is Coastal Gulf of Maine Consequence Area—(i) Area restrictions. From prohibited to fish with, set, haul back, Closure Area if, after two consecutive November 1 through May 31, it is possess on board a vessel unless stowed management seasons, the target harbor prohibited to fish with, set, haul back, in accordance with § 229.2, or fail to porpoise bycatch rate of 0.031 harbor possess on board a vessel unless stowed remove sink gillnet gear or gillnet gear porpoises per metric tons of landings is in accordance with § 229.2, or fail to capable of catching multispecies from exceeded by the average observed remove sink gillnet gear or gillnet gear the Northeast Closure Area. This bycatch rate for the Mid-Coast, capable of catching multispecies from restriction does not apply to a single Massachusetts Bay, and Stellwagen the Stellwagen Bank Management Area, pelagic gillnet (as described and used as Bank Management Areas combined. unless the gillnet gear is equipped with set forth in § 648.81(f)(2)(ii) of this title). (3) Massachusetts Bay Management (ii) Area boundaries. The Northeast Area—(i) Area restrictions. From pingers in accordance with paragraphs Closure Area is bounded by straight November 1 through February 28/29 (b) and (c) of this section. This lines connecting the following points in and from April 1 through May 31, it is restriction does not apply to a single the order stated: prohibited to fish with, set, haul back, pelagic gillnet (as described in possess on board a vessel unless stowed § 648.81(f)(2)(ii) of this title). NORTHEAST CLOSURE AREA in accordance with § 229.2, or fail to (ii) Area boundaries. The Stellwagen remove sink gillnet gear or gillnet gear Bank Management Area is bounded by Point N. lat. W. long. capable of catching multispecies from straight lines connecting the following the Massachusetts Bay Management points in the order stated: NE1 ...... 44°27.3′ 68°55.0′ (ME Area, unless the gillnet gear is equipped shoreline). with pingers in accordance with TELLWAGEN ANK ANAGEMENT ° ′ ° ′ S B M NE2 ...... 43 29.6 68 55.0 paragraphs (b) and (c) of this section. NE3 ...... 44°04.4′ 67°48.7′ AREA NE4 ...... 44°06.9′ 67°52.8′ From March 1 through March 31, it is NE5 ...... 44°31.2′ 67°02.7′ prohibited to fish with, set, haul back, Point N. lat. W. long. NE6 ...... 44°45.8′ 67°02.7′ (ME possess on board a vessel unless stowed ° ′ ° ′ shoreline). in accordance with § 229.2, or fail to SB1 ...... 42 30.0 70 30.0 SB2 ...... 42°30.0′ 70°15.0′ remove sink gillnet gear or gillnet gear ° ′ ° ′ (2) Mid-Coast Management Area—(i) capable of catching multispecies from SB3 ...... 42 15.0 70 15.0 SB4 ...... 42°15.0′ 70°30.0′ Area restrictions. From September 15 the Massachusetts Bay Management SB1 ...... 42°30.0′ 70°30.0′ through May 31, it is prohibited to fish Area. These restrictions do not apply to

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(iii) Closing procedures. According to observed bycatch rate for the Southern OFFSHORE MANAGEMENT AREA— paragraphs (d)(1), (d)(3), and (d)(4) of New England Management Area. Continued this section, NMFS shall close the (6) Cape Cod South Closure Area—(i) Stellwagen Bank Management Area Area restrictions. From March 1 through Point N. lat. W. long. from October through November March 31, it is prohibited to fish with, annually if, after two consecutive set, haul back, possess on board a vessel OFS2 ...... 43°10.0′ 69°10.0′ unless stowed in accordance with OFS3 ...... 43°10.0′ 67°40.0′ management seasons, the target harbor ° ′ ° ′ porpoise bycatch rate of 0.031 harbor § 229.2, or fail to remove sink gillnet OFS4 ...... 43 05.8 67 40.0 gear or gillnet gear capable of catching (EEZ porpoises per metric tons of landings is boundary). exceeded by the average observed multispecies from the Cape Cod South OFS5 ...... 42°53.1′ 67°44.5′ bycatch rate for the Stellwagen Bank, Closure Area. This prohibition does not (EEZ Mid-Coast, and Massachusetts Bay apply to a single pelagic gillnet (as boundary). Management Areas combined. described in § 648.81(f)(2)(ii) of this OFS6 ...... 42°47.3′ 67°40.0′ (5) Southern New England title). (EEZ Management Area—(i) Area restrictions. (ii) Area boundaries. The Cape Cod boundary). South Closure Area is bounded by OFS7 ...... 42°10.0′ 67°40.0′ From December 1 through May 31, it is ° ′ ° ′ straight lines connecting the following OFS8 ...... 42 10.0 69 30.0 prohibited to fish with, set, haul back, OFS1 ...... 42°50.0′ 69°30.0′ possess on board a vessel unless stowed points in the order stated: in accordance with § 229.2, or fail to (8) Cashes Ledge Closure Area—(i) CAPE COD SOUTH CLOSURE AREA remove sink gillnet gear or gillnet gear Area restrictions. During the month of capable of catching multispecies from Point N. lat. W. long. February, it is prohibited to fish with, the Southern New England Management set, haul back, possess on board a vessel Area, unless the gillnet gear is equipped CCS1 ...... 41°19.6′ 71°45.0′ (RI unless stowed in accordance with with pingers in accordance with shoreline). § 229.2, or fail to remove sink gillnet paragraphs (b) and (c) of this section. CCS2 ...... 40°40.0′ 71°45.0′ gear or gillnet gear capable of catching This prohibition does not apply to a CCS3 ...... 40°40.0′ 70°30.0′ multispecies from the Cashes Ledge single pelagic gillnet (as described in CCS4 ...... 41°20.9′ 70°30.0′ Closure Area. This restriction does not § 648.81(f)(2)(ii) of this title). CCS5 ...... 41°23.1′ 70°30.0′ ° ′ ° ′ apply to a single pelagic gillnet (as (ii) Area boundaries. The Southern CCS6 ...... 41 33.1 70 30.0 (MA shoreline). described in § 648.81(f)(2)(ii) of this New England Management Area is title). bounded by straight lines connecting (iii) Closing procedures. According to (ii) Area boundaries. The Cashes the following points in the order stated: paragraphs (d)(2), (d)(3), and (d)(4) of Ledge Closure Area is bounded by this section, NMFS shall close the Cape straight lines connecting the following SOUTHERN NEW ENGLAND Cod South Closure Area and an area to points in the order stated: MANAGEMENT AREA its south (Cape Cod South Expansion Closure Area) from February through CASHES LEDGE CLOSURE AREA Point N. lat. W. long. April annually if, after two consecutive Point N. lat. W. long. SNE1 ...... Western management seasons, the target harbor boundary porpoise bycatch rate of 0.023 harbor CL1 ...... 42°30.0′ 69°00.0′ as speci- porpoises per metric tons of landings is CL2 ...... 42°30.0′ 68°30.0′ fied 1 exceeded by the average observed CL3 ...... 43°00.0′ 68°30.0′ SNE2 ...... 40°00.0′ 72°30.0′ bycatch rate for the Southern New CL4 ...... 43°00.0′ 69°00.0′ SNE3 ...... 40°00.0′ 69°30.0′ England Management Area. CL1 ...... 42°30.0′ 69°00.0′ SNE4 ...... 42°15.0′ 69°30.0′ (7) Offshore Management Area—(i) ° ′ ° ′ SNE5 ...... 42 15.0 70 00.0 Area restrictions. From November 1 (b) Pingers—(1) Pinger specifications. SNE6 ...... 41°58.3′ 70°00.0′ (MA For the purposes of this subpart, a shoreline). through May 31, it is prohibited to fish with, set, haul back, possess on board a pinger is an acoustic deterrent device 1 Bounded on the west by a line running vessel unless stowed in accordance with which, when immersed in water, ° ′ from the Rhode Island shoreline at 41 18.2 N. § 229.2, or fail to remove sink gillnet broadcasts a 10 kHz (plus or minus 2 lat. and 71°51.5′ W. long. (Watch Hill, RI), kHz) sound at 132 dB (plus or minus 4 southwesterly through Fishers Island, NY, to gear or gillnet gear capable of catching Race Point, Fishers Island, NY; and from multispecies from the Offshore dB) re 1 micropascal at 1 m, lasting 300 Race Point, Fishers Island, NY; southeasterly Management Area, unless the gillnet milliseconds (plus or minus 15 to the intersection of the 3-nautical mile line gear is equipped with pingers in milliseconds), and repeating every 4 east of Montauk Point; southwesterly along accordance with paragraphs (b) and (c) seconds (plus or minus 0.2 seconds). the 3-nautical mile line to the intersection of (2) Pinger attachment. An operating 72°30.0′ W. long. of this section. This restriction does not apply to a single pelagic gillnet (as and functional pinger must be attached (iii) Closing procedures. According to described in § 648.81(f)(2)(ii) of this at each end of a string of gillnets and at paragraphs (d)(2), (d)(3), and (d)(4) of title). the bridle of every net, or every 300 feet this section, NMFS shall close two areas (ii) Area boundaries. The Offshore (91.4 m or 50 fathoms), whichever is (Cape Cod South Expansion Closure Management Area is bounded by closer. Area and Eastern Cape Cod Closure straight lines connecting the following (c) Pinger training and authorization. Area) within the Southern New England points in the order stated: The operator of a vessel may not fish Management Area from February with, set, haul back, possess on board a through April annually if, after two OFFSHORE MANAGEMENT AREA vessel unless stowed in accordance with consecutive management seasons, the § 229.2, or fail to remove sink gillnet target harbor porpoise bycatch rate of Point N. lat. W. long. gear or gillnet gear capable of catching 0.023 harbor porpoises per metric tons multispecies in closed areas where of landings is exceeded by the average OFS1 ...... 42°50.0′ 69°30.0′ pingers are required as specified under

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paragraph (b) of this section, unless the accordance with § 229.2, or fail to each year after implementation until operator has satisfactorily received remove sink gillnet gear or gillnet gear bycatch levels approach a zero mortality pinger training and possesses and capable of catching multispecies from and serious injury rate or NMFS, in retains on board the vessel a valid the Cape Cod South Expansion Closure collaboration with the Harbor Porpoise pinger training authorization issued by Area and the Eastern Cape Cod Closure Take Reduction Team, develops and NMFS. Area. This prohibition will not apply to implements new measures. (d) Annual review for consequence a single pelagic gillnet (as described in (e) Research permits. An exemption to area actions. (1) Coastal Gulf of Maine § 648.81(f)(2)(ii) of this title). When not the requirements set forth in this section Closure Area. (i) Establishment. If, after closed during February through April, may be acquired for the purposes of two consecutive management seasons, the requirements of the Southern New conducting scientific or gear research the calculated average observed bycatch England Management Area, as described within the restricted areas described in rate of the Mid-Coast, Massachusetts in paragraph (a)(5) of this section, will this section. A scientific research permit Bay, and Stellwagen Bank Management remain in effect. must be acquired through NMFS’ Areas exceeds the target bycatch rate of (iii) Area boundaries. (A) The Cape existing permit application process 0.031 harbor porpoises per metric tons Cod South Expansion Closure Area is administered by NMFS. of landings, the Coastal Gulf of Maine bounded by straight lines connecting (f) Other special measures. The Closure Area shall be established. the following points in the order stated: Assistant Administrator may revise the (ii) Restrictions. From October 1 requirements of this section through through November 30, it will be CAPE COD SOUTH EXPANSION notification published in the Federal prohibited to fish with, set, haul back, CLOSURE AREA Register if: possess on board a vessel unless stowed (1) NMFS determines that pinger in accordance with § 229.2, or fail to Point N. lat. W. long. operating effectiveness in the remove sink gillnet gear or gillnet gear commercial fishery is inadequate to ° ′ ° ′ capable of catching multispecies from CCSE1 ...... 41 19.6 71 45.0 (RI reduce bycatch below the stock’s PBR shoreline). level. the Coastal Gulf of Maine Closure Area. CCSE2 ...... 40°00.0′ 71°45.0′ This prohibition will not apply to a CCSE3 ...... 40°00.0′ 70°00.0′ (2) NMFS determines that the single pelagic gillnet (as described in CCSE4 ...... 40°30.0′ 70°00.0′ boundary or timing of a closed area is § 648.81(f)(2)(ii) of this title). When not CCSE5 ...... 40°30.0′ 70°30.0′ inappropriate, or that gear modifications closed during October and November, CCSE6 ...... 41°20.9′ 70°30.0′ (including pingers) are not reducing the requirements of the Mid-Coast (as CCSE7 ...... 41°23.1′ 70°30.0′ bycatch to below the PBR level. ° ′ ° ′ described in paragraph (a)(2) of this CCSE8 ...... 41 33.1 70 30.0 (MA 5. Section 229.34 is revised to read as section), Massachusetts Bay (as shoreline). follows: described in paragraph (a)(3) of this (B) The Eastern Cape Cod Closure § 229.34 Harbor Porpoise Take Reduction section), and Stellwagen Bank (as Area is bounded by straight lines Plan Regulations—Mid-Atlantic. described in paragraph (a)(4) of this connecting the following points in the (a)(1) Regulated waters. The section) Management Areas will remain order stated: regulations in this section apply to all in effect. waters in the Mid-Atlantic bounded on (iii) Area boundaries. The Coastal EASTERN CAPE COD CLOSURE AREA the east by 72°30′ W. long. at the Gulf of Maine Closure Area is bounded southern coast of Long Island, NY at by straight lines connecting the Point N. lat. W. long. 40°50.1′ N. lat. and on the south by the following points in the order stated: ° ′ ° ′ North Carolina/South Carolina border ECC1 ...... 41 58.3 70 00.0 (MA (33°51.1′ N. lat.), except for the areas COASTAL GULF OF MAINE CLOSURE shoreline). ° ′ ° ′ exempted in paragraph (a)(2) of this AREA ECC2 ...... 42 15.0 70 00.0 ECC3 ...... 42°15.0′ 69°30.0′ section. ° ′ ° ′ (2) Exempted waters. The regulations Point N. lat. W. long. ECC4 ...... 41 40.0 69 30.0 ECC5 ...... 41°40.0′ 69°56.8′ (MA within this section are not applicable to CGM1 ...... 43°33.0′ 70°15.0′ (ME shoreline). waters landward of the first bridge over shoreline). any embayment, harbor, or inlet, or to CGM2 ...... 42°15.0′ 70°15.0′ (3) Notification. Upon determining waters landward of the following lines: CGM3 ...... 42°15.0′ 70°46.0′ (MA that establishing a consequence closure shoreline). area as described in paragraphs (d)(1) New York and (d)(2) of this section is necessary, 40°45.70′ N., 72°45.15′ W. to 40°45.72′ (2) Cape Cod South Expansion and NMFS will notify, in advance of the N., 72°45.30′ W. (Moriches Bay Inlet) Eastern Cape Cod Closure Areas—(i) closure, the Harbor Porpoise Take 40°37.32′ N., 73°18.40′ W. to 40°38.00′ Establishment. If, after two consecutive Reduction Team as well as gillnet N., 73°18.56′ W. (Fire Island Inlet) management seasons, the calculated permit holders through mail 40°34.40′ N., 73°34.55′ W. to 40°35.08′ average observed bycatch rate of the notification. NMFS will also publish N., 73°35.22′ W. (Jones Inlet) Southern New England Management notification in the Federal Register and New Jersey/Delaware Area exceeds the target bycatch rate of post information on the Harbor Porpoise ° ′ ° ′ ° ′ 0.023 harbor porpoises per metric tons Take Reduction Plan Web site related to 39 45.90 N., 74 05.90 W. to 39 45.15 ° ′ of landings, the Cape Cod South the establishment of the closure area(s). N., 74 06.20 W. (Barnegat Inlet) ° ′ ° ′ ° ′ Expansion Closure Area and the Eastern (4) If any or all of the closure areas 39 30.70 N., 74 16.70 W. to 39 26.30 ° ′ Cape Cod Closure Area shall be discussed in paragraphs (d)(1) and (d)(2) N., 74 19.75 W. (Beach Haven to are implemented, NMFS will monitor Brigantine Inlet) established. ° ′ ° ′ ° ′ (ii) Restrictions. From February 1 harbor porpoise bycatch rates 38 56.20 N., 74 51.70 W. to 38 56.20 ° ′ through April 30, it will be prohibited throughout the New England region. N., 74 51.90 W. (Cape May Inlet) to fish with, set, haul back, possess on The provisions set forth in paragraphs All marine and tidal waters landward of board a vessel unless stowed in (d)(1) and (d)(2) shall remain in effect the 72 COLREGS demarcation line

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(International Regulations for characteristics described below. During vessel, hauled by the vessel or deployed Preventing Collisions at Sea, 1972), as this period, no person who owns or by the vessel, does not exceed 45. depicted or noted on nautical charts operates the vessel may allow the vessel (E) Number of nets per string. The published by NOAA (Coast Charts to enter or remain in the Waters off New total number of nets or net panels in a 1:80,000 scale), and as described in 33 Jersey Management Area with large net string does not exceed 10. CFR part 80. (Delaware Bay) mesh gillnet gear on board, unless the (F) Tie-down system. Tie-downs are gear complies with the specified gear prohibited. Maryland/Virginia characteristics described below or is (2) Mudhole North Management Area. 38°19.48′ N., 75°05.10′ W. to 38°19.35′ stowed in accordance with § 229.2. In The Mudhole North Management Area N., 75°05.25′ W. (Ocean City Inlet) order to comply with these specified is bounded by straight lines connecting All marine and tidal waters landward gear characteristics, the gear must have the following points in the order stated: of the 72 COLREGS demarcation line all the following characteristics: (International Regulations for (A) Floatline length. The floatline is MUDHOLE NORTH MANAGEMENT AREA Preventing Collisions at Sea, 1972), as not more than 4,800 ft (1,463.0 m). depicted or noted on nautical charts (B) Twine size. The twine is at least Point N. lat. W. long. published by NOAA (Coast Charts 0.035 inches (0.90 mm) in diameter. MN1 ...... 40°28.1′ 74°00.0′ (NJ 1:80,000 scale), and as described in 33 (C) Size of nets. Individual nets or net shoreline). CFR part 80. (Chincoteague to Ship panels are not more than 300 ft (91.44 MN2 ...... 40°30.0′ 74°00.0′ Shoal Inlet) m or 50 fathoms) in length. MN3 ...... 40°30.0′ 73°20.0′ ° ′ ° ′ ° ′ (D) Number of nets. The total number MN4 ...... 40°05.0′ 73°20.0′ 37 11.10 N., 75 49.30 W. to 37 10.65 ° ′ ° ′ N., 75°49.60′ W. (Little Inlet) of individual nets or net panels for a MN5 ...... 40 05.0 74 02.0 (NJ 37°07.00′ N., 75°53.75′ W. to 37°05.30′ vessel, including all nets on board the shoreline). N., 75°56′ W. (Smith Island Inlet) vessel, hauled by the vessel, or deployed by the vessel, does not exceed (i) Closures. From February 15 North Carolina 80. through March 15, it is prohibited to fish with, set, haul back, possess on All marine and tidal waters landward of (E) Number of nets per string. The total number of nets or net panels in a board a vessel unless stowed in the 72 COLREGS demarcation line accordance with § 229.2, or fail to (International Regulations for net string does not exceed 16. (F) Tie-down system. The gillnet gear remove any large or small mesh gillnet Preventing Collisions at Sea, 1972), as is equipped with tie-downs spaced not gear from the Mudhole North depicted or noted on nautical charts more than 24 ft (7.3 m) apart along the Management Area. In addition, from published by NOAA (Coast Charts floatline, and each tie-down is not more April 1 through April 20, it is prohibited 1:80,000 scale), and as described in 33 than 48 inches (18.90 cm) in length from to fish with, set, haul back, possess on CFR part 80. the point where it connects to the board a vessel unless stowed in (b) Restrictions—(1) Waters off New floatline to the point where it connects accordance with § 229.2, or fail to Jersey Management Area. The Waters off to the lead line. remove any large mesh gillnet gear from New Jersey Management Area is (iii) Gear limitations and the Mudhole North Management Area. bounded by straight lines connecting requirements—small mesh gillnet gear. (ii) Gear limitations and the following points in the order stated: From January 1 through April 30, no requirements—large mesh gillnet gear. person may fish with, set, haul back, From January 1 through April 30, except WATERS OFF NEW JERSEY possess on board a vessel unless stowed during February 15 through March 15 MANAGEMENT AREA in accordance with § 229.2, or fail to and April 1 through April 20 as remove any small mesh gillnet gear in described in paragraph (b)(2)(i) of this Point N. lat. W. long. the Waters off New Jersey Management section, no person may fish with, set, WNJ1 ...... 40°50.1′ 72°30.0′ (NY Area unless the gear complies with the haul back, possess on board a vessel shoreline). specified gear characteristics described unless stowed in accordance with WNJ2 ...... 38°47.0′ 72°30.0′ below. During this period, no person § 229.2, or fail to remove any large mesh WNJ3 ...... 38°47.0′ 75°05.0′ (DE who owns or operates the vessel may gillnet gear in the Mudhole North shoreline). allow the vessel to enter or remain in Management Area unless the gear the Waters off New Jersey Management complies with the specified gear (i) Closure. From April 1 through Area with small mesh gillnet gear on characteristics described below. During April 20, it is prohibited to fish with, board, unless the gear complies with the this period, no person who owns or set, haul back, possess on board a vessel specified gear characteristics described operates the vessel may allow the vessel unless stowed in accordance with below or is stowed in accordance with to enter or remain in the Mudhole North § 229.2, or fail to remove any large mesh § 229.2. In order to comply with these Management Area with large mesh gillnet gear from the Waters off New specified gear characteristics, the gear gillnet gear on board, unless the gear Jersey Management Area. must have all the following complies with the specified gear (ii) Gear limitations and characteristics: characteristics described below or is requirements—large mesh gillnet gear. (A) Floatline length. The floatline is stowed in accordance with § 229.2. In From January 1 through April 30, except not more than 3,000 ft (914.4 m) in order to comply with these specified during April 1 through April 20 as length. gear characteristics, the gear must have described in paragraph (b)(1)(i) of this (B) Twine size. The twine is at least all the following characteristics: section, no person may fish with, set, 0.031 inches (0.81 mm) in diameter. (A) Floatline length. The floatline is haul back, possess on board a vessel (C) Size of nets. Individual nets or net not more than 3,900 ft (1,188.7 m). unless stowed in accordance with panels are not more than 300 ft (91.4 m (B) Twine size. The twine is at least § 229.2, or fail to remove any large mesh or 50 fathoms) in length. 0.035 inches (0.90 mm) in diameter. gillnet gear in the Waters off New Jersey (D) Number of nets. The total number (C) Size of nets. Individual nets or net Management Area unless the gear of individual nets or net panels for a panels are not more than 300 ft (91.44 complies with the specified gear vessel, including all nets on board the m or 50 fathoms) in length.

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(D) Number of nets. The total number MUDHOLE SOUTH MANAGEMENT floatline to the point where it connects of individual nets or net panels for a AREA—Continued to the lead line. vessel, including all nets on board the (iii) Gear limitations and vessel, hauled by the vessel or deployed Point N. lat. W. long. requirements—small mesh gillnet gear. by the vessel, does not exceed 80. From January 1 through April 30 of each (E) Number of nets per string. The MS3 ...... 39°51.0′ 73°00.0′ year, except during February 1 through total number of nets or net panels in a MS4 ...... 39°51.0′ 73°31.0′ March 15 as described in paragraph ° ′ ° ′ net string does not exceed 13. MS1 ...... 40 05.0 73 31.0 (b)(3)(i) of this section, no person may (F) Tie-down system. The gillnet gear fish with, set, haul back, possess on is equipped with tie-downs spaced not (i) Closures. From February 1 through board a vessel unless stowed in more than 24 ft (7.3 m) apart along the March 15, it is prohibited to fish with, accordance with § 229.2, or fail to floatline, and each tie-down is not more set, haul back, possess on board a vessel remove any small mesh gillnet gear in than 48 inches (18.90 cm) in length from unless stowed in accordance with the Mudhole South Management Area the point where it connects to the § 229.2, or fail to remove any large or unless the gear complies with the floatline to the point where it connects small mesh gillnet gear in the Mudhole specified gear characteristics described to the lead line. South Management Area. In addition, below. During this period, no person (iii) Gear limitations and from April 1 through April 20, it is who owns or operates the vessel may requirements—small mesh gillnet gear. prohibited to fish with, set, haul back, allow the vessel to enter or remain in From January 1 through April 30, except possess on board a vessel unless stowed the Mudhole South Management Area during February 15 through March 15 as in accordance with § 229.2, or fail to with small mesh gillnet gear on board described in paragraph (b)(2)(i) of this remove any large mesh gillnet gear from unless the gear complies with the section, no person may fish with, set, the Mudhole South Management Area. specified gear characteristics described haul back, possess on board a vessel (ii) Gear limitations and below or is stowed in accordance with unless stowed in accordance with requirements—large mesh gillnet gear. § 229.2. In order to comply with these § 229.2, or fail to remove any small From January 1 through April 30, except specified gear characteristics, the gear mesh gillnet gear in the Mudhole North during February 1 through March 15 must have all the following Management Area unless the gear and April 1 through April 20 as characteristics: complies with the specified gear described in paragraph (b)(3)(i) of this (A) Floatline length. The floatline is characteristics described below. During section, no person may fish with, set, not more than 3,000 ft (914.4 m) in this period, no person who owns or haul back, possess on board a vessel length. operates the vessel may allow the vessel unless stowed in accordance with (B) Twine size. The twine is at least to enter or remain in the Mudhole North § 229.2, or fail to remove any large mesh 0.031 inches (0.81 mm) in diameter. Management Area with small mesh gillnet gear in the Mudhole South (C) Size of nets. Individual nets or net gillnet gear on board unless the gear Management Area unless the gear panels are not more than 300 ft (91.4 m complies with the specified gear complies with the specified gear or 50 fathoms) in length. characteristics described below or is characteristics described below. During (D) Number of nets. The total number stowed in accordance with § 229.2. In this period, no person who owns or of individual nets or net panels for a order to comply with these specified operates the vessel may allow the vessel vessel, including all nets on board the gear characteristics, the gear must have to enter or remain in the Mudhole South vessel, hauled by the vessel or deployed all the following characteristics: Management Area with large mesh by the vessel, does not exceed 45. (A) Floatline length. The floatline is gillnet gear on board, unless the gear (E) Number of nets per string. The not more than 3,000 ft (914.4 m) in complies with the specified gear total number of nets or net panels in a length. characteristics described below or is net string does not exceed 10. (B) Twine size. The twine is at least stowed in accordance with § 229.2. In (F) Tie-down system. Tie-downs are 0.031 inches (0.81 mm) in diameter. order to comply with these specified prohibited. (C) Size of nets. Individual nets or net gear characteristics, the gear must have (4) Southern Mid-Atlantic panels are not more than 300 ft (91.4 m all the following characteristics: Management Area. The Southern Mid- or 50 fathoms) in length. (A) Floatline length. The floatline is Atlantic Management Area is bounded (D) Number of nets. The total number not more than 3,900 ft (1,188.7 m). by straight lines connecting the of individual nets or net panels for a (B) Twine size. The twine is at least following points in the order stated: vessel, including all nets on board the 0.035 inches (0.90 mm) in diameter. vessel, hauled by the vessel or deployed (C) Size of nets. Individual nets or net SOUTHERN MID-ATLANTIC by the vessel, does not exceed 45. panels are not more than 300 ft (91.44 MANAGEMENT AREA (E) Number of nets per string. The m or 50 fathoms) in length. total number of nets or net panels in a (D) Number of nets. The total number Point N. lat. W. long. net string does not exceed 10. of individual nets or net panels for a ° ′ ° ′ (F) Tie-down system. Tie-downs are vessel, including all nets on board the SMA1 ...... 38 47.0 75 05.0 (DE prohibited. vessel, hauled by the vessel or deployed shoreline). SMA2 ...... 38°47.0′ 72°30.0′ (3) Mudhole South Management Area. by the vessel, does not exceed 80. The Mudhole South Management Area SMA3 ...... 33°51.1′ 72°30.0′ (E) Number of nets per string. The ° ′ ° ′ is bounded by straight lines connecting SMA4 ...... 33 51.1 78 32.5 (NC/ total number of nets or net panels in a SC border). the following points in the order stated: net string does not exceed 13. (F) Tie-down system. The gillnet gear (i) Closures. From February 15 MUDHOLE SOUTH MANAGEMENT AREA is equipped with tie-downs spaced not through March 15, it is prohibited to Point N. lat. W. long. more than 24 ft (7.3 m) apart along the fish with, set, haul back, possess on floatline, and each tie-down is not more board a vessel unless stowed in MS1 ...... 40°05.0′ 73°31.0′ than 48 inches (18.90 cm) in length from accordance with § 229.2, or fail to MS2 ...... 40°05.0′ 73°00.0′ the point where it connects to the remove any large mesh gillnet gear from

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the Southern Mid-Atlantic Management vessel, hauled by the vessel or deployed (B) Twine size. The twine is at least Area. by the vessel, does not exceed 80. 0.031 inches (0.81 mm) in diameter. (ii) Gear limitations and (E) Number of nets per string. The (C) Size of nets. Individual nets or net requirements—large mesh gillnet gear. total number of nets or net panels in a panels are not more than 300 ft (91.4 m From February 1 through April 30, net string does not exceed 13. or 50 fathoms) in length. except during February 15 through (F) Tie-down system. The gillnet gear (D) Number of nets. The total number March 15 as described in paragraph is equipped with tie-downs spaced not (b)(4)(i) of this section, no person may of individual nets or net panels for a more than 24 ft (7.3 m) apart along the vessel, including all nets on board the fish with, set, haul back, possess on floatline, and each tie-down is not more board a vessel unless stowed in vessel, hauled by the vessel or deployed than 48 inches (18.90 cm) in length from by the vessel, does not exceed 45. accordance with § 229.2, or fail to the point where it connects to the remove any large mesh gillnet gear in floatline to the point where it connects (E) Number of nets per string. The the Southern Mid-Atlantic Management to the lead line. total number of nets or net panels in a Area unless the gear complies with the (iii) Gear limitations and net string does not exceed 7. specified gear characteristics described requirements—small mesh gillnet gear. (F) Tie-down system. Tie-downs are below. During this period, no person From February 1 through April 30, no prohibited. who owns or operates the vessel may person may fish with, set, haul back, allow the vessel to enter or remain in (c) Research permits. An exemption to possess on board a vessel unless stowed the Southern Mid-Atlantic Management the requirements set forth in this section in accordance with § 229.2, or fail to Area with large mesh gillnet gear on may be acquired for the purposes of remove any small mesh gillnet gear in board, unless the gear complies with the conducting scientific or gear research the Southern Mid-Atlantic Management specified gear characteristics described within the restricted areas described in below or is stowed in accordance with Area unless the gear complies with the this section. A scientific research permit § 229.2. In order to comply with these specified gear characteristics described must be acquired through NMFS’ specified gear characteristics, the gear below. During this period, no person existing permit application process must have all the following who owns or operates the vessel may administered by NMFS. allow the vessel to enter or remain in characteristics: (d) Other special measures. The (A) Floatline length. The floatline is the Southern Mid-Atlantic Management Area with small mesh gillnet gear on Assistant Administrator may revise the not more than 3,900 ft (1,188.7 m) in requirements of this section through length. board, unless the gear complies with the specified gear characteristics described notification published in the Federal (B) Twine size. The twine is at least Register if NMFS determines that the 0.035 inches (0.90 mm) in diameter. below or is stowed in accordance with § 229.2. In order to comply with these boundary or timing of a closed area is (C) Size of nets. Individual nets or net inappropriate, or that gear modifications panels are not more than 300 ft (91.4 m specified gear characteristics, the gear must have all the following are not reducing bycatch to below the or 50 fathoms) in length. stock’s PBR level. (D) Number of nets. The total number characteristics: of individual nets or net panels for a (A) Floatline length. The floatline is [FR Doc. E9–17190 Filed 7–20–09; 8:45 am] vessel, including all nets on board the no longer than 2,118 ft (645.6 m). BILLING CODE 3510–22–P

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Reader Aids Federal Register Vol. 74, No. 138 Tuesday, July 21, 2009

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING JULY

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. 12 CFR Presidential Documents 2 CFR Executive orders and proclamations 741–6000 3...... 34499 3000...... 34495 The United States Government Manual 741–6000 41...... 31484, 32410 Other Services 3 CFR 222...... 31484, 32410 Electronic and on-line services (voice) 741–6020 229...... 35113 Proclamations: 308...... 32226, 35726 Privacy Act Compilation 741–6064 8394...... 31821 334...... 31484, 32410 Public Laws Update Service (numbers, dates, etc.) 741–6043 8395...... 33137 TTY for the deaf-and-hard-of-hearing 741–6086 363...... 32226, 35726 Executive Orders: 571...... 31484, 32410 13510...... 32047 717...... 31484, 32410 ELECTRONIC RESEARCH Administrative Orders: 741...... 35767 World Wide Web Presidential 748...... 35767 Full text of the daily Federal Register, CFR and other publications Determinations: 749...... 35767 is located at: http://www.gpoaccess.gov/nara/index.html No. 2009-22 of July 1, 913...... 33907 Federal Register information and research tools, including Public 2009 ...... 32785 1204...... 33907 Inspection List, indexes, and links to GPO Access are located at: Memorandums: 1253...... 31602 http://www.archives.gov/federallregister Memo. of July 17, 1702...... 33907 2009 ...... 35765 E-mail Proposed Rules: Notices: 41...... 31529 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is Notice of July 16, 222...... 31529 an open e-mail service that provides subscribers with a digital 2009 ...... 35763 334...... 31529 form of the Federal Register Table of Contents. The digital form 5 CFR 571...... 31529 of the Federal Register Table of Contents includes HTML and 717...... 31529 PDF links to the full text of each document. 1600...... 31345 To join or leave, go to http://listserv.access.gpo.gov and select 13 CFR Online mailing list archives, FEDREGTOC-L, Join or leave the list 7 CFR 107...... 33911 (or change settings); then follow the instructions. 1...... 32787 PENS (Public Law Electronic Notification Service) is an e-mail 52...... 32389 14 CFR service that notifies subscribers of recently enacted laws. 246...... 32049 1...... 31842 354...... 32391 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 23...... 32799, 33324 457...... 32049, 35113 and select Join or leave the list (or change settings); then follow 25...... 32799 636...... 34209 the instructions. 26...... 31618 650...... 33319 FEDREGTOC-L and PENS are mailing lists only. We cannot 27...... 32799 760...... 31567 respond to specific inquiries. 29...... 32799 1205...... 32400 Reference questions. Send questions and comments about the 39 ...... 31350, 32411, 32414, 1216...... 34687 Federal Register system to: [email protected] 32417, 32419, 32421, 32423, 1400...... 31567 The Federal Register staff cannot interpret specific documents or 32426, 32802, 34211, 34213, 1439...... 31567 regulations. 34216, 34218, 34221, 34222, 1491...... 31578 34225, 35115, 35769, 35772, Reminders. Effective January 1, 2009, the Reminders, including 1730...... 32406 35774, 35777, 35780, 35782, Rules Going Into Effect and Comments Due Next Week, no longer 3431...... 32788 appear in the Reader Aids section of the Federal Register. This 35785, 35788, 35789 Proposed Rules: information can be found online at http://www.regulations.gov. 61...... 34229 1245...... 34182, 34200 CFR Checklist. Effective January 1, 2009, the CFR Checklist no 71 ...... 31843, 31844, 31845, longer appears in the Federal Register. This information can be 9 CFR 31849, 32073, 32074, 33143 found online at http://bookstore.gpo.gov/. 91...... 32799, 32803 78...... 33139 97 ...... 33917, 33918, 35792, 93...... 31582 FEDERAL REGISTER PAGES AND DATE, JULY 35795 320...... 31829 101...... 31842 31345–31566...... 1 Proposed Rules: 121 ...... 31618, 32799, 32804, 31567–31828...... 2 381...... 33374 34229 31829–32048...... 6 125...... 31618, 32799 10 CFR 32049–32388...... 7 129...... 31618 32389–32784...... 8 35...... 33901 135...... 32799 32785–33138...... 9 171...... 35114 Proposed Rules: 33139–33318...... 10 430...... 31829, 34080 25...... 32810, 33375 33319–33900...... 13 431...... 32059 39 ...... 31640, 31891, 31894, 33901–34208...... 14 Proposed Rules: 31896, 32476, 33377, 33928, 34209–34494...... 15 35...... 33925 34272, 34274, 34276, 34509, 34495–34686...... 16 431...... 33171 34511, 34513, 34516, 34518, 34687–35112...... 17 34520, 35828 35113–35762...... 20 11 CFR 71...... 31899, 33381 35763–36076...... 21 111...... 31345, 33140 73...... 33382

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15 CFR 845...... 34490 271...... 31380 52...... 31630 742...... 31850 846...... 34490 300...... 32084, 35126 73...... 32466, 34262 744...... 35797 Proposed Rules: 721...... 32460 300...... 31638 745...... 31850 944...... 32089 745...... 34257 Proposed Rules: 748...... 31620 Proposed Rules: Ch. 1 ...... 32093 774...... 31850 31 CFR 50...... 34290, 34404 52...... 31667 543...... 35802 51...... 31903 73 ...... 32102, 32489, 32490, 16 CFR Proposed Rules: 52 ...... 31904, 33196, 33200, 32856, 34291 33395, 33397, 33399, 33401, 641...... 32410 103...... 35830 48 CFR 660...... 31484 33933, 33948, 33950, 34525, Ch. 1...... 31556, 31565, 34206 680...... 32410 32 CFR 34704, 35838 58...... 34404, 34525 2...... 31557 681...... 32410 159...... 34690 4...... 31561 698...... 32410 199...... 34694 60...... 31903 61...... 31903 8...... 31557 Proposed Rules: Proposed Rules: 9 ...... 31557, 31561, 31564 660...... 31529 865...... 34279 63...... 31903, 32822 80...... 32091, 32479 13...... 31557 17...... 31557, 34206 17 CFR 33 CFR 81...... 31904 85...... 32479 22...... 34206 Proposed Rules: 100 ...... 31351, 32428, 32431, 86...... 32479 36...... 31557, 34206 16...... 31642 33144, 34239, 35118 94...... 32479 42...... 31557 229...... 35076 52...... 31561 110...... 31354 260...... 31905 239...... 35076 53...... 31557 117 ...... 32804, 33146, 33328, 261 ...... 31905, 32838, 32846 240...... 32474, 35076 202...... 34263 34239, 34241, 35802 271...... 31386 249...... 35076 204...... 34264 138...... 31357 300...... 32092, 35153 270...... 32688, 35076 207...... 34265 165 ...... 31351, 31369, 32075, 1027...... 32479 274...... 32688, 35076 32078, 32080, 32083, 33922, 209...... 34266 1033...... 32479 212 ...... 34263, 34269, 35825 34243, 34246, 34248, 35120, 1039...... 32479 18 CFR 35122, 35124, 35803, 35805 217...... 34270 1042...... 32479 219...... 34264 Proposed Rules: Proposed Rules: 1043...... 32479 40...... 35830 100...... 35834 225...... 34264 1045...... 32479 234...... 34263 806...... 31647 165 ...... 31900, 34283, 35151 1048...... 32479 808...... 31647 334...... 32818 237...... 34266 1051...... 32479 239...... 34269 19 CFR 34 CFR 1054...... 32479 252...... 34264, 34266 1060...... 32479 149...... 33920 655...... 35070 Proposed Rules: 1065...... 32479 2...... 33953 656...... 35070 1068...... 32479 17...... 33953 20 CFR 657...... 35070 22...... 33953 658...... 35070 41 CFR 404...... 33327 36...... 33953 660...... 35070 416...... 33327 Ch. 301 ...... 35807 52...... 33953 Proposed Rules: 661...... 35070 216...... 34292 404...... 32817 42 CFR 36 CFR 704...... 32857 405...... 32817 Proposed Rules: 713...... 32857 416...... 32817 242...... 34696 34...... 31798 714...... 32857 Proposed Rules: 73...... 33401 715...... 32857 21 CFR 7...... 33384 410 ...... 33403, 33520, 35232 744...... 32857 14...... 35801 411...... 33403, 33520 752...... 32857 16...... 33030 37 CFR 414...... 33403, 33520 49 CFR 118...... 33030 1...... 31372 415...... 33403, 33520 510...... 34235 201...... 32805 416...... 35232 209...... 35131 522...... 34235, 34236 Proposed Rules: 419...... 35232 211...... 35131 558...... 34236 201...... 33930 431...... 34468 265...... 33923 202...... 33930, 34286 447...... 34468 571...... 35131 22 CFR 457...... 34468 1503...... 36030 121...... 35115 38 CFR 485...... 33403, 33520 Proposed Rules: 17...... 31373, 34500 191...... 31675 26 CFR 21...... 31854 44 CFR 192...... 31675, 34707 193...... 31675 Proposed Rules: Proposed Rules: 17...... 34495 1...... 32818, 34523 64...... 31857, 35809 195...... 31675 17...... 32819 229...... 35950 59...... 33192 65...... 33365 27 CFR 67...... 33368, 34697 234...... 35950 235...... 35950 Proposed Rules: 39 CFR Proposed Rules: 236...... 35950 9...... 35146 67 ...... 31649, 31656, 32480 111...... 34251 Ch. V...... 31812 3020...... 31374 28 CFR 45 CFR 571...... 31387 Proposed Rules: 2...... 34688 3001...... 33388 612...... 31622 50 CFR 11...... 35116 3004...... 33388 17...... 32857 46 CFR 3050...... 31386, 35837 100...... 34696 29 CFR 8...... 32088 217...... 35136 4022...... 34237 40 CFR 401...... 35812 622...... 33170 Proposed Rules: 52 ...... 33146, 33329 33332, Proposed Rules: 648...... 32466, 35826 1956...... 33189 34503 404...... 35838 660 ...... 31874, 33372, 34700 180 ...... 32433, 32437, 32443, 535...... 31666 679 ...... 32469, 33923, 34701, 30 CFR 32448, 32453, 33153, 33159, 35827 723...... 34490 33165, 34252 47 CFR Proposed Rules: 724...... 34490 190...... 32456 9...... 31860 17 ...... 31389, 32308, 32352,

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in ‘‘slip law’’ (individual S. 614/P.L. 111–40 subscribe, go to http:// pamphlet) form from the listserv.gsa.gov/archives/ LIST OF PUBLIC LAWS To award a Congressional Superintendent of Documents, Gold Medal to the Women publaws-l.html U.S. Government Printing This is a continuing list of Airforce Service Pilots Office, Washington, DC 20402 public bills from the current (‘‘WASP’’). (July 1, 2009; 123 Note: This service is strictly session of Congress which (phone, 202–512–1808). The Stat. 1958) for E-mail notification of new text will also be made have become Federal laws. It Last List July 6, 2009 laws. The text of laws is not available on the Internet from may be used in conjunction available through this service. with ‘‘P L U S’’ (Public Laws GPO Access at http:// www.gpoaccess.gov/plaws/ PENS cannot respond to Update Service) on 202–741– Public Laws Electronic specific inquiries sent to this 6043. This list is also index.html. Some laws may not yet be available. Notification Service address. available online at http:// (PENS) www.archives.gov/federal- H.R. 1777/P.L. 111–39 register/laws.html. To make technical corrections The text of laws is not to the Higher Education Act of PENS is a free electronic mail published in the Federal 1965, and for other purposes. notification service of newly Register but may be ordered (July 1, 2009; 123 Stat. 1934) enacted public laws. To

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