Animal and Plant Health Inspection Service
Food and Nutrition Service
Forest Service
Engineers Corps
Committee for Purchase From People Who Are Blind or Severely Disabled
Economic Development Administration
Foreign-Trade Zones Board
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Army Department
Defense Acquisition Regulations System
Engineers Corps
Federal Energy Regulatory Commission
Trade Representative, Office of United States
Centers for Medicare & Medicaid Services
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Coast Guard
Transportation Security Administration
Fish and Wildlife Service
Land Management Bureau
Employee Benefits Security Administration
Trade Representative, Office of United States
Federal Aviation Administration
Federal Motor Carrier Safety Administration
Federal Railroad Administration
Federal Transit Administration
Maritime Administration
National Highway Traffic Safety Administration
Surface Transportation Board
Transportation Security Administration
Foreign Assets Control Office
Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
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Federal Aviation Administration (FAA), DOT.
Final special conditions.
These special conditions are issued for the Boeing Model 747-8/-8F airplane. This airplane will have novel or unusual design features associated with the architecture and connectivity capabilities of the airplane's computer systems and networks, which may allow access to external computer systems and networks. Connectivity to external systems and networks may result in security vulnerabilities to the airplane's systems. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for these design features. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
Will Struck, FAA, Airplane and Flight Crew Interface Branch, ANM-111, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-2764; facsimile (425) 227-1149.
On November 4, 2005, The Boeing Company, P.O. Box 3707, Seattle, WA 98124, applied for an amendment to Type Certificate Number A20WE to include the new Model 747-8 passenger airplane and the new Model 747-8F freighter airplane. The Model 747-8 and the Model 747-8F are derivatives of the 747-400 and the 747-400F, respectively. Both the Model 747-8 and the Model 747-8F are four-engine jet transport airplanes that will have a maximum takeoff weight of 975,000 pounds and new General Electric GEnx-2B67 engines. The Model 747-8 will have two flight crew and the capacity to carry 660 passengers. The Model 747-8F will have two flight crew and a zero passenger capacity, although the FAA has issued a partial grant of exemption to Boeing for the carriage of up to six supernumeraries for the 747-8F.
Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.17, Boeing must show that the Model 747-8 and 747-8F (hereafter referred as 747-8/-8F) meet the applicable provisions of part 25, as amended by Amendments 25-1 through 25-120, except for §§ 25.809(a) and 25.812, which will remain at Amendment 25-115. These regulations will be incorporated into Type Certificate No. A20WE after type certification approval of the 747-8/-8F.
In addition, the certification basis includes other regulations, special conditions and exemptions that are not relevant to these special conditions.
If the Administrator finds that the applicable airworthiness regulations (
In addition to the applicable airworthiness regulations and special conditions, the 747-8/-8F must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.
Special conditions, as defined in § 11.19, are issued under § 11.38, and become part of the type certification basis under § 21.101.
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101.
The Boeing Model 747-8/-8F airplane will incorporate the following novel or unusual design features: digital systems architecture composed of several connected networks. The architecture and network configuration may be used for, or interfaced with, a diverse set of functions, including:
1. Flight-safety related control, communication, and navigation systems (aircraft control domain),
2. Airline business and administrative support (airline information domain),
3. Passenger information and entertainment systems (passenger entertainment domain), and
4. The capability to allow access to or by external network sources.
The Model 747-8/-8F architecture and network configuration may allow increased connectivity to and access from external network sources and airline operations and maintenance networks to the aircraft control domain and airline information domain. The aircraft control domain and airline information domain perform functions required for the safe operation and maintenance of the airplane. Previously these domains had very limited connectivity with external network sources.
The architecture and network configuration may allow the exploitation of network security vulnerabilities resulting in intentional or unintentional destruction, disruption, degradation, or exploitation of data, systems, and networks critical to the safety and maintenance of the airplane.
The existing regulations and guidance material did not anticipate these types of airplane system architectures. Furthermore, 14 CFR regulations and current system safety assessment policy and techniques do not address potential security vulnerabilities, which could be exploited by unauthorized access to
Notice of proposed special conditions No. 25-09-09-SC for the Boeing Model 747-8/-8F airplanes was published in the
As discussed above, these special conditions are applicable to Boeing Model 747-8/-8F airplanes. Should Boeing apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design features, these special conditions would apply to that model as well under the provisions of § 21.101.
This action affects only certain novel or unusual design features of the Boeing Model 747-8/-8F airplane. It is not a rule of general applicability.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
1. The applicant must ensure electronic system security protection for the aircraft control domain and airline information domain from access by unauthorized sources external to the airplane, including those possibly caused by maintenance activity.
2. The applicant must ensure that electronic system security threats from external sources are identified and assessed, and that effective electronic system security protection strategies are implemented to protect the airplane from all adverse impacts on safety, functionality, and continued airworthiness.
Federal Aviation Administration (FAA), DOT.
Final special conditions.
These special conditions are issued for the Boeing Model 747-8/-8F airplane. This airplane will have novel or unusual design features when compared to the state of technology envisioned in the airworthiness standards for transport category airplanes. These design features include an electronic flight control system that provides roll control of the airplane through pilot inputs to the flight computers. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards. Additional special conditions will be issued for other novel or unusual design features of the Boeing 747-8/-8F airplanes.
Todd Martin, FAA, Airframe and Cabin Safety Branch, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-1178; facsimile (425) 227-1232.
On November 4, 2005, The Boeing Company, PO Box 3707, Seattle, WA 98124, applied for an amendment to Type Certificate Number A20WE to include the new Model 747-8 series passenger airplane and the new Model 747-8F freighter airplane. The Model 747-8 and the Model 747-8F are derivatives of the 747-400 and the 747-400F, respectively. Both the Model 747-8 and the Model 747-8F are four-engine jet transport airplanes that will have a maximum takeoff weight of 975,000 pounds and new General Electric GEnx -2B67 engines. The Model 747-8 will have two flight crew and the capacity to carry 660 passengers.
Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.101, Boeing must show that the Model 747-8 and 747-8F (hereafter referred as 747-8/-8F series) meet the applicable provisions of part 25, as amended by Amendments 25-1 through 25-117, except for earlier amendments as agreed upon by the FAA. These regulations will be incorporated into Type Certificate No. A20WE after type certification approval of the 747-8/-8F.
In addition, the certification basis includes other regulations, special conditions and exemptions that are not relevant to these special conditions. Type Certificate No. A20WE will be updated to include a complete description of the certification basis for these airplanes.
If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the 747-8/-8F because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.
In addition to the applicable airworthiness regulations and special conditions, the 747-8/-8F series must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.
Special conditions, as defined in § 11.19, are issued under § 11.38, and become part of the type certification basis under § 21.101.
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model or series that incorporates the same or similar novel or unusual design feature, or should any other model or series already included on the same type certificate be modified to incorporate the same or similar novel or unusual design feature, the special conditions would also apply to the other model or series under § 21.101.
The Boeing Model 747-8/-8F will incorporate the following novel or unusual design features: An electronic flight control system that provides roll control of the airplane through pilot inputs to the flight computers.
The 747-8/-8F is equipped with an electronic flight control system that provides roll control of the airplane through pilot inputs to the flight computers. Current part 25 airworthiness regulations account for “control laws,” for which aileron deflection is proportional to control wheel deflection. They do not address any nonlinearities
These special conditions differ from current requirements in that the special conditions require that the roll maneuver result from defined movements of the cockpit roll control as opposed to defined aileron deflections. Also, these special conditions require an additional load condition at design maneuvering speed (V
These special conditions differ from similar special conditions applied to previous designs. These special conditions are limited to the roll axis only, whereas previous special conditions also included pitch and yaw axes. A special condition is no longer needed for the yaw axis because § 25.351 was revised at Amendment 25-91 to take into account effects of an electronic flight control system. No special condition is needed for the pitch axis because the current requirement (§ 25.331(c)) is adequate.
Notice of proposed special conditions No. 25-09-10-SC for the Boeing Model 747-8/-8F airplanes was published in the
As discussed above, these special conditions are applicable to the Boeing Model 747-8/-8F airplanes. Should Boeing apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design features, these special conditions would apply to that model as well under the provisions of § 21.101.
This action affects only certain novel or unusual design features of the Boeing Model 747-8/-8F airplanes. It is not a rule of general applicability.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
In lieu of compliance with § 25.349(a), the Boeing Model 747-8/-8F must comply with the following special conditions.
The following conditions, speeds, and cockpit roll control motions (except as the motions may be limited by pilot effort) must be considered in combination with an airplane load factor of zero, and separately, two-thirds of the positive maneuvering factor used in design. In determining the resulting control surface deflections, the torsional flexibility of the wing must be considered in accordance with § 25.301(b):
(a) Conditions corresponding to steady rolling velocities must be investigated. In addition, conditions corresponding to maximum angular acceleration must be investigated. For the angular acceleration conditions, zero rolling velocity may be assumed in the absence of a rational time history investigation of the maneuver.
(b) At V
(c) At V
(d) At V
Bureau of Industry and Security, Commerce.
Final rule.
In this final rule, the Bureau of Industry and Security (BIS) amends the Export Administration Regulations (EAR) to add an entity to the list of validated end-users for the People's Republic of China (PRC) approved to receive exports, reexports and transfers of certain items under Authorization Validated End-User (VEU). Specifically, this rule amends the EAR to add one additional validated end-user and identifies eligible items for export and reexport and transfer (in-country) to one facility in the PRC. In a final rule published in the
This rule is effective January 15, 2010. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis.
You may submit comments, identified by RIN 0694-AE70, by any of the following methods:
Send comments regarding the collection of information associated with this rule, including suggestions for reducing the burden to Jasmeet Seehra, Office of Management and Budget (OMB), by e-mail to
Elizabeth Scott Sangine, Acting Chair, End-User Review Committee, Bureau of Industry and Security, U.S. Department of Commerce, 14th Street & Pennsylvania Avenue, NW., Washington, DC 20230; by telephone (202) 482-3343, or by e-mail to
Consistent with U.S. Government policy to facilitate trade for civilian end-users in the PRC, BIS amended the EAR in a final rule on June 19, 2007 (72 FR 33646) by creating a new authorization for “validated end-users” located in eligible destinations to which eligible items (commodities, software and technology, except those controlled for missile technology or crime control reasons) may be exported, reexported or transferred under a general authorization instead of a license, in conformance with Section 748.15 of the EAR.
Authorization VEU is a mechanism to facilitate increased high-technology exports to companies in eligible destinations that have a record of using such items responsibly. Currently, there are two eligible destinations, the People's Republic of China (PRC) and India. Validated end-users may obtain eligible items that are on the Commerce Control List without having to wait for their suppliers to obtain export licenses from BIS. A wide range of items are eligible for shipment under Authorization VEU. In addition to U.S. exporters, Authorization VEU may be used by foreign reexporters, and does not have an expiration date.
This final rule amends Supplement No. 7 to Part 748 of the EAR to identify an additional company with eligible facilities in the PRC as a validated end-user and to identify the items that may be exported, reexported or transferred to it under Authorization VEU. This new entry is for Grace Semiconductor Manufacturing Corporation. It lists Export Control Classification Numbers (ECCNs) 1C350.c.3, 1C350.d.7, 2B230, 2B350.d.2, 2B350.g.3, 2B350.i.4, 3B001.a.1, 3B001.b, 3B001.c, 3B001.d, 3B001.e, 3B001.f, 3B001.h, 3C002, 3C004, 5B002, and 5E002 (limited to production technology for integrated circuits controlled by ECCNs 5A002 or 5A992 that have been successfully reviewed under the encryption review process specified in sections 740.17(b)(2) or 740.17(b)(3) and 742.15 of the EAR; Note also the guidance on cryptographic interfaces (OCI) in section 740.17(b) of the EAR) under “Eligible Items (By ECCN),” and includes the following facility name and address under “Eligible Destination”: Grace Semiconductor Manufacturing Corporation, 1399 Zuchongzhi Road, Zhangjiang Hi-Tech Park, Shanghai, PR China 20123.
With the publication of this final rule, the total number of validated end-users in the PRC is six, and the total number of eligible facilities in the PRC is sixteen. The validated end-users listed in Supplement No. 7 to Part 748 were reviewed and approved by the U.S. Government in accordance with the provisions of Section 748.15 and Supplement Nos. 8 and 9 to Part 748 of the EAR.
Approving this new end-user as a validated end-user is expected to further facilitate exports to civil end-users in the PRC. Approval of this company also represents a significant savings of time for suppliers and end-users. Authorization VEU will eliminate the burden on exporters and reexporters of preparing license applications and on BIS for processing such applications, as exports and reexports will be made under general authorization instead of under license. This savings will enable exporters and reexporters to supply validated end-users much more quickly, thus enhancing the competitiveness of the exporters, reexporters, and end-users in the PRC.
To ensure appropriate facilitation of exports and reexports, on-site reviews of the validated end-users may be warranted pursuant to paragraph 748.15(a)(2) and Section 7(iv) of Supplement No. 8 to Part 748 of the EAR. If such reviews are warranted, BIS will inform the PRC Ministry of Commerce.
Since August 21, 2001, the Export Administration Act has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp., p. 783 (2002)), as extended most recently by the Notice of August 13, 2009 (74 FR 41325 (Aug. 14, 2009)), has continued the EAR in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222.
1. This final rule has been determined to be not significant for the purposes of Executive Order 12866.
2. Notwithstanding any other provisions of law, no person is required to respond to nor be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
3. This rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.
4. Pursuant to 5 U.S.C. 553(a)(1), notice of proposed rulemaking, the opportunity for public participation and a delay in effective date are inapplicable because this regulation involves a military and foreign affairs function of the United States. Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under the Administrative Procedure Act or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601
Administrative practice and procedure, Exports, Reporting and recordkeeping requirements.
50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701
Pension Benefit Guaranty Corporation.
Final rule.
Pension Benefit Guaranty Corporation's regulation on Benefits Payable in Terminated Single-Employer Plans prescribes interest assumptions for valuing and paying certain benefits under terminating single-employer plans. This final rule amends the benefit payments regulation to adopt interest assumptions for plans with valuation dates in February 2010. Interest assumptions are also published on PBGC's Web site (
Effective February 1, 2010.
Catherine B. Klion, Manager, Regulatory and Policy Division, Legislative and Regulatory Department, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005, 202-326-4024. (TTY/TDD users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4024.)
PBGC's regulations prescribe actuarial assumptions—including interest assumptions—for valuing and paying plan benefits of terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions are intended to reflect current conditions in the financial and annuity markets.
These interest assumptions are found in two PBGC regulations: the regulation on Benefits Payable in Terminated Single-Employer Plans (29 CFR part 4022) and the regulation on Allocation of Assets in Single-Employer Plans (29 CFR part 4044). Assumptions under the asset allocation regulation are updated quarterly; assumptions under the benefit payments regulation are updated monthly. This final rule updates only the assumptions under the benefit payments regulation.
Two sets of interest assumptions are prescribed under the benefit payments regulation: (1) a set for PBGC to use to determine whether a benefit is payable as a lump sum and to determine lump-sum amounts to be paid by PBGC (found in Appendix B to Part 4022), and (2) a set for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using PBGC's historical methodology (found in Appendix C to Part 4022).
This amendment (1) adds to Appendix B to Part 4022 the interest assumptions for PBGC to use for its own lump-sum payments in plans with valuation dates during February 2010, and (2) adds to Appendix C to Part 4022 the interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using PBGC's historical methodology for valuation dates during February 2010.
The interest assumptions that PBGC will use for its own lump-sum payments (set forth in Appendix B to part 4022) will be 2.75 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. In comparison with the interest assumptions in effect for January 2010, these interest assumptions represent an
PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect current market conditions as accurately as possible.
Because of the need to provide immediate guidance for the valuation and payment of benefits in plans with valuation dates during February 2010, PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.
PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.
Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).
Employee benefit plans, Pension insurance, Pensions, Reporting and recordkeeping requirements.
29 U.S.C. 1302, 1322, 1322b, 1341(c)(3)(D), and 1344.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on Lake Havasu, California in support of the Havasu Landing Annual Regatta. This temporary safety zone is necessary to provide for the safety of the participants, crew, spectators, participating vessels, and other vessels and users of the waterway. Persons and vessels are prohibited from entering into, transiting through, or anchoring within this safety zone unless authorized by the Captain of the Port, or his designated representative.
This rule is effective from 8 a.m. until 4 p.m., on January 16 and 17, 2010.
Documents indicated in this preamble as being available in the docket are part of docket USCG-2009-1060 and are available online by going to
If you have questions on this temporary rule, call or e-mail Petty Officer Corey McDonald, Waterways Management, U.S. Coast Guard Sector San Diego, Coast Guard; telephone 619-278-7262, e-mail
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it was impracticable since the logistical details of the race were not finalized nor presented to the Coast Guard in enough time to draft and publish an NPRM. As such, the event would occur before the rulemaking process was complete and immediate action is needed to ensure public safety and ensure non-authorized personnel and vessels remain safe by keeping clear of the hazardous area during the regatta activities.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
This temporary safety zone is established in support of the Havasu Landing Annual Regatta, a marine event that includes participating vessels along an established and marked course on Lake Havasu, CA. This temporary safety zone is necessary to provide for the safety of the crews, spectators, and participants of the race and is also necessary to protect other vessels and users of the waterway.
The Coast Guard is establishing a safety zone that will be enforced from 8 a.m. to 4 p.m. on Saturday January 16, and Sunday January 17, 2010. The limits of this safety zone are as follows: From the California shoreline in position 34°29.40′ N 114°24.12′ W to the northern corner 900 yards east in position 34°29.40′ N 114°23.39′ W to the southern corner 1400 yards south in position 34°29.0′ N 114°23.39′ W to the California shoreline in position 34°29.0′ N 114°24.12′ W.
This safety zone is necessary to ensure non-authorized personnel and vessels remain safe by keeping clear of the hazardous area during the training activities. Persons and vessels are prohibited from entering into, transiting through, or anchoring within this safety zone unless authorized by the Captain of the Port, or his designated representative.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. The safety zone is of a limited duration, only eight hours per day for a period of two days, and is limited to a relatively small geographic area.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. The safety zone will affect the following entities some of which may be small entities: The owners and operators of pleasure craft engaged in recreational activities and sightseeing. This safety zone will not have a significant economic impact on a substantial number of small entities for several reasons: Vessel traffic can pass safely around the area, vessels engaged in recreational activities have ample space outside of the safety zone to engage in these activities, and this safety zone is limited in scope and duration as it is only in effect for eight hours per day for a period of two days.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have Tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This rule involves the establishment of a safety zone.
An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
From the California shoreline in position 34°29.40′ N 114°24.12′ W to the northern corner 900 yards east in position 34°29.40′ N 114°23.39′ W to the southern corner 1400 yards south in position 34°29.0′ N 114°23.39′ W to the California shoreline in position 34°29.0′ N 114°24.12′ W.
(b)
(c)
(d)
(2) Mariners requesting permission to transit through the safety zone may request authorization to do so from the Patrol Commander (PATCOM). The PATCOM may be contacted on VHF-FM Channel 16.
(3) All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated representative.
(4) Upon being hailed by U.S. Coast Guard patrol personnel by siren, radio, flashing light, or other means, the operator of a vessel shall proceed as directed.
(5) The Coast Guard may be assisted by other Federal, State, or local agencies.
Environmental Protection Agency (EPA).
Final rule.
EPA is correcting the state implementation plan (SIP) for the Commonwealth of Kentucky to remove the “Potentially hazardous matter or toxic substances” rule upon request of the Commonwealth of Kentucky made through the Kentucky Division for Air Quality (KDAQ). EPA has determined that this rule—401 Kentucky Administrative Regulations (KAR) 63:020—was erroneously incorporated into the SIP because the rule is not related to the attainment and maintenance of the national ambient air
EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2007-0500. All documents in the docket are listed on the
Lynorae Benjamin, Chief, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 562-9040. Ms. Benjamin can also be reached via electronic mail at
EPA is taking final action to remove 401 KAR 63:020 from the Kentucky SIP. EPA has determined that this rule was erroneously incorporated into the SIP because the rule is not related to the attainment and maintenance of the NAAQS. EPA is correcting this error and removing this rule from the approved Kentucky SIP.
The CAA requires EPA to establish NAAQS for commonly occurring air pollutants that pose public health and welfare threats. These pollutants are known as criteria pollutants. Currently, NAAQS exist for six criteria pollutants—ozone (ground level), particulate matter, carbon monoxide, sulfur dioxide, lead and nitrogen dioxide. Section 110 of the CAA requires states to adopt, and submit to EPA for approval, SIPs to implement, maintain and enforce the NAAQS. Accordingly, SIPs contain the measures used by states to attain and maintain the NAAQS. Consistent with Section 110 of the CAA, provisions approved by EPA as part of a SIP should be related to attainment and maintenance of the NAAQS for the six criteria pollutants. Other pollutants, such as hazardous air pollutants are covered by other provisions of the CAA, such as Section 112, which provides for the direct Federal regulation of hazardous air pollutants.
The first significant amendments to the CAA occurred in 1970 and 1977. Following these amendments, a large number of SIPs were submitted to EPA to fulfill new Federal requirements. In many cases, states and districts submitted their entire programs, including many elements not required pursuant to the CAA. Due to resource constraints during this timeframe, EPA's review of these submittals focused primarily on the required technical, legal, and enforcement elements of the submittals. At the time, EPA did not perform a detailed review of the numerous provisions submitted to determine if each provision was related to the attainment and maintenance of the NAAQS. As a result, some provisions were approved into SIPs erroneously. To correct such errors, EPA has removed the erroneously incorporated provisions from SIPs under the authority of Section 110(k)(6) of the CAA. See
After the 1977 CAA Amendments, the Commonwealth of Kentucky included the “Potentially hazardous matter or toxic substances” rule at 401 KAR 63:020 as part of a voluminous SIP submittal to EPA. EPA approved 401 KAR 63:020 as part of the Kentucky SIP on July 12, 1982, with a September 10, 1982, effective date. 47 FR 30059.
On May 25, 2007, Kentucky, through KDAQ, requested that EPA correct the Kentucky SIP by deleting this rule. In addition, KDAQ has explained to EPA that 401 KAR 63:020 “has never been used by the Cabinet to regulate emissions of any of the six criteria pollutants in any way that is related to the attainment and maintenance of the NAAQS * * * Nor have any reduction credits ever been claimed under this regulation.” (March 31, 2008, letter from John S. Lyons, Director, KDAQ to Beverly Banister, Director, Air, Pesticides, and Toxics Management Division, EPA Region 4) (“March 31st letter”). Instead, Kentucky has “used this rule as a risk-based Screening tool for toxic air emissions and [the rule] has been the authority under which modeling and permit conditions have been imposed.” (March 31st letter). Kentucky has not relied on or attributed any emission reductions from this rule to any NAAQS attainment or maintenance plans required under Section 110 of the CAA. (June 15, 2009, letter from John S. Lyons, Director,
EPA is therefore removing the rule from the approved SIP under the authority of section 110(k)(6) of the CAA. EPA is doing so, because it has determined that this rule is not related to the attainment and maintenance of the NAAQS. This Kentucky rule applies to emissions of potentially hazardous matters or toxic substances,
Section 110(k)(6) provides a process for EPA to correct such errors. Specifically, it provides that: “[w]henever the Administrator determines that the Administrator's action approving, disapproving, or promulgating any plan or plan revision (or part thereof), area designation, redesignation, classification, or reclassification was in error, the Administrator may in the same manner as the approval, disapproval, or promulgation, revise such action as appropriate without requiring any further submission from the State. Such determination and the basis thereof shall be provided to the State and public.” As stated above, EPA previously has relied on Section 110(k)(6) of the CAA to remove provisions that were erroneously incorporated from SIPs.
On October 29, 2007 (72 FR 61087), EPA proposed to remove 401 KAR 63:020 from the approved SIP under the authority of section 110(k)(6) of the CAA. EPA subsequently received comments from one commenter who opposed the proposed correction. In this action, EPA is addressing the adverse comments received and taking final action as described in Section I and Section IV for this rulemaking.
On May 25, 2007, the Commonwealth of Kentucky, through KDAQ, requested that EPA correct the Kentucky SIP to remove 401 KAR 63:020. In an action published on October 31, 2007 (72 FR 61589), EPA proposed to correct the Kentucky SIP through removal of 401 KAR 63:020 from the Kentucky SIP. EPA received comments from one commenter on the October 31, 2007, proposal. The comments are summarized below with EPA responses. EPA is now taking final action under Section 110(k)(6) to remove 401 KAR 63:020 from the Kentucky SIP.
As was explained above, the purpose of SIP-approved rules, consistent with section 110 of the CAA, is to implement a program to attain and maintain the NAAQS. The rule, 401 KAR 63:020, is not directed at attainment or maintenance of any NAAQS. Kentucky uses other rules to regulate criteria pollutants to attain and maintain the NAAQS, and KDAQ has confirmed that it has never used 401 KAR 63:020 to regulate criteria pollutants in any way related to attaining and maintaining the NAAQS. Thus, the commenter's statement that 63:020 “is broadly applicable to any matter emitted in such quantity to be potentially hazardous” does not consider the language in the Kentucky rule which limits its applicability to such emissions that “
The March 31, 2008, and June 15, 2009, letters, and other information provided by KDAQ to EPA responding to comments raised in response to EPA's October 29, 2007, proposal to remove 401 KAR 63:020 from the SIP are available in the docket for the current final action. This information is consistent with KDAQ's position in submitting the May 25, 2007, SIP revision requesting that the rule be removed. In its letters, KDAQ confirmed that this rule has never been used “to regulate the emissions of any of the six criteria pollutants in any way that is related to the attainment and maintenance of the NAAQS” under Section 110 of the CAA.
It should also be noted that EPA's current action does not affect the enforceability or applicability of the rule as a matter of state law. Nothing in today's action in any way alters the
This statement by KDAQ confirms its historical usage of the rule as separate from regulation of criteria pollutants for the purpose of attaining and maintaining the NAAQS, and supports KDAQ's intent in submitting the May 25, 2007, SIP submission. This statement explains that 401 KAR 63:020 was erroneously incorporated into the SIP because it does not relate to the implementation, maintenance, and enforcement of the NAAQS in Kentucky.
EPA is reasonable in relying on information provided by KDAQ about the use of its rule, and has relied on similar information from other states to delete erroneously incorporated provisions from SIPs. See
EPA is now taking final action to remove Kentucky rule 401 KAR 63:020 from the Kentucky SIP pursuant to section 110(k)(6) of the CAA.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR § 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 16, 2010. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See, section 307(b)(2).)
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
Department of Homeland Security, National Protection and Programs Directorate.
Request for comments; withdrawal.
The Department of Homeland Security (DHS or the Department) invites public comment on issues related to certain regulatory provisions in the Chemical Facility Anti-Terrorism Standards (CFATS) that apply to facilities that store gasoline in aboveground storage tanks. In addition, we are withdrawing the version of this document published in the
Written comments must be submitted on or before March 16, 2010.
You may submit comments, identified by docket number DHS-2009-0141, by one of the following methods:
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Todd Klessman, Office of Infrastructure Protection, Infrastructure Security Compliance Division, Mail Stop 8100, Washington, DC 20528, telephone number (703) 235-5263.
DHS invites interested persons to submit written comments, data, or views. For each comment, please identify the document number and agency name for this notice. DHS encourages commenters to provide their names and addresses. You may submit comments and materials electronically or by mail as provided under the
Do not submit comments that include trade secrets, confidential commercial information, Chemical-terrorism Vulnerability Information (CVI) or other sensitive information to the public docket. Please submit such comments separate from other non-sensitive comments regarding this notice. Specifically, please mark any confidential or sensitive comments as containing such information and submit them by mail to the individual listed in the
DHS will not place any confidential or sensitive comments in the public docket; rather, DHS will handle them in accordance with applicable safeguards and restrictions on access.
For access to the docket to read the public comments received and relevant background documents referred to in this notice, go to
Section 550 of the Homeland Security Appropriations Act of 2007 (Pub. L. 109-295, Oct. 2006) required the Department to issue, within six months, interim final regulations for the security of chemical facilities that, “in the Secretary's discretion, present high levels of security risk.” Under that authority, the Department promulgated the Chemical Facility Anti-Terrorism Standards, 6 CFR part 27 (CFATS), on April 9, 2007.
The CFATS interim final rule sought public comment on Appendix A, a tentative list of over 300 chemicals of interest (COI) with the potential to create significant human life or health consequences if released, stolen or, diverted, or sabotaged. Section 27.200(b)(2) of the CFATS regulation requires any chemical facility that possesses any COI at or above the applicable screening threshold quantity (STQ) specified in Appendix A to complete and submit an online data collection (the Top-Screen) to DHS. The Department uses the facility's Top-Screen and, where applicable, other available information to perform a preliminary assessment of the facility's capacity to cause significant adverse consequences if targeted for a terrorist attack.
The Department assigns each facility that is initially determined to be high-risk to a preliminary risk-based tier level (Tiers 1-4, with Tier 1 representing the highest risk) and notifies the facility that it must submit a Security Vulnerability Assessment (SVA) to DHS. The Department uses the SVA to make a final high-risk and tiering determination. Only those facilities that are
DHS issued the final Appendix A on November 20, 2007.
Among other clarifications made in November 2007, DHS added § 27.203, which instructs facilities on when and how to calculate the STQ for certain types of chemicals of interest. With respect to chemicals in gasoline, § 27.203(b)(1)(v) requires facilities to count release-flammable COI (such as butane and pentane) contained
In response to comments requesting that DHS clarify whether and how facilities should count COI in mixtures when calculating whether a facility meets or exceeds the applicable STQ under Appendix A, the November 2007 rule also added § 27.204. That section specifies how to calculate the amount of Release-Toxic, Release-Flammable and Release-Explosive COI (as well as Theft-COI) in chemical mixtures.
The CFATS flammable mixtures rule generally parallels the rules previously adopted by the U.S. Environmental Protection Agency (EPA) under the Clean Air Act's Risk Management Program (RMP) for counting—or excluding—flammable chemicals contained in mixtures that may be inadvertently or accidentally released.
One such difference is that the CFATS flammable mixtures rule requires that Release-Flammable COI (such as butane or pentane) contained in gasoline (and other fuels specified in § 27.203(b)(1)(v)) must be counted under Appendix A, even though EPA does not count the flammable chemicals in gasoline under the terms of the RMP “mixtures rule,” 42 CFR 68.115(b)(2).
Over 36,000 facilities have submitted Top-Screens to DHS and about 6,500 of those facilities were preliminarily determined by DHS to be high-risk and required to submit SVAs. DHS is now in the process of notifying those facilities that, based on review of their SVAs, DHS has finally determined to be high-risk and thus required to submit SSPs. On June 29, 2009, DHS issued final high-risk notifications to 10 aboveground gasoline storage tank facilities (
Soon after promulgation of the November 2007 Appendix A final rule, several trade associations representing gasoline terminals raised both technical and procedural issues related to the applicability of Appendix A and the Top-Screen requirement to those facilities. Procedurally, those associations claimed that DHS did not provide advance notice and opportunity to comment on the provisions of §§ 27.203 and 27.204 related to aboveground fuel storage facilities that DHS added to CFATS in November 2007. Technically, the industry associations claimed that DHS had overestimated the potential consequences of a terrorist attack on gasoline terminals by relying on a model that calculates the impacts of a “vapor cloud explosion” from release of flammable liquids from aboveground storage tanks, which the industry asserted is unrealistic for gasoline terminals.
On May 13, 2009, the International Liquid Terminals Association (ILTA) submitted a petition to DHS under the Administrative Procedure Act requesting that DHS exempt gasoline
In deciding to add provisions to CFATS for counting chemicals of interest in aboveground gasoline storage tanks, DHS considered several possible methods for modeling the potential consequences of terrorist incidents directed at such facilities—
In essence, a VCE model calculates the maximum distance at which a vapor cloud produced by release of flammable chemicals would be harmful or lethal to persons in or near the cloud (the “distance to endpoint”), based on the amount of flammable liquid chemical available, the estimated amount of the liquid that would convert to vapor, and the distance the vapor cloud could spread before becoming too “lean” to explode when exposed to an ignition source.
Since EPA had already developed a VCE model for estimating the consequences of accidental releases of flammable chemicals, including flammable mixtures, under the RMP regulations, DHS used the EPA VCE model as a starting point for modeling potential VCE consequences for all Release-Flammable COIs, including those at gasoline terminals.
Specifically, DHS refined the EPA VCE model to provide an even more plausible estimate of the potential consequences of a terrorist attack on gasoline terminals in particular. While EPA's VCE model assumes that (up to) ten percent of a given amount of a flammable liquid will participate in the explosion (the “yield factor”), DHS assumes that only one percent of gasoline will participate, based on gasoline's combustion properties and its storage at ambient conditions.
DHS understands that the formation of a gasoline vapor cloud with the potential to cause significant harm to human life and health requires that a number of natural and man-made circumstances combine in a certain way, and that accidental gasoline vapor cloud explosions are therefore uncommon. DHS has determined, however, that those necessary conditions are more likely to exist in the event of an intentional terrorist incident than in the context of an accident, and thus, that it is reasonable and within the Secretary's discretion under Section 550 to apply the modified VCE model to gasoline terminals.
For example, in 2005 (long after EPA excluded gasoline from the RMP rule,
DHS has concluded, however, that a terrorist seeking to cause such an explosion could target a facility where the necessary physical conditions exist (or are likely to occur at some point in time). In order to maximize the consequences of the explosion, such a terrorist could attempt to cause gasoline to leak or overflow from the targeted tank(s) in such a way as to make formation of a vapor cloud more likely than it would be in an accident like the Buncefield explosion.
Nonetheless, DHS invites public comment on the modified VCE model and on any alternatives to the specific modification made by DHS to the yield factor in the model.
DHS considered other options for evaluating the potential consequences of a release from such facilities. Specifically, DHS considered an existing model that calculates the potential consequences from the radiated heat of a “pool fire” caused by ignition of liquid gasoline suddenly released from one or more aboveground tanks, but that implicitly assumes the pool fire is confined within dikes or other secondary containment surrounding the tank(s).
DHS did not rely on the “contained pool fire” scenario, however, because any model that assumes the effectiveness of secondary containment does not represent a plausible, worst-case terrorist scenario, since an adversary seeking to maximize the consequences of attacking a terminal would also attempt to breach the secondary containment.
DHS is currently considering, however, and seeks comments on, whether it is feasible to refine existing models or develop a new model for
Comments that will provide the most assistance to DHS should address the following issues and questions. Commenters should include explanations and relevant supporting materials with their comments whenever possible.
a. Comments on the inclusion of 6 CFR 27.203(b)(1)(v) (counting of Release-COI in gasoline, diesel, kerosene, or jet fuel in aboveground storage tanks) and 6 CFR 27.204(a)(2) (the flammable mixtures rule), as they apply to gasoline terminals.
b. Comments on the applicability of the modified VCE model to gasoline terminals, including: Whether the reduction of the vapor yield for gasoline from ten percent (as in EPA's VCE model) to one percent reasonably reflects the potential consequences for a vapor cloud explosion from gasoline (as compared to other liquid flammable chemicals); and whether a different yield factor adjustment might better reflect the potential consequences for a vapor cloud explosion from gasoline.
c. Comments on whether a reasonable model exists or should be developed for future use that would allow DHS to estimate the plausible worst-case consequences of an uncontained pool fire resulting from a successful attack on gasoline terminals.
Forest Service, Agriculture; Fish and Wildlife Service, Interior.
Proposed rule.
This proposed rule would establish regulations for fishing seasons, harvest limits, methods and means related to taking of fish and shellfish for subsistence uses during the 2011-2012 and 2012-2013 regulatory years. The Federal Subsistence Board is presently on a schedule of completing the process of revising subsistence taking of fish and shellfish regulations in odd-numbered years and subsistence taking of wildlife regulations in even-numbered years; public proposal and review processes take place during the preceding year. The Board also addresses customary and traditional use determinations during the applicable cycle. When final, the resulting rulemaking will replace the existing subsistence fish taking regulations, which expire on March 31, 2011. Future rules will not have expiration dates but will be revised according to the applicable cycle. This rule would also amend the customary and traditional use determinations of the Federal Subsistence Board and the general regulations on subsistence taking of fish and wildlife.
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We will post all comments on
Chair, Federal Subsistence Board, c/o U.S. Fish and Wildlife Service, Attention: Peter J. Probasco, Office of Subsistence Management; (907) 786-3888 or
Under Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) (16 U.S.C. 3111-3126), the Secretary of the Interior and the
Consistent with subpart B of these regulations, the Secretaries established a Federal Subsistence Board to administer the Federal Subsistence Management Program. The Board is made up of:
• A Chair appointed by the Secretary of the Interior with concurrence of the Secretary of Agriculture;
• The Alaska Regional Director, U.S. Fish and Wildlife Service;
• The Alaska Regional Director, U.S. National Park Service;
• The Alaska State Director, U.S. Bureau of Land Management;
• The Alaska Regional Director, U.S. Bureau of Indian Affairs; and
• The Alaska Regional Forester, U.S. Forest Service.
Through the Board, these agencies participate in the development of regulations for subparts A, B, and C, which set forth the basic program, and the subpart D regulations, which, among other things, set forth specific harvest seasons and limits.
In administering the program, the Secretaries divided Alaska into 10 subsistence resource regions, each of which is represented by a Regional Council. The Regional Councils provide a forum for rural residents with personal knowledge of local conditions and resource requirements to have a meaningful role in the subsistence management of fish and wildlife on Federal public lands in Alaska. The Regional Council members represent varied geographical, cultural, and user diversity within each region.
The Regional Councils have a substantial role in reviewing this proposed rule and making recommendations for the final rule. The Federal Subsistence Board, through the Regional Councils, will hold meetings on this proposed rule at the following locations in Alaska, on the following dates:
During April 2010, the written proposals to change the subpart D, take of fish and shellfish, regulations and subpart C, customary and traditional use, determinations will be compiled and distributed for public review. During the 30-day public comment period, which is presently scheduled to end on May 14, 2010, written public comments will be accepted on the distributed proposals.
The Board, through the Regional Councils, will hold a second series of meetings in August through October 2010, to receive comments on specific proposals and to develop recommendations to the Board at the following locations in Alaska, on the following dates:
A notice will be published of specific dates, times, and meeting locations in local and statewide newspapers prior to both series of meetings. Locations and dates may change based on weather or local circumstances. The amount of work on each Regional Council's agenda determines the length of each Regional Council meeting.
The Board will discuss and evaluate proposed changes to the subsistence management regulations during a public meeting scheduled to be held in Anchorage, AK, on January 18, 2011. The Council Chairs, or their designated representatives, will present their respective Councils' recommendations at the Board meeting. Additional oral testimony may be provided on specific proposals before the Board at that time. At that public meeting, the Board will deliberate and take final action on proposals received that request changes to this proposed rule.
Proposals to the Board to modify fisheries harvest regulations and customary and traditional use determinations must include the following information:
a. Name, address, and telephone number of the requestor;
b. Each section and/or paragraph designation in this proposed rule for which changes are suggested;
c. A statement explaining why each change is necessary;
d. Proposed wording changes; and
e. Any additional information that you believe will help the Board in evaluating the proposed change.
The Board rejects proposals that fail to include the above information, or proposals that are beyond the scope of authorities in § __.24, subpart C (the regulations governing customary and traditional use determinations), and §§ __.27, and __.28, subpart D (the specific regulations governing the subsistence take of fish and shellfish). During the January 18, 2011 meeting, the Board may defer review and action on some proposals to allow time for local cooperative planning efforts, or to acquire additional needed information. The Board may elect to defer taking action on any given proposal if the workload of staff, Regional Councils, or the Board becomes excessive. These deferrals may be based on recommendations by the affected Regional Council(s) or staff members, or on the basis of the Board's intention to do least harm to the subsistence user and the resource involved. The Board may consider and act on alternatives that address the intent of a proposal while differing in approach.
As expressed in Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments,” the Federal officials that have been delegated authority by the Secretaries are committed to honoring the unique government-to-government political relationship that exists between the Federal Government and Federally Recognized Indian Tribes (Tribes) as listed in 73 FR 18553 (April 4, 2008). The Alaska National Interest Lands Conservation Act does not specifically provide rights to Tribes for the subsistence taking of wildlife, fish, and shellfish. However, because Tribal members are affected by subsistence fishing, hunting, and trapping regulations, the Secretaries have elected to provide Tribes an opportunity to consult on this rule.
The Secretaries will engage in outreach efforts for this rule, including a notification letter, to ensure that Tribes are advised of the mechanisms by which they can participate. The Board provides a variety of opportunities for consultation: Proposing changes to the existing rule; commenting on proposed changes to the existing rule; engaging in dialogue at the Regional Advisory Council meetings; engaging in dialogue at the Board's meetings; and providing input in person, by mail, e-mail, or phone at any time during the rulemaking process. The Secretaries will commit to efficiently and adequately reviewing the government-to-government consultation process with regard to subsistence rulemaking.
The Board will consider Tribes' information, input, and recommendations, and address their concerns as much as practicable. However, in keeping with ANILCA § 805(c), the Board will follow recommendations of the Regional Advisory Councils for the taking of fish and wildlife unless their recommendation is determined to be not supported by substantial evidence, violates recognized principles of fish and wildlife conservation, or would be detrimental to the satisfaction of subsistence needs. The Board will inform the Tribes how their recommendations were considered.
Subpart D regulations are subject to periodic review and revision. The Federal Subsistence Board currently completes the process of revising subsistence take of fish and shellfish regulations in odd-numbered years and subsistence take of wildlife regulations in even-numbered years; public proposal and review processes take place during the preceding year. The Board also addresses customary and traditional use determinations during the applicable cycle.
The text of the final rule published March 30, 2009 (74 FR 14049) for the 2009-11 subparts C and D regulations is the text of this proposed rule. The regulations established in that final rule are set to expire March 31, 2011. However, those regulations will remain in effect on April 1, 2011, unless subsequent Board action changes elements as a result of the public review process outlined above in this document.
A Draft Environmental Impact Statement that described four alternatives for developing a Federal Subsistence Management Program was distributed for public comment on October 7, 1991. The Final Environmental Impact Statement (FEIS) was published on February 28, 1992. The Record of Decision (ROD) on Subsistence Management for Federal Public Lands in Alaska was signed April 6, 1992. The selected alternative in the FEIS (Alternative IV) defined the administrative framework of an annual regulatory cycle for subsistence regulations.
A 1997 environmental assessment dealt with the expansion of Federal jurisdiction over fisheries and is available at the office listed under
An ANILCA Section 810 analysis was completed as part of the FEIS process on the Federal Subsistence Management Program. The intent of all Federal subsistence regulations is to accord subsistence uses of fish and wildlife on public lands a priority over the taking of fish and wildlife on such lands for other purposes, unless restriction is necessary to conserve healthy fish and wildlife populations. The final section 810 analysis determination appeared in the April 6, 1992, ROD and concluded that the Federal Subsistence Management Program, under Alternative IV with an annual process for setting subsistence regulations, may have some local impacts on subsistence uses, but will not likely restrict subsistence uses significantly.
During the subsequent environmental assessment process for extending fisheries jurisdiction, an evaluation of the effects of this rule was conducted in accordance with section 810. That evaluation also supported the Secretaries' determination that the rule will not reach the “may significantly restrict” threshold that would require notice and hearings under ANILCA section 810(a).
An agency may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. This proposed rule does not contain any new collections of information that require OMB approval. OMB has reviewed and approved the following collections of information associated with the subsistence regulations at 36 CFR 242 and 50 CFR 100:
(1) Subsistence hunting and fishing applications, permits, and reports (OMB Control No. 1018-0075 expires December 31, 2009).
(2) Federal Subsistence Regional Advisory Council Membership
The Office of Management and Budget (OMB) has determined that this rule is not significant and has not reviewed this rule under Executive Order 12866. OMB bases its determination upon the following four criteria:
(a) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other agencies' actions.
(c) Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.
(d) Whether the rule raises novel legal or policy issues.
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601
Under the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801
Title VIII of ANILCA requires the Secretaries to administer a subsistence priority on public lands. The scope of this program is limited by definition to certain public lands. Likewise, these regulations have no potential takings of private property implications as defined by Executive Order 12630.
The Secretaries have determined and certify pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502
The Secretaries have determined that these regulations meet the applicable standards provided in Sections 3(a) and 3(b)(2) of Executive Order 12988, regarding civil justice reform.
In accordance with Executive Order 13132, the rule does not have sufficient Federalism implications to warrant the preparation of a Federalism Assessment. Title VIII of ANILCA precludes the State from exercising subsistence management authority over fish and wildlife resources on Federal lands unless it meets certain requirements.
The Alaska National Interest Lands Conservation Act does not specifically provide rights to Tribes for the subsistence taking of wildlife, fish, and shellfish. However, the Secretaries have elected to provide Tribes an opportunity to consult on this rule. The Board will provide a variety of opportunities for consultation through: proposing changes to the existing rule; commenting on proposed changes to the existing rule; engaging in dialogue at the Regional Advisory Council meetings; engaging in dialogue at the Board's meetings; and providing input in person, by mail, e-mail, or phone at any time during the rulemaking process.
This Executive Order requires agencies to prepare Statements of Energy Effects when undertaking certain actions. However, this rule is not a significant regulatory action under E.O. 13211, affecting energy supply, distribution, or use, and no Statement of Energy Effects is required.
Theo Matuskowitz drafted these regulations under the guidance of Peter J. Probasco of the Office of Subsistence Management, Alaska Regional Office, U.S. Fish and Wildlife Service, Anchorage, Alaska. Additional assistance was provided by:
• Daniel Sharp, Alaska State Office, Bureau of Land Management;
• Sandy Rabinowitch and Nancy Swanton, Alaska Regional Office, National Park Service;
• Drs. Warren Eastland and Glenn Chen, Alaska Regional Office, Bureau of Indian Affairs;
• Jerry Berg and Carl Jack, Alaska Regional Office, U.S. Fish and Wildlife Service; and
• Calvin H. Casipit, Alaska Regional Office, U.S. Forest Service.
Administrative practice and procedure, Alaska, Fish, National forests, Public lands, Reporting and recordkeeping requirements, Wildlife.
Administrative practice and procedure, Alaska, Fish, National forests, Public lands, Reporting and recordkeeping requirements, Wildlife.
For the reasons set out in the preamble, the Federal Subsistence Board proposes to amend 36 CFR 242 and 50 CFR 100 for the 2011-12 and 2012-13 regulatory years. The text of the proposed amendments to 36 CFR 242.24, 242.27, and 242.28 and 50 CFR 100.24, 100.27, and 100.28 is the final rule for the 2009-11 regulatory period (74 FR 14049; March 30, 2009), as modified by any subsequent Federal Subsistence Board action.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve a revision to the Delaware State Implementation Plan (SIP) to meet the reasonable further progress (RFP) requirements of the Clean Air Act (CAA) for the Delaware portion of the Philadelphia 1997 8-hour ozone moderate nonattainment area. EPA is also proposing to approve the RFP motor vehicle emissions budgets (MVEBs), the 2002 base year emissions inventory, contingency measures, and the reasonably available control measure (RACM) analysis associated with this revision. EPA is proposing to approve the SIP revision because it satisfies RFP, emissions inventory, contingency measures, RFP transportation conformity, and RACM requirements for the 1997 8-hour ozone national ambient air quality standard (NAAQS) nonattainment areas classified as moderate and demonstrates further progress in reducing ozone precursors. EPA is proposing to approve the SIP revision pursuant to section 110 and part D of the CAA and EPA's regulations.
Written comments must be received on or before February 16, 2010.
Submit your comments, identified by Docket ID Number EPA-R03-OAR-2009-0712 by one of the following methods:
A.
B.
C.
D.
Rose Quinto, (215) 814-2182, or by e-mail at
Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA.
The following is provided to aid in locating information in this document.
EPA is proposing to approve a revision to the Delaware SIP submitted by the Delaware Department of Natural Resources and Environmental Control (DNREC) on June 13, 2007, to meet the emissions inventory and RFP requirements of the CAA for the Delaware portion of the Philadelphia 1997 8-hour ozone moderate nonattainment area. EPA is proposing to approve the 2002 base year emissions inventory, the 15 percent RFP plan, the RFP 2008 MVEBs, contingency measures, and RACM analysis. The RFP plan demonstrates that emissions will be reduced 15 percent for the period of 2002 through 2008. The volatile organic compound (VOC) MVEBs is 21.84 tons per day (tpd) and the nitrogen oxides (NOx) MVEBs is 43.89 tpd. EPA is proposing to approve the SIP revision pursuant to section 110 and part D of the CAA and EPA regulations.
In 1997, EPA revised the health-based NAAQS for ozone, setting it at 0.08 parts per million (ppm) averaged over an 8-hour time frame. EPA set the 8-hour ozone standard based on scientific evidence demonstrating that ozone causes adverse health effects at lower ozone concentrations and over longer periods of time, than was understood when the pre-existing 1-hour ozone standard was set. EPA determined that the 8-hour standard would be more protective of human health, especially children and adults who are active outdoors, and individuals with a pre-existing respiratory disease, such as asthma.
On April 30, 2004 (69 FR 23951), EPA finalized its attainment/nonattainment designations for areas across the country with respect to the 8-hour ozone standard. These actions became effective on June 15, 2004. Among those nonattainment areas is the Philadelphia-Wilmington-Atlantic City (PA-NJ-MD-DE) moderate nonattainment area
These designations triggered the CAA's section 110(a)(1) requirement that States must submit attainment demonstrations for their nonattainment areas to EPA by no later than three years after the promulgation of a NAAQS. Accordingly, EPA's Phase 1 8-hour ozone implementation rule (Phase 1 rule), published on April 30, 2004 (69 FR 23951) specifies that States must submit attainment demonstrations for their nonattainment areas to EPA by no later than three years from the effective date of designation, that is, by June 15, 2007.
Pursuant to the Phase 1 rule, an area was classified under subpart 2 of the CAA based on its 8-hour design value if that area had a 1-hour design value at or above 0.121 ppm (the lowest 1-hour design value in Table 1 of subpart 2). Based on this criterion, Delaware, as part of the Philadelphia nonattainment area was classified under subpart 2 as a moderate nonattainment area. On November 29, 2005 (70 FR 71612), as revised on June 7, 2007 (72 FR 31727), EPA published the Phase 2 final rule for implementation of the 8-hour standard (Phase 2 rule) that addressed the RFP control and planning obligations as they apply to areas designated nonattainment for the 1997 8-hour ozone NAAQS. The Phase 1 and 2 rules outline the SIP requirements and deadlines for various requirements in areas designated as moderate nonattainment. For such areas, reasonably available control technology (RACT) plans were due by September 2006 (40 CFR 51.912(a)(2)). The rules further require that modeling and attainment demonstrations, RFP plans, RACM, projection year emission inventories, motor vehicle emissions budgets, and contingency measures were all due by June 15, 2007 (40 CFR 51.908(a), (c)).
Section 182(b)(1) of the CAA and EPA's 1997 8-hour ozone implementation rule (40 CFR 51.910) require each 8-hour ozone nonattainment area designated moderate and above to submit an emissions inventory and RFP Plan, for review and approval into its SIP, that describes how the area will achieve actual emissions reductions of VOC and NOx from a baseline emissions inventory.
EPA's analysis and findings are discussed in this proposed rulemaking and a more detailed discussion is contained in the Technical Support Document for this Proposal which is available on line at
After completing the appropriate public notice and comment procedures, Delaware made several submittals in order to address the CAA's 8-hour ozone attainment requirements. On October 2, 2006, Delaware submitted a RACT SIP revision which certifies that all relevant RACT controls have been implemented in Delaware for attaining the 8-hour ozone standard. EPA approved Delaware's 8-hour RACT SIP revision on July 23, 2008 (73 FR 42681). On May 2, 2007, Delaware submitted a new VOC control from crude oil lightering operations. EPA approved this rule on September 13, 2007 (72 FR 52285). On June 13, 2007, Delaware submitted a comprehensive 8-hour ozone SIP. The SIP submittal included an attainment demonstration plan, RFP plans for 2008 and 2009, RACM analysis, contingency measures, on-road motor vehicle emission budgets, and the 2002 base year emissions inventory. These SIP revisions were subject to notice and comment by the public and the State addressed the comments received on the proposed SIPs. All sections of this SIP submittal with the exception of the attainment demonstration plan will be discussed in this rulemaking. The attainment demonstration plan sections of this SIP submittal will be discussed in a separate rulemaking.
An emissions inventory is a comprehensive, accurate, current inventory of actual emissions from all sources and is required by section 172(c)(3) of the CAA. For ozone nonattainment areas, the emissions inventory needs to contain VOC and NO
The process for determining the emissions baseline from which the RFP reductions are calculated, is described in section 182(b)(1) of the CAA and 40 CFR 51.910. This baseline value has been determined to be the 2002 adjusted base year inventory. Sections 182(b)(1)(B) and (D) require the exclusion from the base year inventory of emissions benefits resulting from the Federal Motor Vehicle Control Program (FMVCP) regulations promulgated by January 1, 1990, and the Reid Vapor Pressure (RVP) regulations promulgated June 11, 1990 (55 FR 23666). The FMVCP and RVP emissions reductions are determined by the State using EPA's on-road mobile source emissions modeling software, MOBILE6. The FMVCP and RVP emission reductions are then removed from the base year inventory by the State, resulting in an adjusted base year inventory. The emission reductions needed to satisfy the RFP requirement are then calculated from the adjusted base year inventory. These reductions are then subtracted from the adjusted base year inventory to establish the emissions target for the RFP milestone year (2008).
For moderate areas like the Philadelphia nonattainment area, the CAA specifies a 15 percent reduction in ozone precursor emissions over an initial six year period. In the Phase 2 rule, EPA interpreted this requirement for areas that were also designated nonattainment and classified as moderate or higher for the 1-hour ozone standard. Also in the Phase 2 rule, EPA provided that an area classified as moderate or higher that has the same boundaries as an area, or is entirely composed of several areas or portions of areas, for which EPA fully approved a 15 percent plan for the 1-hour NAAQS, is considered to have met the requirements of section 182(b)(1) of the CAA for the 8-hour NAAQS. In this situation, a moderate nonattainment area is subject to RFP under section 172(c)(2) of the CAA and shall submit, no later than 3 years after designation for the 8-hour NAAQS, a SIP revision that meets the requirements of 40 CFR 51.910(b)(2). The RFP SIP revision must provide for a 15 percent emission reduction (either NO
According to EPA's Phase 2 rule, Delaware must achieve 15 percent VOC emission reduction in Sussex County from its 2002 baseline level, and 15 percent VOC and/or NO
According to section 182(b)(1)(D) of the CAA, emission reductions that resulted from the FMVCP and RVP rules promulgated prior to 1990 are not creditable for achieving RFP emission reductions. Therefore, the 2002 base year inventory is adjusted by subtracting the VOC and NO
The mobile source adjustments in Tables 3 and 4 are the non-creditable emission reductions due to the pre-1990 FMVCP and RVP rules. Subtracting these adjustments from the 2002 base year emissions inventory (
By the end of 2008, Delaware is required to reduce 15 percent in its 2002 adjusted base year emissions inventory. According to the Phase 2 rule, Sussex County must achieve this 15 percent reduction in its VOC emission, since it did not have a 15 percent VOC rate-of-progress plan approved by EPA under the 1-hour ozone standard. For Kent and New Castle Counties, their 15 percent emission reductions can be achieved form VOC emissions and/or from NO
The 15 percent VOC emission reduction and emission target in 2008 in Sussex County are calculated as follows:
The 15 percent VOC emission reduction and emission target in 2008 in Kent and New Castle Counties are calculated as follows:
The only post-2002 point source VOC control in Sussex County is Regulation No. 24, Section 46, Control of Crude Oil Lightering Operations. Since there will be no new VOC controls for point sources, non-point source sector, and non-road mobile source sector for VOC emissions between 2008 and 2009, Delaware's 2008 emission reductions and projections are estimated by interpolating the 2002 base year emissions and the 2009 projections. Kent and New Castle Counties applied for and obtained total VOC and NO
The total VOC emission projection meets the 2008 emission target under the 15 percent RFP requirements (33.00 tpd). Therefore, the 2008 RFP in Sussex County is demonstrated.
The total VOC emission projection meets the 2008 emission target under the 15 percent RFP requirements (61.66 tpd). Therefore, the 2008 RFP in Kent and New Castle Counties is demonstrated.
The CAA requires States with nonattainment areas to implement specific control measures if the area fails to make reasonable further progress. This CAA provision is a requirement for States with moderate and above ozone nonattainment areas to include sufficient contingency measures in their RFP so that, upon implementation of such measures, additional emission reductions of at least 3 percent of the adjusted 2002 baseline emissions would be achieved. Under the same provision of the CAA, EPA also requires that the contingency measures must be fully adopted control measures or rules, so that upon failure to meet milestone requirements, the contingency measures can be implemented without any further rulemaking activities by the States and/or EPA. For more information on contingency measures, see the April 16, 1992 General Preamble (57 FR 13512) and the November 29, 2005 Phase 2 8-hour ozone implementation rule (70 FR 71612).
To meet the requirements for contingency emission reductions, EPA allows States to use NO
Based on the CAA and EPA requirements on contingency measures, the contingency VOC reduction for Delaware for the 2008 milestone year is as follows: the 2002 VOC baseline (statewide) adjusted to 2008 (see Tables 6 and 7 in this document) is 111.36 tpd, therefore, contingency VOC emission reduction in 2008 is 111.36 multiplied by 3 percent = 3.34 tpd.
Analysis in Chapter 5.5, page 29 of the Delaware SIP, indicates that the three counties in Delaware will have a VOC emission reduction surplus of 1.82 tpd in 2008 [
Delaware's 2002 VOC-to-NO
Delaware has implemented numerous controls leading to NO
Pursuant to section 172(c)(1) of the CAA, States are required to implement all RACM as expeditiously as practicable. Specifically, section 172(c)(1) states the following: “In general—Such plan provisions shall provide for the implementation of all reasonably available control measures as expeditiously as practicable (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology) and shall provide for attainment of the national primary ambient air quality standards.”
Furthermore, in EPA's Phase 2 rule, EPA describes how States must include with their attainment demonstration a RACM analysis (70 FR 71659). The purpose of the RACM analysis is to determine whether or not reasonably available control measures exist that would advance the attainment date for nonattainment areas. Control measures that would advance the attainment date are considered RACM and must be included in the SIP. RACM are necessary to ensure that the attainment date is achieved “as expeditious as practicable.”
Control measures under RACT constitute a major group of RACM control measures for stationary sources. To meet the CAA's RACT requirements under the 8-hour ozone standard, Delaware submitted a RACT SIP revision on October 2, 2006, which certifies that all relevant RACT controls have been implemented in Delaware for attaining the 8-hour ozone standard. EPA approved Delaware's 8-hour RACT SIP revision on July 23, 2008 (73 FR 42681). On May 2, 2007, Delaware submitted a new VOC control from crude oil lightering operations. EPA approved this rule on September 13, 2007 (72 FR 52285). In addition to those RACT control measures, Delaware adopted a number of other VOC and NO
Section 176 of the CAA requires that highway transportation activities in ozone nonattainment areas must: (1) Establish in their SIP, mobile source VOC and NO
The mobile emission budgets for 2008 RFP milestone are based on the projected 2008 mobile source emissions, accounting for all relevant mobile source controls including all Federal controls and Delaware specific controls. The 2008 mobile emissions are projected using EPA's MOBILE6.2 for obtaining emission factors and the “Peninsula Travel Demand Model” for predicting future VMT. Table 9 is a summary of the 2008 VOC and NO
On March 21, 2008, EPA posted the availability of these budgets for Delaware on EPA's conformity Web site for the purpose of soliciting public comments. The public comment period closed on April 21, 2008 and no comments were received. On December 19, 2008 (73 FR 77682), EPA published a notice of adequacy for the Delaware 2008 RFP MVEBs. In this notice, EPA found that Delaware's RFP MVEBs are adequate for transportation conformity purposes. As a result of EPA's finding, Delaware shall use the MVEBs from the June 13, 2007 RFP plan for future conformity determinations for the 8-hour standard.
EPA is proposing approval of the Delaware's SIP revision to meet the RFP requirements of the CAA for the Delaware portion of the Philadelphia 1997 8-hour ozone moderate nonattainment area. EPA is also proposing approval of the RFP MVEBs, the 2002 base year emissions inventory, contingency measures, and RACM analysis associated with this revision. EPA is proposing approval of the SIP revision because it satisfies RFP, emissions inventory, RFP transportation conformity, contingency measures, and RACM requirements for the 1997 8-hour ozone nonattainment areas classified as moderate and demonstrates further progress in reducing ozone precursors.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed rule pertaining to Delaware's RFP Plan, 2002 base year emissions inventory, contingency measures, RACM analysis, and transportation conformity budgets, does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Carbon monoxide, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
Defense Acquisition Regulations System, Department of Defense (DoD).
Proposed rule with request for comments.
DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to improve the effectiveness of DoD oversight of contractor business systems.
Interested parties should submit comments in writing to the address shown below on or before March 16, 2010.
You may submit comments, identified by DFARS Case 2009-D038, using any of the following methods:
Mr. Mark Gomersall, 703-602-0302.
Contractor business systems and internal controls are the first line of defense against waste, fraud, and abuse. Weak control systems increase the risk of unallowable and unreasonable costs on Government contracts. To improve the effectiveness of Defense Contract Management Agency (DCMA) and Defense Contract Audit Agency (DCAA) oversight of contractor business systems, DoD is considering a rule to clarify the definition and administration of contractor business systems as follows:
1. DoD is proposing to define contractor business systems as accounting systems, estimating systems, purchasing systems, earned value management systems (EVMS), material management and accounting systems (MMAS), and property management systems.
2. DoD is proposing to implement compliance enforcement mechanisms in the form of a business systems clause which includes payment withholding that allows administrative contracting officers to withhold a percentage of payments, under certain conditions, when a contractor's business system contains deficiencies. Under such circumstances, payments could be withheld on—
• Interim payments under—
○ Cost reimbursement contracts;
○ Incentive type contracts;
○ Time-and-materials contracts;
○ Labor-hour contracts;
• Progress payments; and
• Performance-based payments.
This is not a significant regulatory action and therefore was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
DoD has prepared an initial regulatory flexibility analysis consistent with 5 U.S.C. 603. A copy of the analysis may be obtained from the point of contact specified herein. The analysis is summarized as follows:
The objective of the rule is to establish a definition for contractor business systems and implement compliance mechanisms to improve DoD oversight of those contractor business systems. The requirements of the rule will apply to entities contractually required to maintain one or more of the defined contractor business systems.
At this time DoD is unable to estimate the number of small entities to which this rule will apply. Therefore, DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.
DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2009-D038) in correspondence.
The Paperwork Reduction Act (44 U.S.C. chapter 35) applies because the
The business systems clause in this proposed rule contains a requirement for contractors to respond to initial and final determinations of deficiencies. The information that contractors will be required to submit to respond to deficiencies in four of the six business systems defined in this rule has been approved by the Office of Management and Budget (OMB) as follows:
(1) Accounting Systems—OMB Clearance 9000-0011;
(2) Estimating Systems—OMB Clearance 0704-0232;
(3) MMAS—OMB Clearance 0704-0250; and
(4) Purchasing Systems—OMB Clearance 0704-0253.
DoD is also proposing a new information collection requirement as follows:
The information that contractors will be required to submit to respond to deficiencies in contractors' EVMS is estimated as follows:
The information that contractors will be required to submit to respond to deficiencies in contractors' property management systems is estimated as follows:
Written comments and recommendations on the proposed information collection should be sent to Ms. Jasmeet Seehra at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503, with a copy to the Defense Acquisition Regulations System, Attn: Mr. Mark Gomersall, OUSD (AT&L) DPAP (DARS), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062. Comments can be received from 30 to 60 days after the date of this notice, but comments to OMB will be most useful if received by OMB within 30 days after the date of this notice.
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Defense Acquisition Regulations System, Attn: Mr. Mark Gomersall, OUSD (AT&L) DPAP (DARS), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062.
Government procurement.
Therefore, DoD proposes to amend 48 CFR parts 215, 234, 242, 244, and 252 as follows:
1. The authority citation for 48 CFR parts 215, 234, 242, 244, and 252 continues to read as follows:
41 U.S.C. 421 and 48 CFR Chapter 1.
2. Amend section 215.407-5-70 by:
a. Revising paragraphs (a)(4), (c)(3), and (d);
b. Removing paragraphs (e) and (f);
c. Redesignating paragraph (g) as paragraph (e);
d. Adding new paragraphs (f), (g), and (h) to read as follows:
(a) * * *
(4)
(c) * * *
(3) The auditor conducts estimating system reviews.
(d)
(2)
(f) The ACO, in consultation with the auditor, shall—
(1) Approve the system; and
(2) Pursue correction of any system deficiencies.
(g)
(2)
(i) Provide a notification of any system deficiencies to the contractor, evaluate contractor responses, and make determinations to disapprove the system in accordance with the clause at 252.215-7002, Cost Estimating System Requirements;
(ii) Withhold payments in accordance with 252.242-7XXX, Business Systems, if applicable; and
(iii) Follow the procedures at 252.215-7002, Cost Estimating System Requirements and PGI 215.407-5-70(g) for disposition of estimating system deficiencies.
(h) The ACO shall approve the estimating system when the ACO determines that the contractor has substantially corrected the system deficiencies. The ACO shall notify the contractor, auditor, payment office, appropriate action officers responsible for reporting past performance at the requiring activities, and affected contracting and contract administration activities of the system approval and the ACO's decision, as appropriate, to reduce or discontinue the withholding of payments in accordance with 252.242-7XXX, Business Systems.
2. Amend section 234.201 by adding paragraphs (5), (6), and (7) to read as follows:
(5) The cognizant ACO shall—
(i) Determine whether the contractor is compliant with the contractual EVMS requirements; and
(ii) Pursue correction of any noncompliance with the contractual EVMS requirements.
(6)
(ii)
(A) Provide a notification of system deficiencies to the contractor, evaluate contractor responses, and make determinations of noncompliance in accordance with the clause at 252.234-7002, Earned Value Management System;
(B) Withhold payments in accordance with 252.242-7XXX, Business Systems, if applicable; and
(C) Follow the procedures at 252.234-7002(h), Earned Value Management System, and PGI 234.201 for disposition of EVMS deficiencies.
(7)
3. Add subpart 242.70 to read as follows:
(a)
(b)
(1)
(2)
(3)
(i) Withdraw the initial determination of deficiencies. The ACO shall withdraw the initial notification if the contractor has corrected all deficiencies or the ACO agrees with the contractor's written response disagreeing with the initial determination of deficiencies; or
(ii) The ACO shall notify the contractor of the ACO's decision to implement payment withholding in accordance with the clause at 252.242-7XXX, Business Systems. The notice shall—
(A) Identify any deficiencies requiring correction;
(B) Inform the contractor that—
(
(
(
(
(c)
(d)
(1) If the contractor notifies the ACO that the contractor has corrected the system deficiencies, the ACO shall request the auditor or other cognizant functional specialist to review the correction to determine if the deficiencies have been resolved.
(2) The ACO shall determine if the contractor has corrected the deficiencies.
(3) If the ACO determines the contractor has corrected all deficiencies, the ACO shall discontinue withholding payments.
(e)
Use the clause at 252.242-XXXX, Business Systems, in solicitations and contracts when the solicitation or contract includes any of the following clauses:
(a) 52.244-2, Subcontracts.
(b) 52.245-1, Government Property.
(c) 252.215-7002, Cost Estimating System Requirements.
(d) 252.234-7002, Earned Value Management System.
(e) 252.242-7004, Material Management and Accounting System.
(f) 252.242-7YYY, Accounting System Administration.
4. Amend section 242.7203 by:
a. Removing paragraph (c);
b. Redesignating paragraph (d) as paragraph (c); and c. Revising the newly designated paragraph (c) to read as follows:
(c)
(2)
(i) Provide a notification of system deficiencies to the contractor, evaluate contractor responses, and make determinations to disapprove the system in accordance with the clause at 252.242-7004, Material Management and Accounting System;
(ii) Withhold payments in accordance with 252.242-7XXX, Business Systems, if applicable; and
(iii) Follow the procedures at 252.242-7004(d), Material Management and Accounting System, and PGI 242.7203 for disposition of MMAS deficiencies.
(3)
5. Revise the heading of subpart 242.75 to read as follows:
6. Revise section 242.7501 to read as follows:
(a) Contractors receiving cost-reimbursement, incentive type, time-and-materials, or labor-hour contracts, or contracts which provide for progress payments based on costs or on a percentage or stage of completion, shall maintain an acceptable accounting system as defined in the clause at 252.242-7YYY, Accounting System Administration.
(b) The ACO is responsible for approving a contractor's accounting system.
7. Revise section 242.7502 to read as follows:
(a)
(b) The ACO shall determine whether the accounting system contains deficiencies that need to be corrected in accordance with the clause 252.242-7YYY, Accounting System Administration.
(c)
(2)
(i) Provide a notification of system deficiencies to the contractor, evaluate contractor responses, and make determinations to disapprove the system in accordance with the clause at 252.242-XXXX, Accounting System Administration;
(ii) Withhold payments in accordance with 252.242-7XXX, Business Systems, if applicable; and
(iii) Follow the procedures at 252.242-7XXX(e), Accounting System Administration, and PGI 242.7502(c)(2) for disposition of accounting system deficiencies.
(d)
8. Add section 242.7503 to read as follows:
Use the clause at 252.242-7YYY, Accounting System Administration, in solicitations and contracts when contemplating—
(a) A cost-reimbursement, incentive type, time-and-materials, or labor-hour contract;
(b) A fixed-price contract with progress payments made on the basis of costs incurred by the contractor or on a percentage or stage of completion;
(c) A construction contract that includes the clause 52.232-27, Prompt Payment for Construction Contracts.
9. Revise section 244.305-70 to read as follows:
Use this subsection instead of FAR 44.305-2(c) and 44.305-3(b).
(a) The ACO, in consultation with the purchasing system analyst (PSA) or auditor, shall—
(1) Grant, withhold, or withdraw system approval; and
(2) Pursue correction of any system deficiencies.
(b)
(2)
(i) Provide a notification of system deficiencies to the contractor, evaluate contractor responses, and make determinations to disapprove the system in accordance with the clause at 252.242-XXXX, Purchasing System Administration, and follow the procedures at PGI 244.305-70; and
(ii) Withhold payments in accordance with 252.242-7XXX, Business Systems, if applicable.
(3) The ACO shall approve the purchasing system when the ACO determines that the contractor has substantially corrected the system deficiencies. The ACO shall notify the contractor, auditor, payment office, and affected contracting and contract administration activities of the system approval and the ACO's decision, as appropriate, to reduce or discontinue the withholding of payments in accordance with 252.242-7XXX, Business Systems.
10. Add section 244.305-7X to read as follows:
Use the clause at 252.244-7XXX, Contractor Purchasing System-Administration, in solicitations and contracts containing the clause at FAR 52.244-2, Subcontracts.
11. Amend section 252.215-7002 by:
a. Revising the clause date;
b. Revising the definition of “acceptable estimating system” in paragraph (a);
c. Adding new paragraph (d)(4);
d. Revising paragraph (e); and
e. Adding new paragraph (f) to read as follows:
(a)
(1) Is maintained, reliable, and consistently applied;
(2) Produces verifiable, supportable, and documented cost estimates that are an acceptable basis for negotiation of fair and reasonable prices;
(3) Is consistent with and integrated with the Contractor's related management systems; and
(4) Is subject to applicable financial control systems.
(d) * * *
(4) The Contractor's estimating system shall provide for the use of appropriate source data, utilize sound estimating techniques and good judgment, maintain a consistent approach, and adhere to established policies and procedures. An acceptable estimating system shall accomplish, but not be limited to, the following functions—
(i) Establish clear responsibility for preparation, review, and approval of cost estimates;
(ii) Provide a written description of the organization and duties of the personnel responsible for preparing, reviewing, and approving cost estimates;
(iii) Assure that relevant personnel have sufficient training, experience, and guidance to perform estimating tasks in accordance with the Contractor's established procedures;
(iv) Identify the sources of data and the estimating methods and rationale used in developing cost estimates;
(v) Provide for appropriate supervision throughout the estimating process;
(vi) Provide for consistent application of estimating techniques;
(vii) Provide for detection and timely correction of errors;
(viii) Protect against cost duplication and omissions;
(ix) Provide for the use of historical experience, including historical vendor pricing information, where appropriate;
(x) Require use of appropriate analytical methods;
(xi) Integrate information available from other management systems, where appropriate;
(xii) Require management review including verification that the company's estimating policies, procedures, and practices comply with this regulation;
(xiii) Provide for internal review of and accountability for the acceptability of the estimating system, including the comparison of projected results to actual results and an analysis of any differences;
(xiv) Provide procedures to update cost estimates in a timely manner throughout the negotiation process; and
(xv) Address responsibility for review and analysis of the reasonableness of subcontract prices.
(e)
(1) The ACO will provide an initial notification to the Contractor of system deficiencies. The initial notification will describe the deficiency in sufficient detail to allow the Contractor to understand what actions are necessary to correct the deficiencies.
(2) The Contractor shall respond within 30 days to a written initial notification from the ACO that identifies deficiencies in the Contractor's estimating system. If the Contractor disagrees with the initial notification, the Contractor shall state in writing its rationale for disagreeing.
(3) The ACO will evaluate the Contractor's response and notify the Contractor of the determination concerning remaining deficiencies, the adequacy of any proposed or completed corrective action, and system disapproval, if applicable.
(f)
12. Amend section 252.234-7002 by:
a. Revising the clause date;
b. Redesignating existing paragraph (h) as paragraph (j);
c. Adding new paragraphs (h) and (i) to read as follows:
(h)
(2) The Contractor shall respond within 30 days to a written initial notification from the ACO that identifies deficiencies in the Contractor's EVMS. If the Contractor disagrees with the initial notification, the Contractor shall state in writing its rationale for disagreeing.
(3) The ACO will evaluate the Contractor's response and notify the Contractor of the determination concerning remaining deficiencies, the adequacy of any proposed or completed corrective action, and any portions of the system that are noncompliant with ANSI\EIA-748.
(i)
13. Amend section 252.242-7004 by:
a. Revising the clause date;
b. Revising paragraph (d);
c. Redesignating existing paragraph (e) as paragraph (f); and
d. Adding new paragraph (e) to read as follows:
(d)
(2) The Contractor shall respond within 30 days to a written initial notification from the ACO that identifies deficiencies in the Contractor's accounting system. If the Contractor disagrees with the initial notification, the Contractor shall state in writing its rationale for disagreeing.
(3) The ACO will evaluate the Contractor's response and notify the Contractor of the determination concerning remaining deficiencies, the adequacy of any proposed or completed corrective action, and system disapproval if applicable.
(e)
14. Add section 252.242-7XXX to read as follows:
As prescribed in 242.70X2, use the following clause:
(a)
(1) Accounting system, if this contract includes the clause at 252.242-7YYY, Accounting System Administration;
(2) Earned value management system, if this contract includes the clause at 252.234-7002, Earned Value Management System;
(3) Estimating system, if this contract includes the clause at 252.215-7002, Cost Estimating System Requirements;
(4) Material management and accounting system, if this contract includes the clause at 252.242-7004, Material Management and Accounting System;
(5) Property management system, if this contract includes the clause at 52.245-1, Government Property; and
(6) Purchasing system, if this contract includes the clause at 52.244-2, Subcontracts.
(b)
(c)
(2) The ACO will evaluate the Contractor's response and notify the Contractor in writing of the final determination as to whether the business system contains deficiencies. If the ACO determines that the Contractor's business system contains deficiencies, the final determination will include a notice of a decision to withhold payments.
(d)
(2) If the Contractor submits an acceptable corrective action plan within 45 days of receipt of a notice of the ACO's intent to withhold, but has not completely corrected the identified deficiencies, the ACO will reduce the amount withheld to an amount equal to five percent of each payment until the ACO determines that the Contractor has corrected the deficiencies in the business system. However, if at any time the ACO determines that the Contractor fails to follow the accepted corrective action, the ACO will increase the amount of payment withheld to ten percent of each payment under this contract until the ACO determines that the Contractor has completely corrected the deficiencies in the business system.
(3) If the ACO is withholding payments for deficiencies in more than one business system, the cumulative percentage of payments withheld shall not exceed fifty percent on this contract.
(4) Notwithstanding any other rights or remedies of the Government under this contract, including paragraphs (d)(1) through (d)(3) of this clause, if the ACO determines that there are one or more system deficiencies that are highly likely to lead to improper contract payments being made, or represent an unacceptable risk of loss to the Government, then the ACO will withhold up to one-hundred percent of payments until the ACO determines that the Contractor has corrected the deficiencies.
(5) For the purpose of this clause, payment means any of the following payments authorized under this contract:
(i) Interim payments under—
(A) Cost reimbursement contracts;
(B) Incentive type contracts;
(C) Time-and-materials contracts;
(D) Labor-hour contracts.
(ii) Progress payments.
(iii) Performance-based payments.
(6) The withholding of any amount or subsequent payment to the Contractor shall not be construed as a waiver of any rights or remedies the Government has under this contract.
(7) Notwithstanding the provisions of any clause in this contract providing for interim, partial, or other payment on any basis, the ACO may withhold payment in accordance with the provisions of this clause.
(8) The payment withholding authorized in this clause is not subject to the interest-penalty provisions of the Prompt Payment Act.
(e)
(2) Once the Contractor has notified the ACO that deficiencies have been corrected, the ACO will take one of the following actions:
(i) If the ACO determines the Contractor has corrected all deficiencies in a business system, the ACO will discontinue the payment withholding under this contract associated with that business system and release any monies previously withheld that are not also being withheld due to deficiencies on other business systems under this contract. Any payment withholding in effect on other business systems under this contract will remain in effect until the deficiencies for those business systems are corrected.
(ii) If the ACO determines the Contractor has not corrected all deficiencies, the ACO will continue the withholding payments in accordance with paragraph (d) of this clause and not release any monies previously withheld.
15. Add section 252.242-7YYY to read as follows:
As prescribed in 242.7503, use the following clause:
(a)
(1)
(i) Applicable laws and regulations are complied with;
(ii) The accounting system and cost data are reliable;
(iii) Risk of misallocations and mischarges are minimized; and
(iv) Contract allocations and charges are consistent with invoice procedures.
(2)
(3)
(b)
(c)
(1) A basic structure that defines the form and nature of the organization as well as the management functions and reporting relationships;
(2) Proper segregation of direct costs from indirect costs;
(3) Identification and accumulation of direct costs by contract;
(4) A logical and consistent method for the accumulation and allocation of indirect costs to intermediate and final cost objectives;
(5) Accumulation of costs under general ledger control;
(6) Reconciliation of subsidiary cost ledgers and cost objectives to general ledger;
(7) Approval and documentation of adjusting entries;
(8) Periodic monitoring of the system, as appropriate;
(9) A timekeeping system that identifies employees' labor by intermediate or final cost objectives;
(10) A labor distribution system that charges direct and indirect labor to the appropriate cost objectives;
(11) Interim (at least monthly) determination of costs charged to a contract through routine posting of books of account;
(12) Exclusion from costs charged to Government contracts of amounts which are not allowable in terms of FAR Part 31, Contract Cost Principles and Procedures, and other contract provisions;
(13) Identification of costs by contract line item and by units (as if each unit or line item were a separate contract) if required by the contract;
(14) Segregation of preproduction costs from production costs;
(15) Cost accounting information as required:
(i) By contract clauses concerning limitation of cost (FAR 52.232-20) or limitation on payments (FAR 52.216-16); and
(ii) To readily calculate indirect cost rates from the books of accounts;
(16) Billings that can be reconciled to the cost accounts for both current and cumulative amounts claimed and comply with contract terms; and
(17) Adequate, reliable data for use in pricing follow-on acquisitions.
(d)
(2) The Contractor shall respond within 30 days to a written initial notification from the ACO that identifies deficiencies in the Contractor's accounting system. If the Contractor disagrees with the initial notification, the Contractor shall state in writing its rationale for disagreeing.
(3) The ACO will evaluate the Contractor's response and notify the Contractor of the determination concerning remaining deficiencies, the adequacy of any proposed or completed corrective action, and system disapproval if applicable.
(e)
16. Add section 252.244-7XXX to read as follows:
As prescribed in 244.305-7X, insert the following clause:
(a)
(1) Internal audits or management reviews, training, and policies and procedures for the purchasing department to ensure the integrity of the purchasing system;
(2) Policies and procedures to assure purchase orders and subcontracts contain all flow down clauses, including terms and conditions required by the prime contract and any clauses required to carry out the requirements of the prime contract;
(3) An organizational and administrative structure that ensures effective and efficient procurement of required quality materials and parts at the most economical cost from responsible and reliable sources;
(4) Selection processes to ensure the most responsive and responsible sources for furnishing required quality parts and materials and to promote competitive sourcing among dependable suppliers so that purchases are reasonably priced and from sources that meet contractor quality requirements;
(5) Performance of price or cost analysis on purchasing actions; and
(6) Procedures to ensure that proper types of subcontracts are selected and that there are controls over subcontracting, including oversight and surveillance of subcontracted effort.
(b)
(c)
(2) Ensure that all applicable purchase orders and subcontracts contain all flow down clauses, including terms and conditions and any other clauses needed to carry out the requirements of the prime contract.
(3) Maintain an organization plan that establishes clear lines of authority and responsibility.
(4) Purchase orders are based on authorized requisitions and include complete history files.
(5) Establish and maintain adequate documentation to provide a complete and accurate history of purchase transactions to support vendors selected and prices paid.
(6) Apply a consistent make or buy policy that is in the best interest of the Government.
(7) Use competitive sourcing to the maximum extent practicable and ensure debarred or suspended contractors are properly excluded from contract award.
(8) Evaluate price, quality, delivery, technical capabilities, and financial capabilities of competing vendors.
(9) Require management level justification and cost/price analysis as applicable for any sole or single source award.
(10) Perform appropriate cost or price analysis and technical evaluation for each subcontractor and supplier proposal or quote.
(11) Document negotiations in accordance with FAR 15.406-3.
(12) Seek, take, and document appropriate purchase discounts, including cash discounts, trade discounts, quantity discounts, rebates, freight allowances, and company-wide volume discounts.
(13) Ensure proper type of contract selection and prohibit issuance of cost-plus-a-percentage-of-cost subcontracts.
(14) Maintain subcontract surveillance to ensure timely delivery of an acceptable product and procedures to notify the Government of potential subcontract problems that may impact delivery, quantity, or price.
(15) Document and justify reasons for subcontract changes that affect cost or price.
(16) Notify the Government of the award of an auditable subcontract and perform adequate audits of those subcontracts.
(17) Enforce adequate policies on conflict of interest, gifts, and gratuities, including the requirements of the Anti-Kickback Act.
(d)
(2) The Contractor shall respond within 30 days to a written initial notification from the ACO that identifies deficiencies in the Contractor's purchasing system. If the Contractor disagrees with the initial notification, the Contractor shall state in writing its rationale for disagreeing.
(3) The ACO will evaluate the Contractor's response and notify the Contractor of the determination concerning remaining deficiencies, the adequacy of any proposed or completed corrective action, and system disapproval, if applicable.
(e)
U.S. Army Corps of Engineers, Department of the Army, DoD.
Proposed rule; request for comments.
The U.S. Army Corps of Engineers (USACE) is proposing an interim Continuing Contracts clause for use on specifically authorized Civil Works projects only. This proposal is in response to a recurring statutory provision that requires a change to the clause USACE had previously used.
Comments must be received by March 16, 2010.
You may submit comments, identified by docket number COE-2009-0065, by any of the following methods:
Ms. Robin A. Baldwin, Headquarters U.S. Army Corps of Engineers, Directorate of Contracting, Policy Division, 441 G Street, Washington, DC at 202-761-8645.
The new funding clause for civil works projects includes alternate language and is designed to give USACE officials options for funding contracts spanning more than one fiscal year after the enactment of statutory restrictions to the Corps' continuing contract authority. The new clause allows Congress more oversight over continuing contracts and better control over the rate at which funds are spent on projects. The end result is contracts that obligate funds in close alignment with prerogatives reflected in budget documents and appropriations acts. USACE has submitted a report to Congress on the overall effects, both positive and negative, of the statutory restriction.
Continuing contracts are authorized by Section 10 of the River and Harbor Act of 1922, 33 U.S.C. 621, which provides as follows: “Any public work on canals, rivers, and harbors adopted by Congress may be prosecuted by direct appropriations, by continuing contracts, or by both direct appropriations and continuing contracts.” The use of continuing contracts permitted large civil work projects, spanning more than one fiscal year, to be accomplished in a comprehensive manner, rather than through a series of yearly work units. Implementation of continuing contract was covered under Engineers Federal Acquisition Regulation Supplement (EFARS) Subpart 32.7—Contract Funding, and through the inclusion of either clause EFARS 52.232-5001, Continuing Contracts, or EFARS 52.232-5002, Continuing Contracts (Alternate).
The Energy and Water Development Appropriations Act of 2006 (06 E&WDA), Public Law 109-103, included provisions that restricted the Corps' authority to reprogram funds and award continuing contracts in Fiscal Year 2006. Section 108 of the 06 E&WDA prohibited the Corps from awarding or modifying an existing continuing contract when doing so would commit an amount in excess of the amount appropriated for that project pursuant to the 06 E&WDA, plus any amounts available from carryover or reprogramming. In light of Section 108 of the 06 E&WDA, USACE changed its implementation of continuing contracts, as well as the clauses it uses to award new continuing contracts that are not fully funded. The restriction in Section 108 has been carried forward into all E&WDAAs, and USACE anticipates that Congress will continue to include that restriction in future Acts.
The existing continuing contract clause (EFARS 52.232-5001) permits the contractor to work beyond the amount reserved to the contract for a fiscal year. Doing so creates a legal liability to pay the contractor for such costs, even though—under the existing continuing contract clause—the Corps does not have to make the payments until the next fiscal year. Accordingly, because the clause permits contractors to commit the government in excess of the amount appropriated for that project plus available carryover and reprogramming, use of this clause runs a high risk of violating the new statutory restriction on continuing contracts.
In order to implement the USACE Civil Works program under the new continuing contract restrictions, USACE has drafted a new clause for inclusion in the AFARS. The basic clause, “5152.232-9000 Special Continuing Contract for Civil Works Project Managed by the United States Army Corps of Engineers,” permits the Corps to award continuing contracts while only obligating the government's estimate of contractor earnings for the first fiscal year. This basic clause does not permit the contractor to work beyond the amount reserved, and it also expressly requires the contractor to stop working when funds are exhausted. The alternate language, if appropriate, would limit the government's liability for termination costs to the amount reserved on the contract. In contrast, under the basic clause, the government is responsible for all costs pursuant to the termination for convenience clause regardless of the amount reserved on the contract.
Alternatives to using the new clause include fully funding contracts at award; structuring the work into segments that could be accomplished through options, using multiple fully-funded contracts over multiple years, or using the clause at DFARS 252.232-7007 to incrementally fund a contract. Each of these alternatives is still a viable alternative and the contracting officer must choose which acquisition strategy best suits the requirement. That determination shall be based on an analysis of the possible contracting options with the intent that the Special Continuing Contract for Civil Works Project Managed by the United States Army Corps of Engineers clause be used as a least preferred method.
In light of the legal restrictions on continuing contracts, USACE had to change its implementation of existing continuing contracts, as well as the terms it uses to award new continuing contracts. USACE shall no longer permit the contractor to work beyond the amount reserved in the contract without first reprogramming sufficient funds to cover the contractor's earnings through the end of the fiscal year. The new clause should be used where the true Continuing Contract clause (EFARS 52.232-5001) might have been used in the past and alternative contract options are not viable.
This proposed rule may have a significant economic impact upon a substantial number of small entities. The clause differs from the true continuing contract clause (EFARS 52.232-5001) in that they no longer permit the contractor to work beyond the amount reserved to the contract. This change may affect a contractor's ability to schedule work and equipment effectively. Pursuant to authority contained in Section 608(a) of the Act (5 U.S.C. 608(a)) a determination has been made that circumstances require delay in preparation of an initial Regulatory Flexibility Act analysis to bring the USACE continuing contract into compliance with existing statutory authority. Within approximately thirty
The Paperwork Reduction Act does not apply because the proposed rule does not impose any new information collection burden that requires the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.
Government procurement.
Approved By:
For the reasons stated in the preamble, the Corps is proposing to amend 48 CFR Chapter 51 as set forth below:
1. Add part 5132 to read as follows:
33 U.S.C. 621,
(a) The U.S. Army Corps of Engineers (USACE) is authorized by 33 U.S.C. 621 to prosecute its specifically authorized civil works projects on canals, rivers and harbors by direct appropriations or by continuing contract, or both. A continuing contract permits USACE to obligate the government to the entire contract amount at award and fund the contract incrementally until completion.
(a) The clause at 5152.232-9000, Special Continuing Contract for Civil Works Project Managed by the United States Army Corps of Engineers, may be used in solicitations and contracts for civil works water resource projects that have been specifically adopted by Congress in authorizing legislation and for which future fiscal year funding is provided in the budget. This clause shall be used for all civil works projects when funds are appropriated for the project from either the operation and maintenance (O&M) account in the Energy and Water Development Appropriations Act (E&WDAA) or the O&M portion of the Mississippi River and Tributaries account in the E&WDAA and sufficient funds are not available to complete the contract. The contracting officer must insert the sum being reserved in the clause and reserve this amount stated in subsection (a) of the clause at contract award and modify the contract each fiscal year to reflect the amount reserved. This clause is required through 30 September 2010 in accordance with Section 103 of the Energy and Water Development Appropriations Act, 2010, Public Law 111-85. If future appropriations acts continue in the same manner, the requirement will be extended as appropriate beyond fiscal year 2010.
(b) The Alternate language for clause 5152.232-9000 may be used in solicitations and contracts for civil works water resource projects that have been specifically adopted by Congress in authorizing legislation but for which future fiscal year funding is not provided in the budget or when use of the 5152.232-9000 clause could be used. The contracting officer must insert the sum being reserved in the clause and reserve this amount stated in subsection (a) of the clause at contract award and modify the contract each fiscal year to reflect the amount reserved. Section 103 of the Energy and Water Development Appropriations Act, 2010, Public Law 111-85. If future appropriations acts continue in the same manner, the requirement will be extended as appropriate beyond fiscal year 2010.
2. Add part 5136 to read as follows:
33 U.S.C. 621, 10 U.S.C. 2202, DOD Directive 5000.35, FAR 1.301 and DOD FAR Supplement 201.3.
The Secretary of the Army, acting through the Chief of Engineers, is authorized by 33 U.S.C. 621 to carry out projects for improvement of rivers and harbors (other than surveys, estimates, and gaugings) by contract or otherwise, in the manner most economical and advantageous to the United States. The U.S. Army Corps of Engineers (USACE) is the only contracting organization authorized to contract for civil works construction projects.
As used in this subpart—
“Civil works” means authorized civil functions of the Department of the Army pertaining to rivers and harbors, flood control, shore protection and storm damage reduction, aquatic ecosystem restoration, and related purposes.
3. The authority citation for part 5152 is revised to read as follows:
10 U.S.C. 2202, 33 U.S.C. 621, DoD Directive 5000.35, FAR 1.301, DoD FAR Supplement 201.301, and DOD FAR Supplement 201.3.
4. Add 51.232-9000 to read as follows:
As prescribed in 5132.290-1 and 5132.705-90(a), use the following clause:
(a) Funds are not available at the inception of this contract to cover the entire contract price. The liability of the Government is limited by this clause notwithstanding any contrary provision of the “Payments to Contractor” clause or any other clause of this contract, except the Termination for Convenience clause. The sum of $____
(b) Failure to make payments in excess of the amount currently reserved, or that may be reserved from time to time, shall not be considered a breach of contract and shall not entitle the Contractor to a price adjustment under the terms of this contract.
(c) The Government may at any time reserve additional funds for payments under the contract if there are funds available for such purpose. The Contracting Officer will promptly notify the Contractor of any additional funds reserved for the contract by issuing an administrative modification to the contract.
(d) If earnings will be such that funds reserved for the contract will be exhausted before the end of any fiscal year, the Contractor shall give written notice to the Contracting Officer of the estimated date of exhaustion and the amount of additional funds which will be needed to meet payments due or to become due under the contract during that fiscal year. This notice shall be given not less than 120 days prior to the estimated date of exhaustion. Unless informed in writing by the Contracting Officer that additional funds have been reserved for payments under the contract, the Contractor shall stop work upon the exhaustion of funds.
(e) No payments will be made after exhaustion of funds except to the extent that additional funds are reserved for the contract.
(f) Any suspension, delay, or interruption of work arising from exhaustion or anticipated exhaustion of funds shall not constitute a breach of this contract and shall not entitle the Contractor to any price adjustment under the “Suspension of Work” clause or in any other manner under this contract.
(g) An equitable adjustment in performance time shall be made for any increase in the time required for performance of any part of the work arising from exhaustion of funds or the reasonable anticipation of exhaustion of funds.
(h) If, upon the expiration of one-hundred (100) days after the beginning of the fiscal year following an exhaustion of funds, the Government has failed to reserve additional funds for this contract sufficient to cover the Government's estimate of funding required for the first quarter of that fiscal year, the Contractor, by written notice delivered to the Contracting Officer at any time before such additional funds are reserved, may elect to treat his right to proceed with the work as having been terminated. Such a termination shall be considered a termination for the convenience of the Government.
(i) If at any time it becomes apparent that the funds reserved for any fiscal year are in excess of the funds required to meet all payments due or to become due the Contractor because of work performed and to be performed under the contract during the fiscal year, the Government reserves the right, after notice to the Contractor, to reduce said reservation by the amount of such excess.
(j) The term “Reservation” means monies that have been set aside and made available for payments under this contract. Reservations of funds shall be made in writing via an administrative modification issued by the Contracting Officer.
If future funding for the specifically authorized civil works project for which use of the continuing contract is contemplated is not included in the following year's President's Budget, substitute the following paragraphs (a) and (h) for paragraphs (a) and (h) of the basic clause:
(a) Funds are not available at the inception of this contract to cover the entire contract price. The liability of the Government is limited by this clause notwithstanding any contrary provision of the “Payments to Contractor” clause or any other clause of this contract. The sum of $____
(h) If, upon the expiration of one-hundred (100) days after the beginning of the fiscal year following an exhaustion of funds, the Government has failed to reserve additional funds for this contract sufficient to cover the Government's estimate of funding required for the first quarter of that fiscal year, the Contractor, by written notice delivered to the Contracting Officer at any time before such additional funds are reserved, may elect to treat his right to proceed with the work as having been terminated. The Government will not be obligated in any event to reimburse the Contractor for any costs incurred after the exhaustion of funds regardless of anything to the contrary in the clause entitled “Termination for Convenience of the Government.”
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of public hearing and extension of comment period.
By notice of proposed rulemaking (NPRM) published on November 13, 2009 (74 FR 58589), FRA proposed a rule to require the ten States with the most highway-rail grade crossing collisions, on average, over the past three years, to develop State highway-rail grade crossing action plans. This document announces a public hearing to provide interested parties the opportunity to comment on the NPRM and announces a fourteen (14) day extension of the comment period, which closed December 14, 2009, to commence on the date of the public hearing. The extension provides interested parties the opportunity to comment on the NPRM and to respond to matters that arise at the public hearing related to the NPRM.
(1)
(2)
(1)
(2)
•
•
•
• Electronically through the Federal eRulemaking Portal,
Ron Ries, Office of Safety, FRA, 1200 New Jersey Ave. SE., RRS-23, Mail Stop 25, Washington, DC 20590 (Telephone 202-493-6299), or Zeb Schorr, Trial Attorney, Office of Chief Counsel, FRA, 1200 New Jersey Ave., SE., Mail Stop 10, Washington, DC 20590 (Telephone 202-493-6072).
FRA has received written comments submitted by interested parties related to various parts of the NPRM and written requests for a hearing regarding the NPRM. FRA is holding a public hearing to permit the exchange of information and concerns regarding FRA's proposed rule. The public hearing is meant to allow interested parties to fully develop and articulate the issues and concerns they have with the NPRM so that these concerns can be fully addressed in any final rule that is developed. Interested parties are invited to present oral statements and proffer evidence at the hearing. The hearing will be informal and will be conducted by a representative designated by FRA in accordance with FRA's Rules of Practice (49 CFR 211.25). The hearing will be a non-adversarial proceeding; as such, there will be no cross-examination of persons presenting statements or proffering evidence. An FRA representative will make an opening statement outlining the scope of the hearing. After all initial statements have been completed, those persons wishing to make a brief rebuttal will be given the opportunity to do so in the same order in which the initial statements were made. Additional procedures, as necessary for the conduct of the hearing, will be announced at the hearing.
On February 22, 2010, the comment period for the NPRM will reopen for fourteen (14) days so that FRA can make the public hearing transcript available for review and comment by the general public, interested parties can provide additional comments and documents related to the NPRM, and interested parties can provide responses to matters that arise at the public hearing.
Any person wishing to participate in the public hearing should notify the FRA's Docket Clerk by mail, Michelle Silva, Office of Chief Counsel, FRA, 1200 New Jersey Ave. SE., Room W31-109, Washington, DC 20590, or e-mail (
FRA wishes to inform all potential commenters that anyone is able to search the electronic form of all comments received into any agency docket by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union,
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of public listening session.
FMCSA announces that it will hold a public listening session (in addition to those identified in a Federal Register notice on January 5, 2010) to solicit comments and information on potential hours-of-service (HOS) regulations. Specifically, the Agency wants to know what factors, issues, and data it should be aware of as it prepares to issue a notice of proposed rulemaking (NPRM) on HOS requirements for property-carrying commercial motor vehicle (CMV) drivers. This session will be held in the Davenport, Iowa area. The listening session will allow interested persons to present comments, views, and relevant research on revisions FMCSA should consider in its forthcoming rulemaking. All comments will be transcribed and placed in the rulemaking docket for the FMCSA's consideration.
This listening session will be held on Thursday, January 28, 2010, in Davenport, Iowa. It will begin at 1 p.m. local time and end at 9 p.m., or earlier, if all participants wishing to express their views have done so.
The January 28 meeting will be held in Davenport, Iowa, at the Comfort Inn Hotel and Suites, 8300 Northwest Boulevard, Davenport, Iowa 52806 (563-324-8300).
You may submit comments bearing the Federal Docket Management System (FDMS) Docket ID FMCSA-2004-19608 using any of the following methods:
Each submission must include the Agency name and the docket number for this notice. Note that DOT posts all comments received without change to
For special accommodations for this listening session, such as sign language interpretation, contact Mr. David Miller, Regulatory Development Division, (202) 366-5370 or at
On October 26, 2009, Public Citizen, et al. (Petitioners) and FMCSA entered into a settlement agreement under which the parties agreed to seek to hold Petitioners' petition for judicial review of the November 19, 2008 Final Rule on drivers' hours of service in abeyance pending the publication of an NPRM. The settlement agreement states that FMCSA will submit the draft NPRM to the Office of Management and Budget (OMB) within nine months, and publish a Final Rule within 21 months, of the date of the settlement agreement. The current rule will remain in effect during the rulemaking proceedings.
On January 5, 2010, FMCSA announced its plans to hold three public listening sessions concerning the HOS rulemaking (75 FR 285). FMCSA announces a fourth public listening session to solicit written and/or oral comments and information on potential revisions to the HOS rule. The Agency will provide further opportunity for public comment when the NPRM is published.
This listening session will be held within walking distance of the Flying J Travel Plaza, 8200 Northwest Boulevard near the intersection of Interstate Highway 80 at Exit 292, Davenport, Iowa 52806 (563-386-7710).
This listening session is open to the public. Speakers' remarks will be limited to 10 minutes each. The public may submit material to the FMCSA staff at each session for inclusion in the public docket, FMCSA-2004-19608.
In preparing their comments, meeting participants should consider the following questions about possible alternatives to the current HOS requirements. These scenarios are merely set forth for discussion; FMCSA will not necessarily include them in an NPRM but would request similar information and data in an NPRM. Answers to these questions should be based upon the experience of the participants and any data or information they can share with FMCSA.
1. Would mandatory short rest periods during the work day improve driver alertness in the operation of a CMV? How long should these rest periods be? At what point in the duty cycle or drive-time would short rest periods provide the greatest benefit? What are the unintended consequences if these short rest periods are mandatory? Should the on-duty period be extended to allow for mandatory rest periods?
2. If rest or other breaks from driving improve alertness, could a driver who chooses to take specified minimum breaks be given scheduling flexibility—the ability to borrow an hour from another driving day once a week, for example—if that flexibility would not increase safety risks or adversely impact driver health?
3. How many hours per day and per week would be safe and healthy for a truck driver to work?
4. Would an hours-of-service rule that allows drivers to drive an hour less when driving overnight improve driver alertness and improve safety? Are there any adverse consequences that could arise from the implementation of a separate night time hours-of-service regulation?
1. Is a 34-consecutive-hour off-duty period long enough to provide restorative sleep regardless of the number of hours worked prior to the restart? Is the answer different for a driver working a night or irregular schedule?
2. What would be the impact of mandating two overnight off-duty periods, e.g., from midnight to 6 a.m., as a component of a restart period? Would such a rule present additional enforcement challenges?
3. How is the current restart provision being used by drivers? Do drivers restart their calculations after 34 consecutive hours or do drivers take longer periods of time for the restart?
1. If sleeper-berth time were split into two periods, what is the minimum time in each period necessary to provide restorative sleep?
2. Could the 14-hour on-duty limitation be extended by the amount of some additional sleeper-berth time without detrimental effect on highway safety? What would be the appropriate length of such a limited sleeper-berth rest period?
1. What effect has the fixed 14-hour driving “window” had on the time drivers spend waiting to load or unload? Have shippers and receivers changed their practices to reduce the amount of time drivers spend waiting to load or unload?
1. Are there aspects of the current rule that do not increase safety risks or adversely impact driver health and that should be preserved?
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS issues this proposed rule to implement Amendment 31 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP) prepared by the Gulf of Mexico Fishery Management Council (Council). This proposed rule would implement restrictions applicable to the bottom longline component of the reef fish fishery in the exclusive economic zone (EEZ) of the eastern Gulf of Mexico (Gulf). The proposed restrictions would include a bottom longline endorsement requirement, a seasonal closed area, and a limitation on the number of hooks that could be possessed and fished. The intent of the proposed rule is to balance the continued operation of the bottom longline component of the reef fish fishery in the eastern Gulf while maintaining adequate protective measures for sea turtles.
Written comments must be received on or before March 1, 2010.
You may submit comments on the proposed rule, identified by “0648-AX67” by any of the following methods:
• Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking Portal:
• Fax: 727-824-5308; Attention: Cynthia Meyer.
• Mail: Cynthia Meyer, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701-5505.
Instructions: No comments will be posted for public viewing until after the comment period has closed. All comments received are a part of the public record and will generally be posted to
To submit comments through the Federal e-Rulemaking Portal:
Copies of Amendment 31, which include a draft environmental impact statement (DEIS), an initial regulatory flexibility analysis (IRFA), and a regulatory impact review may be obtained from the Gulf of Mexico Fishery Management Council, 2203 North Lois Avenue, Suite 1100, Tampa, FL 33607; telephone 813-348-1630; fax 813-348-1711; e-mail
Written comments regarding the burden-hour estimate or other aspects of the collection-of-information requirement contained in this proposed rule may be submitted to Richard Malinowski, Southeast Regional Office, NMFS, and by e-mail to
Cynthia Meyer, telephone: 727-824-5305.
The reef fish fishery of the Gulf of Mexico is managed under the FMP. The FMP was prepared by the Council and is implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
Sea turtles are incidentally taken, and some are killed, as a result of numerous activities, including fishery-related activities in the Gulf and along the Atlantic seaboard. Under the Endangered Species Act (ESA) and its implementing regulations, the taking of sea turtles is prohibited, with exceptions identified in 50 CFR 223.206(d), or according to the terms and conditions of a biological opinion issued under section 7 of the ESA, or according to an incidental take permit issued under section 10 of the ESA. All sea turtles that occur in U.S. waters are listed as either endangered or threatened under the ESA of 1973. The Kemp's ridley (
In September 2008, NMFS released a report analyzing sea turtle takes in the reef fish fishery as documented through an observer program. Subsequently updated in April 2009, the report indicated that the number of hardshell sea turtle takes by the bottom longline component of the Gulf reef fish fishery had exceeded the incidental take estimates specified in a 2005 Biological Opinion. Therefore, action was needed to provide protection for threatened loggerhead sea turtles in compliance with ESA.
To address this issue in the short-term while the Council developed a long-term management strategy, NMFS published an emergency rule effective May 18, 2009. The emergency rule prohibited longline fishing for reef fish in the eastern Gulf shoreward of a line approximating the 50-fathom depth contour, and prohibited all longline fishing in the eastern Gulf after the deep-water grouper and tilefish commercial quotas were filled.
On October 16, 2009, NMFS published a rule, under the authority of the ESA, to replace the emergency rule. The rule prohibits bottom longline fishing in the eastern Gulf shoreward of a line approximating the 35-fathom (64-m) contour with a restriction of 1,000 hooks per vessel with no more than 750 hooks rigged for fishing or fished at any given time. The intended effect of the rulemaking is to maintain protective measures for loggerhead sea turtles as well as to maintain a viable bottom longline fleet pending the
At the August 2009 meeting, the Council approved long-term measures in Amendment 31, and submitted the amendment for review by the Secretary of Commerce following final editing, along with the accompanying regulations deemed necessary and appropriate to implement Amendment 31. Dated October 13, 2009, the updated Biological Opinion determined that the fishing activities conducted under Amendment 31 and its implementing regulations are not likely to jeopardize the continued existence of sea turtles or smalltooth sawfish.
The proposed rule would modify regulations for the bottom longline component of the reef fish fishery by including a seasonal area closure, qualifying endorsement, and gear restrictions. Collectively, the actions contained in the proposed rule are anticipated to achieve a 48-percent to 67-percent reduction in effective bottom longline fishing effort and, therefore, hardshell sea turtle takes in the bottom longline component of the reef fish fishery.
The June through August seasonal area closure would prohibit the use of bottom longline gear to fish for reef fish shoreward of a line approximating the 35-fathom (64-m) boundary in the eastern Gulf. In the case of the 35-fathom (64-m) boundary intersecting a marine reserve, fishermen would also be required to adhere to the regulations for the reserve. During vessel transit through closed zones, no reef fish could be possessed unless bottom longline gear is appropriately stowed, meaning that a longline may be left on the drum if all gangions and hooks are disconnected and stowed below deck; hooks are not baited, and all buoys are disconnected from the gear, but may remain on deck.
The gear restriction would apply to longline vessels with Gulf reef fish permits with longline endorsements. The restriction would limit the number of hooks allowed per vessel. Each vessel would be allowed to possess 1,000 hooks total. However, only 750 hooks may be fished or rigged for fishing at any given time.
The qualifying endorsement to fish in the eastern Gulf would reduce the number of vessels operating in the bottom longline component of the reef fish fishery. The longline endorsement would be provided only to vessel permits with demonstrated average annual landings of 40,000 lb (18,144 kg) of reef fish harvested with fish traps or longline gear during 1999-2007. The transfer of the endorsement would be unrestricted between commercial Gulf reef fish permit holders.
To be eligible to receive a longline endorsement to fish in the eastern Gulf, a person would need to possess an active or renewable (within the one year grace period immediately following expiration) Gulf reef fish commercial vessel permit. The calculation of landings would be based on the average annual reef fish landings using fish traps or longline gear associated with each permit during the applicable landings period, 1999-2007. All landings associated with an active or renewable Gulf reef fish commercial vessel permit for the applicable landings period that were reported to NMFS by December 31, 2008, would be attributed to the current owner, as of the date of publication of the final rule. The associated landings also include landings reported by a person who held the permit prior to the current owner. Only legal landings reported in compliance with applicable state and Federal regulations would be used to identify initial endorsement holders. The NMFS would automatically mail initial endorsements to all eligible permit holders.
The appeals process included in this rule would provide a formalized process for resolving disputes regarding eligibility for a longline endorsement to fish in the eastern Gulf. Items subject to appeal would include the accuracy of the amount of reef fish landings using longline gear or fish traps, the correct assignment of landings to the permit owner, and the initial eligibility for an eastern Gulf reef fish bottom longline endorsement based on ownership of a qualifying reef fish permit.
Appeals would need to contain documentation supporting the basis for the appeal and must be submitted to the Regional Administrator (RA) postmarked no later than 90 days after the effective date of the final rule that would implement Amendment 31. Landings data for appeals would be based on NMFS' logbooks submitted to and received by the Southeast Fisheries Science Center (SEFSC) by December 31, 2008, for the years 1999 through 2007. Appeals based on hardship factors would not be considered. The RA would review, evaluate, and render final decision on appeals based on NMFS' logbooks. Appellants would need to submit NMFS' logbooks to support their appeal. If NMFS' logbooks are not available, the RA could use state landings records. In addition, NMFS' records of Gulf commercial reef fish permits would constitute the sole basis for determining ownership of such permits. A person who believes he/she meets the permit eligibility criteria based on ownership of a vessel under a different name, as may have occurred when ownership has changed from individual to corporate or vice versa, would need to document his/her continuity of ownership.
Positive impacts to the biological environment include reductions in bycatch of both hardshell sea turtles and non-targeted or undersized reef fish. During the months of June through August, the NMFS observer program data indicate a concentration of sea turtles in water depths of 20-35 fathoms (37-64 m). Shifting the fishing effort to deeper waters for this time period may reduce the sea turtle takes in the bottom longline component of the fishery. The bottom longline endorsement requirement would reduce the number of permitted vessels operating in the fishery from approximately 120 to 61, resulting in a bottom longline trip reduction of approximately 54-percent. Limiting the number of hooks would likely change the fishing behavior for a number of vessels as they would reduce the length of their mainline and possibly increase the number of sets to accommodate the reduction in hooks. The range in reduction is based on various analyses of effort shifting scenarios in the bottom longline component of the reef fish fishery.
Additional background and rationale for the measures discussed above are contained in Amendment 31. The availability of Amendment 31 was announced in the
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the AA has determined that this proposed rule is consistent with Amendment 31, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
NMFS prepared a DEIS for this amendment. A notice of availability for
An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the
The purpose of this proposed rule is to reduce interactions between sea turtles and bottom longline gear in the reef fish fishery in the eastern Gulf. The Magnuson-Stevens Act provides the statutory basis for this proposed rule.
No duplicative, overlapping, or conflicting Federal rules have been identified.
This proposed rule would prohibit the use of bottom longline gear to fish for reef fish in the eastern Gulf (east of 85° 30′ W. longitude) shoreward of a line approximating the 35-fathom (64-m) depth contour from June through August, require a permit endorsement to fish for reef fish using bottom longline gear in the eastern Gulf, and limit the number of hooks per vessel using bottom longline gear to fish for reef fish in the eastern Gulf to 1,000 hooks, of which no more than 750 hooks could be rigged for fishing or fished at any given time.
This proposed rule would be expected to directly affect commercial fishing vessels that use bottom longline gear to fish for reef fish in the eastern Gulf. Based on logbook records, for the period 2003-2007, an average of 149 vessels per year recorded reef fish landings using bottom longline gear. These vessels are estimated to average $108,635 per year in gross revenues and $72,649 per year in net operating revenues (NOR; revenues net of non-labor trip costs).
Some fleet activity is known to occur in the commercial sector of the Gulf reef fish fishery. Based on permit data, the maximum number of permits reported to be owned by the same entity is six, though additional permits may be linked through other affiliations which cannot be identified with current data. It is unknown whether all of these linked permits are for vessels that use longline gear, which generate higher average annual revenues than vessels that use other gears to harvest reef fish. Nevertheless, assuming each of these six vessels use bottom longline gear, using the average revenue per vessel provided above the average annual combined revenues for this entity would be approximately $652,000.
The Small Business Administration has established size criteria for all major industry sectors in the U.S. including fish harvesters. A business involved in fish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $4.0 million (NAICS code 114111, finfish fishing) for all its affiliated operations worldwide. Based on the gross revenue estimates provided above, all commercial reef fish vessels expected to be directly affected by this proposed rule are determined for the purpose of this analysis to be small business entities.
As previously stated, this proposed rule would require a permit endorsement to fish for reef fish using bottom longline gear in the eastern Gulf. This permit endorsement would be a new compliance requirement. Acquisition of the endorsement would not require an application or additional fees. Instead, eligibility for the endorsement would be determined by NMFS, based on an evaluation of the landings history associated with each commercial reef fish permit, and the permit endorsement provided to qualified vessels. As a result, no additional costs or administrative burdens would be imposed on qualifying entities. Permit holders that do not qualify for the endorsement would be prohibited from using bottom longline gear to harvest reef fish in the prescribed area. The expected economic effects of the endorsement requirement on entities that historically have harvested reef fish with bottom longline gear but that would not qualify for the endorsement are discussed below. This proposed rule would not establish any new reporting or record-keeping requirements.
The expected effects of the proposed seasonal bottom longline gear prohibition and endorsement requirement were evaluated in tandem. Vessels affected by the proposed endorsement and gear restrictions would be expected to either shift fishing effort to areas that remain open and continue to fish with bottom longline gear, or convert to vertical line gear. However, because of the absence of adequate data, effort shift was not modeled in the analysis of the expected economic effects of this proposed rule. Instead, only gear conversion was modeled, with gear conversion rates varied from 0 percent to 100 percent of affected vessels and trips. Under this modeling approach, any affected effort that did not convert to vertical line gear was assumed to not occur, resulting in the loss of all normal harvests and revenues for that vessel and trip. As such, this is an extreme assumption. In reality, rather than trip cancellation, effort shift is likely to occur, resulting in some amount of continued historic harvest. The absence of effort shift in the analysis results in over-estimation of the expected economic effects of this proposed rule and, as a result, the following results should be viewed as upper bounds.
This proposed rule would be expected to reduce the net operating revenues (NOR; revenues minus non-labor variable operating costs) of commercial vessels that have historically harvested reef fish using bottom longline gear in the eastern Gulf by $1.28 million per year (100-percent conversion to vertical line gear) to $3.44 million (0-percent conversion to vertical line gear). Averaged across the average number of vessels per year with recorded landings of reef fish using bottom longline gear from 2003-2007 (149 vessels), the estimated reduction in NOR per vessel ranges from approximately $8,600 to $23,100, or approximately 12 percent to 32 percent of the average annual NOR per vessel. It is noted that individual vessels may experience higher or lower losses than these averages. Gear conversion is estimated to cost approximately $13,750 per vessel, though partial financial assistance is available for up to 50 vessels from an environmental advocacy group. Additional economic losses may accrue due to the proposed hook restriction. Although these losses cannot be quantified with available data, the proposed hook restriction may result in reduced harvest efficiency of some vessels. This would be expected to result in either reduced harvests or increased costs to maintain normal harvests if fishermen have to fish longer or make more sets. The proposed hook restrictions could also increase the possibility that a trip may have to be terminated early if a line is lost and insufficient replacement hooks are available to allow continued fishing.
Four alternatives, including the no action alternative (status quo), with multiple sub-alternatives, were considered for the action to establish seasonal and area gear restrictions. One alternative and set of sub-options focused on the geographic scope of the proposed gear restriction, one alternative and set of sub-options focused on the depth specification of the proposed gear restriction, and one alternative and set of sub-options focused on the temporal application of
The alternative specifications of the geographic scope of the proposed gear restrictions would have imposed the restrictions on smaller areas than the proposed rule and, as a result, would be expected to result in lower adverse economic effects than this proposed rule. However, the reduced geographic scope of these alternative specifications would be expected to result in insufficient reduction in interactions between sea turtles and bottom longline gear, and would not be expected to achieve the Council's objectives.
One alternative to the depth specification of this proposed rule would have prohibited the use of bottom longline gear to harvest reef fish in waters less than 30 fathoms (55 m), which would be less restrictive than the proposed restriction, while two alternatives would have been more restrictive, prohibiting the use of the gear in waters less than 40 fathoms (73 m) and 50 fathoms (91 m), respectively. The less restrictive alternative would be expected to reduce the loss of NOR to commercial vessels relative to the proposed rule. However, the reduced scope of the restriction would be expected to result in insufficient reduction in interactions between sea turtles and bottom longline gear, and would not be expected to achieve the Council's objectives. While the two more restrictive alternatives may be expected to result in greater protection of sea turtles, both would be expected to result in greater adverse economic effects than the depth specification of this proposed rule. As a result, these alternative depth specifications would not be expected to achieve the Council's objectives of sufficiently reducing interactions between sea turtles and bottom longline gear while minimizing the adverse effects on the reef fish fishery.
Both alternatives to the seasonal specification of this proposed rule would have increased the duration of the gear prohibition and would be expected to result in greater adverse economic effects than the seasonal restriction of this proposed rule. Similar to the more restrictive depth alternatives, while increased seasonal application of the proposed gear prohibition would be expected to result in greater sea turtle protection, these alternatives would not be expected to achieve the Council's objectives of sufficiently reducing interactions between sea turtles and bottom longline gear while minimizing the adverse effects on the reef fish fishery.
Seven alternatives, including the no action alternative (status quo), were considered for the action to reduce the number of vessels allowed to use bottom longline gear to harvest reef fish in the eastern Gulf. Except for the no action alternative, the alternatives varied by the minimum average annual reef fish harvest threshold that would be required to qualify for a permit endorsement that allowed the use of bottom longline gear to harvest reef fish in the eastern Gulf, and each alternative included two sub-options for the qualifying time period from which average annual harvests would be evaluated (1999-2004 or 1999-2007) and three sub-options that addressed the transferability of the endorsement. The no action alternative would not establish a longline endorsement to the reef fish permit, would not be expected to reduce the number of vessels (permits) allowed to use bottom longline gear to harvest reef fish in the eastern Gulf, and would not be expected to achieve the Council's objectives.
Two alternatives would have established lower average annual harvest thresholds (20,000 lb (9,072 kg) and 30,000 lb (13,608 kg), gutted weight) for endorsement qualification than this proposed rule (40,000 lb (18,144 kg), gutted weight), while two alternatives would establish higher thresholds (50,000 lb (22,680 kg) and 60,000 lb (27,216 kg), gutted weight). Because lower thresholds would allow more vessels to continue to participate in the reef fish fishery using bottom longline gear, these alternatives would be expected to result in lower adverse economic effects than the proposed qualification threshold. However, these two alternatives would not be expected to result in sufficient reductions in the number of vessels allowed to use bottom longline gear to harvest reef fish in the eastern Gulf or, in turn, sufficient reductions in bottom longline effort necessary to achieve target reductions in interactions between sea turtles and bottom longline gear. As a result, these alternatives would not be expected to achieve the Council's objectives. The two alternatives that would have established higher qualification thresholds would be expected to result in fewer qualifying vessels, greater economic losses, and greater reduction in interactions between sea turtles and bottom longline gear than is necessary to achieve the Council's objectives.
Under the seventh alternative for the action to reduce the number of vessels allowed to use bottom longline gear to harvest reef fish in the eastern Gulf, endorsement qualification would have been based on landings histories in communities where the ex-vessel value of red grouper landings accounted for at least 15 percent of the total ex-vessel value of all species landed in the community. Qualifying permits would be required to have reported landings in these communities for at least 5 years during the period of 1999-2007, with minimum average annual reef fish harvests of 30,000 lb (13,608 kg) per permit. The net economic effects of this alternative are unknown. However, while over 80 vessels would be expected to qualify for an endorsement under a 30,000-lb (13,608-kg) threshold without a community-linkage requirement, fewer than 50 vessels would qualify with the imposition of the community requirement. The intent of this alternative was to reduce bottom longline effort to a level that would adequately reduce sea turtle interactions while protecting communities dependent on this component of the commercial sector of the Gulf reef fish fishery. However, the alternative was determined to be incapable of achieving the Council's objectives because qualifying vessels could not be required to continue landing their harvests in the target communities. Additionally, the exclusion of vessels that met the landings threshold but lacked the required history with a specific dependent community was determined to be inequitable.
This proposed rule would establish endorsement qualification based on harvest history from 1999-2007. The alternative period of evaluation, 1999-2004, would, for all landings thresholds, have resulted in fewer qualifying permits and greater adverse economic effects than the proposed action.
This proposed rule would also allow unrestricted transfer of endorsements between commercial reef fish permit holders. The alternative sub-options would either not have allowed endorsement transfer or only allowed transfer to reef fish permit holders with a vessel of equal or lesser length. Each of these sub-options would have been more restrictive than the transfer allowance of this proposed rule and, as a result, would be expected to result in greater adverse economic effects than this proposed rule.
Four alternatives, including the no action alternative (status quo), were considered for the action to modify fishing gear or practices. The no action alternative would not establish further
One alternative, with multiple sub-options, to the proposed fishing gear restriction would limit mainline length for bottom longlines, while another would limit gangion length. The economic effects of these alternatives cannot be quantitatively evaluated with available data. In general, these actions would be expected to adversely affect the catch rates, operating efficiency, and NOR of affected vessels. Whether these alternatives would result in lower adverse economic effects than the proposed hook restriction is unknown. However, available data do not indicate that these measures would be more effective in reducing interactions between sea turtles and bottom longline gear than the proposed hook restriction.
Two alternative hook limits, 500 hooks and 1,500 hooks, were considered relative to the proposed hook restriction. The lower hook limit would be expected to result in greater adverse economic effects than the proposed limit and is more restrictive than believed necessary to achieve the target reduction in interactions between sea turtles and bottom longline gear. Conversely, while the higher hook limit would be expected to result in lower adverse economic effects than the proposed limit, it is not believed to be sufficiently restrictive to achieve the target reduction in sea turtle interactions.
The amendment on which this proposed rule is based also considered an action to establish restrictions on the bait used in the bottom longline reef fish fishery. Two alternatives, including the no action alternative (status quo), were considered. However, the no action alternative was selected by the Council as the preferred alternative. As a result, no regulatory action is required, no direct adverse economic effects would be expected to accrue to entities involved in the bottom longline component of the reef fish fishery in the eastern Gulf, and the issue of significant alternatives is not relevant.
This proposed rule contains a collection-of-information requirement subject to the Paperwork Reduction Act (PRA). This requirement has been submitted to the Office of Management and Budget (OMB) for approval. Public reporting burden for marking a checkbox for a Gulf reef fish bottom longline endorsement on the Federal Permit Application Form is estimated to average less than 1 minute per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
Public comment is sought regarding: whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments regarding the burden estimate or any other aspect of the collection-of-information requirement, including suggestions for reducing the burden, to NMFS and to the OMB (see
Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA unless that collection of information displays a currently valid OMB control number.
Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping requirements, Virgin Islands.
For the reasons set out in the preamble, 50 CFR part 622 is proposed to be amended as follows:
1. The authority citation for part 622 continues to read as follows:
16 U.S.C. 1801
2. In § 622.2, the definition of “Annual catch target” and “Bottom longline” are added in alphabetical order to read as follows:
3. In § 622.4, the third sentence of paragraph (a)(2)(v) and the first sentence of paragraph (g)(1) are revised, and paragraph (a)(2)(xiv) is added to read as follows:
(a) * * *
(2) * * *
(v) * * * See paragraph (a)(2)(ix) of this section regarding an IFQ vessel account required to fish for, possess, or land Gulf red snapper or Gulf groupers and tilefishes and paragraph (a)(2)(xiv) of this section regarding an additional bottom longline endorsement required to fish for Gulf reef fish with bottom longline gear in a portion of the eastern Gulf. * * *
(xiv)
(A)
(B)
(C)
(
(
(D)
(E)
(g) * * *
(1) A vessel permit, license, or endorsement or a dealer permit or endorsement issued under this section is not transferable or assignable, except as provided in paragraph (m) of this section for a commercial vessel permit for Gulf reef fish, in paragraph (o) of this section for a king mackerel gillnet permit, in paragraph (q) of this section for a commercial vessel permit for king mackerel, in paragraph (r) of this section for a charter vessel/headboat permit for Gulf coastal migratory pelagic fish or Gulf reef fish, in paragraph (s) of this section for a commercial vessel moratorium permit for Gulf shrimp, in § 622.17(c) for a commercial vessel permit for golden crab, in § 622.18(b) for a commercial vessel permit for South Atlantic snapper-grouper, in § 622.19(b) for a commercial vessel permit for South Atlantic rock shrimp, or in § 622.4(a)(2)(xiv)(D) for an eastern Gulf reef fish bottom longline endorsement. * * *
4. In § 622.34, paragraph (q) is added to read as follows:
(q)
(2) Within the prohibited area and time period specified in paragraph (q)(1) of this section, a vessel with bottom longline gear on board may not possess Gulf reef fish unless the bottom longline gear is appropriately stowed, and a vessel that is using bottom longline gear to fish for species other than Gulf reef fish may not possess Gulf reef fish. For the purposes of paragraph (q) of this section, appropriately stowed means that a longline may be left on the drum if all gangions and hooks are disconnected and stowed below deck; hooks cannot be baited; and all buoys must be disconnected from the gear but may remain on deck.
(3) Within the Gulf EEZ east of 85°30′ W. long., a vessel for which a valid eastern Gulf reef fish bottom longline endorsement has been issued that is fishing bottom longline gear or has bottom longline gear on board cannot possess more than a total of 1000 hooks including hooks on board the vessel and hooks being fished and cannot possess more than 750 hooks rigged for fishing at any given time. For the purpose of this paragraph, “hooks rigged for fishing” means hooks attached to a line or other device capable of attaching to the mainline of the longline.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Food and Nutrition Service, USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on a proposed information collection for the Child and Adult Care Food Program (CACFP). This information collection concerns the efforts required of States and service institutions to comply with the Secretary's requests for information. This proposed collection is a revision of the currently approved collection for the CACFP.
Written comments must be submitted by March 16, 2010.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; and (d) ways to minimize the burden of collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical or other technological collection techniques or other forms of information technology. Comments may be sent to: Mrs. Lynn Rodgers-Kuperman, Chief, Program Analysis and Monitoring Branch, Child Nutrition Division, Food and Nutrition Service (FNS), U.S. Department of Agriculture, 3101 Park Center Drive, Room 638, Alexandria, Virginia 22302. Comments will also be accepted through the Federal eRulemaking Portal. Go to
All written comment(s) will be open for public inspection at the office of the Food and Nutrition Service during regular business hours (8:30 a.m. to 5 p.m., Monday through Friday) at 3101 Park Center Drive, Room 640, Alexandria, Virginia 22302.
All responses to this notice will be summarized and included in the request for Office of Management and Budget (OMB) approval, and will become a matter of public record.
Mrs. Lynn Rodgers-Kuperman at (703) 305-2590.
Total Reporting & Recordkeeping Estimates: 7,216,300.365
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement in conjunction with development of a new land and resource management plan.
As directed by the National Forest Management Act (NFMA), the USDA Forest Service (FS) is preparing the Kiowa, Rita Blanca, Black Kettle and McClellan Creek National Grasslands land and resource management plan (plan) and will also prepare an environmental impact statement (EIS) for this new plan. Currently, the National Grasslands named above receive management direction from the 1985 Cibola National Forest plan. However, the new plan will provide direction specific to the National Grasslands only, while the 1985 plan will continue to provide direction for the forested, mountain districts of the Cibola National Forest until it is revised in the future. This notice briefly describes the nature of the decision to be made; the proposed action (the new plan) and need for change from the 1985 plan specific to the National Grasslands, and information concerning public participation in the new plan development. It also provides estimated dates for filing the EIS and the names and addresses of the responsible agency official and the individuals who can provide additional information. Finally, this notice briefly describes the applicable planning rule and how work done on the plan revision under the 2008 planning rule will be used or modified for completing this plan revision.
Thus, the new plan will supersede, for the National Grassland units only, the plan previously approved by the Regional Forester on July 15, 1985 and as amended. The 1985 plan amendments relative to the National Grasslands designated new electronic sites; identified eligible Wild and Scenic Rivers; addressed travel management issues and oil and gas leasing stipulations, and the need for additional Management Indicator Species (MIS). The 1985 amended plan will remain in effect for the National Grasslands until the new plan takes effect. When the Record of Decision for the new Kiowa, Rita Blanca, Black Kettle and McClellan Creek National Grasslands plan and Environmental Impact Statement (EIS) and Final Plan is signed by the Responsible Official, the 1985 plan will be amended after 30 days have passed to remove only those portions that apply to the National Grasslands. Again, the 1985 plan as currently amended will still apply to the rest of the Cibola National Forest until it is revised.
Comments concerning the need for change provided in this notice will be most useful in the development of the new plan and draft EIS if received by February 15, 2010. The agency expects to release a draft Grasslands plan and draft EIS for formal comment by fall 2010 and a final National Grasslands plan and final EIS by summer 2011.
Send written comments to: Cibola National Forest, 2113 Osuna Rd. NE., Albuquerque, NM 87113. Comments may also be sent via e-mail to
Champe Green (Forest Planner), Cibola National Forest and Grasslands, 2113 Osuna Rd., NE., Albuquerque, NM 87113;
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Time Monday through Friday.
Corbin Newman, Regional Forester, Southwestern Region, 333 Broadway SE., Albuquerque, NM 87102.
The Kiowa, Rita Blanca, Black Kettle and McClellan Creek National Grasslands, managed by the Cibola National Forest, are preparing an EIS to develop a new plan pertaining to the National Grasslands portion of the Forest only. The EIS process is meant to inform the Regional Forester so that he can decide which National Grasslands plan alternative best meets the need to achieve quality land management under the sustainable multiple-use management concept, meet the diverse needs of people, and conserve the National Grasslands' resources, as required by the NFMA and the Multiple Use Sustained Yield Act (MUSYA).
The new plan will describe the strategic intent of managing the National Grasslands into the next 10 to 15 years and will address the need for change described below. The new plan will provide management direction in the form of goals (desired conditions), objectives, suitability determinations, standards, guidelines, and a monitoring plan, including identification of MIS. It may also make new special area recommendations for wilderness, research natural areas, and other special areas.
As important as the decisions to be made is the identification of the types of decisions that will not be made within the new plan. The authorization of project-level activities on the National Grasslands is not a decision made in the National Grasslands plan but occurs through subsequent project specific decision-making. The designation of routes, trails, and areas
According to the NFMA, plans are to be revised on a 10 to 15 year cycle. The purpose and need for developing a new National Grasslands plan is: (1) The 1985 plan does not address many of the unique local features of the National Grasslands because it was developed primarily for the forested, mountain districts of the Cibola National Forest; (2) the 1985 plan is over 20 years old, and (3) since 1985, there have been changes in economic, social, and ecological conditions, new policies and priorities, and new information generated by monitoring and scientific research.
Extensive public, agency, and interagency collaborations, along with science-based evaluations, have identified the need for change in the 1985 plan by developing a National Grasslands-specific plan. This need for change has been organized into three topics that focus on the sustainability of ecological, social, and economic systems: (1) Ecosystem Diversity, (2) Managed Recreation, and (3) Human Influences on the National Grasslands. The need for change is described fully through an Analysis of Management Situation (AMS), which is comprised of the Comprehensive Evaluation Report (CER) and its supplement, both of which are available on the Forest's Web site:
The proposed action is to develop a new National Grasslands-specific plan that addresses the above three topics.
Since the 1985 plan was implemented, ecological monitoring and new scientific information have advanced the agency's knowledge and understanding of vegetation and its range of historical variation, ecological processes, and habitat requirements of native fauna of the National Grasslands. Similarly, since 1985, new issues have emerged, such as the unwelcome introduction of non-native plants and animals and changes in climate.
• The vegetation types found on the National Grasslands are altered remnants of what were once found across the southern Great Plains. In the new plan, there is a need to provide management direction that will maintain or accelerate movement of vegetation types toward conditions within the historical range of variation (HRV), recognizing that past events may limit the ability to achieve full restoration.
• There are invasive plants present on the National Grasslands that have the potential to affect ecosystem structure, composition, and processes. Currently, there are no known invasive animals. The new plan needs to provide management direction addressing the unwelcome introduction, spread, and control of invasive plants and animals.
• The new plan needs to provide direction on anticipating and responding to changes in the climate, relative to National Grasslands management.
• During the new plan development, there may be a need to reevaluate and update the MIS list. MIS are species whose population trends could possibly indicate the effects of FS management activities.
The 1985 plan does not clearly and specifically address issues related to recreation and scenic resources that play a vital role in supporting social and economic sustainability on the National Grasslands. The new plan needs to provide direction that is more specific to the Grasslands relative to management of motorized, dispersed and developed recreation opportunities, areas of high scenic quality and assessment and possible designation of special areas. Relevant law, policy, regulation and other FS direction developed since 1985 also needs to be incorporated by reference into the new plan, and redundancies removed.
• The demand for day-hiking, particularly on scenic and interpretive trails, continues to increase on the National Grasslands. The new plan needs to provide more direction on management of dispersed recreation.
• There are components of the 1985 plan which are redundant with existing FS Handbook and Manual direction. Redundancies will be absent from the new plan, and current Handbook and Manual direction will be incorporated by specific reference.
• There is a need for the revised plan to reflect and support direction from the implementation of the Travel Management Rule. The new National Grasslands plan is being developed concurrently with the Travel Management Study EA for the Kiowa and Rita Blanca National Grasslands, but the new plan will not be pre-decisional to the findings of the EA or the resultant motor vehicle use map.
• There is a need for the new plan to provide direction to manage for recreation opportunities in a variety of different settings and levels of development, from large, developed recreation settings with many facilities, to primitive settings.
• There is a need for the new plan to provide direction that management of scenic resources be based on objectives for specific areas, particularly those areas identified as having high scenic quality.
• Plan direction addressing opportunities for visiting, touring, and enjoying guided and interpretive activities related to unique scenery, historic/cultural sites, wildlife, and formally-designated sites (such as eligible Wild and Scenic Rivers, Historic Trails and Scenic Byways) needs to be included in the new plan.
• The development of the new plan will assess the need for additional special area designations such as potential wilderness, an eligible Wild and Scenic River, or potential research natural areas (RNA) and provide direction.
The 1985 plan does not provide adequate direction to the National Grasslands regarding the management and monitoring of livestock grazing; the placement, maintenance or rehabilitation of energy development sites; the use of planned or unplanned fire; nor the allowance of special uses (
• The new plan needs to provide management direction to the livestock grazing program that incorporates adaptive management toward ecosystem-based desired conditions.
• Because of increasing interest in alternative energy enterprises such as wind farms in the proximity of the National Grasslands, the new plan needs to provide direction for guiding energy development on the National Grasslands, while protecting natural resources, heritage sites and scenery.
• There is a need to provide direction in the new plan for the rehabilitation of disturbed sites, such as oil and gas pads and roads, after operations have ceased, in order to protect soil productivity and re-establish vegetative cover.
• The new plan needs to provide direction to the process of obtaining legal road access to National Grassland units, access that meets public, private landowner and management needs.
• Because of the projected increase and changes in the type of energy developments in the region and the land ownership pattern of the National Grasslands, the new plan needs to provide direction on the permitting of utility easements and related special uses.
• There are many special uses of the National Grasslands that provide economic support to local communities. The new plan needs to provide direction for accommodating the removal of miscellaneous products for commercial, non-commercial and Tribal use, such as wood products, plants, grass seed, or other materials.
• The new plan needs to provide direction on the non-commercial use of common mineral materials, so that resources can be adequately protected.
• The new plan should provide direction on the management of firewood and fuelwood harvesting and gathering on the National Grasslands.
• There is a need for the new plan to provide direction on opportunities to conduct research on the National Grasslands, regardless of whether a research natural area is established.
• The checkerboard pattern of the National Grassland units and private land, along with the types of fuels found on the National Grasslands, create a fire environment which is very different from forests of the intermountain west. The new plan needs to provide direction for applying management strategies for responding to wildland fires and using prescribed fire on National Grassland units to avoid loss of life or significant property damage.
• The new plan needs to provide updated direction on the stabilization and preservation of historic structures and Traditional Cultural Properties. The new plan should also provide direction on the role of heritage sites in economic development.
Extensive public involvement and collaboration related to revising the National Grasslands plan has already occurred and is ongoing. Informal discussions with the public regarding needed changes to the 1985 plan began with a series of public meetings in 2006. This input, along with science-based evaluations, was used to determine the needs for change identified above. Additional meetings, correspondence, news releases, comment periods, and other tools have been utilized to gather feedback from the public, forest employees, Tribal governments, Federal and State agencies, and local governments. The most recent public involvement was a series of public meetings held in March 2009 to solicit input and comment on potential desired conditions, which had been developed based upon previous public collaboration. The Forest desires to continue collaborative efforts with members of the public who are interested in the National Grasslands management, as well as Native American Tribes, Federal and State agencies, local governments, and private organizations.
Future public meetings to gather input on the working draft plan and potential alternatives are tentatively scheduled for late winter or spring 2010. The dates, times, and locations of these meetings will be posted on the Forest's Web site:
The information gathered at these meetings will help guide the development of the draft plan and draft EIS. Once the draft plan and draft EIS are compiled and released (tentatively scheduled for September 2010), members of the public will have 45 days to submit comments. After consideration of comments, a final proposed plan and final EIS will be released in early 2011. We anticipate using the 2000 planning rule pre-decisional objection process (36 CFR 219.32) for administrative review.
At this time, the Cibola National Forest is seeking input on the need for change and the proposed action to develop a new National Grasslands-specific plan: Did we miss any substantive issues or concerns? It is important that reviewers provide their comments at such times and in such a way that they are useful to the Agency's preparation of the revised plan and the EIS. Therefore, comments on the proposed action (need for a new plan) and needs for change will be most valuable if received by February 15, 2010, and should clearly articulate the reviewer's concerns. The submission of timely and specific comments can affect a reviewer's ability to participate in subsequent administrative or judicial review.
Comments received in response to this solicitation, including the names and addresses of those who comment will be part of the public record. Comments submitted anonymously will be accepted and considered.
Preparation of the new plan was underway when the 2008 National Forest System land management planning rule was enjoined on June 30, 2009, by the United States District Court for the Northern District of California (
A formal Notice of Initiation to revise the forest plan was published on September 19, 2008, in the
The Forest had begun collaborative development of forest plan components during the fall of 2008. The latest set of plan components, the Working Draft
Although the 2008 planning rule is no longer in effect, information gathered prior to the court's injunction is useful for completing the plan revision using the provisions of the 1982 planning rule. The Cibola National Forest has concluded that the following material developed during the plan revision process to date is appropriate for continued use in the revision process:
• The CER was completed in September 2008. It forms the basis for need to change the existing Forest Plan and the proposed action for the plan revision to develop a National Grasslands-specific plan.
• The Kiowa, Rita Blanca, Black Kettle and McClellan Creek National Grasslands CER Supplementary Document to meet AMS Requirements, December 2009 (as described above).
• The Ecological Sustainability Report (ESR) that was completed in August, 2008 will continue to be used as a reference in the planning process as appropriate to those items in conformance with the 2000 planning rule transition language and 1982 planning rule provisions. This is scientific information and is not affected by the change of planning rule. This information will be updated with any new available information.
• The Socio-economic Sustainability Report that was completed in August 2008 is not affected by the change in planning rule and will continue to be used as a reference in the planning process. This information will be updated with any new available information.
• The Kiowa National Grassland Potential Wilderness Evaluation Report for the Canadian River Potential Wilderness Area, completed in October 2008.
• USDA FS, Southwestern Region, Mid-Scale Vegetation Analysis, June 2009 (BKMC NG); November 2009 (KRB NG); an inventory of current vegetation conditions.
• USDA FS, Southwestern Region, Potential Natural Vegetation Types, 2008. A simulation of vegetation inventory pre-European settlement, which functions as the reference condition for current analysis.
• USDA Cibola National Forest, Kiowa and Rita Blanca National Grasslands, Geographic Area Assessments, v. 1, 1999.
• USDA Cibola National Forest, Black Kettle and McClellan Creek National Grasslands, Geographic Area Assessments, v. 1, 2000.
All of the above described documents are either available on the Forest's Web site:
As necessary or appropriate, the above listed material will be further adjusted as part of the planning process using the provisions of the 1982 planning rule.
16 U.S.C. 1600-1614; 36 CFR 219.35 (74 FR 67073-67074).
Animal and Plant Health Inspection Service, USDA.
Notice.
We are advising the public that we have prepared an environmental assessment and finding of no significant impact relative to oral rabies vaccination programs in several States. The environmental assessment made available by this notice analyzes the further expansion of the oral rabies vaccination program to include the States of New Mexico and Arizona, which is necessary to effectively combat the gray fox variant of the rabies virus. The environmental assessment provides a basis for our conclusion that the expansion of the oral rabies vaccination program will not have a significant impact on the quality of the human environment. Based on its finding of no significant impact, the Animal and Plant Health Inspection Service has determined that an environmental impact statement need not be prepared.
To obtain copies of the environmental assessment and finding of no significant impact, contact Mr. Kevin Williams, Operational Support Staff, WS, APHIS, 4700 River Road Unit 87, Riverdale, MD 20737-1234; phone (301) 734-4937, fax (301) 734-5157, or email: (
Dr. Dennis Slate, Rabies Program Coordinator, Wildlife Services, APHIS, 59 Chenell Drive, Suite 7, Concord, NH 03301; (603) 223-9623.
The Wildlife Services (WS) program in the Animal and Plant Health Inspection Service (APHIS) cooperates with Federal agencies, State and local governments, and private individuals to research and implement the best methods of managing conflicts between wildlife and human health and safety, agriculture, property, and natural resources. Wildlife-borne diseases that can affect domestic animals and humans are among the types of conflicts that APHIS-WS addresses. Wildlife is the dominant reservoir of rabies in the United States.
On November 24, 2009, we published a notice
We solicited comments on the proposed environmental assessment for 30 days ending on December 24, 2009. We received 102 comments by that date. The comments, which were almost entirely supportive of the vaccination program, are addressed in an attachment to the finding of no significant impact.
In this document, we are advising the public of our finding of no significant impact regarding the further expansion
The environmental assessment and finding of no significant impact may be viewed on the Regulations.gov Web site (see footnote 1). Copies are also available from the individual listed under
The environmental assessment and finding of no significant impact have been prepared in accordance with: (1) The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321
Done in Washington, DC, this 12
The Broadcasting Board of Governors.
Submission for OMB review; comment request.
Under the provisions of the Paperwork Reduction Act of 1995 [Pub. L. 104-13; 44 U.S.C. Chapter 3506(c)(2)(A)], this notice announces that the information collection activity titled, “Surveys and Other Audience Research for Radio and TV Marti” has been forwarded to the Office of Management and Budget (OMB) for review and comment. The Broadcasting Board of Governors (BBG) is requesting reinstatement of this collection for a three-year period and approval of a revision to the burden hours. The information collection activity involved with this program is conducted pursuant to the mandate given to the BBG (formerly the United States Information Agency) in accordance with Public Law 98-111, the Radio Broadcasting to Cuba Act, dated, October 4, 1983, to provide for the broadcasting of accurate information to the people of Cuba and for other purposes. This act was amended by Public Law 101-246, dated, February 16, 1990, which established the authority for TV Marti.
Comments must be submitted on or before February 16, 2010.
Ms. Cathy Brown, the BBG Clearance Officer, BBG, IBB/A, Room 1274, 330 Independence Avenue, SW., Washington, DC 20237, telephone (202) 203-4664, e-mail address
An Agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
Public reporting burden for this proposed collection of information is estimated to average 30 minutes (.50 of an hour) per response for field survey respondents (600), and 240 minutes (4 hours) for Focus Group Study respondents (48), and 153 minutes (2.33 hours) for 120 Panel Group Study respondents based on one panel study, 10 respondents per month for 12 months, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Responses are voluntary and respondents will be required to respond only one time. Comments are requested on the proposed information collection concerning:
(a) Whether the proposed collection of information is necessary for the proper performance of the agency, including whether the information has practical utility;
(b) The accuracy of the Agency's burden estimates;
(c) Ways to enhance the quality, utility, and clarity of the information collected; and
(d) Ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. Send comments regarding this burden estimate or any other aspect of this collection of information to Ms. Cathy Brown, the BBG Clearance Officer, BBG, IBB/A, Room 1274, 330 Independence Avenue, SW., Washington, DC 20237, telephone (202) 203-4664, e-mail address
In connection with its investigation into a natural gas explosion that occurred at the ConAgra production facility in Garner, North Carolina the
The meeting will begin at 6 p.m. in the Oak Forrest Ballroom at the Sheraton Raleigh Hotel, 421 Salisbury St., Raleigh, North Carolina. The meeting is free and open to the public. Pre-registration is not required, but to assure adequate seating, attendees are encouraged to pre-register by emailing their names and affiliations to
On June 9, 2009, the ConAgra Slim Jim production facility in Garner, North Carolina, experienced a catastrophic natural gas explosion that caused four deaths, three critical life-threatening burn injuries, an amputation, and other injuries that sent a total of 71 people to the hospital. The explosion caused serious structural damage to 100,000 square feet of the packaging area of the plant, including wall and roof collapse, which had the potential to cause additional deaths and serious injuries.
The accident occurred during the installation and commissioning of a new gas-fired industrial water heater, manufactured by Energy Systems Analysts, Inc. (ESA). On the day of the accident, an ESA worker was attempting to purge the new gas piping of air by opening the supply of gas, prior to the start-up of the water heater. The purged gas was piped directly into the room rather than being vented to the outside. Some ConAgra employees smelled gas in the packaging area, others did not. Personnel who were in and out of the utility room noticed the gas odor but most were not seriously concerned and considered the purging activity to be a normal part of the start-up process. The ESA and ConAgra employees were not aware that as a result of the purging, a dangerous release of natural gas had occurred into the building, exceeding the lower explosive limit (LEL).
The vicinity of the utility room contained numerous potential ignition sources, including multiple unclassified electrical devices. Nonessential personnel were neither aware of the water heater start-up nor instructed to leave the plant during the gas line purging activity. Over 200 people who had no role in the installation were in the building at the time of the explosion.
At the meeting, the CSB investigative team will present its preliminary findings supporting the need for urgent recommendations arising from this incident to the CSB Board and the public. The Board will then ask questions of the team. At the end of the panel discussion, the Board will consider the urgent recommendations proposed by the staff. At the end of the Board's deliberations, the Board may decide to proceed to vote to formally approve the draft urgent recommendations.
The meeting will be videotaped and an official transcript will be included in the investigative file. All staff presentations are preliminary and are intended solely to allow the Board to consider the issues and factors involved in this case in a public forum. No factual analyses, conclusions, findings or recommendations of the staff should be considered final. Only after the Board has considered and approved the urgent recommendations will there be an approved final record.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to Jasmeet Seehra, OMB Desk Officer, via the Internet at
National Oceanic and Atmospheric Administration (NOAA).
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before March 16, 2010.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection
Respondents have a choice of either electronic or paper forms. Methods of submittal include e-mail of electronic forms, and mail and facsimile transmission of paper forms.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (“Department”) is conducting a new shipper review (“NSR”) of the antidumping duty order on certain steel nails from the People's Republic of China (“PRC”).
January 15, 2010.
Tim Lord or Matthew Renkey, Office 9, AD/CVD Operations, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-7425 and (202) 482-2312, respectively.
On February 25, 2009, pursuant to section 751(a)(2)(B)(i) of the Tariff Act of 1930, as amended (“Act”), and 19 CFR 351.214(c), the Department received a NSR request from Qingdao Denarius. Qingdao Denarius certified that it is a producer and exporter of the subject merchandise upon which the request was based. On March 20, 2009, the Department initiated the requested antidumping duty NSR.
Between April 3, 2009, and August 4, 2009, Qingdao Denarius submitted responses to the original sections A, C, and D questionnaires and supplemental sections A, C, and D questionnaires.
On October 29, 2009, the Department sent interested parties a letter requesting comments on surrogate country selection and information pertaining to valuing factors of production (“FOP”). On November 24, 2009, Petitioner
Pursuant to 19 CFR 351.307(b)(iv), we conducted verification of the sales and factors of production (“FOP”) for Qingdao Denarius between November 9-12, 2009.
The merchandise covered by this order includes certain steel nails having a shaft length up to 12 inches. Certain steel nails include, but are not limited to, nails made of round wire and nails that are cut. Certain steel nails may be of one piece construction or constructed of two or more pieces. Certain steel nails may be produced from any type of steel, and have a variety of finishes, heads, shanks, point types, shaft lengths and shaft diameters. Finishes include, but are not limited to, coating in vinyl, zinc (galvanized, whether by electroplating
Excluded from the scope of this proceeding are roofing nails of all lengths and diameter, whether collated or in bulk, and whether or not galvanized. Steel roofing nails are specifically enumerated and identified in ASTM Standard F 1667 (2005 revision) as Type I, Style 20 nails. Also excluded from the scope of this proceeding are corrugated nails. A corrugated nail is made of a small strip of corrugated steel with sharp points on one side. Also excluded from the scope of this proceeding are fasteners suitable for use in powder-actuated hand tools, not threaded and threaded, which are currently classified under HTSUS 7317.00.20 and 7317.00.30. Also excluded from the scope of this proceeding are thumb tacks, which are currently classified under HTSUS 7317.00.10.00. Also excluded from the scope of this proceeding are certain brads and finish nails that are equal to or less than 0.0720 inches in shank diameter, round or rectangular in cross section, between 0.375 inches and 2.5 inches in length, and that are collated with adhesive or polyester film tape backed with a heat seal adhesive. Also excluded from the scope of this proceeding are fasteners having a case hardness greater than or equal to 50 HRC, a carbon content greater than or equal to 0.5 percent, a round head, a secondary reduced-diameter raised head section, a centered shank, and a smooth symmetrical point, suitable for use in gas-actuated hand tools.
While the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this investigation is dispositive.
In every case conducted by the Department involving the PRC, the PRC has been treated as a non-market economy (“NME”) country.
A designation as a NME remains in effect until it is revoked by the Department.
The Department considers the following
In this review, Qingdao Denarius submitted a complete response to the separate rates section of the Department's NME questionnaire. The evidence submitted by Qingdao Denarius includes government laws and regulations on corporate ownership, business licenses, and narrative information regarding the company's operations and selection of management. The evidence provided by Qingdao Denarius supports a finding of a
The absence of
In this review, Qingdao Denarius submitted evidence indicating an absence of de facto government control over their export activities. Specifically, this evidence indicates that: (1) the company sets its own export prices independent of the government and without the approval of a government authority; (2) the company retains the proceeds from its sales and makes independent decisions regarding the disposition of profits or financing of losses; (3) the company has a general manager, branch manager or division manager with the authority to negotiate and bind the company in an agreement; (4) the general manager is selected by the board of directors or company employees, and the general manager appoints the deputy managers and the manager of each department; and (5)
Consistent with the Department's practice, we investigated the
Based on our investigation into the
When the Department is investigating imports from an NME country, section 773(c)(1) of the Act directs it to base normal value (“NV”), in most circumstances, on the NME producer's FOPs, valued in a surrogate market economy country or countries considered to be appropriate by the Department. In accordance with section 773(c)(4) of the Act, in valuing the FOPs, the Department shall utilize, to the extent possible, the prices or costs of FOPs in one or more market economy countries that are: (1) at a level of economic development comparable to that of the NME country; and (2) significant producers of comparable merchandise.
The Department determined that India, Philippines, Indonesia, Colombia, Thailand, and Peru are countries comparable to the PRC in terms of economic development.
In accordance with 19 CFR 351.301(c)(3)(ii), for the final results in an antidumping administrative review, interested parties may submit publicly available information to value FOPs within 20 days after the date of publication of these preliminary results.
For Qingdao Denarius' sale to the United States, we used the export price (“EP”) methodology, pursuant to section 772(a) of the Act, because the first sale to an unaffiliated purchaser was made prior to importation, and CEP was not otherwise warranted by the facts on the record. We calculated EP based on the price to unaffiliated purchasers in the United States.
In accordance with section 772(c) of the Act, as appropriate, we deducted from the starting price to unaffiliated purchasers foreign inland freight and brokerage and handling. We have reviewed each of these services and expenses reported by Qingdao Denarius and find that they were provided by an NME vendor or paid for using PRC currency. Thus, we based the deduction of these movement charges on surrogate values.
Section 773(c)(1)(B) of the Act provides that the Department shall determine the NVusing a FOP methodology if the merchandise is exported from an NME country and the information does not permit the calculation of NV using home-market prices, third-country prices, or constructed value under section 773(a) of the Act. The Department bases NV on the FOPs because the presence of government controls on various aspects of NMEs renders price comparisons and the calculation of production costs invalid under the Department's normal methodologies.
In accordance with section 773(c) of the Act, we calculated NV based on FOPs reported by Qingdao Denarius during the POR. To calculate NV, we multiplied the reported per-unit factor-consumption rates by publicly available Indian surrogate values. In selecting the surrogate values, we considered the quality, specificity, and contemporaneity of the data. As appropriate, we adjusted input prices by including freight costs to make them delivered prices. Specifically, we added to Indian import surrogate values a
Indian surrogate values denominated in foreign currencies were converted to USD using the applicable average exchange rate based on exchange rate data from the Department's website. For further details regarding the surrogate values used for these preliminary results,
As a result of our review, we preliminarily find that the following margins exist for the period January 23, 2008, through January 31, 2009:
The Department will disclose to parties of this proceeding the calculations performed in reaching the preliminary results within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).
In accordance with 19 CFR 351.301(c)(3)(ii), for the final results of this administrative review, interested parties may submit publicly available information to value FOPs within 20 days after the date of publication of these preliminary results. Interested parties must provide the Department with supporting documentation for the publicly available information to value each FOP. Additionally, in accordance with 19 CFR 351.301(c)(1), for the final results of this NSR, interested parties may submit factual information to rebut, clarify, or correct factual information submitted by an interested party less than ten days before, on, or after, the applicable deadline for submission of such factual information. However, the Department notes that 19 CFR 351.301(c)(1) permits new information only insofar as it rebuts, clarifies, or corrects information recently placed on the record.
Interested parties may submit case briefs and/or written comments no later than 30 days after the date of publication of these preliminary results of this NSR.
Any interested party may request a hearing within 30 days of publication of these preliminary results. See 19 CFR 351.310(c). Requests should contain the following information: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. Oral presentations will be limited to issues raised in the briefs. If we receive a request for a hearing, we plan to hold the hearing seven days after the deadline for submission of the rebuttal briefs at the U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230.
The Department intends to issue the final results of this NSR, which will include the results of its analysis raised in any such comments, within 90 days of publication of these preliminary results, pursuant to section 751(a)(2)(B)(iv) of the Act.
Upon completion of the final results, pursuant to 19 CFR 351.212(b), the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries on a weighted-average basis. The Department intends to issue assessment instructions to CBP 15 days after the date of publication of the final results of review. If these preliminary results are adopted in our final results of review, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries. Pursuant to 19 CFR 351.212(b)(1), we will calculate importer-specific (or customer) per-unit duty assessment rates. We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review if any importer-specific assessment rate calculated in the final results of this NSR is above
The following cash deposit requirements, when imposed, will be effective upon publication of the final results of this NSR for all shipments of subject merchandise from Qingdao Denarius entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) for subject merchandise produced and exported by Qingdao Denarius, the cash deposit rate will be the rate that is established in the final results of this NSR; (2) for subject merchandise exported by Qingdao Denarius but not manufactured by Qingdao Denarius, the cash deposit rate will continue to be the PRC-wide rate (
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing this determination in accordance with sections 751(a)(2)(B) and 777(i) of the Act, and 19 CFR 351.214(h) and 351.221(b)(4).
Import Administration, International Trade Administration, Department of Commerce.
On January 4, 2010, the U.S. Court for International Trade (CIT) sustained the Department of Commerce's (the Department) results of redetermination pursuant to the CIT's remand and entered final judgment in
Jacqueline Arrowsmith or Dana Mermelstein, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, D.C. 20230.; telephone: (202) 482-5255 OR (202) 482-1391, respectively.
On October 15, 2008, the Department published the final results of its administrative review of circular welded carbon steel pipes and tubes from Thailand.
In
In its decision in
This notice is issued and published in accordance with section 516A(c)(1) of the Act.
An application has been submitted to the Foreign-Trade Zones (FTZ) Board (the Board) by the Greater Rockford Airport Authority, grantee of Foreign-Trade Zone 176, requesting authority to reorganize the zone under the alternative site framework (ASF) adopted by the Board (74 FR 1170, 1/12/09; correction 74 FR 3987, 1/22/09). The ASF is an option for grantees for the establishment or reorganization of general-purpose zones and can permit significantly greater flexibility in the designation of new “usage-driven” FTZ sites for operators/users located within a grantee's “service area” in the context of the Board's standard 2,000-acre activation limit for a general-purpose zone project. The application was submitted pursuant to the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u) and the regulations of the Board (15 CFR part 400). It was formally filed January 6, 2010.
FTZ 176 was approved by the Board on March 1, 1991 (Board Order 511, 56 FR 10409, 3/12/91) and expanded on February 9, 2005 (Board Order 1368, 70 FR 9613, 2/28/05), August 3, 2006 (Board Order 1473, 71 FR 47483, 8/17/06 and on January 30, 2009 (Board Order 1603, 74 FR 6570, 2/10/09). The general-purpose zone currently consists of the following sites:
The grantee's proposed service area under the ASF would be Winnebago, Stephenson, Ogle, Lee, DeKalb, and Boone Counties, and portions of Bureau, McHenry and Kane Counties, Illinois. If approved, the grantee would be able to serve sites throughout the service area based on companies' needs for FTZ designation. The proposed service area is within and adjacent to the Rockford Customs and Border Protection port of entry.
The applicant is requesting authority to reorganize its existing zone project to include all of the sites as “magnet sites” and 40 acres of Site 4 would be deleted due to changed circumstances.
In accordance with the Board's regulations, Claudia Hausler of the FTZ Staff is designated examiner to evaluate and analyze the facts and information presented in the application and case record and to report findings and recommendations to the Board.
Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is March 16, 2010. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to March 31, 2010.
A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 2111, U.S. Department of Commerce, 1401 Constitution Avenue, NW., Washington, DC 20230-0002, and in the “Reading Room” section of the Board's Web site, which is accessible via
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Mid-Atlantic Fishery Management Council's (MAFMC) Scientific and Statistical Committee (SSC) will hold a public meeting.
The meeting will be held on Tuesday, February 16, 2010, from 9 a.m. to 4 p.m.
The meeting will be held at the Sheraton Four Points, 7032 Elm Road, Baltimore, MD 21240; telephone: (410) 859-3300.
Daniel T. Furlong, Executive Director, Mid-Atlantic Fishery Management Council, 300 S. New Street, Room 2115, Dover, DE 19904; telephone: (302) 674-2331, extension 19.
Topics to be discussed include new member orientation (overview of Council process and role of the SSC), review and adoption of SSC Standard Operating Practices and Procedures, ABC Control Rule Framework and Council Risk Policy, review 2010 SSC meeting schedule, and an update on the Management Strategy Evaluation Study funded by Council.
Although non-emergency issues not contained in this agenda may come before this group for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), those issues may not be the subject of formal action during this meeting. Actions will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the MAFMC's intent to take final action to address the emergency.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to M. Jan Bryan at the Mid-Atlantic Council Office, (302) 674-2331 extension 18, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Joint Canada-U.S. Review Panel (Panel) for Pacific hake/whiting will hold a work session that is open to the public.
The Joint Canada-U.S. Review Panel will be held beginning at 9 a.m., Monday, February 8, 2010 and will continue through Wednesday, February 10, 2010. The meetings will begin at 9 a.m. and end at 5:30 p.m. each day or until business for each day is completed.
The Joint Canada-U.S. Review Panel for Pacific hake/whiting will be held at the Hotel Deca, 4507 Brooklyn Avenue N.E., Seattle WA 98105; telephone: 1-800-899-0251.
Ms. Stacey Miller, NMFS Northwest Fisheries Science Center; telephone: (206) 437-5670; or Mr. John DeVore, Pacific Fishery Management Council; telephone: (503) 820-2280.
The purpose of the Joint Canada-U.S. Review Panel for Pacific hake/whiting is to review draft 2010 stock assessment documents and any other pertinent information for Pacific hake/whiting, work with the Stock Assessment Team to make necessary revisions, and produce a Joint Canada-U.S. Review Panel report for use by the Pacific Council family and other interested persons for developing management recommendations for 2010 fisheries. No management actions will be decided by the Panel. The Panel's role will be development of recommendations and reports for consideration by the Pacific Council at its March meeting in Sacramento, CA.
Although non-emergency issues not contained in the meeting agenda may come before the Panel participants for discussion, those issues may not be the subject of formal Joint Canada-U.S. Review Panel action during this meeting. Panel action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Panel participants' intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Ms. Carolyn Porter at (503) 820-2280 at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting by teleconference.
The North Pacific Fishery Management Council's (Council) Individual Fishing Quota (IFQ) Implementation Team will have a teleconference on February 4, 2010. The conference number to call is (907) 271-2896.
The teleconference will be held on February 4, 2010 at 9 a.m. (Alaska Standard Time).
The teleconference will be held at the North Pacific Fishery Management Council, 605 W. 4th Avenue, Suite 306, Anchorage, AK.
Jane DiCosimo, Council staff; telephone: (907) 271-2809.
The Team will review four new proposals, which can be reviewed on the Council website at
Although non-emergency issues not contained in this agenda may come before this group for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), those issues may not be the subject of formal action during this meeting. Actions will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Gail Bendixen at (907) 271-2809 at least 7 working days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of SEDAR Steering Committee Meeting.
The SEDAR Steering Committee will meet via conference call to discuss timing of assessment projects for 2010, progress on procedural modifications, and the need for conflict of interest policies. See
The SEDAR Steering Committee will meet on Monday, February 8, 2010, from 9:30 a.m. to 11:30 a.m., EST.
The meeting will be held via conference call. Listening stations are available at the following locations: South Atlantic Fishery Management Council, 4055 Faber Place Drive #201, North Charleston, SC 29405; Gulf of Mexico Fishery Management Council, 2203 North Lois Avenue, Suite 1100, Tampa, FL 33607; and Caribbean Fishery Management Council, 268 Munoz Rivera Ave., Suite 1108, San Juan, Puerto Rico 00918.
John Carmichael, Science and Statistics Program Manager, SAFMC, 4055 Faber Place, Suite 201, North Charleston, SC 29405; telephone: (843) 571-4366 or toll free: (866) SAFMC-10; fax: (843) 769-4520.
The South Atlantic, Gulf of Mexico, and Caribbean Fishery Management Councils; in conjunction with NOAA Fisheries, the Atlantic States Marine Fisheries Commission, and the Gulf States Marine Fisheries Commission; implemented the Southeast Data, Assessment and Review (SEDAR) process, a multi-step method for determining the status of fish stocks. The SEDAR Steering Committee provides oversight of the SEDAR
During this conference call the Steering Committee will discuss assessment scheduling for 2010, including changes in the completion dates for updates, the addition of a Goliath Grouper benchmark assessment, and additional Gulf of Mexico tilefish stocks to be assessed during SEDAR 22. The Committee will receive updates on procedural workshops addressing uncertainty and historic catch estimates. The Committee will discuss stocks to update for the Gulf of Mexico in 2011, timing of a future South Atlantic tilefish assessment, and the type of assessment to be conducted next for Gulf red snapper. The Committee will discuss progress on procedural changes implemented in 2010 and receive feedback from the Councils on the proposed changes. The Committee will discuss revised guidelines addressing conflict of interest policies for scientific reviewers and consider whether SEDAR policy changes are required.
Although non-emergency issues not contained in this agenda may come before this group for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), those issues may not be the subject of formal action during this meeting. Actions will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the South Atlantic Fishery Management Council office at the address listed above at least 5 business days prior to the meeting.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application for a Letter of Authorization; request for comments and information.
NMFS has received an application from the U.S. Department of the Air Force, Headquarters 96
Comments and information must be received no later than February 16, 2010.
Comments on the application should be addressed to P. Michael Payne, Chief, Permits, Conservation, and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3225. The mailbox address for providing email comments is
Instructions: All comments received are a part of the public record and will generally be posted to
A copy of the application containing a list of the references used in this document may be obtained by writing to the address specified above, telephoning the contact listed below (see
Howard Goldstein or Jolie Harrison, Office of Protected Resources, NMFS, 301-713-2289, ext. 172.
A copy of the application containing a list of the references used in this document may be obtained by writing to the address specified above, telephoning the contact listed below (see
Documents cited in this notice may be viewed, by appointment, during regular business hours, at the aforementioned address.
In the case of military readiness activities (as defined by Subsection 315(f) of Public Law 107-314; 16 U.S.C. 703 note), subparagraphs 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
An authorization for the incidental takings may be granted if NMFS finds that the taking during the period of the authorization will have a negligible
NMFS has defined “negligible impact” in 50 CFR 216.103 as:
“...an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
With respect to military readiness activities, the MMPA defines “harassment” as:
“(i) any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or behavioral patterns are abandoned or significantly altered (Level B harassment).”
On November 6, 2009, NMFS received an application from the U.S. Air Force requesting an authorization for the take of marine mammals incidental to NEODS training operations. The requested regulations would establish a framework for authorizing incidental take future Letters of Authorization (LOA). These LOAs, if approved, would authorize the take, by Level B (behavioral) harassment, of Atlantic bottlenose dolphins (
The NEODS may conduct up to eight two-day demolition training events annually; these missions may occur at any time of the year, although the U.S. Air Force anticipates that 60 percent of the specified activities will occur during summer months while 40 percent will occur during winter months. Each demolition training event involves a maximum of five detonations. Up to 20 five-pound (lb) charges (five lbs net explosive weight [NEW] per charge) and 20 ten-lb charges (ten lbs NEW per charge) would be detonated annually in the GOM, approximately three nautical miles (5.6 kilometers) offshore of Eglin AFB. Detonations would be conducted on the sea floor, adjacent to an inert mine, at a depth of approximately 60 feet (18.3 meters). Additional information on the NEODS training operations is contained in the application, which is available upon request (see
Interested persons may submit information, suggestions, and comments related to the U.S. Air Force's request (see
Economic Development Administration, Commerce.
Notice.
The Secretary of Commerce is directed by Section 1866 of the Trade and Globalization Adjustment Assistance Act of 2009 (TGAAA), which became effective May 17, 2009, to submit to Congress a report on the Trade Adjustment Assistance for Firms (TAAF) program by the 15th of December each year. The TAAF Program is one of four Trade Adjustment Assistance (TAA) programs authorized by the Trade Act of 1974 (Trade Act). The mission of the TAAF Program is to provide technical and financial assistance to U.S. firms affected by import competition. The program provides assistance in the development of business recovery plans, which are known as Adjustment Proposals under Section 252 of the Trade Act, and matching funds to implement projects outlined in the Adjustment Proposals. The TAAF Program supports a national network of 11 Trade Adjustment Assistance Centers (TAACs) to help U.S. firms apply for assistance and prepare and implement strategies to guide their economic recovery.
Overall, there has been an increase in the demand for the TAAF Program in fiscal year 2009, as demonstrated by the increase in the number of petitions for certification and Adjustment Proposals submitted to EDA for approval.
Because of the spike in petitions and Adjustment Proposals, the Economic Development Administration (EDA) experienced challenges in meeting the 40-day processing deadline for petitions accepted for filing immediately after the new legislation was enacted. Beginning in the fourth quarter of FY 2009, the average processing time for petitions has started to decline below the 40-day requirement. Additional TAAF staff resources are expected to help improve the processing time even further for FY 2010.
TAACs effectively reached small and medium-sized firms in FY 2009. The average employment, net sales, and productivity of firms certified in FY 2009 declined in comparison to the previous fiscal year. Sixty-five percent of all firms proposed to implement a marketing/sales project or production/engineering project in their Adjustment Proposals, and 35 percent of all firms proposed support systems or management/financial projects.
The following table illustrates that in FY 2009 EDA approved an additional 33 Adjustment Proposals as compared to FY 2008 and proposed to spend an additional total of $2.4 million in government funds.
The TGAAA identifies 14 measures that should be covered by this report. EDA currently is unable to provide any information on four measures: (1) The number of firms that inquired about the program, (2) the number of petitions certified by congressional district, (3) the number of firms leaving the program and why, and (4) sales, employment, and productivity at each firm upon completion of the program and every year for the two years thereafter. EDA is taking steps to collect and report on all of the missing measures for the FY 2010 Annual Report.
Trade Adjustment Assistance for Firms Division, Room 7106, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230.
Bryan Borlik, Director of the TAAF Program, 202-482-3901.
This report is provided in compliance with Section 1866 of the Trade and Globalization Adjustment Assistance Act of 2009 (Sec. 1866, Pub. L. 111-5, 123 Stat. 115, at 367) (TGAAA). This section directs the Secretary of Commerce to provide an annual report
IN GENERAL.—Not later than December 15, 2009, and each year thereafter, the Secretary of Commerce shall prepare a report containing data regarding the trade adjustment assistance for firms program provided for in chapter 3 of title II of the Trade Act of 1974 (19 U.S.C. 2341
This report will provide findings and results to the extent that the data is available on the following 14 measures:
1. The number of firms that inquired about the program.
2. The number of petitions filed under section 251.
3. The number of petitions certified and denied.
4. The average time for processing petitions.
5. The number of petitions filed and firms certified for each congressional district of the United States.
6. The number of firms that received assistance in preparing their petitions.
7. The number of firms that received assistance developing business recovery plans (Adjustment Proposals).
8. The number of Adjustment Proposals approved and denied by the Secretary of Commerce.
9. Sales, employment, and productivity at each firm participating in the program at the time of certification.
10. Sales, employment, and productivity at each firm upon completion of the program and each year for the two-year period following completion.
11. The financial assistance received by each firm participating in the program.
12. The financial contribution made by each firm participating in the program.
13. The types of technical assistance included in the Adjustment Proposals of firms participating in the program.
14. The number of firms leaving the program before completing the project or projects in their Adjustment Proposals and the reason the project was not completed.
The TAAF program is one of four Trade Adjustment Assistance (TAA) programs authorized under the Trade Act of 1974 (19 U.S.C. 2341
The other TAA programs are TAA for Workers, Farmers, and Communities, which are administered by the Departments of Labor, Agriculture, and Commerce through EDA, respectively.
The TAAF Program is relatively small. Between FY 2000 and FY 2009, its appropriations have ranged from $10.5 million to $15.8 million.
The mission of the program is to provide technical and financial assistance to U.S. firms affected by import competition. The program provides assistance in the development of business recovery plans, which are known as Adjustment Proposals under Section 252 of the Trade Act, and matching funds to implement projects outlined in Adjustment Proposals.
The program's premise is that some U.S. firms, in particular small businesses, lack the internal capabilities or resources necessary to effectively respond to new import competition. The Trade Adjustment Assistance Centers' goal is to help U.S. firms increase profitability and retain employees while competing successfully in the global economy.
The TAAF Program supports a national network of 11 Trade Adjustment Assistance Centers (TAAC) to help U.S. firms apply for assistance and prepare and implement strategies to guide their economic recovery. Information about the TAACs may be found at www.taacenters.org. The current TAACs and the states they serve are listed in the table below. Please note that currently Puerto Rico has not been assigned to any particular TAAC. Firms
The TAACs' main responsibilities are:
• Assisting firms in preparing their petitions for TAAF. Firms are not charged for any assistance related to preparing a petition.
• Once a petition has been approved, TAACs work closely with company management to identify the firm's strengths and weaknesses and develop a customized Adjustment Proposal designed to stimulate recovery and growth. The program pays up to 75% of the cost of developing an Adjustment Proposal and the firm must pay the rest. EDA must approve all Adjustment Proposals to ensure they conform to statutory and regulatory requirements.
• After an Adjustment Proposal has been approved, company management and TAAC staff jointly identify consultants with the specific expertise required to assist the firm. The program pays up to $75,000 in matching funds for the cost of these consultants when implementing the Adjustment Proposal. After a competitive procurement process, the TAAC and the firm generally contract with private consultants to implement the adjustment plan.
There are three main phases to receiving technical assistance under the program. The phases are (1) Petitioning for certification, (2) recovery planning, and (3) project implementation.
Eligibility to Apply for Trade Adjustment Assistance” and any supporting documentation. Although a firm may complete a petition and submit it to EDA on its own, certification specialists within the TAACs generally work with the firm at no cost to complete and submit a petition to EDA. Once a petition has been accepted, EDA is required to make a final determination on a petition within 40 days.
Certified firms may then submit an Adjustment Proposal for EDA's approval. It generally takes EDA between two weeks to one month to make a final determination on an Adjustment Proposal, depending on the workflow.
The firm works with consultants to implement projects in an approved Adjustment Proposal. As projects are implemented and if the firm is satisfied
Most of the data used in this report were collected from the petitions for certification and the Adjustment Proposals submitted by the TAACs on behalf of firms. Data from these sources were recorded into a central database by Eligibility Reviewers at EDA. Results for average processing times and the number of approved and denied petitions and Adjustment Proposal were derived by EDA.
All of the data available for Fiscal Years (FY) 2009 and 2008 were used for this report. One weakness to the data sets used is that a few records were incomplete. EDA has identified data collection deficiencies and plans to train EDA and TAAC staff in order to eliminate, to the extent possible, problems that result in incomplete records.
The performance measures in this report were evaluated by looking at quarterly trends and comparing results for FY 2009 and FY 2008. In addition, characteristics of the petitioning and certified firms were aggregated and reported as averages to provide a general profile for these firms.
(1) The number of firms that inquired about the program.
Because of the decentralized nature of the TAAF Program, EDA currently does not collect reliable information on the number of firms that inquire about the TAA program. EDA is working with the TAACs to collect this data and will include this measure in the revised quarterly report submitted by the TAACs to EDA. EDA is expecting to start collecting this data by the end of December 2009.
(2) The number of petitions filed under section 251.
(3) The number of petitions certified and denied.
(4) The average time for processing petitions.
In FY 2009, there was a 49 percent increase in the number of petitions received by EDA, a 16 percent increase in the number of certified firms, and on average the total petition processing time increased by 17 calendar days, which period is defined as the period between actual submission of a petition by the TAAC and final determination, that is certification or rejection, by EDA.
After accepting a petition for filing, EDA has 40 calendar days to make a final determination. In order to avoid having to reject many of the petitions, EDA does not consider a petition accepted until all the necessary information is collected. When considering the duration between the time of submission and when a final determination is made, the processing time for petitions increased by 17 days in FY 2009 as compared to FY 2008. For the average petition, in both FY 2008 and FY 2009 it took 45 days to make a final determination after it had been accepted for filing under section 251 of the Trade Act.
(5) The number of petitions filed and firms certified for each congressional district of the United States.
EDA did not collect the number of petitions filed and certified by congressional district in FY 2009. EDA has revised Form ED-840P and is currently undergoing the required Paperwork Reduction Act (PRA) analysis. EDA has incorporated this measure into the revised Form ED-840P, which is currently being submitted to the Office of Management and Budget (OMB) for PRA clearance. In the interim, TAACs have been instructed to identify applicants' congressional districts in supporting documentation submitted with the petition.
(6) The number of firms that received assistance in preparing their petitions.
Although EDA has not previously recorded whether a petitioning firm received assistance in preparing their petition, EDA understood that all firms who submitted petitions through TAACs received assistance from the respective TAAC. EDA has revised Form ED-840P to more accurately record whether firms receive assistance and from whom. Exhibit 6 shows the number of petitions submitted by each TAAC.
(7) Sales, employment, and productivity at each firm participating in the program at the time of certification.
For those firms certified in FY 2009, average employment was by six percent below that for firms certified in FY 2008. Average net sales were 18 percent below, and average productivity was 14 percent below. For the purposes of this report, productivity is defined as net sales per employee. Since the certified firms are in various industries, which have a variety of ways to measure productivity, sales per employee was chosen as the productivity measure. This measure is used because it is simple and can be generally applied to all certified firms.
(8) The number of firms that received assistance developing Adjustment Proposals.
Although EDA has not previously recorded whether a certified firm received assistance in preparing their Adjustment Proposals, EDA understood that all firms who submitted Adjustment Proposals through TAACs received assistance from the respective TAAC. EDA requested that TAACs include such information in the Adjustment Proposals. Exhibit 10 shows the number of plans submitted by each TAAC.
(9) The number of Adjustment Proposals approved and denied by the Secretary of Commerce.
In FY 2009, EDA did not deny any Adjustment Proposals and approved 172 plans.
(10) The financial assistance received by each firm participating in the program.
(11) The financial contribution made by each firm participating in the program. Although the TAACs maintain records on actual government and firm expenditures for implementation of Adjustment Proposals, EDA currently does not collect or record this information in a central database. In FY 2010, EDA will include this measure in the revised quarterly reports submitted by the TAACs to EDA. Exhibit 13 shows the average government and firm cost share proposed by each firm at the time their Adjustment Proposals were approved.
(12) The types of technical assistance included in the Adjustment Proposals of firms participating in the program.
Firms proposed various types of projects in Adjustment Proposals. More than half of all firms proposed to implement marketing/sales or production/engineering projects. Marketing and sales projects are geared toward increasing revenue, whereas production and engineering projects tend to be geared toward cutting costs. Support system projects can provide a competitive advantage by either cutting costs or creating new sales channels. Management and financial projects are designed to improve management's decision making ability and business control. Sample projects are listed below in Exhibit 15.
(13) The number of firms leaving the program before completing the project or projects in their Adjustment Proposals and the reason the project was not completed.
EDA currently does not collect or record this information. In FY 2010, EDA will include this measure in the revised quarterly TAAC report.
(14) Sales, employment, and productivity at each firm upon completion of the program and each year for the two-year period following completion.
Most, if not all, TAACs record the sales, employment and productivity of firms after completing the TAAF Program. However, EDA currently does not collect or record this information for the 2-year period following completion. In FY 2010, EDA will include this measure in the revised quarterly TAAC report.
In FY 2009 as compared to FY 2008, the number of petitions submitted to EDA increased by 49 percent. Due to current economic conditions and the expansion of eligibility to service sector firms, increases in the number of petitions are expected to continue in FY 2010. As the TAACs continue to strengthen their marketing channels to more effectively reach service firms, it is expected that the number of petitions will increase. If petitions continue to increase at the same rate, EDA can expect approximately 400 petitions in FY 2010.
The average total processing time of petitions increased by approximately 17 days, a 30 percent overall increase. A spike in the number of petitions submitted and a recent decline in the number of eligibility reviewers have made it challenging for EDA to meet the 40-day review deadline to provide a final determination on petitions. As of May 17, 2009, EDA is required to make a final determination within 40 calendar days of a petition being accepted for filing under Section 251 of the Trade Act. Before May 17, 2009 EDA had to make a determination within 60 calendar days. The average processing time has improved as of the fourth quarter of FY 2009. The addition of two new EDA Program Analysts (expected start dates between December 2009 and February 2010) and a new TAAF Program Director (start date August 30, 2009) is expected to improve EDA's processing time for petitions for the remainder of FY 2010. For the average petition, Exhibit 18 shows that, EDA missed the 40 day deadline in the third quarter of FY 2009, but was able to meet the deadline in the fourth quarter of FY 2009.
EDA must approve all petitions for certification and Adjustment Proposals for firms to receive financial assistance. Although EDA has not previously recorded whether a petitioning or certified firm received assistance in preparing their petition or Adjustment Proposals, EDA understood that all firms who submitted petitions and Adjustment Proposals through TAACs received assistance from the respective TAAC. EDA has revised Form ED-840P to more accurately record whether and from whom firms receive assistance. Also, EDA requested that TAACs include such information in the Adjustment Proposals.
EDA has assumed that eligible firms either do not have the capacity to submit petitions and Adjustment Proposals without assistance, or that doing so would cause unnecessary burden to small and medium-sized firms. EDA therefore understands that all firms receive assistance.
As compared to FY 2008, average net sales of certified firms declined by 20 percent and average employment declined by six percent. The National Bureau of Economic Research (NBER) determined that a recession began in December 2007. It is likely that the recession has contributed to the decline in sales and employment of certified firms in FY 2009. Firm productivity, defined as net sales per employee, in certified firms has declined as well.
The TAAF program strongly targets small and medium-sized businesses in the provision of assistance. In order to classify small and medium-sized firms EDA used the Small Business Administration's (SBA's) size standards. Medium-sized firms are classified as those with less than 500 employees for most manufacturing and mining industries, or less than $7 million in average annual receipts for most nonmanufacturing industries. Ninety eight percent of the firms certified in FY 2009 had fewer than 500 employees, and 58 percent had less than $7 million in annual net sales. This indicates that the TAAF program is mostly reaching small and medium-sized businesses.
EDA experienced a 15 percent increase in the number of Adjustment Proposals it received for approval in FY 2009. In comparison, there was a 49 percent increase in the number of petitions in the same year. It is expected that the number of Adjustment Proposals submitted will be fewer than the number of petitions, since Adjustment Proposals often take more time to create and require firms to contribute funds for their development and implementation. Firms with limited working capital and limited access to credit will tend to develop and implement the Adjustment Proposals more gradually.
The number of approved Adjustment Proposals and the proposed financial assistance to be received from EDA and contributed by each firm increased in FY 2009. EDA approved an additional 28 Adjustment Proposals as compared to FY 2008 and proposed to spend an additional total of $2.4 million in government funds. The TAAF Program received an increase of approximately $1.7 million in Omnibus appropriations for FY 2009.
Approximately 65 percent of firms included marketing/sales projects or production/engineering projects in their Adjustment Proposals. Approximately 35 percent of firms included support system projects or management/financial projects in their Adjustment Proposals. This mix of project types proposed in the Adjustment Proposals indicates that firms are focusing on both revenue growth and cost reduction in order to improve their profit margin.
The TGAAA identifies 14 measures to be included in each year's TAAF Annual Report. Of the 14 measures, EDA currently does not collect data on four. These measures are: (1) The number of firms that inquired about the program, (2) the number of petitions certified by congressional district, (3) the number of firms leaving the program and why, and (4) sales, employment, and productivity at each firm upon completion of the program and every year for the two years thereafter. There are another four measures that EDA does not collect data on directly, but has access to relevant information: These measures are: (1) The number of firms that received assistance in preparing their petition, (2) the number of firms that received assistance in preparing their Adjustment Proposal, (3) the actual government outlays for each firm implementing their Adjustment Proposal, and (4) the actual firm outlays for implementing the Adjustment Proposal. Most of these measures are recorded by the TAACs, but EDA has not required TAACs to report on them to EDA.
EDA is considering several steps to address the collection of the remaining measures.
Following is a list of the steps EDA will take to address the current data collection gaps.
(1) TAACs were instructed to upgrade their Adobe software to facilitate data collection. TAACs that only have Adobe Reader can use the Adobe fillable forms, but they cannot save the information on their computers. Upgrading the Adobe software will allow the remaining TAACs to save electronic records of the forms, and will allow EDA to automatically upload information into its management information system and no longer require EDA to re-type all of the information into the system.
(2) EDA will issue several new procedures and guidelines to simplify data collection through a revised template for the quarterly TAAC activity reports.
(3) As resources become available, the management information system (MIS) will be expanded to facilitate reporting.
(4) EDA is in the process of seeking OMB clearance for a revised Form ED-840P to collect all required data.
Overall, there has been an increase in the demand for the TAAF Program in FY 2009, as demonstrated by the increase in the number of petitions for certification and Adjustment Proposals submitted to EDA.
Due to the spike in petitions and Adjustment Proposals, EDA experienced challenges in meeting the new 40-day processing deadline for petitions accepted for filing immediately after the new rule's implementation. However, since the fourth quarter of FY 2009, the average processing time for petitions declined below the 40-day requirement. New TAAF program staff members are expected to help improve processing time even further for FY 2010.
TAACs effectively targeted small and medium-sized firms in FY 2009. The average employment, net sales, and productivity of firms certified in FY 2009 declined in comparison to the previous fiscal year. More than half of all firms proposed to implement a marketing/sales project or production/engineering project in their Adjustment Proposals.
Of the 14 measures required for reporting, EDA was unable to provide any information on four measures, and provided limited information on another four measures. EDA is taking steps to collect and report on all of the missing measures for the FY 2010 Annual Report.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed Additions to Procurement List.
The Committee is proposing to add to the Procurement List services to be provided by nonprofit agencies employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
Barry S. Lineback, Telephone: (703) 603-7740, Fax: (703) 603-0655, or e-mail
This notice is published pursuant to 41 U.S.C 47(a) (2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
Additions: If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to provide the services listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will provide the services to the Government.
2. If approved, the action will result in authorizing small entities to provide the services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the services proposed for addition to the Procurement List.
Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information.
The following services are proposed for addition to the Procurement List to be provided by the nonprofit agencies listed:
Committee for Purchase From People Who Are Blind or Severely Disabled.
A correction is made to the
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by February 16, 2010.
Written comments and recommendations on the proposed information collection should be sent to Mr. Kraemer at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.
You may also submit comments, identified by docket number and title, by the following method:
•
Written requests for copies of the information collection proposal should be sent to Ms. Toppings at WHS/ESD/Information Management Division, 1777 North Kent Street, RPN, Suite 11000, Arlington, VA 22209-2133.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by February 16, 2010.
Written comments and recommendations on the proposed information collection should be sent to Mr. Kraemer at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.
You may also submit comments, identified by docket number and title, by the following method:
•
Written requests for copies of the information collection proposal should be sent to Ms. Toppings at WHS/ESD/Information Management Division, 1777 North Kent Street, RPN, Suite 11000, Arlington, VA 22209-2133.
Joint Service Committee on Military Justice (JSC).
Notice of Public Response to Proposed Amendments to the Manual
The JSC is forwarding final proposed amendments to the MCM to the Department of Defense. The proposed changes constitute the 2009 annual review required by the MCM and DoD Directive 5500.17, “Role and Responsibilities of the Joint Service Committee (JSC) on Military Justice,” May 3, 2003. The proposed changes concern the rules of procedure and evidence and the punitive articles applicable in trials by courts-martial. These proposed changes have not been coordinated within the Department of Defense under DoD Directive 5500.1, “Preparation, Processing and Coordinating Legislation, Executive Orders, Proclamations, Views Letters Testimony,” June 15, 2007, and do not constitute the official position of the Department of Defense, the Military Departments, or any other Government agency.
Comments and materials received from the public are available for inspection or copying at the Office of the Judge Advocate General, Criminal Law Division (Code 20), 1254 Charles Morris Street, SE., Suite B01, Washington Navy Yard, District of Columbia between 9 a.m. and 4 p.m., Monday through Friday, except Federal Holidays.
Lieutenant Commander Stacia Gawronski, Executive Secretary, Joint Service Committee on Military Justice, 1254 Charles Morris Street, SE., Suite B01, Washington Navy Yard, District of Columbia 20374, (202) 685-7683, (202) 685-7084 fax.
On 17 September 2009, the JSC published a notice of Proposed Amendments to the Manual for Courts-Martial and a Notice of Public Meeting to receive comments on these proposals. The public meeting was held on 29 October 2009. One individual representing an organization spoke at the public meeting to announce that the organization would be submitting written comments. One individual and one organization submitted comments through the
The JSC considered the public comments and decided to modify the proposed addition of a paragraph addressing child pornography under Article 134 in Part IV of the MCM. The JSC is satisfied the other proposed amendments are appropriate to implement without modification. The JSC will forward the public comments and proposed amendments to the Department of Defense.
a. Recommended that the proposed `Child pornography' addition to Article 134, UCMJ, should be broadened to include the female breast. The JSC considered that broadening the definition in this way would be over inclusive and did not want to unintentionally criminalize conduct or depictions not sexual in nature (for example, a picture of a baby in the bath).
b. Opined the proposed change to Military Rule of Evidence (M.R.E.) 504 regarding spousal privilege does not seem to limit the privilege in a logical manner. For example, if a husband and wife both provided illegal drugs to a 12-year-old, the spouses would not be allowed to invoke their privilege against testifying against each other. However, if the wife was engaged in a sexual relationship with the same non-relative, 12-year-old (and not acting
c. Raised several concerns regarding the adequacy of the rule-making process itself. The JSC considered these concerns and determined that the rulemaking process is adequate, satisfies statutory requirements, and provides meaningful opportunity for public participation.
The proposed recommended amendments to the Manual for Courts-Martial to be forwarded through the DoD for action by Executive Order of the President of the United States are as follows:
(a) M.R.E. 504 (c)(2)(D) is added to read as follows:
“(D) Where both parties have been substantial participants in illegal activity, those communications between the spouses during the marriage regarding the illegal activity in which they have jointly participated are not marital communications for purposes of the privilege in subdivision (b), and are not entitled to protection under the privilege in subdivision (b).”
(b) The following amendments conform M.R.E. 609 to F.R.E. 609:
(1) M.R.E. 609 (a) is amended to substitute the words “character for truthfulness” for the word “credibility.”
(2) M.R.E. 609 (a)(2) is amended to substitute the words “regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness” for the words “if it involved dishonesty or false statement, regardless of the punishment.”
(3) M.R.E. 609 (c) is amended to substitute the words “a subsequent crime that was punishable by death, dishonorable discharge, or imprisonment in excess of one year” for the words “a subsequent crime which was punishable by death, dishonorable discharge, or imprisonment in excess of one year.”
(a) Paragraph 13, Article 89, Disrespect toward a superior commissioned officer, paragraph c.(1) is amended to substitute the words “uniformed service” for “armed forces” everywhere the words “armed forces” appear in that paragraph. This change is made to clarify that the uniformed officers of the Public Health Service and the National Oceanographic and Atmospheric Administration, when assigned to and serving with the armed forces, are included in the definition of a superior commissioned officer.
(b) A clerical amendment is made to Paragraph 35, Article 111, Drunken or reckless operation of vehicle, aircraft or vessel, paragraph f to read as follows:
“(f)
In that ____ (personal jurisdiction data), did (at/on board—location) (subject matter jurisdiction data, if required), on or about ____, 20__, (in the motor pool area) (near the Officer's Club) (at the intersection of ____ and ____) (while in the Gulf of Mexico) (while in flight over North America) physically control [a vehicle, to wit: (a truck) (a passenger car) (____)] [an aircraft, to wit: (an AH-64 helicopter) (an F-14A fighter) (a KC-135 tanker) (____)] [a vessel, to wit: (the aircraft carrier USS ____ (the Coast Guard Cutter ____) (____)], [while drunk] [while impaired by ____] [while the alcohol concentration in his (blood or breath) equaled or exceeded the applicable limit under subparagraph (b) of the text of the statute in paragraph 35 as shown by
(c) A clerical amendment is made to Paragraph 48, Article 123, Forgery, paragraph c.(4) to add the word “to” after the word “liability” the second time it appears in the fifth sentence.
(d) Paragraph 68b. is added as follows:
“68b. Article 134—(Child pornography)
a.
b.
(1)
(a) That the accused knowingly and wrongfully possessed, received or viewed child pornography; and
(b) That under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
(2)
(a) That the accused knowingly and wrongfully possessed child pornography;
(b) That the possession was with the intent to distribute; and
(c) That under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
(3)
(a) That the accused knowingly and wrongfully distributed child pornography to another; and
(b) That under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
(4)
(a) That the accused knowingly and wrongfully produced child pornography; and
(b) That under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
c.
(1) “Child Pornography” means any visual depiction of a minor, or what appears to be a minor, engaging in sexually explicit conduct, even if the minor depicted was not an actual person or did not actually exist.
(2) An accused may not be convicted of possessing, receiving, viewing, distributing, or producing child pornography, if he was not aware that the images were of minors, or what appeared to be minors, engaged in sexually explicit conduct. Awareness may be inferred from circumstantial evidence such as the name of a computer file or folder, the name of the host Web site from which a visual depiction was viewed or received, search terms used, and the number of images possessed.
(3) “Distributing” means delivering to the actual or constructive possession of another.
(4) “Minor” means any person under the age of 18 years;
(5) “Possessing” means exercising control of something. Possession may be direct physical custody like holding an item in one's hand, or it may be constructive, as in the case of a person who hides something in a locker or a car to which that person may return to retrieve it. Possession must be knowing and conscious. Possession inherently includes the power or authority to preclude control by others. It is possible for more than one person to possess an item simultaneously, as when several people share control over an item.
(6) “Producing” means creating or manufacturing. As used in this paragraph, it refers to making child pornography that did not previously exist. It does not include reproducing or copying.
(7) “Sexually explicit conduct” means actual or simulated:
(a) Sexual intercourse or sodomy, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(b) Bestiality;
(c) Masturbation;
(d) Sadistic or masochistic abuse; or
(e) Lascivious exhibition of the genitals or pubic area of any person.
(8) “Visual depiction” includes any developed or undeveloped photograph, picture, film or video; any digital or computer image, picture, film or video made by any means, including those transmitted by any means including streaming media, even if not stored in a permanent format; or any digital or electronic data capable of conversion into a visual image.
(9) “Wrongfulness.” Any facts or circumstances which show that a visual depiction of child pornography was unintentionally or inadvertently acquired are relevant to wrongfulness, including, but not limited to, the method by which the visual depiction was acquired, the length of time the visual depiction was maintained, and whether the visual depiction was promptly, and in good faith, destroyed or reported to law enforcement.
(10) On motion of the government, in any prosecution under this paragraph, except for good cause shown, the name, address, social security number, or other nonphysical identifying information, other than the age or approximate age, of any minor who is depicted in any child pornography or visual depiction or copy thereof shall not be admissible and may be redacted from any otherwise admissible evidence, and the panel shall be instructed, upon request of the Government, that it can draw no inference from the absence of such evidence.
d.
e.
(1)
(2)
(3)
(4)
f.
In that ___ (personal jurisdiction data), did, at ___, on or about ___ knowingly and wrongfully (possess) (receive) (view) (distribute) (produce) child pornography, to wit: a (photograph) (picture) (film) (video)
(a) Nothing in these amendments shall be construed to make punishable any act done or omitted prior to the effective date of this order that was not punishable when done or omitted.
(b) Nothing in these amendments shall be construed to invalidate any nonjudicial punishment proceedings, restraint, investigation, referral of charges, trial in which arraignment occurred, or other action begun prior to the effective date of this order, and any such nonjudicial punishment, restraint, investigation, referral of charges, trial, or other action may proceed in the same manner and with the same effect as if these amendments had not been prescribed.
(a) A clerical amendment is made to the first paragraph of the Discussion following R.C.M. 1107(d)(1) to correctly reference R.C.M. 1003(b)(5) and (6) instead of R.C.M. 1003(b)(6) and (7).
National Security Agency/Central Security Service, DoD.
Notice to amend a system of records.
The National Security Agency/Central Security Service is proposing to amend a system of records notice in its existing inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
This proposed action will be effective without further notice on February 16, 2010 unless comments are received which result in a contrary determination.
You may submit comments, identified by docket number and title, by any of the following methods:
*
*
Ms. Anne Hill at (301) 688-6527.
The National Security Agency/Central Security Service systems of records notices subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The specific change to the records system being amended is set forth below followed by the notice, as amended, published in its entirety. The proposed amendment is not within the purview of subsection (r) of the Privacy Act of 1974 (5 U.S.C. 552a), as amended, which requires the submission of a new or altered system report.
NSA/CSS Personnel File (January 7, 2009; 74 FR 698).
Delete entry and replace with “National Security Agency Act of 1959, Public Law 86-36, (codified at 50 U.S.C. 402); 5 U.S.C. and certain implementing Office of Personnel Management regulations contained within 5 CFR part 293, Personnel Records; 10 U.S.C. 1124, Cash awards for disclosures, suggestions, inventions, and scientific achievements; 44 U.S.C. 3101, Records management by agency heads; general duties and E.O. 9397 (SSN), as amended.”
NSA/CSS Personnel File.
Primary location: National Security Agency/Central Security Service, Ft. George G. Meade, MD 20755-6000.
Civilian employees, personnel under contract, military assignees, dependents of NSA/CSS personnel assigned to field elements, individuals integrated into the cryptologic reserve program, custodial and commercial services personnel.
File contains personnel papers and forms including but not limited to applications, transcripts, correspondence, notices of personnel action, performance appraisals, internal staffing resume, professionalization documentation and correspondence, training forms, temporary duty, letters of reprimand, special assignment documentation, letters of commendation, promotion documentation, field assignment preference, requests for transfers, permanent change of station, passport, transportation, official orders, awards, suggestions, pictures, complaints, separation, retirement, time utilization, scholarship/fellowship or other school appointments, military service, reserve status, military check in/out sheets, military orders, security appraisal, career battery and other test results, language capability, military personnel utilization survey, work experience, notes and memoranda on individual aspects of performance, productivity and suitability, information on individual eligibility to serve on various boards and committees, emergency loan records, other information relevant to personnel management, housing information where required.
National Security Agency Act of 1959, Public Law 86-36, (codified at 50 U.S.C. 402); 5 U.S.C. and certain implementing Office of Personnel Management regulations contained within 5 CFR part 293, Personnel Records; 10 U.S.C. 1124, Cash awards for disclosures, suggestions, inventions, and scientific achievements; 44 U.S.C. 3101, Records management by agency heads; general duties and E.O. 9397 (SSN), as amended.
To support the personnel management program; personnel training and career development; personnel planning; staffing and counseling; administration and personnel supervision; workforce study and analysis; manpower requirements studies; emergency loan program and training curricula planning and research.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, these records or information contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
To gaining employers or to financial institutions when individual has applied for credit; to contractor employees to make determinations as noted in the purpose above; to hearing examiners; the judicial branch or to other gaining government organization as required and appropriate; biographical information may be provided to the White House as required in support of the Senior Cryptologic Executive Service awards program.
To the Office of the Director of National Intelligence (ODNI) for Intelligence Community aggregate workforce planning, assessment, and reporting purposes. Records provided to the ODNI for this routine use will not include any individual's name or Social Security Number (SSN).
The DoD `Blanket Routine Uses' set forth at the beginning of the NSA/CSS' compilation of systems of records notices apply to this system.
Paper records in files folders and electronic storage media.
By name, Social Security Number (SSN) or Employee Identification Number.
Buildings are secured by a series of guarded pedestrian gates and checkpoints. Access to facilities is limited to security-cleared personnel and escorted visitors only. Within the facilities themselves, access to paper and computer printouts are controlled by limited-access facilities and lockable containers. Access to electronic means is limited and controlled by computer password protection. Access to information is limited to those individuals authorized and responsible for personnel management or supervision.
Primary System—Those forms, notices, reports and memoranda considered to be of permanent value or required by law or regulation to be preserved are retained for the period of employment or assignment and then forwarded to the gaining organization or retained indefinitely. If the action is separation or retirement, these items are forwarded to the Office of Personnel Management or retired to the Federal Records Center at St. Louis as appropriate. Those items considered to be relevant for a temporary period only are retained for that period and either transferred with the employee or assignee or destroyed when they are no longer relevant or at time of separation or retirement. Computerized portion is purged and updated as appropriate. Records relating to adverse actions, grievances, excluding EEO complaints and performance-based actions, except SF-50s, will be retained for four years. Personnel summary, training, testing and past activity segments retained permanently. All other portions deleted at end of tenure.
Decentralized System—Files are transferred to gaining organization or destroyed upon separation as appropriate. Computer listings of personnel assigned to an organization are destroyed upon receipt of updated listings.
The Associate Director, Human Resources, National Security Agency/Central Security Service, Ft. George G. Meade, MD 20755-6000.
Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the National Security Agency/Central Security Service, Freedom of Information Act/Privacy Act Office, 9800 Savage Road, Ft. George G. Meade, MD 20755-6000.
Written inquiries should contain the individual's full name, Social Security Number (SSN) and mailing address.
Individuals seeking access to information about themselves contained in this system should address written inquiries to the National Security Agency/Central Security Service, Freedom of Information Act/Privacy Act Office, 9800 Savage Road, Ft. George G. Meade, MD 20755-6000.
Written inquiries should contain the individual's full name, Social Security Number (SSN) and mailing address.
The NSA/CSS rules for contesting contents and appealing initial determinations are published at 32 CFR part 322 or may be obtained by written request addressed to the National Security Agency/Central Security Service, Freedom of Information Act/Privacy Act Office, 9800 Savage Road, Ft. George G. Meade, MD 20755-6000.
Forms used to collect and process individual for employment, access or assignment, forms and memoranda used to request personnel actions, training awards, professionalization, transfers, promotion, organization and supervisor reports and requests, educational institutions, references, Office of Personnel Management and other governmental entities as appropriate, and other sources as appropriate and required.
Portions of this file may be exempt pursuant to 5 U.S.C. 552a(k)(1), (k)(4), (k)(5), and (k)(6), as applicable.
An exemption rule for this record system has been promulgated according to the requirements of 5 U.S.C. 553(b)(1), (2), and (3), (c) and (e) and published in 32 CFR part 322. For additional information contact the system manager.
Office of the Secretary, DoD.
Notice of Updated Mental Health Rates for Fiscal Year 2010.
This notice provides the updated regional per diem rates for low volume mental health providers; the update factor for hospital-specific per-diems; the updated cap per diem for high-volume providers; the beneficiary per-diem cost-share amount for low-volume providers; and the updated per-
TRICARE Management Activity (TMA), Medical Benefits and Reimbursement Branch, 16401 East Centretech Parkway, Aurora, CO 80011-9066.
Ann N. Fazzini, Medical Benefits and Reimbursement Branch, TMA, telephone (303) 676-3803.
The final rule published in the
Partial hospitalization rates for full-day and half-day programs will also be updated by 2.1 percent for Fiscal Year 2010.
The cap amount for high-volume hospitals and units will also be updated by 2.1 percent for Fiscal Year 2010.
The Standard non-active duty family member cost share for low volume hospitals and units will also be updated by 2.1 percent for Fiscal Year 2010.
Per 32 CFR 199.14, the same area wage indexes used for the CHAMPUS Diagnosis-Related Group (DRG)-based payment system shall be applied to the wage portion of the applicable regional per diem for each day of the admission. The wage portion shall be the same as that used for the CHAMPUS DRG-based payment system. For wage index values greater than 1.0, the wage portion of the regional rate subject to the area wage adjustment is 68.8 percent for Fiscal Year 2010. For wage index values less than or equal to 1.0, the wage portion of the regional rate subject to the area wage adjustment is 62 percent.
Additionally, 32 CFR 199.14, requires that hospital specific and regional per diems shall be updated by the Medicare update factor for hospitals and units exempt from the Medicare Prospective Payment System.
The following reflect an update of 2.1 percent for Fiscal Year 2010.
Beneficiary cost share: Beneficiary cost-share (other than dependents of active duty members) for care paid on the basis of a regional per diem rate is the lower of $197 per day or 25 percent of the hospital billed charges effective for services rendered on or after October 1, 2009. Cap Amount: Updated cap amount for hospitals and units with high TRICARE volume is $936 per day for services on or after October 1, 2009.
The following reflect an update of 2.1 percent for Fiscal Year 2010 for the partial hospitalization rates.
The above rates are effective for services rendered on or after October 1, 2009.
Department of the Army, U.S. Army Corps of Engineers; DOD.
Notice of intent.
The action being taken is the preparation of a joint environmental impact statement/environmental impact report (EIS/EIR) for the Lower San Joaquin River Feasibility Study (LSJRFS). The EIS/EIR will be prepared in accordance with the National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA). The U.S. Army Corps of Engineers (USACE) will serve as lead agency for compliance with NEPA, and the San Joaquin Area Flood Control Agency (SJAFCA) will serve as lead agency for compliance with CEQA. The LSJRFS will evaluate alternatives, including a locally preferred plan, for providing flood damage reduction and ecosystem restoration along the lower (northern) portion of the San Joaquin River system in the Central Valley of California. The approximate area of the proposed action and analysis is identified in Figure 1.
Written comments regarding the scope of the environmental analysis should be received at (
Written comments concerning this study and requests to be included on the LSJRFS mailing list should be submitted to Mr. Doug Edwards, U.S. Army Corps of Engineers, Sacramento District,
Mr. Doug Edwards via telephone at (916) 557-7062, e-mail at
1.
2.
3.
4.
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of solicitation for project applications.
Congress has appropriated limited funds to the U.S. Army Corps of Engineers (Corps) and the National Oceanic and Atmospheric Administration (NOAA) for implementation of the Estuary Habitat Restoration Program as authorized in Section 104 of the Estuary Restoration Act of 2000, Title I of the Estuaries and Clean Waters Act of 2000 (Pub. L. 106-457) (accessible at
In addition to this solicitation and the application form, a Supplemental Guide for Prospective Applicants is available at:
Proposals must be received on or before March 16, 2010.
Ms. Jenni Wallace, NOAA Restoration Center, SSMC3 F/HC3 Room 14730, 1315 East-West Highway, Silver Spring, MD 20910.
Ms. Jenni Wallace, (301) 713-0174 x183, e-mail:
Under the Estuary Habitat Restoration Program, the U.S. Army Corps of Engineers (Corps), Department of the Interior (acting through the U.S. Fish and Wildlife Service), National Oceanic and Atmospheric Administration, Environmental Protection Agency, and Department of Agriculture are authorized to carry out estuary habitat restoration projects. The Estuary Habitat Restoration Council (Council) is responsible for soliciting, reviewing and evaluating project proposals. The agencies may only fund projects on the prioritized list provided by the Council. The Estuary Habitat Restoration Strategy prepared by the Council contains introductory information about the program and provides the context in which projects will be evaluated and the program will be administered. The Strategy was published in the
An emphasis will be placed on achieving cost-effective restoration of ecosystems while promoting increased partnerships among agencies and between public and private sectors. Projects funded under this program will contribute to the Estuary Habitat Restoration Strategy goal of restoring 1,000,000 acres of estuary habitat.
For purposes of this program,
Section 103 of the Estuary Restoration Act of 2000 (the Act) defines the term
Eligible habitat restoration activities include reestablishment of chemical, physical, hydrologic, and biological features and components associated with an estuary. Restoration may include, but is not limited to, improvement of estuarine wetland tidal exchange or reestablishment of historic hydrology; dam or berm removal; improvement or reestablishment of fish passage; appropriate reef/substrate/habitat creation; planting of native estuarine wetland and submerged aquatic vegetation; reintroduction of native species; control of invasive species by altering conditions so they are less conducive to the invasive species; and establishment of riparian buffer zones in the estuary. Cleanup of pollution for the benefit of estuary habitat may be considered, as long as it does not meet the definition of excluded activities under the Act (see section III,
In general, proposed projects should clearly demonstrate anticipated benefits to habitats such as those habitats listed in the
Estuary Habitat Restoration Program funds will not be used for any activity that constitutes mitigation required under any Federal or State law for the adverse effects of an activity regulated or otherwise governed by Federal or State law, or that constitutes restoration for natural resource damages required under any Federal or State law. Estuary Habitat Restoration Program funds will not be used for remediation of any hazardous substances regulated under the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. 9601-9675). Additionally, Estuary Habitat Restoration Program funds will not be used to carry out projects on Federal lands.
The Council recognizes that water quality issues can impact estuary habitat restoration efforts. However, this solicitation is intended to fund on-the-ground habitat restoration projects that will have significant and tangible ecological impacts. Projects dealing
The Non-Federal Sponsor may be a State, a political subdivision of a State, a Tribe, or a regional or interstate agency. A non-governmental organization may serve as a Non-Federal Sponsor as determined by the Secretary of the Army (Secretary) in consultation with appropriate State and local governmental agencies and Tribes. For purposes of this act the term “non-governmental organization” does not include for profit enterprises. The Non-Federal Sponsor must be able to provide the real estate interests necessary for implementation, operation,
The Federal share of the cost of an estuary habitat restoration project shall not exceed 65 percent in most cases. The exception to this is when the project deals with pilot testing or demonstrating an innovative technology or approach. In the latter case, the Federal share shall be 85 percent of the incremental additional cost of pilot testing or demonstration of an innovative technology or approach having the potential for improved cost-effectiveness. Innovative technology or approach are defined as novel processes, techniques and/or materials to restore habitat, or the use of existing processes, techniques, and/or materials in a new restoration application. Applicants must justify in the proposal why a particular project is innovative. In addition, the Council has final say as to whether a proposed project is innovative. The difference in the cost of the project related to the use of the innovative technique or approach must be clearly described. Please refer to the Supplemental Guidance for Prospective Applicants for an example of how to calculate the cost share for an innovative technology/approach application.
Prior to initiation of a project, the Non-Federal Sponsor must enter into an agreement with the funding agency in which the Non-Federal Sponsor agrees to provide its share of the project cost; including necessary lands, easements, rights-of-way, and relocations and long-term maintenance. The value of the required real estate interests will be credited towards the Non-Federal Sponsor's share of the project cost. The Non-Federal Sponsor may also receive credit for services and in-kind contributions toward its share of the project cost, including cost shared monitoring. Adaptive management will be a non-Federal responsibility; it will not be cost shared. Credit for the value of in-kind contributions is subject to satisfactory compliance with applicable Federal labor laws covering non-Federal construction, including but not limited to the Davis-Bacon Act (40 U.S.C. 276a
Other Federal funds,
Credit will be provided only for work necessary for the specific project being funded with Estuary Habitat Restoration Program funds. For example, a non-Federal entity is engaged in the removal of ten dams, has removed six dams, and now seeks assistance for the removal of the remaining four dams as an Estuary Habitat Restoration Program project. None of the costs associated with the removal of the prior six dams is creditable as part of the non-Federal share of the project for removal of the remaining four dams.
If a Corps cost-share agreement is required, funds will not be transferred to the Non-Federal Sponsor. Instead, the Corps will use the funds to implement (construct) some portion of the proposed project as well as cover its management responsibilities. If the project meets the Corps conditions for implementation under a cooperative agreement or if NOAA funds a project, funds will be transferred to the Non-Federal Sponsor under a cooperative agreement. In all cases the funding agencies will use the planning, evaluation, and design products provided by the applicant to the extent possible. The Federal funding agency will be responsible for assuring compliance with Federal environmental statutes, assuring the project is designed to avoid adverse impacts on other properties and that the project can reasonably be expected to provide the desired benefits. Corps activities related to implementation of projects under this authority will be part of the Federal cost of the project, and the Non-Federal Sponsor should consider these costs in developing the project cost estimate. The Non-Federal Sponsor should coordinate with the appropriate Corps district office during preparation of the proposal to obtain an estimate of the funds required and other available information which may improve the proposal. Information on district locations and boundaries may be found at
Limited funds have been appropriated for implementation of projects under the Estuary Habitat Restoration Program. The Council will only accept proposals that request at least $100,000 and no more than $1,000,000 from this program. Projects will be funded subject to the availability of funds. The number of proposals funded as a result of this notice will depend on the number of eligible proposals received, the estimated amount of funds required for each selected project, and the merit and ranking of the proposals. The exact amount of the Federal and non-Federal cost share for each selected project will be specified in the agreement (See
Proposals will be screened as discussed in section VII.A. below to determine eligibility. The staff of the agencies represented on the Council will conduct a technical review of the eligible proposals in accordance with the criteria described in section VII.B. below. Each agency will score and rank the proposals; the five agencies will use these rankings as the basis for a consolidated recommendation to the Council. The recommendation will include indications as to which agency should fund a project, NOAA or the Corps. The Council will consider the recommendation, the items discussed in sections VII.C. and D. below, and possibly other factors when preparing its prioritized list of recommended projects for the Secretary's use.
This section describes the criteria that will be used to review and select projects to be recommended to the Secretary for funding under the Act. Project proposals should clearly address the criteria set forth under the following four subsections: Initial Screening of Project Proposals (VII.A.); Evaluation of Project Proposals (VII.B.); Priority Elements (VII.C.); and Other Factors (VII.D.).
Proposals will be screened according to the requirements listed in sections 104(b) and 104(c)(2) of the Act as described below. Proposed projects must not include excluded activities as discussed in Section III above. Additionally, the letter of assurance must indicate that the primary property owner and the party responsible for long-term maintenance have reviewed and support the proposal. Proposals that do not meet all of these initial screening criteria will not be evaluated further. To be accepted the proposal must:
(1) Originate from a Non-Federal Sponsor (section 104(b));
(2) Address restoration needs identified in an estuary habitat restoration plan (section 104 (c)(2)(A)). The Act defines “estuary habitat restoration plan” as any Federal, State, or regional plan for restoration of degraded estuary habitat that was developed with substantial participation of the public. (section 103(6));
(3) Be consistent with the Estuary Habitat Restoration Strategy (section 104(c)(2)(B)) by:
(a) Including eligible restoration activities that provide ecosystem benefits;
(b) Addressing estuary habitat trends (including historic losses) in the project region, and indicating how these were considered in developing the project proposal;
(c) Involving a partnership approach, and
(d) Clearly describing the benefits expected to be realized by the proposed project;
(4) Include a post-construction monitoring plan that is consistent with standards developed by NOAA under section 104(c)(2)(C). The standards are available at:
(5) Include satisfactory assurances that the Non-Federal Sponsor has adequate authority and resources to carry out items of local cooperation and properly maintain the project (section 104(c)(2)(D)).
Proposals that meet the initial screening criteria in A. above will be eligible for further review using the criteria listed below. Reviewers will assign scores to applications ranging from 0 to 100 points based on the evaluation criteria and respective weights specified below. Applications that best address these criteria will be the most competitive. The following criteria are listed in order of relative importance with the assigned points used in evaluation. If the reviewers find that a response to any of the first four criteria is not included in the proposal, or not adequate, the proposal will be rejected. For each of the listed criteria the focus will be on the factors mentioned below but other factors may also be considered.
(1)
Proposals will be evaluated based on the extent of proposed habitat restoration activities and the type(s) of habitat(s) that will be restored. Following are specific factors that reviewers will consider as part of this criterion:
(a) Prevention or reversal of estuary habitat loss or degradation in the project area and the nature and extent of the proposed project's potential contribution to the long-term conservation of estuary habitat function and adaptation to climate change,
(b) Benefits for Federally listed threatened or endangered species, species proposed for Federal listing, recently delisted species or designated or proposed critical habitat in the project area,
(c) Extent to which the project will provide, restore, or improve habitat important for estuary-dependent fish and/or migratory birds (
(d) Prevention or reduction of nonpoint source pollution or other contaminants to estuary habitats or restoration of estuary habitats that are already contaminated, and
(e) Benefits to nearby existing habitat areas, or contribution to the creation of wildlife/ecological corridors connecting existing habitat areas.
(2)
Reviewers will evaluate the relationship between estimated project costs, including the costs of remaining planning, design, construction, required lands, and monitoring, to the monetary and non-monetary benefits described in the proposal. Clear quantitative and qualitative descriptions of the proposed outputs will facilitate this evaluation. Examples of units of measure include: Acres restored, stream miles opened to fish passage, flood damage reduction levels, changes in water quality parameters, increases in the productivity of various species, and presence and absence of certain species. The estimated persistence of the proposed project outputs through time will be considered. For example, will the area be maintained as a wetland, or allowed to erode or become upland? Is the project designed to adapt to climate change and potential changes in sea level? Will the proposed project produce additional benefits due to synergy between the proposed project and other ongoing or proposed projects? Reviewers will consider if the proposed project is a cost-effective way to achieve the project goals. In some instances the costs and benefits of proposed projects may be compared to the costs and benefits of other similar projects in the area. The significance of the proposed outputs is also a factor to be considered as part of cost-effectiveness. The significance of restoration outputs should be recognized in terms of institutional (such as laws, adopted plans, or policy statements), public (such as support for the project), or technical (such as if it addresses scarcity, increases limiting habitat, or improves or increases biodiversity) importance.
(3)
Reviewers will evaluate the extent to which, given current and projected environmental conditions of the restoration site—
(a) Potential success of restoration techniques, based on a history of successful implementation in field or pilot projects, and ability to adapt to climate change and potential changes in sea level,
(b) Implementation schedule,
(c) Expected length of time before success can be demonstrated,
(d) Proposed corrective actions using monitoring information,
(e) Project management plans, and
(f) Experience and qualifications of project personnel.
(4)
Reviewers will evaluate the extent to which the project design is based on sound ecological principles and is likely to meet project goals. This may be indicated by the following factors:
(a) Goals of the project are reasonable considering the existing and former habitat types present at the site and other local influences,
(b) The proposed restoration methodology demonstrates an understanding of habitat function, and has a good chance of meeting project goals and achieving long-term sustainability.
(5)
Reviewers will evaluate the degree to which the project will encourage increased coordination and cooperation among Federal, State, and local government agencies. Some of the indicators used to evaluate coordination are:
(a) The State, Federal, and local agencies involved in developing the project and their expected roles in implementation,
(b) The nature of agency coordination,
(c) Whether a formal agreement, such as a Memorandum of Understanding (MOU), exists between/among agencies as part of the project.
(6)
One of the focuses of the Act is the encouragement of new public/private partnerships. Reviewers will evaluate the degree to which the project will foster public/private partnerships and uses Federal resources to encourage increased private sector involvement. Indicators of the success at meeting this criterion follow. How will the project promote collaboration or create partnerships among public and private entities, including potential for future new or expanded public/private partnerships? What mechanisms are being used to establish the partnership,
(7)
Reviewers will consider the following factors in evaluating the quality of the monitoring plan:
(a) Linkage between the monitoring methods and the project goals, including accomplishment targets,
(b) How results will be evaluated (statistical comparison to baseline or reference condition, trend analysis, or other quantitative or qualitative approach),
(c) How baseline conditions will be established for the parameters to be measured,
(d) If applicable, the use and selection of reference sites, where they are located, how they were chosen, and whether they represent target conditions for the habitat or conditions at the site without restoration,
(e) Frequency and timing of measurements, and location to be sampled (at a minimum, one functional and one structural parameter must be measured),
(f) Provisions for adaptive management, and data reporting, and
(g) Whether the length of the proposed monitoring plan is appropriate for the project goals. The minimum required monitoring period is five years post-construction.
(8)
Reviewers will consider the level and type (cash or in-kind) of Non-Federal Sponsor's contribution. Providing more than the minimum 35-percent share will be rated favorably. It must be clear how much of the total project cost the Estuary Habitat Restoration Program is expected to provide, how much is coming from other Federal sources, how much is coming directly from the sponsor, and how much is available or expected to be provided by other sources (either cash or in-kind). Preference may be given to projects with the majority of the funding confirmed.
(9)
In addition to the ecosystem benefits discussed in criterion (1) above, restored estuary habitats may provide additional benefits. Among those the reviewers will consider are: flood damage reduction, protection from storm surge, adaptation to climate change, water quality and/or quantity for human uses, recreational opportunities, and benefits to commercial fisheries.
(10)
Describe the project's regional/local priority based on specific recovery planning goals or on publicly vetted restoration plans, watershed assessments, or other priority setting planning documents.
(11)
If the proposed project is part of a Federal or state plan, describe how the project would contribute to meeting and/or strengthening the plan's needs, goals, objectives and restoration priorities.
Section 104 (c)(4) of the Act directs the Secretary to give priority consideration to a project that merits selection based on the above criteria if it:
(1) Occurs within a watershed where there is a program being implemented that addresses sources of pollution and other activities that otherwise would adversely affect the restored habitat; or
(2) Includes pilot testing or demonstration of an innovative technology or approach having the potential to achieve better restoration results than conventional technologies, or comparable results at lower cost in terms of energy, economics, or environmental impacts.
The Council will also consider these priority elements in ranking proposals.
In addition to considering the composite ratings developed in the evaluation process and the priority elements listed in C. above, the Council will consider other factors when preparing its prioritized list for the Secretary's use. These factors include (but may not be limited to) the following:
(1) Readiness of the project for implementation. Among the factors to be considered when evaluating readiness are the steps that must be taken prior to project implementation, for example is the project a concept, a detailed plan, or completed design; potential delays to project implementation; and the status of real estate acquisition. Proposed projects that have completed more of the pre-construction activities will generally receive more favorable consideration.
(2) Balance between large and small projects, to the extent possible given the program funding constraints.
(3) Geographic distribution of the projects.
The Secretary will select projects for funding from the Council's prioritized list of recommended projects after considering the criteria contained in section 104(c) of the Act, availability of funds and any reasonable additional factors. It is expected that the Secretary will select proposals for implementation approximately 100 days after the close of this solicitation or 30 days after
Each application should include:
A complete application package should be submitted in accordance with the guidelines in this solicitation.
Proposal application forms, including Supplemental Guidance for Prospective Applicants, are available at
Department of Education.
The Acting Director, Information Collection Clearance Division, Regulatory Information Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before March 16, 2010.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Acting Director, Information Collection Clearance Division, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested,
The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
This priority is:
This priority supports projects that enhance, expand, document, evaluate, and disseminate innovative, cohesive models that are based on research and have demonstrated their effectiveness in (1) Integrating standards-based arts education into the core elementary or middle school curriculum, (2) strengthening standards-based arts instruction in the elementary or middle school grades, and (3) improving the academic performance of students in elementary or middle school grades, including their skills in creating, performing, and responding to the arts.
In order to meet this priority, an applicant must demonstrate that the model project for which it seeks funding (1) serves only elementary school or middle school grades, or both, and (2) is linked to State and national standards intended to enable all students to meet challenging expectations and to improve student and school performance.
When using the priority to give competitive preference to an application, we will review the applications using a two-stage review process. In the first stage, we will review the applications without taking the competitive preference priority into account. In the second stage of the process, we will review the applications rated highest in the first stage of the process to determine whether they will receive the competitive preference points. We will consider awarding additional (competitive preference) points only to those applicants with top-ranked scores based on the selection criteria. We expect that approximately 50 applicants will receive these additional competitive preference points.
This priority is:
The Secretary establishes a priority for projects proposing an evaluation plan that is based on rigorous scientifically based research methods to assess the effectiveness of a particular
Evaluation methods using an experimental design are best for determining project effectiveness. Thus, when feasible, the project must use an experimental design under which participants—
If random assignment is not feasible, the project may use a quasi-experimental design with carefully matched comparison conditions. This alternative design attempts to approximate a randomly assigned control group by matching participants—
In cases where random assignment is not possible and participation in the intervention is determined by a specified cut-off point on a quantified continuum of scores, regression discontinuity designs may be employed.
For projects that are focused on special populations in which sufficient numbers of participants are not available to support random assignment or matched comparison group designs, single-subject designs such as multiple baseline or treatment-reversal or interrupted time series that are capable of demonstrating causal relationships can be employed.
Proposed evaluation strategies that use neither experimental designs with random assignment nor quasi-experimental designs using a matched comparison group nor regression discontinuity designs will not be considered responsive to the priority when sufficient numbers of participants are available to support these designs. Evaluation strategies that involve too small a number of participants to support group designs must be capable of demonstrating the causal effects of an intervention or program on those participants.
The proposed evaluation plan must describe how the project evaluator will collect—before the project intervention commences and after it ends—valid and reliable data that measure the impact of participation in the program or in the comparison group.
Points awarded under this priority will be determined by the quality of the proposed evaluation method. In determining the quality of the evaluation method, we will consider the extent to which the applicant presents a feasible, credible plan that includes the following:
(1) The type of design to be used (that is, random assignment or matched comparison). If matched comparison, include in the plan a discussion of why random assignment is not feasible.
(2) Outcomes to be measured.
(3) A discussion of how the applicant plans to assign students, teachers, classrooms, or schools to the project and control group or match them for comparison with other students, teachers, classrooms, or schools.
(4) A proposed evaluator, preferably independent, with the necessary background and technical expertise to carry out the proposed evaluation. An independent evaluator does not have any authority over the project and is not involved in its implementation.
In general, depending on the implemented program or project, under a competitive preference priority, random assignment evaluation methods will receive more points than matched comparison evaluation methods.
These priorities are:
Each applicant addressing this priority is encouraged to include plans for how the applicant will disseminate resources, for example through a Web site that is freely available to all users. Each of these applicants is also encouraged to include plans specifying how the project will identify quality resources, such as lesson plans, primary source activities, reading lists, teacher reflections, and video of quality arts education teaching and student learning in action, for presentation to the wider community.
While we will not score applicants based on the invitational priorities, we encourage applicants to take advantage of the competitive preference priority if their model allows them to do so.
To be eligible for AEMDD funds, applicants must propose to address the needs of low-income children by carrying out projects that serve at least one elementary or middle school in which 35 percent or more of the children enrolled are from low-income families (based on data used in meeting the poverty criteria in Title I, Section 1113(a)(5) of the Elementary and Secondary Education Act of 1965, as amended by the No Child Left Behind Act of 2001 (ESEA)).
As used in the absolute priority in this notice—
As used in the competitive preference priority in this notice—
(A) Means research that involves the application of rigorous, systematic, and objective procedures to obtain reliable and valid knowledge relevant to education activities and programs; and
(B) Includes research that—
(i) Employs systematic, empirical methods that draw on observation or experiment;
(ii) Involves rigorous data analyses that are adequate to test the stated hypotheses and justify the general conclusions drawn;
(iii) Relies on measurements or observational methods that provide reliable and valid data across evaluators and observers, across multiple measurements and observations, and across studies by the same or different investigators;
(iv) Is evaluated using experimental or quasi-experimental designs in which individuals, entities, programs, or activities are assigned to different conditions and with appropriate controls to evaluate the effects of the condition of interest, with a preference for random-assignment experiments, or other designs to the extent that those designs contain within-condition or across-condition controls;
(v) Ensures that experimental studies are presented in sufficient detail and clarity to allow for replication or, at a minimum, offer the opportunity to build systematically on their findings; and
(vi) Has been accepted by a peer-reviewed journal or approved by a panel of independent experts through a comparably rigorous, objective, and scientific review.
20 U.S.C. 7271.
The regulations in 34 CFR part 79 apply to all applicants except Federally recognized Indian Tribes.
The regulations in 34 CFR part 86 apply to institutions of higher education only.
Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2011 from the list of unfunded applicants from this competition.
The Department is not bound by any estimates in this notice.
The first 12 months of the project period may be used to build capacity to effectively carry out the comprehensive activities involved in the evaluation plan described in the competitive preference priority.
(1) One or more local educational agencies (LEAs), including charter schools that are considered LEAs under State law and regulations, that may work in partnership with one or more of the following:
• A State or local non-profit or governmental arts organization.
• A State educational agency (SEA) or regional educational service agency.
• An institution of higher education.
• A public or private agency, institution, or organization, such as a community- or faith-based organization; or
(2) One or more State or local non-profit or governmental arts organizations that must work in partnership with one or more LEAs and may partner with one or more of the following:
• An SEA or regional educational service agency.
• An institution of higher education.
• A public or private agency, institution, or organization, such as a community- or faith-based organization.
If more than one LEA or arts organization wishes to form a consortium and jointly submit a single application, they must follow the procedures for group applications described in 34 CFR 75.127 through 75.129 of EDGAR.
2.a.
b.
3.
1.
You can contact ED Pubs at its Web site, also:
If you request an application from ED Pubs, be sure to identify this program as follows: CFDA number 84.351D.
To obtain a copy from the program office, contact: Diane Austin, U.S. Department of Education, 400 Maryland Avenue, SW., Room 4W223, Washington, DC 20202-5950. Telephone: (202) 260-1280 or by e-mail:
Individuals with disabilities can obtain a copy of the application package in an accessible format (
2.
Applicants that fail to provide this e-mail notification may still apply for funding.
A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial. An application submitted in any other font (including Times Roman or Arial Narrow) will not be accepted.
The page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the résumés, the bibliography, or the letters of support. However, the page limit does apply to all of the application narrative section (Part III).
3.
Applications for grants under this competition must be submitted electronically using the Electronic Grant Application System (e-Application) accessible through the Department's e-Grants site. For information (including dates and times) about how to submit your application electronically, or in paper format by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to section IV. 6.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
4.
5. We reference regulations outlining funding restrictions in the
6.
Applications for grants under the Arts in Education Model Development and Dissemination Grant Program—CFDA Number 84.351D must be submitted electronically using e-Application, accessible through the Department's e-
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement
While completing your electronic application, you will be entering data online that will be saved into a database. You may not e-mail an electronic copy of a grant application to us.
Please note the following:
• You must complete the electronic submission of your grant application by 4:30:00 p.m., Washington, DC time, on the application deadline date. E-Application will not accept an application for this program after 4:30:00 p.m., Washington, DC time, on the application deadline date. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the application process.
• The hours of operation of the e-Grants Web site are 6:00 a.m. Monday until 7:00 p.m. Wednesday; and 6:00 a.m. Thursday until 8:00 p.m. Sunday, Washington, DC time. Please note that, because of maintenance, the system is unavailable between 8:00 p.m. on Sundays and 6:00 a.m. on Mondays, and between 7:00 p.m. on Wednesdays and 6:00 a.m. on Thursdays, Washington, DC time. Any modifications to these hours are posted on the e-Grants Web site.
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: the Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications. You must attach any narrative sections of your application as files in a .DOC (document), .RTF (rich text), or .PDF (Portable Document) format. If you upload a file type other than the three file types specified in this paragraph or submit a password protected file, we will not review that material.
• Your electronic application must comply with any page limit requirements described in this notice.
• Prior to submitting your electronic application, you may wish to print a copy of it for your records.
• After you electronically submit your application, you will receive an automatic acknowledgment that will include a PR/Award number (an identifying number unique to your application).
• Within three working days after submitting your electronic application, fax a signed copy of the SF 424 to the Application Control Center after following these steps:
(1) Print SF 424 from e-Application.
(2) The applicant's Authorizing Representative must sign this form.
(3) Place the PR/Award number in the upper right hand corner of the hard-copy signature page of the SF 424.
(4) Fax the signed SF 424 to the Application Control Center at (202) 245-6272.
• We may request that you provide us original signatures on other forms at a later date.
(1) You are a registered user of e-Application and you have initiated an electronic application for this competition; and
(2)(a) E-Application is unavailable for 60 minutes or more between the hours of 8:30 a.m. and 3:30 p.m., Washington, DC time, on the application deadline date; or
(b) E-Application is unavailable for any period of time between 3:30 p.m. and 4:30:00 p.m., Washington, DC time, on the application deadline date.
We must acknowledge and confirm these periods of unavailability before granting you an extension. To request this extension or to confirm our acknowledgment of any system unavailability, you may contact either (1) the person listed elsewhere in this notice under
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to e-Application;
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevents you from using the Internet to submit your application. If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Diane Austin, U.S. Department of Education, 400 Maryland Avenue, SW., Room 4W223, Washington, DC 20202-5900. FAX: (202) 205-5630.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.351D), LBJ Basement Level 1, 400 Maryland Avenue, SW., Washington, DC 20202-4260.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application, by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.351D), 550 12th Street, SW., Room 7041, Potomac Center Plaza, Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this grant notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
(1)
(a) The extent to which the proposed project will provide services or otherwise address the needs of students at risk of educational failure.
(b) The extent to which specific gaps or weaknesses in services, infrastructure, or opportunities have been identified and will be addressed by the proposed project, including the nature and magnitude of those gaps or weaknesses.
(2)
The likely utility of the products (such as information, materials, processes, or techniques) that will result from the proposed project, including the potential for their being used effectively in a variety of other settings.
(3)
(a) The extent to which the design of the proposed project reflects up-to-date knowledge from research and effective practices.
(b) The extent to which the proposed project is part of a comprehensive effort to improve teaching and learning and support rigorous academic standards for students.
(c) The extent to which the proposed project is designed to build capacity and yield results that will extend beyond the period of Federal financial assistance.
(4)
In addition, the Secretary considers the following factor:
The qualifications, including relevant training and experience, of key project personnel.
(5)
(a) The adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks.
(b) The extent to which the time commitments of the project director and principal investigator and other key project personnel are appropriate and adequate to meet the objectives of the proposed project.
(c) The adequacy of procedures for ensuring feedback and continuous improvement in the operation of the proposed project.
(6)
(a) The extent to which the methods of evaluation include the use of objective performance measures that are clearly related to the intended outcomes of the project and will produce quantitative and qualitative data to the extent possible.
(b) The extent to which the methods of evaluation will provide performance feedback and permit periodic assessment of progress toward achieving intended outcomes.
A strong evaluation plan should be included in the application narrative and should be used, as appropriate, to shape the development of the project from the beginning of the grant period. The evaluation plan should include benchmarks to monitor progress toward specific project objectives and also outcome measures to assess the impact on teaching and learning, or other important outcomes for project participants. More specifically, the plan should identify the individual or organization that has agreed to serve as evaluator for the project and describe the qualifications of that evaluator. The plan should describe the evaluation design, indicating: (1) What types of data will be collected; (2) when various types of data will be collected; (3) what methods will be used; (4) what instruments will be developed and when these instruments will be developed; (5) how the data will be analyzed; (6) when reports of results and outcomes will be available; and (7) how the applicant will use the information collected through the evaluation to monitor progress of the funded project and to provide accountability information both about success at the initial site and about effective strategies for replication in other settings. Applicants are encouraged to devote an appropriate level of resources to project evaluation.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
4.
5.
These measures constitute the Department's indicators of success for this program. Consequently, we advise an applicant for a grant under this program to give careful consideration to these measures in conceptualizing the approach and evaluation for its proposed project. Each grantee will be required to provide, in its annual performance and final reports, data about its progress in meeting these measures.
Diane Austin, U.S. Department of Education, 400 Maryland Avenue, SW., Room 4W223, Washington, DC 20202-5950. Telephone: (202) 260-1280 or by e-mail:
If you use a TDD, call the FRS, toll free, at 1-800-877-8339.
The official version of this document is the document published in the
U.S. Department of Education, National Assessment Governing Board.
Notice of public hearing.
The National Assessment Governing Board is announcing a public hearing on January 28, 2010 to obtain comment on the draft Technological Literacy Assessment Framework for the National Assessment of Educational Progress (NAEP).
Public and private parties and organizations are invited to present written and/or oral testimony. The hearing will be held at the Washington Court Hotel, 525 New Jersey Avenue, NW., Washington, DC 20001 from 9:30 a.m. to 2:00 p.m. EST.
This notice sets forth the schedule and proposed agenda of a forthcoming public hearing of the National Assessment Governing Board. This notice also describes the functions of the Board. Notice of this meeting is required under Section 10 (a)(2) of the Federal Advisory Committee Act. This document is intended to notify members of the general public of their opportunity to provide comment. Individuals who will need special accommodations in order to attend the hearing (such as interpreting services, assistive listening devices, materials in alternative format) should notify Munira Mwalimu at 202-357-6938 or at
January 28, 2010.
In preparation for a new assessment in the area of Technological Literacy, the Governing Board has contracted with WestEd to convene broad-based panels of policymakers, business representatives, educators, engineers, information communication experts, and others to recommend student knowledge and skills at the 4th, 8th, and 12th grades for a planned assessment of
The draft framework is available on the Governing Board Web site at
The Board is seeking comment from policymakers, teachers, researchers, state and local school administrators, business representatives, members of interested organizations, and members of the public. Representatives of the Governing Board will conduct the hearing to receive testimony and ask clarifying questions or respond to presentations. Oral testimony should not exceed ten minutes. Testimony will become part of the public record.
To register to present oral testimony on January 28, 2010 at the Washington Court Hotel, in Washington, DC, please call Tessa Regis, of the National Assessment Governing Board staff, at 202-357-7500 or send an e-mail to
The Board will make an effort to receive testimony from all persons who wish to present testimony at the hearing, without prior registration, but may not be able to do so. Speakers are encouraged to register in advance and to bring written statements for distribution at the hearing.
Testimony should be sent to: National Assessment Governing Board, 800 North Capitol Street, NW., Suite 825, Washington, DC 20002,
Tessa Regis or Mary Crovo, National Assessment Governing Board, 800 North Capitol Street, NW., Suite 825, Washington, DC 20002-4233,
The National Assessment Governing Board is established under section 412 of the National Education Statistics Act of 1994, as amended. The Board formulates policy guidelines for the National Assessment of Educational Progress (NAEP).
Specific questions that the Board seeks responses to include the following:
1. Does the content described in the draft framework represent important information and reasonable expectations for student achievement in technological literacy?
2. Is there an appropriate balance among different areas of technological literacy at grades 4, 8, and 12?
3. Are the skills and practices in the framework treated satisfactorily with appropriate emphasis?
4. Is there an appropriate mix of item types—multiple-choice, short answer, and long constructed response?
5. Does the draft framework provide clear information about the content and format of this NAEP assessment? Are the organization and format of the document appropriate for its intended audiences, including the general public, teachers, policy makers, curriculum specialists, and others?
6. The Board intends to change the assessment title, “Technological Literacy,” to another more appropriate title, which clearly communicates the broad-based nature of the assessment. What are some recommendations for a new title and why are those choices more appropriate than Technological Literacy?
A detailed summary of the hearing that is informative to the public and consistent with the policy of section 5 U.S.C. 552b(c) will be available to the public within 14 days of the meeting. Records are kept of all Board proceedings and are available for public inspection at the U.S. Department of Education, National Assessment Governing Board, Suite 825, 800 North Capitol Street, NW., Washington, DC, from 9:00 a.m. to 5:00 p.m. Eastern Time, Monday through Friday.
The official version of this document is the document published in the
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
Take notice that the Commission received the following open access transmission tariff filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission received the following electric rate filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern Time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Additional comments may be submitted on or before February 16, 2010.
Submit your comments, referencing Docket ID No. EPA-HQ-OW-2006-0394, to (1) EPA online using
Don Waye, Assessment and Watershed Protection Division, Office of Wetlands Oceans and Watersheds, Mail Code 4503-T, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 566-1170; fax number: (202) 566-1333; e-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On July 31, 2009 (74 FR 38182), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OW-2006-0394, which is available for online viewing at
Use EPA's electronic docket and comment system at
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA)(44 U.S.C. 3501
Additional comments may be submitted on or before February 16, 2010.
Submit your comments, referencing Docket ID No. EPA-HQ-OW-2006-0408 to (1) EPA online using
Tara O'Hare, OW, WaterSense Program (MC 4204M), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 202-564-8836; fax number: 202-501-2396; e-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On July 28, 2009 (74 FR 37212), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OW-2006-0408, which is available for online viewing at
Use EPA's electronic docket and comment system at
As part of strategic planning efforts, EPA encourages programs to develop meaningful performance measures, set ambitious targets, and link budget expenditures to results. Data collected under this ICR will assist the WaterSense program in demonstrating results and evaluating program effectiveness to ensure continual program improvement. In addition, data will help EPA monitor market penetration and inform future product categories and specifications.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before February 16, 2010.
Submit your comments, referencing docket ID number EPA-HQ-OECA-2009-0378, to (1) EPA online using
Learia Williams, Compliance Assessment and Media Programs Division, Office of Compliance, Mail Code 2223A, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone number: (202) 564-4113; fax number: (202) 564-0050; e-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On July 8, 2009 (74
EPA has established a public docket for this ICR under docket ID number EPA-HQ-OECA-2009-0378, which is available for public viewing online at
Use EPA's electronic docket and comment system at
Owners and operators of a new and existing area source is subject to the General Provision (40 CFR part 63, subpart A). An existing affected source is required to submit an initial notification of applicability and a notification of compliance status. They are also required to certify initial compliance with particulate matter (PM) limits based on previous performance test results. These notifications, reports, and records are essential in determining compliance, and are required of all affected facilities subject to NESHAP.
Any owner or operator subject to the provisions of this subpart must maintain a file of these measurements, and retain the file for at least five years following the collection of such measurements, maintenance reports, and records.
All reports are sent to the delegated State or local authority. In the event that there is no such delegated authority, the reports are sent directly to the EPA regional office. This information is being collected to assure compliance with 40 CFR part 63, subpart EEEEEE; 40 CFR part 63, subpart FFFFFF; 40 CFR part 63, subpart DDDDDD; 40 CFR part 63, subpart GGGGGG; 40 CFR part 61, subpart F; 40 CFR part 61, subpart C; as authorized in sections 112 and 114(a) of the Clean Air Act. The required information consists of emissions data and other information that has been determined to be private.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB Control Number. The OMB Control Number for EPA regulations listed in 40 CFR part 9 and 48 CFR chapter 15, are identified on the form and/or instrument, if applicable.
Environmental Protection Agency (EPA).
Notice.
This document announces the Office of Management and Budget (OMB) responses to Agency Clearance requests, in compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Rick Westlund (202) 566-1682, or e-mail at
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Additional comments may be submitted on or before February 16, 2010.
Submit your comments, referencing Docket ID No. EPA-HQ-OAR-2003-0073, to (1) EPA online using
Sicy Jacob, Office of Emergency Management, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 564-8019; fax number: (202) 564-2620; e-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On June 25, 2009 (74 FR 30291), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OAR-2003-0073, which is available for online viewing at
Use EPA's electronic docket and comment system at
On August 5, 1999, the President signed the Chemical Safety Information, Site Security, and Fuels Regulatory Relief Act (CSISSFRRA). The Act required the President to promulgate regulations on the distribution of OCA information (CAA section 112(r)(7)(H)(ii)). The President delegated to EPA and the Department of Justice (DOJ) the responsibility to promulgate regulations to govern the dissemination of OCA information to the public. The final rule was published on August 4, 2000 (65 FR 48108). The regulations imposed minimal requirements on the public, state and local agencies that request OCA data from EPA. The state
Members of the public requesting to view OCA information at federal reading rooms would be required to sign in and self certify. If asking for OCA information from federal reading rooms for the facilities in the area where they live or work, they would be required to provide proof that they live or work in that area. Members of the public are required to give their names, telephone number, and the names of the facilities for which OCA information is being requested, when they contact the central office to schedule an appointment to view OCA information.
Pursuant to 40 CFR 1506.9
Revision to FR Notice Published 10/30/2009: Extending Comment Period from 01/04/2010 to 01/29/2010.
Revision to FR Notice Published: 12/18/2009 Extending Comment Period from 01/19/2010 to 02/09/2010.
Availability of EPA comments prepared pursuant to the Environmental Review Process (ERP), under section 309 of the Clean Air Act and Section 102(2)(c) of the National Environmental Policy Act as amended.
Requests for copies of EPA comments can be directed to the Office of Federal Activities at 202-564-7146 or
In accordance with Section 309(a) of the Clean Air Act, EPA is required to make its comments on EISs issued by other Federal agencies public. Historically, EPA has met this mandate by publishing weekly notices of availability of EPA comments, which includes a brief summary of EPA's comment letters, in the
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA or Agency) Science Advisory Board (SAB) Staff Office announces a public meeting of the SAB Committee on Science Integration for Decision Making.
The meeting dates are February 10, 2010 from 9 a.m. to 5 p.m. and February 11, 2010 from 8:30 a.m. to 1 p.m. (Eastern Time).
The meeting will be held in the Science Advisory Board Conference Center, 1025 F Street, NW., Suite 3705, Washington, DC 20004.
Members of the public who wish to obtain further information about this meeting must contact Dr. Angela Nugent, Designated Federal Officer (DFO). Dr. Nugent may be contacted at the EPA Science Advisory Board (1400F), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; or via telephone/voice mail; (202) 343-9981; fax (202) 233-0643; or e-mail at
Pursuant to the Federal Advisory Committee Act, 5 U.S.C., App. 2 (FACA), notice is hereby given that the SAB Committee on Science Integration for Decision Making will hold a public meeting to discuss the results of fact-finding activities conducted as part of a study of science integration supporting EPA decision making. The SAB was established pursuant to 42 U.S.C. 4365 to provide independent scientific and technical advice to the Administrator on the technical basis for Agency positions and regulations. The SAB is a Federal Advisory Committee chartered under FACA. The SAB will comply with the provisions of FACA and all appropriate SAB Staff Office procedural policies.
At the upcoming public meeting, the committee will discuss the results of the fact-finding discussions and determine next steps to complete the evaluative study.
Environmental Protection Agency.
Notice of proposed settlement; request for public comment.
In accordance with the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (“CERCLA”), 42 U.S.C. 9601,
For thirty (30) days following the date of publication of this notice, the Agency will receive written comments relating to the proposed settlement. The Agency will consider all comments received and may modify or withdraw its consent to the settlement if comments received disclose facts or considerations which indicate that the settlement is inappropriate, improper, or inadequate. The Agency's response to any comments received will be available for public inspection at 5 Post Office Square, Boston, MA 02109-3912.
Comments must be submitted on or before February 16, 2010.
Comments should be addressed to the Regional Hearing Clerk, U.S. Environmental Protection Agency, Region I, 5 Post Office Square, Suite 100, Mailcode ORA 18-1, Boston, Massachusetts 02109-3912, and should refer to: In re: Commerce Street Plume Superfund Site, U.S. EPA Docket No. CERCLA-01-2008-0062.
Gregory Dain, U.S. Environmental Protection Agency, Region I, 5 Post Office Square, Suite 100, Mailcode OES 04-2, Boston, Massachusetts 02109-3912, (617) 918-1884. A copy of the proposed settlement agreement can be obtained from Gregory Dain.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board’s Regulation Y (12 CFR 225.41) to acquire a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the office of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than January 29, 2010.
Board of Governors of the Federal Reserve System, January 11, 2010.
In accordance with § 271.25 of its rules regarding availability of information (12 CFR part 271), there is set forth below the domestic policy directive issued by the Federal Open Market Committee at its meeting held on December 15 and 16, 2009.
The Federal Open Market Committee seeks monetary and financial conditions that will foster price stability and promote sustainable growth in output. To further its long-run objectives, the Committee seeks conditions in reserve markets consistent with federal funds trading in a range from 0 to
By order of the Federal Open Market Committee, January 7, 2010.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than February 12, 2010.
In connection with this application, Applicant also has applied retain First Niagara Bank, Buffalo, New York, and First Niagara Commercial Bank, Lockport, New York, and thereby engage in operating a savings association, pursuant to section 225.28(b)(4); in extending credit and servicing loans, pursuant to section 225.28(b)(1); in leasing personal and real propoerty, pursuant to section 225.28(b)(3); and in the sale of credit related insurance, pursuant to section 225.28(b)(11), all of Regulation Y. Applicant also has applied to retain First Niagara Bank upon its conversion to a National Bank.
Board of Governors of the Federal Reserve System, January 12, 2010.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y (12 CFR Part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act. Additional information on all
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than January 29, 2010.
Board of Governors of the Federal Reserve System, January 11, 2010.
National Institute of Environmental Health Sciences (NIEHS); National Institutes of Health (NIH); HHS.
Announcement of report availability and request for comment.
CERHR announces the availability of the final expert panel report on soy infant formula on January 15, 2010, from the CERHR Web site (
The final expert panel report on soy infant formula will be available for public comment on January 15, 2010. Written public comments on this report should be received by March 1, 2010.
Comments on the expert panel report and any other correspondence should be submitted to Dr. Kristina A. Thayer, Acting CERHR Director, NIEHS, P.O. Box 12233, MD K2-04, Research Triangle Park, NC 27709 (mail), 919-541-5021 (telephone), or
Soy infant formula is fed to infants as a supplement or replacement for human milk or cow milk formula. Soy infant formula contains isoflavones such as genistein (CAS RN: 446-72-0), daidzein (CAS RN: 486-66-8), and glycitein (CAS RN: 40957-83-3). Genistein, daidzein, glycitein, and the daidzein metabolite equol are non-steroidal, estrogenic compounds that occur naturally in some plants and are often referred to as “phytoestrogens.” In plants, nearly all genistein, daidzein, and glycitein are linked to a sugar molecule and these isoflavone-sugar complexes are called genistin, daidzin, or glycitin.
On December 16-18, 2009, CERHR (74 FR 53508) convened an expert panel to conduct an updated evaluation of the potential developmental toxicity of soy infant formula and its predominant isoflavone constituents. CERHR selected soy infant formula for evaluation because of (1) The availability of numerous developmental toxicity studies in laboratory animals and humans, (2) the availability of information on exposures in infants, and (3) public concern for effects on infant or child development.
Following receipt of public comments on the final expert panel report on soy infant formula, CERHR staff will prepare the NTP monograph. NTP monographs are divided into three major sections: (1) The NTP Brief that provides the NTP's interpretation of the potential for the substance to cause adverse reproductive and/or developmental effects in exposed humans, (2) a roster of expert panel members, and (3) the final expert panel report. The NTP Brief is based on the expert panel report, public comments on that report, public and peer review comments on the draft NTP Brief, and any new, relevant information that becomes available after the expert panel meetings.
CERHR invites written public comments on the expert panel report on soy infant formula. Written comments should be sent to Dr. Kristina A. Thayer (
The NTP established CERHR in 1998 (63 FR 68782). CERHR is a publicly accessible resource for information about adverse reproductive and/or developmental health effects associated with exposure to environmental and/or occupational exposures. CERHR follows a formal process for the evaluation of selected substances that includes multiple opportunities for public input.
CERHR invites the nomination of substances for review or scientists for its expert registry. Information about CERHR and the nomination process can be obtained from its homepage (
Department of Health and Human Services, Office of the Secretary, Office of Public Health and Science, Office on Women's Health.
Notice.
The U.S. Department of Health and Human Services (HHS), Office on Women's Health (OWH)
Representatives of women's health organizations should submit expressions of interest by February 28, 2010.
Expressions of interest, comments, and questions may be submitted by electronic mail to
Henrietta Terry, M.S., Public Health Advisor, Office on Women's Health, Department of Health and Human Services, 200 Independence Avenue, SW., Room 733E, Washington, DC 20201, (202) 205-1952 (telephone), or (202) 690-7172 (fax).
The OWH was established in 1991 to improve the health of American women by advancing and coordinating a comprehensive women's health agenda throughout HHS. This program has two goals: Development and implementation of model programs on women's health; and leading education, collaboration, and coordination on women's health. The program fulfills its mission through competitive contracts and grants to an array of community, academic, and other organizations at the national and community levels. National educational campaigns provide information about the important steps women can take to improve and maintain their health, such as National Women's Health Week.
National Women's Health Week is a week long health observance that kicks off on Mother's Day and seeks to educate women about improving their physical and mental health and preventing disease. With the 2010 theme “It's Your Time,” OWH will focus on encouraging women to make their health a top priority and take simple steps for a longer, healthier and happier life. For more information about National Women's Health Week, please visit
Department of Health and Human Services, Office of the Secretary, Office of Public Health and Science.
Notice.
As stipulated by the Federal Advisory Committee Act, the U.S. Department of Health and Human Service (DHHS) is hereby giving notice that the Presidential Advisory Council on HIV/AIDS (PACHA) will hold a meeting. The meeting will be open to the public.
The meeting will be held on February 2, 2010 from 9 a.m. to approximately 5 p.m.
South Court Auditorium, Eisenhower Executive Office Building, Pennsylvania Avenue and 17th Street, NW., Washington, DC 20501.
Mr. Melvin Joppy, Committee Manager, Presidential Advisory Council on HIV/AIDS, Department of Health and Human Services, 200 Independence Avenue, SW., Room 443H, Hubert H. Humphrey Building, Washington, DC 20201; (202) 690-5560. More detailed information about PACHA can be obtained by accessing the Council's Web site at
PACHA was established by Executive Order 12963, dated June 14, 1995 as amended by Executive Order 13009, dated June 14, 1996. The Council was established to provide advice, information, and recommendations to the Secretary regarding programs and policies intended to (a) Promote effective prevention of HIV disease, (b) advance research on HIV and AIDS, and (c) promote quality services to persons living with HIV disease and AIDS. PACHA was established to serve solely as an advisory body to the Secretary of Health and Human Services.
The agenda for this Council meeting will be posted on the Council's Web site
This meeting of the PACHA will be on White House property, thus, each person must be screened and cleared by the U.S. Secret Service. Pre-registration for public attendance is mandatory. Please contact: Natalie Pojman, Office of National AIDS Policy (202) 456-4533 or
Members of the public will have the opportunity to provide comments at the meeting. Any individual who wishes to participate in the public comment session must register at
President's Council on Physical Fitness and Sports.
Notice; correction.
The President's Council on Physical Fitness and Sports published a document in the
Jane Wargo, 202.690.5157
In the
Proposals for co-sponsorship should be sent to Jane Wargo, Program Analyst, Office of the President's Council on Physical Fitness and Sports, 1101 Wootton Parkway, Suite 560, Rockville, MD 20852; Ph: (240) 276-9847, Fax: (240) 276-9860. Proposals may also be submitted by electronic mail to
Jane Wargo, Program Analyst, Office of the President's Council on Physical Fitness and Sports, Ph: (240) 276-9847, e-mail:
Centers for Medicare & Medicaid Services, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare & Medicaid Services (CMS) is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
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To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS' Web Site at
In commenting on the proposed information collections please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in one of the following ways by
1.
2.
Centers for Medicare & Medicaid Services, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services, is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the Agency's function; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
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3.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS Web Site address at
To be assured consideration, comments and recommendations for the proposed information collections must be received by the OMB desk officer at the address below, no later than 5 p.m. on
Health Resources and Services Administration, HHS
Notice of Noncompetitive Replacement Award to Regional Health Care Affiliates.
The Health Resources and Services Administration (HRSA) will be transferring Health Center Program (section 330 of the Public Health Service Act) funds originally awarded to Trover Health System to Regional Health Care Affiliates to ensure the provision of critical primary health care services to underserved populations in Webster and McLean Counties, Kentucky.
Section 330 of the Public Health Service Act, 42 U.S.C. 245b.
Regional Health Care Affiliates will directly initiate primary health care services in Webster and McLean Counties to the more than 5,250 low income, underserved and uninsured individuals in the original service area, Webster and McLean Counties, KY, as had been proposed in funded grant application.
Regional Health Care Affiliates can provide primary health care services immediately, is located in the same geographical area where the Trover Health System's primary health care services have been provided, and will be able to provide continuity of care to patients of the former grantee.
This underserved target population has an immediate need for vital primary health care services and would be negatively impacted by any delay caused by a competition. As a result, in order to ensure that critical primary health care services are available to the original target population in a timely manner, this replacement award will not be competed.
Marquita Cullom-Stott via email at
The purpose of this notice is to inform the public about a meeting of the NIH Blue Ribbon Panel to Advise on the Risk Assessment of the National Emerging Infectious Diseases Laboratories at Boston University Medical Center.
There will be a meeting of the NIH Blue Ribbon Panel to advise on the Risk Assessment of the National Emerging Infectious Diseases Laboratories (NEIDL) at Boston University Medical Center. The meeting will be held on Friday, February 12, 2010, at the Hyatt Regency Bethesda Hotel, located at 7400 Wisconsin Avenue, Bethesda, Maryland 20814, from approximately 8:30 a.m. to 2 p.m. This meeting is the second in a series of public meetings with the National Research Council to review the ongoing supplementary risk assessment study.
Sign up for public comment will begin at approximately 8 a.m. In the event that time does not allow for all those interested in presenting oral comments, anyone may file written comments using the following address below.
An agenda and slides for the meeting can be obtained prior to the meeting by connecting to
Food and Drug Administration, HHS.
Notice of public meeting; request for comments.
The Food and Drug Administration (FDA) is announcing a public meeting entitled: Clinical Accuracy Requirements for Point of Care Blood Glucose Meters. The purpose of the public meeting is to discuss the clinical accuracy requirements of blood glucose meters and other topics related to their use in point of care settings.
If you need special accommodations due to a disability, please contact the hotel at 301-977-8900 at least 7 days prior to the meeting.
Directions to the hotel and other information about the meeting may be found at
Regardless of attendance at the meeting, interested persons may submit written or electronic comments to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
The workshop will include 3 sessions on the following: (1) Clinical accuracy for blood glucose meters, (2) tight glycemic control in clinical settings, and (3) medications and other substances that interfere with the technologies the devices employ. Each session will include presentations from physicians, laboratories, government and industry representatives, and patient advocates who are experts in each area. Presentations will be followed by panel discussions of session topics and questions from the audience.
Glucose meters are used by millions of people with diabetes every day. These devices have become smaller, faster, and more accurate over the past 3 decades and now allow for better glycemic control by diabetics than in the past. Glucose meters are not only used by diabetics at home, they are also used by health care providers in a variety of settings such as hospitals, emergency response units, nursing homes, and physicians' offices.
Some in the clinical and patient communities have questioned whether the current FDA-recognized accuracy standards for blood glucose meters are acceptable and have challenged FDA to require tighter performance standards. Blood glucose meters are being used in clinical settings and at home in ways that are not within the intended use of the devices as evaluated by FDA. For example, glucose meters are increasingly being used to achieve tight glycemic control despite the fact that these devices have not been cleared for this use. There is currently no consensus that blood glucose meters currently on the market are accurate enough to be used in this way. Still, other stakeholders believe the current analytical performance of glucose meters is adequate and that there is no evidence to support the need for higher standards. Other factors affecting the performance of blood glucose meters include administered drugs, common physiological conditions (such as diabetic ketoacidosis), and user-interface issues. For example, the administration of therapies containing maltose, which are commonly prescribed to patients in the hospital, have resulted in falsely elevated glucose results. (FDA issued a Public Health Notification about this risk. See
In response to the issues identified previously, FDA is reconsidering the current FDA-recognized glucose meter accuracy standards, and is considering whether FDA review criteria for these devices should be changed for reasons of public health. FDA is interested in hearing from clinical experts about the clinical requirements for blood glucose meter accuracy and precision, and the benefits and risks of using glucose meters to achieve and maintain tight glycemic control. The appropriate analytical and clinical accuracy requirements for blood glucose meters will be discussed during this meeting, as well as the potential benefits and challenges of meeting those requirements. We are seeking participation from all stakeholders including, but not limited to: Physicians, nurses, health care providers who work in intensive care settings, industry, diabetes educators, professional societies, consumers, and patient advocate groups.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
The Health Resources and Services Administration (HRSA) is publishing an updated monetary amount of the average cost of a health insurance policy as it relates to the National Vaccine Injury Compensation Program (VICP).
Section 100.2 of the VICP's implementing regulation (42 CFR Part 100) states that the revised amounts of an average cost of a health insurance policy, as determined by the Secretary, are to be published periodically in a notice in the
In 2009, MEPS-IC, available at
The Department will periodically (generally on an annual basis) recalculate the average cost of a health insurance policy by obtaining a new figure from the latest MEPS-IC data and updating this figure using the percentage change(s) reported by the most recent data from KFF/HRET or other authoritative source that may be more accurate or appropriate in the future. The updated calculation will be published as a notice in the
Therefore, the Secretary announces that the revised average cost of a health insurance policy under the VICP is $383.78 per month. In accordance with § 100.2, the revised amount was effective upon its delivery by the Secretary to the United States Court of Federal Claims. Such notice was delivered to the Court on January 4, 2010.
Notice is hereby given by the National Institutes of Health (NIH) of the “NIH Consensus Development Conference: Lactose Intolerance and Health” to be held February 22-24, 2010, in the NIH Natcher Conference Center, 45 Center Drive, Bethesda, Maryland 20892. The conference will begin at 8:30 a.m. on February 22 and 23 and at 9 a.m. on February 24, and it will be open to the public.
Lactose intolerance is the inability to digest significant amounts of lactose, a sugar found in milk and other dairy products. Lactose intolerance is caused by a shortage of the enzyme lactase, which is produced by expression of the lactase-phlorizin hydrolase gene by the cells that line the small intestine. Lactase breaks milk sugar down into two simpler forms of sugar called glucose and galactose, which are then absorbed into the bloodstream. Infants of every racial and ethnic group worldwide produce lactase and successfully digest lactose provided by human milk or by infant formulas. However, by the time many of the world's children reach the age of 3-4 years, expression of intestinal lactase ceases. Most affected individuals, referred to as lactase nonpersisters, in the United States belong to minority groups, especially Asians, African Americans, Hispanics, Native Americans, Alaskan Natives, and Pacific Islanders.
Consumption of lactose-containing products by lactase nonpersisters may cause gas production, bloating, abdominal pain, and diarrhea. These symptoms of lactose intolerance are caused by intestinal bacteria's fermentation of undigested lactose and often cause individuals to avoid lactose-containing products. Lactose intolerance can be diagnosed by drinking one to two large glasses of milk after fasting and measuring breath hydrogen levels a few hours later. Other diagnostic tools include analyzing an intestinal biopsy sample or determining the genetic makeup of the chromosomal region coding for lactase. However, many individuals mistakenly ascribe symptoms of a variety of intestinal disorders to lactose intolerance without undergoing testing. This becomes intergenerational when self-diagnosed lactose-intolerant parents place their children on lactose-restricted diets in the belief that the condition is hereditary.
Healthcare providers are concerned that many lactose-intolerant individuals are avoiding dairy products, which constitute a readily accessible source of calcium and are fortified with vitamin D and other nutrients. Therefore, these individuals may not be meeting recommended intakes of these essential nutrients. Insufficient intakes of calcium carry a risk of decreased bone mineral density. This may have effects on bone health and increase the risk of fracture throughout the lifecycle, especially in
The public health burden from deficiencies attributable to lactose intolerance is difficult to quantify. Additionally, it is challenging to identify and manage lactase nonpersisters. Questions remain as to the amount, if any, of lactose that can be tolerated by lactose nonpersisters and how best to assist these individuals in meeting recommended intakes. To examine these important issues, the
• What is the prevalence of lactose intolerance, and how does this prevalence differ by race, ethnicity, and age?
• What are the health outcomes of dairy exclusion diets?
• What amount of daily lactose intake is tolerable in subjects with diagnosed lactose intolerance?
• What strategies are effective in managing individuals with diagnosed lactose intolerance?
• What are the future research needs for understanding and managing lactose intolerance?
An impartial, independent panel will be charged with reviewing the available published literature in advance of the conference, including a systematic literature review commissioned through the Agency for Healthcare Research and Quality. The first day and a half of the conference will consist of presentations by expert researchers and practitioners and open public discussions. On Wednesday, February 24, the panel will present a statement of its collective assessment of the evidence to answer each of the questions above. The panel will also hold a press telebriefing to address questions from the media. The draft statement will be published online later that day, and the final version will be released approximately six weeks later. The primary sponsors of this meeting are the NIH
Advance information about the conference and conference registration materials may be obtained from the NIH Consensus Development Program Information Center by calling 888-644-2667 or by sending e-mail to
The NIH has instituted security measures to ensure the safety of NIH employees, guests, and property. All visitors must be prepared to show a photo ID upon request. Visitors may be required to pass through a metal detector and have bags, backpacks, or purses inspected or x-rayed as they enter NIH buildings. For more information about the security measures at NIH, please visit the Web site at
Notice is hereby given by the National Institutes of Health (NIH) of the “NIH State-of-the-Science Conference: Enhancing Use and Quality of Colorectal Cancer Screening” to be held February 2-4, 2010, in the NIH Natcher Conference Center, 45 Center Drive, Bethesda, Maryland 20892. The conference will begin at 8:30 a.m. on February 2 and 3, and at 9 a.m. on February 4, and will be open to the public.
Colorectal cancer is the second-leading cause of cancer-related deaths in the United States. Approximately 50,000 people in the United States are expected to die from colorectal cancer in 2009. Colonic polyps, abnormal growths of tissue on the inner lining of the colon, are relatively common findings in men and women 50 years and older. Most of these growths are not cancerous, but one type of polyp, known as an adenoma, can develop into colorectal cancer. Screening tests for colorectal cancer generally either seek to identify and remove adenomas or examine the stool for signs of early cancer in people who have no symptoms. A range of colorectal cancer screening tests is available in the United States. The U.S. Preventive Services Task Force currently recommends that average-risk adults aged 50 to 75 years undergo screening for colorectal cancer with annual fecal occult blood testing, sigmoidoscopy (internal examination of the lower part of the large intestine) every 5 years, or colonoscopy (internal examination of the entire large intestine) every 10 years. Additional tests that may be used for colorectal cancer screening include computed tomography (CT) colonography and fecal DNA testing.
Although colorectal cancer is an important cause of mortality in the United States, screening for this disease is currently underutilized among eligible individuals. Despite evidence supporting the value of screening, in 2005 only 50 percent of U.S. adults aged 50 and older had been screened according to guidelines. Rates of screening for colorectal cancer are consistently lower than those for other common cancers, particularly breast and cervical cancer. Reasons for this disparity are complex. Unlike most other preventive services, in colorectal cancer screening there are multiple test options from which to choose, and patients and providers may have varying preferences for or access to the tests. Successful completion of colorectal cancer screening requires effort on the part of the patient to obtain stool samples for testing or to clean the colon in preparation for endoscopic examination. Test options may also differ in cost and availability for a given community. Patient, provider, and healthcare system characteristics may each play a unique role in influencing the use and quality of colorectal cancer screening.
Adding to the complexity of this issue, colorectal cancer screening may be overused or misused in certain situations. Despite uncertainty regarding the benefit of removing small polyps, many people undergoing sigmoidoscopy or colonoscopy have all identified growths removed. This may put them at increased risk for possible complications from these procedures, which can include rectal bleeding or colonic perforation (a tear in the wall of the intestine that can cause a serious abdominal infection). In addition, follow-up testing of individuals who have previously had polyps removed may occur more frequently than available evidence supports, which again may put people at risk for complications and have both cost and
To provide healthcare providers, patients, policy makers, and the general public with a comprehensive assessment of how colorectal cancer screening and surveillance are most appropriately implemented, monitored, and evaluated for average-risk populations in the United States, the National Cancer Institute and the Office of Medical Applications of Research of the National Institutes of Health will convene a State-of-the-Science Conference February 2-4, 2010, to assess the available scientific evidence related to the following questions:
• What are the recent trends in the use and quality of colorectal cancer screening?
• What factors influence the use of colorectal cancer screening?
• Which strategies are effective in increasing the appropriate use of colorectal cancer screening and follow-up?
• What are the current and projected capacities to deliver colorectal cancer screening and surveillance at the population level?
• What are the effective approaches for monitoring the use and quality of colorectal cancer screening?
• What research is needed to make the most progress and have the greatest public health impact in promoting the appropriate use of colorectal cancer screening?
An impartial, independent panel will be charged with reviewing the available published literature in advance of the conference, including a systematic literature review commissioned through the Agency for Healthcare Research and Quality. The first day and a half of the conference will consist of presentations by expert researchers and practitioners and open public discussions. On Thursday, February 4, the panel will present a statement of its collective assessment of the evidence to answer each of the questions above. The panel will also hold a press telebriefing to address questions from the media. The draft statement will be published online later that day, and the final version will be released approximately six weeks later. The primary sponsors of this meeting are the NIH National Cancer Institute and the NIH Office of Medical Applications of Research.
Advance information about the conference and conference registration materials may be obtained from the NIH Consensus Development Program Information Center by calling 888-644-2667 or by sending e-mail to
The NIH has instituted security measures to ensure the safety of employees, guests, and property. All visitors must be prepared to show a photo ID upon request. Visitors may be required to pass through a metal detector and have bags, backpacks, or purses inspected or x-rayed as they enter NIH buildings. For more information about the security measures at NIH, please visit the Web site at
Notice is hereby given that the Office of Research on Women's Health (ORWH), Office of the Director, National Institutes of Health, Department of Health and Human Services, in collaboration with the Emory University School of Medicine will convene a public hearing and scientific workshop February 16-17, 2010, at Emory University School of Medicine, James B. Williams Medical Education Building, Atlanta, Georgia.
With rapid advances in science and wider global understanding of women's health and sex/gender contributions to well-being and disease, the purpose of the meeting is to ensure that NIH continues to support cutting edge women's health research that is based upon the most advanced techniques and methodologies. The meeting format is designed to promote an interactive discussion involving leading scientists, advocacy groups, public policy experts, health care providers, and the general public. With a focus upon women's cardiovascular health, the meeting at Emory University School of Medicine is convened to assist the ORWH and the NIH to move into the next decade of women's health research.
As science and technology advance and fields such as computational biology demonstrate the power of interdisciplinary research, it remains critical for sex and gender factors to be integrated into broad experimental methodologies and scientific approaches across the lifespan. Biomedical and behavioral research are also necessary to understand how cultural, ethnic, and racial differences influence the causes, diagnosis, progression, treatment, and outcome of disease among different populations, including women of diverse geographic locations and socioeconomic backgrounds. Furthermore, health differences among diverse populations of women remain a critical area in need of continued focus and attention.
The ORWH challenges all meeting attendees to assist the NIH in defining the women's health research agenda of the future by thinking beyond traditional women's health issues. With a special focus upon women's cardiovascular health, ORWH and NIH ask meeting participants to consider creative strategies that need to be employed to identify areas of research that are best poised for advancement, identify innovative ways in which persistent issues of health and disease can be addressed, and explore new horizons of scientific concepts and investigative approaches. Attention also needs to be paid to new areas of science application, new technologies, and continuing basic science investigations. Clinical questions that are not currently the focus of research priorities need to be considered to ensure that women's health research is optimally served and that the ORWH can continue to provide leadership for the benefit of women's health, nationally and internationally.
The meeting will consist of public testimony, scientific panels and seven concurrent scientific working groups. Specifically, on February 16, individuals representing a full spectrum of organizations interested in biomedical and behavioral research on women's health issues will have an opportunity to provide public testimony from 10:30 a.m.-12 p.m. The seven concurrent scientific working groups meeting on February 16 in afternoon sessions will focus on a range of women's cardiovascular health issues, including the following: pregnancy and cardiovascular disease research and ethical considerations; cardiovascular disease in elderly and frail elderly women—optimal management and research; microvascular disease, biomechanics, and application of new technologies to cardiovascular research; stem cells, progenitor cells, and the vista of cardiovascular regenerative
ORWH invites individuals with an interest in research related to women's health to provide written and/or oral testimony on these topics and/or on issues related to the sustained advancement of women in various biomedical careers. Due to time constraints, only one representative from an organization or professional specialty group may submit oral testimony. Individuals not representing an organized entity but a personal point of view are similarly invited to present written and/or oral testimony. A letter of intent to present oral testimony is necessary and should be sent electronically to
Those wishing to present oral testimony are also asked to submit a written form of their testimony that is limited to a maximum of 10 pages, double spaced, 12-point font, and should include a brief description of the organization. Electronic submission to the above Web site is preferred; however, for those who do not have access to electronic means, written testimony, bound by the restrictions previously noted and postmarked no later than February 1, 2010, can be mailed to Ms. Jory Barone at the above address. All written presentations must meet the established page limitations. Submissions exceeding this limit will not be accepted and will be returned. Oral testimony of this material at the meeting will be limited to no more than 5-6 minutes in length.
Because of time constraints for oral testimony, testifiers may not be able to present the complete information as it is contained in their written form submitted for inclusion in the public record for the meeting. Therefore, testifiers are requested to summarize the major points of emphasis from the written testimony not to exceed 6 minutes of oral testimony. Those individuals and/or organizations who have indicated that they will present oral testimony at the meeting in Atlanta, will be notified prior to the meeting regarding the approximate time for their oral presentation.
Individuals and organizations wishing to provide written statements
Logistics questions related to the meeting should be addressed to Ms. Jory Barone,
The resulting report to the ORWH and the NIH will ensure that women's health research in the coming decade continues to support a vigorous research agenda incorporating the latest advances in technology and cutting edge science in support of women's cardiovascular health.
Health Resources and Services Administration (HRSA), HHS.
Notice of Request for Nominations.
The Health Resources and Services Administration (HRSA) is requesting nominations to fill three (3) vacancies on the Secretary's Advisory Committee on Heritable Disorders in Newborns and Children.
Section 1111 of the Public Health Service (PHS) Act, 42 U.S.C. 300b-10, as amended in the Newborn Screening Saves Lives Act of 2008 (Act). The Committee is governed by the provisions of Public Law 92-463, as amended (5 U.S.C. App. 2), and 41 CFR Part 102-3, which sets forth standards for the formation and use of advisory committees.
The agency must receive nominations on or before May 1, 2010.
All nominations are to be submitted to Michele A. Lloyd-Puryear, M.D., PhD, Designated Federal Official and Executive Secretary, Advisory Committee on Heritable Disorders in Newborns and Children, and Chief, Genetic Services Branch, Maternal and Child Health Bureau, Health Resources and Services Administration, Room 18A-19, Parklawn Building, 5600 Fishers Lane, Rockville, Maryland 20857. E-mailed nominations can be sent to
Ms. Alaina Harris, Genetic Services Branch, Maternal and Child Health Bureau, HRSA, at
The Secretary's ACHDNC is chartered under section 1111 of the Public Health Service (PHS) Act, 42 U.S.C. 300b-10, as amended by the Newborn Screening Saves Lives Act 2008 (Act). The Committee was established in February 2003 to advise the Secretary of the U.S. Department of Health and Human Services. The Committee is governed by the provisions of Public Law 92-463, as amended (5 U.S.C. App. 2), and 41 CFR Part 102-3, which sets forth standards for the formation and use of advisory committees. The ACHDNC is directed to review and report regularly on newborn and childhood screening practices for heritable disorders and to recommend improvements in the national newborn and childhood heritable screening programs.
The Committee is established to advise and guide the Secretary regarding the most appropriate application of universal newborn screening tests, technologies, policies, guidelines and programs for effectively reducing morbidity and mortality in newborns and children having or at risk for heritable disorders. In addition, the Committee provides advice and recommendations to the Secretary concerning the grants and projects authorized under section 1109 and technical information to develop policies and priorities for this Program that will enhance the ability of the State and local health agencies to provide for newborn and child screening, counseling and health care services for
Specifically, HRSA is requesting nominations for three (3) voting members to serve on the Committee. Members shall be selected from medical, technical, public health or scientific professionals with special expertise in the field of heritable disorders or in providing screening, counseling, testing or specialty services for newborns and children at risk for heritable disorders and from members of the public having special expertise about or concern with heritable disorders.
The individuals selected for appointment to the Committee can be invited to serve for overlapping terms of up to 4 years. However, any member appointed to fill a vacancy of an unexpired term shall be appointed for the remainder of such term. Members may serve after the expiration of their term until their successors have taken office. Terms of more than 2 years are contingent upon the renewal of the Committee by appropriate action prior to its expiration. Members who are not Federal employees will receive a stipend for each day they are engaged in the performance of their duties as members of the Committee. Members shall receive per diem and travel expenses as authorized by section 5 U.S.C. 5703 for persons employed intermittently in Government service. Members who are officers or employees of the United States Government shall not receive compensation for service on the Committee. Nominees will be invited to serve beginning from October 1, 2010.
Nominations should be typewritten. The following information should be included in the package of material submitted for each individual being nominated for consideration: (1) A letter of nomination that clearly states the name and affiliation of the nominee, the basis for the nomination (
To the extent practicable, members of the Committee should have expertise in dealing with heritable disorders and genetic diseases that affect the racial and ethnic and geographical diversity of newborns served by the State newborn screening programs. The Department of Health and Human Services will ensure that the membership of the Committee reflects an equitable geographical and gender distribution, provided that the effectiveness of the Committee would not be impaired. Appointments shall be made without discrimination on the basis of age, ethnicity, gender, sexual orientation, and cultural, religious, or socioeconomic status.
Science and Technology Directorate, DHS.
Committee management; Notice of closed Federal Advisory Committee meeting.
The Homeland Security Science and Technology Advisory Committee will meet January 26-28, 2010, at the Department of Homeland Security, 1120 Vermont Ave., NW., Washington, DC. This meeting will be closed to the public.
The Homeland Security Science and Technology Advisory Committee will meet January 26, 2010, from 9 a.m. to 5 p.m., January 27, 2010, from 9 a.m. to 5 p.m. and on January 28, 2010, from 8 a.m. to 11 a.m.
The meeting will be held at the Department of Homeland Security, 1120 Vermont Ave., NW., Washington, DC. Requests to have written material distributed to each member of the committee prior to the meeting should reach the contact person at the address below by Friday, January 8, 2010. Send written material to Ms. Tiwanda Burse, Science and Technology Directorate, Department of Homeland Security, 245 Murray Lane, Bldg. 410, Washington, DC 20528. Comments must be identified by DHS-2009-0158 and may be submitted by
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Ms. Tiwanda Burse, Science and Technology Directorate, Department of Homeland Security, 245 Murray Lane, Bldg. 410, Washington, DC 20528, 202-254-6877.
Notice of this meeting is given under the Federal Advisory Committee Act, 5 U.S.C. App. (Pub. L. 92-463).
At this meeting, the Committee will receive sensitive and classified (Top Secret-level) briefings and presentations regarding relationships between Science & Technology and selected Defense related topics concerning matters sensitive to homeland security.
Transportation Security Administration, DHS.
30-day notice.
This notice announces that the Transportation Security Administration (TSA) has forwarded the Information Collection Request (ICR), OMB control number 1652-0032, abstracted below to the Office of Management and Budget (OMB) for review and approval of an extension of the currently approved collection under the Paperwork Reduction Act. The ICR describes the nature of the information collection and its expected burden. TSA published a
Send your comments by February 16, 2010. A comment to OMB is most effective if OMB receives it within 30 days of publication.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to Desk Officer, Department of Homeland Security/TSA, and sent via electronic mail to
Joanna Johnson, TSA Paperwork Reduction Act (PRA) Officer, Office of Information Technology (OIT), TSA-40, Transportation Security Administration, 601 South 12th Street, Arlington, VA 20598-6040; telephone (571) 227-3651; e-mail
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
TSA has a variety of further evaluation forms, each of which pertain to particular body systems and medical conditions, including cardiac, orthopedic, endocrine, vitals, and others. The type of further evaluation form(s) completed by a candidate's health care provider depend(s) on the condition(s) revealed during a candidate's initial medical evaluation and disclosed on the initial medical questionnaire. For example, a candidate who discloses a previous back injury may be required to have his/her health care provider complete a further evaluation form to enable the agency to better evaluate whether the candidate can perform the TSO job safely and efficiently without excessive risk of accident or injury to himself/herself or others. A TSA contractor facilitates receipt and processing of all forms.
Coast Guard, DHS.
Notice of policy and request for comments.
The Coast Guard has developed an interim policy for the access and sharing of information collected by the Coast Guard Nationwide Automatic Identification System (NAIS). The Coast Guard is also seeking comments on the applicability and levels of sharing of information collected by the NAIS, the definition of historical NAIS information, and any commercial or security sensitivities with respect to sharing NAIS information in order to assist us in the development of the final policy on NAIS information sharing. This policy would serve as guidance for Coast Guard program managers and field units regarding the sharing of information collected by the NAIS with foreign governments, Federal, State, local, and Indian tribal governments, and non-government entities.
Comments and related material must either be submitted to our online docket via
This notice and the interim policy are available in the docket and can be viewed by going to
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To avoid duplication, please use only one of these four methods.
If you have questions on this notice, call or e-mail Irene Hoffman Moffatt, Maritime Domain Awareness and Information Sharing Staff (CG-51M), U.S. Coast Guard; telephone 202-372-2642, e-mail
We encourage you to submit comments and related material on the sharing of information collected by the NAIS. All comments received will be posted, without change, to
To submit your comment online, go to
The Coast Guard has developed a policy that will serve as guidance for Coast Guard program managers and field units regarding the sharing of information collected by the NAIS with foreign governments, Federal, State, local, and Indian tribal governments, and non-government entities. Sharing information collected by the NAIS would improve navigation safety, enhance the ability to identify and track vessels, heighten our over-all Maritime Domain Awareness (the effective understanding of anything associated with the global maritime environment that could affect the security, safety, economy, or environment of the U.S.), address threats to maritime transportation safety and security, facilitate commerce, and enhance environmental protection efforts.
The Automatic Identification System (AIS) was developed to enhance navigation safety through collision avoidance, waterways management, and surveillance. It is a maritime digital broadcast technology that continually transmits and receives voiceless exchange of vessel data. The AIS technology and communication protocol have been adopted by the International Maritime Organization as a global standard for ship-to-ship, ship-to-shore, and shore-to-ship communication of navigation information. In accordance with section 80.393 of the Rules and Regulations of the Federal Communications Commission (47 CFR 80.393), “Automatic Identification Systems (AIS) are a maritime broadcast service.” As a broadcast system (where communications are intended to be
The following three levels pertain to information collected by the Coast Guard NAIS.
The First level (Level A) is unfiltered (real-time) information collected by the NAIS that is less than 12 hours from transmission. Level A information may be shared with U.S. or foreign governments for legitimate internal government use (i.e., law enforcement, maritime safety, defense, and security purposes). The final policy would clarify that this information should be handled in accordance with Department of Homeland Security policies concerning sensitive but unclassified information, including by marking this information “For Official Use Only” (FOUO), or any successor controlled unclassified information marking and handling requirements subsequently implemented by the Department. Level A information would be handled as FOUO, or otherwise in accordance with another controlled unclassified information designation approved by the Department, due to the potential commercial sensitivities of the information collected by the NAIS and the unfiltered, embedded addressed and encrypted information, the release of which may pose a security risk.
The Second level (Level B) is filtered (real-time) information collected by the NAIS that is less than 12 hours from transmission. Level B information may be shared with foreign governments or U.S. Federal, State, local, and Indian tribal governments, and with non-government entities that are contractually supporting a Federal government agency's operations or research and development efforts, Coast Guard validated port partners, or non-governmental organizations with which the U.S. has an established or formalized relationship (e.g., port authorities, pilot associations, local law enforcement agencies, etc.). Level B may filter out encrypted and addressed information as appropriate and will be filtered as the NAIS system filtering capabilities become available. As with Level A information, the final policy would clarify that this information should also be handled as FOUO or other appropriate designation due to the potential (but unverified) commercial sensitivities of the information collected by the NAIS and, if applicable, the embedded addressed and encrypted information, the release of which may pose a security risk.
The Third level (Level C) is information collected by the NAIS that is more than 12 hours from transmission. This information should be considered historical and no longer needing to be handled as FOUO. Requests for filtered or unfiltered historical information would be processed in accordance with the Freedom of Information Act, 5 U.S.C. 552.
In an effort to continue to enhance navigation safety and security, and to protect commercial and proprietary interests, this information may not be used for purposes other than those intended for the disclosure as approved. Foreign governments, Federal, State, local and Indian tribal governments, and non-government entities shall not retransmit or redistribute the information stream in any form other than those intended for the disclosure as approved, shall not charge a fee for its usage, and will be required to execute documentation imposing restrictions on the use of information collected by the NAIS. Any provision of information collected by the NAIS to foreign governments will be coordinated with and through the Department of State, as needed.
Implementation of the final policy would be subject to NAIS system capability, especially with respect to evolving capabilities to filter NAIS information.
We request your general comments on the applicability and levels of the sharing of information collected by the NAIS, the definition of historical NAIS information, and any commercial or security sensitivities with respect to sharing of information collected by the NAIS.
We also seek comments on any or all of following specific questions on the development of the NAIS final policy:
1. How might providing real-time, near real-time, or historical NAIS information to the public impact maritime commerce?
2. What would be the impact of providing this information, if any, on the following?
a. Safety of ships and passengers or crew,
b. Security of ships and their cargo,
c. Economic advantage or disadvantage to commercial stakeholders,
d. Environmental impact on extractable resources or coastal activities.
3. Is information collected by the NAIS considered sensitive?
a. Is real-time or near real-time information collected by the NAIS viewed differently than historical NAIS information, and if so, how?
b. Does the sharing of information collected by the NAIS generate concern about unfair commercial advantage? If so, for which segments of the industry is this a concern?
c. Is there a timeframe within which real-time or historical information collected by the NAIS is considered sensitive or is no longer considered sensitive?
d. Given that ships last for decades and that their capabilities and capacities are relatively stable, is there a concern that historical NAIS information might be analyzed to derive a competitive advantage?
4. What controls on sharing real-time, near real-time, or historical information collected by the NAIS with the public are suitable?
a. Who should receive each type of NAIS information?
b. What are appropriate uses of information collected by the NAIS?
c. Do message types matter?
d. Should addressed messages be handled differently from broadcast messages? Do addressed messages contain information significant to understanding maritime activity? Should addressed messages be shared with the public?
This notice is issued under authority of 5 U.S.C. 552 and 46 U.S.C. 70114.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for possible use to assist the homeless.
Kathy Ezzell, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 7262, Washington, DC 20410; telephone (202) 708-1234; TTY number for the hearing- and speech-impaired (202) 708-2565, (these telephone numbers are not toll-free), or call the toll-free Title V information line at 800-927-7588.
In accordance with the December 12, 1988 court order in
Fish and Wildlife Service, Interior.
Notice; request for comments.
We (Fish and Wildlife Service) have sent an Information Collection Request (ICR) to OMB for review and approval. The ICR, which is summarized below, describes the nature of the collection and the estimated burden and cost. This ICR is scheduled to expire on January 31, 2010. We may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. However, under OMB regulations, we may continue to conduct or sponsor this information collection while it is pending at OMB.
You must send comments on or before February 16, 2010.
Send your comments and suggestions on this information collection to the Desk Officer for the Department of the Interior at OMB-OIRA at (202) 395-5806 (fax) or OIRA_DOCKET@OMB.eop.gov (e-mail). Please provide a copy of your comments to Hope Grey, Information Collection Clearance Officer, Fish and Wildlife Service, MS 222-ARLSQ, 4401 North Fairfax Drive, Arlington, VA 22203 (mail) or hope_grey@fws.gov (e-mail).
To request additional information about this ICR, contact Hope Grey by mail or e-mail (see ADDRESSES) or by telephone at (703) 358-2482.
The Migratory Bird Treaty Act Protocol Amendment (1995) (Amendment) provides for the customary and traditional use of migratory birds and their eggs for subsistence use by indigenous inhabitants of Alaska. The Amendment states that its intent is not to cause significant increases in the take of species of migratory birds relative to their continental population sizes. A submittal letter from the Department of State to the White House (May 20, 1996) accompanied the Amendment and specified the need for harvest monitoring. The submittal letter stated that the Service, the Alaska Department of Fish and Game (ADFG), and Alaska Native organizations would collect harvest information cooperatively within the subsistence eligible areas. Harvest survey data help to ensure that customary and traditional subsistence uses of migratory birds and their eggs by indigenous inhabitants of Alaska do not significantly increase the take of species of migratory birds relative to their continental population sizes.
Between 1989 and 2004, we monitored subsistence harvest of migratory birds using annual household surveys in the Yukon-Kuskokwim Delta, which is the region of highest subsistence bird harvest in the State of Alaska. In 2004, we began monitoring subsistence harvest of migratory birds in subsistence eligible areas Statewide. The Statewide harvest assessment program helps to track trends and changes in levels of harvest. The harvest assessment program relies on collaboration among the Service, the ADFG, and a number of Alaska Native organizations.
We gather information on the annual subsistence harvest of 60 bird species/species categories (ducks, geese, swans, cranes, upland game birds, seabirds, shorebirds, and grebes and loons) in the subsistence eligible areas of Alaska. The survey covers 10 regions of Alaska, which are further divided in 29 subregions. We survey the regions and villages in a rotation schedule to accommodate budget constraints and to minimize respondent burden. The survey covers spring, summer, and fall harvest in most regions.
In collaboration with Alaska Native organizations, we hire local resident surveyors to collect the harvest information. The surveyors list all households in the villages to be surveyed and provide survey information and harvest report forms to randomly selected households that have agreed to participate in the survey. To ensure anonymity of harvest information, we identify households by a numeric code. The surveyor visits households three times during the survey year. At the first household visit, the surveyor explains the survey purposes and invites household participation. The surveyor returns at the end of the season of most harvest and at the end of the two other seasons combined to help the household complete the harvest report form.
We have revised the survey methods to streamline procedures and reduce respondent burden. We plan to use two forms for household participation:
• FWS Form 3-2380 (Tracking Sheet and Household Consent). The surveyor visits each household selected to participate in the survey to provide information on the objectives and to obtain household consent to participate. The surveyor uses this form to record consent and track subsequent visits for completion of harvest reports
• FWS Forms 3-2381-1, 3-2381-2, 3-2381-3, and 3-2381-4 (Harvest Report). The Harvest Report has drawings of bird species most commonly available for harvest in the different regions of Alaska with fields for writing down the numbers of birds and eggs taken. There are four versions of this form: Interior Alaska, North Slope, Southern Coastal Alaska, and Western Alaska. This form has a page for each season surveyed, and, on each page, there are fields for the household code, community name, harvest year, date of completion, and comments.
We again invite comments concerning this information collection on:
• Whether or not the collection of information is necessary, including whether or not the information will have practical utility;
• The accuracy of our estimate of the burden for this collection of information;
• Ways to enhance the quality, utility, and clarity of the information to be collected; and
• Ways to minimize the burden of the collection of information on respondents.
Comments that you submit in response to this notice are a matter of public record. Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask OMB in your comment to withhold your personal identifying information from public review, we cannot guarantee that it will be done.
Bureau of Land Management, Interior.
Notice of filing of plats of survey.
Notice of filing of plats of survey; Alaska.
The plat(s) of survey described below is scheduled to be officially filed in the Alaska State Office, Bureau of Land Management, Anchorage, Alaska, thirty (30) days from the date of publication in the
Bureau of Land Management, Alaska State Office; 222 W. 7th Ave., Stop 13; Anchorage, AK 99513-7599.
Michael H. Schoder, Chief Cadastral Surveyor for Alaska, Division of Cadastral Survey, telephone: 907-271-5481; fax: 907-271-4549; e-mail:
This survey was executed at the request of the National Park Service, Alaska Region, and represents reacquired Federal Lands as part of a land exchange authorized by Public Law 105-317.
The lands surveyed are:
The plat(s) and field notes of U.S. Survey No. 13830, Alaska, a subdivision of a portion 1C and 1D, U.S. Survey No. 1249, the retracement of a portion of U.S. Survey No. 3414, the retracement and dependent resurvey of portions of U.S. Survey No. 13151 and an informational traverse of the apparent centerline of portions of the Chilkoot Trail, situated on the Taiya River approximately 4 miles northwesterly of Skagway, Alaska, within Tps. 25, 26 and 27 S., Rs. 59 and 60 E., Copper River Meridian.
We will place copies of the survey plat and field notes we describe in open files. They will be available to the public as a matter of information. Copies may be obtained from this office for a minimum recovery fee.
If BLM receives a protest against the survey, as shown on the plat, prior to the date of official filing, the filing will be stayed pending consideration of the protest. We will not officially file the plat until the day after we have accepted or dismissed all protests and they have become final, including decisions on appeals.
43 U.S.C. chap. 3 sec. 53.
Fish and Wildlife Service, Interior.
Notice of issuance of permits.
We, the U.S. Fish and Wildlife Service (Service), have issued the following permits to conduct certain activities with endangered species and/or marine mammals.
Documents and other information submitted with these applications are available for review, subject to the requirements of the
Division of Management Authority, telephone 703-358-2104.
Notice is hereby given that on the dates below, as authorized by the provisions of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of receipt of applications for permit.
We, the U.S. Fish and Wildlife Service, invite the public to comment on the following applications for permits to conduct certain activities with endangered species. The Endangered Species Act requires that we invite public comment on these permit applications.
Written data, comments or requests must be received by February 16, 2010.
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents within 30 days of the date of publication of this notice to: U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 212, Arlington, Virginia 22203; fax 703-358-2281.
Division of Management Authority, telephone 703-358-2104.
The public is invited to comment on the following applications for a permit to conduct certain activities with endangered species. This notice is provided pursuant to Section 10(c) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The applicant requests a permit to acquire from Coriell Institute, Camden, NJ, in interstate commerce DNA and cell line samples from various threatened and endangered Primate species for the purpose of scientific research. This notification covers activities to be conducted by the applicant over a 5-year period.
The applicant requests a permit to export three male and four female captive-born L'hoest's guenon (
The applicant requests a permit to import two captive-born male Siamang (
The applicant requests the re-issuance of permits to re-export and re-import two female Asian elephants (
Employee Benefits Security Administration, Department of Labor.
Notice of the Availability of the Model Health Care Continuation Coverage Notices Required by ARRA, as amended.
On December 19, 2009, President Obama signed the Department of Defense Appropriations Act, 2010 (Pub. L. 111-118), which extended the availability of the health care continuation coverage premium reduction provided for COBRA and other health care continuation coverage as required by the American Recovery and Reinvestment Act (ARRA) of 2009 (Pub. L. 111-5). ARRA, as amended, retained the requirement that the Secretary of Labor (the Secretary), in consultation with the Secretaries of the Treasury and Health and Human Services, develop model notices. These models are for use by group health plans and other entities that, pursuant to ARRA, as amended, must provide notices of the availability of premium reductions and additional election periods for health care continuation coverage. This document announces the availability of the model health care continuation coverage notices required by ARRA, as amended.
Kevin Horahan or Mark Connor, Office of Health Plan Standards and Compliance Assistance, Employee Benefits Security Administration, (202) 693-8335. This is not a toll-free number.
The Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) created the health care continuation coverage provisions of Title I of the Employee Retirement Income Security Act of 1974 (ERISA), the Internal Revenue Code (Code), and the Public Health Service Act (PHS Act). These provisions are commonly referred to as the “COBRA continuation provisions,” and the continuation coverage that they mandate is commonly referred to as “COBRA continuation coverage.” Group health plans subject to the Federal COBRA continuation provisions are subject to ARRA's premium reduction provisions and notice requirements. The Federal COBRA continuation coverage provisions do not apply to group health plans sponsored by employers with fewer than 20 employees. Many States require health insurance issuers that provide group health insurance coverage to plans not subject to the COBRA continuation provisions to provide comparable continuation coverage. Such continuation coverage provided pursuant to State law is also subject to ARRA's premium reduction provisions and notice requirements.
ARRA mandates the provision of certain notices. Each of these notices must include: a prominent description of the availability of the premium reduction, including any conditions on the entitlement; a model form to request treatment as an “Assistance Eligible Individual”;
The Department of Labor (the Department) created these model notices to cover an array of situations in order to deal with the complexity of the various scenarios facing dislocated workers and their families. In an effort to ensure that the notices include all of the information required under ARRA, as amended, while minimizing the burden imposed on group health plans and issuers, the Department has created several packages. As with those developed by the Department originally under ARRA, each of the new packages is designed for a particular group of qualified beneficiaries, and contains all of the information needed to satisfy the content requirements for ARRA's amended notice provisions. The packages include the following disclosures:
• A summary of ARRA's premium reduction provisions.
• A form to request the premium reduction.
• A form for plans (or issuers) that permit qualified beneficiaries to switch coverage options to use to satisfy ARRA's requirement to give notice of this option.
• A form for an individual to use to satisfy ARRA's requirement to notify the plan (or issuer) that the individual is eligible for other group health plan coverage or Medicare.
• COBRA election forms and information, as appropriate.
The amended General Notice is required to be sent by plans that are subject to the COBRA continuation provisions under Federal law.
The Department has updated the earlier version of this model notice so that it includes all of the information related to the premium reduction and
The amended Alternative Notice is required to be sent by issuers that offer group health insurance coverage that is subject to comparable continuation coverage requirements imposed by State law. The Alternative Notice must include the information described above and be provided to ALL qualified beneficiaries, not just covered employees, who have experienced a qualifying event through February 28, 2010.
The Premium Assistance Extension Notice is required to be sent by plans and other entities that are subject to continuation of health coverage provisions under either Federal or State law. This notice serves several purposes. It serves as a notice of the extension of the premium assistance from nine to 15 months for individuals who were receiving premium assistance as of October 31, 2009. It also provides this information to individuals who became Assistance Eligible Individuals, or who experienced a qualifying event that was the termination of a covered employee's employment, between October 31, 2009 and December 19, 2009, but who were provided a notice that did not include the information required by ARRA, as amended by the Department of Defense Appropriations Act, 2010.
For additional information about ARRA's COBRA premium reduction provisions as amended by the Department of Defense Appropriations Act, 2010, contact the Department's Employee Benefits Security Administration's Benefits Advisors at 1-866-444-3272. In addition, the Employee Benefits Security Administration has developed a dedicated COBRA Web page
According to the Paperwork Reduction Act of 1995 (Pub. L. 104-13) (PRA), no persons are required to respond to a collection of information unless such collection displays a valid Office of Management and Budget (OMB) control number. The Department notes that a Federal agency cannot conduct or sponsor a collection of information unless it is approved by OMB under the PRA, and displays a currently valid OMB control number; further, the public is not required to respond to a collection of information unless it displays a currently valid OMB control number.
This Notice revises the collections of information contained in the ICR titled Notice Requirements of the Health Care Continuation Coverage Provisions approved under OMB Control Number 1210-0123. OMB has approved this revision to the ICR pursuant to the emergency review procedures under 5 CFR 1320.13. The public reporting burden for this collection of information is estimated to average approximately 3 minutes per respondent, including time for gathering and maintaining the data needed to complete the required disclosure. There is also an additional $0.39 average cost per response for mailing costs. Interested parties are encouraged to send comments regarding the burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to the U.S. Department of Labor, Office of the Chief Information Officer, Attention: Departmental Clearance Officer, 200 Constitution Avenue, NW., Room N-1301, Washington, DC 20210 or e-mail
The Department has decided to make the model notices available in modifiable, electronic form on its Web site:
Authority: 29 U.S.C. 1027, 1059, 1135, 1161-1169, 1191c; Pub. L. 111-5, 123 Stat. 115, sec. 3001(a)(5), 3001(a)(2)(C), 3001(a)(7); Pub. L. 111-118, 123 Stat. 3409; and Secretary of Labor's Order No. 6-2009, 74 FR 21524 (May 7, 2009).
Virginia Electric and Power Company, doing business as Dominion Virginia Power (Dominion), acting on its own behalf and as agent for Old Dominion Electric Cooperative (ODEC), submitted to the U.S. Nuclear Regulatory Commission (NRC) a combined license (COL) application, under Title 10 of the Code of Federal Regulations (10 CFR), Subpart C of Part 52, for an Economic Simplified Boiling-Water Reactor (ESBWR), to be designated as North Anna Unit 3, at the North Anna Power Station site located in Louisa County, VA. The NRC docketed the application on January 28, 2008, and is currently performing a detailed review of the application. In addition, the NRC is currently performing a detailed review of the GE Hitachi Nuclear Energy application for design certification of the Economic Simplified Boiling Water Reactor (ESBWR).
10 CFR 50.71(e)(3)(iii) requires that applicants for a combined license under 10 CFR Part 52 shall, during the period from docketing of a COL application until the Commission makes a finding under 10 CFR 52.103(g) pertaining to facility operation, submit an annual update to the application's final safety analysis report (FSAR), which is a part of the application.
Dominion has requested a one-time exemption from the requirements of 10 CFR 50.71(e)(3)(iii) to allow submittal of the FSAR update, scheduled for December 2009, by June 30, 2010, and submittal of the subsequent FSAR update in 2011.
In summary, the requested exemption is a one-time schedule change from the requirements of 10 CFR 50.71(e)(3)(iii). The exemption would allow the applicant to submit the FSAR update scheduled for 2009 by June 30, 2010, and to submit the subsequent FSAR update in 2011. The FSAR update schedule could not be changed absent the exemption. Dominion requested the exemption by letter dated November 17, 2009, (Agencywide Documents Access and Management System (ADAMS) Accession No. ML093240090).
Pursuant to 10 CFR 50.12, the Commission may, upon application by any interested person or upon its own initiative, grant exemptions from the requirements of 10 CFR Part 50, including Section 50.71(e)(3)(iii) when (1) the exemptions are authorized by law, will not present an undue risk to public health or safety, and are consistent with the common defense and security; and (2) special circumstances are present. As relevant to the requested exemption, special circumstances exist if (1) “Compliance would result in undue hardship or other costs that are significantly in excess of those contemplated when the regulation was adopted, or that are significantly in excess of those incurred by others similarly situated” (10 CFR 50.12(a)(2)(iii)) or (2) “The exemption would provide only temporary relief from the applicable regulation and the licensee or applicant has made good faith efforts to comply with the regulation” (10 CFR 50.12(a)(2)(v)).
The regulations at 10 CFR 50.71(e)(3)(iii), requiring annual FSAR update, did not contemplate a situation in which a design control document (DCD) referenced in a COL application FSAR was revised shortly before the annual FSAR update was due. The ESBWR, referenced in the North Anna Unit 3 COL application, is currently undergoing NRC review, and Revision 6 of the FSAR, which is a comprehensive revision, was submitted to the NRC on August 31, 2009. Consistent with the regulations at 10 CFR 50.71(e), the COL FSAR update shall contain information to reflect all changes since the previous FSAR update. For North Anna, the FSAR update is to include the effects of all changes contained in DCD Revision 6. The overall quantity and nature of changes in ESBWR FSAR Revision 6 was extensive. Some changes in Revision 6 call for detailed analyses and extensive engineering work, including that of vendors, to be performed prior to the COL FSAR update. Completing all prerequisite activities and preparing the North Anna FSAR update by December 2009, would present a considerable and undue burden.
The requested one-time exemption to incorporate ESBWR FSAR Revision 6 into the North Anna FSAR update would provide only temporary relief from the regulations at 10 CFR 50.71(e)(3)(iii). The applicant has made good faith efforts to comply with 10 CFR 50.71(e)(3)(iii) by incorporating ESBWR FSAR Revision 5 into the prior North Anna FSAR update and by providing, on an on-going basis, marked-up COL FSAR pages to incorporate changes associated with responses to NRC requests for additional information.
The exemption is a one-time schedule exemption from the requirements of 10 CFR 50.71(e)(3)(iii). The exemption would allow the applicant to submit the North Anna FSAR annual update scheduled for 2009 by June 30, 2010, and to submit the subsequent FSAR annual update in 2011. As stated above, 10 CFR 50.12 allows the NRC to grant exemptions from the requirements of 10 CFR 50.71(e)(3)(iii). The NRC staff has determined that granting of the requested exemption will not result in a violation of the Atomic Energy Act of 1954, as amended, or the Commission's regulations. Therefore, the exemption is authorized by law.
The underlying purpose of 10 CFR 50.71(e)(3)(iii) is to provide for timely, comprehensive update of the FSAR associated with a COL application in order to support an effective and efficient review by NRC staff and issuance of the staff's safety evaluation report. The requested exemption is solely administrative in nature in that it pertains to the schedule for submittal to the NRC of revisions to an application under 10 CFR Part 52 for which a license has not been granted.
Based on the above, no new accident precursors are created by the exemption; thus, the probability of postulated accidents is not increased. Also, based on the above, the consequences of postulated accidents are not increased. Therefore, there is no undue risk to public health and safety.
The requested exemption would allow the applicant to submit the FSAR annual update scheduled for 2009 by June 30, 2010, and to submit the subsequent FSAR annual update in 2011. This schedule change has no relation to security issues. Therefore, the common defense and security is not impacted by this exemption.
Special circumstances, in accordance with 10 CFR 50.12(a)(2), are present whenever (1) “Compliance would result in undue hardship or other costs that are significantly in excess of those contemplated when the regulation was adopted, or that are significantly in excess of those incurred by others similarly situated” (10 CFR
The underlying purpose of 10 CFR 50.71(e)(3)(iii) is to provide for timely, comprehensive update of the FSAR associated with a COL application in order to support an effective and efficient review by NRC staff and issuance of the staff's safety evaluation report. As discussed above, the requested exemption is solely administrative in nature in that it pertains to a one-time schedule change for submittal of revisions to an application under 10 CFR Part 52 for which a license has not been granted. The requested exemption does not affect the underlying purpose of 10 CFR 50.71(e)(3)(iii).
Therefore, since the underlying purpose of 10 CFR 50.71(e)(3)(iii) is achieved, the special circumstances required by 10 CFR 50.12(a)(2) for the granting of an exemption from 10 CFR 50.71(e)(3)(iii) exist.
Accordingly, the Commission has determined that, pursuant to 10 CFR 50.12, the exemption is authorized by law, will not present an undue risk to the public health and safety, and is consistent with the common defense and security. Also, special circumstances are present. Therefore, the Commission hereby grants Dominion an exemption from the requirements of 10 CFR 50.71(e)(3)(iii) pertaining to the North Anna Unit 3 COL application to allow submital of the FSAR update scheduled for 2009 by June 30, 2010, and submittal of the subsequent FSAR update in 2011.
Pursuant to 10 CFR 51.32, the Commission has determined that the granting of this exemption will not have a significant effect on the quality of the human environment (74 FR 65161).
This exemption is effective upon issuance.
For the Nuclear Regulatory Commission.
The Nuclear Regulatory Commission (NRC) has prepared a final Environmental Assessment (EA) as part of its evaluation of a request by Northern States Power Company (NSPM) for a license amendment to increase the maximum thermal power at the Monticello Nuclear Generating Plant (MNGP) from 1,775 megawatts thermal (MWt) to 2,004 MWt. This represents a power increase of approximately 13 percent over the current licensed thermal power. As stated in the NRC staff's position paper dated February 8, 1996, on the Boiling-Water Reactor Extended Power Uprate (EPU) Program, the NRC staff will prepare an environmental impact statement if it believes a power uprate would have a significant impact on the human environment. The NRC published a draft EA and finding of no significant impact on the proposed action for public comment in the
The MNGP site is located in Monticello, Minnesota, along the southern bank of the Mississippi River at River Mile (RM) 900, approximately 30 miles (48 kilometers) northwest of Minneapolis/St. Paul, and east of Interstate Highway 94. The 2,150-acre (870-hectare) site consists of 2 miles (3 kilometers) of frontage on both banks of the Mississippi River, within portions of Wright and Sherburne Counties. The plant and its supporting facilities occupy approximately 50 acres (20 hectares) in Wright County.
MNGP is a single-unit boiling water reactor that has been designed to allow operation using four water circulating modes to cool the system, and draws water from and discharges water to the Mississippi River. These four water circulating modes include an open-cycle (once-through) system, a closed cycle system using two mechanical draft cooling towers, a helper cycle system, and a partial recirculation of the cooling water. The helper cycle cools water using both the open cycle to withdraw water from and discharge the water back to the Mississippi River, and the cooling towers to cool water prior to discharge to the river. The helper cycle is used when the discharge canal temperature approaches permit limits and upstream river temperatures are consistently at or above 68 °F. MNGP operates in open cycle or helper cycle approximately 98 percent of the time. In the partial recirculation mode, 75 percent of the Mississippi River flow is withdrawn and the cooling towers are operating. A portion of the cooled water is recirculated to the intake and the remainder is discharged to the river. The partial recirculation mode is used when river flow is less than 860 cubic-feet-per-second (cfs) but greater than 240 cfs, and the river temperature is elevated.
By application dated November 5, 2008, as supplemented on January 29, 2009 (on environmental issues only) the licensee requested an amendment for an EPU for MNGP to increase the licensed thermal power level from 1,775 MWt to 2,004 MWt, which is an increase of 13 percent over the current licensed thermal power and a 20 percent increase over the original licensed thermal power. The Atomic Energy Commission (predecessor of the NRC) issued the Final Environmental Statement (FES) in November 1972, for the original license for MNGP. The NRC previously approved a 6.3 percent stretch power uprate in September 1998, increasing the power output from 1,670 MWt to 1,775 MWt. The NRC EA for that action resulted in a finding of no significant impact and was published in the
The licensee plans to implement the proposed EPU in two phases to coincide with two refueling outages. The first
The need for the additional power generation is based upon NSPM's 15-year Resource Plan that includes a forecast of an average annual increase of peak electrical demand of 1.2 percent through NSPM's 2008-2022 planning period. This forecast for increased energy includes NSPM's resource obligations for summer peak net demand, minimum reserve requirements, its committed resources, and other contracted obligations. This increase in power demand would partially be met by the increased amount of power output proposed for MNGP along with other energy sources.
At the time of issuance of the operating license for MNGP in 1972, the NRC staff noted that any activity authorized by the license would be encompassed by the overall action evaluated in the FES for the operation of MNGP. In addition, the NRC published the SEIS-26 in 2006, which evaluated the environmental impacts of operating MNGP for an additional 20 years, and determined that the environmental impacts of license renewal were small. The sections below summarize the non-radiological and radiological impacts in the environment that may result from the proposed action of the proposed EPU.
Potential land use and aesthetic impacts from the proposed EPU include impacts from plant modifications at MNGP. While some plant components would be modified, most plant changes related to the proposed EPU would occur within existing structures, buildings, and fenced equipment yards housing major components within the developed part of the site. No new construction would occur outside of existing facilities and no expansion of buildings, roads, parking lots, equipment storage areas, or transmission facilities would be required to support the proposed EPU, although some transmission and distribution equipment may be replaced or modified.
Existing parking lots, road access, lay-down areas, offices, workshops, warehouses, and restrooms would be used during plant modifications. Therefore, land use conditions would not change at MNGP. Also, there would be no land use changes along transmission lines (no new lines would be required for the proposed EPU), transmission corridors, switch yards, or substations.
Since land use conditions would not change at MNGP, and because any land disturbance would occur within previously disturbed areas, there would be little or no impact to aesthetic resources in the vicinity of MNGP. Therefore, the NRC staff concludes that there would be no significant impact from EPU-related plant modifications on land use and aesthetic resources in the vicinity of MNGP.
During implementation of the EPU at the MNGP site, some minor and short duration air quality impacts would likely occur. Emissions from the vehicles of workers would be the main sources of these air quality impacts. Wright County, where MNGP is located, is designated as a maintenance area for carbon monoxide. The licensee indicated that an additional 500 temporary employees would be needed for the duration of the project. The majority of the workforce would reside within the county where MNGP is located. The screening analysis performed by the licensee for the proposed Monticello EPU projects that annual average vehicular traffic would increase by approximately 2 percent. The majority of the EPU-associated activities would be performed inside existing buildings and will not cause additional atmospheric emissions. Therefore, the NRC staff concludes that there would be no significant impact on air quality during and following implementation of the proposed EPU.
MNGP uses groundwater for domestic-type water uses and limited industrial use. Groundwater is obtained from six on-site wells, two of which are permitted and regulated by the Minnesota Department of Natural Resources (MDNR) through the State's water appropriation permit program. These two wells produce 100 gallons per minute each and provide domestic water to restrooms, showers, and laundries and industrial use water to the MNGP reverse osmosis system, and to pump seals at the plant intake structure. Four additional small capacity wells that do not require an MDNR permit are used to supply domestic use water to buildings not connected to the permitted system. The proposed EPU will not significantly increase the use of domestic groundwater, and the volume of additional groundwater needed for industrial use is within the limits of the existing appropriations permit. Therefore, the NRC staff concludes that there would be no significant impact on groundwater resources following implementation of the proposed EPU.
MNGP uses surface water for plant condenser cooling, auxiliary water systems, service water cooling, intake screen wash, and fire protection. Under MDNR water appropriation permit number PA 66-1172-S, MNGP may withdraw up to 645 cubic feet per second (cfs) from the Mississippi River. Surface water consumption under EPU conditions is expected to be maintained within permitted limits. The upper limit of the permit is 8,700 ac-ft per year, which would not be reached because the cooling towers are typically operated in combination with the once-through cooling system. As part of its environmental review for license renewal, the NRC staff stated in SEIS-26 that “the consumptive loss due to evaporation from the cooling towers represent 4 percent of the river flow, which is not considered significant.” The increased volume of circulation water will continue to have an insignificant effect on the total consumptive use of surface water at MNGP. The issue of discharge temperatures is regulated by the National Pollutant Discharge Elimination System (NPDES) permit discussed in the following section. Therefore, the NRC staff concludes that there would be no significant impact on surface water resources following implementation of the proposed EPU.
The potential impacts to aquatic biota from the proposed action include impingement, entrainment, and thermal discharge effects.
Since MNGP operates most of the time in open-cycle mode, an increase in river water appropriation for the EPU from the current consumptive rate of 509 cfs to 645 cfs may increase impacts from entrainment and impingement of fish and shellfish in their early life stages. However, in a Section 316(a) Clean Water Act (CWA) Demonstration project in 1975, for MNGP that included an evaluation of plant impacts on aquatic organisms, the evidence
According to the licensee, at the proposed EPU conditions, the temperature of the water entering the discharge canal is expected to increase by a maximum of 4.5 °F over the current discharge canal temperature, which ranges from 66 °F to 95 °F depending upon the season. This can lead to changes to the length, width, and duration of the thermal plume across the Mississippi River. However, the licensee states in the application that when canal discharge temperatures have approached the limits of the NPDES permit, MNGP will reduce power in order to comply with NPDES thermal discharge requirements. The NRC staff previously noted in its SEIS-26 and review of MNGP's license renewal application that, despite several periods of non-compliance with the NPDES permit, there have been no indications of adverse impacts to the aquatic biota within the vicinity of the discharge plume. Therefore, the NRC staff concludes that there would be no significant adverse impacts to aquatic biota from thermal discharges for the proposed action.
The licensee stated in the application that an increase of up to 4.5 °F for the effluent at the discharge canal over the current temperature would not result in a significant increase in the production of harmful thermophilic organisms in the discharge canal. The maximum temperature at the discharge canal would remain within the limits of the NPDES permit, and this temperature is also well below the temperature for maximum growth rate of thermophilic organisms. The NRC staff determined, in SEIS-26, that thermophilic organisms are not likely to occur as a result of discharges by MNGP into the Mississippi River. No further mitigation was deemed necessary by the NRC staff in SEIS-26. Based upon the information provided in the application for EPU and SEIS-26, the NPDES permit requirements for water temperature, and the Section 316(b) requirements of the CWA, the NRC staff concludes that the impact of thermophilic microbiological organisms from the proposed EPU would not be significant.
According to the application and the previous discussion regarding land use, the proposed action will not affect any lands located outside of the inner security fence at MNGP. Therefore, the NRC staff concludes that there would be no significant impacts on terrestrial biota associated with the proposed action.
Few Federal- or State-listed aquatic species are known to exist in the four counties (Wright, Sherburne, Hennepin, and Anoka counties) in which MNGP and the related transmission lines are located, and no Federal- or State-listed aquatic species have been identified near MNGP. Similarly, no Federal-listed terrestrial species occur within the subject four counties. There are six State-listed species that occur or potentially occur in the vicinity of MNGP. However, because no changes are proposed to terrestrial wildlife habitat on the MNGP site or its vicinity from the proposed EPU, the NRC staff concludes that there would be no significant impacts to any threatened or endangered species for the proposed action.
Historic and archaeological resources have been identified in the vicinity of MNGP, but not at MNGP. The licensee has no plans to construct new facilities or modify existing access roads, parking areas, or laydown areas for EPU operation. The licensee stated that onsite transmission and distribution equipment could be replaced or modified to support EPU activities, however, these activities would be limited to previously disturbed areas. Therefore, the NRC staff concludes that there would be no significant impact from the proposed EPU on historic and archaeological resources at MNGP. However, should ground-disturbing activities occur on undisturbed portions of the plant site or in transmission line rights-of-way, an archaeological investigation would be conducted by a qualified archaeologist in consultation with the Minnesota State Historic Preservation Office.
Potential socioeconomic impacts from the proposed EPU include temporary increases in the size of the workforce at MNGP and associated increased demand for public services and housing in the region. The proposed EPU could also increase tax payments due to increased power generation.
Currently, there are approximately 327 full-time workers employed at MNGP, residing primarily in Wright County and Sherburne County, Minnesota. During refueling outages (approximately every 24 months) the number of workers at MNGP increases by as many as 600 workers for 30 to 40 days.
The proposed EPU is expected to temporarily increase the size of the workforce at MNGP during two refueling outages. Approximately 250 additional workers would be needed during the 2009 refueling outage, and up to 500 additional workers would be needed during the 2011 refueling outage to support EPU-related activities at MNGP. Once completed, the proposed EPU would not increase the size of the MNGP workforce during future refueling outages.
Most of the EPU plant modification workers would likely relocate temporarily to Wright and Sherburne counties, resulting in short-term increases in the local population along with increased demands for public services and housing. Because plant modification work would be short-term, most workers could stay in available rental homes, apartments, mobile homes, and camper-trailers. Since MNGP is located in a high population area and the number of available housing units exceeds demand, any temporary changes in plant employment would have little or no noticeable effect on the availability of housing in the region. Due to the short duration of plant outages and the availability of housing, there would be no significant employment-related housing impacts.
NSPM currently pays annual real estate taxes to Public School District 882, Wright County, and the City of Monticello. The proposed EPU could increase property tax payments because the total amount of tax money paid would increase as power generation increases and because the proposed EPU could increase the assessed market value of MNGP. Due to the short duration of EPU-related plant modification activities, there would be little or no noticeable effect on tax
The environmental justice impact analysis evaluates the potential for disproportionately high and adverse human health and environmental effects on minority and low-income populations that could result from activities associated with EPU operation at MNGP. Such effects may include ecological, cultural, human health, economic, or social impacts. Some of these potential effects have been identified in resource areas discussed in this EA. For example, increased demand for rental housing during plant modifications for the EPU could disproportionately affect low-income populations. Minority and low-income populations are subsets of the general public residing around MNGP, and all are exposed to the same health and environmental effects generated from activities at MNGP.
The NRC staff considered the demographic composition of the area within a 50-mile radius of MNGP to determine the location of minority and low-income populations and whether they may be affected by the proposed action. According to U.S. Census Bureau data for 2000, the largest minority group was Black or African American (178,000 persons or 6.5 percent), followed by Asian (132,000 or about 4.8 percent). Low-income populations in the vicinity of MNGP were identified as living below the 1999 Federal poverty threshold of $17,029 for a family of four. According to census data, Wright County and Sherburne County had higher median household income averages ($67,391 and $67,634) and lower percentages (both 5.0 percent) of individuals living below the poverty level, respectively.
Potential impacts to minority and low-income populations would mostly consist of environmental and socioeconomic effects (
Noise and dust impacts would be short-term and limited to onsite activities. Minority and low-income populations residing along site access roads could experience increased commuter vehicle traffic during shift changes. Increased demand for inexpensive rental housing during EPU-related plant modifications could disproportionately affect low-income populations, but there are a sufficient number of rental housing units available to accommodate the increase of workers at MNGP during the outages. Due to the short duration of the EPU-related work and the availability of rental properties, impacts to minorities and low-income populations would be short-term and limited.
Based on this information and the analysis of human health and environmental impacts presented in this EA, the NRC staff concludes that the proposed EPU operation would not have disproportionately high and adverse human health and environmental effects on minority and low-income populations residing in the vicinity of MNGP.
As discussed above, the proposed EPU would not result in any significant non-radiological impacts. The NRC staff also anticipates that there would be no significant non-radiological cumulative impacts related to the proposed EPU. Table 1 summarizes the non-radiological environmental impacts of the proposed EPU at MNGP.
Nuclear power plants use waste treatment systems to collect, process, recycle, and dispose of gaseous, liquid, and solid wastes that contain radioactive material in a safe and controlled manner within NRC and EPA radiation safety standards.
During normal power plant operation, the gaseous effluent treatment system processes and controls the release of radioactive gaseous effluents into the environment.
Implementation of the proposed EPU would increase the production and activity of gaseous effluents by approximately 13 percent, which is in proportion to the proposed increase in power level. As reported by the licensee for the 2001-2006 period, the average annual calculated maximum total body dose to an offsite member of the general public from gaseous effluents was 1.62E-02 mrem (1.62E-04 mSv). This dose is well below the 5 mrem (0.05 mSv) dose design objective in Appendix I to 10 CFR part 50, Section II.B.2. Using the average annual maximum total body dose (provided by the licensee) to an offsite member of the general public from gaseous effluents, and assuming that the 13-percent EPU will result in a corresponding increase in dose, the NRC staff projects that the average annual
MNGP is authorized by the NRC to release a qualified amount of radioactive liquid effluent into the environment; however, by its own policy the licensee operates the plant as a zero radioactive liquid release plant. Therefore, there are no routine periodic releases of liquid radioactive effluents from the plant. MNGP's liquid radioactive waste management system collects and processes the liquid waste, and then either recycles the clean liquid within the plant or solidifies the waste for off-site disposal. The proposed EPU operation will not change the zero radioactive release policy at MNGP. No modifications to the liquid radioactive waste system would be needed to handle the increased liquid waste following implementation of the proposed EPU.
In the EPU application, the licensee estimated that the proposed EPU would slightly increase the volume of radioactive liquid waste generated from 11,000 gals/day to 11,250 gals/day. This is a small increase in volume and can be accommodated by the radioactive liquid waste system capacity. Although the licensee strives to operate the plant as a zero liquid release plant, there were some radioactive liquid discharges in 2001, 2003, and 2004. As reported by the licensee for the 2001-2006 period, the average annual calculated maximum total body dose to an offsite member of the general public from liquid effluents was 2.72E-06 mrem (2.72E-08 mSv). This annual dose is well below the 3 mrem (0.03 mSv) dose design objective in Appendix I to 10 CFR part 50, Section II.A. Based on the licensee's ability to maintain a near zero liquid discharge status for several years, and because the resulting dose from the few releases was well within NRC dose standards, there is reasonable assurance that the proposed EPU will not have a significant impact on future liquid discharges.
In addition to the dose impact from gaseous and liquid radioactive effluents, the licensee evaluated the impact of the proposed EPU on the direct radiation (gamma radiation) from plant systems, liquid storage tanks, the turbine, and components containing radioactive materials.
Based on the licensee's evaluation, the annual offsite dose to members of the public from direct radiation under EPU conditions would be approximately 6 mrem. Thus, the annual cumulative average calculated maximum total body dose to an offsite member of the general public from all sources of radiation from the facility (
The radioactive solid waste system collects, processes, packages, monitors, and temporarily stores radioactive dry and wet solid wastes prior to shipment offsite for disposal. The licensee reported in its environmental assessment that MNGP shipped annually, on average, approximately 706 ft
Spent fuel from MNGP is stored in the spent fuel pool and the newly constructed Independent Spent Fuel Storage Installation (ISFSI). The licensee estimates that the number of discharged assemblies would increase from 150 assemblies per cycle to approximately 170 assemblies per cycle following implementation of the proposed EPU. The storage capacity of the spent fuel pool and the ISFSI is sufficient to accommodate the expected small increase in discharged fuel assemblies. Therefore, the NRC staff concludes that there would be no significant impact resulting from storage of the additional fuel assemblies.
Implementation of the proposed EPU would result in the production of more radioactive material and higher radiation dose rates in the restricted areas at MNGP. Occupational exposures from in-plant radiation primarily occur during maintenance and refueling operations. Implementation of the proposed EPU is not expected to significantly change the amount of radiation exposure received by plant personnel, as the licensee has a radiation protection program that monitors radiation levels throughout the plant to establish work controls, shielding, and protective equipment requirements so that worker doses will remain within the dose limits of 10 CFR part 20 and as low as is reasonably achievable. Therefore, the NRC staff concludes that there would be no significant increase in the radiation exposure received by plant personnel due to implementation of the proposed EPU.
Implementation of the proposed EPU would increase the core inventory of radionuclides, which is dependent on power level. The concentration of the radionuclides in the reactor coolant may also increase in proportion to power level increase; however, this concentration is limited by the MNGP Technical Specifications. Therefore, the reactor coolant concentration of radionuclides would not be expected to increase significantly. Some of the radioactive waste streams and storage systems evaluated for postulated accidents may contain slightly higher quantities of radionuclides. For those postulated accidents where the source term has increased, the calculated potential radiation dose to individuals at the exclusion area boundary, at the low population zone, and in the main control room, as well as in the technical support center for the loss-of-coolant accident, remain below the requirements of 10 CFR 50.67.
The licensee has submitted analyses of calculated doses under accident conditions for the EPU amendment application. These analyses show that the proposed EPU will not have significant radiological impacts under accident conditions. The NRC staff has reviewed the licensee's analyses to independently verify the licensee's calculated doses under accident
As discussed above, the proposed EPU would not result in any significant radiological impacts. Because of existing regulatory requirements regarding limits to exposure, the NRC staff also anticipates that there would be no significant radiological cumulative impacts related to the proposed EPU, as the licensee is required to continue to comply with such regulatory requirements. Table 2 summarizes the radiological environmental impacts of the proposed EPU at MNGP.
As an alternative to the proposed action, the NRC staff considered denial of the proposed EPU (
Furthermore, the proposed EPU does not involve environmental impacts that are significantly different from those originally identified in the MNGP FES.
This action does not involve the use of any resources not previously considered in the FES.
In accordance with its stated policy, on August 7, 2009, the NRC staff consulted with the State of Minnesota official regarding the environmental impact of the proposed action. The Minnesota State official had no comments.
On the basis of the EA, the NRC concludes that the proposed action will not have a significant effect on the quality of the human environment. Accordingly, the NRC has determined not to prepare an environmental impact statement for the proposed action.
For further details with respect to the proposed action, see the licensee's application dated November 5, 2008, and its supplement dated January 29, 2009 (on environmental issues).
Documents may be examined, and/or copied for a fee, at the NRC's Public Document Room (PDR), located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. Publicly available records will be accessible electronically from the Agencywide Documents Access and Management System (ADAMS) Public Electronic Reading Room on the NRC Web site,
For the Nuclear Regulatory Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The proposed rule change would amend DTC's rules to modify its Settlement Progress Payment (“SPP”) and Principal and Income (“P&I”) withdrawal cutoff times.
In its filing with the Commission, DTC included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. DTC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of these statements.
A SPP is a payment sent intraday by Fedwire to DTC when a DTC participant (“Participant”) has insufficient collateral
P&I allocations are credited to a Participant's settlement accounts throughout each processing day as P&I payments are received. The current early P&I withdrawal process allows Participants to withdraw intraday P&I payments for non-Money Market Instrument issues that DTC has allocated to the Participant's settlement account until 3 p.m. eastern time. P&I withdrawals can be made in any dollar amount subject to DTC's Risk Management Controls.
In an effort to maximize the early return of available liquidity to Participants, DTC is proposing to extend the cutoff times for when Participants may request the return of SPP and the withdrawal of P&I to 3:20 p.m. eastern time. These changes will necessitate revisions to the existing DTC Settlement Guide.
The proposed rule change is consistent with Section 17A of the Act,
DTC does not believe that the proposed rule change will have any impact or impose any burden on competition.
Written comments relating to the proposed rule change were not and are not intended to be solicited or received. DTC will notify the Commission of any written comments received by DTC.
The foregoing proposed rule change has become effective upon filing pursuant to Section 19(b)(3)(A)(iii) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Secretary, Elizabeth M. Murphy, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”)
The Exchange proposes to amend its Schedule of Fees and Charges to implement new royalty fees associated with Nasdaq 100 Index Options (“NDX”) and Mini-NDX Options (“MNX”). Moreover, the exchange proposes to remove obsolete language pertaining to expiring pilot programs and products that are no longer traded on the Exchange. The text of the proposed rule change is attached as Exhibit 5 to the 19b-4 form. A copy of this filing is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend its Schedule of Fees and Charges (“Fee Schedule”) to implement new royalty fees associated with Nasdaq 100 Index Options (“NDX”) and Mini-NDX Options (“MNX”). On January 4, 2010, the current royalty fee of $0.16 for MNX and NDX contracts will increase to $0.22. These fees reflect the pass-through charges associated with the licensing of these products. The Exchange notes that royalty fees do not apply to public customer orders in these products.
Moreover, the Exchange proposes to delete obsolete references in its Fee Schedule pertaining to the Linkage Pilot Program. The Linkage Pilot Program is set to expire on December 31, 2010. Accordingly, the Exchange proposes to remove the “Linkage Fees” portion of its fee schedule as well as endnotes 9, 11, 12, and obsolete and redundant portions of endnote 13. Furthermore, the Exchange proposes to renumber subsequent endnotes accordingly.
Lastly, the Exchange proposes to amend the Royalty Fee section of the Fee Schedule to remove references to ISE FX products because they are not traded on the Exchange.
The Exchange believes that the proposal is consistent with Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to adopt new Rule 107B—NYSE Amex Equities (“Supplemental Liquidity Providers”) to establish, as a pilot program, a new class of NYSE Amex Equities market participants referred to as “Supplemental Liquidity Providers” or “SLPs”. The text of the proposed rule change is available at the Exchange, the Commission's Public Reference Room, and
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The purpose of the proposed rule change is to adopt new Rule 107B—NYSE Amex Equities (“Supplemental Liquidity Providers”) to establish, as a pilot program, a new class of NYSE Amex Equities market participants referred to as “Supplemental Liquidity Providers” or “SLPs”.
Proposed Rule 107B—NYSE Amex Equities is based on NYSE Rule 107B. The New York Stock Exchange LLC (“NYSE”) adopted NYSE Rule 107B governing SLPs as a six-month pilot program commencing in November 2008, which was subsequently extended to March 30, 2010.
Proposed Rule 107B—NYSE Amex Equities tracks NYSE Rule 107B in its entirety, subject to such changes as are necessary to apply the Rule to the Exchange.
With this rule filing, the Exchange is proposing a pilot program to establish a new class of market participants: Supplemental Liquidity Providers (“SLP”). SLPs will supplement the liquidity provided by Designated Market
By establishing this new class of market participant, the Exchange is seeking to provide incentives for quoting and to add competition to the existing group of liquidity providers. By requiring SLPs to quote at the NBB or the NBO a percentage of the regular trading day in their assigned securities, and by paying a rebate when the SLP's interest results in an execution, the Exchange is rewarding aggressive liquidity providers in the market. The Exchange believes that this rebate program will encourage the additional utilization of, and interaction with, the Exchange's marketplace and provide customers with the premier venue for price discovery, liquidity, competitive quotes and price improvement.
An SLP is required to maintain a bid or an offer at the NBB or NBO (
If an SLP posts liquidity in its assigned securities that results in an execution, the Exchange will pay the SLP a financial rebate of $0.0020 per share priced at or above $1.00, and $0.0005 per share priced below $1.00, provided the SLP meets its monthly quoting requirement for rebates averaging at least 3% at the NBB or the NBO in its assigned securities in round lots (
A member organization that acts as an SLP is not permitted to act as a DMM on the Floor of the Exchange in the same security. Thus, a member organization that acts as a DMM on the Floor may not also act as an SLP in those securities registered to the DMM unit.
Like all other member organizations of the Exchange, an SLP must abide by Exchange and SEC rules and regulations and must deal in a manner consistent with just and equitable principles of trade. SLPs are subject to regulatory oversight by the Exchange and FINRA.
During the proposed SLP pilot program, the SLP Liaison Committee, as defined in Section (d)(1) of the proposed Rule, will initially assign a cross section of Exchange-listed and/or traded securities to each SLP. The SLP Liaison Committee will determine which securities will be assigned to an SLP and the number of securities assigned to each SLP. The Exchange's SLP program will include both listed and traded securities, as it is in the process of submitting a separate filing to permit it to trade Nasdaq-listed securities on a UTP basis.
The Exchange believes that the SLP pilot program will provide the Exchange with a unique opportunity to monitor the success of the SLP incentives by starting with a cross section of securities. By doing so, the Exchange will be better equipped to address actual and potential administrative and operational problems without unnecessary risk to the Exchange and to its customers. The SLP pilot program will also provide the Exchange with the opportunity to identify and address any such problems and make beneficial changes to the SLP program.
In addition to its usefulness to the Exchange, the SLP pilot program will provide the SLPs with essential practical experience with the new program and enable the SLPs to become proficient in the SLP role before expanding the assigned securities to include all Exchange-listed or traded securities.
The SLP Liaison Committee, in its discretion, will assign one or more SLPs to each security depending upon the trading activity of the security. The SLP Liaison Committee will likely assign a greater number of SLPs to more actively traded securities.
A member organization of the Exchange must have the following qualifications in order to obtain SLP status:
(1) Adequate technology to support electronic trading through the related systems and facilities of the Exchange and report qualifying trading activity to Exchange systems utilizing unique and separate mnemonics specifically dedicated to SLP trading activity;
(2) Adequate trading infrastructure to support SLP trading activity, which includes support staff to maintain operational efficiencies in the SLP program and adequate administrative staff to manage the member organization's SLP program;
(3) Quoting performance that demonstrates an ability to meet the 5% quoting requirement in each assigned security;
(4) A disciplinary history that is consistent with just and equitable business practices; and
(5) The business unit of the member organization acting as an SLP must have in place adequate information barriers between the SLP unit and the member organization's customer, research and investment banking business.
To become an SLP, a member organization must submit an SLP application form with all supporting documentation to the SLP Liaison Committee. The SLP Liaison Committee will determine whether an applicant is qualified to become an SLP based on the qualifications described in Section (c) of the proposed Rule (“Qualifications of a Supplemental Liquidity Provider”). The qualifications focus on the adequacy of the applicant's trading and reporting technology and trading infrastructure. The applicant's disciplinary history will be considered as well.
After submission of the SLP application form and supporting documentation, the SLP Liaison Committee will notify the applicant member organization of its decision. If an applicant is approved by the SLP Liaison Committee to receive SLP status, the applicant must establish connectivity with relevant Exchange systems and facilities.
The processing of all applications may be suspended when the SLP Liaison Committee has determined that there is a sufficient number of SLPs assigned to each eligible security in the SLP program (
If an applicant is disapproved or “disqualified,” pursuant to Section (i)(2) of the proposed Rule, by the SLP Liaison Committee, such applicant may request an appeal of such disapproval or disqualification by the SLP Panel as provided in Section (j) (“Appeal of Non-Regulatory Penalties”) of this Rule, and/or reapply for SLP status three (3) months after the month in which the applicant received disapproval or disqualification notice from the Exchange (
An SLP may withdraw from the status of an SLP at any time by giving notice to the SLP Liaison Committee, the Market Surveillance Division of NYSE Regulation, Inc. and NYSE Euronext employees of the Operations Division (
In order to maintain SLP status, an SLP is required to maintain a bid or an offer at the NBB or NBO on the Exchange averaging at least 5% of the trading day in round lots for each assigned security.
In order for an SLP to be entitled to a rebate, an SLP must post liquidity on the Exchange that executes against incoming orders and meet the monthly minimum quoting requirement averaging at least 3% at the NBB or the NBO in round lots in its assigned securities (
The SLP is not subject to any minimum or maximum quoting size requirement apart from the requirement that an order be for at least one round lot (
An SLP must use its SLP mnemonic when trading as an SLP in its assigned securities in order to obtain credit for their SLP trading activity (
The SLP's quoting requirements will not be in effect in the first month the SLP operates as an SLP. The Exchange will provide the SLP with a one-month grace period to allow preparation time for the SLP. Therefore, this quoting requirement will not take effect until the second month of an SLP's operation as an SLP.
Beginning with the second month an SLP is operating as an SLP, an SLP must satisfy the 5% quoting requirement for each assigned security.
(1) The “Daily NBB Quoting Percentage” by determining the percentage of time an SLP has at least one round lot of displayed interest in an Exchange bid at the NBB during each trading day for a calendar month;
(2) The “Daily NBO Quoting Percentage” by determining the percentage of time an SLP has at least one round lot of displayed interest in an Exchange offer at the NBO during each trading day for a calendar month;
(3) The “Average Daily NBBO Quoting Percentage” for each trading day by summing the “Daily NBB Quoting Percentage” and the “Daily NBO Quoting Percentage” in each assigned security then dividing such sum by two; and
(4) The “Monthly Average NBBO Quoting Percentage” for each assigned security by summing the security's “Average Daily NBBO Quoting
Below is an example of a quoting requirement calculation. For purposes of this example, it is assumed that SLP No. 1 has two assigned securities, A and B, and that there were 5 trading days in the selected calendar month.
The “Average Daily NBBO Quoting Percentage” for SLP No. 1 is calculated for each security by summing the daily NBB and NBO of each security for that day and dividing that number by two:
The “Monthly Average NBBO Quoting Percentage” for each security is then calculated by summing the security's “Average Daily NBBO Quoting Percentages” for all five trading days of the calendar month and then dividing the resulting total by the number of trading days in the calendar month (in this instance 5).
When an SLP posts liquidity, displayed or non-displayed, on the Exchange in its SLP assigned securities and such liquidity is executed against an incoming order, the SLP will receive a financial rebate for that executed transaction provided the SLP has met it rebate quoting requirement averaging at least 3% at the NBB or the NBO in each assigned security pursuant to Section (i)(1)(A) and (B) (“Non-Regulatory Penalties”). An SLP will only receive a rebate when it has met the monthly 3% or better quoting requirement in its assigned securities and the SLP's posted displayed or non-displayed liquidity results in an execution.
The SLP rebate will be $0.0020 per share priced at or above $1.00, and $0.0005 per share priced below $1.00, for executions when the SLP provides liquidity.
Except for the rebate, all other SLP fees are the same as existing customer fees on the Exchange (
Exchange systems are responsible for share allocation and create interest files for each market participant. Individual Floor brokers and the DMM registered in a security each constitute single participants. All off-Floor orders entered in Exchange systems at the Exchange BBO together constitute a single participant (“Book Participant”) for the purpose of share allocation. SLP orders will be in the “Book Participant”
The universe of trading information and market data available to the SLP will include market data published by the Exchange and all other automated trading centers (as defined in Rule 600 of Regulation NMS), trading information published on the Consolidated Tape and on the NYSE Amex OpenBook®.
If an SLP fails to meet the 5% quoting requirement for any assigned security, the SLP may be subject to non-regulatory penalties imposed by the SLP Liaison Committee (
In a given calendar month, if an SLP maintains a quote at the NBB or NBO averaging 3% of the trading day, but less than the average of 5% of the trading day in any assigned security, the SLP will receive a financial rebate for that calendar month for executed transactions in that particular security as described in Section (b) (“Rebates for Executed Transactions”) of the proposed Rule. Failure to meet the 5% quoting requirement for each assigned security in that month will be counted towards the three-month disqualification period provided in paragraph (i)(C) of the proposed Rule.
In a given calendar month, if an SLP maintains a quote at the NBB or the NBO averaging less than 3% of the regular trading day in an assigned security, the SLP will not receive the financial rebate for that month for transactions executed in that particular assigned security. The failure to meet the 5% quoting requirement for any assigned security in that month will also be counted towards the three-month disqualification period.
If an SLP fails to meet the 5% quoting requirement for three consecutive calendar months in any assigned security, the SLP Liaison Committee may, in its discretion, take the following non-regulatory action:
(1) Revoke the assignment of the affected security(ies);
(2) Revoke the assignment of an additional, unaffected security from an SLP; or
(3) Disqualify a member organization's status as an SLP.
In the second calendar month that an SLP fails to meet the 5% quoting requirement, the SLP Liaison Committee will notify the SLP in writing that the SLP may be disqualified if it fails to meet the quoting requirement the third consecutive month.
When disqualification determinations are made, the SLP Liaison Committee will provide a disqualification notice to the member organization informing the member organization of its disqualification as an SLP.
If a member organization is disqualified from its status as an SLP pursuant to Section (i)(1)(C)(iii) of the proposed Rule, the member organization may appeal the disqualification pursuant to Section (j) (“Appeal of a Non-Regulatory Penalties”) of the proposed Rule, or re-apply for SLP status in accordance with Section (d)(6) (“Re-application for SLP Status”) of the proposed Rule. However, the re-application process may not begin until three calendar months after the month in which the member organization received its disqualification notice.
An SLP may request an appeal of the decision to impose a non-regulatory penalty as provided in Section (j) of the proposed Rule. Upon receiving a request for an appeal, a panel of NYSE Euronext employees referred to as the “SLP Panel” will review the decision to impose non-regulatory penalties. The SLP Panel shall consist of the Exchange's Chief Regulatory Officer (“CRO”), or a designee of the CRO, and two (2) officers of the Exchange designated by the NYSE Euronext Head of the U.S. Markets Division.
The SLP Panel will review the facts of the subject non-regulatory penalty and render a decision as to the correctness of the decision to impose the penalty. The SLP Panel may overturn or modify an action taken by the SLP Liaison Committee, and all determinations by the SLP Panel will constitute final action by the Exchange on the disputed matter.
Member organizations that act as SLPs will be subject to regulatory oversight by the Exchange and FINRA.
In conjunction with the adoption of Rule 107B—NYSE Amex Equities, the Exchange also proposes to amend Rule 2A(c)—NYSE Amex Equities to accommodate the Exchange's authority to approve or disapprove the designation of a member or member organization as an SLP.
The Exchange believes that the proposed rule change is consistent with, and furthers the objectives of, Section 6(b)(5) of the Act,
The Exchange believes that the proposed Rule is consistent with these principles in that it seeks to establish a new class of market participant that will provide additional liquidity to the market and add competition to the existing group of liquidity providers. The Exchange believes that by requiring an SLP to quote at the NBB or the NBO a percentage of the regular trading day in their assigned securities, and by paying an SLP a rebate when its posted interest results in an execution, the Exchange is rewarding aggressive liquidity providers in the market, and
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Office of the United States Trade Representative.
Request for written submissions from the public and announcement of public hearing.
Section 182 of the Trade Act of 1974 (Trade Act) (19 U.S.C. 2242) requires the United States Trade Representative (USTR) to identify countries that deny adequate and effective protection of intellectual property rights (IPR) or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. (The provisions of Section 182 are commonly referred to as the “Special 301” provisions of the Trade Act.). The USTR is required to determine which, if any, of these countries should be identified as Priority Foreign Countries. Acts, policies, or practices that are the basis of a country's identification as a Priority Foreign Country can be subject to the procedures set out in sections 301-305 of the Trade Act.
In addition, USTR has created a “Priority Watch List” and “Watch List” to assist the Administration in pursuing the goals of the Special 301 provisions. Placement of a trading partner on the Priority Watch List or Watch List indicates that particular problems exist in that country with respect to IPR protection, enforcement, or market access for persons relying on intellectual property. Trading partners placed on the Priority Watch List are the focus of increased bilateral attention concerning the problem areas.
USTR chairs an interagency team that reviews information from many sources, and that consults with and makes recommendations to the USTR on issues arising under Special 301. Written submissions from interested persons are a key source of information for the Special 301 review process. In 2010, USTR through the Special 301
USTR is hereby requesting written submissions from the public concerning foreign countries' acts, policies, or practices that are relevant to the decision on whether a particular trading partner should be identified as a priority foreign country under Section 182 of the Trade Act or placed on the Priority Watch List or Watch List. Interested parties, including foreign governments, who want to testify at the public hearing must submit a request to testify at the hearing and a short hearing statement. The deadlines for these procedures are set out below.
The schedule for the 2010 Special 301 review is set forth below.
All written comments, requests to testify, and hearing statements should be sent electronically via
Jennifer Choe Groves, Senior Director for Intellectual Property and Innovation and Chair of the Special 301 Committee, Office of the United States Trade Representative, at (202) 395-4510. Further information about Special 301 can be located at
USTR requests that interested persons identify those countries that deny adequate and effective protection for intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. USTR requests that, where relevant, submissions mention particular regions, provinces, states, or other subdivisions of a country in which an act, policy, or practice is believed to warrant special attention. Submissions may report positive or negative developments with respect to these sub-national entities.
Section 182 contains a special rule regarding actions of Canada affecting United States cultural industries. The USTR must identify any act, policy or practice of Canada that affects cultural industries, is adopted or expanded after December 17, 1992, and is actionable under Article 2106 of the North American Free Trade Agreement (NAFTA). USTR must make the above-referenced identifications within 30 days after publication of the National Trade Estimate (NTE) report,
The Special 301 Committee invites written submissions from the public concerning foreign countries' acts, policies, or practices that are relevant to the decision whether a particular trading partner should be identified under Section 182 of the Trade Act. As noted above, interested parties, except for foreign governments, must submit written comments by February 16, 2010 at 5 p.m. Interested foreign governments must submit written comments by February 23, 2010 at 5 p.m.
Written comments should include a description of the problems experienced by the submitter and the effect of the acts, policies, and practices on U.S. industry. Comments should be as detailed as possible and should provide all necessary information for assessing the effect of the acts, policies, and practices. Any comments that include quantitative loss claims should be accompanied by the methodology used in calculating such estimated losses. Comments must be in English. All comments should be sent electronically via
To submit comments to
The
The Special 301 Committee will hold a public hearing at the United States International Trade Commission, 500 E St. SW., Washington, DC 20436 for interested parties, including representatives of foreign governments, beginning on March 3 and continuing through March 4-8 (as necessary). The hearing will be open to the public, and a transcript of the hearing will be made available on
All interested parties, except foreign governments, wishing to testify at the hearing must submit, by 5 p.m. on February 16, 2010, a “Notice of Intent to Testify” and “Hearing Statement” to
All interested foreign governments who wish to testify at the hearing must submit, by 5 p.m. on February 23, 2010, a “Notice of Intent to Testify” to
A person requesting that information contained in a comment submitted by that person be treated as confidential business information must certify that such information is business confidential and would not customarily be released to the public by the submitter. Confidential business information must be clearly designated as such, the submission must be marked “BUSINESS CONFIDENTIAL” at the top and bottom of the cover page and each succeeding page, and the submission should indicate, via brackets, the specific information that is confidential. Additionally, “Business Confidential” should be included in the “Type comment & Upload file” field. Anyone submitting a comment containing business confidential information must also submit as a separate submission a non-confidential version of the confidential submission, indicating where confidential information has been redacted. The non-confidential summary will be placed in the docket and open to public inspection.
USTR will maintain a docket on the 2010 Special 301 Review, accessible to the public. The public file will include non-confidential comments, notices of intent to testify, and hearing statements received by USTR from the public, including foreign governments, with respect to the 2010 Special 301 Review. Comments will be placed in the docket and open to public inspection pursuant to 15 CFR 2006.13, except confidential business information exempt from public inspection in accordance with 15 CFR 2006.15. Comments may be viewed on the
Carolina Coastal Railway, Inc. (CLNA), a Class III rail carrier, has filed a verified notice of exemption
CLNA certifies that its projected annual revenues as a result of this transaction will not exceed those that would qualify it as a Class III carrier and further certifies that its projected revenues will not exceed $5 million.
CLNA states that its services will replace those provided by MHSF on or about February 1, 2010 (after the January 29, 2010 effective date of the exemption, 30 days after the exemption was filed).
If the verified notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 35339, must be filed with the Surface Transportation Board, 395 E Street, SW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on John D. Heffner, John D. Heffner, PLLC, 1750 K Street, NW., Suite 200, Washington, DC 20006.
Board decisions and notices are available on our Web site at
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
On December 29, 2009, Pioneer Industrial Railway Co. (PIRY) and Central Illinois Railroad Company (CIRY), jointly filed with the Surface Transportation Board a petition under 49 U.S.C. 10502 for exemption from the provisions of 49 U.S.C. 10903.
This transaction is related to a concurrently filed verified notice of exemption for PIRY to acquire from CIRY non-exclusive local trackage rights to operate over approximately 4.81 miles of rail line (the northern and southern sections of the Kellar Branch and the western connection).
The line does not contain Federally granted rights-of-way. Any documentation in PIRY's or CIRY's possession will be made available promptly to those requesting it.
The interest of railroad employees will be protected by the conditions set forth in
By issuance of this notice, the Board is instituting an exemption proceeding pursuant to 49 U.S.C. 10502(b). A final decision is scheduled to be issued by April 16, 2010.
Any offer of financial assistance (OFA) to subsidize continued rail service under 49 CFR 1152.27(b)(2) will be due no later than 10 days after service of a decision granting the petition for exemption. Each offer must be accompanied by a $1,500 filing fee.
All filings in response to this notice must refer to STB Docket No. AB-1056X and STB Docket No. AB-1066 (Sub-No. 1X) and must be sent to: (1) Surface Transportation Board, 395 E Street, SW., Washington, DC 20423-0001; and (2) William A. Mullins, 2401 Pennsylvania Avenue, NW., Suite 300, Washington, DC 20037, and Michael R. Ascher, 2500 S. Highland Ave., Suite 360, Lombard, IL 60148. Replies to the petition are due on or before February 4, 2010.
Persons seeking further information concerning discontinuance procedures may contact the Board's Office of Public Assistance, Governmental Affairs and Compliance at (202) 245-0230 or refer to the full abandonment or discontinuance regulations at 49 CFR part 1152. Questions concerning environmental issues may be directed to the Board's Section of Environmental Analysis (SEA) at (202) 245-0305. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.]
Board decisions and notices are available on our Web site at
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Federal Aviation Administration (FAA), DOT.
Notice of RTCA Special Committee 159 meeting: Global Positioning System (GPS).
The FAA is issuing this notice to advise the public of a meeting of RTCA Special Committee 159: Global Positioning System (GPS).
The meeting will be held February 2-5, 2010, from 9 a.m. to 4:30 p.m. (unless stated otherwise).
The meeting will be held at RTCA, Inc., 1828 L Street, NW., Suite 805, Washington, DC, 20036.
RTCA Secretariat, 1828 L Street, NW., Suite 805, Washington, DC, 20036; telephone (202) 833-9339; fax (202) 833-9434; Web site
Pursuant to section 10(a) (2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., Appendix 2), notice is hereby given for a Special Committee 159: Global Positioning System (GPS) meeting. The agenda will include:
• All Day, Working Group 2C, GPS/Inertial, Colson Board Room.
• All Day, Working Group 2, GPS/WAAS, Colson Board Room.
• All Day, Working Group 4, Precision Landing Guidance (GPS/LAAS), MacIntosh-NBAA Room & Hilton-ATA Room.
• Morning (9 a.m.-12 p.m.), Working Group 4, Precision Landing Guidance (GPS/LAAS), MacIntosh-NBAA Room & Hilton-ATA Room.
• Afternoon (1 p.m.-5 p.m.), Working Groups 2, 4, 6 & 7, Joint Session, MacIntosh-NBAA Room & Hilton-ATA Room.
• Chairman's Introductory Remarks.
• Approval of Summary of the Eightieth Meeting held October 2, 2009, RTCA Paper No. 002-09/SC159-982.
• Review Working Group (WG) Progress and Identify Issues for Resolution:
• GPS/3rd Civil Frequency (WG-1).
• GPS/WAAS (WG-2).
• GPS/GLONASS (WG-2A).
• GPS/Inertial (WG-2C).
• GPS/Precision Landing Guidance (WG- 4).
• GPS/Airport Surface Surveillance (WG-5).
• GPS/Interference (WG-6).
• GPS/Antennas (WG-7).
• Review of EUROCAE Activities.
• GEAS Update Briefing.
• Assignment/Review of Future Work.
• Other Business.
• Date and Place of Next Meeting
Attendance is open to the interested public but limited to space availability. With the approval of the chairmen, members of the public may present oral statements at the meeting. Persons wishing to present statements or obtain information should contact the person listed in the
Federal Aviation Administration (FAA), DOT.
Notice of RTCA Special Committee 216 meeting; Aeronautical Systems Security.
The FAA is issuing this notice to advise the public of a meeting of RTCA Special Committee 216: Aeronautical Systems Security.
The meeting will be held February 9-11, 2010 from 9 a.m. to 5 p.m.
The meeting will be held at RTCA, Inc., 1828 L Street, NW., Suite 805, Washington, DC 20036.
RTCA Secretariat, 1828 L Street, NW., Suite 805, Washington, DC, 20036; telephone (202) 833-9339; fax (202) 833-9434; Web site
Pursuant to section 10(a) (2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., Appendix 2), notice is hereby given for a Special Committee 216/Aeronautical Systems Security meeting. The agenda will include:
• Welcome/Introductions/Administrative Remarks.
• Agenda Overview and Approval of the Summary of the 11th meeting held November 18-20, 2009, (RTCA Paper No. 257-09/SC216-023).
• EUROCAE WG-72 Report.
• Subgroup and Action Item Reports:
• SOW reviews;
• Schedule.
• Subgroup Meetings/Break-outs.
• Subgroup Reports on Break-outs.
• Establish Dates, Location, and Agenda for Next Meeting(s).
• Any Other Business.
Attendance is open to the interested public but limited to space availability. With the approval of the chairmen, members of the public may present oral statements at the meeting. Persons wishing to present statements or obtain information should contact the person listed in the
Federal Aviation Administration (FAA), DOT.
Notice of meetings; correction.
This action corrects an error in the notice of meetings published in the
Mike Richardson, Support Manager, Atlanta TRACON, 784 South Highway 74, Peachtree City, GA;
On Friday, December 4, 2009, a notice of meetings was published in the
For information regarding submittal of comments, meeting procedures, and agenda, please reference the notice of meetings published on Friday, December 4, 2009.
Accordingly, the address and phone number for the informal airspace meeting scheduled for February 25, 2010, in Covington, GA, as published in the
The meeting on Thursday, February 25, 2010, will be held at the City of Covington City Hall, 2194 Emory Street NW., Covington, GA 30014 [Call 770-385-2010 for directions].
On December 16, 2009, YCR Corporation (YCR),
The line was authorized for abandonment by the Board's predecessor agency, the Interstate Commerce Commission (ICC), in
Pursuant to a lease agreement, YCR, as lessee, and the County, as owner,
This transaction is related to the verified notice of exemption filed in STB Finance Docket No. 35337,
The rail segment qualifies for a modified certificate of public convenience and necessity.
YCR states that no subsidy is involved and that there are no preconditions for shippers to meet in order to receive rail service. YCR also states that the agreement requires it to obtain liability insurance coverage.
This notice will be served on the Association of American Railroads (Car Service Division) as agent for all railroads subscribing to the car-service and car-hire agreement at 50 F Street, NW., Washington, DC 20001; and on the American Short Line and Regional Railroad Association at 50 F Street, NW., Suite 7020, Washington, DC 20001.
Board decisions and notices are available on our Web site at
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Federal Transit Administration (FTA), DOT.
Notice of Availability of Fiscal Year 2009 Funds: Solicitation of Grant Applications.
The U.S. Department of Transportation (DOT) Federal Transit Administration (FTA) announces the availability of funds in Fiscal Year (FY) 2009 for the Over-the-Road Bus (OTRB) Accessibility Program, authorized by Section 3038 of the Transportation Equity Act for the 21st Century (TEA-21). The OTRB Accessibility Program makes funds available to private operators of over-the-road buses to finance the incremental capital and training costs of complying with DOT's over-the-road bus accessibility regulation. The authorizing legislation calls for national solicitation of applications with grantees to be selected on a competitive basis. Federal transit funds are available to intercity fixed-route providers and other OTRB providers at up to 90 percent of the project cost.
A total of $8,800,000 has been appropriated for the program in FY 2009. FY 2006 funds have lapsed in the amount of $1,867,900. The total amount available for allocation is $10,710,435 which includes FY 2009 appropriations and lapsed funds. This announcement is available on the Internet on the FTA Web site at:
Complete applications for OTRB Program grants must be submitted to the appropriate FTA regional office (see Appendix B) by April 15, 2010, or submitted electronically through the Grants.Gov Web site by the same date. Anyone intending to apply electronically should initiate the process of registering on the Grants.Gov site immediately to ensure completion of registration before the deadline for submission. FTA will announce grant selections in the
Contact the appropriate FTA Regional Administrator (Appendix B) for application-specific information and issues. For general program information, contact Blenda Younger, Office of Program Management, (202) 366-2053, e-mail:
The program is authorized under Section 3038 of the Transportation Equity Act for the 21st Century (TEA-21), Public Law 105-85 as amended by the Safe, Accountable, Flexible, Efficient, Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Public Law 109-059, August 10, 2005.
Buses purchased under the OTRB program are used in intercity fixed-route service as well as other services, such as commuter, charter, and tour bus services. These services are an important element of the U.S. transportation system. TEA-21 authorized FTA's OTRB Accessibility Program to assist OTRB operators in complying with the Department's OTRB Accessibility regulation, “Transportation for Individuals with
Under the OTRB Accessibility regulation, all new buses obtained by large (Class I carriers,
The rule required 50 percent of a fixed-route operator's fleet to be accessible by October 30, 2006, and 100 percent of the vehicles in their fleet to be accessible by October 29, 2012. New buses acquired by small (gross annual transportation revenues of less than $8.6 million) fixed-route operators after October 29, 2001, also are required to be lift-equipped, unless the operator can provide equivalent service to passengers with disabilities on a 48-hour advance notice basis. Unlike large operators, small fixed-route operators do not have a deadline for total fleet accessibility. Small demand responsive OTRB operators such as charter and tour companies are required to provide service in an accessible bus on 48 hours advance notice. Small mixed service operators must also provide this kind of service on an interim basis until their fleets are completely accessible.
OTRB operators must submit three types of reports annually by the last Monday of every October, with each annual report covering the time period from October 1 of the prior calendar year through September 30 of the current calendar year: (1) OTRB operators must submit a summary of all individual requests they receive for accessible and/or equivalent service in each 12-month reporting period; (2) Large and small fixed route OTRB companies must submit an annual report that summarizes the number of passengers with disabilities who used the lift to board accessible buses in a given 12-month reporting period; and (3) OTRB companies must submit acquisition and lease data to the DOT annually. Additional information on the filing requirements can be found on the following Federal Motor Carrier Safety Administration Web page:
The rules for delivering accessible motorcoach service went into effect October 29, 2001, for large fixed-route, charter, tour and other demand-responsive motorcoach operators, and for small operators on October 28, 2002. Operators should consult 49 CFR part 37, Subpart H, regarding the acquisition of accessible vehicles and the provision of accessible service to determine the applicable section that best describes their operating characteristics. Specifications describing the design features of an accessible over-the-road bus are listed in 49 CFR part 38, subpart G.
Improving mobility and shaping America's future by ensuring that the transportation system is accessible, integrated, and efficient, and offers flexibility of choices is a key strategic goal of the DOT. OTRB Accessibility projects will improve mobility for individuals with disabilities by providing financial assistance to help make vehicles accessible and training to ensure that drivers and others are properly trained to use accessibility features as well as how to treat patrons with disabilities.
An “over-the-road bus” is defined in 49 CFR 37.3 as a bus characterized by an elevated passenger deck located over a baggage compartment.
Intercity, fixed-route over-the-road bus service is regularly scheduled bus service for the general public, using an OTRB that operates with limited stops over fixed routes connecting two or more urban areas not in close proximity or connecting one or more rural communities with an urban area not in close proximity; has the capacity for transporting baggage carried by passengers; and makes meaningful connections with scheduled intercity bus service to more distant points. The application includes five criteria factors that will be reviewed to determine eligibility for a portion of the funding available to operators that qualify under this definition.
“Other” OTRB service means any other transportation using OTRBs, including local fixed-route service, commuter service, and charter or tour service (including tour or excursion service that includes features in addition to bus transportation such as meals, lodging, admission to points of interest or special attractions). While some commuter service may also serve the needs of some intercity fixed-route passengers, the statute includes commuter service in the definition of “other” service. Commuter service providers may apply for these funds, even though the services designed to meet the needs of commuters may also provide service to intercity fixed-route passengers on an incidental basis. If a commuter service provider can document that more than 50 percent of its passengers are using the service as intercity fixed-route service, the provider may apply for the funds designated for intercity fixed-route operators.
Federal transit funds are available to intercity fixed-route providers and other OTRB providers at up to 90 percent of the project cost. A total of $8,800,000 was appropriated for the program in FY 2009 which together with $1,910,435 in prior year unobligated funds make a total of $10,710,435 available for allocation. Successful applicants will be awarded grants. Typical grants under this program range from $25,000 to $180,000, with most grants being less than $40,000, for lift equipment for a single vehicle.
Grants will be made directly to operators of OTRBs. Intercity, fixed-route OTRB service providers may apply for the funds that are anticipated to be appropriated for intercity fixed-route providers in FY 2009. Applicants must establish eligibility as intercity fixed-route providers by meeting established criteria on six factors identified in Part 2B of the application. Other OTRB service providers, including operators of local fixed-route service, commuter service, and charter or tour service may apply for the funds appropriated in FY 2009 for these providers. OTRB operators who provide both intercity, fixed-route service and another type of service, such as commuter, charter or tour, may apply for both categories of funds with a single application. Private for-profit operators of over-the-road buses are eligible to be direct applicants for this program. This is a departure from most other FTA programs for which the direct applicant must be a State or local public body. FTA does not award grants to public entities under this program.
Projects to finance the incremental capital and training costs of complying with DOT's OTRB accessibility rule (49
FTA may award funds for costs already incurred by the applicants. Any new wheelchair accessible vehicles delivered after June 8, 1998, the date that the TEA-21 became effective, are eligible for funding under the program. Vehicles of any age that have been retrofitted with lifts and other accessibility components after June 8, 1998, are also eligible for funding.
Eligible training costs are those required by the final accessibility rule as described in 49 CFR 37.209. These activities include training in proper operation and maintenance of accessibility features and equipment, boarding assistance, securement of mobility aids, sensitive and appropriate interaction with passengers with disabilities, and handling and storage of mobility devices. The costs associated with developing training materials or providing training for local providers of OTRB services for these purposes are also eligible expenses.
FTA will not fund the incremental costs of acquiring used accessible OTRBs that were previously owned, as it may be impossible to verify whether or not FTA funds were already used to make the vehicles accessible. Also, it would be difficult to place a value on the accessibility features based upon the depreciated value of the vehicle. The legislative intent of this grant program is to increase the number of wheelchair accessible OTRBs available to persons with disabilities throughout the country. The purchase of previously-owned accessible vehicles, whether or not they were funded by FTA, does not further this objective of increasing the number of wheelchair accessible OTRBs.
FTA has sponsored the development of accessibility training materials for public transit operators. Project ACTION is an FTA funded national technical assistance program to promote cooperation between the disability community and the transportation industry. Project ACTION provides training, resources and technical assistance to thousands of disability organizations, consumers with disabilities, and transportation operators. It maintains a resource center with up-to-date information on transportation accessibility. Project ACTION may be contacted at: Project ACTION, 1425 K Street, NW., Suite 200, Washington, DC 20005, Phone: 1-800-659-6428 (TDD: (202) 374-7385),
Federal transit funds are available to intercity fixed-route providers and other OTRB providers at up to 90 percent of the project cost. A 10 percent match is required.
This announcement includes all of the application materials. It is also available on the Internet on the FTA Web site at
The application should provide information on all items for which you are requesting funding in FY 2009. If you use another company's previous application as a guide, remember to modify all elements as appropriate to reflect your company's situation. The application must include a project narrative in the format provided in Appendix A, in addition to Standard Form 424, “Application for Federal Assistance.”
This addresses basic identifying information, including:
a. Company name.
b. Dun and Bradstreet (D&B) Data Universal Numbering System (DUNS) number.
c. Contact information for notification of project selection: contact name, address, email address, fax and phone number.
d. Description of services provided by company, including areas served.
e. For fixed-route carriers, whether you are a large (Class I, with gross annual operating revenues of $8.1 million or more) or small (gross operating revenues of less than $8.1 million annually) carrier.
f. Existing fleet and employee information, including number of over-the-road buses used for (1) intercity fixed-route service, and (2) other service, and number of employees.
g. If you provide both intercity fixed-route service and another type of service, such as commuter, charter or tour service, please provide an estimate of the proportion of your service that is intercity.
h. Description of your technical, legal, and financial capacity to implement the proposed project. Include evidence that you currently possess appropriate operating authority (
Every application must:
a. Provide the Federal amount requested for each purpose for which funds are sought in the format in Appendix A.
b. Document matching funds, including amount and source.
c. Describe project, including components to be funded (
d. Provide project timeline, including significant milestones such as date or contract for purchase of vehicle(s), and actual or expected delivery date of vehicles.
e. Address each of the five statutory evaluation criteria described in V.
f. If requesting funding for intercity service, provide evidence that:
1. The applicant provides scheduled, intercity, fixed route, over-the-road bus service that interlines with one or more scheduled, intercity bus operators. (Such evidence includes applicant's membership in the National Bus Traffic Association or participation in separate interline agreements, and participation in interline tariffs or price lists issued by, or on behalf of, scheduled, intercity bus operators with whom the applicant interlines); and
2. The applicant has obtained authority from the Federal Motor Carrier Safety Administration or the Interstate Commerce Commission to operate scheduled, intercity, fixed route service; and as many of the following as are applicable;
3. The applicant is included in Russell's Official National Motor Coach Guide showing that it provides regularly scheduled, fixed route OTRB service with meaningful connections with scheduled intercity bus service to more distant points.
4. The applicant maintains a Web site showing routes and schedules of its regularly scheduled, fixed route OTRB service and its meaningful connections to other scheduled, intercity bus service.
5. The applicant maintains published schedules showing its regularly scheduled, fixed route OTRB service and its meaningful connections to other scheduled, intercity bus service.
6. The applicant participates in the International Registration Plan (IRP) apportionment program.
a. Identify any labor organizations that may represent your employees and employees of any transit providers in the service area of the project. For each local union of a nationally affiliated union, the applicant must provide the name of the national organization and the number or other designation of the local union (
b. For each independent labor organization (
c. Where a labor organization represents transit employees in the service area of the project, DOL must refer the proposed protective arrangements to each union and to each recipient. For this reason, please provide DOL with a contact person, address, telephone number and fax number for your company and associated union information.
Complete applications for OTRB Accessibility Program grants must be submitted to the appropriate FTA regional office (Appendix B) April 15, 2010 or submitted electronically through
This program is not generally subject to Executive Order (EO) 12372, “Intergovernmental Review of Federal Programs.” For more information, contact the State's Single Point of Contact (SPOC) to find out about and comply with the State's process under EO 12372. The names and addresses of the SPOCs are listed in the Office of Management and Budget's homepage at
Only applications from eligible recipients for eligible activities will be considered for funding (see Section III). Due to funding limitations, applicants that are selected for funding may receive less than the amount requested.
Applicants should submit three copies of their project proposal application, consistent with the application format provided at Appendix A, to the appropriate regional office or apply electronically through the government wide electronic grant application portal at
1. Project Evaluation Criteria—Projects will be evaluated according to the following criteria:
A. The identified need for OTRB accessibility for persons with disabilities in the areas served by the applicant (20 points).
B. The extent to which the applicant demonstrated innovative strategies and financial commitment to providing access to OTRBs to persons with disabilities (20 points).
C. The extent to which the OTRB operator acquired equipment required by DOT's over-the-road bus accessibility rule prior to the required timeframe in the rule (20 points).
D. The extent to which financing the costs of complying with DOT's rule presents a financial hardship for the applicant (20 points).
E. The impact of accessibility requirements on the continuation of OTRB service with particular consideration of the impact of the requirements on service to rural areas and for low-income individuals (20 points).
These are the statutory criteria upon which funding decisions will be made. In addition to these criteria, FTA may also consider other factors, such as the size of the applicant's fleet and the level of FTA funding previously awarded to applicants in prior years. Applicants will not be considered for funding as intercity fixed-route operators unless they satisfy, at a minimum, the first two criteria and at least one of criteria three through five listed in the Project Information section of the application; these criteria are applicable to intercity fixed-route applicants.
Each application is screened by a panel of members consisting of FTA headquarters and regional staff. Incomplete or non-responsive applications will be disqualified. Intercity fixed-route service providers must provide evidence that they meet at a minimum the first two criteria and at least one of the next three criteria set forth in Project Information, if funds are requested under this category (see Appendix A, 2, B). Applicants that do not qualify as intercity-fixed route operators may be considered for funding in the “other” category using the same application. FTA will make an effort to award every qualified applicant at least one lift.
FTA will screen all applications to determine whether all required eligibility elements, as described in Part III “Eligibility Information,” are present. The FTA evaluation team will evaluate each application according to the criteria described in this announcement. FTA will notify all applicants, both those selected for funding and those not selected when the competitive selection process is complete. Projects selected for funding will be published in a
Applicants selected for funding must include documentation necessary to meet the requirements of FTA's Nonurbanized Area Formula program (Title 49, United States Code, Section 5311). Technical assistance regarding these requirements is available from each FTA regional office. The regional offices will contact those applicants selected for funding regarding procedures for making the required certifications and assurances to FTA before grants are made.
The authority for these requirements is provided by TEA-21, Public Law 105-178, June 9, 1998, as amended by the TEA-21 Restoration Act 105-206, 112 Stat. 685, July 22, 1998; 49 U.S.C. Section 5310, note; and DOT and FTA regulations and FTA Circulars.
Under the OTRB Accessibility Grant Program, FTA's Buy America regulations, 49 CFR part 661, apply to the incremental capital costs of making vehicles accessible.
Generally, Buy America applies to all accessibility equipment acquired with FTA funds,
It should also be noted that FTA has issued a general public interest waiver for all purchases under the Federal “small purchase” threshold, which is currently $100,000. (See 49 CFR 661.7, Appendix A(e)). Because Section 3038(b) of TEA-21, limited FTA financing to the incremental capital costs of compliance with DOT's OTRB accessibility rule, the small purchase waiver applies only to the incremental cost of the accessibility features. Where more than one bus is being made accessible, the grantee must calculate the incremental cost increase of the entire procurement when determining if the small purchase waiver applies. For example, if $30,000 is the incremental cost for the accessibility features eligible under this program per bus (regardless of the Federal share contribution), then a procurement of three buses with a total such cost of $90,000, would qualify for the small purchase waiver. No special application to FTA would be required.
The grantee must obtain a certification from the bus or component manufacturer that all items included in the incremental cost for which the applicant is applying for funds meet Buy America requirements. The Buy America regulations can be found at
Before FTA may award a grant for capital assistance, 49 U.S.C. 5333(b) requires that fair and equitable arrangements must be made to protect the interests of transit employees affected by FTA assistance. Those arrangements must be certified by the Secretary of Labor as meeting the requirements of the statute. When a labor organization represents a group of affected employees in the service area of an FTA project, the employee protective arrangement is usually the product of negotiations or discussions with the union. The grant applicant can facilitate DOL certification by identifying in the application any previously certified protective arrangements that have been applied to similar projects undertaken by the grant applicant, if any. Receiving funds under the OTRB Accessibility program, however, will not require the grantee's employees to be represented by organized labor. Nothing in the labor protection provisions in 49 U.S.C 5333(b) requires a motorcoach operator to become a union carrier or encourages union organizing in any manner. Upon receipt of a grant application requiring employee protective arrangements, FTA will transmit the application to DOL and request certification of the employee protective arrangements. In accordance with DOL guidelines, DOL notifies the relevant unions in the area of the project that a grant for assistance is pending and affords the grant applicant and union the opportunity to agree to an arrangement establishing the terms and conditions of the employee protections. If necessary, DOL furnishes technical and mediation assistance to the parties during their negotiations. The Secretary of Labor may determine the protections to be certified if the parties do not reach an agreement after good faith bargaining and mediation efforts have been exhausted. DOL will also set the protective conditions when affected employees in the service area are not represented by a union. When DOL determines that employee protective arrangements comply with labor protection requirements, DOL will provide a certification to FTA. The grant agreement between FTA and the grant applicant incorporates by reference the employee protective arrangements certified by DOL.
Applicants must identify any labor organizations that may represent their employees and all labor organizations that represent the employees of any other transit providers in the service area of the project.
For each local of a nationally affiliated union, the applicant must provide the name of the national organization and the number or other designation of the local union (
However, for each independent labor organization (
Where a labor organization represents transit employees in the service area of the project, DOL must refer the proposed protective arrangements to each union and to each recipient. For this reason, please provide DOL with a contact person, address, telephone number and fax number for your company, and associated union information.
DOL issued a
Applicants are encouraged to notify the appropriate State Departments of Transportation and Metropolitan Planning Organizations (MPO) in areas likely to be served by equipment made accessible through funds made available in this program. Those organizations, in turn, should take appropriate steps to inform the public, and individuals requiring fully accessible services in particular, of operators' intentions to expand the accessibility of their services. Incorporation of funded projects in the plans and transportation improvement programs of states and metropolitan areas by States and MPOs also is encouraged, but is not required.
The applicant assures that it will comply with all applicable Federal statutes, regulations, executive orders, FTA circulars, and other Federal administrative requirements in carrying out any project supported by the FTA grant. The applicant acknowledges that it is under a continuing obligation to comply with the terms and conditions of the grant agreement issued for its project with FTA. The applicant
Post-award reporting requirements include submission of final Financial Status Report and milestone report, or annual reports for grants remaining open at the end of each Federal fiscal year (September 30). Documentation is required for payment.
Contact the appropriate FTA Regional Administrator (Appendix B) for application-specific information and issues. For general program information, contact Blenda Younger, Office of Program Management, (202) 366-2053, e-mail:
(See Section IV.2 of
In addition to OMB Standard Form 424, Application For Federal Assistance, provide the following information:
A. Federal Amount Requested (Up to 90% Federal Share):
Intercity Fixed Route Service:
B. If requesting funding for intercity service, provide evidence of any of the following that are applicable:
1. The applicant provides scheduled, intercity, fixed route, over-the-road bus service that interlines with one or more scheduled, intercity bus operators. Such evidence includes applicant's membership in the National Bus Traffic Association or participation in separate interline agreements, and participation in interline tariffs or price lists issued by, or on behalf of, scheduled, intercity bus operators with whom the applicant interlines.
2. The applicant has obtained authority from the Federal Motor Carrier Safety Administration or the Interstate Commerce Commission to operate scheduled, intercity, fixed route service.
3. The applicant is included in Russell's Official National Motor Coach Guide showing that it provides regularly scheduled, fixed route OTRB service with meaningful connections with scheduled intercity bus service to more distant points.
4. The applicant maintains a website showing routes and schedules of its regularly scheduled, fixed route OTRB service and its meaningful connections to other scheduled, intercity bus service.
5. The applicant maintains published schedules showing its regularly scheduled, fixed route OTRB service and its meaningful connections to other scheduled, intercity bus service.
6. The applicant participates in the International Registration Plan (IRP) apportionment program.
C. Document Matching Funds, including Amount and Source
D. Describe Project, including Components to be funded (
E. Provide Project Time Line, including significant milestones such as date of contract for purchase of vehicle(s), and actual or expected delivery date of vehicles.
F. Project Evaluation Criteria
Provide information addressing the following criteria:
• The identified need for OTRB accessibility for persons with disabilities in the areas served by the applicant (20 points).
• The extent to which the applicant demonstrated innovative strategies and financial commitment to providing access to OTRBs to persons with disabilities (20 points).
• The extent to which the over-the-road bus operator acquired equipment required by DOT's OTRB accessibility rule prior to the required time frame in the rule (20 points).
• The extent to which financing the costs of complying with DOT's rule presents a financial hardship for the applicant (20 points).
• The impact of accessibility requirements on the continuation of OTRB service with particular consideration of the impact of the requirements on service to rural areas and for low income individuals (20 points).
G. Labor Information
• List labor organizations that may represent your employees and all labor organizations that represent the employees of any transit providers in the service area of the project.
• For each local of a nationally affiliated union, provide the name of the national organization and the number or other designation of the local union.
• For each independent labor organization, provide the local information, including: name of organization, address, contact person, phone and fax numbers.
• For transit employee unions in service area of project, provide information including: contact person, address, telephone number and fax number for your company and associated union information.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Grant of petition for exemption.
This document grants in full the Chrysler LLC, (Chrysler) petition for exemption of the Jeep Patriot vehicle line in accordance with 49 CFR Part 543,
The exemption granted by this notice is effective beginning with the 2011 Model Year (MY).
Ms. Carlita Ballard, International Policy, Fuel Economy and Consumer Programs, NHTSA, W43-439, 1200 New Jersey Avenue, SE., Washington, DC 20590. Ms. Ballard's phone number is (202) 366-0846. Her fax number is (202) 493-2990.
In a petition dated September 30, 2009, Chrysler requested an exemption from the parts-marking requirements of the Theft Prevention Standard (49 CFR Part 541) for the Jeep Patriot vehicle line, beginning with MY 2011. The petition requested an exemption from parts-marking requirements pursuant to 49 CFR 543,
Under Section § 543.5(a), a manufacturer may petition NHTSA to grant exemptions for one of its vehicle lines per year. Chrysler petitioned the agency to grant an exemption for its Jeep Patriot vehicle line beginning with MY 2011. In its petition, Chrysler provided a detailed description and diagram of the identity, design, and location of the components of the antitheft device for the new vehicle line. Chrysler will install the Sentry Key Immobilizer System (SKIS) antitheft device as standard equipment on the vehicle line. The major components of the SKIS device consist of: a Powertrain Control Module, an Integrated Power Module, a Sentry Key REmote Entry Module (SKREEM), a fob with integrated key (FOBIK) and an Electromechanical Instrument Cluster which controls the telltale function only. According to Chrysler, all of these components work collectively to perform the immobilizer function, and the SKIS device does not provide a visible or audible indication of unauthorized vehicle entry (
Chrysler stated that the SKIS provides passive vehicle protection by preventing the engine from operating unless a valid electronically encoded key is detected in the ignition lock cylinder. According to Chrysler, the immobilizer feature is activated when the key is removed from the ignition lock cylinder. Only a valid key inserted into the ignition lock cylinder will allow the vehicle to start and continue to run.
Chrysler stated that the SKREEM/Wireless Ignition Node (WIN), an integral component of the SKIS antitheft device, contains a radio frequency
Chrysler stated that it has incorporated an unauthorized vehicle start telltale light into the device. Chrysler stated that the telltale feature operates as a security indicator in the Electro Mechanical Instrument Cluster (EMIC). According to Chrysler, the telltale alerts the owner that an unauthorized vehicle start attempt has been made. Chrysler stated that upon an unauthorized start attempt, the telltale will flash on and off when the ignition switch is turned to the “ON” position. Chrysler stated that besides acting as a security indicator, the telltale acts as a diagnostic indicator. Chrysler stated that if the SKREEM detects a system malfunction and/or the SKIS has become inoperative, the security indicator will stay on. If the SKREEM detects an invalid key or if a key transponder-related fault exists, the security indicator will flash.
Chrysler stated that each ignition key used in the SKIS has an integral transponder chip included on the circuit board beneath the cover of the integral Remote Keyless Entry (RKE) transmitter. Chrysler stated that in addition to having to be cut to match the mechanical coding of the ignition lock cylinder and programmed for operation of the RKE system, each new Sentry Key has a unique transponder identification code that is permanently programmed into it by the manufacturer, and which must be programmed into the SKREEM to be recognized by the SKIS as a valid key. Chrysler stated that once a Sentry Key has been programmed to a particular vehicle, it cannot be used on any other vehicle.
In addressing the specific content requirements of 543.6, Chrysler provided information on the reliability and durability of the device. Chrysler conducted tests based on its own specified standards and stated its belief that the device meets the stringent performance standards prescribed. Specifically, Chrysler stated that its device must demonstrate a minimum of 95 percent reliability with 90 percent confidence. In addition to the design and production validation test criteria, Chrysler stated that the SKIS also undergoes a daily short term durability test. Chrysler also stated that 100 percent of its systems undergo a series of three functional tests for durability prior to being shipped from the supplier to the vehicle assembly plant for installation in its vehicles.
Chrysler stated that while there is no theft data available for the Jeep Patriot because it's a new vehicle line introduction, experience with the Jeep Liberty, a similar 5-door, All Wheel Drive, crossover/Sport Utility Vehicle as the Jeep Patriot indicates that this vehicle is projected to have a theft rate lower than the median theft rate. Chrysler offered the Jeep Grand Cherokee as an example vehicle with a SKIS immobilizer system as standard equipment since the 1999 model year. The average theft rate for the Jeep Grand Cherokee vehicles for the four model years prior to 1999 (1995-1998), when a vehicle immobilizer system was not offered as standard equipment, was 5.3574 per one thousand vehicles produced, which is significantly higher than the 1990/1991 median theft rate of 3.5826. However, the average theft rate for the six model years (1999-2005) after installation of the standard immobilizer device was 2.5492, which is significantly lower than the median. The Jeep Grand Cherokee vehicle line was granted an exemption from the parts-marking requirements beginning with MY 2004. Chrysler further stated that NHTSA's theft data for the Jeep Grand Cherokee indicates that the inclusion of a standard immobilizer system has resulted in a 52.3 percent net average reduction in vehicle thefts.
Based on the supporting evidence submitted by Chrysler on the Jeep Grand Cherokee, the agency believes that the antitheft device for the Jeep Patriot vehicle line is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of the Theft Prevention Standard (49 CFR 541). The agency concludes that the device will provide four of the five types of performance listed in § 543.6(a)(3): Promoting activation; preventing defeat or circumvention of the device by unauthorized persons; preventing operation of the vehicle by unauthorized entrants; and ensuring the reliability and durability of the device.
Pursuant to 49 U.S.C. 33106 and 49 CFR 543.7(b), the agency grants a petition for exemption from the parts-marking requirements of Part 541, either in whole or in part, if it determines that, based upon supporting evidence, the standard equipment antitheft device is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of Part 541. The agency finds that Chrysler has provided adequate reasons for its belief that the antitheft device for the Chrysler Jeep Patriot vehicle line is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of the Theft Prevention Standard (49 CFR Part 541). This conclusion is based on the information Chrysler provided about its device.
For the foregoing reasons, the agency hereby grants in full Chrysler's petition for an exemption for the MY 2011 Jeep Patriot vehicle line from the parts-marking requirements of 49 CFR Part 541. The agency notes that 49 CFR Part 541, Appendix A-1, identifies those lines that are exempted from the Theft Prevention Standard for a given model year. 49 CFR Part 543.7(f) contains publication requirements with respect to the disposition of all Part 543 petitions. Advanced listing, including the release of future product nameplates, the beginning model year for which the petition is granted and a general description of the antitheft device is necessary in order to notify law enforcement agencies of new vehicle lines exempted from the parts-marking requirements of the Theft Prevention Standard.
If Chrysler decides not to use the exemption for this vehicle line, it must formally notify the agency. If such a decision is made, the vehicle line must be fully marked as required by 49 CFR Parts 541.5 and 541.6 (marking of major component parts and replacement parts).
NHTSA notes that if Chrysler wishes in the future to modify the device on which this exemption is based, the company may have to submit a petition to modify the exemption. Part 543.7(d) states that a Part 543 exemption applies only to vehicles that belong to a line exempted under this part and equipped
The agency wishes to minimize the administrative burden that Part 543.9(c)(2) could place on exempted vehicle manufacturers and itself. The agency did not intend Part 543 to require the submission of a modification petition for every change to the components or design of an antitheft device. The significance of many such changes could be
49 U.S.C. 33106; delegation of authority at 49 CFR 1.50.
In accordance with part 211 of Title 49 Code of Federal Regulations (CFR), notice is hereby given that the Federal Railroad Administration (FRA) received a request for a waiver of compliance with certain requirements of its safety standards. The individual petition is described below, including the party seeking relief, the regulatory provisions involved, the nature of the relief being requested, and the petitioner's arguments in favor of relief from the requirements of 49 CFR Part 236 as detailed below.
The CSX Transportation, Inc. (CSXT) seeks relief from the requirements of the Rules, Standards and Instructions, Title 49 CFR Part 236, Section 236.377 Approach Locking; 236.378 Time Locking; 236.379 Route Locking; 236.380 Indication Locking; and 236.381 Traffic Locking on vital microprocessor-based systems. CSXT proposes to verify and test signal locking systems controlled by microprocessor-based equipment by use of alternative procedures every 4 years after initial baseline testing or program change as follows:
• Verifying the Cyclic Redundancy Check (CRC)/Check Sum/Universal Control Number (UNC) of the existing location's specific application logic to the previously tested version.
• Testing the appropriate interconnection to the associated signaling hardware equipment outside of the processor (switch indication, track indication, searchlight signal indication, approach locking (if external)) to verify correct and intended inputs to and outputs from the processor are maintained.
• Analyze and compare the results of the 4-year alternative testing with the results of the baseline testing performed at the location and submit the results to FRA.
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number (e.g., Waiver Petition Docket Number FRA-2009-0120) and may be submitted by any of the following methods:
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Communications received within 45 days of the date of this notice will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable. All written communications concerning these proceedings are available for examination during regular business hours (9 a.m.-5 p.m.) at the above facility. All documents in the public docket are also available for inspection and copying on the Internet at the docket facility's Web site at
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
Maritime Administration, Department of Transportation.
Invitation for public comments on a requested administrative waiver of the Coastwise Trade Laws for the vessel BOO PACIFIC.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below. The complete application is given in DOT docket MARAD-2009-0002 at
Submit comments on or before February 16, 2010.
Comments should refer to docket number MARAD-2009-0002. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Joann Spittle, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue, SE., Room W21-203, Washington, DC 20590. Telephone 202-366-5979.
As described by the applicant the intended service of the vessel BOO PACIFIC is:
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union,
By Order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Invitation for public comments on a requested administrative waiver of the Coastwise Trade Laws for the vessel BELLISSIMO.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below. The complete application is given in DOT docket MARAD-2009-0001 at
Submit comments on or before February 16, 2010.
Comments should refer to docket number MARAD-2009-0001. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Joann Spittle, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue, SE., Room W21-203, Washington, DC 20590. Telephone 202-366-5979.
As described by the applicant the intended service of the vessel BELLISSIMO is:
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union,
By Order of the Maritime Administrator.
Pursuant to a written trackage rights agreement, Central Illinois Railroad Company (CIRY) has agreed to grant non-exclusive local trackage rights to Pioneer Industrial Railway Co. (PIRY) over approximately 4.81 miles of rail line in the City of Peoria, Peoria County, IL, as follows: (1) The southern segment of the Kellar Branch, between mileposts 1.71 and 2.78, (2) the northern segment of the Kellar Branch, between mileposts 8.50 and 10.0, and (3) the western connection, between milepost 71.5 to the end of track (a short distance west
This transaction is related to a concurrently filed petition for exemption wherein PIRY seeks to discontinue service over 8.29 miles of rail line on the Kellar Branch and CIRY seeks to discontinue service over 5.72 miles of rail line on the Kellar Branch.
The transaction may be consummated on or after January 28, 2010, the effective date of the exemption (30 days after the exemption was filed).
As a condition to this exemption, any employees affected by the trackage rights will be protected by the conditions imposed in
This notice is filed under 49 CFR 1180.2(d)(7). If the notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 35341, must be filed with the Surface Transportation Board, 395 E Street, SW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on William A. Mullins, 2401 Pennsylvania Avenue NW., Suite 300, Washington, DC 20037.
Board decisions and notices are available on our Web site at
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (“OFAC”) is removing the name of one individual from the list of Specially Designated Nationals and Blocked Persons whose property and interests in property have been blocked pursuant to Executive Order 13224 of September 23, 2001,
The removal of the individual from the list of Specially Designated Nationals and Blocked Persons whose property and interests in property have been blocked pursuant to Executive Order 13224 is effective as of January 8, 2010.
Assistant Director, Compliance Outreach & Implementation, Office of Foreign Assets Control, Department of the Treasury, Washington, DC 20220,
This document and additional information concerning OFAC are available from OFAC's web site (
On September 23, 2001, the President issued Executive Order 13224 (the “Order”) pursuant to the International Emergency Economic Powers Act, 50 U.S.C. 1701-1706, and the United Nations Participation Act of 1945, 22 U.S.C. 287c, imposing economic sanctions on persons who commit, threaten to commit, or support acts of terrorism. The President identified in the Annex to the Order various individuals and entities as subject to the economic sanctions. The Order authorizes the Secretary of the Treasury, in consultation with the Secretary of State, the Attorney General, and (pursuant to Executive Order 13284) the Secretary of the Department of Homeland Security, to designate additional persons or entities determined to meet certain criteria set forth in Executive Order 13224.
One such additional person was designated by the Secretary of the Treasury on November 7, 2001. The Department of the Treasury's Office of Foreign Assets Control has determined that this individual no longer continues to meet the criteria for designation under the Order and is appropriate for removal from the list of Specially Designated Nationals and Blocked Persons.
The following designation is removed from the list of Specially Designated Nationals and Blocked Persons:
The removal of the individual's name from the list of Specially Designated Nationals and Blocked Persons is effective as of January 8, 2010. All property and interests in property of the individual that are in or hereafter come within the United States or the possession or control of United States persons are now unblocked.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of
Written comments and recommendations on the proposed collection of information should be received on or before March 16, 2010.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 461-9769 or FAX (202) 275-5947.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Health Administration, Department of Veterans Affairs.
Notice.
The Veterans Health Administration (VHA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before March 16, 2010.
Submit written comments on the collection of information through the Federal Docket Management System (FDMS) at
Mary Stout at (202) 461-5867 or Fax (202) 273-9381.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501—3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VHA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VHA's functions, including whether the information will have practical utility; (2) the accuracy of VHA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Health Administration, Department of Veterans Affairs.
Notice.
The Veterans Health Administration (VHA) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before March 16, 2010.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Mary Stout (202) 461-5867 or FAX (202) 273-9381.
Under the PRA of 1995 (Pub. L.104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
By direction of the Secretary.
Veterans Health Administration, Department of Veterans Affairs.
Notice.
The Veterans Health Administration (VHA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before March 16, 2010.
Submit written comments on the collection of information through the Federal Docket Management System (FDMS) at
Mary Stout at (202) 461-5867 or Fax (202) 273-9381.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VHA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VHA's functions, including whether the information will have practical utility; (2) the accuracy of VHA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
Estimated Annual Burden:
Estimated Number of Respondents
By direction of the Secretary:
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Final rule; request for comment on specific issues.
FRA is issuing regulations implementing a requirement of the Rail Safety Improvement Act of 2008 that defines criteria for certain passenger and freight rail lines requiring the implementation of positive train control (PTC) systems. This final rule includes required functionalities of PTC system technology and the means by which PTC systems will be certified. This final rule also describes the contents of the PTC implementation plans required by the statute and contains the process for submission of those plans for review and approval by FRA. These regulations could also be voluntarily complied with by entities not mandated to install PTC systems. This is a final rule; however, FRA has identified specific provisions for which we are considering making changes to the final rule, if warranted by the public comments received. We expect to publish our response to those comments, including any possible changes to the rule made as a result of them, as soon as possible following the end of the comment period. However, the limited areas of this rule open for additional comment do not affect the requirement for railroads to prepare and submit plans in accordance with the deadlines established in this final rule.
This final rule is effective March 16, 2010. Petitions for reconsideration must be received on or before March 16, 2010. Comments must be received on or before February 16, 2010.
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Thomas McFarlin, Office of Safety Assurance and Compliance, Staff Director, Signal & Train Control Division, Federal Railroad Administration, Mail Stop 25, West Building 3rd Floor, Room W35-332, 1200 New Jersey Avenue, SE., Washington, DC 20590 (
FRA is issuing this final rule to provide regulatory guidance and performance standards for the development, testing, implementation, and use of Positive Train Control (PTC) systems for railroads mandated by the Rail Safety Improvement Act of 2008 § 104, Public Law 110-432, 122 Stat. 4854 (Oct. 16, 2008) (codified at 9 U.S.C. 20157) (hereinafter “RSIA08”), to implement PTC systems. These regulations may also be voluntarily complied with by entities not mandated to install PTC in lieu of the requirements contained in subpart H of part 236. The final rule establishes requirements for PTC system standard design and functionality, the associated submissions for FRA PTC system approval and certification, requirements for training, and required risk-based criteria. The RSIA08 mandates that widespread implementation of PTC across a major portion of the U.S. rail industry be accomplished by December 31, 2015. This final rule intends to provide the necessary Federal oversight, guidance, and assistance toward successful completion of that congressional requirement. This final rule also necessitates or results in some minimal revision or amendment to parts 229, 234, and 235, as well as previously existing subparts A through H of part 236.
This final rule provides new performance standards for the implementation and operation of PTC systems as mandated by the RSIA08 and as otherwise voluntarily adopted. This final rule also details the process and identifies the documents that railroads and operators of passenger trains are to utilize and incorporate in their PTC implementation plans required by the RSIA08. The final rule also details the process and procedure for obtaining FRA approval of such plans.
While developing this final rule, FRA applied the performance-based principles embodied in existing subpart H of part 236 to identify and remedy any weaknesses discovered in the subpart H regulatory approach, while exploiting lessons learned from products developed under subpart H. FRA has continued to make performance-based safety decisions while supporting railroads in their development and implementation of PTC system technologies. Development of this final rule was enhanced with the participation of the Railroad Safety
Since the early 1920s, systems have been in use that can intervene in train operations by warning crews or causing trains to stop if they are not being operated safely because of inattention, misinterpretation of wayside signal indications, or incapacitation of the crew. Pursuant to orders of the Interstate Commerce Commission (ICC)—whose safety regulatory activities were later transferred to FRA when it was established in 1967—cab signal systems, automatic train control, and automatic train stop systems were deployed on a significant portion of the national rail system to supplement and enforce the indications of wayside signals and operating speed limitations. However, these systems were expensive to install and maintain, and with the decline of intercity passenger service following the Second World War, the ICC and the industry allowed many of these systems to be discontinued. During this period, railroads were heavily regulated with respect to rates and service responsibilities. The development of the Interstate Highway System and other factors led to reductions in the railroads' revenues without regulatory relief, leading to bankruptcies, railroad mergers, and eventual abandonment of many rail lines. Consequently, railroads focused on fiscal survival, and investments in expensive relay-based train control technology were economically out of reach. The removal of these train control systems, which had never been pervasively installed, permitted train collisions to continue, notwithstanding enforcement of railroad operating rules designed to prevent them.
As early as 1970, following its investigation of the August 20, 1969, head-on collision of two Penn Central Commuter trains near Darien, Connecticut, in which 4 people were killed and 45 people were injured, the National Transportation Safety Board (NTSB) asked FRA to study the feasibility of requiring a form of automatic train control system to protect against train operator error and prevent train collisions. Following the Darien accident, the NTSB continued to investigate one railroad accident after another caused by human error. During the next two decades, the NTSB issued a number of safety recommendations asking for train control measures. Following its investigation of the May 7, 1986, rear-end collision involving a Boston and Maine Corporation commuter train and a Consolidated Rail Corporation (Conrail) freight train in which 153 people were injured, the NTSB recommended that FRA promulgate standards to require the installation and operation of a train control system that would provide for positive train separation. NTSB Recommendation R-87-16 (May 19, 1987),
Meanwhile, enactment of the Staggers Rail Act of 1980 signaled a shift in public policy that permitted the railroads to shed unprofitable lines, largely replace published “tariffs” with appropriately priced contract rates, and generally respond to marketplace realities, which increasingly demanded flexible service options responsive to customer needs. The advent of microprocessor-based electronic control systems and digital data radio technology during the mid-1980s led the freight railroad industry, through the Association of American Railroads (AAR) and the Railway Association of Canada, to explore the development of Advanced Train Control Systems (ATCS). With broad participation by suppliers, railroads, and FRA, detailed specifications were developed for a multi-level “open” architecture that would permit participation by many suppliers while ensuring that systems deployed on various railroads would work in harmony as trains crossed corporate boundaries. ATCS was intended to serve a variety of business purposes, in addition to enhancing the safety of train operations. Pilot versions of ATCS and a similar system known as Advanced Railroad Electronic Systems (ARES) were tested relatively successfully, but the systems were never deployed on a wide scale primarily due to cost. However, sub-elements of these systems were employed for various purposes, particularly for replacement of pole lines associated with signal systems.
Collisions, derailments, and incursions into work zones used by roadway workers continued as a result of the absence of effective enforcement systems designed to compensate for the effects of fatigue and other human factors. Renewed emphasis on rules compliance and federal regulatory initiatives, including rules for the control of alcohol and drug use in railroad operations, operational testing and inspection programs designed to verify railroad rules compliance, requirements for qualification and certification of locomotive engineers, and negotiated rules for roadway worker protection, led to substantial reductions in risk. However, the lack of an effective collision avoidance system allowed the continued occurrence of accidents, some involving tragic losses of life, serious injury, and significant property damage.
As the NTSB continued to highlight the opportunities for accident prevention associated with emerging train control technology through its investigations and findings, Congress showed increasing interest, mandating three separate reports over the period of a decade. In 1994, FRA reported to Congress on this problem, calling for implementation of an action plan to deploy PTC systems (Report to Congress on Railroad Communications and Train Control (July 1994) (hereinafter “1994 Report”)). The 1994 Report forecasted substantial benefits of advanced train control technology in supporting a variety of business and safety purposes, but noted that an immediate regulatory mandate for PTC could not be justified based upon normal cost-benefit principles relying on direct safety
Following through on the 1994 Report, FRA committed approximately $40 million through the Next Generation High-Speed Rail Program and the Research and Development Program to support development, testing, and deployment of PTC prototype systems in the Pacific Northwest, Michigan, Illinois, Alaska, and on some Eastern railroads. FRA also initiated a comprehensive effort to structure an appropriate regulatory framework for facilitating voluntary implementation of PTC and for evaluating future safety needs and opportunities.
In September of 1997, FRA asked the RSAC to address the issue of PTC. The RSAC accepted three tasks: Standards for New Train Control Systems (Task 1997-06), Positive Train Control Systems-Implementation Issues (Task 1997-05), and Positive Train Control Systems-Technologies, Definitions, and Capabilities (Task 1997-04). The PTC Working Group was established, comprised of representatives of labor organizations, suppliers, passenger and freight railroads, other federal agencies, and interested state departments of transportation. The PTC Working Group was supported by FRA counsel and staff, analysts from the Volpe National Transportation Systems Center (Volpe Center), and advisors from the NTSB staff.
In 1999, the PTC Working Group provided to the Federal Railroad Administrator a consensus report (Report of the Railroad Safety Advisory Committee to the Federal Railroad Administrator, Implementation of Positive Train Control Systems (August 1999) (hereinafter “1999 Report”)) with an indication that it would be continuing its efforts. The 1999 Report defined the PTC core functions to include: prevention of train-to-train collisions (positive train separation); enforcement of speed restrictions, including civil engineering restrictions (curves, bridges, etc.) and temporary slow orders; and protection for roadway workers and their equipment operating within their limits of authority. The PTC Working Group identified additional safety functions that might be included in some PTC architectures: provide warning of on-track equipment operating outside their limits of authority; receive and act upon hazard information, when available, in a more timely or more secure manner (
As the PTC Working Group's work continued, other collaborative efforts, including development of Passenger Equipment Safety Standards (including private standards through the American Public Transit Association), Passenger Train Emergency Preparedness rules, and proposals for improving locomotive crashworthiness (including improved fuel tank standards) have targeted reduction in collision and derailment consequences.
In 2003, in light of technological advances and potential increased cost and system savings related to prioritized deployment of PTC systems, the Appropriations Committees of Congress requested that FRA update the costs and benefits for the deployment of PTC and related systems. As requested, FRA carried out a detailed analysis that was filed in August of 2004,
Despite the economic infeasibility of PTC based on safety benefits alone, as outlined in the 1994, 1999, and 2004 Reports, FRA continued with regulatory and other efforts to facilitate and encourage the voluntary installation of PTC systems. As part of the High-Speed Rail Initiative, and in conjunction with the National Railroad Passenger Corporation (Amtrak), the AAR, the State of Illinois, and the Union Pacific Railroad Company (UP), FRA created the North American Joint Positive Train Control (NAJPTC) Program, which set out to describe a single standardized open source PTC architecture and system. UP's line between Springfield and Mazonia, Illinois was selected for initial installation of a train control system to support Amtrak operations up to 110 miles per hour, and the system was installed and tested on portions of that line. Although the system did not prove viable as then conceived, the project hastened the development of PTC technology that was subsequently employed in other projects. Promised standards for interoperability of PTC systems also proved elusive.
In addition to financially supporting the NAJPTC Program, FRA continued to work with the rail carriers, rail labor, and suppliers on regulatory reforms to facilitate voluntary PTC implementation. The regulatory reform effort culminated when FRA issued a final rule on March 7, 2005, establishing a technology neutral safety-based performance standard for processor-based signal and train control systems. This new regulation, codified as subpart H to part 236, was carefully crafted to encourage the voluntary implementation and operation of processor-based signal and train control systems without impairing technological development. 70 FR 11,052 (Mar. 7, 2005).
FRA intended that final rule—developed through the RSAC process in close cooperation with rail management, rail labor, and suppliers—to further facilitate individual railroad efforts to voluntarily develop and deploy cost effective PTC technologies that would make system-wide deployment more economically viable. It also appeared very possible that major railroads would elect to make voluntary investments in PTC to enhance safety, improve service quality, and foster efficiency (e.g., better asset utilization, reduced fuel use through train pacing).
While FRA and RSAC worked to develop consensus on the regulations that would become subpart H, the railroads continued with PTC prototype development. The technology neutral, performance-based regulatory process established by subpart H proved to be very successful in facilitating the development of other PTC implementation approaches. Although the railroads prototype development efforts were generally technically
Working under subpart H, the BNSF Railway Company (BNSF), CSX Transportation, Inc. (CSXT), the Norfolk Southern Corporation (NS), and UP undertook more aggressive design and implementation work. The new subpart H regulatory approach also made it feasible for smaller railroads, such as the Alaska Railroad and the Ohio Central Railroad, to begin voluntary design and implementation work on PTC systems that best suited their needs. FRA provided, and continues to provide, technical assistance and guidance regarding regulatory compliance to enable the railroads to more effectively design, install, and test their respective systems.
In December 2006, FRA approved the initial version of the Electronic Train Management System (ETMS®) product for deployment on 35 of BNSF's subdivisions (“ETMS I Configuration”) comprising single track territory that was either non-signaled or equipped with traffic control systems. ETMS is a registered trademark of Wabtec Railway Electronics. BNSF Railway has also referred to its application of this technology as “ETMS.”
In a separate proceeding, FRA agreed that ETMS could be installed in lieu of restoring a block signal system on a line for which discontinuance had been authorized followed by a significant increase in traffic. During the same period, BNSF successfully demonstrated a Switch Point Monitoring System (SPMS)—a system that contains devices attached to switches that electronically report the position of the switches to the railroad's central dispatching office and to the crew of an approaching train—and a Track Integrity Warning System (TIWS)—a system that also electronically reports to the railroad's central dispatching office and to the crew of an approaching train if there are any breaks in the rail that might lead to derailments or the condition of track occupancy. FRA believes both of these technologies help to reduce risk in non-signaled territory and are forward-compatible for use with existing and new PTC systems. To be forward-compatible, not to be confused with the similar concept of extensibility, a system must be able to gracefully provide input intended for use in later system versions. The introduction of a forward-compatible technology implies that older devices can partly understand and provide data generated or used by new devices or systems. The concept can be applied to electrical interfaces, telecommunication signals, data communication protocols, file formats, and computer programming languages. A standard supports forward-compatibility if older product versions can receive, read, view, play, execute, or transmit data to the new standard. In the case of wayside devices, they are said to be forward-compatible if they can appropriately communicate and interact with a PTC system when later installed. A wayside device might serve the function of providing only information or providing information and accepting commands from a new system.
In addition to scheduling the installation of the ETMS I configuration as capital funding became available, BNSF voluntarily undertook the design and testing of complementary versions of ETMS that would support BNSF operations on more complex track configurations, at higher allowable train speeds, and with additional types of rail traffic. Meanwhile, CSXT was in the process of redesigning and relocating the test bed for its Communications Based Train Management (CBTM) system, which it has tested for several years, and UP and NS were working on similar systems using vital onboard processing.
As congressional consideration of legislation that resulted in the RSIA08 commenced, all four major railroads had settled on the core technology developed for them by Wabtec Railway Electronics (“Wabtec”). As the legislation progressed, the railroads and Wabtec worked toward greater commonality in the basic functioning of the onboard system with a view toward interoperability. PTC applications of ETMS include the non-vital PTC systems of BNSF's ETMS I and ETMS II, CSXT's CBTM, UP's Vital Train Management System (VTMS), and NS's Optimized Train Control (OTC). Further work is being undertaken by BNSF to advance the capability of ETMS by integrating Amtrak operations (ETMS III). For a description of system enhancements planned by BNSF as per the Product Safety Plan filed in accordance with subpart H, see FRA Docket No. 2006-23687, Document 0017, at pp. 40-43.
While the freight railroads' efforts for developing and installing PTC systems progressed over a relatively long period of time, starting with demonstrations of ATCS and ARES in the late 1980s and culminating in the initial ETMS Product Safety Plan approval in December of 2006, Amtrak demonstrated its ability to turn on revenue-quality PTC systems on its own railroad in support of high-speed rail. Beginning in the early 1990s, Amtrak developed plans for enhanced high-speed service on the Northeast Corridor (NEC), which included electrification and other improvements between New Haven and Boston and introduction of the Acela trainsets as the premium service from Washington to New York and New York to Boston. In connection with these improvements, which support train speeds up to 150 miles per hour, Amtrak undertook to install the Advanced Civil Speed Enforcement System (ACSES) as a supplement to existing cab signals and automatic train control (speed control). Together, these systems deliver PTC core functionalities. In support of this effort, FRA issued an order for the installation of the system, which required all passenger and freight operators in the New Haven-Boston segment to equip their locomotives with ACSES.
Amtrak voluntarily began development of an architecturally different PTC system, the Incremental Train Control System (ITCS), for installation on its Michigan Line. Amtrak developed and installed ITCS under waivers from specific sections of 49 CFR part 236, subparts A through G, granted by FRA. ITCS was applied to tenant NS locomotives as well as Amtrak locomotives traversing the route. Highway-rail grade crossings on the route were fitted with ITCS units to pre-start the warning systems for high-speed trains and to monitor crossing warning system health in real time. The ITCS was tested extensively in the field for safety and reliability, and it was placed in revenue service in 2001. As experience was gained, FRA authorized increases in speed to 95 miles per hour; and FRA is presently awaiting final results of an independent assessment of verification and validation for the system with a view toward authorizing operations at the design speed of 110 miles per hour.
Despite these successes, the widespread deployment of these various train control systems, particularly on the general freight system, remained very much constrained by prohibitive capital costs. While the railroads were committed to installing these new systems to enhance the safety afforded
On May 1, 2007, H.R. 2095 was introduced in the House of Representatives, which would, among other things, mandate the implementation and use of PTC systems. The bill passed the House, as amended, on October 17, 2007. The bill was then amended and passed by the Senate on August 1, 2008. While the bill was awaiting final passage, the FRA Administrator testified before Congress that “FRA is a strong supporter of PTC technology and is an active advocate for its continued development and deployment.” Senate Commerce Committee Briefing on Metrolink Accident, 110th Cong. (Sept. 23, 2008) (written statement of Federal Railroad Administrator Joseph H. Boardman),
On September 24, 2008, the House concurred with the Senate amendment and added another amendment pursuant to H. Res. 1492. When considering the House's amendment, various Senators made statements referencing certain train accidents that were believed to be PTC-preventable. For instance, Senator Lautenberg (NJ) took notice of the collision at Graniteville, South Carolina, in 2005, and Senators Lautenberg, Hutchinson (TX), Boxer (CA), Levin (MI), and Carper (DE) took notice of an accident at Chatsworth, California, on September 12, 2008. According to Senator Levin, federal investigators have said that a collision warning system could have prevented that crash and the subject legislation would require that new technology to prevent crashes be installed in high risk tracks. Senators Carper and Boxer made similar statements, indicating that PTC systems are designed to prevent train derailments and collisions, like the one in Chatsworth. 154 Cong. Rec. S10283-S10290 (2008). Ultimately, on October 1, 2008, the Senate concurred with the House amendment.
The Graniteville accident referenced by Senator Lautenberg occurred in the early morning hours of January 6, 2005, when a northbound NS freight train, operating within non-signaled (dark) territory, encountered an improperly lined switch that diverted the train from the main line onto an industry track, where it struck the locomotive of an unoccupied, parked train. The collision derailed both locomotives and 16 of the 42 freight cars of the moving train, as well as the locomotive and 1 of the 2 cars of the parked train. Among the derailed cars from the moving train were three tank cars containing chlorine, one of which was breached, releasing about 60 tons of chlorine gas. The train engineer and eight other people died as a result of chlorine gas inhalation. About 554 people complaining of respiratory difficulties were taken to local hospitals. Of these, 75 were admitted for treatment. Because of the chlorine release, about 5,400 people within a 1-mile radius of the derailment site were evacuated for almost 2 weeks.
The Chatsworth train collision occurred on the afternoon of September 12, 2008, when a UP freight train and a Metrolink commuter train collided head-on on a single main track equipped with a Traffic Control System (TCS) in the Chatsworth district of Los Angeles, California. Although NTSB has not yet released its final report, evidence summarized at the NTSB's public hearing suggested that the Metrolink passenger train was being operated on the main track past an absolute signal at a control point displaying a stop indication, when it trailed through a power-operated switch lined against its movement, and entered a section of single track where the opposing UP freight train was operating on a permissive signal indication. The UP train was lined to enter the siding at the control point, after which the switch would have been lined for the Metrolink train to proceed. As a consequence of the accident, 25 people died and over 130 more were seriously injured.
Prior to the accidents in Graniteville and Chatsworth, the railroads' slow incremental deployment of PTC technologies—while not uniformly agreed upon by the railroads, FRA, and NTSB—was generally deemed acceptable by them in view of the tremendous costs involved. Partially as a consequence and severity of these very public accidents, coupled with a series of other less publicized accidents, Congress passed the RSIA08 and it was signed into law by the president on October 16, 2008, marking a public policy decision that, despite the implementation costs, railroad employee and general public safety warranted mandatory and accelerated installation and operation of PTC systems.
As immediately relevant to this rulemaking, the RSIA08 requires the installation and operation of PTC systems on all rail main lines, meaning all intercity and commuter lines—with limited exceptions entrusted to FRA—and on freight-only rail lines when they are part of a Class I railroad system, carrying at least 5 million gross tons of freight annually, and carrying any amount of poison- or toxic-by-inhalation (PIH or TIH) materials. While the statute vests certain responsibilities with the Secretary of the U.S. Department of Transportation, the Secretary has since delegated those responsibilities to the FRA Administrator.
In the RSIA08, Congress established very aggressive dates for PTC system build-out completion. Each subject railroad is required to submit to FRA by April 16, 2010, a PTC Implementation Plan (PTCIP) indicating where and how it intends to install PTC systems by December 31, 2015.
In light of the timetable instituted by Congress, and to better support railroads with their installation while maintaining safety, FRA decided that it is appropriate for mandatory PTC systems to be reviewed by FRA differently than the regulatory approval process provided under subpart H. FRA believes that it is important to develop a process more suited specifically for PTC systems that would better facilitate railroad reuse of safety documentation and simplify the process of showing that the installation of the intended PTC system did not degrade safety. FRA also believes that subpart H does not clearly address the statutory mandates and that such lack of clarity would complicate railroad efforts to comply with the new statutory requirements. Accordingly, FRA hereby amends part 236 by modifying existing subpart H and adding a new subpart I.
In March 1996, FRA established the RSAC, which provides a forum for collaborative rulemaking and program development. The RSAC includes representatives from all of the agency's major stakeholder groups, including railroads, labor organizations, suppliers and manufacturers, other government agencies, and other interested parties. When appropriate, FRA assigns a task to the RSAC, and after consideration and debate, the RSAC may accept or reject
In developing the proposed rule in this proceeding, FRA adopted the RSAC approach by re-convening the PTC Working Group that had produced the rule recommendation resulting in subpart H. As part of this effort, FRA worked with the major stakeholders affected by this rulemaking in collaborative a manner as possible. FRA believes establishing a collaborative relationship early in the product development and regulatory development cycles can help bridge the divide between the railroad carrier's management, railroad labor organizations, the suppliers, and FRA by ensuring that all stakeholders are working with the same set of data and have a common understanding of product characteristics and functionality or their related processes production methods, including the regulatory provisions, with which compliance is mandatory. However, where the group failed to reach consensus on an issue, FRA used its authority to resolve the issue, attempting to reconcile as many of the divergent positions as possible through traditional rulemaking proceedings.
On December 10, 2008, the RSAC accepted a task (No. 08-04) entitled “Implementation of Positive Train Control Systems.” The purpose of this task was defined as follows: “To provide advice regarding development of implementing regulations for Positive Train Control (PTC) systems and their deployment under the Rail Safety Improvement Act of 2008.” The task called for the RSAC PTC Working Group to perform the following:
• Review the mandates and objectives of the Act related to deployment of PTC systems;
• Help to describe the specific functional attributes of systems meeting the statutory purposes in light of available technology;
• Review impacts on small entities and ascertain how best to address them in harmony with the statutory requirements;
• Help to describe the details that should be included in the implementation plans that railroads must file within 18 months of enactment of the Act;
• Offer recommendations on the specific content of implementing regulations; and
The task also required the PTC Working Group to:
• Report on the functionalities of PTC systems;
• Describe the essential elements bearing on interoperability and the requirements for consultation with other railroads in joint operations; and
• Determine how PTC systems will work with the operation of non-equipped trains.
The PTC Working Group was formed from interested organizations that are members of the RSAC. The following organizations contributed members:
*Indicates associate (non-voting) member.
From January to April 2009, FRA met with the entire PTC Working Group 5 times over the course of 12 days. During those meetings, in order to efficiently accomplish the tasks assigned to it, the PTC Working Group empowered three task forces to work concurrently. These task forces were the passenger, short line and regional railroad, and the radio and communications task forces. Each discussed issues specific to its particular interests and needs and produced proposed rule language for the PTC Working Group's consideration. The majority of the proposals were adopted into the proposed rule as agreed upon by the working group, with rule language related to a remaining few issues being further discussed and enhanced for inclusion into the rule by the PTC Working Group.
The passenger task force discussed testing issues relating to parts 236 and 238 and the definition of “main line” under the statute, including possible passenger terminal and limited operations exceptions to PTC implementation. Recommendations of the task force were presented to the PTC Working Group, which adopted or refined each suggestion.
The short line and regional railroad task force was formed to address the questions pertaining to Class II and Class III railroads. Specifically, the group discussed issues regarding the trackage rights of Class II and III railroads using trains not equipped with PTC technology over a Class I railroad's PTC territory, passenger service over track owned by a Class II or Class III railroads where PTC would not otherwise be required, and rail-to-rail crossings-at-grade involving a Class I railroad's PTC equipped line and a Class II or III railroad's PTC unequipped line. After much discussion, there were no consensus resolutions reached to any of the main issues raised. However, the discussion yielded insights utilized by FRA in preparing this final rule.
The radio and communications task force addressed wireless communications issues, particularly as they relate to communications security, and recommended language for § 236.1033.
FRA staff worked with the PTC Working Group and its task forces in
In general, the PTC Working Group agreed on the process for implementing PTC under the statute, including decisional criteria to be applied by FRA in evaluating safety plans, adaptation of subpart H principles to support this mandatory implementation, and refinements to subpart H and the part 236 appendices necessary to dovetail the two regulatory regimes and take lessons from early implementation of subpart H, including most aspects of the training requirements. Notable accords were reached, as well, on major functionalities of PTC and on exceptions applicable to passenger service (terminal areas and limited main line exceptions). Major areas of disagreement included whether to allow non-equipped trains on PTC lines, extension of PTC to lines not within the statutory mandate, and whether to provide for onboard displays or terminals visible and accessible to employees other than the locomotive engineer when two or more persons are regularly assigned duties in the cab. Some additional areas of concern were discussed but could not be resolved in the time available. It was understood that where discussion did not yield agreement, FRA would make proposals within a Notice of Proposed Rulemaking (NPRM) and receive public comment.
FRA issued an NPRM on July 21, 2009, and accepted comments on this proposed regulation until August 20, 2009. A public hearing was also held in connection with the NPRM in Washington, DC, on August 13, 2009, as further described below.
During the comment period, a number of entities filed comments requesting that FRA extend the comment period to the proposed rule in this proceeding. FRA regrettably denied those requests due to the urgent need to prepare, process, and publish a final rule at the earliest possible date. Since railroads subject to the rules are each required to file a PTCIP by April 16, 2010, under the terms of the RSIA08, it was important that FRA provide reliable guidance for this process to occur in a timely manner. However, FRA responded to two of those requests on the record, indicating that it is FRA's policy to consider late-filed comments to the extent practicable and inviting the railroads to supplement their comments as soon as possible even if it is necessary to file after the formal comment period has closed.
On August 13, 2009, FRA held a hearing to provide interested parties an opportunity to enter oral statements into the record. The AAR, Amtrak, BNSF, and CSXT entered prepared statements into the record and UP and NS indicated their concurrence with those statements. An oral statement was also entered into the record by a representative of six (6) rail labor organizations, including the American Train Dispatchers Association (ATDA), BLET, BMWED, BRS, IBEW, and UTU (collectively, the “Rail Labor Organizations” or “RLO”). AASHTO also provided an oral statement at the hearing, indicating that it fully supports the implementation of the proposed rule. Copies of the prepared statements and of the hearing transcript can be found in the docket to this proceeding.
Subsequently, written comments were filed by the American Shortline and Regional Railroad Association (ASLRRA), Amtrak, APTA, ACC, AAR, BNSF, Caltrain, Canadian Pacific (CP), The Chlorine Institute (CI), CSXT, Friends of the Earth, GE Transportation (GE), HCRQ, Inc. and Cattron Group International (collectively, “HCRQ/CGI”), Invensys Rail Group—Safetran Systems (“Safetran”), NTSB, New York State Metropolitan Transportation Authority (NYSMTA), NJ Transit, Northern Indiana Commuter Transportation District (NICTD), Pacific Southwest Railway Museum, RLO, Railroad Passenger Car Alliance, San Bernardino Railway Historical Society, Southern California Regional Rail Authority (SCRRA or Metrolink), The Fertilizer Institute (TFI), Tourist Railway Association, Trinity Railway Express (TRE or Trinity), Utah Transit Authority (UTA) and a number of individuals.
After the comment period closed on August 20, 2009, the RSAC PTC Working Group was reconvened for 3 days. The PTC Working Group agreed on a number of recommendations for resolution of comments which were presented to the full RSAC on September 10. In voting by mail ballot that concluded on September 24, the RSAC adopted the recommendations, which are discussed below in the context of the specific issues that they address.
In broad summary, the proposed rule provided for joint filing of PTCIPs by all railroads engaged in joint operations. Each PTCIP was to be accompanied or preceded by a PTC Development Plan (PTCDP) or PTC Safety Plan (PTCSP) detailing the technology to be employed, or by a Type Approval obtained by another railroad through approval of a PTCDP. As further discussed below, this overall structure was generally embraced by the industry parties and the commenters; but the extended period for delivery of interoperability standards has given rise to the need for some significant adjustments that are included in the final rule.
Under the NPRM language, Class I freight railroads would be required to describe in their PTCIPs the routes to be equipped based on traffic densities (lines carrying more than 5 million gross tons) and presence of PIH traffic during calendar year 2008. They would be permitted to amend those plans if FRA found that removal of a line was “consistent with safety and in the public interest.” The discussion below reflects the serious objections of the Class I railroads to this “base year” approach and adjustments that FRA makes in this final rule to provide somewhat greater flexibility on the face of the regulation. The discussion and final rule also provide FRA's response to a suggestion by the AAR that FRA create a
FRA proposed to adapt the performance-based structure of subpart H, which had been developed through the consensus process to encourage deployment of PTC and related technologies to provide a means of qualifying PTC systems under the RSIA08. In order to promote completion of PTC deployment by the end of 2015, as required by law, FRA proposed functional requirements that could be met by available technology. These provisions continue to enjoy broad support from the industry parties and commenters, but the final rule makes numerous perfecting changes to the implementing language in response to specific comments.
The NPRM set forth requirements for equipping of trains with PTC that reflected FRA's perception of practical considerations (e.g., not all locomotives can be equipped at once, and switching out locomotives to commit them to
Relying on existing train control requirements, the NPRM proposed that each assigned crew member be able to view the PTC display and perform assigned functions from their normal position in the cab. The NPRM also addressed the need to avoid task overload on the locomotive engineer by having that person perform functions that could distract from attention to current safety duties. FRA has considered the Class I railroads' argument that, if a single display was acceptable under subpart H, it should be acceptable under the proposed subpart I. Although FRA has considered carefully the carriers' arguments on this point, the final rule carries forward principles of crew resource management by ensuring that each crew member has the information and ability to perform their assigned function and, therefore, where a PTC overlay system is used, that all of the safety features of the underlying operation to which PTC is added will be kept.
One of the critical choices assigned to FRA under the law was specification of any exceptions to passenger “main track” requiring installation of PTC. The NPRM carried forward narrow exceptions crafted at the request of commuter and intercity railroads. Amtrak followed with comments on the NPRM asking for a broader exception. They noted in particular that the incremental costs of PTC on some lines with limited freight traffic and relatively few Amtrak trains might need to be borne by states that support particular services, and the funding might not be available to do so. Following recommendations from the RSAC Working Group, FRA is including additional latitude to bring forward specific exceptions for FRA review and approval, with or without conditions.
The NPRM was technology neutral and directed at the outcomes desired. A number of the comments addressed the issue of market concentration and absence of effective choices in selecting PTC technology. In this regard, some felt that FRA should specify attributes of interoperability in the form of open standards. The final rule continues to rely on safety performance as the basis for FRA certification of PTC systems. FRA declines at this time to deprive those railroads that have served as technology leaders in developing PTC systems of the latitude to implement their systems, given their apparent willingness to provide open standards for attributes of the technology over which they have control, and given the predictable delays that would ensue should alternative approaches be specified. FRA is aware that this creates a degree of reliance on others with respect to those railroads that stood back and waited for others to develop PTC technology. Further, some degree of market concentration may exist on the general freight network, in particular, given the dominance of one vendor or supplier with respect to the core of the onboard systems. FRA financially supported development of interoperability standards through the North American Positive Train Control Program (the technology selected for demonstration was not deployed, and no standards were delivered) and again through the American Railway Engineering and Maintenance Association (standards have been published and are available, but no railroad has signaled an intention to employ them). The choice of technology that will be deployed should, in FRA's view, be made by those who are making the investments.
Finally, the NPRM took a traditional approach to recognition of technology, requiring that railroads step forward, individually or with their suppliers, to request recognition of PTC systems. Suppliers commented that they should be able to step forward without railroad participation and receive recognition for systems, subsystems, and components that would later be incorporated in PTC systems approved by FRA. They noted that the NPRM would burden them with reporting obligations while not conferring status to receive direct product recognition. While recognizing the commenters' logic, FRA could not find a means in the final rule to relieve these concerns, given limited technical staffing at FRA, the potential for filings representing technology that the industry would not employ, the inherent difficulty associated with addressing the safety of technology below the system level, and the critical need to provide rapid responses to necessary filings.
Each of the comments on the NPRM, including comments not within the scope of this overview, is discussed in relation to the topic addressed in the section-by-section analysis below.
While this final rule is effective on the date indicated herein, FRA believes that certain issues warrant further discussion. Accordingly, FRA will continue to seek comments limited to increasing the clarity, certainty, and transparency of the criteria governing the removal from a PTCIP (and therefore from the requirement to install PTC) of any track segments on which PTC systems have yet to be installed for which a railroad seeks relief from the requirement to install PTC. FRA considers this issue separate and distinct from the discontinuance of any already installed or existing PTC systems, which is governed under § 236.1021, part 235 of this title, and the “Signal Inspection Act” (codified at 49 U.S.C. 20501-20505). Any further comments should be limited to the scope of the issues indicated in this preamble to which FRA seeks further comments.
In § 236.1005(b)(4)(i)(A)(
Section 236.1005(b)(4)(i)(A)(
In § 236.1005(b)(4)(i), the final rule provides an exception to PTC system implementation where such implementation would provide only a
As further explained below, this final rule uses 2008 traffic data as an initial baseline in each PTCIP to determine the breadth and scope of PTC system implementation and, in recognition of the fact that traffic patterns are likely to change to some degree before December 31, 2015, provides means of adjusting the track segments on which PTC must be installed where adjustments are appropriately justified. These issues relate to the potential scaling back of the breadth and scope of that baseline through the request by the railroads—made contemporaneously or subsequently to PTCIP submission and prior to actual PTC system implementation—on the subject track segments for FRA to apply certain regulatory exceptions. Under the procedures set forth in this final rule, requests for such amendments may be made after PTCIP submission. Since these issues should not affect the PTCIP required to be filed by the April 16, 2010, statutory deadline, FRA believes that time is available for some further consideration.
Unless otherwise noted, all section references below refer to sections in title 49 of the Code of Federal Regulations (CFR). FRA sought comments on all proposals made in the NPRM. This portion of the preamble discusses the comments received, FRA's assessment of those comments, and the basis for the final rule provisions. Any analysis in the NPRM that is not explicitly modified in this final rule remains applicable.
The proposed amendment to the existing event recorder section of the Locomotive Safety Standards is intended to make that section parallel to the additions in § 236.1005(d) below. No comments were received, and the section is adopted as proposed.
Section 234.275 presently requires that each processor-based system, subsystem, or component used for active warning at highway-rail grade crossings that is new or novel technology, or that provides safety-critical data to a railroad signal or train control system which is qualified using the subpart H process, shall also be governed by those requirements, including approval of a Product Safety Plan. Particularly with respect to high-speed rail, FRA anticipates that PTC systems will in some cases incorporate new or novel technology to provide for crossing warning system pre-starts (eliminating the necessity of lengthening the approach circuits for high-speed trains), to verify crossing system health between the wayside warning system and approaching trains, or to slow trains approaching locations where vehicle storage has been detected on a crossing, among other options. Indeed, each of these functions is presently incorporated in at least one train control system, and others may one day be feasible (including in-vehicle warning). There would appear to be no reason why such a functionality intended for inclusion in a PTC system mandated by subpart I could not be qualified with the rest of the PTC system under subpart I. On the other hand, care should be taken to set an appropriate safety standard taking into consideration highway users, occupants of the high-speed trains, and others potentially affected.
In fact, with new emphasis on high-speed rail, FRA needs to consider the ability of PTC systems to integrate this type of new technology and thereby reduce risk associated with high-speed rail service. Risk includes derailment of a high-speed train with catastrophic consequences after encountering an obstacle at a highway-rail grade crossing. To avoid such consequences, as many crossings as possible should be eliminated. To that end, 49 CFR 213.347 requires a warning and barrier plan to be approved for Class 7 track (speeds above 110 miles per hour) and prohibits grade crossings on Class 8 and 9 track (above 125 miles per hour). That leaves significant exposure on Class 5 and 6 track (80 miles per hour for freight and 90 miles per hour for passenger trains, up to 110 miles per hour for either) which is currently not specifically addressed by regulation.
At the public hearing in this proceeding, the RLO indicated its agreement with FRA's interpretation of 49 CFR 213.347 and stated that significant exposure remains at highway-rail grade crossings for Class 5 and 6 track, because “such plans or prohibitions are not currently addressed by Federal Regulation.” In addition to the proposed amendments to § 234.275, however, the RLO believes that PTC systems should also be mandated under subpart I to incorporate technology that would verify a highway-rail grade crossing warning system's activation for an approaching train and slow a train approaching a location where such system activation could not be verified. The RLO believes that such verification and speed restriction enforcement would significantly lower the exposure for a potential collision between a highway motor vehicle and a train. According to the RLO, this function is currently incorporated into at least one deployed train control system and is therefore feasible. In addition, the RLO propose that certain existing highway-rail grade crossing warning system regulations and requirements, including those in parts 213 and 234, and in subpart H to part 236, could be cross referenced or included in subpart I to ensure regulatory harmony.
While AAR understands the safety concern, it asserts that this function is not related to the core PTC functions mandated by Congress. Furthermore, asserts AAR, the cost of installing wayside interface units at grade crossings on PTC routes would be prohibitively expensive and would divert resources that would otherwise be devoted to meeting the mandated PTC deadline.
The NTSB recommends that the warning and barrier protection plans similar to those for Class 7 track at grade crossings in 49 CFR 213.347 should also apply to Class 5 and 6 tracks. According to the NTSB, such protection at crossings (similar to protection at crossings afforded within the ITCS project) should be integrated as part of an approved PTC plan to reduce the risk
FRA, while certainly recognizing these concerns, does not choose to provide further prescriptive requirements for highway-rail grade crossings beyond those set forth in § 213.347. FRA will, however, require that highway-rail grade crossing safety at Class 5 and 6 track speeds be specifically addressed within a railroad's PTCDP and PTCSP (
FRA amends § 235.7, which allows specified changes within existing signal or train control systems be made without the necessity of filing an application. The amendments consist of adding allowance for a railroad to remove an intermittent automatic train stop system in conjunction with the implementation of a PTC system approved under subpart I of part 236, and a couple of minor editorial corrections.
The changes allowable under this section, without filing of an application, are those identified on the basis that the resultant condition will be at least no less safe than the previous condition. The required functions of PTC within subpart I provide a considerably higher level of functionality related to both alerting and enforcing necessary operating limitations than an intermediate automatic train stop system does. Additionally, in the event of the loss of PTC functionality (
The AAR submitted comment that within § 236.1021, paragraphs (j)(2) and (j)(3) should be revised to recognize the allowance for removal of a signal used in lieu of an electric or mechanical lock in the same manner as removal of the electric or mechanical lock. These two paragraphs are intended to recognize that where train speed over the switch does not exceed 20 miles per hour, or where trains are not permitted to clear the main track at such switch, removal of the devices intended to provide the necessary protection without filing for approval is appropriate.
The regulation requiring the installation of an electric or mechanical lock identifies the allowance for a signal used in lieu thereof (
For the same reasoning and in a consistent manner, FRA is amending paragraphs (b)(2) and (b)(3) in existing § 235.7 in order to provide the same allowances for removal of a signal used in lieu of an electric or mechanical lock within block signal systems without filing for approval.
FRA amends this existing section of the regulation to remove manual block from the methods of operation permitting speeds of 50 miles per hour or greater for freight trains and 60 miles per hour or greater for passenger trains. Manual block rules create a reasonably secure means of preventing train collisions. However, where the attributes of block signal systems are not present, misaligned switches, broken rails, or fouling equipment may cause a train accident. FRA believes that contemporary expectations for safe operations require this adjustment, which also provides a more orderly foundation for the application of PTC to the subject territories. There were no objections in the PTC Working Group to this change and the NTSB supports the removal of manual block from a method of operation permitting train speeds of above 49 and 59 miles per hour for freight and passenger trains, respectively. According to the NTSB, manual block does not afford the level of safety that block signal or PTC systems provide for the detection of misaligned switches, broken rails, or fouling equipment that may cause a train accident.
After review of the NPRM, AAR stated that paragraph (c)(1)(ii)(A) seemed to preclude the operations identified in paragraph (c)(1)(ii)(B) and that it was unclear whether paragraph (c)(1)(ii)(A) applies to opposing trains or some other condition. Therefore, the AAR recommended that paragraphs (c)(1)(ii)(A) and (c)(1)(ii)(B) be revised. FRA agrees and has therefore revised paragraphs (c)(1)(ii)(A) and (c)(1)(ii)(B), and added paragraphs (c)(1)(ii)(C) and (c)(1)(ii)(D), in the final rule to improve clarity.
FRA has also added paragraph (d)(2) in the final rule to address the use of automatic cab signal, automatic train stop, or automatic train control systems on or after December 31, 2015. On or after December 31, 2015, the method of protecting high-speed train operations will be through the use of PTC. FRA recognizes that there may be justifiable reasons for continued use of automatic cab signal, automatic train stop, or automatic train control systems on or after December 31, 2015 on certain lines, where the installation of PTC would be inappropriate. In situations where the automatic cab signal, automatic train stop, or automatic train control systems are an integral part of the PTC system design, no action will be required by a railroad. In any other situation, however, FRA will only allow continued use of an automatic cab signal, automatic train stop, or automatic train control system on a case-by-case basis after sufficient justification has been provided to the Associate Administrator.
FRA has also added a preemption provision at the end of section 236.0. Part 236, which FRA inherited from the Interstate Commerce Commission at the time FRA was created, has had preemptive effect by operation of law at least since enactment of the Federal Railroad Safety Act of 1970 (Pub. L. 111-43). However, no preemption provision was ever added, largely as an historical accident. Since enactment of the Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Commission Act of 2007), Public Law 110-53, which amended 49 U.S.C. 20106 significantly, FRA has been updating the preemption provisions of its regulations to conform to the current statute as opportunities to do so are
The text of section 236.0(i)(1) and (2) directly reflects FRA's interpretation of 49 U.S.C. 20106, as amended. Read by itself, 49 U.S.C. 20106(a) preempts state standards of care, including common law standards,
In this manner, Congress adroitly preserved its policy of national uniformity of railroad safety regulation expressed in section 20106(a)(1) and assured plaintiffs in tort cases involving railroads, such as
In this final rule, FRA is removing the Note following paragraph (b) of this section. During FRA's review of the requirements contained in this part, FRA discovered that the Note following paragraph (b), which had previously been removed as part of FRA's 1984 amendments to this part, was inadvertently reprinted in the rule text several years later and has remained there. As reflected in the preamble discussion of the 1983 proposed rule, FRA moved the provisions for removal of electric or mechanical locks to § 235.7 based on FRA's determination that the industry was capable of achieving compliance of train operations in procedures more suitable to individual properties.
In light of the history of this section, FRA is taking the opportunity within this rulemaking to remove the Note following paragraph (b), which presents information in conflict with the allowances that have been added into §§ 235.7(b)(2) and (b)(3).
FRA is modifying paragraph (e)(1) of this section to include a requirement for the risk metric sensitivity analysis to be an integral part of the full risk assessment that is required to be provided in the Product Safety Plan (PSP) submittal in accordance with § 236.907(a)(7). Paragraph (e)(2) of this section is also being modified to eliminate an alternative option for a railroad to use a risk metric in which consequences of potential accidents are measured strictly in terms of fatalities.
Prior to the modification of this section, paragraph (e)(1) discussed how safety and risk should be measured for the full risk assessment, but did not accentuate the need for running a sensitivity analysis on chosen risk metrics to ensure that the worst case scenarios for the proposed system failures or malfunctions are accounted for in the risk assessment. On the other hand, Appendix B to this part mandates that each risk metric for the proposed product must be expressed with an upper bound, as estimated with a sensitivity analysis. The FRA's experience gained while reviewing PSP documents required by subpart H of this part and submitted to FRA for approval revealed that railroads did not consider it mandatory to run a sensitivity analysis for the chosen risk metrics. Thus, an additional effort was required from the FRA staff reviewing PSP submittals to demonstrate to the railroads the validity and significance of such a request. Therefore, this final rule amends paragraph (e)(1) to explicitly require the performance of a sensitivity analysis for the chosen risk metrics. The language in paragraph (e)(1) of this section explains why the sensitivity analysis is needed and what key input parameters must be analyzed.
FRA received comments on the proposed modification to paragraph (e)(1) of this section. While the RLO expressed support for making the risk metric sensitivity analysis an integral part of the full risk assessment, GE sought clarification and a sample regarding the proposed amendment to the clause regarding the risk assessment sensitivity analysis. GE believes that a literal interpretation of this clause would mean that the risk analysis must evaluate the risk sensitivity to variations in every individual electronic and mechanical component of the system. If so interpreted, GE asserts that the combinatorial calculations would present a significant barrier to the safety analysis and delay PTC system approval. GE further asserts that safety coverage of discrete component failures can be assured through other techniques in the overall system design. GE believes that the intent of this rule is that “component” should mean “functional subsystem,” as system safety can be completely addressed by performing the sensitivity analysis at that level. Accordingly, GE proffers that paragraph (e)(1) of this section should be modified to allow the level of detail
Similar concerns were expressed by HCRQ/CGI, which questioned the need for an additional requirement in the rule that would require the sensitivity analysis to document the sensitivity to worst case failure scenarios. In the alternative, HCRQ/CGI suggested that the final rule should require a reasonable justification for all failure rates.
In response to these comments, FRA would like to clarify that the lowest level of system elements constructing the overall system that would be subject to risk analysis and the following sensitivity analysis are “components,” “modules,” “pieces of equipment,” or “subsystems” that are processor-based in nature, the functionality and performance of which are governed by this part. FRA declines, however, to provide a sample sensitivity analysis in this rulemaking document, as the technique of sensitivity analysis has been well covered by a number of system safety engineering studies.
FRA notes that the term, “worst case failure scenario” is a subject of general theory of system safety and reliability. Therefore, it does not appear to be necessary to provide an interpretation of this term. Nonetheless, in response to comments that have been received on this issue, FRA would like to add a clarifying statement. A sensitivity analysis must be conducted by defining the range of values (i.e., lower bound, upper bound, and associated distribution) for key input parameters and assessing the impact of variations over those ranges on the overall system risk. The worst case analysis must consider realistic combinations of the key input parameters as they tend toward their worst case values. Justification must be provided for the ranges and process used in the design of the sensitivity analysis.
Another comment from HCRQ/CGI relates to the requirement that “the sensitivity analysis must confirm that the risk metrics of the system are not negatively affected by sensitivity analysis input parameters. * * *” HCRQ/CGI requested that the meaning of the phrase “negatively affected” be specified. FRA agreed to provide such an explanation and therefore offered an interpretation of the words “negatively affected” in paragraph (e)(1).
The modification to paragraph (e)(2) of this section is intended to clarify how the exposure and its consequences, as main components of the risk computation formula, must be measured. As stated in paragraph (e)(2), the exposure must be measured in train miles per year over the relevant railroad infrastructure where a proposed system is to be implemented. When determining the consequences of potential accidents, the railroad must identify the total costs involved, including those relating to fatalities, injuries, property damage, and other incidentals. This final rule eliminates the option of using an alternative risk metric, which would allow the measurement of consequences strictly in terms of fatalities. It is FRA's experience that measuring consequences of accidents strictly in term of fatalities did not serve as an adequate alternative to metrics of total cost of accidents for two main reasons. First, the statistical data on railroad accidents shows that accidents involving fatalities also cause injuries and significant damage to railroad property and infrastructure for both freight and especially passenger operations. Even though the cost of human life is often the highest component of monetary estimates of accident consequences, the dollar estimates of injuries, property losses, and damage to the environment associated with accidents involving fatalities cannot and should not be discounted in the risk analysis. Second, allowing fatalities to serve as the only risk metrics of accident consequences confused the industry and the risk assessment analysts attempting to determine the overall risk associated with the use of certain types of train control systems. As a result, some risk analysts inappropriately converted injuries and property damages for observed accidents into relative estimates of fatalities. This method cannot be considered acceptable because, while distorting the overall picture of accident consequences, it also raises questions on appropriateness of conversion coefficients. Therefore, FRA considers it appropriate to eliminate from the rule the alternative option for consequences to be measured in fatalities only. This approach gained the support of the RLO, who in their comments concur with a modification of paragraph (e)(2) that is eliminating an option of risk consequences to be measured in fatalities only.
This section describes both the purpose and the scope of subpart I. Subpart I provides performance-based regulations for the development, test, installation, and maintenance of PTC systems, and the associated personnel training requirements, that are mandated for installation by FRA. This subpart details the process and identifies the documents that railroads and operators of passenger trains are to utilize and incorporate in their PTC implementation plans. This subpart also details the process and procedure for obtaining FRA approval of such plans.
A number of railroads indicated concern with a potentially significant reprogramming of funds due to the statutorily mandated implementation of PTC systems. These railroads claim that the costs associated with PTC system implementation will lead to deferred capital improvements and maintenance elsewhere in the general railroad system, including degraded track, bridge, or drainage conditions, which may then lead to accidents. Thus, according to these railroads, the mandated PTC implementation, within an extremely aggressive timeframe, may lead to an overall reduced level of safety. FRA recognizes that the cost of PTC will be substantial. FRA does note that capital expenditures can often be financed; and the Railroad Rehabilitation and Improvement Financing (RRIF) program is one source of such financing. Other potential sources include private financing, public bond authority, and state and federal appropriations. It is the responsibility of each public and private railroad to determine appropriate funding sources to meet its needs.
Various railroads also urge FRA to not use its discretion to require more than the minimum mandated by the RSIA08. These railroads note that under FRA's economic analysis, the costs of PTC implementation outweigh its benefits by a ratio of 15 to 1. While these railroads acknowledge that these costs are mostly unavoidable due to the congressional mandate, they believe that there are ways FRA may mitigate these and other costs associated with this rule. FRA has crafted this final rule to limit the cost of implementation and to avoid further PTC development that could require additional funding and additional time. Accordingly, in the proposed and final rule, FRA indicates a willingness to approve suitable systems employing non-vital onboard processing, to recognize wayside signal logic as an appropriate means of protecting movements over switches, to recognize systems that enforce the upper limit of restricted speed as suitable collision avoidance in the case of following trains and joint authorities, to avoid any requirements for monitoring of derails off the main line in conventional speed territory, to allow for conventional arrangements at rail-to-rail crossings at-
Given that a natural language such as English contains, at any given time, a finite number of words, any comprehensive list of definitions must either be circular or leave some terms undefined. In some cases, it is not possible and indeed not necessary to state a definition. Where possible and practicable, FRA prefers to provide explicit definitions for terms and concepts rather than rely solely on a shared understanding of a term through use.
Paragraph (a) reinforces the applicability of existing definitions of subparts A through H. The definitions of subparts A through H are applicable to subpart I, unless otherwise modified by this part.
Paragraph (b) introduces definitions for a number of terms that have specific meanings within the context of subpart I. Paragraph (b) has been modified in the final rule by adding a definition for the term, “Notice of Product Intent.”
In lieu of analyzing each definition here, however, some of the delineated terms will be discussed as appropriate while analyzing other sections below.
As a general matter, however, FRA believes it is important to explain certain organizational changes required pursuant to the RSIA08. The statute establishes the position of a Chief Safety Officer within FRA. The Chief Safety Officer has been designated as the Associate Administrator for Railroad Safety. Thus, the use of the term Associate Administrator in this subpart refers to the Associate Administrator for Railroad Safety and Chief Safety Officer, or as otherwise referenced, the Associate Administrator for Railroad Safety/Chief Safety Officer.
The NPRM defined “host railroad” to mean “a railroad that has effective operating control over a segment of track.” This term is used in § 236.1005(b) to identify the party responsible for installing PTC and in § 236.1007 with respect to attributes of PTC systems for high-speed service. The host railroad is also responsible for planning and filing requirements (see, e.g., § 236.1009). In proposing this definition, FRA sought to capture in a word the essence of fundamental responsibility for the rail operation. FRA considered terms such as “track owner” (used in the Track Safety Standards), but found that the alternatives had drawbacks of one kind or another. There are places, for instance, where a non-railroad State or local government or private corporation owns the underlying fee beneath the railroad infrastructure but is not engaged in any way in managing or benefitting from the railroad (except in some cases by receiving revenue from a lease). There are also situations where multiple railroads are dispatched from a common location, either by one of the railroads or by a third party. It is increasingly the case that commuter service is provided by a public authority through multiple contractors who are responsible for discrete portions of service as agents of the sponsoring entity (e.g., equipment maintenance, track and signal maintenance, train operations, dispatching). In short, it is hard to describe, in a common way, who is responsible here; nevertheless, in any concrete case, there can be but one entity ultimately responsible.
The Southern California Regional Rail Authority submitted comments requesting that FRA provide additional clarification to what constitutes “effective operating control” as stated in the definition of the term “host railroad.” Specifically, SCRRA questioned whether FRA would consider control of dispatching as “effective operating control” even if responsibilities for the installation and maintenance of wayside devices and infrastructure are under a different party than the dispatcher. Although FRA does not find it necessary to change the definition contained in the regulation, FRA will offer clarification as to the intended meaning. As noted above, very often railroads cooperate in dispatching trains that traverse contiguous lines in order to maximize tactical planning and efficiency. Whether one railroad might dispatch another railroad's territory would not cause the dispatching railroad to take on the responsibilities of the host. Similarly, the fact that a railroad might contract with another railroad to dispatch all or a portion of its lines would not relieve the former railroad of responsibilities of the host.
In the example of SCRRA's Metrolink operations, we would expect SCRRA, which defines its route structure and timetable for passenger operations, to undertake the duties of the host for the lines for which it enjoys effective control in the sense that it has the right to determine who operates over the lines and under what conditions. In general, those are the lines it owns directly or through public authorities that cooperate in the joint powers arrangement. Lines owned and operated by BNSF or UP and over which Metrolink trains operate would be the responsibility of BNSF and UP, respectively, even if SCRRA or its contractor has day-to-day responsibility for dispatching some of them.
GE Transportation expressed concern regarding the definition and use of the term Type Approval in § 236.1003 and subsequent sections, including § 236.1031. GE Transportation notes that under the proposed rule Type Approvals apply only to complete PTC systems, although it is generally recognized in the industry that there are five core component subsystems in a PTC system configuration: (1) A locomotive onboard subsystem; (2) a dispatch center supervisory control and data acquisition (SCADA) subsystem; (3) a PTC server (central or wayside) if a server is required; (4) wayside interface units; and (5) a data communications network connecting the other subsystems. When a Type Approval is granted to a PTC system, GE Transportation suggests that core subsystems of that PTC system should be granted Component Type Approval under certain conditions. According to GE Transportation, the granting of such Component Type Approvals will drive simplified filings, faster approval, and faster deployment for new system configurations using a building block approach. In addition, states GE Transportation, it reduces the risks associated with PTC deployment by simplifying substitution of components in the event of a problem, the market for PTC system components becomes less restrictive, and the next logical step is for a supplier to be permitted to introduce a core subsystem component for approval. GE Transportation asserts that this will encourage market development and further reduce risks for PTC deployment and sustained operation.
FRA understands GE's concern. However, it appears to be based on a misunderstanding of FRA's definition of “Type Approval.” In developing the “Type Approval” concept, FRA looked to the Federal Aviation Administration (FAA) model of system approval as a basis. However, FRA modified the FAA approach to better fit FRA's regulatory mandate and resources. FRA considers the “Type Approval” to be more akin to the FAA concept of an “Airworthiness Certificate.” Under FAA rules, an airworthiness certificate is only issued
FRA has also considered GE's position that an FRA failure to issue component level approvals could restrict the development of new products. FRA notes that the current industry practice is based on vendor or supplier determination that there will be a market for a particular product. This determination may be based on a specific request from a customer, or on the vendor's or supplier's perception that there is a need for the product. While this process may consider the regulatory requirements that may be applicable to a component, it has not required FRA to issue an “approval” for any particular component. Given the number of new products that have been brought to market, FRA believes that this development model has worked very successfully. Further, the requirements of the RSIA08 require FRA to certify that the PTC system, not the PTC system components, meets the regulatory requirements. The “Type Approval” does not in any way certify a PTC system as required by statute; it only indicates to the system developer/integrator that FRA believes that the proposed system, if properly implemented, may meet the statutory requirements. FRA therefore declines, at this time, to issue component level “type approvals”.
The AAR believes that the definition of “safe state” includes conditions not necessarily applicable. According to AAR, this term may be utilized to describe the operation of a system in non-failure scenarios and, in fact, is arguably used in this fashion even within the NPRM preamble (
Some other commenters expressed the opinion that in the current definition of “safe state,” the clause “cannot cause harm” lacks specificity. FRA agrees to modify the definition of “safe state” by replacing the clause “system configuration that cannot cause harm when the system fails” with the clause “system state that, when the system fails, cannot cause death, injury, occupational illness, or damage to or loss of property, or damage to the environment.” This definition corresponds to that of the safe state definition in the U.S. Department of Defense Military Standard (MIL-STD) 882C. FRA, however, disagrees with AAR that the term “safe state” should be also applicable for the description of system state in non-failed conditions. The definition of the term “safe state” should not be confused with the term “safe operation” or “operating safely.” The term “safe state” was added in § 236.1003 strictly for the purpose of defining a “protective” state (safe state) of the system, which the system must take when it fails. At the same time, FRA admits erroneous use of the term “safe state” in the section quoted by AAR (74 FR 35,966) and amends it to read: “If a switch is misaligned, the PTC system shall provide an acceptable level of safety of train operations.”
The RSIA08 specifically requires that each PTC system be designed to prevent train-to-train collisions, overspeed derailments, incursions into established work zone limits, and the movement of a train through a switch left in the wrong position. Section 236.1005 includes the minimum statutory requirements and provides amplifying information defining the necessary PTC functions and the situations under which PTC systems must be installed. Each PTC system must be reliable and perform the functions specified in the RSIA08.
During discussions regarding available PTC technology, it has been noted that this technology also has inherent limitations with respect to prevention of certain collisions that might occur at restricted speed. In signaled territory, there are circumstances under which trains may pass red signals, other than absolute signals without verbal authority, either at restricted speed or after stopping and then proceeding at restricted speed. To avoid rear end collisions, available PTC technology does not always track the rear-end of each train, but instead relies on the signal system to indicate the appropriate action. In this example, the PTC system would display “restricted speed” to the locomotive engineer as the action required and would enforce the upper limit of restricted speed (i.e., 15 or 20 miles per hour, depending on the railroad). This means that more serious rear end collisions will be prevented, because the upper limit of restricted speed is enforced. This also means that fewer low speed rear-end collisions will occur because a continuous reminder of the required action will be displayed to the locomotive engineer (rather than the engineer relying on the aspect displayed by the last signal, which may have been passed some time ago). However, some potential for a low speed rear-end collision will remain in these cases, and the rule is clear that this limitation has been accepted. Similar exposure may occur in non-signaled territory where trains are conducting switching operations or other activities under joint authorities. The PTC system can enforce the limits of the authority and the upper limit of restricted speed, but it cannot guarantee that the trains sharing the authority will not collide. Again, however, the likelihood and average severity of any potential collisions would be greatly reduced considering such movements would be made under restricted speed. FRA may address this issue in a later modification to subpart I if necessary as technology becomes available.
FRA received comments on this discussion of the inherent limitations of available PTC technology with respect to the prevention of certain collisions that may occur at restricted speed from NYSMTA. NYSMTA sought clarification that PTC is not intended to enforce conformance of block entry speeds associated with wayside signal aspects or similar cab signal aspects provided without speed control, except when a train is operating under a wayside signal or cab signal aspect requiring a speed not to exceed restricted speed. FRA noted in the NPRM, and repeats here, that FRA recognizes that some PTC architectures will not directly enforce speed restrictions imposed by all intermediate signals. FRA does expect that the
The final rule text, however, does provide an example of a potential train-to-train collision that a PTC system should be designed to prevent. Rail-to-rail crossings-at-grade—otherwise known as diamond crossings—present a risk of side collisions. FRA recognizes that such intersecting lines may or may not require PTC system implementation and operation. Since a train operating with an unregulated PTC system cannot necessarily recognize a train not operating with a PTC system or moving on an intersecting track without a PTC system, the PTC system—no matter how intelligent—may not be able to prevent a train-to-train collision in such circumstances.
Accordingly, paragraph (a)(1)(i) requires certain protections for such rail-to-rail crossings-at-grade. While these locations are specifically referenced in paragraph (a)(1)(i), their inclusion is merely illustrative and does not necessarily preclude any other type of potential train-to-train collision. Moreover, a host railroad may have alternative arrangements to the specific protections referenced in the associated table under paragraph (a)(1)(i), which it must submit in its PTCSP—discussed in detail below—and receive a PTC System Certification associated with that PTCSP.
Rail-to-rail crossings-at-grade that have one or more PTC routes intersecting with one or more routes without a PTC system must have an interlocking signal arrangement in place developed in accordance with subparts A through G of part 236 and a PTC enforced stop on all PTC routes. FRA has also determined that the level of risk varies based upon the speeds at which the trains operate through such crossings, as well as the presence, or lack, of PTC equipped lines leading into the crossing. Accordingly, under a compromise accepted by the PTC Working Group, if the maximum speed on at least one of the intersecting tracks is more than 40 miles per hour, then the routes without a PTC system must also have either some type of positive stop enforcement or a split-point derail on each approach to the crossing and incorporated into the signal system, and a permanent maximum speed limit of 20 miles per hour. FRA expects that these protections be instituted as far in advance of the crossing as is necessary to stop the encroaching train from entering the crossing. The 40 miles per hour threshold appears to be appropriate given three factors. First, the frequency of collisions at these rail intersections is low, because typically one of the routes is favored on a regular basis and train crews expect delays until signals clear for their movement. Second, the special track structure used at these intersections, known as crossing diamonds, experiences heavy wear; and railroads tend to limit speeds over these locations to no more than 40 miles per hour. Finally, FRA recognizes that for a train on either intersecting route, elevated speed will translate into higher kinetic energy available to do damage in a collision-induced derailment. Thus, for the small number of rail crossings with one or more routes having an authorized train speed above 40 miles per hour, including higher speed passenger routes, it is particularly important that any collision be prevented. FRA believes that these more aggressive measures are required to ensure train safety in the event the engineer does not stop a train before reaching the crossing when the engineer does not have a cleared route displayed by the interlocking signal system and higher speed operations are possible on the route intersected. The split-point derail would prevent a collision in such a case by derailing the offending train onto the ground before it reaches the crossing. Should the train encounter a split-point derail as a result of the crew's failure to observe the signal indication, the slower speed at which the unequipped train is required to travel would minimize the damage to the unequipped train and the potential affect on the surrounding area.
As an alternative to split-point derails, the non-PTC line may be outfitted with some other mechanism that ensures a positive stop of the unequipped crossing train. If a PTC system or systems are installed and operated on all crossing lines, there are no speed restrictions other than those that might be enforced as part of a civil or temporary speed restriction. However, the crossing must be interlocked and the PTC system or systems must ensure that each of the crossing trains can be brought safely to a stop before reaching the crossing in the event that another train is already cleared through or occupying the crossing.
The Rail Labor Organizations shares FRA's concerns regarding diamond crossings, supporting the requirements for interlocking signal arrangements, a PTC enforced stop on PTC routes, and installation of split-point derails with a 20 miles per hour maximum authorized speed on the approach of any intersecting non-PTC route. However, the RLO believe that split-point derails should be required regardless of the PTC route's maximum speed in order to protect the PTC route against a non-equipped train passing through a stop indication and equipment inadvertently rolling out (i.e., a roll away) from the non-PTC route.
AAR and CSXT challenge the imposition of split-point derails. CSXT believes that the proposed rule merely shifts the safety risks associated with Class II and III railroads, but does not eliminate them altogether. For instance, CSXT points out that unlike a PTC-compliant system, the split-point derail would not avoid derailment altogether; rather, it would simply cause the non-PTC Class II or III train to derail away from the crossing. According to CSXT, the most comprehensive safety regime that would avoid both collisions and derailments would be to require Class II and Class III railroads operating on PTC routes also to be PTC equipped.
One commenter objected to the costs of derails being borne by PTC equipped Class I railroads. The NPRM did not purport to address who would pay this cost, but merely recited in a brief reference that the assumption had been made in the Regulatory Flexibility Analysis that the railroad installing PTC would bear the cost. FRA does not stipulate who is responsible for the cost of split-point derails at rail-to-rail crossings at-grade, as the cost will be borne in conformance with any agreements between the railroads or prior rights arising out of previous transactions under which property was acquired. FRA would have appreciated some indication of how those costs are likely to fall, but no information was provided on this point.
The commenter also proposes exploration of lower-cost alternatives in lieu of split-point derails. FRA agrees that less expensive alternatives to split-point derails at rail-to-rail crossings at-grade can and should be proposed in a railroad's PTCIP or PTCDP. As FRA stated in the preamble discussion of paragraph (a)(1)(i) in the proposed rule, “the non-PTC line may be outfitted with some other mechanism that ensures a positive stop of the unequipped * * * train.” (74 FR 35,950, 35,960). FRA expects, however, that any alternative to the split-point derail will provide the same level of separation as that afforded by the installation of the split-point derail.
CSXT submitted comments stating that the installation of split-point derails would create a new danger, including a secondary collision. However, FRA believes that these aggressive measures at locations where train speeds exceed 40 miles per hour through rail-to-rail crossings at-grade, where not all routes
FRA has also considered the comments of the RLO that more secure arrangements should be provided at each rail-to-rail crossing-at-grade, regardless of speed. FRA believes that where the PTC-equipped and non-PTC-equipped lines of the Class I railroads intersect, the railroads will generally utilize the available PTC technology to ensure a positive stop short of the crossing for any train required to stop short of the interlocking. The WIU at the location and available onboard capability supported by a radio data link should make this an obvious solution. FRA will scrutinize Class I PTCDPs to ensure that this is the case. FRA remains concerned that more aggressive solutions for intersections with Class II and III lines could impose substantial costs without returning significant benefits.
For instance, in the Chicago region, two serious train accidents occurred on the same Metra commuter line when locomotive engineers operated trains at more than 60 miles per hour while traversing between tracks using crossovers, which were designed to be safely traversed at 10 miles per hour. For illustrative purposes, the rule text makes clear that such derailments may be related to railroad civil engineering speed restrictions, slow orders, and excessive speeds over switches and through turnouts and that these types of speed restrictions are to be enforced by the system.
The UTA and APTA each submitted the same basic comment pertaining to paragraph (a)(1)(ii), with which SCRRA concurred. They contend that speed restrictions are often set at a speed that is far below a speed that would cause a derailment. Therefore, they request that a PTC system should allow or display a speed higher than the actual speed restriction, but well short of a speed that may cause a derailment.
The RLO submitted a comment that, while the language “prevent overspeed derailments” accurately reflects the language found in the RSIA08, this paragraph misses the congressional intent of the statute and appears to be unenforceable unless a derailment occurs in conjunction with a PTC system that fails to enforce an overspeed event. The RLO believe that FRA should amend this paragraph to establish that it will be a violation of this section if the PTC system fails to enforce an overspeed condition that is not corrected by the locomotive engineer regardless of whether or not such overspeed results in a derailment. Since most overspeed occurrences do not result in a derailment, the RLO asserts that waiting for a derailment to happen before declaring that the PTC system is not operating as intended is contrary to the purpose of the law.
FRA intends and believes that the PTC core feature concerning “overspeed derailments” is such that the system shall enforce various speed restrictions (i.e., civil speed restrictions, temporary slow orders, excessive speeds over switches and through turnouts and crossovers, etc.) regardless of whether a derailment actually occurs. However, FRA elects to leave the rule text of paragraph (a)(1)(ii) as it was written in the proposed rule. FRA is aware of various train control systems that have a tolerance of 3 miles per hour before the system displays a warning to the train operator and that apply a penalty brake application when the train reaches a speed 5 miles per hour above the posted speed restriction. Appropriate speed margins or leeways associated with maximum authorized speed are expected, but they must be presented, justified, and approved within the context of a railroad's PTCDP and PTCSP.
As a way to achieve this technological functionality, FRA's Office of Railroad Development has funded the development of a Roadway Worker Employee in Charge (EIC) Portable Terminal that allows the EIC to control the entry of trains into the work zone. While no rule includes the commonly used term EIC, FRA recognizes that it is the equivalent to the term “Roadway Worker In Charge” as used in part 214. With the portable terminal, the EIC can directly control the entry of trains into the work zone and restrict the speed of the train through the work zone. If the EIC does not grant authority for the train to enter the work zone, the train is forced to a stop by the PTC system prior to violating the work zone authority limits. If the EIC authorizes entry of the train into the work zone, the EIC may establish a maximum operating speed for the train consistent with the safety of the roadway work employees. This speed is then enforced on the train authorized to enter and pass through the work zone. The technology is significantly less complex than the technology associated with dispatching systems and the PTC onboard system. In view of this, FRA strongly encourages deployment of such portable terminals as opposed to current methods that only require the locomotive engineer to, in some manner, “acknowledge” his or her
Pending the adoption of more secure technology, such as the EIC Portable Terminal, FRA will scrutinize each submitted PTCDP and PTCSP to determine whether they leave any opportunity for single point human failure in the enforcement of work zone limits. FRA again notes that some methods in the past have allowed the locomotive engineer to simply acknowledge a work zone warning, even if inappropriately, after which the train could proceed into the work zone. FRA expects that more secure procedures will be included in safety plans submitted under subpart I.
The RLO submitted a comment that, in order for a PTC system to effectively perform the core function of protecting roadway workers operating within the limits of their authority, the PTC system must be designed in a manner that prevents override of an enforced stop prior to entering an established work zone through simple acknowledgement of the existence of work zone limits by a member of the train crew (i.e., by pressing a soft key on the onboard display, even if in error). The RLO expressed support for FRA's intention to closely scrutinize each PTCSP to determine whether they leave any opportunity for a single point human failure in the enforcement of work limits. The RLO strongly encouraged FRA to withhold approval of any PTC system that does not enforce a positive stop at the entrance to established work zones until notified directly by the dispatcher or the roadway worker in charge, with verification from the other, that the movement into the work zone has been authorized by the roadway worker in charge.
FRA agrees with the concern expressed by the RLO on this issue. However, in the spirit of staying strictly within the mandate of the RSIA08 relating to required PTC functionality, FRA will require that the actual method of enforcement and acknowledgement associated with work zones be presented within the PTCDP and PTCSP and subject to FRA approval. FRA continues to strongly encourage use of EIC portable terminals with electronic handshake of acknowledgement and authorizations to enter work zones.
In numerous paragraphs, the final rule requires various operating requirements based primarily on signal indications. Generally, these indications are communicated to the engineer, who would then be expected to operate the train in accordance with the indications and authorities provided. However, a technology that receives the same information does not necessarily have the wherewithal to respond unless it is programmed to do so. Thus, paragraph (a)(2) requires PTC systems implemented under subpart I to obey and enforce all such indications and authorities provided by these safety-critical underlying systems. The integration of the delivery of the indication or authority with the PTC system's response to those communications must be described and justified in the PTCDP—further described below—and the PTCSP, as applicable, and then must comply with those descriptions and justifications. Again, FRA recognizes that in the case of intermediate signals, this may not involve direct enforcement of the signal indication.
APTA submitted a comment that the draft language of paragraph (a)(2) appears to disallow systems such as moving block overlays that may provide superior service. Since APTA does not believe this was the intent of the provision, APTA suggests that FRA clarify the language in this paragraph.
Paragraph (a)(2) is clear that the specified functions must be performed “except as justified” in the PTCDP or PTCSP. Here, FRA specifically intends to afford a means by which advanced systems permitting moving block operations could be qualified, either as stand-alone systems or as overlays integrated with the existing signal and train control arrangements.
The PTC Working Group had extensive discussions concerning the monitoring of main line switches and came to the following general conclusions:
First, signal systems do a good job of monitoring switch position, and enforcement of restrictions imposed in accordance with the signal system is the best approach within signaled territory (main track and controlled sidings). As a general rule, the enforcement required for crossovers, junctions, and entry into and departure from controlled sidings will be a positive stop, and the enforcement provided for other switches (providing access to industry tracks and non-signaled sidings and auxiliary tracks) will be display and enforcement of the upper limit of restricted speed. National Transportation Safety Board representatives were asked to evaluate whether this strategy meets the needs of safety from their perspective. The NTSB returned with a list of accidents caused by misaligned switches that it had investigated in recent years, none of which was in signaled territory. Based on that data, the NTSB staff decided that it was not necessary to monitor individual switches in signaled territory.
In a filing to this proceeding, the NTSB indicated that switch monitoring in both dark and signaled territories must demonstrate that a train will be stopped before crossing through a misaligned switch. Although the NTSB recognizes that signal systems currently provide information about switch positions, it asserts that FRA must ensure that any PTC system that uses the signal system to monitor switch positions will provide adequate safeguards to prevent trains from being routed through misaligned switches. Accordingly, the NTSB agreed with FRA's decision to protect switches within sidings with speed limits greater than 20 miles per hour to prevent switch misalignment accidents.
Second, switch monitoring functions of contemporary PTC systems provide an excellent approach to addressing this requirement in dark territory. However, it is important to ensure that switch position is determined with the same degree of integrity that one would expect within a signaling system (e.g., fail-safe point detection, proper verification of adjustment). The PTC Working Group puzzled over sidings in dark territory and how to handle the requirement for switch monitoring in connection with those situations. (While these are not “controlled” sidings, as such, they will often be mapped so that train movements into and out of the sidings are appropriately constrained.) At the final PTC Working Group meeting, a proposal was accepted that would treat a siding as part of the main line track structure requiring monitoring of each switch off of the siding if the siding is non-signaled and the authorized train speed within the siding exceeds 20 miles per hour. This issue is more fully discussed below.
In addition to the general performance standards required under paragraphs (a)(1)-(3), paragraph (a)(4) contains more detailed standards relating to the situations paragraphs (a)(1)-(3) intend to prevent. Paragraph (a)(4) defines specific situations where FRA has determined that specific warning and enforcement measures are necessary to provide for the safety of train operations, their crews, and the public and to accomplish the goals of the PTC system's essential core functions. Under paragraph (a)(4)(i), FRA intends to prevent unintended movements onto PTC main lines and possible collisions at switches by ensuring proper integration and enforcement of the PTC system as it relates to derails and switches protecting access to the main line.
Paragraph (a)(4)(ii) intends to account for operating restrictions associated with a highway-rail grade crossing active warning system that is in a reduced or non-operative state and unable to provide the required warning for the motoring public. In this situation, the PTC system must provide positive protection and enforcement related to the operational restrictions of alternative warning that are issued to the crew of any train operating over such crossing in accordance with part 234. Paragraph (a)(4)(iii) concerns the movement of a PTC operated train in conjunction with the issuance of an after arrival mandatory directive. While FRA recognizes that the use of after arrival mandatory directives poses a risk that the train crew will misidentify one or more trains and proceed prematurely, PTC provides a means to intervene should that occur. Further, such directives may sometimes be considered operationally useful. Accordingly, FRA fully expects that the PTC system will prevent collisions between the receiving trains and the approaching train or trains.
Numerous comments were received related to PTC system functional requirements associated with highway-rail grade crossing active warning systems. At the public hearing, the RLO asserted that the use of technologies providing warning system pre-starts, activation verification, and various health monitoring information related to the warning system to approaching trains needs to be a required component of the PTC system warning and enforcement functionalities where warranted. AASHTO submitted comments expressing agreement that inclusion of hazard warning detection in PTC systems for highway-rail grade crossing warning systems is a significant enhancement to mitigate potential risk. AASHTO also underlined its position of enhancing grade crossing safety further by implementation of a program to fully eliminate at-grade highway-rail crossings through consolidation and grade separation wherever possible.
Some commenters expressed various logistic concerns with the proposed rule language relating to operational restrictions issued in response to a warning system malfunction as required by §§ 234.105, 236.106, and 236.107 of this part. Other commenters asserted that any PTC system functional requirements related to highway-rail grade crossing warning systems fall entirely outside the scope of the statutory mandate contained within the RSIA08 and therefore should not be addressed in this rulemaking.
The AAR stated that, while they understand the safety concern, this function is not even remotely related to the “core” PTC functions mandated by Congress. Furthermore, the AAR asserts that the great cost of installing wayside interface units at grade crossings on PTC routes would be prohibitively expensive and would divert resources that would otherwise be devoted to meeting the mandated PTC deadline.
NJ Transit stated that the RSIA08 does not indicate a requirement for highway-rail grade crossing inclusion in the PTC system speed and stop enforcement. Thus, the requirement contained in paragraph (a)(4)(ii) to include warning and enforcement functionality simply adds an additional effort to an already extremely aggressive December 31, 2015, mandate for PTC.
APTA and SCRRA stated that the requirements contained in proposed paragraph (a)(4)(ii) were unclear. APTA and SCRRA recommended that FRA should clarify that the language in paragraph (a)(4)(ii) is intended solely to provide that a dispatcher can place a restriction on a crossing that the PTC system must enforce in the event that a malfunction is reported. However, according to APTA, paragraph (a)(4)(ii) should not be read to require a PTC system to protect a grade crossing and restrict or prevent a movement authority of a train from being advanced across the crossing in the event of a failure being detected in real time; nor should paragraph (a)(4)(ii) be interpreted to require a grade crossing warning system to self-monitor and, if in a degraded condition, impose a speed restriction or stop for an approaching train.
NYSMTA states that the addition of highway-rail grade crossings to this subpart falls outside the statutory mandate for PTC systems within the RSIA08. This additional functionality presents an additional burden for LIRR and Metro-North. Both railroads have hundreds of grade crossings in their rail networks. NYSMTA further asserted that the language in paragraph (a)(4)(ii) was ambiguous with respect to whether “warning or enforcement” of reported grade crossing failures would be required, and what constitutes a “warning.” Required enforcement will increase the capital cost of PTC, have an adverse impact on operations, risk modifications to ACSES that could trigger verification and validation, and create a further impediment to meeting the other requirements of the proposed FRA regulations. NYSMTA therefore recommended that the final rule be limited at this time to the four requirements of the RSIA08.
FRA believes that, although the RSIA08 does not specifically require PTC systems to cover highway-rail grade crossing warning system malfunctions and associated operational requirements, it does stipulate that FRA must develop rules and standards for PTC system functionality, which include the four core features identified. In light of the safety-critical nature of the specified operational limitations for providing alternative warning to highway users pursuant to §§ 234.105, 236.106, and 236.107, and the catastrophic consequences that have often been experienced when those operational limitations have not been accomplished (including actual and potential impacts with motor vehicles involving serious injury and loss of life) and the fact that these operational limitations equate to speed and stop targets that PTC systems may surely warn and enforce, FRA intends to carry the language contained within the proposed paragraph into this final rule. Although FRA believes that the proposed rule was clear that its purpose was to enforce dispatcher-issued “stop-and-flag” orders and slow orders associated with credible reports of highway-rail grade crossing warning device malfunctions, reference has been added to “mandatory directives,” a term with a well-established meaning in FRA regulatory parlance (
While FRA recognizes that technologies exist to provide even further interface with warning system activation and health, and encourages railroads to include these technologies
The NTSB submitted comments recommending that requirements for warning and barrier protection plans for Class 7 track should also apply to Class 5 and 6 tracks as part of an approved PTCSP in order to reduce the risk of high-speed catastrophic derailments at associated grade crossings. FRA notes that the requirements contained within § 213.347 of this part require that a warning/barrier plan be approved and adhered to for Class 7 track operations and prohibit grade crossings on Class 8 and 9 track. Those requirements do not, however, address Class 5 and 6 tracks specifically. Therefore, FRA believes that this comment falls outside the scope of the present rulemaking. As noted elsewhere in this preamble, FRA has developed Guidelines for Highway-Rail Grade Crossing Safety on high-speed rail lines that endeavor to improve engineering with a strong emphasis on closures. Those Guidelines will be used to review and negotiate grants under ARRA.
FRA recognizes that movable bridges, including draw bridges, present an operational issue for PTC systems. Under subpart C, § 236.312 already governs the interlocking of signal appliances with movable bridge devices and FRA believes that this section should equally apply to PTC systems governing movement over such bridges. While subparts A through H apply to PTC systems—as stated in § 236.1001—paragraph (a)(4)(iv) proposes to make this abundantly clear. Accordingly, in paragraph (a)(4)(iv) and consistent with § 236.312, movable bridges within a PTC route are to be equipped with an interlocked signal arrangement which is also to be integrated into the PTC system. A train shall be forced to stop prior to the bridge in the event that the bridge locking mechanism is not locked, the locking device is out of position, or the bridge rails of the movable span are out of position vertically or horizontally from the rails of the fixed span. Effective locking of the bridge is necessary to assure that the bridge is properly seated and thereby capable to support both the weight of the bridge and that of a passing train(s) and preventing possible derailment or other potential unsafe conditions. Proper track rail alignment is also necessary to prevent derailments, either of which again could result in damage to the bridge or a train derailing off the bridge. No comments were received on this issue, and the provision is carried forward in the final rule.
Paragraph (a)(4)(v) requires that hazard detectors integrated into the PTC system—as required by paragraph (c) of this section or the FRA approved PTCSP—must provide an appropriate warning and associated applicable enforcement through the PTC system. There are many types of hazard detection systems and devices. Each type has varying operational requirements, limitations, and warnings based on the types and levels of hazard indications and severities. FRA expects this enforcement to include a positive stop where necessary to protect the train (e.g., areas with high water, flood, rock slide, or track structure flaws) or to provide an appropriate warning with possible movement restriction being acknowledged (i.e., hot journal or flat wheel detection). The details of these warnings and associated required enforcements are to be specifically addressed within a PTCDP and PTCSP subject to FRA approval, and the PTC system functions are to be maintained in accordance with the system specifications. FRA does not expect that all hazard detectors be integrated into the PTC systems, but where they are, they must interact properly with the PTC system to protect the train from the hazard that the detector is monitoring. With the exception of the RLO's strong emphasis on safety in PTC system deployment, no comments were received on this issue; and the provision is carried forward in the final rule.
Paragraph (a)(5) addresses the issue of broken rails, which is the leading cause of train derailments. FRA proposes to strictly limit the speed of passenger and freight operations in those areas where broken rail detection is not provided. Under § 236.0(c), as amended in this final rule, 24 months after the publication of this final rule, freight trains operating at or above 50 miles per hour, and passenger trains operating at or above 60 miles per hour, are required to have a block signal system unless a PTC system meeting the requirements of this part is installed. Since current technology for block signal systems relies on track circuits—which also provide for broken rail detection—this final rule requires limiting speeds where broken rail detection is not available to the maximums allowed under amended § 236.0 when a block signal system is not installed. No comments were received on this issue, and the provision is carried forward in the final rule.
“(a) IN GENERAL.—
“(1) PLAN REQUIRED.—Not later than 18 months after the date of enactment of the Rail Safety Improvement Act of 2008, each Class I railroad carrier and each entity providing regularly scheduled intercity or commuter rail passenger transportation shall develop and submit to the Secretary of Transportation a plan for implementing a positive train control system by December 31, 2015, governing operations on—
“(A) its main line over which intercity rail passenger transportation or commuter rail passenger transportation, as defined in section 24102, is regularly provided;
“(B) its main line over which poison- or toxic-by-inhalation hazardous materials, as defined in parts 171.8, 173.115, and 173.132 of title 49, Code of Federal Regulations,
are transported; and
“(C) such other tracks as the Secretary may prescribe by regulation or order.
“(2) IMPLEMENTATION.—The plan shall describe how it will provide for interoperability of the system with movements of trains of other railroad carriers over its lines and shall, to the extent practical, implement the system in a manner that addresses areas of greater risk before areas of lesser risk. The railroad carrier shall implement a positive train control system in accordance with the plan.”
It is plain on the face of the statute that certain actions are required and some are discretionary and that these actions must come together progressively over a period beginning on April 16, 2010 (18 months after enactment) and ending on December 31, 2015. FRA has included revisions in this final rule designed to fully express this intent.
In paragraph (b) of § 236.1005 in the NPRM, FRA proposed to use 2008 traffic levels as a baseline to fix the network that would receive PTC, subject to any subsequently requested and approved amendments to the PTCIP that would justify removal of the line, and subject to the addition of lines that might qualify under the statutory mandate based on later data. In addition to FRA's understanding of the rail lines Congress intended to cover, FRA had several other fundamental reasons for doing so. First, in order to reach completion by December 31, 2015, as required by law, the railroads and FRA need to identify the relevant route structure very early in the short implementation period and the railroads need to stage the financing and logistics to reach completion. Otherwise, the statutory deadline will not be met. Second, 2009 traffic levels will be notably atypical as a result of the recession, which has caused overall traffic levels to fall by as much as 20%. Third, the burden of installing PTC, which the statute applies obligatorily to very large railroads but not to others, may create an incentive to further “spin off” certain lines to avoid installing PTC
The Class I railroads responded with the suggestion that FRA is without discretion to require inclusion of lines that do not qualify as of 2015. However, FRA has already quoted the statute, which makes clear the inclusion of FRA-identified lines in the 2015 mandate. The statutory “shall” applies to these lines. Also, FRA and its predecessor agency have long enjoyed the power to require installation of train control under the “Signal Inspection Act” (codified at 49 U.S.C. 20501-20505). Further, FRA has been mandated since 1970 to issue rules and standards covering “every area of railroad safety” (49 U.S.C. 20103). In conferring new responsibilities, the Congress in no sense repealed what preceded them.
Arguing in the alternative, the Class I railroads said that FRA had failed to rely on its discretionary authority to accomplish its purpose. In fact, the subject statutory provisions were called out in the authority section of the NPRM text, with the exception of the Signal Inspection Act, as codified (an oversight remedied here).
FRA is very conscious of the fact that PTC is expensive, and the agency's regulatory evaluation for the proposed rule does not seek to conceal it. The unit costs will be particularly high during the period before December 31, 2015, and trying to do too much too fast could result in significant disruption of rail transportation. Accordingly, during the initial implementation period, FRA will not exercise its authority to require a build out of the PTC network beyond something on the order of what the Congress contemplated. However, FRA will exercise its discretion to ensure that the network design reflects safety needs and places a value on PTC that reflects an understanding of the value applied by the Congress.
FRA understands the arguments surrounding PTC costs and benefits, having filed three congressionally-required reports since 1994 with information on the subject, having worked through the RSAC for several years evaluating this issue, having funded PTC technology development and overseen PTC pilot projects from the State of Washington to the State of South Carolina, and having provided testimony to the Congress on many occasions. However, FRA believes that the issue is now presented in a different light than before. The Congress was aware that the monetized safety benefits of PTC were not large in comparison with the loss of life and injuries associated with PTC-preventable accidents. With the passage of RSIA08, Congress has in effect set its own value on PTC and directed implementation of PTC without regard to the rules by which costs and benefits are normally evaluated in rulemaking.
One could conclude that the Congress set the value only with respect to passenger trains and PIH releases, but that would assume that the interest expressed by the Congress over much more than a decade and a half was so limited. In fact, longtime congressional interest stemmed in large part from the loss of life among railroad crew members in collisions, as well the potential for release of other hazardous materials. Most of the NTSB investigations and investigations pertaining to this “most wanted” transportation safety improvement in fact derived from such events.
In this light, the focus of the statute on PIH and scheduled passenger trains was clearly intended to provide specific guidance to the agency—a minimum standard for action—and reflected the prominence of passenger train accidents (Placentia, CA, April 23, 2002; Chatsworth, CA); and PIH releases (Macdona, TX, June 28, 2004; Graniteville, SC) in the most serious of the recent PTC-preventable accidents. FRA does not take this to mean that the Congress meant us to be indifferent to the crew fatality at Shepherd, Texas, on September 15, 2005, which resulted from a misaligned main track switch in a collision very similar to the one at Graniteville. Nor do we believe that FRA was expected to be indifferent to the collision between two freight trains at Anding, Mississippi, on July 10, 2005, which killed four crew members, or the collision with release of liquefied propylene gas and ensuing explosion at Texarkana, Arkansas, on October 15, 2005, which killed a resident of a community abutting the railroad.
The tone of the Class I freight railroad comments justified FRA's concerns that railroads might take the wrong lesson from the statutory mandate. The lesson FRA perceives is that the core of the national rail system, which carries passenger and PIH traffic, needs to be equipped with PTC and that Congress used 5 million gross tons of freight traffic, the presence of PIH traffic, and the presence of passenger service as readily perceptible markers identifying the core lines on which Congress wants PTC to be installed. In making its judgments, Congress was necessarily looking at the national rail system as it existed in 2008 when the statute was passed. A corollary of that lesson is that the later disappearance or diminution of
The freight railroads do not pretend that FRA is wrong in perceiving that the freight railroads wish to remove PIH traffic from the network. That is wise, since the public record is replete with pleas from the Class I railroads to remove their common carrier obligation to transport PIH traffic. Rather, they contend, in effect, that FRA should not trouble itself with this issue, since the Congress and the Surface Transportation Safety Board (STB) will ensure that PIH shippers receive fair treatment, and the Pipeline and Hazardous Materials Safety Administration (PHMSA) Rail Route Analysis Rule will determine whether the traffic goes on the safest and most secure routes.
There are significant problems with this contention. First, while the Congress shows no interest in relieving the carriers of duty to transport PIH commodities, and STB has likewise brushed back a recent attempt by a Class I railroad to avoid this duty (
The carriers would have us rely on the PHMSA Rail Route Analysis Rule in determining whether the PIH criterion requires installation of PTC on a particular line. The Class I railroads' comments state that “FRA is not even the DOT agency with substantive responsibility for how railroads route TIH.” This is an odd point, considering that: (1) The statutory authority for both this rulemaking and the Rail Route Analysis Rulemaking are vested in the Secretary of Transportation, and FRA and PHMSA have a long and well established history of working together for the safe transportation of hazardous materials; (2) as reflected in the rulemaking documents, FRA initiated the Rail Routing action in concert with PHMSA and participated in developing the proposed rule well before the Congress mandated that the rulemaking be concluded; (3) the final rule affirms that PHMSA issued the revision in coordination with FRA and TSA; (4) by delegation from the Secretary, FRA is the agency responsible for administering and enforcing the Rail Route Analysis Rule and has issued a final rule (73 FR 72,194 (Nov. 26, 2008)) detailing the procedures railroads must follow when challenging FRA enforcement decisions; and (5) FRA and has worked with TSA to provide funding and oversight for development of the risk model intended for use under the rule.
As it happens, FRA has good reason to be concerned with rail routing of PIH commodities (as well as explosives and high level radioactive waste, which are also covered by the PHMSA rule), both on the merits of the routing decisions (as the agency responsible for administering the rule) and in relation to the incidental impacts of re-routing decisions on the network of lines that will be equipped with PTC technology. Because the Rail Route Analysis Rule addresses both security and safety risks, operations under that rule necessarily lack the transparency typically afforded to safety risks.
Significant re-routing has already occurred since 2008 as a result of the TSA Rail Transportation Security Rule (73 FR 72,130 (Nov. 26, 2008)). In its comments, CSXT states that the TSA rule “required railroads to modify their routing operations to ensure that only attended interchanges are used for transporting TIH.” The resulting changes are said to be “dramatic.” Comment of CSX Transportation, Inc., Docket FRA-2008-0132-0028.1, at 12 (Aug. 24, 2009). However, the TSA regulation requires a secure chain of custody, not re-routing; and so any re-routing resulting from the TSA regulation presumably resulted not from the direct command of the rule itself but from the desire to hold down costs by focusing the handoffs of these commodities where personnel are already employed to oversee the transfers. This is perfectly sensible, of course, to the extent that the re-routing did not create greater safety or security concerns. However, since railroads have contended for years that their current routings were already optimized for safety, investigation is warranted.
The Rail Route Analysis Rule is only now being put into effect. Most railroads will not complete their initial analysis until the first quarter of 2009, using 12 months of 2008 data (per their request in the subject rulemaking). While the rule requires railroads to consider the use of interchange agreements when considering alternative routes, FRA has not had the opportunity to verify that this has actually occurred with the two railroads opting to comply with the September 2009 due date for use of only six months of data.
The risk model intended to provide the foundation for the rail routing process is still subject to considerable refinement. No methodology is currently specified for evaluating the potential impact of a PTC system (which would vary in risk reduction depending upon the underlying or previous method of operation). Under these circumstances, there is a distinct possibility the railroads may not give sufficient weight to train control (existing or planned).
The Rail Route Analysis Rule considers both safety and security, and PHMSA and FRA have worked with TSA to ensure that the inherently
Since any given railroad may have thousands of origin-destination pairs for its PIH traffic, and since railroads are just at the threshold of cooperation to evaluate interline re-routing options, this new program will settle out over a period of several years during which lessons are learned. As custodian of this program, FRA is best situated to conclude that using the products of initial analysis within a framework that confers significant discretion to utilize judgment should not control where PTC is built—particularly given the strong incentives that carriers perceive to reduce the wayside mileage equipped with PTC and the fact that installation of PTC might overwhelm other considerations with respect to PIH routing.
In the proposed rule, FRA said that changes from the 2008 base could be granted if “consistent with safety.” Even though this is a familiar phrase drawn from FRA's basic safety statute, concern was expressed regarding how this term might be applied. The final rule further defines that standard by adding a rule for FRA decision making, i.e., if the remaining safety risk on the line exceeds the average safety risk per route mile on lines carrying PIH traffic, as determined in accordance with Appendix B to 49 CFR part 236, FRA denies the request. The provision leaves open the possibility of granting the request if the railroad making application offers a compensating further build out on another line where the resources would be better spent because they would enhance safety to a greater degree. FRA has available to it adequate data to construct a simple risk model for use in this context and expects to do so when reviewing such requests. This provision treats similarly risky rail lines similarly in carrying out the perceived congressional intent for PTC to be installed on the portion of the rail system Congress described, and it is an appropriate exercise of FRA's statutory discretion because it is rationally related to the reduction in risk Congress sought to achieve across the national rail system.
The structure of paragraph (b) of § 236.1005 is as follows:
Paragraph (b)(1) brings together the policy of the statute requiring a phased, risk-based roll out of PTC with the types of lines required to be equipped. FRA has included the additional language “progressively equip” to remind the industry that the law does not expect a risk-based implementation in which no safety benefits are achieved until December 31, 2015. To the contrary, the law and FRA evidence a strong expectation that PTC safety benefits will be increasingly achieved as lines and locomotives are equipped.
Paragraph (b)(2) describes the operation of the 2008 baseline as the initial point of PTC implementation. The section is clear that if any track segment mandated for PTC exclusively on the basis of PIH traffic falls below 5 million gross tons for two consecutive years, the line would be eligible for removal. The paragraph also identifies the presence of PIH traffic in 2008 (or prior to filing the PTCIP) as initially identifying the track segment in the PTCIP for PTC implementation, but refers to paragraph (b)(4) as a means of removing it.
Paragraph (b)(3) refers to changed conditions after the filing of the PTCIP that might require a line or track segment to be added. This could occur,
In the NPRM, FRA proposed that, in order to have a line segment no longer carrying the PIH traffic be excepted from the requirement that it be initially equipped, the railroad would need to provide estimated traffic projections for the next 5 years (e.g., as a result of planned rerouting, coordinations, location of new business on the line). In addition, where the request involves prior or planned rerouting of PIH traffic, the railroad would be required to provide a supporting analysis that takes into consideration the rail security provisions of the PHMSA rail routing rule, including any railroad-specific and interline routing impacts. FRA proposed that it could approve an exception if FRA finds that it would be consistent with safety and in the public interest.
The AAR acknowledged in its comments that “FRA does offer railroads the ability to apply to FRA for approval to not install PTC on a route which, in 2015, is no longer used for PIH traffic or which no longer meets the definition of a main line.” However, asserted AAR, “FRA approval is predicated on the nebulous criteria of “consistent with safety and in the public interest.”
In this final rule, paragraph (b)(4) provides the methods by which a railroad may seek the exclusion or removal of track segments from its PTCIP. Paragraph (b)(4)(i) deals with the evaluation of track segments that no longer carry 5 million gross tons or PIH traffic that the railroad seeks to remove from the PTCIP, either at the time of initial filing or through an RFA thereafter. A request to remove a line would need to be accompanied by future traffic projections. FRA understands that, in some cases, railroads will not be able to state with certainty whether total tonnage or PIH traffic will return to a line; and certainty is not required. However, in other cases a railroad may in fact be able to make reasonable projections (because of control over a parallel main line that is approaching capacity, planned coordination with another railroad, etc.).
In the case of cessation of passenger service or a decline of tonnage on a PIH line, FRA anticipates that approval of such requests will normally be routine. However, in light of AAR's comments, the final rule provides that, where PIH traffic has been removed (or is projected to be removed), three conditions must be met in order for FRA to approve such requests. First, it is not expected that there will be any local PIH traffic on the subject track segment. Second, to the extent overhead traffic has been (or will be) removed from the line, the request must be supported by routing analysis justifying the alternative routing of any traffic formerly traversing the line or which might traverse the line as an alternative routing. This is not the same routing analysis required under part 49 CFR part 172, but it may be presented
As noted in section VI of this preamble, FRA seeks comments on how elements of a route analysis should be weighed by FRA when determining whether rerouting under this paragraph is sufficiently justified.
FRA includes one additional requirement that invokes its discretionary authority under the law. Even if a line has not or will not carry PIH traffic after the 2008 base year or later time period prior to filing of the PTCIP (i.e., for those filing a PTCIP for new service initiated after the statutory deadlines), the final rule requires an additional test that fleshes out the “consistent with safety” notion contained in the proposed rule with the desired objective of providing greater predictability, transparency, and consistency in decision making. This test requires that, in order for a track segment to be excluded, the remaining risk on the line not exceed the average risk extant on lines required to be equipped with PTC because they meet the threshold for tonnage of 5 million gross tons and carry PIH traffic. The effect of this test should be to allow a majority of lines that formerly carried PIH, which has been removed for legitimate reasons, to be removed from the PTCIP. With no intercity/commuter passenger traffic and no PIH, these will mostly be lines with moderate traffic involving commodities such as coal or grain and minimal quantities of other hazardous materials. However, with respect to lines with higher risk, PTC may be required despite the consolidation of PIH traffic on other lines. For instance, FRA does not believe that consolidation of PIH traffic due to security reasons should unduly influence PTC deployment. Train crews, roadway workers, and communities along the routes have a strong interest in seeing PTC provided for their benefit. Examples of lines that could be captured by this requirement are very high density lines to coal fields or between major terminals where collision risk is significant and other very dangerous or environmentally sensitive hazardous materials are transported in significant quantities (e.g., flammable compressed gas, halogenated organic compounds). Non-signaled lines with traffic nearing capacity and many manually operated switches, together with significant hazardous materials, would also be candidates for retention.
As previously noted in the Introduction and section VI to this preamble, FRA seeks further comments on paragraph (b)(4)(i). This provision describes the specific considerations FRA will take into account in determining whether a deviation from the baseline is “consistent with safety.” FRA believes that this final rule could still benefit from input concerning this application of the “consistent with safety” standard FRA has applied for decades in considering waivers under 49 U.S.C. 20103(d) and whether FRA should interpret that standard differently or in greater detail here. Accordingly, FRA continues to seek comments on this issue with the desired objective of providing greater predictability, transparency, and consistency in decision making. More specifically, FRA seeks comments that would help clarify what issues, facts, standards, and methodologies it should consider when determining whether to approve a request for amendment made pursuant to paragraph (b)(4)(i). FRA also seeks comments on how it should compare the levels of risk between lines with PIH and lines without PIH for the purposes of paragraph (b)(4)(i).
Paragraph (b)(4)(ii) contains a new provision that provides a basis for a railroad to request removal of a track segment from a PTCIP either at the time of initial filing or through an RFA thereafter. The provision is being added in an effort to respond to comments submitted on the NPRM requesting a
The AAR and some of its member railroads assert that FRA has the authority to include a
FRA has reviewed the suggestion of the Class I railroads that FRA possesses an inherent, or at least reasonably inferred, authority to withhold any requirement for deployment of PTC on lines with very low risk. FRA agrees that, as a general matter, it has an inherent authority to create
With this said, however, and as explained below, that discretionary authority will not sustain the creation of the broad-brush exception sought by the Class I railroads in this proceeding. United States Circuit Court decisions recognize that federal agencies may promulgate
However, “a de minimis exemption cannot stand if it is contrary to the express terms of the statute.”
In this case, where release of the contents of one PIH tank car can have catastrophic consequences (e.g., the 2005 Graniteville accident), FRA must determine whether the gain yielded by installing PTC on any rail line that carries a minimal amount of PIH materials is “of trivial or no value.” During the RSAC Working Group discussions conducted on August 31-September 2, 2009, the major freight railroads suggested that any track segment carrying fewer than 100 PIH cars annually should be considered to present a
FRA has considered AAR's proposed exception and has noted that, although the number of cars appears small, in fact only about 100,000 loaded PIH cars are offered for transportation in the United States each year (approximately 200,000 loads and residue cars). Accordingly, FRA would expect that such an exception might have a significant impact on the number of miles of railroad subject to the PTC mandate. None of the filings in this docket, and none of the discussion in the PTC Working Group, shed light on the relevant facts despite an express request from FRA to Class I railroads to supply facts bearing on their requested exception. Based on the limited information available to FRA, FRA believes that such an exception would excuse installation of PTC on roughly 10,000 miles of railroad out of the almost 70,000 route miles FRA has projected would need to be equipped based on the proposed requirements. Based on the limited information available, it appears that some of the lines within the AAR request carry very heavy tonnages (with many train movements raising the risk for a collision) at freight speeds up to 60 or 70 miles per hour (predicting severe outcomes when accidents do occur). Putting trains with PIH bulk cargoes into this mix in the absence of effective train control would not be a
FRA believes that the broad-based type of
In order to foster as much clarity as possible regarding the exceptions provided, FRA has broken the concept into two separate divisions. The first creates a presumption that a requested exception will be provided based on existing circumstances on the line, plus an operating restriction. The second involves more challenging circumstances and involves no presumption, but the railroad may proffer safety mitigations in order to drive down risk to demonstrably negligible levels (subject to FRA review). Both are limited to lines that carry less than 15 million gross tons of traffic annually, a figure three times the threshold in the law. FRA has no confidence that a railroad could assure “negligible risk” in a busier and therefore more complex operation, and allowing for consideration of lines with more traffic could lead to neglect of other risk of concern (e.g., harm to train crews in collisions, casualties to roadway workers, release of other hazardous materials).
Paragraph (b)(4)(ii)(B) specifies additional tests that apply to the first exception:
• The line segment must consist exclusively of Class 1 or 2 track under the Track Safety Standards (maximum authorized speed 25 mph);
• The line segment must have a ruling grade of less than 1 percent; and
• Any train transporting a car containing PIH materials (including a residue car) must be operated under conditions of temporal separation, as explained in § 236.1019(e) and in Appendix A to part 211 of this title, from other trains using the line segment, as documented by a temporal separation plan submitted with the request and approved by FRA.
Paragraph (b)(4)(ii)(C) provides an alternative path to a
FRA believes that the savings from these provisions should be substantial. Most of the line segments falling within the criteria set forth for
This provision was developed in the absence of a robust record. On October 7, 2009, the AAR filed supplementary comments offering to work with FRA on a more flexible process for
Paragraph (b)(5) addresses an additional reason for proposing to use 2008 data as a baseline for PTC installation, rather than
This background may help explain why FRA made reference to the issue of whether omitting PTC on a line that carried PIH traffic in 2008 might be “in the public interest” in the proposed rule. In references during the subsequent RSAC working group deliberations, some question was raised about what that could mean. In light of that confusion, FRA has omitted the phrase from the final rule but has added language addressing the issue of line sales that expresses more directly how FRA would handle line sales and modifications to a PTCIP. FRA's purpose is to ensure that decisions regarding where PTC is deployed are made in light of all the relevant circumstances. To the extent that this approach represents an exercise of discretionary authority (and should any such exercise in fact occur), FRA would expect to make the decision based upon safety criteria after the STB had determined the public interest with respect to rail service. Again, FRA would expect to recognize the value that the Congress placed on PTC as a means of risk reduction while not rewarding transactions designed to avoid installation of PTC on the line in question.
Paragraph (b)(6) states that no new intercity or commuter passenger service shall commence after December 31, 2015, until a PTC system certified under this subpart has been installed and made operative. FRA believes this is a clearly necessary requirement to satisfy the statute. In response to the comments, FRA has removed the reference to “continuing” of previous passenger service. FRA agrees that the remedy associated with any delays in completing PTC system installation should be determined based upon circumstances at the time and without disfavoring passenger service in relation to freight service.
Part of the complexity of this task is the schedule. FRA has labored to publish this final rule as soon as humanly possible so that the industry could be ready to file PTC Implementation Plans by the statutory deadline of April 16, 2010. FRA will then be required, again by the statute, to approve or disapprove each plan within a period of 90 days. Accordingly, establishing some degree of order in framing the Implementation Plan requirements is clearly necessary. Taking the 2008 traffic base as a known starting point, and evaluating any deviations from that base, will permit FRA to identify any potentially inappropriate traffic consolidations and focus on those areas as matters for review. FRA could, of course, take a different approach and order a categorically broader implementation. However, that has been understandably opposed by the railroads; and crafting any such approach would likely not have been feasible during the time available for this rulemaking. Accordingly, what we have done in § 236.1011(b) is to require the PTCIP to include a statement of criteria that the Class I railroad will apply in planning future deployment of PTC and a requirement that the railroad's Risk Reduction Program Plan (required by the RSIA08 to be filed in 2013) contain a specification of additional lines that will be equipped in full (meeting all of the requirements of subpart I) or as a partial implementation (subset of functionalities). Approaching the end of the initial deployment period, therefore, FRA should be in a position to consider whether requiring additional PTC deployments will be appropriate to address remaining risk or whether elective actions by the railroads will meet that need. Over time, then, any rough edges that remain should be smoothed over.
Another objection to the 2008 baseline is that more may need to be accomplished (i.e., the need to capture more lines) in the period between enactment and December 31, 2015. FRA responds as follows: First, no more will need to be done than the Congress likely expected. If FRA, an expert agency, did not foresee the “dramatic” consolidation of PIH traffic resulting from the TSA rule, it is fairly unlikely that the Congress did. Second, the Class I freight industry has had it within its control to get this done, and one of FRA's major objectives in conducting this rulemaking has been to ensure success by keeping the technology bar at a reasonable height and deferring as much as possible to work already accomplished. During the September 10, 2009, RSAC meeting, the leaders of the Interoperable Train Control project—an effort led by BNSF, CSXT, NS, and UP to develop interoperability standards for the general freight system—advised that those standards will not be available until the end of 2010 to the many commuter railroads and Amtrak working in concert with a major freight carrier. But the industry developed Advanced Train Control Standards in the 1980s, standards that FRA pronounced mature in its 1994 Report, after which the industry abandoned the project. PTC interoperability standards were identified as a need in the consensus report of the original PTC
In summary, FRA has fashioned an approach to review of candidate track segments for PTC Implementation that seeks to uphold the letter and the intent of the RSIA08, that utilizes FRA discretionary authority sparingly but in a risk-informed manner, that it is administrable within the time allowed by law to review PTCIPs, that offers the best chance of creating some stability in deployment strategy by permitting the agency to focus on areas of greatest sensitivity early in the process (including, as necessary, a threshold evaluation of whether Rail Route Analysis Rule decisions require further evaluation), and that will ensure, to the extent possible, that safety alone is the governing criterion in determining where PTC will be required to be deployed.
Paragraph (c) provides amplifying information regarding the installation and integration of hazard detectors into PTC systems. Paragraph (c)(1) reiterates FRA's position that any hazard detectors that are currently integrated into an existing signal and train control system must be integrated into mandatory PTC systems and that the PTC system will enforce as appropriate on receipt of a warning from the detector. Paragraph (c)(2) states that each PTCSP submitted by a railroad must identify any additional hazard detectors that will be used to provide warnings to the crew which a railroad may elect to install. If the PTCSP so provides, the PTCSP must clearly define the actions required by the crew upon receipt of the alarm or other warning or alert. FRA does not expect a railroad to install hazard detectors at every location where a hazard might possibly exist.
Paragraph (c)(3) requires, in the case of high-speed service (as described in § 236.1007 as any service operating at speeds greater than 90 miles per hour), that the hazard analysis address any hazards on the route and provide a reason why additional hazard detectors are not required to provide warning and enforcement for hazards not already protected by an existing hazard detector. The hazard analysis must clearly identify the risk associated with the hazard, and the mitigations taken if a hazard detector is not installed and interfacing with a PTC system. For instance, in the past, large motor vehicles with parallel or overhead structures have been left fouling active passenger rail lines. Depending upon the circumstances, such events can cause catastrophic train accidents. Although not every such event can be prevented, detection of such obstacles may make it more likely that the accident could be prevented.
In its comments, Amtrak assumes that on those lines where FRA has previously approved such speeds (e.g., portions of Amtrak's Northeast Corridor (NEC) and Michigan line), a new hazard analysis, which would serve only to allow that which is already allowed, will not be required. If so, it asserts that the rule should make that explicit. FRA has done so in the final rule. No further changes were indicated by the comments.
Under paragraph (d), the final rule requires that each lead locomotive operating with a PTC system be equipped with an operative event recorder that captures safety-critical data routed to the engineer's display that the engineer must obey, including all mandatory directives that have been electronically delivered to the train, maximum authorized speeds, warnings presented to the crew, including countdowns to braking enforcement and warnings indicating that braking enforcement is in effect, and the current system state (“ACTIVE”, “FAILED”, “CUTIN”, “CUTOUT”, etc.)
FRA intends that this information be available in the event of an accident with a PTC-equipped system to determine root causes and the necessary actions that must be taken to prevent reoccurrence. Although FRA expects implemented PTC systems will prevent PTC-preventable accidents, in the event of system failure FRA believes it is necessary to capture available data relating to the event. Further, FRA sees value in capturing information regarding any accident that may occur outside of the control of a PTC system
The data may be captured in the locomotive event recorder, or a separate memory module. If the locomotive is placed in service on or after October 1, 2009, the event recorder and memory module, if used, shall be crashworthy, otherwise known as crash-hardened, in accordance with § 229.135. For locomotives built prior to that period, the data shall be protected to the maximum extent possible within the limits of the technology being used in the event recorder and memory module.
One commenter stated that paragraph (d) was not clear. The commenter is unsure if FRA is requiring that all of the operator's display be recorded and replicated upon playback. FRA only requires that the railroad capture the safety-critical data routed to the display which the engineer must obey. The choice of format to play back this data has been left to the railroad, keeping in mind that whatever format used for data playback needs to be available to FRA for accident investigations and other investigation activities.
As required by the RSIA08 and by paragraph (a)(1)(iv), as noted above, a PTC system required by subpart I must be designed to prevent the movement of a train through a main line switch in the wrong position. Paragraph (e) provides amplifying information on switch point monitoring, indication, warning of misalignment, and associated enforcement. According to the statute, each PTC system must be designed to prevent “the movement of a train through a switch left in the wrong position.” FRA understands “wrong position” to mean not in the position for the intended movement of the train. FRA believes that Congress' use of the phrase “left in the wrong position” was primarily directed at switches in non-signaled (dark) territory such as the switch involved in the aforementioned accident at Graniteville, South Carolina. FRA also believes that, in order to prevent potential derailment or divergence to an unintended route, it is critical that all associated switches be monitored by a PTC system in some manner to detect whether they are in their proper position for train movements. If a switch is misaligned, the PTC system must provide an acceptable level of safety for train operations.
Prior to the statute, PTC provided for positive train separation, speed enforcement, and work zone protection. The addition of switch point monitoring and run through prevention would have eliminated the Graniteville accident where a misaligned switch resulted in the unintended divergence of a train operating on the main track onto a siding track and the collision of that train with another parked train on the siding. The resulting release of chlorine gas caused nine deaths and required the evacuation of the entire town while remediation efforts were in progress.
As discussed above, FRA considered requiring PTC systems to be interconnected with each main line switch and to individually monitor each switch's point position in such a manner as to provide for a positive stop short of any misalignment condition. However, after further consideration and discussion with the PTC Working Group, FRA believes that such an approach may be overly aggressive and terribly expensive in signaled territory.
Under paragraph (e), FRA instead provides to treat switches differently, depending upon whether they are within a wayside or cab signal system—or are provided other similar safeguards (i.e., distant switch indicators and associated locking circuitry) required to meet the applicable switch position standards and requirements of subparts A through G—within non-signaled (dark) territory.
While a PTC system in dark territory would be required to enforce a positive stop—as discussed in more detail below—a PTC system in signaled territory would require a train to operate at no more than the upper limit of restricted speed between the associated signal, over any switch in the block governed by the signal, and until reaching the next subsequent signal that is displaying a signal indication more permissive than proceed at restricted speed.
Signaled territory includes various types of switches, including power-operated switches, hand-operated switches, spring switches, electrically-locked switches, electro-pneumatic switches, and hydra switches, to name the majority. Each type of switch poses different issues as it relates to PTC system enforcement. We will look at power- and hand-operated switches as examples.
On a territory without a PTC system, if a power-operated switch at an interlocking or control point were in a condition resulting in the display of a stop indication by the signal system, an approaching train would generally have to stop only a few feet from the switch, and in the large majority of cases no more than several hundred feet away from it. In contrast, in PTC territory adhering to the aforementioned overly aggressive requirement, a train would have to stop at the signal, which may be in close proximity to its associated switch, and operate at no more than the upper limit of restricted speed to that switch, where it would have to stop again. FRA believes that, since the train would be required to stop at the signal, and must operate at no more than the upper limit of restricted speed until it completely passes the switch (with the crew by rule watching for and prepared to stop short of, among other concerns, an improperly lined switch), a secondary enforced stop at the switch would be unnecessarily redundant.
Operations using hand-operated switches would provide different, and arguably greater, difficulties and potential risks. Generally, in between each successive interlocking and control point, signal spacing along the right of way can approximately be 1 to 3 miles or more apart, determined by the usual length of track circuits and the sufficient number of indications that would provide optimal use for train operations. Each signal governs the movement through the entire associated block up to the next signal. Thus, a train approaching a hand-operated switch may encounter further difficulties since its governing signal may be much further away than the governing signal for a power-operated switch. If within signaled territory a hand-operated switch outside of an interlocking or control point were in a condition resulting in the display of a restricted speed signal indication by the signal system, an approaching train may be required to stop before entering the block governed by the signal and proceed at restricted speed, or otherwise reduce its speed to restricted speed as it enters the block governed by the signal. The train must then be operated at restricted speed until the train reaches the next signal displaying an indication more permissive than proceed at restricted speed, while passing over any switch within the block. The governing signal, however, may be anywhere from a few feet to more than a mile from the hand-operated switch. For instance, if a signal governs a 3 mile long block, and there is a switch located 1.8 miles after passing the governing signal (stated in advance of the signal), and that switch is misaligned, the train would have to travel that 1.8 miles at restricted speed. Even if the train crew members were able to correct the misaligned switch,
In signaled territory, to require a PTC system to enforce a positive stop of an approaching train at each individual misaligned switch would be an unnecessary burden on the industry, particularly since movement beyond the governing signal would be enforced by the PTC system to a speed no more than the upper limit of restricted speed. Accordingly, in signaled territory, paragraph (e)(1) requires a PTC system to enforce the upper limit of restricted speed through the block. By definition, at restricted speed, the locomotive engineer must be prepared to stop within one-half the range of vision short of any misaligned switch or broken rail, etc., not to exceed 15 or 20 miles per hour depending on the operating rule of the railroad. Accordingly, if a PTC system is integrated with the signal system, and a train is enforced by the PTC system to move at restricted speed past a signal displaying a restricted speed indication, FRA feels comfortable that the PTC system will meet the statutory mandate of preventing the movement of the train through the switch left in the wrong position by continuously displaying the speed to be maintained (i.e., restricted speed) and by enforcing the upper limit of the railroads' restricted speed rule (but not to exceed 20 mph). While this solution would not completely eliminate human factors associated with movement through a misaligned switch, it would significantly mitigate the risk of a train moving through such a switch and would be much more cost effective.
Moreover, it would be cost prohibitive to require the industry to individually equip each of the many thousands of hand-operated switches with a wayside interface unit (WIU) necessary to interconnect with a PTC system in order to provide a positive stop short of any such switch that may be misaligned. Currently each switch in signaled territory has its position monitored by a switch circuit controller (SCC). When a switch is not in its normal position, the SCC opens a signal control circuit to cause the signal governing movement over the switch location to display its most restrictive aspect (usually red). A train encountering a red signal at the entrance to a block will be required to operate at restricted speed through the entire block, which can be several miles in length depending on signal spacing. The signal system is not capable of informing the train crew which switch, if any, in the block may be in an improper position since none of switches are equipped with an independent WIU. There could be many switches within the same block in a city or other congested area. Thus, there is a possibility that one or more switches may be not in its proper position and the signal system would be unable to transmit which switch or switches are not in normal position. The governing signal could also be displaying a red aspect on account of a broken rail, broken bond wire, broken or wrapped line wire, bad insulated joint, bad insulated switch or gage rods, or other defective condition.
FRA believes that requiring a PTC system to enforce the upper limit of restricted speed in the aforementioned situations is statutorily acceptable. The statute requires each PTC system to prevent “the movement of a train through a switch left in the wrong position.” Under this statutory language, the railroad's intended route must factor into the question of whether a switch is in the “wrong” position. In other words, in order to determine whether a switch is in the “wrong position,” we must know the switch's “right position.” The “right position” is determined by the intended route of the railroad. Thus, when determining whether a switch is in the wrong position, it is necessary to know the railroad's intended route and whether the switch is properly positioned to provide for the train to move through the switch to continue on that route. The intended route is normally determined by the dispatcher.
Under the final rule, when a switch is in the wrong position, the PTC system must have knowledge of that information, must communicate that information to the railroad (e.g., the locomotive engineer or dispatcher), and must control the train accordingly. Once the PTC system or railroad has knowledge of the switch's position, FRA expects the position to be corrected in accordance with part 218 before the train operates through the switch.
If the PTC system forces the train to move at no more than the upper limit of restricted speed, the railroad will have knowledge that a misaligned switch may be within the subject block, and the railroad, by rule or dispatcher permission, will then make the decision to move through the switch (i.e., the railroad's intent has changed as indicated by rule or dispatcher instructions), so the switch will no longer be in the “wrong position.” The RSAC PTC Working Group was unanimous in concluding that these arrangements satisfy the safety objectives of RSIA08. Utilization of the signal system to detect misaligned switches and facilitate safe movements also provides an incentive to retain existing signal systems, with substantial additional benefits in the form of broken rail detection and detection of equipment fouling the main line.
Paragraph (e)(2) addresses movements over switches in dark territory and under conditions of excessive risk, even within block signal territory. In dark territory, by definition, there are no signals available to provide any signal indication or to interconnect with the switches or PTC system. Without the benefit of a wayside or cab signal system, or other similar system of equivalent safety, the PTC system will have no signals to obey. In such a case, the PTC system may be designed to allow for virtual signals, which are waypoints in the track database that would correspond to the physical location of the signals had they existed without a switch point monitoring system. Accordingly, paragraph (e)(2)(i) requires that in dark territory where PTC systems are implemented and governed by this subpart, the PTC system must enforce a positive stop for each misaligned switch whereas the lead locomotive must be stopped short of the switch to preclude any fouling of the switch. Once the train stops, the railroad will have an opportunity to correct the switch's positioning and then continue its route as intended.
Unlike in signaled territory, FRA expects that on lines requiring PTC in dark territory, each switch will be equipped with a WIU to monitor the switch's position. A WIU is a device that aggregates control and status information from one or more trackside devices for transmission to a central office and/or an approaching train's onboard PTC equipment, as well as disaggregating received requests for information, and promulgates that request to the appropriate wayside device. Most of the switches in dark territory are hand-operated with a much smaller number of them being spring and hydra switches. In dark territory, usually none of the switches have their position monitored by a SCC and railroads have relied on the proper handling of these switches by railroad personnel. When it is necessary to throw a main line switch from normal to reverse, an obligation arises under the railroad's rules to restore the switch upon completion of the authorized activity. Switch targets or banners are intended to provide minimal visual indication of the switch's position, but in the typical case trains are not required to operate at a speed permitting them to stop short of open switches. As
In the event that movement through a misaligned switch would result in an unacceptable risk, whether in dark or signaled territory, paragraph (e)(2)(ii) requires the PTC system to enforce a positive stop on each train before it crosses the switch in the same manner as described above for trains operating in dark, PTC territory. FRA acknowledges that regardless of a switch's position, and regardless of whether the switch is in dark or signaled territory, movement through certain misaligned switches—even at low speeds—may still create an unacceptable risk of collision with another train.
FRA understands the term “unacceptable risk” to mean risk that cannot be tolerated by the railroad's management (and in this case FRA plays the role of ensuring consistency). It is a type of identified risk that must be eliminated or controlled. For instance, such an unacceptable risk may exist with a hand-operated crossover between two main tracks, between a main track and a siding or auxiliary track, or with a hand-operated switch providing access to another subdivision or branch line. The switches mentioned in paragraph (e)(2)(ii) are in locations where, if the switch is left lined in the wrong position, a train would be allowed to traverse through the crossover or turnout and potentially into the path of another train operating on an adjoining main track, siding, or other route. Even if such switches were located within a signaled territory, the signal governing movements over the switch locations, for both tracks as may be applicable, would be displaying their most restrictive aspect (usually red). This restrictive signal indication would in turn allow both trains to approach the location at restricted speed where one or both of the crossover switches are lined in the reverse position. Since the PTC system is not capable of actually enforcing restricted speed other than its upper limits, the PTC system would enforce a 15 or 20 mile per hour speed limit dependent upon the operating rules of the railroad. However, there is normally up to as much as a 5 mile per hour tolerance allowed for each speed limit before the PTC system will actually enforce the applicable required speed. Thus, in reality, the PTC system would not enforce the restricted speed condition until each train obtained a speed of up to 25 miles per hour. In this scenario, it is conceivable that two trains both operating at a speed of up to 25 miles per hour could collide with each other at a combined impact speed (closing speed) of up to 50 miles per hour. While these examples are provided in the rule text, they are merely illustrative and do not limit the universe of what FRA may consider an unacceptable risk for the purpose of paragraph (e). FRA emphasizes that FRA maintains the final determination as to what constitutes acceptable or unacceptable risk in accordance with paragraph (e)(2)(ii).
Caltrain submitted a comment recommending the removal of the following text from this section: “Unacceptable risk includes conditions when traversing the switch, even at low speeds, could result in direct conflict with the movement of another train (including a hand-operated crossover between main track, a hand-operated crossover between main track and an adjoining siding or auxiliary track, or a hand-operated switch providing access to another subdivision or branch line, etc.)” Caltrain asserted that the PTC Safety Plan is required to, and will address, whether a particular configuration is an acceptable risk. The examples cited can include a non-signaled siding or auxiliary track several feet below the grade of the mainline track. The possibility of the equipment on the auxiliary track conflicting with movement on the main line track is no greater at a crossover than if it is a single switch and turnout. Main to main crossovers are another topic that will be addressed in the risk analysis.
FRA believes it to be important to identify the requirement that a PTC system must enforce a positive stop short of any main line switch, and any switch on a siding where the allowable speed is in excess of 20 miles per hour, if movement of a train over such a switch not in its proper position could create an unacceptable risk. FRA is providing within the language of the rule example of movements through an improperly lined switch that FRA believes would result in unacceptable risk. This unacceptable risk is not related to the potential “roll-out” of equipment from another track onto the main track, which was referenced in the comment submitted by Caltrain, but constitutes any situation where a movement may diverge from one track onto an adjacent track potentially directly in front of a proceeding movement of a separate train on that track.
Furthermore, FRA provides in paragraph (e)(3) that a railroad may submit, with justification, alternative PTC system enforcement associated with unacceptable risk of train movements through improperly aligned switches in their applicable PTCDP or PTCSP for FRA approval. FRA therefore elects to leave the rule text of paragraph (e)(2)(ii) as it was written in the proposed rule.
The PTC system must also enforce a positive stop short of any misaligned switch on a PTC controlled siding in dark territory where the allowable track speed is in excess of 20 miles per hour. Sidings are used for meeting and passing trains and where those siding movements are governed by the PTC system, safety necessitates the position of the switches located on sidings to be monitored in order to protect train movements operating on them. Conversely, on signaled sidings, train movements are governed and protected by the associated signal indications, track circuits, and monitored switches, none of which are present in dark territory.
Paragraph (e)(3) notes that while switch position detection and enforcement must be accomplished, the PTCSP may include a safety analysis for alternative means of PTC system enforcement associated with switch position. Moreover, an identification and justification of any alternate means of protection other than that provided in this section shall be identified and justified. FRA recognizes that, in certain circumstances, this flexibility may allow the reasonable use of a track circuit in lieu of individually monitored switches (addressing rail integrity as well as identification of open switches).
Paragraph (e)(4) provides amplifying information regarding existing standards of subparts A through G of this part related to switches, movable-point frogs, and derails in the route governed that are equally applicable to PTC systems unless otherwise provided in a PTCSP approved under this subpart. This paragraph explains that the FRA required and accepted railroad industry standard types of components used to monitored switch point position and how those devices are required to function. This paragraph allows for some alternative method to be used to accomplish the same level of protection if it is identified and justified in a PTCSP approved under this subpart.
The AAR submitted comment that the language within paragraph (e)(4), which was presumably derived from subpart C of this part, prescribes conditions under which “movement authorities
FRA agrees with the principle of the AAR's comment. The intention appears to be that the permissiveness of
Paragraph (f) provides amplifying information for determining whether a PTC system is considered to be configured to prevent train-to-train collisions, as required under paragraph (a). FRA will consider the PTC system as providing the required protection if the PTC system enforces the upper limits of restricted speed. These criteria will allow following trains to pass intermediate signals displaying a restricting aspect and will allow for the issuance of joint mandatory directives.
Where a wayside signal displays a “Stop,” “Stop and Proceed,” or “Restricted Proceed” indication, paragraph (f)(1)(i) requires the PTC system to enforce the signal indication accordingly. In the case of a “Stop” or “Stop and Proceed” indication, operating rules require that the train will be brought to a stop prior to passing the signal displaying the indication. The train may then proceed at 15 or 20 miles per hour, as applicable according to the host railroad's operating rule(s) for restricted speed. In the case of a “Restricted Proceed” indication, the train would be allowed to pass the signal at 15 or 20 miles per hour. Some existing PTC systems do not enforce the stop indication under these circumstances, and FRA believes that this is acceptable. However, in either event, the speed restriction would be enforced until the train passes a more favorable signal indication. NJ Transit asserted, and FRA agrees, that in dark territory where trains operate by mandatory directive, the PTC system would be expected to enforce the upper limit of restricted speed on a train when the train was allowed into a block already occupied by another preceding train traveling in the same direction. In freight operations, there may be situations where, in order to accomplish local switching, further latitude would be necessary, so long as the upper limit of restricted speed is enforced.
NJ Transit suggests that the FRA consider modifying the verbiage to more clearly define the expectation of the operating rules and enforcement requirements associated with the Stop and Proceed indication.
FRA fully understands the concern presented by NJ Transit, but suggests that the recommended modification to verbiage is already provided for in the language of paragraph (f)(1)(ii). FRA has therefore elected to retain the language of paragraph (f) in the final rule.
Paragraphs (g) through (k) all concern situations where temporary rerouting may be necessary and would affect application of the operational rules under subpart I. While the final rule attempts to reduce the opportunity for PTC and non-PTC trains to co-exist on the same track, FRA recognizes that this may not always be possible, especially when a track segment is out of service and a train must be rerouted in order to continue to destination. Accordingly, paragraph (g) allows for temporary rerouting of traffic between PTC equipped lines and lines not equipped with PTC systems. FRA anticipates two situations—emergencies and planned maintenance—that would justify such rerouting.
Paragraph (g) provides the preconditions and procedural rules to allow or otherwise effectuate a temporary rerouting in the event of an emergency or planned maintenance that would prevent usage of the regularly used track. Historically, FRA has dealt with temporary rerouting on an ad hoc basis. For instance, on November 12, 1996, FRA granted UP, under its application RS&I-AP-No. 1099, conditional approval for relief from the requirements of § 236.566, which required equipping controlling locomotives with an operative apparatus responsive to all automatic train stop, train control, or cab signal territory equipment. The conditional approval provided for “detour train movements necessitated by catastrophic occurrence such as derailment, flood, fire, or hurricane” on certain listed UP territories configured with automatic cab signals (ACS) or automatic train stop (ATS). Ultimately, the relief would allow trains not equipped with the apparatus required under § 236.566 to enter those ACS and ATS territories. However, the relief was conditional upon establishing an absolute block in advance of each train movement—as prescribed by General Code of Operating Rules (GCOR) 11.1 and 11.2—and notifying the applicable FRA Regional Headquarters. The detour would only be permissible for up to seven days and FRA could modify or rescind the relief for railroad non-compliance.
On February 7, 2006, that relief was temporarily extended to include defined territory where approximately two months of extensive track improvements were necessary. Additional conditions for this relief included a maximum train speed of 65 miles per hour and notification to the FRA Region 8 Headquarters within 24 hours of the beginning of the non-equipped detour train movements and immediately upon any accident or incident. On February 27, 2007, FRA provided similar temporary relief for another three months on the same territory.
While the aforementioned conditional relief was provided on an ad hoc basis, FRA feels that codifying rules regulating temporary rerouting involving PTC system track or locomotive equipment is
Under the final rule, FRA is providing for temporary rerouting of non-PTC trains onto PTC track and PTC trains onto non-PTC track. A train will not be considered rerouted for purposes of the conditions set forth in this section if it operates on a PTC line that is other than its “normal route,” which is equipped and functionally responsive to the PTC system over which it is subsequently operated, or if it is a non-PTC train (not a passenger train or a freight train having any PIH materials) operating on a non-PTC line that is other than its “normal route.”
Paragraph (g) effectively provides temporary civil penalty immunity from various applicable requirements of this subpart, including provisions under subpart I relating to controlling locomotives, similar to how waivers from FRA have provided certain railroads immunity from § 236.566.
FRA expects that emergency rerouting will require some flexibility in order to respond to circumstances outside of the railroad's control—most notably changes in the weather, vandalism, and other unexpected occurrences—that would result in potential loss of life or property or prevent the train from continuing on its normal route. While paragraph (g) lists a number of possible emergency circumstances, they are primarily included for illustrative purposes and are not a limiting factor in determining whether an event rises to an emergency. For instance, FRA would also consider allowing rerouting in the event use of the track is prevented by vandalism or terrorism. While these events are not the primary reasons for which paragraph (g) would allow rerouting, FRA recognizes that they may fall outside of the railroad's control.
In the event of an emergency that would prevent usage of the track, temporary rerouting may occur instantly by the railroad without immediate FRA notice or approval. By contrast, the vast majority of maintenance activities can be predicted by railroad operators. While the final rule provides for temporary rerouting for such activities, the lack of exigent circumstances does not require the allowance of instantaneous rerouting without an appropriate request and, in cases where the request is for rerouting to exceed 30 days, FRA approval. Accordingly, under paragraph (g), procedurally speaking, temporary rerouting for emergency circumstances will be treated differently than temporary rerouting for planned maintenance. While FRA continues to have an interest in monitoring all temporary rerouting to ensure that it is occurring as contemplated by FRA and within the confines of the rule, the timing of FRA notification, and the approval procedures, reflects the aforementioned differences.
When an emergency circumstance occurs that would prevent usage of the regularly used track, and would require temporary rerouting, the subject railroad must notify FRA within one business day after the rerouting commences. To provide for communicative flexibility in emergency situations, the final rule provides for such notification to be made in writing or by telephone. FRA provides that written notification may be accomplished via overnight mail, e-mail, or facsimile. In any event, the railroad should take the steps necessary for the method of notification selected to include confirmation that an appropriate person actually on duty with FRA receives the notification and FRA is duly aware of the situation.
While telephone notification may provide for easy communications by the railroad, a mere phone call would not provide for documentation of information required under paragraph (g). Moreover, if for some reason the phone call is made at a time when the designated telephone operator is not on duty or if the caller is only able to leave a message with the FRA voice mail system, the possibility exists that the applicable FRA personnel would not be timely notified of the communication and its contents.
Emergency rerouting can only occur without FRA approval for fourteen (14) consecutive calendar days. If the railroad requires more time, it must make a request to the Associate Administrator. The request must be made directly to the Associate Administrator and separately from the initial notification sometime before the 14-day emergency rerouting period expires. Unless the Associate Administrator notifies the railroad of his or her approval before the end of the allowable emergency rerouting timeframe, the relief provided by paragraph (g) will expire at the end of that timeframe.
While a mere notification is necessary to commence emergency rerouting, a request must be made, with subsequent FRA approval, to perform planned maintenance rerouting. The relative predictability of planned maintenance activities allows railroads to provide FRA with much more advanced request of any necessary rerouting and allows FRA to review that request. FRA requires that the request be made at least 10 calendar days before the planned maintenance rerouting commences.
To ensure a retrievable record, the request must be made in writing. It may be submitted to FRA by fax, e-mail, or courier. Because of security protocols placed in effect after the terrorist attacks of September 11, 2001, regular mail undergoes irradiation to ensure that any pathogens have been destroyed prior to delivery. The irradiation process adds significant delay to FRA's receipt of the document, and the submitted document may be damaged due to the irradiation process. Thus, FRA implores those making a rerouting request in writing to deliver the request through other, more acceptable, means.
The lack of emergency circumstances makes telephonic communication less necessary, since the communication need not be immediate, and less preferable, since it may not be accurately documented for subsequent reference and review. Like notifications for emergency rerouting, the request for planned rerouting must include the number of days that the rerouting should occur. If the planned maintenance will require rerouting up to 30 days, then the request must be made with the Regional Administrator. If it will require rerouting for more than 30 days, then the request must be made with the Associate Administrator. These longer time periods reflects FRA's opportunity to review and approve the request. In other words, since FRA expects that the review and approval process will provide more confidence that a higher level of safety will be maintained, the rerouting period for planned maintenance activities may be more than the 14 days allotted for emergency rerouting.
Regardless of whether the temporary rerouting is the result of an emergency situation or planned maintenance, the communication to FRA required under paragraph (g) must include the information listed under paragraph (i). This information is necessary to provide FRA with context and details of the rerouting. To attempt to provide railroads with the flexibility intended under paragraph (g), and to attempt to prevent enforcement of the rules from which the railroad should be receiving relief, FRA must be able to coordinate with its inspectors and other personnel.
For emergency rerouting purposes, the information is also necessary for FRA to determine whether it should order the railroad or railroads to cease rerouting or provide additional conditions that differ from the standard conditions specified in paragraph (i). FRA recognizes the importance of allowing temporary rerouting to occur automatically in emergency circumstances. However, FRA must also maintain its responsibility of ensuring that such rerouting occurs lawfully and as intended by the rules. Accordingly, the final rule provides the opportunity for FRA to review the information required by paragraph (g) to be submitted in accordance with paragraph (i) and order the railroad or railroads to cease rerouting if FRA finds that such rerouting is not appropriate or permissible in accordance with the requirements of paragraphs (g) through (i), and as may be so directed in accordance with paragraph (k), as discussed further below.
For rerouting due to planned maintenance, the information required under paragraph (i) is equally applicable and will be used to determine whether the railroad should not reroute at all. If the request for planned maintenance is for a period of up to 30 days, then the request and information must be sent in writing to the Regional Administrator of the region in which the temporary rerouting will occur. While such a request is self-executing—meaning that it will automatically be considered permissible if not otherwise responded to—the Regional Administrator may prevent the temporary rerouting from starting by simply notifying the railroad or railroads that its request is not approved. The Regional Administrator may otherwise provide conditional approval, request that further information be supplied to the Regional Administrator or Associate Administrator, or disapprove the request altogether. If the railroad still seeks to reroute due to planned maintenance activities, it must provide the Regional Administrator or Associate Administrator, as applicable, the requested information. If the Regional Administrator requests further information, no planned maintenance rerouting may occur until the information is received and reviewed and the Regional Administrator provides his or her approval. Likewise, no planned maintenance rerouting may occur if the Regional Administrator disapproves of the request. If the Regional Administrator does not provide notice preventing the temporary rerouting, then the planned maintenance rerouting may begin and occur as requested. However, once the planned maintenance rerouting begins, the Regional Administrator may at any time order the railroad or railroads to cease the rerouting in accordance with paragraph (k).
Requests for planned maintenance rerouting exceeding 30 days, however, must be made to the Associate Administrator and are not self-executing. No such rerouting may occur without Associate Administrator approval, even if the date passes on which the planned maintenance was scheduled to commence. Under paragraph (h), like the Regional Administrator, the Associate Administrator may provide conditional approval, request further information, or disapprove of the request to reroute. Once approved rerouting commences, the Associate Administrator may also order the rerouting to cease in accordance with paragraph (k).
Where a train rerouted onto a track equipped with a PTC system is, for whatever reason, not compatible and functionally responsive to that PTC system (e.g., an unequipped controlling locomotive, or one equipped but not compatible with the associated wayside, office, or communications system), such train must be operated in accordance with § 236.1029. Where any train is rerouted onto a track segment that is not equipped with a PTC system, such train must be operated in accordance with the operating rules applicable to the track segment on which the train is being rerouted.
Moreover, as referenced in paragraph (g) as it applies to both emergency and planned maintenance circumstances, the track upon which FRA expects the rerouting to occur would require certain mitigating protections listed under paragraph (j) in light of the mixed PTC and non-PTC traffic. While FRA purposefully intends paragraph (j) to apply similarly to § 236.567, FRA recognizes that § 236.567 does not account for the statutory mandates of interoperability and the core PTC safety functions. Accordingly, paragraph (j) must be more restrictive.
Section 236.567, which applies to territories where “an automatic train stop, train control, or cab signal device fails and/or is cut out en route,” requires trains to proceed at either restricted speed or, if an automatic block signal system is in operation according to signal indication, at no more than 40 miles per hour to the next available point of communication where report must be made to a designated officer. Where no automatic block signal system is in use, the train shall be permitted to proceed at restricted speed or where an automatic block signal system is in operation according to signal indication but not to exceed medium speed to a point where absolute block can be established. Where an absolute block is established in advance of the train on which the device is inoperative, the train may proceed at not to exceed 79 miles per hour. Paragraph (j) utilizes that absolute block condition, which more actively engages the train dispatcher in managing movement of the train over the territory (in both signaled and non-signaled territory). Recognizing that re-routes under this section will occur in non-signaled territory, the maximum authorized speeds associated with such territory are used as limitations on the speed of re-routed trains. FRA agrees with the comments of labor representatives in the PTC Working Group who contend that the statutory mandate alters to some extent what would otherwise be considered reasonable for these circumstances.
It should be noted that this paragraph (j) was added by FRA after further consideration of this issue and was not part of the PTC Working Group consensus. FRA received several comments associated with the temporary rerouting requirements and the restrictive operational conditions imposed by paragraphs (j)(1) and (j)(2) as being overly burdensome, unsupported and inappropriate. Specifically, the idea that a train rerouted from a PTC line to a non-PTC line should be treated differently than the existing traffic on the non-PTC line is unjustified. The commenters suggest current FRA operational requirements contained in §§ 236.0(c) and (d) providing for speeds greater than 49 miles per hour for freight and 59 miles per hour for passenger trains where a block signal system and/or an automatic cab signal, automatic train stop, or automatic train control system is in place, is applied safely today and should continue as the applicable regulation for this reroute scenario. Thus, the commenters suggest rewording paragraph (j)(2) to read as follows: “Each rerouted train movement shall operate in accordance with § 236.0.”
When the PTC Working Group was reconvened following the public hearing and the NPRM comment period, the PTC Working Group formed three
Following significant discussion of these issues, a PTC Working Group task force recommended rule text changes that would maintain the intended level of safety in an acceptable manner while recognizing the impractical nature and perhaps even resultant increase in risk associated with restricting the operation of a rerouted train from a PTC-equipped line onto a non-PTC equipped line more than other similarly equipped trains that normally operated on the non-PTC equipped line. Therefore, the task force recommended that paragraph (j) be revised to read as follows: “(j)
This recommended revision to paragraph (j) was presented to the PTC Working Group and gained consensus from the group. However, upon further consideration, FRA has decided to adopt a slight variation of the recommended revised rule text in order to provide additional clarification regarding the applicability of paragraph (j)(1) to either a train not equipped with a PTC system, or one not equipped with a PTC system that is compatible and functionally responsive to the PTC system utilized on the line on which the train is rerouted. Therefore, paragraph (j) has been revised in the final rule to read as follows: “(j)
Paragraph (k), as previously noted, provides the Regional Administrator with the ability to order the railroad or railroads to cease rerouting operations that were requested for up to 30 days. The Associate Administrator may order a railroad or railroads to cease rerouting operations regardless of the length of planned maintenance rerouting requested. FRA believes this is an important measure necessary to prevent rerouting performed not in accordance with the rules and FRA's expectations based on the railroad's communications and to ensure the protection of train crews and the public. However, FRA is confident that in the vast majority of cases railroads will utilize the afforded latitude reasonably and only under necessary circumstances.
FRA expects each host railroad to develop a plan to govern operations in the event temporary rerouting is performed in accordance with this section. Thus, as noted further below in § 236.1015, this final rule requires that each PTCSP include a plan accounting for such rerouted operations.
As reflected by § 236.566, the basic rule for train control operations is that all trains will be equipped with responsive onboard apparatus. Paragraph (a) so provided in the NPRM, and the language is continued in the final rule. Paragraph (a) requires that, as a general rule, all trains operating over PTC territory must be PTC-equipped. In other words, paragraph (a) requires that each controlling locomotive be operated with a PTC onboard apparatus if it is controlling a train operating on a track equipped with a PTC system in accordance with subpart I. The PTC onboard apparatus should operate and function in accordance with the PTCSP governing the particular territory. Accordingly, it must successfully and sufficiently interoperate with the host railroad's PTC system.
In the NPRM, FRA recognized the possibility of controlling locomotives not necessarily being placed in a train's lead position and sought comments on this issue. Comments were filed indicating that the lead locomotive is not always necessarily the controlling locomotive. In light of this information, the final rule reflects a change from “lead locomotive” to “controlling locomotive” as necessary. FRA's understanding of a “controlling locomotive” is the same understanding as it is used in part 232 and as defined in § 232.5. Hence, a definition has been added to § 236.1003 merely cross-referencing to § 232.5.
First, it is understood that during the time PTC technology is being deployed to meet the statutory deadline of December 31, 2015, there will be movements over PTC lines by trains with controlling locomotives not equipped with a PTC onboard apparatus. In general, Class I railroad locomotives are used throughout the owning railroad's system and, under shared power agreements, on other railroads nationally. FRA anticipates that the gradual equipping of locomotives—which will occur at a relatively small number of specialized facilities and which will require a day or two of out of service time as well as time in transit—will extend well into the implementation period that ends on December 31, 2015. It will not be feasible to tie locomotives down to PTC lines, and the RSAC stakeholders fully understood that point. The RLO did urge that railroads make every effort to use equipped locomotives as controlling units, and FRA believes that, in general, railroads will do so in order to obtain the benefits of their investment.
The debate on this point has dealt with the possibility of exceptions, which was addressed in paragraph (b) in the NPRM. The discussion below pertains to the issue of temporary and permanent exceptions to the rule.
The first issue arose under proposed paragraphs (b)(1) and (b)(2), which endeavored to set out the rules for the transitional period during which PTC will be deployed. It is well understood and accepted that it is not feasible to require all trains operating on a PTC line to be PTC-equipped and operative from the first day the system is turned on. Locomotive fleets will be equipped over a multi-year period, and deployment of locomotives will be driven by many factors, of which PTC status is only one. Efficient use of locomotives requires them to be available for use on multiple routes and even under “shared power” agreements with other railroads. In some cases, even when a PTC-equipped locomotive is placed in a consist destined for a PTC line there may be legitimate reasons why it is not placed in the controlling position.
Accordingly, the NPRM provided what FRA thought was a very modest proposal that equipped locomotives placed in the lead on trains bound for PTC territory have their PTC equipment turned on. FRA even made allowance for a declining percentage of such locomotives being dispatched into PTC
The AAR stated that the proposal was beyond FRA's authority and that FRA has no ability to require use of PTC before December 31, 2015. According to AAR, railroads will be required to use PTC-equipped locomotives on PTC routes come December 31, 2015, and AAR does not understand how this obligation could be addressed in the implementation plan other than to state PTC-equipped locomotives would be used on PTC routes. In the AAR's view, requiring PTC-equipped locomotives to be turned on would create a disincentive to equip locomotives early. Limiting the ability of railroads to operate trains with locomotives that fail initialization could result in railroads attempting to avoid rail system congestion by delaying the equipping of locomotives. To avoid such a disincentive for equipping locomotives, AAR believes that FRA should permit, without limitation, the operation of locomotives that fail initialization before December 31, 2015.
CSXT asserted that the requirements contained in paragraph (b)(2)(iii) with respect to the allowable percentage of controlling locomotives operating out of each railroad's initial terminals with failed systems over track segments equipped with PTC will deter early implementation efforts and unfairly punish railroads that are diligently working to implement PTC on designated tracks. In addition, CSXT questioned the usefulness of such a provision, as CSXT argued that there is no meaningful difference between a locomotive that is not equipped with PTC and a locomotive that is equipped with a PTC system that is not fully functioning.
Recognizing that matching PTC lines with PTC-equipped controlling locomotives will be a key factor in obtaining the benefits of this technology in the period up to December 31, 2015, FRA requested comments on whether PTCIPs should be required to include power management elements describing how this will be accomplished to the degree feasible. In response, NJ Transit asserted that the PTCIP does require both the lines risk assessment (to establish the track segment order of PTC commissioning) and the schedule to equip rolling stock and suggests that these schedules can and should indicate the effort of a railroad to assure that vehicles are equipped and available for the PTC equipped lines. According to NJ Transit, inclusion of a power management plan as well within the PTCIP provides an additional effort that has a high probability of requiring updates during the PTC implementation period, while the schedules and a good faith effort alone may serve the purpose most efficiently, especially for the short time period anticipated (this should be recognized as 2012 through 2015 at worst). NJ Transit suggests that FRA should not include this plan as a PTCIP requirement, but require the best good faith effort by each railroad for providing equipped vehicles during the short interim period subject to this concern.
The AAR also stated that, for trains in long-haul service, the train's point of origin or location where the locomotive was added to the train may be many crew districts or hundreds or thousands of miles prior to the location where the locomotive's onboard PTC apparatus is initialized for operation in PTC-equipped territory. In this case, the paragraph is overly restrictive and should be modified to be predicated on the location prior to entering PTC-equipped territory where initialization failed. Accordingly, AAR suggests that paragraph (b)(2)(i) be revised to read: “The subject locomotive failed initialization at the point of crew origin for the train or at the location where the locomotive was added to the PTC initialized train.”
The RLO also urges FRA to adopt a requirement that railroads place equipped engines in the lead or controlling position whenever such equipped engines are in the engine consist during the implementation period. The RLO states that implementing such consist management initiatives will help identify any problems in the interface of the onboard and wayside systems. In the future, states the RLO, railroad operations will come to rely heavily upon the proper function of these PTC systems. According to the RLO, requiring railroads to adopt this approach would require the minor operational maneuver of switching a trailing unit to the train's lead position. Since technical anomalies that go undetected can be catastrophic, the RLO asserts that FRA should not squander the opportunity for discovering them during the implementation period.
During the public hearing conducted on August 13, 2009, FRA specifically asked how the RLO expected a railroad to handle the situation where an engine that is PTC-equipped may be positioned with long hood forward or may have a broken air conditioning system. In its comments dated August 20, 2009, the RLO responded by stating that it is broadly accepted industry practice to operate trains with the short hood in the direction of movement. Operating trains with the long hood forward presents safety concerns because the engineer has a limited view of the track with that configuration. However, if any safety feature or safe practice is impaired, altered, or compromised in any locomotive, it should not be in the lead or operating position of the train. Therefore, if the engine is not equipped with air conditioning or if the long hood is facing forward, the railroad would have three choices: grant the crew the right to switch a fully-compliant locomotive to the lead at the first location where this can be accomplished, do not operate at all, or remove the engine from the engine consist entirely. The RLO asserts that this approach would create the safest possible working environment, as the safest locomotive is the one with PTC, AC, and the short hood forward.
GE asserts that, by using emerging technology, it is possible to operate a PTC system from the lead controlling locomotive using at least some parts of a PTC system on trailing locomotives in the consist if the onboard network is extended through the locomotive consist. According to GE, this can provide a useful contingent operation if some component fails in the locomotive and a backup component on a trailing unit is linked over the network, providing higher overall PTC availability. For example, should the data radio fail on the lead locomotive, PTC could continue to operate through a working radio on the second or third locomotive unit.
FRA agrees that PTC-equipped locomotives should be utilized when available on PTC territory during the implementation period, and it is recognized that it is possible for a unit to serve as the controlling locomotive when not positioned first in the consist. FRA believes that railroads have strong incentives to take advantage of their investments in PTC, but also includes in the final rule a requirement that the PTCIP include goals for PTC-equipped locomotives in PTC territory.
This issue was discussed further in the PTC Working Group during the review of the comments, but no formal resolution was achieved. FRA is not obligated to provide any exception here whatsoever, and the contention that FRA may not require use of PTC prior to December 31, 2015, is utterly without merit. Nevertheless, FRA does not wish to proceed in such a manner as to create even a temporary disincentive to deploy PTC locomotives on PTC-equipped lines. However, clearly leaving the carriers to their own devices without
Accordingly, FRA has included in the final rule, in lieu of the language initially proposed, a requirement that each railroad include in its PTCIP specific goals for progressively effective use of its equipped locomotives on PTC lines that have been made operational. FRA would review the goals and stated justification as part of its review of the PTCIP. The railroad would then be required to report annually its progress toward achieving its goals, including any adjustments required to remedy shortfalls. Although FRA does not intend to second guess details of power management, FRA does believe it is reasonable to expect results in the form of steadily declining PTC-preventable accidents during the implementation period. The only way to accomplish that is to ensure that PTC onboard apparatus is deployed on PTC lines in reasonable proportion to its deployment elsewhere and that, when so deployed, it is utilized as intended.
The second major issue arose under paragraph (b)(4), which proposed limited exceptions for movements of Class II and III trains over PTC lines of the Class I railroads. The disagreements attendant to that proposal warrant more detailed treatment.
New PTC systems will be like existing train control systems in the sense that they are comprised of onboard and wayside components. They will also involve a more substantial centralized “office” function. The railroad that has the right to control movements over a line of railroad (generally the entity providing or contracting for the dispatching function) will provide for equipping of the wayside and appropriate links to and interface with the office. In preparing the recommendations that led to the NPRM, the PTC Working Group discussed at great length the issues related to operation of PTC-equipped locomotives, and locomotives not equipped with PTC onboard apparatus, over lines equipped with PTC. As explained above, the PTC Working Group recognized that the typical rule with respect to train control territory is that all controlling locomotives must be equipped and operative (
The ASLRRA noted that its member railroads conduct limited operations over Class I railroad lines that will be required to be equipped with PTC systems in a substantial number of locations. These operations are principally related to the receipt and delivery of carload traffic in interchange. The small railroad service extends onto the Class I railroad track in order to hold down costs and permit both the small railroad and the Class I railroad to retain traffic that might be priced off the railroad if the Class I had to dispatch a crew to pick up or place the cars. This, in turn, supports competitive transportation options for small businesses, including marginal small businesses in rural areas.
The ASLRRA advocated an exception that would permit the trains of its members and other small railroads to continue use of existing trackage rights and agreements without the necessity for equipping their locomotives with PTC technology. They suggested that any incremental risk be mitigated by requiring that such trains proceed subject to the requirement for an absolute block in advance (similar to operating rules consistent with § 236.567 applicable to trains with failed onboard train control systems). This position was consistently opposed both by the rail labor organizations and the Class I railroads. These organizations took the position that all trains should be equipped with PTC in order to gain the benefits sought by the congressional mandate and to provide the host railroad the full benefit of its investment in safety. Informal discussions suggested that Class I railroads might offer technical or financial assistance to certain small railroads in equipping their locomotives, but that this would, of course, be done based on the corporate interest of the Class I railroad. Although, in general, market forces and the public interest can be expected to correspond over time, this is not always the case. So, for instance, there is a risk that requiring all Class II and Class III railroads operating on Class I PTC lines to be equipped with PTC could be financially unsustainable absent a more generous division of the rate or other assistance (technical or otherwise) from the Class I interchange partner. A Class I railroad might respond to such situations based exclusively on the value of the traffic interchanged with respect to the transportation charge recovered for the long haul less costs. Although that might be a good market decision for the Class I railroad, the result could be loss of rail service for a rural community and diversion of the traffic to the highway—a result that might not be in the public interest. Over the past several decades the federal government and many of the states have made investments in light density rail service (through grants, loans, or tax concessions) that could be undermined should this occur.
In the PTC Working Group and in informal discussions around its activities, Class I railroads indicated that they intended to take a strong position against non-equipped trains operating on their PTC lines, and that in order to enforce this restriction fairly, they understood that they would need to equip their own locomotives, including older road switchers that might venture onto PTC-equipped lines only occasionally. However, during these discussions, FRA was not able to develop a clear understanding regarding the extent to which the Class I railroads, under previously executed private agreements or because of a senior position derived from a prior transaction, enjoy the effective ability to enforce a requirement that all trains be equipped.
FRA offered this proposal in order to limit the burden on small entities and to avoid costs that were both avoidable and more greatly disproportionate to anticipated benefits than the basic requirements of the congressional mandate. FRA noted that the exceptions would constitute a small portion of the movements over the PTC-equipped line. FRA asserted that the accident/incident data show that the risk attendant upon these movements is small. As reflected in the NPRM, a review of the last seven years of accident data covering 3,312 accidents that were potentially preventable by PTC showed that there were only two of those accidents that involved a Class I railroad's train and a Class II or III railroad's train. (Left unstated in the NPRM was the fact that the presence of PTC would have prevented one of the accidents even absent equipping of the tenant train, while the other would not be prevented due to limitations of PTC architectures with respect to low-speed rear-end collisions.) FRA believed that the low level of risk revealed by these statistics justified an exception for Class II and III railroad trains traversing a PTC-equipped line for a relatively short distance. FRA noted that the cost of equipping those trains would be high when viewed in the context of the financial strength of the Class II or III railroad and the marginal safety benefits would be relatively low in those cases where a small volume of traffic is moved over the PTC-equipped line.
The AAR has also expressed concerns with the proposal, stating that “[s]urely Congress did not enact a requirement for the Class I railroads to spend billions of dollars on PTC systems only to permit Class II and III railroads to operate trains unequipped with PTC technology on the PTC routes. AAR asserts that FRA has not shown that there would actually be a financial strain on Class II and III railroads. According to AAR, a Class II or III railroad would not have to equip a locomotive with PTC technology until December 31, 2015. In any event, states AAR, the statute makes no distinction among Class I, II, or III operations on a PTC route.
CSXT disagreed with FRA's interpretation of RSIA08, stating that the statute, on its face, does not exempt Class II and III railroads from the PTC requirements. To the contrary, asserted CSXT, the statute appears to contemplate that Class II and III railroads traveling on PTC lines would be subject to the PTC requirements since each PTCIP for those lines “must provide for interoperability of the system with movements of trains of
Moreover, according to CSXT, the exemption under proposed paragraph (b)(4)(B)(ii) was unclear as to its application This section allowed Class II and III railroads to operate on PTC operated track segments to the extent that any single railroad is allowed “less than four such unequipped trains” over any given track segment. CSXT questions whether the number of trains is limited per a common holding company or each railroad subsidiary. (The intent is that the limit will be applied to each separate railroad company, regardless of common ownership.)
Recognizing FRA's concerns with imposing the costs of PTC implementation on Class II and III railroads, AAR believes FRA is mixing up Congress' concern about the ability of Class II and III railroads to finance installation of PTC on their own routes with the ability of Class II and III railroads to operate locomotives equipped with PTC technology over Class I track. The AAR notes that FRA's own analysis shows that the cost of equipping locomotives with PTC technology amounts to less than a third of total PTC development and installation costs. According to AAR, a Class II or III railroad qualifying for the proposed exception likely would only need to equip only one or two locomotives with PTC technology by sometime after 2015.
In any event, AAR asserts that this proposed exemption for Class II and III railroads is inconsistent with the plain language of the statute, which does not distinguish between Class I, II, or III operations on a main line with PIH materials. Congress determined that PTC should be required on Class I routes meeting the statutory criteria regardless of any cost-benefit analysis. The AAR believes that it is inconceivable that Congress intended unequipped locomotives be permitted to operate routinely where PTC is required, thus undercutting the benefit of equipping a PTC route with PTC technology.
The AAR also challenges FRA's conclusion about the “marginal safety benefit,” which seems premised on its analysis of train-to-train collisions, questioning whether FRA has concluded that a train operated by a Class II or III railroad poses less of a risk with respect to each of the core PTC functions than a train operated by a Class I railroad. Leaving aside AAR's objection to any exception permitting Class II and III railroads to conduct routine operations over PTC routes with unequipped locomotives, AAR does not agree with the proposal to wait until December 31, 2020, to impose the twenty-mile limitation. According to AAR, FRA has no factual basis for its concern that Class II and III railroads will be unable to obtain the technology as suppliers seek to equip their bigger Class I customers first. In fact, states AAR, it is more likely that Class I railroads will work with their Class II and III partners to prepare for the 2015 implementation deadline.
The Canadian Pacific Railway does not support the operation of unequipped locomotives on PTC equipped lines after December 31, 2015. It is CP's position that all trains operating on PTC territory after December 31, 2015, must be controlled by a locomotive equipped for PTC operation, regardless of whether or not the locomotive in the controlling position is considered “historic.”
NYSMTA, the parent organization for the Long Island Rail Road and Metro-North Railroad, asserted that subpart I of this part should require all operators on the same trackage as commuter railroads to be fully equipped, as is the case in the existing FRA regulation, and that all trains (including those of all Class II and Class III tenant railroads) operating in cab signal/train control territory must have operative cab signal and ATC. Thus, NYSMTA suggested that subpart
FRA received a number of comments regarding the operation of historic locomotives over rail lines that will need to be equipped with a PTC system, from commenters such as the San Bernardino Railway Historical Society, the Pacific Southwest Railway Museum, the Railroad Passenger Car Alliance, and J.L. Patterson & Associates. These commenters requested that FRA provide clarification that a historic locomotive, as defined in 49 CFR 229.125(h), which is not equipped with PTC may be operated over rail lines equipped with PTC systems in limited excursion service, provided an excursion operating management plan is included in the PTC railroad's PTCIP that is consistent with the provisions of § 236.1029(b) of this part.
These locomotives might include steam locomotives many decades old. FRA notes that these operations are relatively infrequent, and they normally receive additional oversight by host railroads as a matter of course.
FRA presumes for purposes of this final rule that there will be circumstances rooted in previously executed private agreements under which the Class I railroad would be entitled to require the small railroad to use a controlling locomotive equipped with PTC as a condition of operating onto the property. FRA wishes to emphasize that, in issuing this final rule, FRA does not intend to influence the exercise of private rights or to suggest that public policy would disfavor an otherwise legitimate restriction on the use of unequipped locomotives on PTC lines. FRA also notes that, in the absence of clear guidance on this issue, a substantial number of waiver requests could be expected that would have to be resolved without the benefit of decisional criteria previously examined and refined through the rulemaking process.
With respect to limited operations of Class II or III railroads on Class I PTC lines, FRA continues to believe that the risk in question is very small in relation to the direct and indirect costs of equipping locomotives with PTC and maintaining those locomotives over time (including configuration management). FRA has also considered the issues required applicable statutes concerning the affect of regulations on small entities. (
FRA has adopted final language sufficiently flexible to permit occasional tourist, historic and excursion service on PTC lines. Much of the subject equipment is used very lightly and in fact may spend the great majority of its time on static display. Ending the educational and recreational role of occasional excursion service is no part of what the Congress was addressing through the mandate underlying this rule.
Paragraph (b)(3) references the fact that operation of trains with failed onboard PTC apparatus is governed by the safeguards of § 236.1029, where applicable; and paragraph (c) applies the same principle to non-equipped trains operating on PTC territory.
Since the early 1990's, there has been an interest centered around designated high-speed corridors for the introduction of high-speed rail, and a number of states have made progress in preparing rail corridors through safety improvements at highway-rail grade crossings, investments in track structure, and other areas. FRA has administered limited programs of assistance using appropriated funds. With the passage of ARRA, which provides $8 billion in capital assistance for high-speed rail corridors and intercity passenger rail service, and the President's announcement in April 2009 of a
Section 236.1007 sets the intervals for the high-speed safety performance targets for operations with: maximum speeds at or greater than 60 and 50 miles per hour for passenger service and freight operations, respectively, under paragraph (a); maximum speeds greater than 90 miles per hour under paragraph (b); maximum speeds greater than 125 miles per hour under paragraph (c); and maximum speeds greater than 150 mph under paragraph (d). The reader should note that the requirements increase as speed rises. Thus, for instance, operations with trains moving above 125 miles per hour must, in addition to the requirements under paragraph (c), adhere to the requirements under paragraphs (a) and (b).
Paragraph (a) addresses the PTC system requirements for territories where speeds are greater than 59 miles per hour for passenger service and 49 miles per hour for freight service. Under 49 CFR 236.0 as it existed directly previous to the issuance of this final rule, block signal systems were required at these speeds (unless a manual block system was in place, an option that this final rule phases out). The final rule expects covered operations moving at these speeds to have implemented a PTC system that provides, either directly or with another technology, all of the statutory PTC system functions along with the safety-critical functions of a block signal system as defined in the existing standards of subparts A through F of part 236. The safety-critical functions of a block signal system include track circuits, which assist in broken rail detection and unintended track occupancies (equipment rolling out), and fouling circuits, which can identify equipment that is intruding on the clearance envelope and may prevent raking collisions. FRA recognizes that advances in technology may render current block signal, fouling, and broken rail detection systems obsolete and FRA does not want to preclude the introduction of suitable and appropriate advanced technologies. Accordingly, FRA believes that alternative mechanisms providing the same functionality are entirely acceptable and FRA encourages their development and use to the extent they do not have an adverse impact on the level of safety.
Paragraph (b) addresses system requirements for territories where operating speeds are greater than 90 miles per hour, which is currently the maximum allowable operating speed for passenger trains on Class 5 track. At these higher speeds, the implemented PTC system must not only comply with paragraph (a), but also be shown to be fail-safe (as defined in Appendix C) and at all times prevent unauthorized intrusion of rail traffic onto the higher speed line operating with a PTC system. FRA intends this concept of fail-safe application to be understood in its commonplace meaning; i.e., that insofar as feasible the system is designed to fail to a safe state, which normally means that each subject train will be brought to a stop. Further, FRA understands that there are aspects of current system design and operation that may create a remote opportunity for a “wrong-side” or unsafe failure and that these issues would be described in the PTCSP and mitigations would be provided. FRA recognizes that, as applied in the general freight system, this final rule could create a significant challenge related to interoperability of freight equipment operating over the same territory. Accordingly, FRA requested comment on whether, where operations do not exceed 125 miles per hour or some other value, the requirement for compliance with Appendix C safety assurance principles might be limited to the passenger trains involved, with “non-vital” onboard processing permitted for the intermingled freight trains. No comments were received on this issue, apart from the general concern of the RLO that very safe technology be employed in all PTC systems, and the restriction is adopted as proposed.
As speed increases, it also becomes more important that inadvertent incursions on the PTC-equipped track be prevented at switch locations. In this final rule, FRA expects that this be done by effective means that might include use of split-point derails properly placed, equipping of tracks providing entry with PTC, or arrangement of tracks and switches in such a way as to divert an approaching movement which is not authorized to enter onto the PTC line. The protection mechanism on the slower speed line must be integrated with the PTC system on the higher speed line in a manner to provide appropriate control of trains operating on the higher speed line if a violation is not prevented for whatever reason.
Paragraph (c) addresses high-speed rail operations exceeding 125 miles per hour, which is the maximum speed for Class 7 track under § 213.307. At these higher speeds, the consequences of a derailment or collision are significantly greater than at lower speeds due to the involved vehicle's increased kinetic energy. In such circumstances, in addition to meeting the requirements under paragraphs (a) and (b), including having a fail-safe PTC system, the entity operating above 125 miles per hour must provide an additional safety analysis (the HSR-125) providing suitable evidence to the Associate Administrator that the PTC system can support a level of safety equivalent to, or better than, the best level of safety of comparable rail service in either the United States or a foreign country over the 5 year period preceding the submission of the PTCSP. Additionally, PTC systems on these high-speed lines must provide the capability, as appropriate, to detect incursion from outside the right of way and provide warnings to trains. Each subject railroad is free to suggest in its HSR-125 any method to the Associate Administrator that ensures that the subject high-speed lines are corridors effectively sealed and protected from such incursions (see § 213.347 of this title), including such hazards as motor vehicles falling on the track structure from highway bridges.
Paragraph (d) addresses the highest speeds existing or currently contemplated for rail operations exceeding 150 miles per hour. FRA expects these operations to be governed by a Rule of Particular Applicability and the HSR-125 required by paragraph (c) shall be developed as part of an overall system safety plan approved by the Associate Administrator. The quantitative risk showing required for operations above 125 miles per hour is not required to include consideration of acts of deliberate violence. The reason for this exclusion is simply to remove speculative or extraordinary considerations from the analysis. However, FRA and the Department of Homeland Security will certainly expect that security considerations are taken into account in system planning.
AASHTO believed that the proposed rule appropriately addressed the PTC related safety levels for high-speed rail. According to AASHTO, the proposed rule text provided a clear position for the levels of safety required for high-speed rail at speeds that are achieved today, and for speeds that may be achieved in the future, allowing for benchmarking against precedent levels achieved in the U.S. and internationally. AASHTO also commented that, in PTC systems running over federally designated high-speed rail corridors, highway-rail grade crossings should either be eliminated or protected by hazard warning detection systems.
Amtrak notes that it currently operates safely above 90 miles per hour on the Northeast Corridor and on its Michigan line, with the full knowledge, approval, and authorization of the FRA, based on past and remaining safety procedures and equipment. Amtrak also states that it currently operates above 125 mph on portions of the Northeast Corridor. Accordingly, Amtrak asserts that services above 90 and 125 miles per hour that existed as of October 16, 2008, the date of RSIA08, should be exempted or “grandfathered” from the requirements of this section.
FRA agrees that Amtrak has been providing safe passenger service at speeds between 90 and 150 miles per hour on the Northeast Corridor as well as its Michigan line, and that the train control systems in use (ACSES with Cab Signals, and ITCS) have records of safe operations. Given the value of service experience and the extraordinary burden of review and decision making associated with this rule, FRA intends to give full credit to established safety
Section 236.1009 establishes the regulatory procedures that must be followed by each Class I railroad carrier and each entity providing regularly scheduled intercity or commuter rail passenger transportation to obtain the required FRA certification of PTC systems prior to operating the system or component in revenue service. FRA is implementing these requirements to support more rapid FRA review and decision making, while reducing the administrative burden on the railroads.
While the current subpart H of this part provides a technically sound procedure for obtaining FRA approval of various processor-based signal and train control systems, it was crafted with the presumption that PTC implementation was a strictly voluntary action on the part of railroads. Arguably FRA could have simply amended subpart H to include requirements relating to implementation plans and to modify the language to equate “approval” under subpart H with “certification” under the statute. However, FRA believes that such a resultant amended subpart H would still remain unsuitable to support the RSIA08 implementation schedule. Accordingly FRA has developed the new procedures of this section to avoid redundancy, provide sufficient flexibility to accompany the varying needs of those seeking certification, and to mitigate the financial risk associated with technological investment necessary to comply with the regulatory requirements.
Generally speaking, there are three documents associated with the new procedures of this section: the PTCIP, PTCDP, and PTCSP. The details of each document are set forth in §§ 236.1011, 236.1013, and 236.1015, respectively. To summarize these sections, the PTCIP is the written plan that defines the specific details of how and when the railroad will implement the PTC system. The PTCDP provides a detailed discussion of the proposed technology and product that will be implemented according to the PTCIP. The PTCSP provides the railroad-specific information demonstrating that the PTC system, as implemented by the railroad, meets the required safety performance objectives. Certification of a PTC system by FRA for revenue operations is based on the review and approval of the information provided in these documents.
Paragraph (a) requires that a PTCIP be filed by “host” railroads as defined in § 236.1003 that are required to install a PTC system on one or more main lines in accordance with § 236.1005(b). This generally is each Class I railroad and each entity providing regularly scheduled intercity or commuter rail passenger transportation as defined by statute. However, Class II and III railroads that host intercity or commuter rail service will also need to file implementation plans, whether or not they directly procure or manage installation of the PTC system.
Intercity and commuter railroads that are tenants on Class I, II, or III freight lines must also join with their host railroad in filing these plans. FRA believes that the railroad that maintains operational control over a particular track segment is generally in the best position to develop and submit the PTCIP, since that railroad is more knowledgeable of the conditions of, and operations over, its track. FRA recognizes that, in cases where a tenant passenger railroad operates over a Class II or III railroad, the passenger railroad may be required to take a more active role in planning the PTC system deployment by working with the host railroad. In the case of an intercity or commuter railroad providing service over a Class I railroad, it may be sufficient for the passenger railroad to file a letter associating itself with the Class I railroad's plan to the extent it impacts the passenger service. AAR also expressed some confusion whether the requirement to file joint plans was only required when freight and passenger railroads conduct operations over the same route. The final rule does not levy any requirement for joint filing in the case where another railroad has freight trackage rights over a Class I railroad's PTC line. FRA expects that the host Class I railroad will address these types of operations and discuss the issue of interoperability in its PTCIP as required by law.
The Class I railroads generally opposed the requirement for a host railroad and tenant passenger railroad to file a joint PTCIP as being excessively burdensome and unnecessary because it merely appears to be intended to address interoperability issues. Beyond possibly addressing the interoperability issue, the AAR maintained that nothing further would be gained by requiring the joint filing of a PTCIP.
FRA has taken note of these objections. However, FRA believes that the joint filing requirement provides motivation for the proactive involvement by both parties in the decision-making process, especially with regards to interoperable equipment requirements and operating procedures. This joint filing requirement reflects FRA's position that communication between all parties involved in establishing interoperability is absolutely essential to ensure the implementation of timely, cost effective solutions.
Some railroads have also expressed concern that they will be required to support installation of PTC over Class II and III railroads that would otherwise not be required to implement PTC, were it not for the passenger/commuter railroad presence. Amtrak noted that the requirement for joint filings would, as a practical manner, require Amtrak to take a dominant role in the development and preparation of the required documentation.
While FRA appreciates the difficulties that both the passenger/commuter railroad, as well as the Class II or III railroad may experience, FRA believes that this is essentially a commercial matter between the parties involved, which would be best resolved with government participation only as a last resort. This position is consistent with the underlying philosophy of sections 151 through 188 of title 45 of the United States Code.
Although FRA believes that the resolution of differences between host and tenant railroads is a commercial issue, provisions have been made if a host freight railroad and tenant passenger railroad cannot come to an agreement to jointly file a PTCIP by April 16, 2010. In this situation, each railroad must file an individual PTCIP, together with a notification to the Associate Administrator, indicating that a joint filing was not possible and an explanation of why the subject railroads could not agree upon a final PTCIP for joint filing.
Both the freight and passenger/commuter railroads have strenuously objected to the assessment of civil penalties in the event that agreement cannot be reached. Amtrak claimed that failure to come to agreement did not rise to the level of an act that warranted penalty. AAR asserted that imposition of penalties would not be an appropriate way to resolve good faith disputes over the implementation of PTC. Concern has also been raised that, in the event of a dispute, the resolution process does not appear to have any established milestones. NYSMTA expressed concern related to the ability of railroads to fairly and quickly resolve disputes related to the development of host/tenant interoperability agreements required by RSIA08. NYSMTA asserted that, even though FRA provides for dispute resolution in § 236.1009, there are no time limits or standards to ensure
FRA has taken note of these objections and concerns. FRA believes that the milestones are self-evident. Railroads are required to file implementation plans by April 16, 2010. Thus, failure to file an implementation plan (either jointly or individually) by April 16, 2010, constitutes a violation of the RSIA08. Railroads are also required to complete implementation by December 31, 2015. FRA does not intend to set any specific deadline for completion of mediation or arbitration other than to state that the mediation or arbitration must be resolved in time to allow both parties to complete the timely submission of their PTCIP by April 16, 2010, and to complete PTC installation by December 31, 2015.
FRA will exercise its prosecutorial discretion if railroads have unresolved conflicts, but have filed individual implementation plans in accordance with paragraph (a)(4) of this section and are engaged in good faith mediation or arbitration.
Caltrain requested clarification of the meaning of the term “confer,” as used in paragraph (a)(4)(iv) of this section. During the conference process, FRA will request that all parties to the dispute advise FRA of where their differences arise, so that FRA can evaluate the potential impact on completion of the statutorily-required build out and understand the nature and extent of their disagreement. FRA may propose alternative solutions for consideration by both parties in the dispute. FRA is not, however, obligated to act as either a mediator or arbitrator of essentially commercial disputes. FRA expects that the disputing parties will submit such issues to a mutually acceptable mediator or arbitrator. If the disputing parties are unable to find a mutually agreeable private mediator or arbitrator, FRA may agree to mediate the dispute as a last resort. Otherwise, the disputing parties will need to seek judicial resolution of their issues.
It was also commented that if a PTCIP or request for amendment (RFA), as provided in § 236.1021, is submitted after April 16, 2010, in accordance with this rule, paragraph (a) does not provide the subject railroads with an opportunity to file separately. FRA intends, in such a situation, that if a railroad wishes to use track that would require the installation of a PTC system, and the parties have difficulty reaching agreement, then such usage would be delayed until the parties jointly file a mutually acceptable PTCIP and the jointly-filed PTCIP is approved by FRA.
FRA notes that new passenger railroads are likely to begin operations during the period between issuance of this final rule and the end of the implementation period for PTC (December 31, 2015). Railroads that are required to install PTC, who intend to commence operations after April 16, 2010, but before December 31, 2015, would be expected to file a PTCIP that meets the requirements of paragraph (a) as soon as possible after the decision is made to commence operations. Any railroad commencing operations after December 31, 2015, that is required to install PTC, will not be authorized to commence revenue operations until the PTC installation is complete.
During review of the NPRM, AAR noted that paragraph (a)(2)(i) had not been updated to reflect an RSAC agreement. FRA agrees and has updated paragraph (a)(2)(i) to include the language, “[a] PTCIP if it becomes a host railroad of a main line track segment for which it is required to implement and operate a PTC system in accordance with § 236.1005(b).”
Paragraph (b) in the proposed rule required the submission of a PTCDP when the PTCIP is submitted to FRA for approval. Some railroads, primarily those owned or operated by government agencies, who submitted comments on this issue indicated that, while they would be able to identify the general functional requirements of the PTC system, they expected public procurement regulations would preclude contract award and identification of a particular vendor or supplier and the associated product details in time to meet the statutory submission deadline. They requested that FRA not require submission of the PTCDP at the same time (or before) the PTCIP.
NYSMTA submitted comments asserting that simultaneous submissions would be problematic for LIRR. In view of the complexities and unknown factors associated with developing PTC solutions for LIRR's dark and ABS territories, and in light of its unique signaling applications and operating rules, LIRR was identified as being at high risk of non-compliance with the April 16, 2010, PTCDP submission deadline, despite its best efforts. Inasmuch as the RSIA08 does not explicitly stipulate a timeframe for a PTCDP, NYSMTA requested that the regulation be modified to allow for submission of a PTCDP after the April 16, 2010, deadline, at least with regard to dark territory and ABS territories.
APTA submitted similar comments stating that the inclusion of the PTCDP or PTCSP in the April 2010 submission is problematic. Noting that submittal of these plans implies the selection of specific hardware and systems, APTA asserted that such submission is not possible given the current state of development of industry standards by the Railroad Electronics Standards Committee (RESC). Without available industry standards, APTA asserted that it would be impossible for the vast majority of public agencies that operate passenger rail systems to identify and contract with vendors or suppliers by the April 2010 deadline. Even though the freight railroads may have selected a proprietary technology as a basis for their PTC implementation, the competition standards for publicly funded contracts limit the ability of public agencies to follow a similar procurement strategy. Additionally, the lack of specific hardware and system standards to support interoperability further limits the ability of public agencies to enter into contracts by April 2010. Thus, if required to submit PTCDP and PTCSP documents by April 16, 2010, the documents would, of necessity, be incomplete and unacceptable.
APTA further claimed that the sole legislative requirement tied to April 2010 is for submission of the PTCIP. Thus, APTA believes FRA should allow submission of the PTCIP in a “product neutral” fashion to meet the statutory deadline and should defer submission of the PTCDP and PTCSP to allow flexibility and avoid incomplete submissions and the compilation and review of documents that cannot be approved.
Amtrak similarly expressed concern with the inadequate amount of time necessary to prepare the PTCIPs for its own NEC and Michigan Line and for the Class II and III railroads over which Amtrak operates (to the extent that those lines are not found to constitute other than “main lines”) and to review those PTCIPs submitted by the Class I railroads and develop full PTCDPs. Because of the severe burden on Amtrak's resources, Amtrak recommended that the filing deadline for PTCDPs be extended at least 9 months beyond April 16, 2010.
As a government agency, FRA clearly understands the position faced by these railroads. However, FRA believes that a meaningful implementation plan cannot be created if a railroad has not identified and does not understand the technology it proposes to implement. Without this knowledge, it is not possible to have any informed discourse on system
One such mechanism, as specified in paragraph (b) is through the use of a Type Approval. The Type Approval is a number assigned to a particular off-the-shelf or modified PTC system product—described in a PTCDP in accordance with § 236.1013—indicating FRA's belief that the product could fulfill the requirements of subpart I. FRA's issuance of a Type Approval does not mean that the product will meet the requirements of subpart I. The Type Approval applies to the technology designed and developed, but not yet implemented, and does not bestow any ownership or other similar interests or rights to any railroad. Each Type Approval number remains under the control of the FRA, and can be issued or revoked in accordance with this subpart.
FRA expects the Type Approval process to provide a variety of benefits to FRA and the industry. If a railroad submits a PTCDP describing a PTC system, and the PTC system receives a Type Approval, then other railroads intending to use the same PTC system without variances may, in accordance with paragraph (b)(1), simply rely on the Type Approval number without having to file a separate PTCDP. While the railroad filing the PTCDP must expend resources to develop and submit the PTCDP, all other railroads using the same PTC system would not. This should not only provide significant cost and time savings for a number of railroads, but should remove a significant level of redundancy from the approval process that is currently inherent in subpart H.
If, however, a railroad intends to use a modified version of a PTC system that has already received a Type Approval number, and the variances between the two systems are of a safety-critical nature, the railroad must submit a new PTCDP. The railroad may submit a new PTCDP that fully complies with the content requirements under § 236.1013 or supply a Type Approval number for the other PTC system upon which the modified PTC system will rely and a document that fulfills the content requirements under § 236.1013 with respect to the safety-critical variances between the system described within the original PTCDP and the system as modified.
This final rule does not preclude a railroad from submitting its PTCDP before its PTCIP for FRA review and approval. FRA encourages an earlier submission of the PTCDP to further reduce the required regulatory effort necessary to review the PTCIP and PTCDP if submitted together. More importantly, it would present an opportunity for FRA to issue a Type Approval for the proposed PTC system before April 16, 2010, thus providing other railroads intending to use the same or similar PTC system the opportunity to leverage off of the work already performed by simply submitting the Type Approval and—in the event of any variances—a much less burdensome PTCDP. FRA also believes this regulatory procedure may incentivize railroads using the same or similar PTC system to jointly develop and submit a PTCDP, thus further reducing the paperwork burden on FRA and the industry as a whole and increasing confidence in the interoperability between systems.
Vendors believe that FRA should type approve specific components, so the vendor may sell the type approved products. FRA believes that such a request may be based on the mistaken belief that FRA has adopted the FAA aviation model of type certifying aircraft frames, aircraft engines, and propellers (
Another mechanism FRA is adding that will enable railroads to meet their statutory obligations in preparing and submitting a PTCIP, while providing enough information to FRA to facilitate FRA's evaluation of the technical feasibility of the PTCIP, can be found in the provisions of paragraph (c).
Paragraph (c) allows a railroad to file an abbreviated PTCDP, called a Notice of Product Intent (NPI), with their PTCIP. The NPI, detailed in § 236.1013(e), is handled in a manner similar to a full PTCDP, with certain key exceptions. First, a PTCIP may be submitted with a NPI in lieu of either a complete PTCDP (or reference to an approved Type Approval). Any PTCIP submitted with an NPI and approved by FRA will only receive “Provisional Approval.” The Provisional Approval will only be valid for a maximum period of 270 days (approximately 9 months), by which time a railroad must resubmit its PTCIP with a complete PTCDP or reference to an approved Type Approval. If the railroad submits the updated PTCIP within that period, FRA will treat the updated filing in the same manner as FRA would have treated the original PTCIP submission. If the railroad fails to update the PTCIP before the end of that period, the Provisional Approval will automatically be revoked, and the revocation will be considered as retroactive to the original due date. FRA has no intention of extending any Provisional Approval beyond the 270 day period and will not entertain requests to that effect. Each railroad is expected to be capable of fully defining the product they intend to use within the 270 day period. Use of an NPI by a railroad allows for incremental, albeit limited, submission of the PTCDP.
Railroads would still be required to fully describe their plans for the use and completion of the PTCDP in their PTCIPs. Having the PTCDP development extend beyond the PTCIP due date may be beneficial to the entire industry, since it allows for practical development of PTC systems for railroads with unique technical requirements or financing restrictions while potentially increasing the number of viable suppliers, products, and systems. In addition to being practical, this approach would further the industry interests of having a more even distribution of the workload for commuter rail agencies and for FRA staff. Additionally, it enhances the ability of railroads to provide sufficient detail in the PTCDP, due to greater confidence in the overall design solution, thereby reducing the need for revision and the associated burden on FRA and railroad staff.
FRA clearly recognizes, regardless of the approach taken, that a vendor or supplier to the railroad may prepare part, if not all, of the required documentation. Notwithstanding that fact, the railroad remains responsible for the completeness and accuracy of any documentation submitted. For instance, FRA may find that the PTCDP does not adequately conform to this subpart or otherwise has insufficient information to justify approval. FRA may also determine that there are issues raised by the PTCDP that would adversely affect the ability of FRA to eventually certify the system. If such a situation were to arise, the railroad would need to address the issues and resubmit the documentation for FRA approval.
The third mechanism available to railroads is described in paragraph (d). This paragraph allows railroads the opportunity to file a Request for Expedited Certification (REC) in lieu of an approved PTCDP or a Type
Paragraph (e) requires that each PTCIP, PTCDP, and PTCSP must comply with the content requirements in §§ 236.1011, 236.1013, and 236.1015, respectively. If the submissions do not comply with their respective regulatory requirements, then they may not be approved. Without approval, a PTC system may not receive a Type Approval or PTC System Certification. Ultimately, PTC System Certification is FRA's formal recognition that the PTC system, as described and implemented, meets the statutory requirements and the provisions of subpart I. It does not imply FRA endorsement or approval of the PTC system itself.
In the interest of an open market, FRA does not want to preclude the ability of PTC system suppliers outside of the United States from manufacturing PTC systems or selling them to the regulated railroads. However, in order to ensure the safety and reliability of those systems, FRA needs to be able to conduct an adequate review of the submitted plans. Accordingly, paragraph (e) requires that all materials submitted in accordance with this subpart be in the English language, or be translated into the English language and attested as true and correct.
Under subpart H of this part, a railroad may seek confidential treatment for what it deems to be trade secrets, commercial, or financial information that is privileged or confidential under Exemption 4 of the Freedom of Information Act (FOIA), 5 U.S.C. 552(b)(4), or the Trade Secrets Act, 18 U.S.C. 1905, and submit such requests in accordance with § 209.11. A railroad may request similar confidential treatment under subpart I. As with subpart H, should a FOIA request be made for information submitted under this rule for which the submitting party has requested confidential treatment, the submitting company will be notified of the request in accordance with the submitter consultation provisions of the Department's FOIA regulations (§ 7.17) and will be afforded the opportunity to submit detailed written objections to the release of information as provided for in § 7.17(a). FRA strongly encourages submitting parties to request confidential treatment only for those portions of documents that truly justify such treatment (i.e., trade secrets and security sensitive information).
While FRA continues to believe that there is no need at this time to substantially revise § 209.11, FRA will require an additional document to assist FRA in efficiently and correctly reviewing requests for confidentiality. Under § 209.11, a redacted and an unredacted copy of the same document must be submitted. When FRA review is required to determine whether confidentiality should be afforded, FRA personnel must painstakingly compare side-by-side the two versions to determine what information has been redacted. This process may result in information for which exemption from disclosure is being requested to be misidentified. To reduce this burden, and ensure that the intellectual property of the railroad and their suppliers is appropriately guarded, FRA requires that any material submitted for confidential treatment under subpart I and § 209.11 include a third version that would indicate, without fully obscuring, the redacted portions for which protection is requested. For instance, in order to indicate without obscuring the plan's redacted portions, the railroad may use the highlighting, underlining, or strikethrough functions of its word processing program. This document will also be treated as confidential under § 209.11. FRA could amend § 209.11 to include this requirement. However, FRA does not believe it to be necessary at this time.
FRA is allowing the submission of an adequate GIS shapefile to fulfill some of the PTCIP content requirements under § 236.1011. However, with respect to requesting confidential treatment of specific information contained in a GIS shapefile, which includes primarily map data, FRA recognizes that visually blocking out the information would defeat the purpose. For instance, a black dot over a particular map location, or a black line over a particular route, would actually reveal the location. Thus, FRA expects that a railroad seeking confidential treatment for portions of a GIS shapefile will submit three versions of the shapefile to comply with paragraph (e). Alternatively, a single shapefile can include three separate layers each representing the three levels of confidentiality, with specific instructions indicating which elements are being displayed and how to handle the file for confidentiality purposes. FRA also expects that the version for public consumption would not include the information for which the railroad is seeking confidential treatment.
NICTD strongly urged FRA to only accept PTCIPs that provided full public disclosure of all the information needed to obtain components from multiple suppliers, including message interface standards, functional allocation for each subsystem, and safety allocation for each subsystem (e.g., identifying which hazards and safety-critical assumptions are made for each subsystem). NICTD asserted that it was not requesting proprietary information for any subsystems, but merely the ability to utilize alternative sources to fulfill the subsystem requirements within the overall PTC system. According to NICTD, this would substantially improve the likelihood of commuter railroads being able to obtain components from the multiple suppliers that are currently more than willing to develop components that will safely operate with other systems. Moreover, NICTD stated that this would facilitate compliance with interoperability requirements, as the knowledge gained would simplify development of interoperable systems and reduce procurement delays. Amtrak agrees on the need for full public disclosure and asserts that it should be able to review and comment on the PTCIPs of the Class I railroads. FRA understands these positions, but FRA will not make any flat pronouncements about the confidentiality of information it has not yet received.
FRA expects that FRA-monitored laboratory or field testing or an independent third party assessment may be necessary to support conclusions made and included in a railroad's submitted PTCDP or PTCSP. This issue is addressed in paragraph (f). The procedural requirements to effectuate either of those requirements can be found in §§ 236.1035 and § 236.1017, respectively.
Paragraph (g) makes clear that FRA approval of a plan submitted under subpart I may be contingent upon any number of factors and that, once the plan is approved, FRA maintains the authority to modify or revoke the resulting Type Approval or PTC System Certification. Under paragraph (g)(1), FRA reserves the right to attach additional requirements as a condition for approval of a PTCIP, or issuance of a Type Approval or PTC System Certification. In the preparation of any of these plans, railroads may have inadvertently failed to fully address hazards and risks associated with all of these components.
FRA believes that paragraph (g)(1) will make the regulatory process more efficient and stable. Rather than reject a railroad's plan completely, and
Paragraph (g)(2) provides FRA the right to reconsider an issued Type Approval or PTC System Certification as a consequence of the discovery of potential error, fraud or new information regarding system safety that was not previously identified. FRA issuance of each Type Approval or PTC System Certification under performance-based regulations assumes that the model of the train control system and its associated probabilistic data adequately accounts for the behavior of all design features of the system that could contribute to system risk. Different system design approaches may result in different levels of detail introducing different approximations or errors associated with the safety performance. There are some characteristics for which modeling methods may not fully capture the behavior of the system, or there may be elements of the system for which historical performance data may not be currently available. These potential inconsistencies in the failure analysis could introduce significant variations between the predicted and actual performances. Because of the design complexity associated with train control systems, FRA recognizes that these inconsistencies may not be the result of deliberate acts by any individuals or organizations, but simply reflect the level of analytical detail, the availability of comprehensive information, the qualification and experience of the analyst team, and the railroad's and FRA's resource limitations.
In paragraph (g)(3), FRA indicates that the railroad may be allowed to continue operations using the system, although such continued operations may have special conditions attached to mitigate any adverse consequences. It is FRA's intent, to the maximum extent possible and when consistent with safety, to assist railroads in keeping the systems in operation. FRA expects that, if it places a condition on PTC system operations, each railroad will have a predefined process and procedure in place that would allow continued railroad operations, albeit under reduced capability, until appropriate mitigations are in place, and the system can be restored to full operation. In certain dire situations, FRA may actually order the suspension or discontinuation of operations until the root cause of the situation is understood and adequate mitigations are in place. FRA believes that suspending a Type Approval or a PTC System Certification pending a more detailed analysis of the situation may be appropriate, and that any such suspension must be done without prejudice. FRA expects to take such an action only in the most extreme circumstances and after consultation with the affected parties.
After reconsidering its issuance of a Type Approval or PTC System Certification, under paragraph (g)(4), FRA may either dismiss its reconsideration and continue to recognize the existing FRA approved Type Approval or PTC System Certification, allow continued operations with certain conditions attached, or order the railroad to cease applicable operations by revoking its Type Approval or PTC System Certification. If FRA dismisses its reconsideration and continues to recognize the Type Approval, any conditions required during the reconsideration period would no longer be applicable. If FRA will allow continued operations, FRA may order the continuation of conditions that were required during the reconsideration period or impose additional conditions. FRA expects that revocation of a Type Approval or PTC System Certification would occur in very narrow circumstances, where the risks to safety appear insurmountable. Regrettably, there may be a few situations in which the inconsistencies are the result of deliberate fraudulent representations. In such situations, FRA may also seek criminal or civil penalties against the entities involved.
APTA submitted comments asserting that the NPRM offered minimal guidance on what criteria FRA will use in accepting or rejecting a railroad's plan. Therefore, APTA asserted that FRA should draft and vet criteria that accomplishes the basic purposes of PTC, while allowing for innovation in meeting the performance requirements envisioned in the proposed regulation. FRA believes that this concern arises from the fact that this regulation, like subpart H of this part, is a performance-based rule. While performance-based rules provide maximum flexibility to railroads and vendors or suppliers, they also introduce a degree of ambiguity.
FRA, in consultation with the RSAC PTC Working Group, has developed and vetted model templates for both the PTCIP and the risk prioritization scheme to provide some degree of specificity without unnecessary constraints. It should be carefully noted that these templates are, by necessity, general in nature and must be customized by the individual railroad to reflect its individual operations. What may be applicable for one railroad may not be applicable to another. FRA has also provided vetted guidance as to acceptable design, verification and validation, and human factors in the appendices to this part. Again, given the wide variety of potential solutions that may be adopted by various railroads, FRA is reluctant to provide more detailed guidance. However, if a PTCIP content requirement under § 236.1011 is fulfilled in a submitted GIS shapefile, then the written PTCIP should simply cross-reference appropriately.
Paragraph (h) relates to FRA's authority to conduct inspections to ensure that a railroad is in compliance with subpart I. FRA inspections may be required to determine whether a particular railroad has implemented a PTC system where necessary. For instance, FRA may need to confirm whether a track segment is subject to five million gross tons or more of annual railroad traffic, PIH materials, or passenger traffic. FRA may also need to inspect locomotives to determine whether they are equipped with a PTC onboard apparatus or to review locomotive logs to determine whether the locomotive has entered PTC territory. Paragraph (h) simply reiterates FRA's statutory authority to inspect the railroads and gather information necessary to enforce its regulations.
In order to maintain an open marketplace, this final rule has been drafted to allow domestic railroads to purchase PTC systems from outside of the United States. FRA recognizes that PTC systems have been used in revenue service across the globe and that acceptable products may be available in other countries. FRA also recognizes that such use may fall under the jurisdiction of a foreign regulatory entity much like FRA. Accordingly, under paragraph (i), in the event information relating to a particular PTC system has been certified under the auspices of a regulatory entity in a foreign government, FRA is willing to consider that information as independently Verified and Validated to support the
Finally, the AAR noted that, unlike the precedent set by subpart H and the RSIA08, FRA did not include time frames for the agency to respond to the submissions of the PTCDP or PTCSP. The AAR urged FRA to include specific deadlines for these filings to ensure a common understanding of the time allotted to carry out the regulatory responsibilities. Accordingly, AAR proposed that FRA agree to respond within 60 and 120 days of the submission of a PTCDP and PTCSP, respectively. This 180-day approval period for both the development and safety plans is consistent with existing subpart H, which allows 180 days for approval of a product safety plan.
FRA agrees that the railroads need, for their planning purposes, an estimated amount of time within which FRA will provide a response regarding the acceptability of their PTCSP submission. FRA also believes that this information would be appropriately placed in § 236.1009. Accordingly, FRA is adding paragraph (j) to this section, which contains target deadlines for FRA review. FRA will acknowledge receipt of a PTCDP or PTCSP submission within 30 days. Depending upon the complexity of the system and the amount of participation by FRA in the PTCDP or PTCSP development process, FRA will endeavor to approve, approve with conditions, or deny approval of the PTCDP and PTCSP within 60 and 180 days, respectively. If FRA is unable to complete its review of the PTCDP or PTCSP within these estimated time periods, FRA will advise the submitter accordingly.
When reviewing the procedural requirements contained in the proposed rule, the RLO expressed concern that this streamlined process may result in degradation of safety and significant concern with the ability of FRA to adequately staff the oversight process with a sufficient number of people with the requisite skill sets. FRA appreciates these concerns, and is undertaking plans to ensure that this new process does not result in any degradation of safety. FRA will continue to apply the same technical standards as used in earlier PTC system approvals. FRA has also taken steps to ensure that it has sufficient people, with the appropriate skills, to ensure proper safety oversight of this new process. A task analysis to determine the desired skills, as well as appropriate placement within the agency of additional staff members has been completed The RSIA08 authorizes an additional 200 full time positions to FRA, and FRA is ready to recruit the necessary technical staff as appropriations permit.
This section describes the minimum required contents of a PTC Implementation Plan. A PTCIP is a railroad's plan for complying with the installation of mandatory PTC systems required by RSIA08. The PTCIP consists of implementation schedules, narratives, rules, technical documentation, and relevant excerpts of agreements that an individual railroad will use to complete mandatory PTC implementation. FRA will measure the railroad's progress in meeting the required implementation date based on the schedule and other information in the PTCIP. While the final rule does not specify or mandate any specific organization for the PTCIP, it must at least clearly indicate which portions intend to address compliance with the various plan requirements under this section. The PTCIP must also clearly identify each referenced document and either include a copy of each document (or its applicable excerpt) or indicate where FRA and the public may view that document. Should FRA not be able to readily determine adequate response to the required information, FRA will assume that the information has not been submitted, and will handle the document accordingly. The lack of the required information may result in FRA's disapproval of a PTCIP. To facilitate timely and successful submittals, FRA, through assistance from a PTCIP Task Force drawn from the PTC Working Group, developed a template that can be used to format the documents that must be submitted. FRA, however, wishes to emphasize that the use of such a template is strictly voluntary, and encourages railroads to prepare and submit the documents in the structure most economical for the railroad. FRA does not believe it is necessary to require that the railroads expend their limited resources in reformatting documents when such an activity adds no real value. However, while the template may be a useful tool, in light of the various forms a PTCIP may be required to take and the type of system the railroad intends to implement, complete adherence to the template will not guarantee FRA approval of the submitted PTCIP.
FRA expects each PTCIP to include various highly specific and descriptive elements relating to each railroad's infrastructure and operations. FRA recognizes manual assembly of each piece of data into a PTCIP may be exceptionally onerous and time consuming and may make the PTCIP prone to errors. In light of the foregoing, and due to the statutory requirement that Congress be apprised on the progress of the railroad carriers in implementing their PTC systems, FRA believes that electronic submission of much of this information may be warranted and preferred. To facilitate collection of this data, FRA will accept the submission of this data in electronic format.
FRA believes that the preferred, least costly, and least error-prone method to comply with this section is for railroads to submit an electronic geographic digital system map containing the aforementioned segment attribute information in shapefile format, which is a data format structure compatible with most Geographic Information System (GIS) software packages. Using GIS provides an efficient means for organizing basic transportation-related geographic data to facilitate the input, analysis, and display of transport networks. Railways around the world rely on GIS to manage key information for rail operations, maintenance, asset management, and decision support systems. FRA believes that the railroads may have already identified track segments, and their physical and operational characteristics, in shapefile format. Accordingly, each shapefile document must provide the following identifiable information for each track segment: Owning railroad(s); distance; signal system; track class; subdivision; number and location of sidings; maximum allowable speed; number and location of mainline tracks; annual volume of gross tonnage; annual number of cars carrying hazmat; annual number of cars carrying PIH; passenger traffic volume; average daily through trains; WIUs; switches; and at-grade rail-to-rail crossings.
Paragraph (a) cites the minimum requirements that must be addressed in the PTCIP. However, given the wide diversity of railroads and their operating environments, FRA recognizes that additional factors may arise that reflect the unique operational characteristics of a particular railroad. It is beholden to each railroad to carefully analyze the
Paragraph (a)(1) requires that the railroad describe the functional requirements that the technology will employ in its PTC system. Here, FRA broadly defines the term “technology” to include all applicable tools, machines, methods, and techniques.
Paragraph (a)(2) requires that the railroad describe how it will address fulfilling the requirements associated with the submittal of an NPI (
In RSIA08, § 20157(a)(2) requires that a railroad describe how it will “provide for interoperability of the system with movements of trains of other railroad carriers over its lines.”
Practically speaking, this means that each locomotive operating within PTC territory must be able to communicate with, and respond to, the PTC systems installed on each PTC territory's track and signal system, except in those limited situations established elsewhere in this final rule. For this reason, paragraph (a)(3) requires that the PTCIP describe how the PTC system will provide for interoperability of the system between the host and all tenant railroads on the lines required to be equipped with PTC systems under this subpart.
Interoperability means the ability of diverse systems and organizations to work together (inter-operate), taking into account the technical, operational, and organizational factors that may impact system-to-system performance. FRA expects each PTC system required by subpart I to exhibit syntactic interoperability—so that it may successfully communicate and exchange data with other PTC systems—and semantic interoperability—so that it may automatically, accurately, and meaningfully interpret the exchanged information to prove useful to the end user of each communicating PTC system. To achieve semantic interoperability, both sides must defer to a common information exchange reference model. In other words, the content of the information sent must be the same as what is received and understood. Taking syntactic and semantic interoperability together, FRA expects each PTC system to provide services to, and accept services from, other PTC systems and to use those services exchanged to enable the PTC systems to operate effectively together and to provide the intended results. The degree of interoperability should be defined in the PTCIP when referring to specific cases.
Interoperability is achieved through four interrelated means: Product testing, industry and community partnership, common technology and intellectual property, and standard implementation.
Product testing includes conformance testing and product comparison. Conformance testing ensures that the product complies with an appropriate standard. FRA recognizes that certain standards attempt to create a framework that would result in the development of the same end product. However, many standards apply only to core elements and allow developers to enhance or otherwise modify products as long as they adhere to those core elements. Thus, if an end product is developed in different ways to conform to the same standard, there may still be discrepancies between each instantiation of the end product due to the existence of variables outside of the core elements. Accordingly, FRA believes that comparison testing must also occur to ensure that each instantiation of the same product, regardless of the means upon which it is created to meet the same standard, is ultimately identical. In regards to PTC systems, such comparison testing must occur on all portions that relate to each system's interoperability with other systems. Thus, it is also important that the PTC system be formally tested in a production scenario—as they will be finally implemented—to ensure that it will actually intercommunicate and interoperate with other PTC systems as advertised and intended.
To reach interoperability between the various applicable PTC systems, each PTCDP must also show that the systems share common product engineering. Product engineering refers to the common standard, or a sub-profile thereof, as defined by the industry and community partnerships, specifically intended to achieve interoperability. Without common product engineering, the systems will be unable to intercommunicate or otherwise interact as necessary to comply with the proposed rule.
FRA expects that each interoperability standard for PTC systems will be developed by a partnership between various industry participants. Industry and community partnerships, either domestic or international, usually sponsor standard workgroups to define a common standard to provide system intercommunications for a specific purpose. At times, an industry or community will sub-profile an existing standard produced by another organization to reduce options and thus making interoperability more achievable. Thus, in each PTCDP, the railroad must discuss how it developed or adopted a standard commonly accepted by that partnership.
In the proposed rule, FRA noted that means of achieving interoperability include having the various entities involved using the same PTC system product or obtaining its components from the same developer. In its comments, NICTD expressed its belief that this conclusion does not meet RSIA08's interoperability requirements. According to NICTD, while the freight railroads are free to choose their own supplier, their essential monopoly power has the potential to force commuter railroads to use the same supplier and thereby prevent commuter railroads from meeting the requirement to use open competitive bids from multiple suppliers for a system. Since the quantity of units required from the commuter railroads is substantially less than those required for the freight railroads, NICTD asserts this greatly reduces the ability of the commuter railroads to obtain system components that meet their specific operating needs, as the single supplier will not have the resources available to support those needs. NICTD also believes that this is in direct contrast with the FRA statement relating to performance standards: “FRA intends the proposed rule to accelerate the promotion of, and not hinder, cost effective technological innovation by encouraging an efficient utilization of resources, an increased level of competition, and more innovative user applications and technological developments.”
Safetran also believes that each railroad should be free to choose a supplier. According to Safetran, the freight railroads through their implementation and development plans could specify a specific product or supplier preventing other railroads from using open competitive bids from multiple suppliers for a system and achieving the cost savings of competitive bidding. Safetran urges FRA to accept PTCIPs and PTCDPs that require public disclosure of all information needed to enable development of PTC components from multiple suppliers. This does not require disclosure of proprietary
While FRA does not necessarily require this approach—since the agency seeks to maintain an open and competitive marketplace—FRA believes that this is a suitable means to achieve interoperability. This technique may provide similar technical results when using PTC system products from different vendors or suppliers relying on the same intellectual property. FRA recognizes that certain developers with an intellectual property interest in a particular technology may provide a non-exclusive license of its intellectual property to another entity so that the licensee may introduce into the marketplace a substantially similar product reliant on that intellectual property. In such a case, FRA foresees that the use of a common PTC system technology—even if it is proprietary to a single or multiple entities and licensed to railroads—could reduce the variability between components, thus providing for a more efficient means to achieve interoperability.
In order for interoperability to actually occur between multiple entities' PTC systems, there must be some standard to which they all adhere. Thus, FRA also expects that each PTCDP will provide assurances of a common interoperability standard agreed to between all entities using PTC systems that must interoperate.
Since each of these interrelated means has an important role in reducing variability in intercommunication, each railroad's PTCIP must clearly describe the elements required under paragraph (a)(1)-(3).
During review of the NPRM, AAR noted paragraph (a)(3)(i) had not been updated to reflect an RSAC agreement. FRA agrees and has revised paragraph (a)(3)(i) to include the language: “include relevant provisions of agreements, executed by all applicable railroads, in place to achieve interoperability.”
Much of the remaining information required in a PTCIP under this final rule relies on the location, length, and characteristics of each track segment. Therefore, a common understanding of a track segment is necessary. A track is the main designation for describing a physical linear portion of the network. Each line of railroad has a station location referencing system, which serves to locate inventory features and defects along the length of the track. Because some tracks can be very long, track or line segments are established to divide the track into smaller “management units.” Typically, segment's boundaries are established at point of switch (POS) locations, but may also be located at mile markers, grade crossings, or other readily identifiable locations. Inspection, condition assessment, and maintenance planning is performed individually on each segment. After the track network hierarchy is established, the attribute information associated with each track is defined. This attribute information describes the track layout (e.g., curves and grades), the track structure (e.g., rail weights and tie specifications), track clearance issues, and other track related items such as turnouts, rail-to-rail at-grade crossings, highway-rail grade crossings, drainage culverts, and bridges. Inventory information about these track attributes can be quite detailed. The benefits of a complete and accurate track inventory provides a record of the track network's properties and information about the existing track materials at the specific locations when maintenance or repair is necessary.
Paragraphs (a)(4) and (a)(5) require the railroad to put its entire implementation plan into an understandable context, primarily as it relates to the sequence and schedule of track segment implementation events. Under RSIA08, 49 U.S.C. 20157(a)(2), Congress requires each subject railroad to describe in its PTCIP how it shall, to the extent practical, implement the PTC system in a manner that addresses areas of greater risk before areas of lesser risk. Accordingly, under paragraph (a)(4), the PTCIP must discuss the railroad's areas of risk and the criteria by which these risks were evaluated and prioritized for PTC system implementation. To this end, the railroad must clearly identify all track segments that must be equipped, the basis for that decision for each segment (which might be done by categories of segments), and, as provided in paragraph (a)(5), the dates that implementation of each segment will be completed, taking into account the time necessary to fulfill the procedural requirements related to PTCSP submission, review, and approval. At a minimum, the deployment decisions must be based on segment traffic characteristics such as passenger and freight traffic volumes, the quantity of PIH and other hazardous materials, current methods of operations, existence of block signals and other traditional train control technologies, the number and class of tracks, authorized and allowable speeds for each segment, and other unusual characteristics that may adversely impact safety, such as unusual ruling grades and other track geometries. In cases where deployment of the PTC system cannot be accomplished in order of areas with the greatest risk to areas with the least risk, paragraph (a)(9) requires that the railroad explain why such a deployment was not practical and the steps that will be taken to minimize adverse consequences to the public until the track segment can be equipped.
Paragraphs (a)(6) and (a)(7) require the PTCIP to include information regarding the rolling stock and wayside devices that will be equipped with the appropriate PTC technology. For a PTC system to work as intended, PTC system components must be installed and operated in all applicable offices and on all applicable onboard and wayside subsystems. Accordingly, the PTCIP must identify which technologies will be installed on each subsystem and when they are scheduled to be installed.
Under paragraph (a)(6), each host railroad filing the PTCIP must include a comprehensive list of all rolling stock upon which a PTC onboard apparatus must be operative. FRA understands that, in most situations, the rolling stock referenced in paragraph (a)(6) may only apply to controlling locomotives. However, in the interest of not hindering creative technological innovations, FRA presumes the possibility that PTC system technology may also be attached to additional rolling stock to provide other functions, including determining train capacity and length or providing certain acceptable and novel train controls. To be kept apprised of these possibilities, FRA is requiring in paragraph (a)(6) that each PTCIP include a list of all rolling stock equipped with PTC technology. FRA believes that the PTCIP should also identify any risks associated with trains operated by tenant railroads and not equipped with PTC system technology and the efforts that the host railroad has made to establish the extent of that risk. FRA understands that a host railroad may not receive cooperation from a tenant railroad in collecting the necessary rolling stock information. Nevertheless, FRA expects each host railroad to make a good faith effort. Identification of those tenant railroads from whom the host railroad attempted to obtain the requisite and applicable information from, but failed to address a host railroad's written request, may establish a good faith effort by the host railroad.
One railroad has requested that FRA eliminate the requirement for a power (locomotive) equipage plan in the PTCIP to avoid the need for updates to the
Furthermore, the elimination of the equipage plan does not appear to provide any significant advantages to the railroad. Regardless of whether the railroad is required to maintain an equipage schedule for the PTCIP, or rely on railroad scheduling and good faith efforts, the railroad will still need to maintain some type of schedule to ensure the completion of required PTC installations by 2015. FRA believes that formalizing the schedule provides a planning tool that should facilitate completion of the installation process. If the equipage plan were unalterable, FRA could understand the railroad's concerns about being locked into an unrealistic and unobtainable schedule. However, FRA believes these concerns are unfounded because any plan in the PTCIP, including the equipage plan, can be adjusted to reflect changing circumstances.
Paragraph (a)(7) requires the railroad to provide the number of wayside devices required for each track segment in its PTCIP and an installation schedule for the completion of wayside equipment installation by December 31, 2015. The selection and identification of a technology discussed in the PTCIP will also, to a great extent, determine the distribution of the functional behaviors of each of the PTC subsystems (e.g., office, wayside, communications, and back office). The WIU is a type of remote terminal unit (RTU) that is part of a larger PTC system, which is a type of SCADA. As a whole, the safe and efficient operation of a SCADA—a centralized system that covers large areas, monitors and control systems, and passes status information from, and operational commands to, RTUs—is largely dependent on the ability of each of its RTUs to accurately receive and distribute the required information. As such, a PTC system cannot properly operate without properly functioning WIUs to provide and receive status information and react appropriately to control information.
It is commonly understood that a WIU device is capable of communicating directly to the office, train, or other wayside unit. FRA recognizes that there may not be the same number of WIUs and devices that they monitor. Depending on the architecture and technology used, a single WIU may communicate the necessary information as it relates to multiple devices. FRA is comfortable with this type of consolidation provided that, in the event of a failure of any one of the devices being monitored, the most restrictive condition will be transmitted to the train or office, except where the system may uniquely identify the failed device in a manner that will provide safe movement of the train when it reaches the subject location.
Because of the critical role that WIU's play in the proper and safe operation of PTC systems, paragraph (a)(7) requires that the railroad identify the number of WIU's required to be installed on any given track segment and the schedule for installing the WIU's associated with that segment. This information is necessary to fully and meaningfully fulfill the RSIA08 requirement that by December 31, 2012, Congress shall receive a report on the progress of the railroad carriers in implementing PTC systems.
NYSMTA asserts that the requirement in paragraph (a)(7) to include the quantities of devices for each track segment in the PTCIP requires prior completion of the full design of the PTC system. However, NYSMTA asserts that it is not feasible to complete all of the survey and design necessary to meet this requirement by April 2010. Therefore, NYSMTA suggested that the requirement be reworded to read as follows: “Identification of each PTC subsystem and major assembly, and an estimated number of each required for each line segment.”
FRA recognizes the potential for technological improvements that may modify the number and types of WIUs required. FRA also recognizes that during testing and installation, it may be discovered that additional WIU installations may be necessary. In either case, the railroad will be required to submit an RFA in accordance with § 236.1021 indicating how the railroad intends to appropriately revise its schedule to reflect the resulting necessary changes. Nevertheless, regardless of whether FRA approves or disapproves the RFA, if a railroad is required to submit its PTCIP by April 16, 2010, implementation must still be completed by the statutory deadline of December 31, 2015.
One railroad recommended that paragraph (a)(7) should be revised to require railroads to identify each PTC subsystem and assembly and the estimated number of each subsystem required for each track segment. However, FRA does not believe that this change is required. First, FRA believes that the discussion of WIU requirements in paragraph (a)(7) is already generalized and implementation independent. Second, this final rule already provides for corrections in inventory count by submission of an RFA with the revised count. Therefore, FRA has not adopted this recommendation.
Under paragraph (a)(8), each railroad must also identify in its PTCIP which of its track segments are either main line or not main line. This list must be made based solely on the statutory and regulatory definitions regardless of whether FRA may later deem a track segment as other than main line. If a railroad has a main line that it believes should be considered not main line, it may file with the PTCIP a main line track exception addendum (MTEA) in accordance with § 236.1019, as further discussed below. Each track segment included in the MTEA should be indicated on the list required under paragraph (a)(8), so that the PTCIP accounts for each track segment with an appropriate cross-reference to the subject MTEA.
Paragraph (a)(9) requires that the plan call out the basis for a railroad's determination that risk-based prioritization required by paragraph (a)(4) of this section is not practical. FRA recognizes that there may be situations where risk is somewhat evenly distributed and where other factors related to practical considerations—such as the need to establish reliable operation of the system in less complex environments before installation in more complex
As mentioned elsewhere in this document, various railroads incorrectly asserted that they would not have to “turn on” their respective PTC systems until December 31, 2015. FRA recognizes that, although an approved PTCIP will include a progressive roll-out schedule, a PTC system cannot be operated in revenue service until it receives PTC System Certification. To avoid the possibility of a delayed plan submission that would frustrate the schedule, FRA has added paragraph (a)(10), which requires the railroad(s) to set its own due dates for such submissions. The ultimate due date, of course, is subject to FRA's approval of the PTCIP.
Paragraph (b) of § 236.1011 contains provisions related to further PTC deployment by the Class I railroads. As noted in the NPRM, the specific characteristics of the PTC route structure, with the focus on PIH traffic as an indicator of risk, was a late addition to the bill that would become RSIA08, not having appeared in either the House or Senate bills until the final package was assembled using consultations between the committee staffs in lieu of a formal committee of conference. Although the statutory construct (Class I rail line with 5 million gross tons and some PIH materials) adequately defines most of the core of the national freight rail system, it is a construct that will introduce distortions at both ends of the spectrum of risk.
On one hand, a line with a maximum speed limit of 25 miles per hour ending at a grain elevator that receives a few cars of anhydrous ammonia per year is a “main line” if it has at least 5 million gross tons of traffic (a very low threshold for a Class I railroad). This is not a line without risk, particularly if it lacks wayside signals, but FRA analysis shows that the potential for a catastrophic release from a pressure tank car is very low at an operating speed of 25 miles per hour, and the low tonnage is likely associated with relatively infrequent train movements—limiting the chance of a collision.
On the other end of the spectrum, lines with greater risk may go unaddressed. For instance, a line carrying perhaps a much higher level of train traffic and significant volumes of other hazardous materials at higher speeds, without any PIH or passenger traffic, would not be equipped. This example is not likely to be present to any significant extent under current conditions. However, should the Class I railroads raise freight rates making rail transportation prohibitively expensive and accordingly eliminating PIH traffic, the issue would be presented as a substantial one. Most of the transportation risk—including hazards to train crews and roadway workers and exposure to other hazardous materials if released—would remain, but not the few carloads of PIH. FRA believes that the intent of Congress with respect to deployment of PTC might be defeated, even though the minimum requirements related to passenger and PIH traffic would be satisfied. Other lines carrying very heavy volumes of bulk commodities such as coal and intermodal traffic may or may not include PIH traffic. Putting aside the risk associated with PIH materials, significant risk exists to train crews and persons in the immediate vicinity of the right-of-way if a collision or other PTC-preventable accident occurs. Any place on the national rail system is a potential roadway work zone, but special challenges are presented in providing for on-track safety where train movements are very frequent or operations are conducted on adjacent tracks.
Risk on the larger Class II and III railroads' lines is also a matter of concern, and the presence of significant numbers of Class I railroad trains on some of those properties presents the opportunity for further risk reduction, since over the coming years virtually all Class I railroad locomotives will be equipped with PTC onboard apparatus'. Examples include trackage and haulage rights retained over Class II and III railroads following asset sales in which the Class I railroads divested the subject lines. Other prominent examples involve switching and terminal railroads, the largest of which are owned and controlled by two or more Class I railroads and function, in effect, as extensions of their systems. Conrail Shared Assets, a large regional switching railroad that is owned by NS and CSXT and is comprised of major segments of the former Conrail, then a Class I railroad, is perhaps the classic example.
FRA notes that there has also been a trend, only recently and temporarily abated by the downturn in the economy, toward higher train counts on some non-signaled lines of the Class I railroads. On a train-mile basis, these operations present about twice the risk as similar operations on signalized lines. These safety gaps need to be filled; and, while most will be filled due to the presence of PIH traffic, FRA cannot verify that this is the case in every instance.
FRA concludes that the mandated deployment of PTC will leave some substantial gaps in the Class I route structure, including gaps in some major urban areas. FRA believes that these gaps will, over time, be “filled in” by voluntary actions of the Class I railroads as they establish the reliability of their PTC systems, verify effective interoperability, and begin to enjoy the safety and other business benefits from use of these systems. FRA fully understands both the desire of the labor stakeholders in the PTC Working Group to see a broader build-out of PTC systems than that “minimally” required by RSIA08 and the concerns of the Class I railroads' representatives who noted the extreme challenge associated with equipping tends of thousands of wayside units, some 20,000 locomotives, and their dispatching centers' back offices within the statutory implementation period.
The Congress recognized that all of these issues are legitimate concerns and so mandated the establishment of Risk Reduction Programs under the same legislation. Section 103 of RSIA08 specifically requires, within the Risk Reduction Program, a Technology Implementation Plan to address technology alternatives, including PTC. Accordingly, the PTC and Risk Reduction provisions in RSIA08 are clearly aligned in purpose; and there are also references in the technology plan elements of the Risk Reduction language that address installation of PTC by other railroads. Further, FRA has been charged with a separate rulemaking under section 406 of RSIA08 regarding risk in non-signaled (dark) territory that significantly overlaps the issue set in this rulemaking and the Risk Reduction section. Use of technologies that are integral to PTC systems constitute the best response to hazards associated with non-signaled lines. Switch position monitoring systems, track integrity circuits, digital data links and other technology used to address dark territory issues should be and, as presently conceived, are forward-compatible with PTC. In paragraph (b), FRA intends to dovetail these requirements by requiring that each Class I railroad include in its PTCIP deployment strategies indicating how it will approach the further build-out of full PTC, or partial implementation of PTC (e.g., using PTC technology to prevent train-to-train collisions but perhaps not monitoring all switches in the territory; or using PTC to protect movements of the Class I over a
One railroad objected to the requirement to describe the strategy and plan for complete build out and characterized it as premature, unwarranted, and inconsistent with the RSIA08. FRA strongly disagrees for the reasons previously set forth and has retained the requirement specified in paragraph (b).
Paragraph (c) codifies in regulation the statutory mandate that FRA review the PTCIP and determine, within 90 days upon receipt of the plan, whether to provide its approval or disapproval. FRA believes that it is also important to provide procedural rules to communicate approval or disapproval. Thus, under paragraph (c), any approval or disapproval of a PTCIP by FRA will be communicated by written notice. In the event that FRA disapproves of the PTCIP, the notice will also include a narrative explaining the reasons for disapproval. Once the railroad receives notification that its PTCIP has been disapproved by FRA, it will have 30 days to resubmit its PTCIP for review and approval. While FRA may provide assistance to remedy a faulty PTCIP, it is ultimately the railroad's responsibility and burden to develop and submit a PTCIP worthy of FRA approval. FRA understands the railroads' desire to extend the period of time for corrections of any issues in the PTCIP, especially in circumstances that the railroad believes are out of its control. However, the 30-day period is a statutory requirement. FRA has little leeway in this regard. FRA will try to work, within the limits of available FRA resources, with railroads in reviewing draft versions of the PTCIP before April 16, 2010. Early identification of potential issues should reduce, and possibly eliminate, rework that a railroad might need to address during the 30-day correction period. However, regardless of any early FRA participation in the document review cycle, the railroad is expected to submit a plan that requires little to no rework.
A number of comments were submitted objecting to the potential assessment of civil penalties based on a railroad's failure to timely file a PTCIP. While FRA is unwilling to revise its position on this issue, FRA will exercise prosecutorial discretion in the assessment of civil penalties.
APTA submitted comments suggesting that the language in paragraph (c) of this section be amended to allow at least 90 days—the time allotted for FRA plan review—for railroads to correct deficiencies and re-submit their plans. In a similar vein, NYSMTA submitted comments asserting that the amount of time allotted to correct deficiencies should be based on to the extent of the needed correction. On the other hand, NYSMTA proposed that penalties could be involved if railroads submit plans deemed to be superfluous. Again, the law requires that both the railroads and FRA work quickly to get plans in place. As the entity at the receiving end of multiple filings, FRA will no doubt have every reason to handle these matters with a spirit of cooperation where best efforts have been made to fulfill the statutory requirements.
As noted previously, subpart I applies to each railroad that has been mandated by Congress and FRA to install a PTC system. A railroad that is not required to install a PTC system may still do so under its own volition. In such a case, it may either seek approval of its system under either subpart H or I. Paragraph (d) intends to make this choice clear.
Paragraph (e) responds to comments by labor organizations in the PTC Working Group. These employee representatives sought the opportunity to comment on major PTC filings. Paragraph (e) provides that, upon receipt of a PTCIP, NPI, PTCDP, or PTCSP, FRA will post on its public Web site notice of receipt and reference to the public docket in which a copy of the filing has been placed. FRA may consider any public comment on these documents to the extent practicable within the time allowed by law and without delaying implementation of PTC systems. The version of any filing initially placed in the public docket, for which confidential treatment has been requested in accordance with § 209.11, would be the redacted copy as filed by the railroad. If FRA later determined that additional material was not deserving of confidential treatment, that material would be subsequently added to the docket.
Paragraph (f) has been added to this section in the final rule to require railroads to maintain their most recent PTC deployment plans in their PTCIPs until all PTC system deployments required under the RSIA08 have been completed.
As noted in the discussion above regarding § 236.1009, each PTCSP must be submitted with a Type Approval number identifying a PTC system that FRA believes could fulfill the requirements of subpart I. Under § 236.1009, a railroad may submit an existing Type Approval number in lieu of a PTCDP if the PTC system it intends to implement and operate is identical to the one described in that Type Approval's associated PTCDP. In the event, however, that a railroad intends to install a system for which a Type Approval number has not yet been assigned, or to use a system with an assigned Type Approval number that may have certain variances to its safety-critical functions, then the railroad must submit a PTCDP to obtain a new Type Approval number.
The PTCDP is the core document that provides the Associate Administrator sufficient information to determine whether the PTC system proposed for installation by the railroad could meet the statutory requirements for PTC systems specified by RSIA08 and the regulatory requirements under subpart I. Issuance of a system Type Approval number is contingent upon the approval of the PTCDP by the Associate Administrator. While filing of a PTCDP is optional in the sense that the railroad may proceed directly to submission of the PTCSP by the April 16, 2010, deadline (
This section describes the contents of the PTCDP required to obtain FRA approval in the form of issuance of a Type Approval number. This section requires each PTCDP to include all the
FRA recognizes that much of the information required by § 236.1013 normally resides with the PTC system's developer or supplier and not the client railroad. While FRA expects that each railroad and its PTC system supplier may jointly draft a PTCDP, the railroad has the primary responsibility for the safety of its operations and for submitting to FRA the information required under this section. Accordingly, each railroad required to submit a PTCDP under subpart I should make the necessary arrangements to ensure that the requisite information is readily available from the supplier for submission to the agency. FRA believes that suppliers and railroads will develop a PTCDP for most products that adequately address the requirements of the new subpart without substantial additional expense. As part of the design and evaluation process, it is essential to ensure that an adequate analysis of the features and capabilities is made to minimize the possibility of conflicts resulting from any use or feature, including a software fault. Since this analysis is a normal cost of software engineering development, FRA does not believe this requirement imposes any additional significant costs beyond what should already be done when developing safety-critical software.
The passenger and public commuter railroads who submitted comments expressed significant concern that the Class I railroads' choice of a single vendor or supplier for the onboard components of the PTC systems, coupled with the RSIA08 requirement for interoperability, creates a de-facto monopoly, with associated adverse impacts on costs and schedule. These commenters recommended that FRA take positive steps to ensure that sufficient information is made available to allow the railroads to source components from multiple vendors or suppliers. The suggested actions ranged from disapproving any PTCIP/PTCDP that is not based on open standards to expediting Interoperable Train Control (ITC) specification documentation.
FRA appreciates the concerns expressed regarding a de-facto monopoly and the possible adverse consequences on system deployments. FRA, however, must defer to the Departments of Justice and Commerce regarding issues of alleged monopolistic behavior.
In subparts H and I, FRA has encouraged the use of publicly available standards in the design, implementation, and testing of PTC systems. FRA does not mandate the use of any particular standard by a railroad, vendor, or supplier, but rather has adopted a policy of allowing the marketplace to decide what standard(s) should be used, provided the end result—a suitable safe product—is obtained. Specification of government standards is only appropriate where there has been a failure of the marketplace. It has not yet been established that such marketplace failure has occurred. Even if such a marketplace failure were deemed to have occurred, it is extremely unlikely that FRA would be able to complete the development of appropriate standards before current industry efforts with the ITC specifications are finalized and made publicly available. FRA understands the railroads' concerns and will monitor the situation.
FRA hastens to add that, since the publication of the NPRM, it has become clear that ITC standards may not be completed and validated prior to the end of 2010. FRA has requested that the ITC railroads accelerate this process in the interest of compliance with the law, and has added the Notice of Product Intent as a means of bridging to the point where standards are available. Looking forward to mid-2010, FRA will assess the situation with respect to delivery of open standards and their adoption by the AAR. Should it appear that a timely delivery will not be made, FRA reserves the right to take further regulatory action. That action could include a proposal for adoption of mandatory interoperability standards, likely in the form of existing American Railway Engineering and Maintenance Association standards that have already been developed through the leadership of the major international signal suppliers. FRA believes that such action should not be necessary and looks forward to the timely completion of ITC standards.
One vendor pointed out that a significant portion of the work associated with PTC system is commercially sensitive. FRA is committed to appropriate protection of both railroad and vendor intellectual property. Its development is recognized as representing the expenditure of significant resources by the vendor, the railroad, or both. However, interoperability requirements between railroads require some disclosure of information between railroads and vendors or suppliers. This should not require disclosure of proprietary information, but does require disclosure of interface specifications, as well as required functional attributes, assigned safety attributes and stimulus/response attributes. FRA believes such disclosure of the latter is in the best interest of the railroad, vendor, and supplier communities and strongly encourages the free exchange of this information.
In §§ 236.1013 and 236.1015, various adjectives precede several of the requirements. For instance, certain paragraphs require “a complete description,” “a detailed description,” or simply a “description.” These phrases are inherited from subpart H of this part. Their inclusion in subpart I are similarly not to imply that any description should be more or less detailed or complete than any other description required. By contrast, they are included merely for the purposes of emphasis.
Paragraph (a)(1) requires that the PTCDP include system specifications that describe the overall product and identify each component and its physical relationship in the system. FRA will not dictate specific product architectures, but will examine each PTC system to fully understand how its various parts interrelate. Safety-critical functions in particular will be reviewed to determine whether they are designed to be fail-safe. FRA would like to emphasize that the PTCDP information provided in accordance with the requirements of this paragraph should be as railroad independent as possible. This will allow the product's PTCDP, and any associated Type Approval, to be shared by multiple railroads to the maximum extent possible. FRA believes that the PTCDP information provided in accordance with this provision will play an important role in FRA's determination as to whether safety will be maximized and if regulatory compliance of the system is obtainable.
Paragraph (a)(2) requires a description of the operation where the product will be used. Upon receipt of this information within a PTCDP, FRA will have better contextual knowledge of the product as it applies to the type of operation on which it is designed to be used. Where operational behaviors are not applicable to a particular railroad, or the product design is not intended to address a particular operational behavior, FRA would expect a short
Paragraph (a)(3) requires that the PTCDP include a concept of operations, a list of the product's functional characteristics, and a description explaining how various components within the system are controlled. FRA expects that the information provided under paragraphs (a)(2) and (a)(3) will together provide a thorough understanding of the PTC system. FRA will review this information—primarily by comparing the subject PTC system's functionalities with those underlying principles contained in standards for existing signal and train control systems—to determine whether the PTC system is designed to account for all relevant safety issues. While FRA does not intend to prescribe PTC system design standards, FRA does expect that each applicant will compare the concepts contained in existing standards to the operational concepts, functionalities, and controls contemplated for the PTC system in order to determine whether a sufficient level of safety will be achieved. For example, existing requirements prescribe that where a track relay is de-energized, a switch or derail is improperly lined, a rail is removed, or a control circuit is opened, each signal governing movements into the subject block occupied by a train, locomotive, or car must display its most restrictive aspect for the safety of train operations. The principle behind the requirement is that, when a condition exists in the operating environment, or with respect to the functioning of the system, that entails a potential hazard, the system will assume its most restrictive state to protect the safety of train operations.
Paragraph (a)(4) requires that each PTCDP include a document that identifies and describes each safety-critical function of the subject PTC system. The product architecture includes both hardware and software aspects that identify the protection developed against random hardware faults and systematic errors. Further, the document should identify the extent to which the architecture is fault tolerant. FRA intends to use this information to determine whether appropriate safety concepts have been incorporated into the proposed PTC system. For example, existing regulations require that when a route has been cleared for a train movement, it cannot be changed until the governing signal has been caused to display its most restrictive indication and a predetermined time interval has expired, in those scenarios where time locking is used or where a train is in approach to the location where approach locking is used. FRA intends to use this information to determine whether all the safety-critical functions have been included. Where such functionalities are not clearly determined to exist as a result of technology development, FRA will expect the reasoning to be stated and a justification provided describing how that technology provides the required level of safety. Where FRA identifies a void in safety-critical functions, FRA may not approve the PTCDP until remedial action is taken to rectify the concern.
FRA recognizes that the information required under paragraph (a)(4) may have already been provided pursuant to paragraph (a)(1). In such a case, the railroad shall cross reference where both paragraphs (a)(1) and (a)(4) have been jointly satisfied in the PTCDP.
Paragraph (a)(4) requires that each PTCDP address the minimum requirements under § 236.1005 for development of safety-critical PTC systems. FRA expects the information provided under paragraph (a)(4) to cover: identification of all safety requirements that govern the operation of a system; evaluation of the total system to identify known or potential safety hazards that may arise over the life-cycle of the system; identification of all safety issues during the design phase of the process; elimination or reduction of the risks posed by the hazards identified; resolution of safety issues presented; development of a process to track progress; and development of a program of testing and analysis to demonstrate that safety requirements are met.
FRA has considered the railroads' concerns, and agrees that the selection of the safety assurance concepts that any particular railroad may impose on its vendor or supplier might possibly differ, based on the railroad's operational philosophy and tolerance for risk. Accordingly, FRA removed proposed paragraph (a)(5) from the final rule as an element of the PTCDP, and has made the requirement to describe the safety assurance concepts an element of the PTCSP (
Paragraph (a)(5) requires a submission of a preliminary human factors analysis that addresses each applicable human-machine interface (HMI) and all proposed product functions to be performed by humans to enhance or preserve safety. FRA expects this analysis to place special emphasis on proposed human factors responses—and the result of any failure to perform such a response—to safety-critical hazards, including the consequences of human failure to perform. For each HMI, the PTCDP should address the proposed basis of assumptions used for selecting each such interface, its potential effect upon safety, and all potential hazards associated with each interface. Where more than one employee is expected to perform duties dependent upon HMI input or output, the analysis must address the consequences of failure by one or multiple employees. FRA intends to use this information to determine the proposed HMI's effect upon the safety of railroad operations. The preliminary human factors analysis must propose how the railroad or its PTC system supplier plans to address the HMI criteria listed in Appendix E to this part or any alternatives proposed by the railroad and deemed acceptable by the Associate Administrator. The design criteria for Appendix E were first developed and subsequently adopted by FRA as an element of subpart H of this part. As the criteria in Appendix E are generally technology neutral, FRA has adopted them with minor changes, for use with both subpart H of this part and these proceedings.
Paragraph (a)(5) also requires that the PTCDP explain how the proposed HMI will affect interoperability. RSIA08 requires that each subject railroad explain how it intends to obtain system interoperability. The ability of a train crew member to operate another railroad's PTC system significantly depends upon a commonly understood HMI. The HMI provides the end user with a method of interacting with the underlying system and accessing the PTC functionality. FRA expects that each railroad will adopt an HMI standard that will ensure ease of use of the PTC system both within, and between, railroads.
Paragraph (a)(6) requires an analysis regarding how subparts A through G of part 236 apply, or no longer apply, to the subject PTC system. FRA recognizes that, while a PTC system may be designed in accordance with the underlying safety concepts of subparts A through G, the specific existing requirements contained in those subparts are not necessarily applicable. In any event, the PTCDP must identify each pertinent requirement considered to be inapplicable, fully describe the alternative method used to fulfill that underlying safety concept, and explain how the proposed PTC system supports the underlying safety principle. FRA notes that certain sections in subparts A though G of this part may always be applicable to PTC systems certified under subpart I.
FRA is concerned about all dimensions of system security. Thus,
Integrated security recognizes that optimum protection comes from three mutually supporting elements: Physical security measures, operational procedures, and procedural security measures. Today, the convergence of information and physical security is being driven by several powerful forces, including: interdependency, efficiency and organizational simplification, security awareness, regulations, directives, standards, and the evolving global communications infrastructure. Physical security describes measures that prevent or deter attackers from accessing a facility, resource, or information stored on physical media and guidance on how to design structures to resist various hostile acts. Communications security describes measures and controls taken to deny unauthorized persons information derived from telecommunications and ensure the authenticity of such telecommunications. Because of the integrated nature of security, FRA expects that each PTCDP will address security as a holistic concept, and not be restricted to limited or specific aspects.
Paragraph (a)(8) requires documentation of assumptions concerning reliability and availability targets of mechanical, electrical, and electronic components. When building a PTC system, designers may make numerous assumptions that will directly impact specific implementation decisions. These fundamental assumptions usually come in the form of data (e.g., facts collected as the result of experience, observation or experiment, or processes, or premises) that can be randomly sampled. FRA does not expect to audit all of the fundamental assumptions on which a PTC system has been developed. Instead, FRA envisions sampling and reviewing fundamental assumptions prior to product implementation and after operation for some time. FRA expects that the data sampled may vary, depending upon the PTC system. It is not possible to provide a single set of quantitative numbers applicable to all systems, especially when systems have yet to be designed and for which the fundamental assumptions are yet to be determined. Quantification is part of the risk management process for each project. FRA believes that the actual performance of the system observed during the pre-operational testing and post-implementation phases will provide indications of the validity of the fundamental assumptions. FRA requires that this review process occur for the life of the PTC system (i.e., as long as the product is kept in operation). The depth of details required will depend upon what FRA observes. The range of difference between a PTC system's predicted and actual performance may indicate to FRA the validity of the underlying fundamental assumptions. Generally, if the actual performance matches the predicted performance, FRA believes that it will not have to extensively review the fundamental assumptions. If the actual performance does not match predicted performance, FRA may need to more extensively review the fundamental assumptions.
FRA expects each subject railroad to confirm the validity of initial assumptions by comparing them to actual in-service data. FRA is aware that mechanical and electronic component failure rates and times to repair are easily quantified data, and usually are kept as part of the logistical tracking and maintenance management of a railroad. FRA believes that this criterion will enhance the quality of risk assessments conducted pursuant to this subpart by forcing PTC system designers and users to consider the long-term effects of operation over the course of the PTC system's projected life-cycle. If a PTC system can be used beyond its design life-cycle, FRA expects that any continued use would only occur pursuant to a waiver provided in accordance with 49 CFR part 211 or a PTCDP or PTCSP amended in accordance with § 236.1021. In its request for waiver or request for amendment, the railroad should address any new risks associated with the life-cycle extension.
Paragraph (a)(8) also requires specification of the target safety levels. This includes the identity of each potential hazard and how the events leading to a hazard will be identified for each safety-critical subsystem; the proposed safety integrity level of each safety-critical subsystem, and the proposed means that accomplishment of these targets will be evaluated. This paragraph also requires identification of the proposed backup methods of operation and safety-critical assumptions regarding availability of the product. FRA believes this information is essential for making determinations about the safety of a product and both the immediate and long-term effect of its failure. FRA contends that availability is directly related to safety to the extent the backup means of controlling operations involves greater risk (either inherently or because it is infrequently practiced).
Paragraph (a)(9) requires a complete description of how the PTC system will enforce all pertinent authorities and block signal, cab signal, or other signal related indications. FRA appreciates that not all PTC system architectures will seek to enforce the speed restrictions associated with intermediate signals directly, but nevertheless a clear description of these functions is necessary for clarity and evaluation.
Paragraph (a)(10) requires that, if the railroad is seeking to deviate from the requirements of section 236.1029 with respect to movement of trains with onboard equipment that has failed en route using the flexibility provided by paragraph (c) of that section, a justification must be provided in the PTCDP. As proposed, paragraph (c) of § 236.1029 provided that, in order for a PTC train that operates at a speed above 90 miles per hour to deviate from the operating limitations contained in paragraph (b) of that section, the deviation must be described and justified in the FRA approved PTCDP or PTCSP, or by reference to an Order of Particular Applicability, as applicable. For instance, if Amtrak wished to continue to operate at up to 125 miles per hour with cab signals and automatic train control in the case of failure of onboard ACSES equipment, Amtrak would request to do so based on the applicable language of the Order of Particular Applicability that required installation of that system on portions of the Northeast Corridor. Similarly, a railroad wishing more liberal
Paragraph (a)(11) requires a complete description of how the PTC system will appropriately and timely enforce all hazard detectors that are interconnected with the PTC system in accordance with § 236.1005(c)(3), as may be applicable.
Paragraph (b) specifies the approval standard that will be employed by the Associate Administrator. APTA asserted that the NPRM offered minimal guidance on the criteria FRA will use to accept or reject a system. Thus, APTA suggested that FRA should draft and vet criteria that accomplishes the basic purposes of PTC while allowing for innovation in meeting the performance requirements envisioned in the regulation.
The PTCDP is not expected to provide absolute assurance to the Associate Administrator that every potential hazard will be eliminated with complete certainty. It only needs to establish that the PTC system meets the appropriate statutory and regulatory requirements for a PTC system required under this subpart, and that there is a reasonable chance that once built, it will meet the required safety standards for its intended use. FRA emphasizes that approval of a PTCDP and issuance of a Type Approval does not constitute final approval to operate the product in revenue service. Such approval only comes when the Associate Administrator issues an applicable PTC System Certification.
Paragraph (c) establishes a time limit on the validity of a Type Approval. Provided that at least one product is certified within the 5 year period after issuance of the Type Approval, the Type Approval remains valid until final retirement of the system. The main purpose of this requirement is to incentivize installation, not just creation, of a PTC system. This paragraph would also allow FRA to periodically clean out its records relating to Type Approvals and PTCDPs for obsolete PTC systems.
Former paragraphs (d) and (e) in this section have been moved to § 236.1015 in the final rule. Therefore, former paragraph (f) has been redesignated as paragraph (d) in the final rule. Paragraph (d) discusses the Associate Administrator's ability to impose any conditions necessary to ensure the safety of the public, train crews, and train operations when approving the PTCDP and issuing a Type Approval. While FRA expects that adherence to the remainder of this section's requirements should justify issuance of a Type Approval, FRA also recognizes that there may be situations where other unaccounted for variables may reduce the Associate Administrator's confidence in the PTC system, its manufacturer, supplier, vendor, or operator.
The required contents of the NPI are specified in paragraph (e). As stated earlier, FRA expects submission of an NPI temporarily in lieu of a PTCDP only when the railroad is unable to obtain all of the information required for a PTCDP. This will enable railroads to submit a PTCIP on or before the statutory deadline of April 16, 2010. FRA believes that, given the various options available to the railroads, there are few, if any, valid reasons for not meeting the April 16, 2010, deadline for submission.
The elements that make up the NPI were carefully chosen to strike a balance between the ability of a railroad that is unable to complete a full PTCDP and FRA's need to fully understand the railroad's proposed system and the reasonableness of the PTCIP contents. FRA believes that the NPI information would be required to have been identified by the railroad in order to develop requests for proposal from the vendor or supplier community. Paragraph (e)(1) requires a description of the proposed operating environment. Paragraph (e)(2) requires a description of the concept of operations for any PTC system that will be procured by the railroad. Paragraph (e)(3) requires a description of the target safety levels that the railroad expects the PTC system to meet, while paragraphs (e)(4) and (e)(5) require an explanation of how the proposed system will integrate with the existing signal and train control system.
The PTCSP is the core document that provides the Associate Administrator the information necessary to certify that the as-built PTC system fulfills the required statutory PTC functions and is in compliance with the requirements of this subpart. Issuance of a PTC System Certification is contingent upon the approval of the PTCSP by the Associate Administrator. Under this final rule, the filing and approval of the PTCSP and issuance of a PTC System Certification is a mandatory prerequisite for PTC system operation in revenue service. Each PTCSP is unique to each railroad and must addresses railroad-specific implementation issues associated with the PTC system identified by the submitted Type Approval. Paragraph (a) provides language explaining these meanings and limits.
Paragraph (b), which reflects the contents of proposed paragraphs (d) and (e) in proposed § 236.1013, establishes the conditions under which a Type Approval may be used by another railroad. Paragraph (b)(1) requires the railroad to maintain a continually updated PTC Product Vendor List (PTCPVL) pursuant to § 236.1023 to enable the railroad and FRA to determine the appropriate vendor to contact in the unlikely event of a safety critical failure.
The safety critical nature of PTC systems imposes strict quality control requirements on the design and manufacturer of the system. While FRA believes that in the vast majority of cases, the vendor or supplier community from whom the railroads will procure PTC system components have established the appropriate quality control systems, there will be a very small minority who have not. Paragraph (b)(2) is intended to mitigate against any such occurrence, to ensure that PTC system components meet the same, uniformly high, standards. FRA is requiring that the railroad ensure that any vendor from whom they purchase PTC system or components has an acceptable quality assurance program for both design and manufacturing processes.
FRA has considered comments submitted by GE, in which GE suggested language to further clarify paragraph (b)(2) that the vendor quality control processes for PTC systems must include the process for the product supplier to promptly report any safety relevant failure and previously unidentified
Paragraph (b)(3) requires the railroad to provide licensing information. The list should include all applicable vendors or suppliers. Through the requirements set forth in paragraph (b)(3), FRA intends to ensure implementation of the proper technology, as opposed to implementation of an orphan product that uses similar, yet different, technology. When a railroad submits a previously approved Type Approval for its PTC system, FRA expects that all the proper licensing agreements will provide for continued use and maintenance of the PTC system in place. To bolster FRA's confidence in this area, FRA will require each Type Approval submission to include the relevant licensing information. FRA recognizes that there may be various licensing arrangements available relating to the exclusivity and sublicensing of manufacturing or vending of a particular PTC system. There may be other intellectual property variables that may make arrangements even more complex. To adequately capture all applicable arrangements, FRA is requiring the submission of “licensing information.” A more specific request may preclude FRA's ability to collect information necessary to fulfill its intent. If any of this information were to change, either through any type of sale, transfer, or sublicense of any right or ownership, then FRA would expect the railroad to submit a request for amendment of its PTCDP in accordance with § 236.1021. FRA recognizes that this may be difficult for a railroad to accomplish, given the fact that the railroad may not be privy to any intellectual property transactions that may occur outside its control. In any event, FRA would expect that a railroad will ensure, either through contractual obligation or otherwise, that its vendor or supplier will provide it with updated licensing information on a continuing basis.
When filing a PTCSP, paragraph (c) requires each railroad to include the applicable and approved PTCDP or, if applicable, the FRA issued Type Approval. In addition, the railroad must describe any changes subsequently made to the PTC system that would require amendment of the PTCDP or assure FRA that the PTC system built is the same PTC system described in the PTCDP and PTCSP. Some elements of the PTCSP are the same elements as the PTCDP (and are described more fully in the section-by-section analysis of § 236.1013). If the railroad has already submitted, and FRA has already approved, the PTCDP, then attachment of the PTCDP to the PTCSP should fulfill this requirement.
FRA recognizes the possibility that between PTCIP or PTCDP approval, and prior to PTCSP submission, there may be changes to the former two documents. While such changes may only be made in accordance with § 236.1021, documentation of those changes may not be readily apparent to the reader of the PTCSP. Further, changes in the PTCIP may impact the contents of the PTCDP and vice versa. Accordingly, paragraph (c)(1) requires the railroad to submit the approved PTCDP (or Type Approval) with the corresponding PTCSP.
AAR asserted that the main purpose of the PTCIP is to document the deployment plan and that the PTCIP will be of little value once the implementation is complete. Accordingly, AAR asserts that there is no need to include the PTCIP when filing either a PTCDP or PTCSP. The AAR also asserted that since the PTCSP justifies that the PTC system was built in accordance with the PTCDP, submission of the PTCIP information should not be required.
FRA agrees with AAR that the main purpose of the PTCIP is to document the deployment plan and that the PTCIP will essentially become a historical document when the railroad has completed its PTC implementation. Therefore, until all PTC system installations have been completed, FRA will require the PTCIP to be kept current with the railroad's deployment plan. However, in response to the AAR's comments, FRA has revised paragraph (c) by removing the proposed requirement to submit the PTCIP with the PTCDP and PTCSP.
FRA expects that each PTCSP shall include a clear and complete description of any such changes by specifically and rigorously documenting each variance. Paragraph (c)(2) also requires that the PTCSP include an explanation of each variance's significance. To ensure that there are no other existing variances not documented in the PTCSP, the railroad must attest that there are no further variances. For the same reason, paragraph (c)(3) requires that, if there have been no changes to the plans or to the PTC system as intended, the railroad must attest that there are no such variances.
The additional required railroad specific elements are as follows:
Paragraph (d)(1) requires that the PTCSP include a hazard log comprehensively describing all hazards to be addressed during the life-cycle of the product, including maximum threshold limits for each hazard. For unidentified hazards, the threshold shall be exceeded at one occurrence. In other words, if the hazard has not been predicted, then any single occurrence of that hazard is unacceptable. The hazard log addresses safety-relevant hazards, or incidents or failures that affect the safety and risk assumptions of the PTC system. Safety relevant hazards include events such as false proceed signal indications and false restrictive signal indications. If false restrictive signal indications occur with any type of frequency, they could influence train crew members, roadway workers, dispatchers, or other users to develop an apathetic attitude towards complying with signal indications or instructions from the PTC system, creating human factors problems.
Incidents in which stop indications are inappropriately displayed may also necessitate sudden brake applications that may involve risk of derailment due to in-train forces. Other unsafe or wrong-side failures that affect the safety of the product will be recorded on the hazard log. The intent of this paragraph is to identify all possible safety-relevant hazards that would have a negative effect on the safety of the product. Right-side failures, or product failures that have no adverse effect on the safety of the product (i.e., do not result in a hazard) would not be required to be recorded on the hazard log.
Paragraph (d)(2), which has been added to the final rule, requires that each railroad identify the PTC system's safety assurance concepts. When identifying the safety assurance concepts used, FRA expects the information provided pursuant to paragraph (d)(2) will reflect the safety requirements that govern the operation of a system; the identify of known or potential safety hazards that may arise over the life-cycle of the system; safety issues that may arise during the design phase of the process; elimination or reduction of the risks posed by the hazards identified; resolution of safety issues presented; development of a process to track progress; and development of a program of testing and analysis to demonstrate that safety requirements are being met.
In the proposed rule, this information was required as part of the PTCDP. One railroad recommended that this information requirement be completely eliminated as redundant because it is covered as part of the product safety
Paragraph (d)(3) requires that a risk assessment be included in the PTCSP. FRA will use this information as a basis to confirm compliance with the appropriate performance standard. A performance standard specifies the outcome required, but leaves the specific measures to achieve that outcome up to the discretion of the regulated entity. In contrast to a design standard or a technology-based standard that specifies exactly how to achieve compliance, a performance standard sets a goal and lets each regulated entity decide how to meet that goal. An appropriate performance standard should provide reasonable assurance of safe and effective performance by making provision for: (1) Considering the construction, components, ingredients, and properties of the device and its compatibility with other systems and connections to such systems; (2) testing of the product on a sample basis or, if necessary, on an individual basis; (3) measurement of the performance characteristics; and (4) requiring that the results of each or of certain of the tests required show that the device is in conformity with the portions of the standard for which the test or tests were required. Typically, the specific process used to design, verify and validate the product is specified in a private or public standard. The Associate Administrator may recognize all or part of an appropriate standard established by a nationally or internationally recognized standard development organization.
Labor expressed concern during this rulemaking regarding FRA's position on the treatment of wrong side failures. Wrong side failures, which occur when a PTC system fails to properly identify the track occupied by a train, should not be considered an acceptable risk. Such failures, which are completely avoidable using current technology, can result in unnecessary and risky penalty brake applications.
FRA agrees that wrong side failures introduce an element of risk in the operation of a system. Therefore, the extent of that risk and the consequences of the failure must be identified and carefully analyzed. It is for that very reason that FRA is requiring that the hazard log identify all such potential failures. The hazard mitigation analysis required in paragraph (d)(4) must identify how each hazard in the hazard log will be mitigated. While FRA agrees the majority of wrong side failures can be eliminated through the application of technology, FRA believes that the generalization that all wrong side failures can be eliminated is not valid.
Paragraph (d)(4) requires that the PTCSP include a hazard mitigation analysis. The hazard mitigation analysis must identify the techniques used to investigate the consequences of various hazards and list all hazards addressed in the system hardware and software including failure mode, possible cause, effect of failure, and remedial actions. A safety-critical system must satisfy certain specific safety requirements specified by the system designer or procuring entity. To determine whether these requirements are satisfied, the safety assessor must determine that: (1) Hazards associated with the system have been comprehensively identified; (2) hazards have been appropriately categorized according to risk (likelihood and severity); (3) appropriate techniques for mitigating the hazards have been identified; and (4) hazard mitigation techniques have been effectively applied.
FRA does not expect that the safety assessment will prove that a product is absolutely safe. However, the safety assessment should provide evidence that risks associated with the product have been carefully considered and that steps have been taken to eliminate or mitigate them. Hazards associated with product use need to be identified, with particular focus on those hazards found to have significant safety effects. The risk assessment provided under paragraph (d)(4) must include each hazard that cannot be mitigated by system designs (
Paragraph (d)(5) also requires that the PTCSP address safety Verification and Validation procedures as defined under part 236. FRA believes that Verification and Validation for safety are vital parts of the PTC system development process. Verification and Validation require forward planning. Consequently, the PTCSP should identify the testing to be performed at each stage of development and the levels of rigor applied during the testing process. FRA will use this information to ensure that the adequacy and coverage of the tests are appropriate.
Paragraph (d)(6) requires the railroad to include in its PTCSP the training, qualification, and designation program for workers regardless of whether those railroad employees will perform inspection, testing, and maintenance tasks involving the PTC system. FRA believes many benefits accrue from the investment in comprehensive training programs and are fundamental to creating a safe workforce. Effective training programs can result in fewer instances of human casualties and defective equipment, leading to increased operating efficiencies, less troubleshooting, and decreased costs. FRA expects any training program will include employees, supervisors, and contractors engaged in railroad operations, installation, repair, modification, testing, or maintenance of equipment and structures associated with the product.
Paragraph (d)(7) requires the railroad to identify specific procedures and test equipment necessary to ensure the safe operation, installation, repair, modification and testing of the product in its PTCSP. Requirements for operation of the system must be succinct in every respect. The procedures must be specific about the methodology to be employed for each test to be performed that is required for installation, repair, or modification and the results thereof must be documented. FRA will review and compare the repair and test procedures for adequacy against existing similar requirements prescribed for signal and train control systems. FRA intends to use this information to ascertain whether the product will be properly installed, maintained, tested, and repaired.
Paragraph (d)(8) requires that each railroad develop a manual covering the requirements for the installation, periodic maintenance and testing,
Paragraph (d)(9) requires that the PTCSP identify the various configurable applications of the product, since this rule mandates use of the product only in the manner described in its PTCDP. Given the importance of proper configuration management in safety-critical systems, FRA believes it is essential that railroads learn of and take appropriate configuration control of hardware and software. FRA believes that a requirement for configuration management control will enhance the safety of these systems and ultimately provide other benefits to the railroad as well. Pursuant to this paragraph, railroads will be responsible—through its applicable Operations and Maintenance Plan and other supporting documentation maintained throughout the system's life-cycle—for all changes to configuration of their products in use, including both changes resulting from maintenance and engineering control changes, which result from manufacturer modifications to the product. Since not all railroads may experience the same software faults or hardware failures, the configuration management and fault reporting tracking system play a crucial role in the ability of the railroad and the FRA to determine and fully understand the risks and their implications. Without an effective configuration management tracking system in place, it is difficult, if not impossible, to fairly evaluate risks associated with a product over its life-cycle.
Paragraph (d)(10) requires the railroad to develop comprehensive plans and procedures for product implementation. Implementation (field validation or cutover) procedures must be prepared in detail and identify the processes necessary to verify that the PTC system is properly installed and documented, including measures to provide for the safety of train operations during installation. FRA will use this information to ascertain whether the product will be properly installed, maintained, and tested. FRA also believes that configuration management should reduce disarrangement issues. Further, configuration management will reduce the cost of troubleshooting by reducing the number of variables and will be more effective in promoting safety.
Paragraph (d)(11) requires the railroad to provide a complete description of the particulars concerning measures required to assure that the PTC system, once implemented, continues to provide the expected safety level without degradation or variation over its life-cycle. The measures specifically provide the prescribed intervals and criteria for the following: testing; scheduled preventive maintenance requirements; procedures for configuration management; and procedures for modifications, repair, replacement and adjustment of equipment. FRA intends to use this information, among other data, to monitor the PTC system to assure it continually functions as intended.
Paragraph (d)(12) requires that each PTCSP include a description of each record concerning safe operation. Recordkeeping requirements for each product are discussed in § 236.1037 of this part.
Paragraph (d)(13) requires a safety analysis of unintended incursions into a work zone. Measuring incursion risks is a key safety risk assumption. Failing to identify incursion risk can have the effect of making a system seem safer on paper than it actually is. The requirements set forth in this paragraph attempt to mandate design consideration of incursion protection at an early stage in the system development process. The totality of the arrangements made to prevent unintended incursions or operation at higher than authorized speed within the work zone must be analyzed. That is, in addition to the functions of the PTC system, the required actions for dispatchers, train crews, and roadway workers in charge must be evaluated. Regardless of whether a PTC system has been previously approved or recognized, FRA will not accept a system that allows a single point human failure to defeat the essential protection intended by the Congress.
In the past, little attention was given to formalizing incursion protection procedures. Training for crews has also not been uniform among organizations, and has frequently received inadequate attention. As a result, a variety of procedures and techniques evolved based on what has been observed or what just seemed correct at the time. This lack of structure, standardization, and formal training is inconsistent with the goal of increasing safety and regulatory efficiency.
As proposed, paragraph (d)(14) would have required a more detailed description of any alternative arrangements provided under § 236.1011(a)(10), pertaining to at grade rail-to-rail crossings. APTA noted that the reference in this paragraph should be revised, as section 236.1011(a)(10) does not exist. The correct reference is § 236.1005(a)(1)(i).
As previously mentioned, § 236.1005(a) requires each applicable PTC system to be designed to prevent train-to-train collisions. Under that section, FRA has established various requirements that would apply to at-grade rail-to-rail crossings, also known as diamond crossings. While the final rule text includes certain specific technical requirements, it also provides the opportunity for each subject railroad to submit an alternative arrangement providing an equivalent level of safety as specified in an FRA approved PTCSP. Accordingly, under paragraph (d)(14), if the railroad intends to utilize alternative arrangements providing an equivalent level of safety to that of the table provided under § 236.1005(a)(1)(i), each PTCSP must identify those alternative arrangements and methods, with any associated risk reduction measures, in its PTCSP.
Paragraph (d)(15) requires a complete description of how the PTC system will enforce mandatory directives and signal indications, unless already addressed in the PTCDP. Paragraph (d)(16) refers to the requirement of § 236.1019(f) that the PTCSP is aligned with the PTCIP, including any amendments.
Under § 236.1007, FRA requires certain limitations on PTC trains operating over 90 miles per hour, including compliance with § 236.1029(c). Under § 236.1029(c), FRA provides railroads with an opportunity to deviate from those limitations if the railroad describes and justifies the deviation in its PTCDP, PTCSP, or by reference to an Order of Particular Applicability, as applicable. Thus, paragraph (d)(17) reminds railroads that this is one of the optional elements that may be included in a PTCSP. This need
Railroads are required under § 236.1005(c) to submit a complete description of their compliance regarding hazard detector integration and under §§ 236.1005(g)-(k) to submit a temporary rerouting plan in the event of emergencies and planned maintenance. Sections 236.1007 and 236.1033 also require the submission of certain documents and information. Paragraphs (d)(18), (d)(19), and (d)(20) remind railroads that such requirements must be fulfilled with the submission of the PTCSP. For example, under paragraph (d)(19), FRA expects each temporary rerouting plan to explain the host railroad's procedure relating to detouring the applicable traffic. In other words, FRA expects that each temporary rerouting plan address how the host railroad will choose the track that traffic will be rerouted onto. The plan should explain the factors that will be considered in determining whether and how the railroad should take advantage of temporary rerouting. FRA remains concerned about the unnecessary commingling of PTC and non-PTC traffic on the same track and expects each temporary rerouting plan to address this possibility. More specifically, each plan should describe how the railroad expects to make decisions to reroute non-PTC train traffic onto a PTC line, especially where another non-PTC line may be available. While FRA recognizes each railroad may seek to use the most cost effective route, FRA expects the railroad to also consider the level of risk associated with that route.
In paragraph (e), FRA states the criteria to which FRA will refer when evaluating the PTCSP, depending upon the underlying technical approach. Whereas in subpart H of this part, the safety case is evaluated to determine whether it demonstrates, with a high degree of confidence, that relevant risk will be no greater under the new product than previously, the statutory mandate for PTC calls for a different approach. In crafting this approach, FRA has attempted to limit requirements for quantitative risk assessment to those situations where the technique is truly needed. Regardless of the type of PTC system, the safety case for the system must demonstrate that it will reliably execute all of the functions required by this subpart (particularly those provided under proposed §§ 236.1005 and 236.1007). With this foundation, the additional criteria that must be met depend upon the type of PTC technology to be employed.
It is FRA's understanding that PTC systems may be categorized as one of the following four system types: non-vital overlay; vital overlay; stand-alone; and mixed. Initially, however, all PTC systems will have some features that are not fully fail-safe in nature, even if onboard processing and certain wayside functions are fully fail-safe. Common causes include surveying errors of the track database, errors in consist weight or makeup from the railroad information technology systems, and the crew input errors of critical operational data. To the extent computer-aided dispatching systems are the only check on potential dispatcher error in the creation or inappropriate cancellation of mandatory directives, some room for undetected wrong-side failure will continue to exist in this function as well.
Paragraph (e)(1) specifies the required behavior for non-vital overlay systems. Based on previous experience with non-vital systems, FRA believes it is well within the technical capability of the railroads to reduce the level of risk on any particular track segment to a level of risk 80% lower than the level of risk prior to installation of PTC on that segment. For subsequent PTC system installations on the same track segment, FRA recognizes that requiring an additional 80% improvement may not be technically or economically practical. Therefore, FRA is only requiring that an entity installing or a modifying an existing PTC system demonstrate that the level of safety is equal to, and preferably greater than, the level of safety of the prior PTC system. The risk that must be reduced is the risk against which the PTC functionalities are directed, assuming a high level of availability. Note that the required functionalities themselves do not call for elimination of all risk of mishaps. It is scope of risk reduction that the functionalities describe that becomes the 100% universe which is the basis of comparison. Although it is understood that the system will endeavor to eliminate 100% of this risk—meaning that if the system worked as intended every time and was always available, 100% of the target risk would be eliminated—the analysis will need to account for cases where wrong side failure of the technology is coincident with a human failure potentially induced by reliance on the technology. Since, within an appropriate conservative engineering analysis (i.e., pro forma analysis), non-vital processing has the theoretical potential to result in more failures than will typically be experienced, a 20% margin is provided. In preparing the PTCSP, the railroad should affirmatively address how training and oversight—including programs of operational testing under 49 CFR 217.9—will reduce the potential for inappropriate reliance by those charged with functioning in accordance with the underlying method of operation.
The 80% reduction in risk for PTC preventable accidents must be demonstrated by an appropriate risk analysis acceptable to the Associate Administrator and must address all intended track segments upon which the system will be installed. Again, FRA does not expect, or require, that these types of systems will prevent all wrong side failures. However, FRA expects that the systems will be designed to be robust, all pertinent risk factors (including human factors) will be fully addressed, and that no corners will be cut to “take advantage” of the nominal allowance provided for non-vital approaches. FRA also encourages those using non-vital approaches to preserve as much as possible the potential for a transition to vital processing.
The Rail Labor Organizations believe that FRA's position is inconsistent with safety. Wrong side failures occur when a PTC system fails to properly identify the track occupied by a train. According to the RLO, such failures, which are completely avoidable using current technology, can result in unnecessary penalty braking applications that risk causing train handling derailments due to in-train forces and may also cause a PTC system to fail to enforce a necessary stop. As such, the RLO believe that wrong side failures should not be considered an acceptable risk. Again, FRA is sympathetic in principle to the RLO concern. However, no signal or train control system is wholly without the potential for a wrong side failure; and the key to limiting their occurrence is identifying the potential and crafting mitigations where possible. Built on the foundation of existing methods of operation, PTC systems will drastically reduce unsafe events by providing a safety net for occasional human errors. It would be unwise to defer the promise of PTC technologies by demanding perfection and thereby permit accidents and casualties to continue.
Paragraph (e)(2) addresses vital overlays. Unlike a non-vital system, the vital system must be designed to address, at a minimum, the factors delineated in Appendix C. The railroad and their vendors or suppliers are encouraged to carry out a more thorough design analysis addressing any other potential product specific hazards. FRA cannot overemphasize that vital overlay system designs must be fully designed to address the factors contained in
Paragraph (e)(3) addresses stand-alone PTC systems that are used to replace existing methods of operations. The PTCSP design and risk analysis submitted to the Associate Administrator must show that the system does not introduce any new hazards that have not been acceptably mitigated, based upon all proposed changes in railroad operation. GE proffered the suggestion that when the stand-alone system is created using proven principles of vital signaling, assessing the system risk is straightforward and not significantly different than with the vital overlay system. The importance of system availability and risk under operations in contingent mode become more significant factors. FRA agrees, but believes that the one of the fundamental issues that the agency must reconcile is the value of appropriately capturing these principles in new systems and with new technologies without artificially restricting their use. FRA must accordingly exercise great care when evaluating the safety cases presented to it, regardless of the type (overlay, stand-alone, or mixed).
While FRA believes that a comprehensive safety analysis will be required for all systems, since it must provide sufficient information to the Associate Administrator to make a decision with a high degree of confidence, the required analysis for stand-alone systems is much more comprehensive than that required for vital overlay systems because it must provide sufficient information to the Associate Administrator to make a decision with a high degree of confidence. FRA will therefore exercise greater oversight when it uniquely and separately considers each request for stand-alone operations, and will render decisions in the context of the proposed operation and the associated risks. FRA recognizes that application of this standard to a new rail system for which there is no clear North American antecedent could present a conceptual challenge.
Paragraph (e)(4) addresses mixed systems (i.e., systems that include a combination of the systems identified in paragraphs (e)(1) through (e)(3). Because of the inherent complexity of these systems, FRA will determine an appropriate approach for demonstrating compliance after consultation with the railroad. Any approach will, of course, require that the system perform the PTC requirements set forth in §§ 236.1005 and 236.1007.
Paragraph (f) discusses the factors that the Associate Administrator will consider in reviewing the PTCSP. In general, PTC systems will have some features that are not fail-safe in nature. Examples include surveys of the track database, errors in consist data from the railroad such as weight and makeup, and crew input errors. FRA participation in the design and testing of the PTC system product helps FRA to better understand the strengths and weaknesses of the product for which approval is requested, and facilitates the approval process.
The railroad must establish through safety analysis that its assertions are true. This standard places the burden on the railroad to demonstrate that the safety analysis is accurate and sufficiently supports certification of the PTC system. The FRA Associate Administrator will determine whether the railroad's case has been made. As provided in subpart H, FRA believes that final agency determinations under this new subpart I should also be made at the technical level, rather than the policy level, due to the complex and sometimes esoteric subject matters associated with risk analysis and evaluation. This is particularly appropriate in light of the RSIA08's designation of the Associate Administrator for Railroad Safety as the Chief Safety Officer of FRA. When considering the PTC system's compliance with recognized standards in product development, FRA will weigh appropriate factors, including: the use of recognized standards in system design and safety analyses; the acceptable methods in risk estimates; the proven safety records for proposed components; and the overall complexity and novelty of the product design. In those cases where the submission lacks information the Associate Administrator deems necessary to make an informed safety decision, FRA will solicit the data from the railroad. If the railroad does not provide the requested information, FRA may determine that a safety hazard exists. Depending upon the amount and scope of the missing data, PTCSP approval, and the subsequent system certification, may be denied.
While paragraph (f) summarizes how FRA intends to evaluate the risk analysis, paragraph (g) applies specifically to cases where a PTC system has already been installed and the railroad subsequently wants to install in a new PTC system. Paragraph (g) re-emphasizes that FRA policy regarding the safety of PTC systems is not, and cannot expect to be, static. Rather, FRA policy may evolve as railroad operations evolve, operating rules are refined, related hazards are addressed (e.g., broken rails), and other readily available options for risk reduction emerge and become more affordable. FRA embraces the concept of progressive improvement and expects that when new systems are installed to replace existing systems that actual safety outcomes equal or exceed those for the existing systems.
Finally, paragraph (h) emphasizes the need for the PTCSP to carefully document all potential sources of error that can be introduced into the system and their corresponding mitigation strategies. FRA reserves the right to require quantitative, as opposed to qualitative risk assessments, especially in cases where there is significant residual risk or changes to the method of operations.
As previously noted in the discussion regarding § 236.1009(e), FRA may require a railroad to engage in an independent assessment of its PTC system. In the event an independent assessment is required, this section describes the applicable rules and procedures.
Paragraph (a) establishes factors considered by FRA when requiring a third-party assessment. FRA will attempt to make a determination of the necessary level of third party assessment as early as possible in the approval process. However, based on issues that may arise during the development and testing processes, or during the detailed technical reviews of the PTCDP and PTCSP, FRA may deem it necessary to require a third party assessment at any time during the review process.
Paragraph (b) is intended to make it clear that it is FRA that will make the determination of the acceptability of the independence of the third party to avoid any potential issues downstream regarding the acceptability of the assessor's independence. If a third party assessment is required, then each railroad is encouraged to identify in writing what entity it proposes to utilize as its third party assessor. Compliance with paragraph (b) is not mandatory. However, if FRA determines that the railroad's choice of a third party does not meet the level of independence contemplated under paragraph (c), then the railroad will be obligated to have the assessment repeated, at its expense, until it has been completed by a third party suitable to FRA.
Paragraph (c) provides a definition of the term “independent third party” as used in this section. It limits independent third parties to those that are compensated by the railroad or an association on behalf of one or more railroads that is independent of the PTC system supplier. FRA believes that requiring the railroad to compensate a third party will heighten the railroad's interest in obtaining a quality analysis and will avoid ambiguous relationships between suppliers and third parties that could indicate possible conflicts of interest.
Paragraph (d) explains that the minimum requirements of a third party audit are outlined in Appendix F and that FRA has discretion to the limit the extent of the third party assessment. As the criteria in Appendix F are, for the most part, technology neutral, FRA has adopted them with minor changes, for use with both subparts H and I of this part. FRA intends to limit the scope of the assessment to areas of the safety Verification and Validation as much as possible, within the bounds of FRA's regulatory obligations. This will allow reviewers to focus on areas of greatest safety concern and eliminate any unnecessary expense to the railroad. In order to limit the number of third-party assessments, FRA first strives to inform the railroad as to what portions of a submittal could be amended to avoid the necessity and expense of a third-party assessment altogether. However, FRA wishes to make it clear that Appendix F represents minimum requirements and that, if circumstances warrant, FRA may expand upon the Appendix F requirements as necessary to enable FRA to render a decision that is in the public interest (i.e., if FRA is unable to certify the system without the additional information).
The RSIA08 generally defines “main line” as “a segment of railroad tracks over which 5,000,000 or more gross tons of railroad traffic is transported annually.
In accordance with the authority provided by the statute and with carefully considered recommendations from the RSAC, FRA will consider requests for designation of track over which rail operations are conducted as “other than main line track” for passenger and commuter railroads, or freight railroads operating jointly with passenger or commuter railroads. Such relief may be granted only after request by the railroad or railroads filing a PTCIP and approval by the Associate Administrator.
Paragraph (a), therefore, requires the submittal of a main line track exclusion addendum (MTEA) to any PTCIP filed by a railroad that seeks to have any particular track segment deemed as other than main line. Since the statute only provides for such regulatory flexibility as it applies to passenger transportation routes or segments where limited or no freight railroad operations occur, only a passenger railroad may file an MTEA as part of its PTCIP. This may include a PTCIP jointly filed by freight and passenger railroads. In fact, FRA expects that in the case of joint operations, only one MTEA should be agreed upon and submitted by the railroads filing the PTCIP. After reviewing a submitted MTEA, FRA may provide full or conditional approval for the requested exemptions.
Each MTEA must clearly identify and define the physical boundaries, use, and characterization of the trackage for which exclusion is requested. When describing each track's use and characterization, FRA expects the requesting railroad or railroads to include copies of the applicable track and signal charts. Ultimately, FRA expects each MTEA to include information sufficiently specific to enable easy segregation between main line track and non-main line track. In the event the railroad subsequently requests additional track to be considered for exclusion, a well-defined MTEA should reduce the amount of future information required to be submitted to FRA. Moreover, if FRA decides to grant only certain requests in an MTEA, the portions of track for which FRA has determined should remain considered as main line track can be easily severed from the MTEA. Otherwise, the entire MTEA, and thus its concomitant PTCIP, may be entirely disapproved by FRA, increasing the risk of the railroad or railroads not meeting its statutory deadline for PTC implementation and operation.
For each particular track segment, the MTEA must also provide a justification for such designation in accordance with paragraphs (b) or (c) of this section.
Paragraph (b) specifically addresses the conditions for relief for passenger and commuter railroads with respect to passenger-only terminal areas. As noted previously in the analysis of § 236.1005(b), any track within a yard used exclusively by freight operations moving at restricted speed is excepted from the definition of main line. In those situations, operations are usually limited to preparing trains for transportation and do not usually include actual transportation. This automatic exclusion does not extend to yard or terminal tracks that include passenger operations. Such operations may also include the boarding and disembarking of passengers, heightening FRA's sensitivity to safety. Moreover, while FRA could not expend its limited resources to review whether a freight-only yard should be deemed other than main line track, FRA believes that the relatively lower number of passenger yards and terminals would allow for such review. Accordingly, FRA believes that it is appropriate to review these circumstances on a case-by-case basis.
During the PTC Working Group discussions, the major passenger railroads requested an exception for tracks in passenger terminal areas because of the impracticability of installing PTC. These are locations where signal systems govern movements over very complex special track work divided into short signal blocks. Operating speeds are low (not to exceed 20 miles per hour), and locomotive engineers moving in this environment expect conflicting traffic and restrictive signals. Although low-speed collisions do occasionally occur in these environments, the consequences are low; and the rate of occurrence is very low in relation to the exposure. It is the nature of current-generation PTC systems to use conservative braking algorithms. Requiring PTC to govern short blocks in congested terminals would add to congestion and frustrate efficient passenger service, in the judgment of those who operate these railroads. The density of wayside infrastructure required to effect PTC functions in these terminal areas would also be exceptionally costly in relation to the benefits obtained. FRA agrees that technical solutions to address these concerns are not presently available. FRA does believe that the appropriate role for PTC in this context is to enforce the maximum allowable speed (which is presently accomplished in cab signal territory through use of automatic speed control, a practice which could continue where already in place).
If FRA grants relief, the conditions of paragraphs (b)(1), (b)(2), or (b)(3), as applicable, as well as conditions attached to the approval, must be strictly adhered to.
Under paragraph (b)(1), relief under paragraph (b) is limited to operations that do not exceed 20 miles per hour. The PTC Working Group agreed upon the 20 miles per hour limitation, instead of requiring restricted speed, because the operations in question will be by signal indication in congested and complex terminals with short block lengths and numerous turnouts. FRA agrees with the PTC Working Group that the use of restricted speed in this environment would unnecessarily exacerbate congestion, delay trains, and diminish the quality of rail passenger service.
Moreover, when trains on the excluded track are controlled by a locomotive with an operative PTC onboard apparatus that PTC system component must enforce the regulatory speed limit or actual maximum authorized speed, whichever is less. While the actual track may not be outfitted with a PTC system in light of an MTEA approval, FRA believes it is nevertheless prudent to require such enforcement when the technology is available on the operating locomotives. This can be accomplished in cab signal territory using existing automatic train stop technology and outside of cab signal territory by mapping the terminal and causing the onboard computer to enforce the maximum speed allowed.
FRA also limits relief under paragraph (b)(2) to operations that enforce interlocking rules. Under interlocking rules, trains are prohibited from moving in reverse directions without dispatcher permission on track where there are no signal indications. FRA believes that such a restriction will minimize the potential for a head-on impact.
Also, under paragraph (b)(3), such operations are only allowed in yard or terminal areas where no freight operations are permitted. While the definition of main line may not include yard tracks used solely by freight operations, FRA is not extending any relief or exception to tracks within yards or terminals shared by freight and passenger operations. The collision of a passenger train with a freight consist is typically a more severe condition because of the greater mass of the freight equipment. However, FRA did receive a comment suggesting some latitude within terminals when passenger trains are moving without passengers (e.g., to access repair and servicing areas). FRA agrees that low-speed operations under those conditions should be acceptable as trains are prepared for transportation. FRA has not included a request by Amtrak (discussed below) to allow movements within major terminals at up to 30 miles per hour in mixed passenger and freight service, which appears in FRA's judgment to fall outside of the authority to provide exclusions conferred on FRA by the law.
Paragraph (c) provides the conditions under which joint limited passenger and freight operations may occur on defined track segments without the requirement for installation of PTC. Under § 236.1003 (Definitions), “limited operations” is defined as “operations on main line track that have limited or no freight operations and are approved to be excepted from this subpart's PTC system implementation and operation requirements in accordance with § 236.1019(c). This paragraph provides five alternative paths to the main line exception, three of which were contained in the proposed rule and a fourth and fifth that responds to comments on the proposed rule.
The three alternatives derived from the NPRM are set forth in paragraph (c)(1). First, under paragraph (c)(1), an exception may be available where both the freight and passenger trains are limited to restricted speed. Such operations are feasible only for short distances, and FRA will examine the circumstances involved to ensure that the exposure is limited and that appropriate operating rules and training are in place.
Second, under paragraph (c)(1)(ii), FRA will consider an exception where temporal separation of the freight and passenger operations can be ensured. A more complete definition of temporal separation is provided in paragraph (e). Temporal separation of passenger and freight services reduces risk because the likelihood of a collision is reduced (e.g., due to freight cars engaged in switching that are not properly secured) and the possibility of a relatively more severe collision between a passenger train and much heavier freight consist is obviated.
Third, under paragraph (c)(1)(iii), FRA will consider commingled freight and passenger operations provided that a jointly agreed risk analysis is provided by the passenger and freight railroads, and the level of safety is the same as that which would be provided under one of the two prior options selected as the base case. FRA requested comments on whether FRA or the subject railroad should determine the appropriate base case, but received none. FRA recognizes that there may be situations where temporal separation may not be possible. In such situations, FRA may allow commingled operations provided the risk to the passenger operation is no greater than if the passenger and freight trains were operating under temporal separation or with all trains limited to restricted speed. For an exception to be made under paragraph (c)(3), FRA requires a risk analysis jointly agreed to and submitted by the applicable freight and passenger services. This ensures that the risks and consequences to both parties have been fully analyzed, understood, and mitigated to the extent practical. FRA would expect that the moving party would elect a base case offering the greatest clarity and justify the selection.
Comments on the proposed rule generally supported the aforementioned exclusions or were silent.
In its comments on the NPRM, Amtrak requested further relief relating to lines requiring the implementation and operation of a PTC system due solely to the presence of light-density passenger traffic. According to Amtrak, the defining characteristic of light-density lines is the nature of the train traffic; light-density patterns on these lines lead to a correspondingly low risk of collision. Amtrak also asserted that, due to relatively limited wear and tear from lower traffic densities, these lines often have fewer track workers on site, further reducing the chance of collisions and incursions into work zones. Thus, states Amtrak, one of the principal reasons for installing PTC—collision avoidance—is a relatively low risk on many light density lines. With only marginal safety benefits anticipated from PTC use in such applications, Amtrak believed that there may be minimal justification for installing PTC on certain light-density lines.
Amtrak further noted that FRA itself had concluded that the costs of PTC generally exceed its benefits, and Amtrak urged that this may be even more so on light-density lines. Amtrak believed that Congress understood this issue and thus created the regulatory flexibility for the definition of “main line” for passenger routes found at 49 U.S.C. 20157(i)(2)(B) as a means to allow the Secretary to exempt certain routes from the PTC mandate. According to Amtrak, this provision essentially allows the Secretary to define certain passenger routes with limited or no freight traffic as other than “main line,” thereby effectively exempting such lines from the reach of the PTC mandate because the mandate only applies to railroad operations over “main line[s].” Said another way, urged Amtrak, the provision allows the Secretary the freedom to decide in what circumstances such routes should be considered “main lines” and thus be
Amtrak urged that the Secretary should use this flexibility to limit which passenger routes it defines as “main lines” to those deemed to warrant the use of PTC using the FRA's usual risk-based approach to safety regulation and traditional measures of reasonableness, costs, and benefits. Amtrak posited that such a risk-based analysis by FRA would likely lead to the conclusion that PTC is simply not needed on many light-density lines over which passenger trains currently operate. Amtrak therefore asked that FRA exercise this authority by working with Amtrak and the rail industry to exempt certain light density freight lines which host passenger traffic from the obligation to install PTC where operating and safety conditions do not warrant an advanced signal system.
Should FRA choose not to exempt some of these light density freight lines over which passenger trains operate, Amtrak felt that the high costs of full PTC systems will be passed on to the passenger and freight operators of these routes. According to Amtrak, this obligation could threaten the continuation of intercity passenger rail service on several routes, including lines in California, Colorado, Kansas, Maine, Massachusetts, Michigan, Missouri, New Hampshire, New Mexico, North Dakota, Vermont, and Virginia, on what are potentially light density lines. Additionally, states Amtrak, this obligation, where it can be financed, could force the diversion of significant capital dollars away from essential safety investments in track and other infrastructure improvements, which are typically the leading safety risks for such light-density operations. According to Amtrak, the cost of PTC installation on these lines may be so out of proportion to the benefit that Amtrak's service will need to be rerouted onto a different line (e.g., to a Class I line with PIH materials) if a reroute option exists, or eliminated entirely because there is no feasible alternate route and no party is willing or able to bear the cost of installing PTC on the existing route. The defining characteristic of light-density lines is the nature of the train traffic: Low density patterns on these lines lead to a correspondingly low risk of collision.
According to the Amtrak testimony, the “limited operations exception” in subsection 236.1019(c) of the NPRM did not provide a practical solution to the problem created by defining all light-density routes and terminal areas with passenger service as “main lines.” Amtrak stated that this subsection would arguably require installation of PTC on most of the trackage and locomotives of the Terminal Railroad Association of St. Louis (TRRA) unless: (1) The entire terminal operates at restricted speed (which TRRA is unlikely to agree to); (2) passenger and freight trains are temporally separated (which would not be practical on TRRA, and is unlikely to be practical on any of the light-density lines over which Amtrak operates, due to the 24/7 nature of railroad operations); or (3) a risk mitigation plan can be effected that would achieve a level of safety not less than would pertain if all operations on TRRA were at restricted speed or subject to temporal separation. Accordingly, Amtrak recommended: (a) That the FRA adopt a risk analysis-based definition of “main line” passenger routes that excludes light-density lines on which the installation of PTC is not warranted; and (b) with respect to freight terminal areas in which passenger trains operate, that the FRA modify the limited operations exception in subsection 236.1019(c) to require that all trains be limited to 30 miles per hour rather than to restricted speed, or that non-PTC equipped freight terminals be deemed as other than “main lines” so long as all passenger operations are pursuant to signal indication and at speeds not greater than 30 miles per hour (with speeds reduced to not greater than restricted speed on unsignaled trackage or if the signals should fail).
FRA believes that Amtrak's request is much broader than contemplated by the law. FRA notes that TRRA is a very busy terminal operation. FRA does not believe that the “limited freight operations” concept is in any way applicable under those circumstances. Nor is there any indication in law that FRA was expected to fall back to traditional cost-benefit principles in relation to PTC and scheduled passenger service. However, there are a number of Amtrak routes with limited freight operations that will not otherwise be equipped with PTC because they are operated by other than Class I railroads. Further, there are some Class I lines with less than 5 million gross tons, or no PIH, that also warrant individualized review to the extent Amtrak and the host railroad might elect to propose it.
Accordingly, in response to the Amtrak comments, paragraphs (c)(2) and (c)(3) have been added to the final rule to provide an option by which certain additional types of limited passenger train operations may qualify for a main line track exception where freight operations are also suitably limited and the circumstances could lead to significant hardship and cost that might overwhelm the value of the passenger service provided. Paragraph (c)(2) deals with lines where the host is not a Class I freight railroad, describing characteristics of track segments that might warrant relief from the requirement to install PTC. Paragraph (c)(2)(i) pertains to passenger service involving up to four regularly scheduled passenger trains during a calendar day over a segment of unsignaled track on which less than 15 million gross tons of freight traffic is transported annually. Paragraph (c)(2)(ii) pertains to passenger service involving up to twelve regularly scheduled passenger trains during a calendar day over a segment of signaled track on which less than 15 million gross tons of freight traffic is transported annually. In FRA's experience, four trains per day in unsignaled territory and twelve trains per day in signaled territory can be expected to be handled safely in combination with 15 million gross tons of freight traffic if the operations are carefully scrutinized and appropriate mitigation measures are taken to accommodate the particular operating environment in question. Paragraph (c)(2) derived indirectly from discussions in the RSAC in response to comments by Amtrak set forth above. The PTC Working Group proposed an exception that might have been available anywhere an intercity or commuter railroad operated over a line with 5 million gross tons of freight traffic, including Class I lines and the lines of the intercity or commuter railroad. This would have opened the potential for a considerable exception for lines with very light freight density under circumstances not thoroughly explored in the short time available to the working group (e.g., on commuter rail branch lines, low density track segments on Class I railroads, etc.).
Subsequent to the RSAC activities, Amtrak notified FRA that its conversations with Class II and III railroads, whose lines have been at the root of the Amtrak comments, revealed that some of the situations involved freight traffic exceeding 5 million gross tons, potentially rendering the exception ineffective for this purpose. At the same time, FRA noted that the policy rationale behind the proposed additional exception was related as much to the inherent difficulty associated with PTC installation during the initial period defined by law, given that the railroads identified by Amtrak were for the most part very small operations with limited technical
Amtrak also provided to FRA a spreadsheet identifying each of its route segments with attributes such as route length, freight tonnage, number of Amtrak trains, and numbers of commuter trains. FRA further reviewed this information in light of Amtrak's request for main track exceptions. FRA noted a number of segments of the Amtrak system on Class I railroads where the number of Amtrak trains was low and the freight tonnage was also low (less than 15 million gross tons). Each of these lines, with the exception of one 33-mile segment, is signalized. FRA further noted that, with both Amtrak and Class I railroad locomotives equipped for PTC, use of partial PTC technology (e.g., monitoring of switches where trains frequently clear) should be available as a mitigation for collision risk. Accordingly, in paragraph (c)(3), FRA has provided a further narrow exception for Class I lines carrying no more than four intercity or commuter passenger trains per day and cumulative annual tonnage of less than 15 million gross tons, subject to FRA review. The limit of four trains takes into consideration that it is much less burdensome to equip the wayside of a Class I rail line than to install a full PTC system on a railroad that would not otherwise require one. Again, the exception is not automatic, and FRA's approval of a particular line segment would be discretionary. Any Class I line carrying both 5 million gross tons and PIH traffic would, of course, not be eligible for consideration.
The new paragraph (d) makes clear that FRA will carefully review each proposed main track exception and may require that it be supported by appropriate hazard analysis and mitigations. FRA has previously vetted through the RSAC a Collision Hazard Analysis Guide that can be useful for this purpose. If FRA determines that freight operations are not “limited” as a matter of safety exposure or that proposed safety mitigations are inadequate, FRA will deny the exception.
Paragraph (e) (formerly paragraph (d) in the proposed rule) provides the definition of temporal separation with respect to paragraph (c)(2). The temporal separation approach is currently used under the FRA-Federal Transit Administration Joint Policy on Shared Use, which permits co-existence of light rail passenger services (during the day) and local freight service (during the nighttime).
Paragraph (f) (paragraph (e) in the proposed rule) ensures that by the time the railroad submits its PTCSP, no unapproved changes have been made to the MTEA and that the PTC system, as implemented, reflects the PTCIP and its MTEA. Under this final rule, the PTCSP must reflect the PTCIP, including its MTEA, as it was approved or how it has been modified in accordance with § 236.1021. FRA believes that it is also important that the railroad attest that no other changes to the documents or to the PTC system, as implemented, have been made.
FRA understands that, as a railroad implements its PTC system in accordance with its PTCIP or even after it receives PTC System Certification, the railroad may decide to modify the scope of which tracks it believes to be other than main line. To effectuate such changes, paragraph (g) requires FRA review. In the case that the railroad believes that such relief is warranted, the railroad may file in accordance with § 236.1021 a request for amendment of the PTCIP, which will eventually be incorporated into or referenced by the PTCSP upon PTCSP submission. Each request, however, must be fully justified to and approved by the Associate Administrator before the requested change can be made to the PTCIP. If such a RFA is submitted simultaneously with the PTCSP, the RFA may not be approved, even if the PTCSP is otherwise acceptable. A change made to an MTEA subsequent to FRA approval of its associated PTCIP that involves removal or reduction in functionality of the PTC system will be treated as a material modification. In keeping with traditional signaling principles, such requests must be formally submitted for review and approval by FRA.
FRA recognizes that, after submittal of a plan or implementation of a train control system, the subject railroad may have legitimate reasons for making changes in the system design and the locations where the system is installed. In light of the statutory and regulatory mandates, however, FRA believes that the railroad should be required to request FRA approval prior to effectuating certain changes. Section 236.1021 provides the scope and
Paragraph (a) requires FRA approval prior to certain PTC system changes. FRA expects that if a railroad wants to make a PTC system change covered by subpart I, then any such change would result in noncompliance with one of the railroad's plans approved under this subpart. For instance, if a railroad seeks to modify the geographical limits of its PTC implementation, such changes would not be reflected in the PTCIP. Accordingly, under paragraph (a), after a plan is approved by FRA and before any change is made to the PTC system's development, implementation, or operation, the railroad must file a RFA to the subject plan.
FRA considers an amendment to be a formal or official change made to the PTC system or its associated PTCIP, PTCDP, or PTCSP. Amendments can add, remove, or update parts of these documents, which may reflect proposed changes to the development, implementation, or operation of its PTC system. FRA believes that an amending procedure provides a simpler and cleaner option than requiring the railroad to file an entirely new plan.
While the railroad may develop a RFA without FRA input or involvement, FRA believes that it is more advantageous for the railroad to informally confer with FRA before formally submitting its RFA. If FRA is not involved in the drafting process, FRA may not have a complete understanding of the system, making it difficult for FRA to evaluate the impact of the proposed changes on public safety. After RFA submission, all applicable correspondence between FRA and the railroad must be made formally in the associated docket, as further discussed below. In such a situation, FRA's review may take a significantly longer time than usual. If FRA continues to not understand the impact, it may request a third party audit, which would only further delay a decision on the request. Accordingly, FRA believes it is more advantageous for the railroad drafting an RFA to informally confer with FRA before its formal submission of the change request. The railroad would then be provided an opportunity to discuss the details of the change and to assure FRA's understanding of what the railroad wishes to change and of the change's potential impact.
Under paragraph (b), once the RFA is approved, the railroad shall adopt those changes into the subject plan and immediately ensure that its PTC complies with the plan, as amended. FRA expects that each PTC system accurately reflects the information in its associated approved plans. FRA believes that this requirement will also incentivize railroads to make approved changes as quickly as possible. Otherwise, if a railroad delays in implementing the changes reflected in an approved RFA, FRA may find it difficult to enforce its regulations until implementation is completed, since the plans and PTC system do not accurately and adequately reflect each other. In such circumstances, a railroad may be assessed a civil penalty for violating its plan or for falsifying records.
Any change to a PTCIP, PTCDP, or PTCSP, which may include removal or discontinuance of any signal system, may not take effect until after FRA has approved the corresponding submitted or amended PTCIP, PTCDP, or PTCSP. FRA may provide partial or conditional approval. Until FRA has granted appropriate relief or approval, the railroad may not make the change, and once a requested change has been made, the railroad must comply with requested change.
FRA recognizes that a railroad may wish to remove an existing train control system due to new and appropriate PTC system implementation. For train control systems existing prior to promulgation of subpart I, any request for a material modification or discontinuance must be made pursuant to part 235. Paragraph (c), however, provides the railroads with an opportunity to instead request such changes in accordance with proposed § 236.1021. FRA believes that this requirement will reduce the number of required filings and would otherwise simplify the process requesting material modifications or discontinuances.
Paragraph (d) provides the minimum information required to be submitted to FRA when requesting an amendment. While the procedural rules here are different than those in part 235, FRA expects that the same or similar information be provided. Accordingly, under paragraph (d)(1), the RFA must contain the information required in 235.10. Paragraph (d)(1) also requires the railroad to submit, upon FRA request, certain additional information, including the information referenced in § 235.12. Paragraphs (d)(2) through (d)(7) provide further examples of such information. While such information may only be required upon request, FRA urges each railroad to include this information in its RFA to help expedite the review process.
FRA believes that paragraphs (d)(2) through (d)(6) are self-explanatory. However, according to paragraph (d)(7), FRA may require with each RFA an explanation of whether each change to the PTCSP is planned or unplanned. Planned changes are those that the system developer and the railroad have included in the safety analysis associated with the PTC system, but have not yet implemented. These changes provide enhanced functionality to the system, and FRA strongly encourages railroads to include PTC system improvements that further increase safety. A planned change may require FRA approved regression testing to demonstrate that its implementation has not had an adverse affect on the system it is augmenting. Each planned change must be clearly identified as part of the PTCSP, and the PTCSP safety analysis must show the affect that its implementation will have on safety.
Unplanned changes are those either not foreseen by the railroad or developer, but nevertheless necessary to ensure system safety, or are unplanned functional enhancements from the original core system. The scope of any additional work necessary to ensure safety may depend upon when in the development cycle phase the changes are introduced. For instance, if the PTCDP has not yet been submitted to FRA, no FRA involvement is required. However, if the PTCDP has been submitted to FRA, or if the change impacts the safety functionality of the system once a Type Approval has been issued, and a PTCSP has not yet been submitted, the railroad must submit a RFA requesting and documenting that change. Once FRA approves that RFA, FRA expects the subsequently filed PTCSP to account for the change in analysis.
If the change is made after approval of the PTCSP and the system has been certified by FRA, a RFA must be submitted to FRA for approval. Because this requires significant effort by FRA and the railroad, FRA expects that every effort will be made to eliminate the need for unplanned changes. If the railroad and the vendor or supplier submit unplanned safety related changes that FRA believes are a significant amount or inordinately complex, FRA may revoke any approvals previously granted and disallow the use of the product until such time the railroad demonstrates the product is sufficiently mature.
Paragraph (e) provides that if a RFA is submitted for a discontinuance or a
Paragraph (f) makes it clear that FRA will consider all impacts on public safety prior to approval or disapproval of any request for discontinuance, modification, or amendment of a PTC system and any associated changes in the existing signal system that may have been concurrently submitted. While the economic impact to the affected parties may be considered by FRA, the primary and final deciding factor on any FRA decision is safety. FRA will consider not only how safety is affected by installation of the system, but how safety is impacted by the failure modes of the system.
The Southern California Regional Rail Authority submitted comments requesting “easy streamlined approval” of incremental changes and additions to the plans based on procurement and type approval of vendor or supplier products. However, FRA would like to point out that, where lines change during or subsequent to the railroad's submission of its PTCIP, the railroad merely needs to identify its plan for implementation on such lines in its RFA. This does not appear to be an overly burdensome task.
The purpose of paragraph (g) is to emphasize the right of FRA to unilaterally issue a new Type Approval, with whatever conditions are necessary to ensure safety based on the impact of the proposed changes.
In paragraph (h), FRA makes clear that it considers any implemented PTC system to be a safety device. Accordingly, the discontinuance, modification, or other change of the implemented system or its geographical limits will not be authorized without prior FRA approval. While this requirement primarily applies to safety critical changes, FRA believes that they should also apply to all changes that will affect interoperability. The principles expressed in the paragraph parallel those embodied in part 235, which implements 49 U.S.C. 20502(a). Railroads may need to review § 236.1005(b)(4) and supply the required information in an RFA submission.
That said, FRA recognizes that there are a limited number of situations where changes of the PTC system may not have an adverse impact upon public safety. Specific situations where prior FRA approval is required are provided in paragraphs (h)(1) through (h)(4).
Paragraph (i) provides the exceptions from the requirement for prior approval in cases where the discontinuance of a system or system element will be treated as pre-approved, as when a line of railroad is abandoned.
Paragraph (j) provides exceptions for certain lesser changes that are not expected to materially affect system risk, such as removal of an electric lock from a switch where speed is low and trains are not allowed to clear.
The AAR submitted comment that paragraphs (j)(2) and (j)(3) should be revised to recognize the allowance for removal of a signal used in lieu of an electric or mechanical lock in the same manner as removal of the electric or mechanical lock. These two paragraphs are intended to recognize that where train speed over the switch does not exceed 20 miles per hour, or where trains are not permitted to clear the main track at the switch, removal of the devices intended to provide the necessary protection should not require the submission of a filing for FRA approval.
The regulation requiring the installation of an electric or mechanical lock identifies the allowance for a signal used in lieu thereof (
Paragraph (k) provides additional exceptions consisting of modifications associated with changes in the track structure or temporary construction. FRA notes that only temporary removal of the PTC system without prior FRA approval is allowed to support highway rail separation construction or damage to the PTC system by catastrophic events. In both cases, the PTC system must be restored to operation no later than 6 months after completion of the event.
Caltrain submitted comments stating that proposed paragraph (k)(6) and § 236.1009(a)(2)(ii)(B) appear to address the installation of new track in an inconsistent manner. While proposed paragraph (k)(6) states that it will not be necessary to file an RFA for the installation of new track, § 236.1009(a)(2)(ii)(B) states that an RFA must be filed if railroad intends to add, subtract, or otherwise materially modify one or more lines of railroad for which installation of a PTC system is required.
FRA agrees that there appears to have been a conflict between the provisions contained in paragraph (k)(6) and § 236.1009(a)(2)(ii)(B). In light of the fact that FRA considers it necessary to file an RFA if the railroad intends to install new track for which installation of a PTC system is required, FRA has not included proposed paragraph (k)(6) in the final rule.
Often it is only after the product has been placed in field service for an extended period of time before the accuracy of the assumptions regarding errors and malfunctions can be validated. Accordingly, the reporting and recording of errors and malfunctions takes on critical importance. If the number of errors and malfunctions exceeds those originally anticipated in the design, or errors and malfunctions that were not predicted are observed to occur, the validity of the system design assumptions and the accuracy of the performance predictions becomes suspect. The requirements of this section provide the process and procedures for tracking, reporting, and correction of errors and malfunctions. The final rule reflects the requirements of the NPRM, but has been reorganized for greater clarity.
Paragraph (a) of this section contains the requirement for all railroads operating a PTC system to establish and maintain a PTCPVL. The PTCPVL list ensures that the railroad can quickly determine the vendor of the product that has experienced an error or malfunctioned, and then be able to report the occurrence of the error or malfunction in a timely and accurate manner to the appropriate entity responsible for the design and manufacture of the product. FRA access to the PTCPVL of each railroad enables FRA to quickly identify all railroads that may potentially be affected by the error malfunction, thereby allowing FRA to better understand the implications of the condition on the industry. Not all railroads using the same product or processes may experience the same software errors or hardware failures, even if the cause of the error or failure is systemic to the design, and an individual railroad may not have the resources to determine if there are any industry-wide implications. The requirement for creating and maintaining the PTCPVL was originally proposed in paragraph (c) of the NPRM.
Paragraph (b)(1) establishes a requirement that the railroad specify in its PTCSP all contractual arrangements with their vendors or suppliers for immediate notification of safety-critical upgrades made to the product by the
Paragraph (c)(1) levies the requirement on the railroad to specify in its PTCSP the process and procedures the railroad will implement when a safety-critical upgrade or failure notification is received from the vendor or supplier. This requirement is necessary regardless of whether the railroad itself discovers the problem or the vendor or supplier notifies the railroad of the problem. Paragraph (c)(2) requires the railroads to identify the associated configuration management process they will use to identify safety-critical failures and mitigations. FRA believes it to be essential, given the potential impact on safety of a safety-critical failure, that the railroads have the necessary planning and mechanisms in place to promptly address the situation. Each railroad's and vendor's or supplier's development processes, configuration management programs, and fault reporting tracking systems play a crucial role in the ability of both parties and the FRA to determine and fully understand the risks and implications. Without an effective configuration management tracking system in place, it is difficult, if not impossible, to fairly evaluate PTC system risks during the system's life-cycle.
Paragraph (d) requires that the railroad provide to its vendor or supplier the railroad's processes and procedures for addressing safety-critical failure, malfunction, and fault issues. FRA believes that by providing this information to the vendor or supplier, the vendor or supplier will be able to more efficiently and effectively provide notification to the appropriate railroad personnel. The net result FRA is seeking is that potential delays in identifying or correcting safety-critical faults will be minimized.
Paragraph (e) requires the railroad to maintain a database of all safety-relevant hazards identified in its PTCSP, as well as all safety-relevant hazards that were not previously identified. FRA believes that the requirement to report any safety-relevant hazard that was not previously identified in the PTCSP is self evident, in that it clearly represents an unknown and unplanned failure mode. Without this database, a railroad will be unable to determine if the number of particular failures has risen to a level above the thresholds set forth in the PTCSP. If the frequency of the safety-relevant hazards exceeds the thresholds set forth in the PTCSP, the railroads shall take the following specific actions as prescribed in this section: Notify the applicable vendor or supplier and the FRA; keep the applicable vendor or supplier and the FRA apprised of the status of any and all subsequent failures; and, take prompt countermeasures to eliminate or reduce the frequency below the threshold identified. Until the corrective action is complete, the railroad is required to take measures to ensure the safety of train operations, roadway workers, on track equipment, and the general public.
While the preceding paragraphs dealt with the establishment of a framework to address errors and malfunctions, paragraphs (f) through (g) deal with the actual handling and reporting of errors and malfunctions within that framework. Paragraph (f) establishes time limits for reporting failures and malfunctions to the product vendor or supplier and the FRA as well as minimum reporting requirements. The period for notification has been lengthened from that proposed in the NPRM to 15 days. FRA wishes to emphasize that it is more interested in timely notifications, and accordingly, has not established a specific format for the reports. FRA will accept any report format, provided it contains at least the minimal information required by this section. FRA will accept delivery of these reports by commercial courier, fax, and e-mail. However, with respect to information that is not immediately available, paragraph (f) has been amended to require railroads to submit supplemental reports with the previously unavailable information. FRA requires this information to determine the full impact of the problem, and to determine if any additional restrictions or limitations on the use of the PTC system may be warranted to ensure the safety of the general public and the railroad personnel. If the correcting or mitigating action were to take a significant amount of time, FRA would expect the railroad to provide FRA with periodic frequent progress reports.
Paragraph (g) establishes a reporting requirement for railroads and vendors or suppliers to provide to the Associate Administrator on request the results of any investigation of an accident or service difficulty report that shows the PTC system, subsystem, or component is unsafe because of a manufacturing or design defect. In addition, the railroad and its vendor or supplier may be required to report on any action taken or proposed to correct the defect.
Paragraph (h) imposes a direct obligation on suppliers to report safety-relevant failures or defective conditions, previously unidentified hazards, and recommended mitigation actions in their PTC system, subsystem, or component to each railroad using its product. Each applicable supplier is also required to notify FRA of the safety-relevant failure, defective condition, or previously unidentified hazard discovered by the vendor or supplier and the identity of each affected and notified railroad. FRA believes that it should be informed to ensure public safety in any case where a commercial dispute (e.g., over liability) might disrupt communication between a railroad and supplier.
GE submitted a comment on this section, in which it raised an objection to the direct imposition by FRA of a reporting obligation on PTC suppliers. GE believes this requirement is unwarranted for three reasons. First, the railroad is the primary entity having knowledge of such a failure and already has the obligation to report a failure within strict guidelines. Second, even if the PTC supplier becomes aware of a failure, the PTC supplier may not have sufficient understanding of the failure to determine whether it is truly safety-related in nature without talking to the railroad. Third, there already exist sufficient legal incentives for a supplier to quickly resolve any safety-related failure that might occur. GE believes that railroads' regulatory compliance responsibilities should not be delegated to suppliers. Ultimately, GE asserts that this requirement unnecessarily complicates the task of deploying PTC and is unwarranted.
GE proposed alternative language at the RSAC PTC Working Group meeting held August 31-September 2, 2009, that removed the supplier's obligation to directly report to FRA by deleting proposed paragraphs (a) and (f) of this section and adding language to § 236.1015(b)(2). In this proposed alternative language, GE recommended
FRA carefully considered GE's recommendation. In § 236.907(d), FRA has previously established for PTC systems that are voluntarily implemented by railroads, under the provisions of subpart H of this part, a requirement that the vendor/supplier and railroads establish mutual reporting relationships for promptly reporting any safety-relevant failures and previously unidentified hazards. FRA seeks to continue this relationship requirement for mandatory PTC system installations under the provisions of this subpart.
As noted in the preamble discussion of § 236.907(d), FRA clearly indicated that if there was “a breakdown in communications that could adversely affect public safety”, FRA would take appropriate action as necessary.
FRA believes that the requirement that a product supplier notify FRA, in addition to the affected railroads, of safety-relevant failures of the PTC product discovered by the supplier does not add to the complexity or cost of PTC system deployment. The addition of FRA to the list of entities that must be notified in the unlikely event of a product failure that has been identified by the product supplier adds only marginally to the level of effort required of the product supplier. As a condition of providing PTC systems pursuant to subpart H of this part, the product supplier must already maintain a list of parties that require such notification. As GE noted, even if there were no regulatory requirement for a mutual reporting relationship between product suppliers and railroads, there are already legal incentives for a supplier to quickly resolve any safety related failure. FRA believes that these legal incentives should motivate the product supplier to promptly notify product users of safety-related issues and, therefore, to maintain a list of product users.
FRA has also considered GE's argument that the railroad is the primary entity having knowledge of safety-related failures and already has an obligation to report the failure within strict guidelines. Thus, even if the PTC supplier becomes aware of the failure, the supplier may not have sufficient understanding of the failure to determine whether it is safety-related in nature without talking to the railroad. GE's assertion that the supplier may not recognize that a failure is safety related without talking to the railroad also applies equally to the converse situation. A railroad may report a failure to the vendor or supplier that the railroad may not recognize as safety critical, and it is only the vendor's or supplier's detailed knowledge of the product that enables recognition of the failure as safety critical.
FRA is consequently unmoved by the assertion that the imposition of a requirement that a vendor or supplier notify FRA upon discovery of a safety critical problem would be unduly burdensome.
In view of the preceding, FRA has left this paragraph unchanged in principle. FRA has, however, made editorial changes to more clearly define the responsibilities of the parties involved and to clearly indicate the acceptability of incremental reporting as more information becomes available.
RSI made many statements similar to those of GE and also asserts that the notification requirement on suppliers would not enhance safety, but would create the potential for redundant, premature, potentially misleading, and burdensome reports to FRA. RSI cites various statutes and regulations, including RSIA08 and the existing part 236, that apply “exclusively” to “railroads” and “railroad carriers.” However, according to 49 U.S.C. 20103, which continues to be referenced in part 236's Authorities section:
(a) Regulations and orders.—The Secretary of Transportation, as necessary, shall prescribe regulations and issue orders for every area of railroad safety supplementing laws and regulations in effect on October 16, 1970. When prescribing a security regulation or issuing a security order that affects the safety of railroad operations, the Secretary of Homeland Security shall consult with the Secretary.
FRA has previously applied its jurisdiction over suppliers. Under § 236.907(d), suppliers must perform certain notification responsibilities. While that paragraph concerns notification by the supplier to the railroad, there is nothing preventing FRA from requiring the supplier to also notify FRA. In fact, as a practical matter, FRA believes that reporting failures directly to FRA is necessary here. Under subpart H, the absence of direct and timely access to product notices has continued to be an issue for FRA. This concern will only become greater as the subject technology becomes more complex.
RSI also noted that, “the scope of the signal and train control provision at Part 236 explains that this entire part, which will include the proposed regulations for § 236.1023, applies only to the railroads.” Indeed, § 236.0(a) currently states, “Except as provided in paragraph (b) of this section, this part applies to all railroads.” While that paragraph indicates that the part applies to all railroads, it does not limit application to “only” railroads, as misstated by RSI. In any event, to avoid confusion, FRA is modifying § 236.0(a) to apply to all railroads and persons as indicated in this part. For instance, “person” is defined in § 236.0(f) when referencing 1 U.S.C. 1 (which includes manufacturers and independent contractors) and railroad is defined in subpart G of part 236.
Paragraph (i) addresses situations which are clearly not the result of a design or manufacturing issue, and limits unnecessary reporting. If the failure, malfunction, or defective condition was the result of improper operation of the PTC system outside of the design parameters or of non-compliance with the applicable operating instructions, FRA believes that compliance with paragraph (e) is not necessary. Instead, FRA expects and requires the railroad to engage in more narrow remedial measures, including remedial training by the railroad in the proper operation of the PTC system. Similarly, once a problem has been identified to all stakeholders, FRA does not believe it is necessary for a manufacturer to repeatedly submit a formal report in accordance with paragraph (h). In either situation, however, FRA expects that all users of the equipment will be proactively and timely notified of the misuse that occurred and the corrective actions taken.
Such reports, however, do not have to be made within fifteen days of occurrence, as required for other notifications under paragraph (f), but within a reasonable time appropriate to the nature and extent of the problem.
Paragraph (j) has been added to the final rule to require that, when any safety-critical PTC system, subsystem, or component fails to perform its intended function, the railroad is required to determine the cause and perform necessary adjustment, repair, or replacement of any faulty product without undue delay. Paragraph (j) also reminds railroads that, until corrective action has been completed, a railroad is required to take appropriate action to ensure safety and reliability as specified within its PTCSP.
In paragraph (k) of the final rule, FRA intends to make it absolutely clear that the reporting requirements of part 233 are not a substitute for the reporting requirements of this subpart, nor are the reporting requirements of this subpart considered to be a substitute for the reporting requirements of part 233. Both sets of reporting requirements apply. FRA would like to clarify that both requirements apply. In the case of a failure meeting the criteria described in § 233.7, FRA would not expect the railroad to wait for the frequency of such occurrences to exceed the threshold reporting level assigned in the hazard log of the PTCSP, but will expect the railroad to report the occurrence as required by § 233.7.
This section retains similarities to, but also establishes contrasts with, § 236.911, which deals with exclusions from subpart H. In particular, § 236.911(c) offers reassurance that a stand-alone computer aided dispatching (CAD) system would not be considered a safety-critical processor-based system within the purview of subpart H. CADs have long been used by large and small railroads to assist dispatchers in managing their workload, tracking information required to be kept by regulation, and—most importantly—providing a conflict checking function designed to alert dispatchers to incipient errors before authorities are delivered. Even § 236.911, however, states that “a subsystem or component of an office system must comply with the requirements of this subpart if it performs safety-critical functions within, or affects the safety performance of, a new or next-generation train control system.” FRA continues to work with a vendor or supplier on a simple CAD that provides authorities in an automated fashion, without the direct involvement of a dispatcher.
For subpart I, FRA intends to retain the exception referred to in § 236.911 for CAD systems not associated with a PTC system. Many smaller railroads use CAD systems to good effect, and there is no reason to impose additional regulations where dispatchers contemporaneously retain the function of issuing mandatory directives. However, in the present context, it is necessary to recognize that PTC systems utilize CAD systems as the “front end” of the logic chain that defines authorities enforced by the PTC system, particularly in non-signaled territory.
Accordingly, paragraph (a) provides for the potential exclusion of certain office systems technologies from subpart I compliance. These existing systems have been implemented voluntarily to enhance productivity and have proven to provide a reasonably high level of safety, reliability, and functionality. FRA recognizes that full application of subpart I to these systems would present the rail industry with a tremendous burden. The burdens of subpart I may discourage voluntary PTC implementation and operation by the smaller railroads.
However, subpart I applies to those subsystems or components that perform safety critical functions or affect the safety performance of the associated PTC system. The level and extent of safety analysis and review of the office systems will vary depending upon the type of PTC system with which the office system interfaces. For example, to prevent the issuance of overlapping and inconsistent authorities, FRA expects that each PTC system demonstrate sufficient credible evidence that the requisite safety-critical, conflict resolution (although not necessarily vital) hardware and software functions of the system will work as intended. FRA also expects that the applicable PTCDP's and PTCSP's risk analysis will identify the associated hazards and describe how they have been mitigated. Particularly where mandatory directives and work authorities are evaluated for use in a PTC system without separate oral transmission from the dispatcher to the train crew or employee in charge—with the opportunity for receiving personnel to evaluate and confirm the integrity of the directive or authority received and the potential for others overhearing the transmission to note conflicting actions by the dispatching center—FRA will insist on explanations sufficient to provide reasonable confidence that additional errors will not be introduced.
Paragraph (b) provides requirements for modifications of excluded PTC systems. At some point when a change results in degradation of safety or in a material increase in safety-critical functionality, changes to excluded PTC systems or subsystems may be significant enough to require application of subpart I's safety assurance processes. FRA believes that all modifications caused by unforeseen implementation factors will not necessarily cause the product to become subject to subpart I. These types of implementation modifications will be minor in nature and be the result of site specific physical constraints. However, FRA expects that implementation modifications that will result in a degradation of safety or a material increase in safety-critical functionality, such as a change in executive software, will cause the PTC system or subsystem to be subject to subpart I and its requirements. FRA is concerned, however, that a series of incremental changes, while each individually not meeting the threshold for compliance with this subpart, may when aggregated result in a product which differs sufficiently so as to be considered a new product. Therefore, FRA reserves the right to require products that have been incrementally changed in this manner to comply with the requirements of this subpart. Prior to FRA making such a determination, the affected railroad will be allowed to present detailed technical evidence why such a determination should not be made. This provision mirrors paragraph (d) of existing § 236.911.
Paragraph (c) addresses the integration of train control systems with other locomotive electronic control systems. The earliest train control systems were electro-mechanical systems that were independent of the discrete pneumatic and mechanical control systems used by the locomotive engineer for normal throttle and braking functions. Examples of these train control systems included cab signals and ACS/ATC appliances. These systems included a separate antenna for interfacing with the track circuit or inductive devices on the wayside. Their power supply and control logic were separate from other locomotive functions, and the cab signals were displayed from a separate special-purpose unit. Penalty brake applications by the train control system bypassed the locomotive pneumatic and mechanical control systems to directly operate a valve that accomplished a service reduction of brake pipe pressure and application of the brakes as well as
Advances in hardware and software technology have allowed the various PTC systems' and components' original equipment manufacturers (OEMs) to repackage individual components, eliminating parts and system function control points access. Access to control functions became increasingly restricted to the processor interfaces using proprietary software. While this resulted in significant simplification of the previously complex discrete pneumatic and mechanical control train and locomotive control systems into fewer, more compact and reliable devices, it also creates significant challenges with respect to compatibility of the application programs and configuration management.
FRA encourages such enhancements, and believes that, if properly done, they can result in significant safety, as well as operational, improvements. Locomotive manufacturers can certainly provide secure locomotive and train controls, and it is important that they do so if locomotives are to function safely in their normal service environment. FRA highly encourages the long-term goal of common platform integration. However, when such integration occurs, it must not be done at the expense of decreasing the safe and reliable operation of the train control system. Accordingly, FRA expects that the complete integrated system will be shown to have been designed to fail-safe principles, and then demonstrated that the system operates in a fail-safe mode. Any commingled system must have a manual fail-safe fall back up that allows the engineer to be brought to be a safe stop in the event of an electronic system failure. This analysis must be provided to FRA for approval in the PTCDP and PTCSP as appropriate. This provision mirrors the heightened scrutiny called for by § 236.913(c) of subpart H for commingled systems, but is more explicit with respect to FRA's expectations. The provision in general accords with the requirements for locomotive systems that are currently under development in the RSAC's Locomotive Safety Standards Working Group.
GE generally agreed with the preceding discussion about separate regulatory treatment of PTC and the locomotive control systems. However, they strongly disagree with any implication, if the two systems were interfaced or commingled, that PTC requirements could be extended into the locomotive control system. They assert non-safety-critical data can be passed between the systems using appropriate interfaces without any impact on safety and without triggering a need to extend PTC requirements into the control system.
FRA agrees that there are implementation techniques that allow for locomotive control systems to passively receive information from a train control system, and the train control and locomotive control systems are not tightly coupled. FRA expects that in such situations the safety case for the train control system clearly and unequivocally demonstrates that the train control system is not tightly coupled with the locomotive control system, and that failures in the locomotive control system have absolutely no adverse consequences on the safe operation of the train control system. Likewise, FRA expects that the safety analysis for the locomotive control system clearly and unequivocally demonstrates that the train control system is not tightly coupled with the locomotive control system, and that failures in the train control system have absolutely no adverse consequences on the safe operation of the locomotive control system. If the safety analysis cannot convincingly demonstrate to FRA that the train control and locomotive control systems are loosely coupled, then FRA will require that the safety analysis for the PTC system include the applicable elements of the locomotive control system, and vice versa.
Finally, paragraph (d) clarifies the application of subparts A through H to products excluded from compliance with subpart I. These products are excluded from the requirements of subpart I, but FRA expects that the developing activity demonstrates compliance of products with subparts A through H. FRA believes that railroads not mandated to implement PTC, or that are implementing other non-PTC related processor based products, should be given the option to have those products approved under subpart H by submitting a PSP and otherwise complying with subpart H or by voluntarily complying with subpart I. This provision mirrors § 236.911(e) of subpart H.
This section provides minimum requirements, in addition to those found in the PTC system's plans, for each PTC system with a PTC System Certification. Railroads are allowed, and encouraged, to adopt more restrictive rules that increase safety.
Paragraph (a) requires that, in the event of the failure of a component essential to the safety of a PTC system to perform as intended, the cause be identified and corrective action taken without undue delay. The paragraph also states that until the corrective action is completed, the railroad is required, at a minimum, to take appropriate measures, including those specified in the PTCSP, to ensure the safety of train movements, roadway workers, and on-track equipment. This requirement mirrors the current requirements of § 236.11, which applies to all signal and train control system components. Under paragraph (a), FRA intends to apply to PTC systems provided PTC System Certification under subpart I the same standard in current § 236.11.
Paragraph (b) provides the circumstance where a PTC onboard apparatus on a controlling locomotive that is operating in or is to be operated within a PTC system fails or is otherwise cut-out while en route. Under paragraph (b), the subject train may only continue such operations in accordance with specific limitations. An en route failure is applicable only in instances after the subject train has departed its initial terminal, having had a successful initialization, and subsequently rendering it no longer responsive to the PTC system. For example, FRA believes that an en route failure may occur when the PTC onboard apparatus incurs an onboard fault or is otherwise cut out.
Under subpart H, existing § 236.567 provides specific limitations on each train failing en route in relation to its applicable automatic cab signal, train stop, and train control system. FRA believes that it would be desirable to impose somewhat more restrictive conditions given the statutory mandate and the desire to have an appropriate incentive to properly maintain the equipment and to timely respond to en route failures. For instance, FRA recognizes that the limitations of § 236.567 do not account for the statutory mandates of the core PTC safety functions.
During the PTC Working Group meetings prior to issuance of the NPRM, no consensus was reached on how to regulate en route failures on PTC territory. However, FRA subsequently received several comments that the en route failure requirements and the restrictive operational conditions imposed by paragraph (b) are burdensome and overly restrictive. When the PTC Working Group was
The proposed rule provided allowances for deviations from the restrictions of operations exceeding 90 miles per hour if such deviations were presented and justified in an FRA approved plan. At the PTC Working Group meeting, it was recommended that the procedure allowing for such deviations equally apply to all other operations, regardless of the speed of the operations.
Upon presentation of these recommended revisions to the PTC Working Group, Amtrak and NJ Transit withheld consensus, requesting rather to state on the record that they believed the requirement for the establishment of an absolute block was overly burdensome and unnecessary, and the operational limitations were too restrictive in areas where an underlying block signal system and/or cab signal system with train stop/train control functions remained in place. They further suggested that the operational restrictions for en route failures should be solely presented and described within a railroad's PTCDP and PTCSP, which would then be applicable to a particular PTC system.
FRA appreciates the concerns presented. However, FRA remains convinced that the rule text must provide a “baseline” for operational restrictions associated with en route failures within all PTC systems, with the recognition of the allowance for a railroad to submit a request for deviation from those requirements, with justification, within their PTCDP and PTCSP for FRA approval. Accordingly, FRA has substantially adopted into paragraphs (b) and (c) the text proposed at the PTC Working Group meeting.
Section 236.1029, and in particular paragraph (b), purposefully parallels the limitations contained in § 236.567. In other words, FRA intends that § 236.567 and paragraph (b) of this section will share the common purpose of maintaining a level of safety generally in accord with that expected with the train control system fully functional. This is accomplished by requiring supplementary procedures to heighten awareness and provide operational control (limiting the frequency of unsafe events) and by restricting the speed of the failed train (reducing the potential severity of any unsafe event).
Paragraph (b)(1) allows the subject train to proceed at restricted speed—or at medium speed if a block signal system is in operation according to signal indication—to the next available point where communication of a report can be made to a designated railroad officer of the host railroad. The intent of this requirement is to ensure that the occurrence of an en route failure may be appropriately recorded and that the necessary alternative protection of absolute block is established.
NYSMTA provided comments recommending that paragraph (b)(1) of this section cite 40 miles per hour as the maximum permissible speed within a failed PTC system where a block signal system is in operation because some railroads, such as the LIRR and Metro-North, have defined medium speed lower than what the FRA regulation would permit. FRA defines medium speed in § 236.811 as “A speed not exceeding 40 miles per hour.” Thus, we believe the rule is clear in terms of the applicable maximum speed limit and consistent with the suggestions made by NYSMTA. While a particular railroad may internally define “medium speed” differently, the definitions contained in part 236 control the meaning of the terms used therein.
After a report is made in accordance with paragraph (b)(1), or made electronically and immediately by the PTC system itself, paragraph (b)(2) allows the train to continue to a point where an absolute block can be established in advance of the train in accordance with the limitations that follow in paragraphs (b)(2)(i) and (ii). Paragraph (b)(2)(i) requires that where no block signal system is in use, the train may proceed at restricted speed. Alternatively, under paragraph (b)(2)(ii), the train may proceed at a speed not to exceed medium speed where a block signal system is in operation according to signal indication.
Paragraph (b)(3) requires that, upon the subject train reaching the location where an absolute block has been established in advance of the train, the train may proceed in accordance with the limitations that follow in paragraphs (b)(3)(i), (ii), or (iii). Paragraph (b)(3)(i) requires that where no block signal system is in use, the train may proceed at medium speed; however, if the involved train is a train which is that of the criteria requiring the PTC system installation (i.e., a passenger train or a train hauling any amount of PIH material), it may only proceed at a speed not to exceed 30 miles per hour. Paragraph (b)(3)(ii) requires that where a block signal system is in use, a passenger train may proceed at a speed not to exceed 59 miles per hour and a freight train may proceed at a speed not to exceed 49 miles per hour. Paragraph (b)(3)(iii) requires that, except as provided in paragraph (c), where a cab signal system with an automatic train control system is in operation, the train may proceed at a speed not to exceed 79 miles per hour.
The Rail Labor Organizations believe that the rule is too permissive for en route failures of a PTC system where an underlying signal system is not governing train movements, as they assert that any train invisible to the PTC system in PTC territory presents an unacceptable risk. Instead, asserts the RLO, treatment of en route failures should parallel the restrictions required when a train experiences a signal failure, such as a switch position that is unknown or when a route is not known to be clear. While the NPRM proposed to allow a passenger or PIH PTC train in dark territory to traverse a switch in an unknown position at medium speed or 30 miles per hour, the RLO asserts that such trains should be limited to restricted speed or other methods, such as temporal separation.
FRA appreciates the RLO's concerns. However, FRA believes that the proposal to limit operations to restricted speed, or employ other protective methods such as temporal separation, would be too burdensome and unwarranted. FRA has elected to keep the language of the NPRM in this final rule for several reasons. First, it is expected that failures en route addressed by this rule, as well as temporary rerouting that could result in its application, will not occur on any frequent basis. Experience and requirements of other portions of this subpart would preclude this from being the case. Second, the assertion that “any train invisible to the PTC system in PTC territory presents an unacceptable risk” is inaccurate. Such a train would not in fact be “invisible” to the PTC system as there remains in place some type of authority for the train's movement, and all authorities of other trains that would be PTC-equipped would be enforced by the system. Additionally, the maximum speed of 30 miles per hour established by FRA for these situations is based on extensive analysis of past accident and incidence data, which has shown that train accidents at or below 30 miles per hour have not resulted in breach or compromise of cars carrying hazardous
Paragraph (c) requires that, in order for a PTC train to deviate from the operating limitations contained in paragraph (b) of this section, the deviation must be described and justified in the FRA approved PTCDP or PTCSP. Amtrak had presented comments regarding the NPRM, as well as within the PTC Working Group task force assigned to address comments received regarding this section, asserting that the operational limitations of failure en route were too restricting and unwarranted. Directly in response to those comments, FRA may allow for deviation from the identified limitations of the rule if that deviation is described and justified in the applicable and FRA approved PTCDP, PTCSP, or Order of Particular Applicability. Furthermore, the speed threshold of 90 miles per hour proposed in the NPRM has been removed. FRA will consider deviation proposals for conventional operations, as well as high-speed operations. FRA continues to anticipate that existing operations on the Northeast Corridor will not be adversely impacted, since failure of one component of the onboard train control system will permit the remaining portion to function and provide for a reasonable level of safety.
Paragraph (d) requires that the railroad operate its PTC system within the design and operational parameters specified in the PTCDP and PTCSP. Railroads will not exceed maximum volumes, speeds, or any other parameter provided for in the PTCDP or PTCSP. On the other hand, a PTCDP or PTCSP could be based upon speed or volume parameters that are broader than the intended initial application, so long as the full range of sensitivity analyses is included in the supporting risk assessment. FRA feels this requirement will help ensure that comprehensive product risk assessments are performed before products are implemented.
Paragraph (e) sets forth the requirement that any testing of the PTC system must not interfere with its normal safety-critical functioning, unless an exception is obtained pursuant to 49 CFR § 236.1035, where special conditions have been established to protect the safety of the public and the train crew. Otherwise, paragraph (e) requires that each railroad ensure that the integrity of the PTC system not be compromised, by prohibiting the normal functioning of such system to be interfered with by testing or otherwise without first taking measures to provide for the safety of train movements, roadway workers, and on-track equipment that depend on the normal safety-critical functioning of the system. This provision parallels current § 236.4, which applies to all systems. By requiring this paragraph, FRA also intends to clarify that the standard in current § 236.4 also applies to subpart I PTC systems.
Paragraph (f) requires that each member of the operating crew has appropriate access to the information and functions necessary to perform his or her job safely when products are implemented and used in revenue service. FRA expects paragraph (f) to automatically require each engineer operating the controlling locomotive to have access to the PTC display providing such information. Paragraph (f) also applies to other crew members assigned duties in the locomotive cab. The rule is a performance standard which can be met in several different ways.
Train crews perform as a team and are required by railroad and FRA rules to do so. The importance of having assigned crew members fully involved in train operations is also clearly the intent of Congress in the RSIA. The Congress mandated the certification of the conductor to work in concert with the already federally-certified locomotive engineer. For the conductor and engineer to fulfill the expectations of Congress, it is necessary for both crewmembers to have sufficient information to perform their duties. For the conductor to be able to fulfill the assigned obligations, the conductor must have ready access to certain information, including the authority information being received from the dispatcher. As described below, FRA believes that safety would be materially diminished if the conductor in freight operations were denied access to the same information in the same format as the engineer.
For instance, under the operating rules or special instructions of the major freight railroads, each train crew member in the performance of his or her duties receives copies of a fair amount of paperwork that includes the train consist, which provides the number, loading, locations, and hazardous materials contents of cars, the length and weight of the train, General Orders, which provide loose footing issues, the safety rules of the day or week, security reminders, temporary speed restrictions, and the locations of maintenance of way crews performing track repairs. This paperwork provides the train crew with the work plan necessary to operate the assigned train during their tour of duty. Once the crew is underway, the conductor receives from the dispatcher, via radio, updates to the above information (and provides acknowledgment back to the dispatcher), transcribes hand written copies, and provides those copies to the engineer and other crew members (in lieu of stopping if engineer only). Each crew member keeps these copies in front of them (usually on a desk) for ready reference to approaching speed restrictions and working limits of roadway workers. Upon these documents, crew members make hand written notes and are required to write “void” across superseded or expired movement authorities. In case any questions pertaining to crew performance arise later, each crewmember keeps these copies. Particularly, in a PTC overlay system, which by definition depends upon continued performance of all of the safety-related functions of the underlying system of operation, all of these functions must continue to be performed either as they are now or in an equivalent manner. Removing or impairing any of those functions will diminish safety.
The conductor is responsible for determining the train consist and for ensuring compliance with hazardous materials train placement requirements. The conductor is also responsible for determining whether one or more cars in the train is restricted (e.g., requirement regarding appropriate placement in the train or speed restriction limiting the train's speed to avoid a derailment hazard).
Moreover, in present cab signal territory, multiple crew members rely on the information provided by the cab signal display, typically mounted in the center of the cab or other conspicuous location. ACSES displays have also been centrally mounted in passenger and freight cabs for clear visibility.
FRA recognizes that PTC systems are being designed to move much of this information into an electronic format. The intent of utilizing electronic transmission of authorities is to reduce human error associated with listening, copying, and reading back of updates over voice channels while the train crew is en route. Regardless if the information is transmitted digitally or verbally, the goal is to prevent the train from occupying the main track without authority, to prevent most over-speed issues, and to stop short of misaligned switches if the crew fails to follow the rules. While FRA supports this transition to digital communications, this final rule does not require it.
In the event that a certified PTC system does use digital transmissions to provide communications and acknowledgement of mandatory directives between the dispatcher and conductor, to allow the conductor to electronically input the train consist into the PTC system, or otherwise similarly modify a crew member's responsibilities, FRA expects under paragraph (f) that the subject crew member will be afforded appropriate access to the PTC system display to fulfill those responsibilities.
In its comments, the AAR also indicated that railroads have been planning to put a single display in locomotive cabs for the engineer in systems which FRA has already approved and that this requirement was redundant and excessive, referring to the BNSF ETMS system. The AAR questioned the need for a conductor to have access to a PTC display. The Class I railroads have attempted to present the case that FRA had previously blessed the implementation of PTC technology that would permit electronic delivery of mandatory directives while discontinuing the delivery of printed or voice transmitted directives. However, that is not the case.
The system to which AAR refers—BNSF's ETMS I configuration—was qualified under subpart H, which only requires that the system be at least as safe as existing systems and the approval was limited in material ways the AAR failed to mention. Subpart I, however, requires that non-vital overlay systems reduce the likelihood of PTC preventable accidents by at least 80%. Subpart H does not address or require interoperability, but subpart I requires interoperability.
The BNSF ETMS I configuration concept of operations was a pure non-vital overlay on the existing method of operations. The safety analysis for that system assumed that the conductor would continue to receive mandatory directives in the normal manner. BNSF, the only railroad to obtain authority for use of a first-generation freight PTC system, very heavily justified its safety case on the assumption that crewmembers would intervene should the PTC system experience a wrong-side failure (which could occur due to a software error, hardware malfunction, database error, or combination of these factors). This system was justified as an “overlay” on the existing method of operations; while there would be only one PTC display screen, it was contended that most wrong-side errors would be caught by crewmembers holding mandatory directives in paper form. This type of existing PTC system, which has only been deployed by BNSF on a few lines and with very few locomotives equipped, precludes one-half of the train crew from having any access to the information for which they are held accountable. This has been tolerable only because both crew members do have a full set of printed or written directives.
Note that basic interoperability is potentially a concern with respect to the human-machine interface and the means by which FRA addresses it. To the extent a locomotive from a railroad which uses only voice transmission of mandatory directives were to travel on a railroad using electronic transmission of mandatory directives, it would need to be equipped for the other railroad. Yet none of the major freight railroads has conducted a revenue demonstration of a system that relies exclusively on electronic transmission of authorities; and, after more than two decades of development and demonstrations, the major freight railroads have still not issued interoperability standards. Even if FRA were able to accept some of the arguments proffered in regard to the need for access to PTC information, addressing this issue through review of individual railroad plans would not be feasible. This issue needs to be settled “up front” in order to support an orderly implementation.
The testimony and written filings in this docket reflected a serious misunderstanding regard the distinctions noted above and the posture of the BNSF Product Safety Plan review. The AAR and CSXT both asserted that FRA has approved use of a single screen in the form of BNSF ETMS I configuration. More remarkably, BNSF itself testified at the public hearing that, “As approved by FRA, our locomotive cab configuration includes one display screen, which is positioned on the dashboard of the engineer.” Comment of BNSF Railway Company, Docket FRA-2008-0132.0011.1 (Aug. 19, 2009);
In fact, FRA's decision letter for that system stated as follows:
7. Prior to any further ETMS Configuration I operations, BNSF must either comply with 49 CFR § 236.515 (Visibility of cab signals), or submit a risk-based justification as to why the requirements of this rule should be waived. The justification shall be submitted in accordance with the PSP amendment procedures in 49 CFR § 236.913. (FRA Docket No. 2006-23687, Document No. 0021.)
The AAR also misstates the extent of the Volpe Center's review of ETMS. From the Volpe Center's review: “The purpose of the analysis was to assess the extent to which the ETMS system follows accepted human factors design guidelines that are likely to catch and correct potential human performance problems.” Volpe did not perform a “thorough human factors analysis” as posited by AAR. Rather, Volpe focused on the user interface for locomotive engineers, identifying issues within the existing design (which was still under development) and within the concept of operations as defined by the railroad.
Once all of the paperwork is moved into electronic transmissions (which has been neither formally requested nor in any way justified under existing regulations), in the absence of an available display one-half of the train crew would not have the ability to review and receive updates while en-route, or keep records of the movement authorities and restrictions for future use. PTC is currently an imperfect technology fed by databases that can be corrupted. Mandatory directives will continue to be issued by dispatchers with limited conflict checking using non-vital computer-aided dispatching systems. As the point paper orders are no longer provided, and mandatory directives are issued electronically en route, there would be no general broadcast on the “road channel” that could lead to other train crews or roadway workers identifying a defective authority (e.g., a mandatory directive to traverse a track segment already occupied by another train). None of the freight railroads has yet demonstrated how the transition to full electronic delivery of mandatory directives will be accomplished. FRA believes that the transition will eventually be made, but in the initial period it is critical that existing provisions for safety—which work very well a very high percentage of the time—not be prematurely abandoned; these provisions include appropriate access to the PTC system display. Although FRA agrees that transmission of valid authorities should be more secure, and thus the trade-off is likely to be favorable, FRA sees no reason at this time to take a second or third crew member out of the loop or to load on the engineer the responsibility for both receiving mandatory directives and briefing the second or third crew member who will be expected under the railroad's rules to comply.
FRA believes it is important to the risk assessment process that the engineer and conductor perform at a level no less safe than they would have had there not been a PTC system. The PTC systems proposed for freight railroads are overlay systems. In an overlay system, the railroad adds a layer of safety to the existing operation. The risk assessment then is relatively easy, because it is easy to show that the new system adds safety, reducing the risk of certain accidents, while not adding any new risk. The key assumption of the risk assessment is no degradation of the underlying safety system, and the performance of crewmembers is a key element of that safety system.
It is impossible at present to quantify the additional risk associated with adding a task which compromises the safe operation of the train by the engineer or conductor, even if only for a short time. Engineers and conductors have an excellent record of avoiding accidents. PTC seeks to improve upon that excellent record. The existing human factors literature leads one to believe that entering complex acknowledgements into a PTC system while the train is in motion is a very significant risk. To quantify that risk, one would have to put it into the context of comparative safety using a human factors model far more complex and accurate than any of which FRA is aware. Also note that PTC does not address all accident scenarios, many of which are often avoided by timely locomotive engineer intervention. The timeliness of such intervention is dependent on situational awareness, which would be negatively impacted if the engineer were distracted. Reading text on a PTC screen appears to be as distracting as reading text on a cell phone or PDA and texting in reply. In order for FRA to accept the diversion of the engineer's attention which would come from having the engineer review and accept the mandatory directives while the train is motion, FRA would need a process different from the current risk assessment methodology. That in turn would require FRA to impose a specification standard, instead of a performance standard. Were FRA issuing only a specification standard, FRA would require the second display and input unit.
In short, the rule as it stands relies on comparing system risk, which is easy if the engineer is not distracted by the system, but impossible if the engineer might be distracted. What we do know with certainty is that having the engineer read and respond to lengthy written messages on the PTC screen would be a distraction resulting in greater risk exposure which would offset to some extent the risk reduction resulting from PTC systems.
AAR argues that the requirement in § 236.1029(f) pertaining to distraction of the locomotive engineer should be deleted. The AAR claims that FRA does not offer any study showing that safety is jeopardized by assigning the engineer PTC-related duties. FRA has directly observed engineers exceeding authorities while attempting to respond to PTC system requirements on tests of existing PTC systems. In those cases, the engineer was attempting to respond to digitally transmitted authority while the train was in motion and was plainly distracted from safety-critical duties. FRA does not need a study to verify the possibility of that which it has observed directly.
The AAR also raises an issue of accuracy in transmitting and receiving mandatory directives, and appears to make the argument that because electronic transmission of mandatory directives is likely to be much more accurate than voice communication of mandatory directives, that all will be safer if mandatory directives are transmitted electronically. FRA agrees that the electronic transmission is likely to be more accurate, but does not agree that accurate transmission is the only safety issue. FRA is concerned with procedures which might distract the engineer from his duties. There is no problem if the railroad intends to have engineers receive, review, and acknowledge mandatory directives, unless the railroad wants the engineer to perform that task with the train in motion, and provided the engineer can take the time to brief other crew members, who under current railroad operating rules would need to copy and retain the orders.
All systems of which FRA is aware will require the crew to acknowledge the mandatory directives. FRA has seen system designs that would permit acknowledgement by simply pressing a button. There is no reason to believe that simply pressing a button demonstrates understanding of a mandatory directive, and FRA does not intend to approve such systems because they will not provide an adequate level of safety. Simply pressing a button does not provide the evidence of comprehension and mutual understanding currently provided by the practice of reading mandatory directives back to the dispatcher over the radio. Even if this means of acknowledgment is elected and approved by FRA, it would be necessary for an engineer receiving such a directive to read it and consider its relevance to the current situation. This
FRA believes that simply referencing the default PTC display screen will be consistent with good situational awareness and should not present a problem. However, excessive engagement with the PTC onboard computer while underway can distract a locomotive engineer from current duties. While acknowledgment by use of a single soft key may limit the distraction associated with manipulation of the device, it does not address whether the directive was understood. It is also possible to create greater interaction with the onboard computer while causing distraction and yet still not ensure that the directive is understood. For instance, a system tested by one railroad required an eight digit acknowledgment code to confirm receipt of a mandatory directive. In prototype testing locomotive engineers attempting to enter the code have exceeded their authority, because entering a code is a distraction similar to text messaging (a prohibited practice).
In those cases where train consist information needs to be adjusted and confirmed in the PTC system, having that done by the conductor will eliminate a potential source of error. (Provision of input capability on the conductor's terminal will also (if so elected) avoid delays in train starts associated with multiple crews attempting to work out consist information over the radio or a cell phone link to the central office.) Having the conductor observe displayed PTC system data should also provide an additional opportunity for early identification of problems with mandatory directives and displayed information that may derive from corrupted databases, computational errors, or erroneous mandatory directives.
The purpose of paragraph (f) is to ensure that those assigned tasks in the cab are able to perform those tasks, including constructive engagement with the PTC system. Furthermore, while the train is moving, the locomotive engineer would be prohibited from performing functions related to the PTC system that have the potential to distract the locomotive engineer from performance of other safety-critical duties. According to the public comments, that would make it impractical for certain freight railroads not to equip its locomotives with a second, interactive, display.
AAR says that FRA cannot point to any computer-related activities that could result in distraction of the engineer. The 2009 FRA report entitled
Over the years, FRA has conducted significant human factors research related to supervisory train control systems such as PTC. In the course of that research, it has been noted that the human-machine interface (HMI) should be configured to avoid task overload and to permit the locomotive engineer to attend to the safe movement of the train during all times when it is in motion. This may require responding to obstacles on the railroad ahead (e.g., vandalism, cars stored on grade crossings, unsecured equipment that has rolled out, personnel in the foul without prior notice to train crews), without regard to risk of collision with other trains. Further, FRA has noted from its experience with the initial freight implementations of PTC systems that having the second crew member, where applicable, directly interact with the PTC system may offer the best likelihood of its safe functioning. For instance, train consist information (number of locomotives and cars, tonnage, length of train) is provided in ETMS from the company's management information system). That information is essential to the braking computation onboard. But this is often the intended consist, and the actual consist may vary. Having the crew member responsible for the accuracy of the consist enter or confirm the consist in the PTC system will avoid one opportunity for error each time this is accomplished (which, in the case of a road switching assignment, may be several times during a duty tour).
The NPRM proposed, and the final rule requires, that the onboard apparatus be arranged so that each crew member assigned to perform duties in the locomotive cab could view a PTC display and execute any functions necessary to that crew member's duties. This provision does not require multiple screens, per se, nor does it require that more than one employee must be assigned to a crew. In fact, the proposed and final rules are technology neutral.
FRA is aware of multiple ways that paragraph (f) may be satisfied in the event multiple crew members are in the cab and need access to the information provided by the PTC system. Each alternative has its own advantages and difficulties. FRA is ultimately concerned that the crew members receive the same information displayed in the same manner. I.e., if an engineer is looking at a graphic on a screen, a conductor in the same cab should be looking at the same graphic on whatever device the conductor is using.
For instance, there can be a single large display placed in a location within the cab making it accessible to all crew members in the cab (as is done by Amtrak in the ACSES system used on the Northeast Corridor). A single display (similar to traditional cab signals) could be used if sufficiently large to provide adequate resolution of details. If the railroad opts to use a PTC system that includes the added functionality of digital transmissions for these purposes, a single screen placed between the crew members may be appropriate.
A configuration may also include two fixed screens; one for the locomotive engineer and another for other crew members. In providing cost estimates for this rulemaking, the Class I railroads have assumed that this approach would be employed and that the display would be associated with an interactive terminal. FRA does not question the rationale in this manner and has approached costs estimates in the Regulatory Impact Analysis with this assumption.
The railroads have also discussed the possibility that, where the locomotive engineer may have his or her own fixed screen, the other crew members could make use of individual “heads-up” displays or personal hand-held or portable wired or wireless devices with train control software, which could be set up as an interactive terminal. Through its Office of Research and Development, FRA has developed personal digital assistant (PDA) software for management of roadway worker authorities at a reasonable cost (at approximately one-quarter of the cost of a second dash-mounted display), and doing the same for a crew remote terminal should be just as practical. The vendor for the on-board portion of the ITC system already provides a router port, and routers are inexpensive. FRA assumes that there would be some additional costs related to replacement of misplaced or damaged devices and changing of batteries, but those costs should be reasonable. Under paragraph (f), hand-held or portable devices could be implemented and would have the same advantages as a fixed terminal. FRA does not require that the display be permanently affixed to the locomotive. The advantage of this approach would be a lesser initial cost, likely about one-fourth of the fixed terminal. Disadvantages include logistics of handling (loss, damage).
The major freight railroads point to passenger service as evidence that a “second display” is not required, but their arguments are inapposite. Crew responsibilities and interactions on passenger trains are historically different than is the case with freight crews, and thus crew resource management will not be undercut by use of a single display. For instance, in the case of a passenger train with a single locomotive engineer, the engineer will have the opportunity to initialize the system at the point of departure by making a relatively easy selection for class of train (if this is not done automatically). Moreover, unlike in freight operations, crew members for passenger operations do not need to enter or confirm detailed consist information for a heavy train that may have a wide variety of loaded and empty cars. If it is necessary for the locomotive engineer to take a mandatory directive through the PTC terminal, that can be done with the train stopped at a passenger station, as is the case today using the voice radio. Passenger railroads will almost certainly elect to use vital on-board processing, so the relative chance of an on-board computer error will be less.
For all of the systems proposed thus far, crewmembers must actively review and acknowledge mandatory directives in order for the system to provide the required level of safety. Where mandatory directives are transmitted by voice over the radio, which is the current practice for freight railroads, the conductor would typically be able to copy and acknowledge the transmission while the train is in motion. Passenger train engineers would have to be stopped (e.g., at a station) in order to copy and acknowledge the mandatory directive.
FRA is aware of three ways to receive, safely review, and acknowledge mandatory directives. First, the engineer could receive, review, and acknowledge authorities while the train is stopped. Second, the conductor could receive, review, and acknowledge voice transmissions of mandatory directives, whether or not the train is moving. Third, the conductor could receive, review, and acknowledge authorities through a device which combines display and data entry capabilities, whether or not the train is moving. The first option is likely how passenger railroads will comply with the requirements. Such railroads have only one crewmember in most cabs. This is likely not to be extremely burdensome on most passenger trains, as the engineer can receive, review, and acknowledge mandatory directives at passenger station stops. Thus, FRA is not being illogical, as AAR asserts, by permitting passenger operations with a single cab occupant. What would be illogical would be to require a second display where only one crewmember is present. Freight locomotives with only one crewmember present would also be likely to use the first option, although the cab may be equipped with a second display. The second option would only require a display be within a conductor's view, but would be much lower cost. The third option, which FRA believes may be the norm for freight locomotives, may require the aforementioned second fixed screen, heads-up display, or handheld or portable device. FRA does not believe it would be practical for one terminal to serve both crewmembers if both may be required to enter or access data.
It should be noted that employing a fourth option, implied in railroad testimony, would be problematic on many fronts. That option would presumably involve a single display in front of the locomotive engineer. The train would receive electronic authorities exclusively through that device, and the engineer would acknowledge receipt using a simple procedure (e.g., pressing a single soft key) that was designed to hasten the task and limit distraction. The problem with such a procedure is that (i) there is no assurance that the engineer would understand what was being received, (ii) there is little chance that the engineer would identify any authority or slow order that was not appropriate to the situation, and (iii) there would be no reasonable way to convey the mandatory directive to the other crew member without stopping the train and copying it off the screen. This would be a perfect prescription for exclusive reliance on technology, which is ill-advised and which the railroads claim will not be done (i.e., these are said to be “overlay” systems that cannot detract from the underlying methods of operation).
Again, the railroads are perhaps correct that safety might still be improved under this fourth option,
Accordingly, FRA remains convinced that each crew member should have access to, and engagement with, information and requirements pertinent
Of course, the business benefits of a second terminal are not as great if the railroad does not adopt electronic transmission of mandatory directives. However, FRA believes that railroads will adopt electronic transmission of mandatory directives as rapidly as possible. They would benefit from being able to give roadway workers much more rapid access to track, as well as by being able to reduce the dispatchers' workload. Further, the business benefits envisioned in Appendix A require more efficient dispatching, which would rely on electronic transmission of mandatory directives, as well as managerial directives related to train pacing and meet-pass planning.
The railroads have made no convincing argument that providing a second display would be harmful, as such. Rather, they argue that the cost is excessive in relation to any expected benefits. The AAR and several Class I freight railroads commented that the cost to install a second display in the locomotive would be approximately $8,000 per locomotive. According to AAR estimates, 29,461 locomotives would need to be equipped. This would translate into an initial installation cost of $235,688,000. However, AAR overestimated the number of locomotives, based on the document it cites. In that document, FRA estimated that 27,598 freight locomotives would be equipped with VTMS technology only, and an additional 100 freight locomotives would be equipped with both VTMS and ACSES technology, for a total of 27,698 locomotives, which, at a unit cost of $8,000 per terminal type display, implies a total cost of $221,584,000. AAR did not include the locomotives which would have both VTMS and ACSES installed, and included passenger locomotives that will likely not require additional hardware to meet the requirement due to the nature of their operations. FRA does not disagree with the AAR and railroad unit cost estimates, as long as what AAR refers to is the type of unit that has input capabilities. FRA recognizes that the cost is actually for an additional “terminal” versus simply a display and that it must be made rugged for the locomotive cab operating environment. The AAR and other railroads objecting to these requirements maintain that there will be little safety benefit to the requirements, and that the benefits would be far less than the costs. However, in the long run, FRA believes that the additional cost for installing a second terminal would be justified by the aforementioned business benefits as well as the safety assurance.
FRA is not altering the cost estimates for PTC from those in the analysis of the NPRM, because the costs of the second terminal were already reflected.
FRA notes that estimated cost of the second display will be about 4% of the total initial costs of PTC deployment. FRA has narrowly construed the PTC mandate to avoid separate monitoring of switches in signal territory, to avoid significant costs and potential delay related to following train collisions at low speed, and to provide generous exceptions where allowed by law (restricted speed in yards and terminals, passenger exceptions, Class II/III locomotives in limited operations on PTC lines, etc.)—actions that will save one or more billions of dollars during this initial implementation. If FRA believed a deviation from historic train control practice was warranted here to save 4% of the initial cost, we would happily provide it. We do not. FRA believes that the PTC systems contemplated today will, at some point in the future, all accept electronic transmission of mandatory directives. The cost of providing a terminal to the second crewmember, where applicable, reflects that reality. Were railroads not planning to have conductors acknowledge mandatory directives, the railroad could provide the conductor with a screen without input devices, or a clearer view of the engineer's screen, which have a much lower unit cost.
FRA has placed in the docket of this rulemaking a document prepared by FRA's Office of Research and Development, referencing available human factors literature. Although FRA has addressed this issue from the point of view of whether the cost is justified, FRA wishes to emphasize that, at bottom, it is most crucial whether it would be possible to responsibly implement PTC on the national rail system without engaging the participation of each assigned crew member. We conclude that no such possibility has been demonstrated. Further, based upon FRA's knowledge of railroad operations and experience with oversight of existing and emerging train control technologies, FRA determines that it is essential for safety that each assigned crew member be provided the information and access to system inputs required to fulfill the crew member's respective duties.
AAR again raises the issue of single occupant cabs as an issue of “crew resource management” best left to the railroads. FRA maintains that these operators will only be authorized to receive, review, and acknowledge mandatory directives or similarly interact with the PTC systems when their trains are not in motion.
In the NPRM, FRA noted:
[T]he principles of crew resource management and current crew briefing practices in the railroad industry require that all members of a functioning team (
Commenters generally made scant reference to this point. The AAR did include an attachment to its testimony captioned with reference to this point, but it begins with a summary task analysis to the effect that “the conductor is responsible for assisting in the operation.” How the conductor will assist without a copy of the requisite orders available, when the duty to copy mandatory directives is eliminated (as the AAR assumes it will be), is left unexplained.
This is a “far cry” from section 402 of the RSIA08, which requires that FRA adopt regulations for the certification of train conductors. In FRA's experience as the agency responsible for oversight of railroad operating rules and practices, the conductor plays a key role in rail freight over-the-road operations by,
Again, the major freight railroads have said that their PTC systems will “overlay” existing methods of operations. Those existing methods are defined in their books of rules, timetables and special instructions. The General Code of Operating Rules, applicable to most railroad operations in the western U.S., provides at section 1.47 that “The conductor and engineer are responsible for the safety and protection of their train and observance of the rules.” It further provides that “The conductor supervises the operation and administration of the train.” “The conductor must remind the engineer that the train is approaching an area restricted by:
• Limits of authority.
• Track warrant.
• Track bulletin.
• Radio speed restriction.”
The NORAC Operating Rules, applicable to a number of eastern U.S. railroads, provides at Rule 94 for general crew responsibilities similar to those quoted above. In addition, Rule 941 provides that “Conductors have general charge of the train to which they are assigned, and all persons employed thereon are subject to their instructions.”
Each railroad is free, within the constraints of the Railway Labor Act as to staffing, and subject to oversight by FRA with respect to safety, to determine its operating rules and assignment of responsibilities to its personnel. Nevertheless, FRA remains concerned that railroad operating crews function as a team, discharging their responsibilities on the basis of adequate information and using their knowledge of the operating situation to identify safety concerns and resolve them. Within this framework, each crew member must remain able to respectfully and helpfully question a judgment by another crew member. This general approach is known as “crew resource management” (CRM), a concept perfected in aviation and urgently pressed on the railroad industry by the National Transportation Safety Board and the FRA.
The fear with respect to a diminution of crew integrity and efficiency associated with asymmetrical distribution of current operational data is that, not only may opportunities be lost to correct errors within PTC operations, but also that the conductor's lack of engagement will transfer to operations on lines not equipped with PTC. Further, any reduction in ability to function as a team could transfer, as well, to road and yard switching operations. Should this occur, the price paid for PTC would include additional casualties and property damage where PTC is not available as a safety net. A substantial portion of the Class I freight network, and much of the switching and terminal railroad mileage over which Class I crews also operate, will not be equipped under the current mandate and perhaps not for many years. How crews are conditioned to function together will influence their behavior both within and outside of the PTC-equipped network. In summary, FRA believes that maintaining the involvement of all assigned crew members in operating and responding to the PTC system is necessary to achieve the desired risk reduction expected of PTC systems and is also necessary to avoid degrading crew performance outside of PTC territory and during switching operations.
NYSMTA requested clarification that in a multiple unit passenger train consist: (a) A second PTC display in every train operator compartment is not required inasmuch as only the train operator occupies the compartment, and; (b) the PTC operator displays in train operator compartments in a consist, other than those from which the train is operated from, are not to display PTC information while the train is en route. The MTA railroads have been repeatedly reassured on this point, and we are pleased to do so once again here.
As previously noted, on September 25, 2009, FRA entered into the docket to this rulemaking a compendium of human factors literature relevant to the HMI regulations and compiled by FRA's Office of Research and Development. AAR then submitted late-filed supplemental comments—which posted to the docket on October 20, 2009, approximately two months after the closing of the comment period and three weeks after FRA entered the compendium into the docket—addressing various portions of the compendium. FRA believes that this final rule already addresses each one of AAR's substantial concerns in its supplemental comments. AAR also states that it “has been deprived of the opportunity to consider its comments in a deliberative fashion.” Supplemental Comment of the Association of American Railroads, Docket FRA-2008-0132-0055.1, at 3 (Oct. 20, 2009). However, contrary to AAR's suggestion, the Administrative Procedure Act (APA) does not require that FRA provide additional time to comment on the compendium.
FRA has provided that opportunity in this proceeding. The research recited in the compendium simply provided for the benefit of interested parties additional information that had previously been made public, FRA's views on the import of the research were aired during RSAC meetings and are expressed at various points in the NPRM, and the railroads obviously had sufficient time to prepare 16 pages of comments on the compendium itself. Clearly, the commenters were not prejudiced by the inclusion of the compendium in the docket.
FRA recognizes that substantial effort has been voluntarily undertaken by the railroads to develop, test, and deploy PTC systems prior to the passage of the RSIA08, and that some of the PTC systems have accumulated a significant history of safe and reliable operations. In order to facilitate the ability of the railroads to leverage the results of PTC design, development, and implementation efforts that have been previously approved or recognized by FRA prior to the adoption of this subpart, FRA is proposing an expedited certification process in this section.
Under paragraph (a), each railroad that has a PTC system that may qualify for expedited treatment would have to submit a Request for Expedited Certification (REC) letter. Products that have not received approval under the subpart H, or have that have not been previously recognized by FRA, would be ineligible. The REC letter may be jointly submitted by PTC railroads and suppliers as long as there is at least one PTC railroad. A PTC system may qualify for expedited certification if it fulfills at least one of the descriptions proposed in paragraphs (a)(1) through (a)(3). While these descriptions are objective in nature, FRA intends them to cover ETMS, ITCS, and ACSES, respectively. The versions or configurations recognized would depend upon the status at the time of the request.
Paragraph (a)(1) applies to systems that have been recognized or approved by FRA after submission of a PSP in accordance with subpart H. Subpart I generally reflects the same criteria required for a PSP under subpart H. Thus, FRA believes that most of the PTCDP and PTCSP requirements in subpart I can be fulfilled with the submission of the existing and approved PSP. However, FRA notes that the subject railroad will also need to submit the information required in a PTCDP and PTCSP that is not in the current PSP.
FRA also recognizes that certain PTC systems may currently operate in revenue service with FRA approval through the issuance of a waiver or order. Paragraphs (a)(2) and (a)(3) intend to cover those systems.
If a PTC system complying with paragraph (a)(1) is provided expedited certification, the system plans should ultimately match the criteria required for each PTCDP and PTCSP. As previously noted, a railroad may seek to use a PTC system that has already received a Type Approval. To extend this benefit as it applies to previously used systems for which expedited certification is provided, paragraph (b) gives the Associate Administrator the ability to provide a Type Approval to systems receiving expedited certification in accordance with paragraph (a)(1).
FRA recognizes that certain systems eligible for expedited certification may not entirely comply with the subsequently issued statutory mandate. Accordingly, under paragraph (c), FRA is compelled to require that before any Type Approval or expedited certification may be provided, the PTC system must be shown to reliably execute the same functionalities of every other PTC system required by subpart I. Nothing in this abbreviated process should be construed as implying the automatic granting by FRA of a Type Approval or PTC System Certification. Each expedited request for a Type Approval or PTC System Certification must be submitted by the railroad under this abbreviated process and, as required under subpart I, must demonstrate that the system reliably enforces positive train separation and prevents overspeed derailments, incursions into roadway worker zones, and movements through misaligned switches.
Under paragraph (d), FRA encourages railroads, to the maximum extent possible, to use proven service history data to support their requests for Type Approval and PTC System Certification. While proven service history cannot be considered a complete replacement for an engineering analysis of the risks and mitigations associated with a PTC product, it provides great creditability for the accuracy of the engineering analysis. Testing and operation can only show the absence or mitigation of a particular failure mode, and FRA believes that there will always be some failure modes that may only be determined through analysis. Due to this inherent limitation associated with testing and operation, FRA also strongly encourages the railroads to also submit any available analysis or information.
Paragraph (e) requires that, to the extent that the PTC system proposed for implementation under this subpart is different in significant detail from the system previously approved or recognized, the changes shall be fully analyzed in the PTCDP or PTCSP as would be the case absent prior approval or recognition. FRA understands that the PTC product for which expedited Type Approval and PTC System Certification is sought may differ in terms of functionality or implementation from the PTC product previously approved or recognized by FRA. In such a case, the service history and analysis may not align directly with the new variant of the product. Similarly, the available service history and analysis associated with a PTC product may be inconclusive about the reliability of a particular function. It is because of these possible situations that FRA can not unequivocally promise that all requests for expedited Type Approval and PTC System Certification submitted by a railroad under this subpart will be automatically granted. FRA will, however, apply the available service history and analytical data as credible evidence to the maximum extent possible. FRA believes that this still greatly simplifies each railroad's task in making its safety case, since the additional testing and analysis required need only address those areas for which credible evidence is insufficient. To reduce the overall level of financial resources and effort necessary to obtain sufficient credible evidence to support the claims being made for the safety performance of the product, FRA also encourages each railroad to share with other railroads a system's service history and the results of any analysis, even in the case where the shared information does not fully support a particular railroad's safety analysis.
Paragraph (f) defines terms used only in this section. “Approved” refers to approval of a PSP under subpart H. As this final rule was being prepared, only BNSF ETMS I configuration had been so approved, but other systems were under development. “Recognized” refers to official action permitting a system to be implemented for control of train operations under an order or waiver, after review of safety case documentation for the implementation. As this NPRM was being prepared, only ACSES I had been recognized under an order of particular applicability, and ACSES II was under review for potential approval. Only one system, the ITCS in place on Amtrak's Michigan line, had been approved for unrestricted revenue service under waiver.
FRA was unable to fashion an outright “grandfathering” of equipment previously used in transit and foreign service. FRA does not have the same degree of direct access to the service history of these systems. Transit systems—except those that are connected to the general railroad system—are not directly regulated by FRA. FRA has had limited positive experience eliciting safety documentation from foreign authorities, particularly given the influence of national industrial policies.
However, FRA believes that, while complete exclusion may not be available in those circumstances, procedural simplification may be possible. FRA is considering a procedure under which the railroad and supplier could establish safety performance at the highest level of analysis for the particular product, relying in part on experience in the other service environments and showing why similar performance should be expected in the U.S. environment. Foreign signal suppliers should be in a good position to marshal service histories for these products and present them as part of the railroad's PTCSP. For any change, the applicant must provide additional information that will enable FRA to make an informed decision regarding the potential impact of the change on safety. This information must include, but is not limited to, the following: (1) A detailed description of the change; (2) a detailed description of the hardware and software impacted by the change; (3) a detailed description of any new functional data flows resulting from the change; (4) the results of the analysis used to verify that the change did not introduce any new safety risks or, if the change did introduce any new safety risks, a detailed description of the new safety risks and the associated risk mitigation actions taken; (5) the results of the tests used to verify and validate the correct functionality of the product after the change has been made; (6) a detailed description of any required modifications in the railroad training plan that are necessary for continued safe operation of the product after the change; and (7) a detailed description of any new test equipment and maintenance procedures required for the continued safe operation of the product.
In the same vein, paragraph (g) encourages re-use of safety case documentation previously reviewed, whether under subpart H or subpart I.
Subpart I provides specific communications security requirements for PTC system messages. Section 236.1033 originated from the radio and communications task force within the PTC Working Group. The objectives of the requirements are to ensure data integrity and authentication for communications with and within a PTC system.
In data communications, “cleartext” is a message or data in a form that is immediately comprehensible to a human being without additional processing. In particular, it implies that this message is transferred or stored without cryptographic protection. It is related to, but not entirely equivalent to, the term “plaintext.” Formally, plaintext is information that is fed as an input to a cryptographic process, while “ciphertext” is what comes out of that process. Plaintext might be compressed, encrypted, or otherwise manipulated before the cryptographic process is applied, so it is quite common to find plaintext that is not cleartext. Cleartext material is sometimes in plain text form, meaning a sequence of characters without formatting, but this is not strictly required. The security requirements are consistent with the Department of Homeland Security (DHS) guidance for SCADA systems and the National Institute of Standards and Technology guidance. FRA has coordinated this final rule with DHS.
Paragraph (a) establishes the requirement for message integrity and authentication. Integrity is the assurance that data is consistent and correct. Generally speaking, in cryptography and information security, integrity refers to the validity of data. Integrity can be compromised through malicious altering—such as an attacker altering an account number in a bank transaction, or forgery of an identity document—or accidental altering—such as a transmission error, or a hard disk crash. A level of data integrity can be achieved by mechanisms such as parity bits and cyclic redundancy codes. Such techniques, however, are designed only to detect some proportion of accidental bit errors; they are powerless to thwart deliberate data manipulation by a determined adversary whose goal is to modify the content of the data for his or her own gain. To protect data against this sort of attack, cryptographic techniques are required. Thus, appropriate algorithms and keys must be employed and commonly understood between the entity wanting to provide data integrity and the entity wanting to be assured of data integrity.
Authentication is the act of establishing or confirming something (or someone) as authentic. Various systems have been invented to provide a means for readers to reliably authenticate the sender. In any event, the communication must be properly protected; otherwise, an eavesdropper can simply copy the relevant data and later replay it, thereby successfully masquerading as the original, legitimate entity.
Sender authentication typically finds application in two primary contexts. Entity identification serves simply to identify the specific entity involved, essentially in isolation from any other activity that the entity might want to perform. The second context is data origin identification, which identifies a specific entity as the source or origin of a given piece of data. This is not entity identification in isolation, nor is it entity identification for the explicit purpose of enabling some other activity. Rather, this is identification with the intent of statically and irrevocably binding the identified entity to some particular data, regardless of any subsequent activities in which the entity might engage. Cryptographically based signatures provide nearly irrefutable evidence that can be used subsequently to prove to a third party that this entity did originate—or at least possess—the data.
Paragraph (b)(1) requires that cryptographic algorithms and keys used to establish integrity and authenticity be approved by either the National Institute of Standards & Technology (NIST) or a similar standards organization acceptable to FRA. As a practical matter, cryptographic algorithms can be believed secure by competent, experienced, and practicing cryptographers. This requires that the algorithms be publicly known and have been seriously studied by working cryptographers. Algorithms that have been approved by NIST (or similar standards bodies) can be assured of being both publicly known and seriously studied.
Paragraph (b)(2) allows the use of either manual or automated means to distribute keys. Key distribution is the most important component in secure transmissions. The general key distribution problem refers to the task of distributing keys between communicating parties to provide the required security properties. Frequent key changes are usually desirable to limit the amount of data compromised if an attacker learns the key. Therefore, the strength of any cryptographic system
Paragraph (b)(3) establishes the conditions under which cryptographic keys must be revoked. Paragraph (b)(3)(i) addresses the situation when a key has actually been found to have been compromised and when the possibility of key compromise exists. Cryptographic algorithms are part of the foundations of the security house, and any house with weak foundations will collapse. Adequate procedures should be foreseen to take an algorithm out of service or to upgrade an algorithm which has been used beyond its lifetime.
Paragraph (d) addresses physical protection as applied to cryptographic equipment. Compliance does not necessitate locking devices within mechanical safes or enclosing their electronics within thick steel or concrete shields (i.e., making them tamper-proof). Compliance does, however, involve using sound design practices to construct a system capable of attack detection by a comprehensive range of sensors (i.e., tamper resistant). The level of physical security suggested should be such that unauthorized attempts at access or use will either be unsuccessful or will have a high probability of being detected during or after the event. Additionally, the cryptographic equipment should be prominently situated in operation so that its condition (outward appearance, indicators, controls, etc.) is easily visible to minimize the possibility of undetected penetration. In any system containing detection and destruction methods as described here, there is naturally a cost penalty for providing very high levels of tamper resistance, due to construction and test requirements by the manufacturer. It is naturally important to analyze the risks of key disclosure against cost of protection and specify a suitable implementation.
Confidentiality has been defined by the International Organization for Standardization (ISO) as “ensuring that information is accessible only to those authorized to have access.” Confidentiality, integrity, and authentication all rely on the same basic cryptographic primitives—algorithms with basic cryptographic properties—and their relationship to other cryptographic problems. These primitives provide fundamental properties, which guarantee one or more of the high-level security properties. In paragraph (e)(1), FRA makes it clear that while providing for confidentiality of message data is not a regulatory requirement, if confidentiality is elected to be implemented by a railroad, that the same protection mechanisms applicable to the cryptographic primitives that support integrity and authentication must also be provided for the cryptographic primitives that support confidentiality.
It is only the difficulty of obtaining the key that determines security of the system, provided that there is no analytic attack (i.e., a “structural weakness” in the algorithms or protocols used), and assuming that the key is not otherwise available (such as via theft, extortion, or compromise of computer systems). A key should therefore be large enough that a brute force attack (possible against any encryption algorithm) is infeasible, whereas the attack would take too long to execute. Under information theory, to achieve perfect secrecy, it is necessary for the key length to be at least as large as the message to be transmitted and only used once (this algorithm is called the one-time pad). In light of this, and the practical difficulty of managing such long keys, modern cryptographic practice has discarded the notion of perfect secrecy as a requirement for encryption, and instead focuses on computational security. Under this definition, the computational requirements of breaking an encrypted text must be infeasible for an attacker. Paragraph (e)(2) requires that in the event that a railroad elects to implement confidentiality, the chosen key length should provide the appropriate level of computational complexity to protect the information being protected, and that this information be included in the PTCSP. Both academic and private organizations provide recommendations and mathematical formulas to approximate the minimum key size requirement for security based on mathematic attacks; they generally do not take algorithmic attacks, hardware flaws, or other such issues into account. Paragraph (e)(2) has been revised in the final rule to correct an erroneous cross-reference to the security requirements set forth in § 236.1013(a)(7).
Key management—the process of handling and controlling cryptographic keys and associated material during their life cycle in a cryptographic system—includes ordering, generating, distributing, storing, loading, escrowing, archiving, auditing, and destroying the different types of material. Paragraph (e) requires that cleartext stored cryptographic keys be protected from unauthorized disclosure, modification, or substitution. During key management, however, it may be necessary to validate the accuracy of the key being entered, especially in cases where the key management process is being done manually. During the key entry process, keys not encrypted to protect against disclosures may be temporarily displayed to allow visual verification. However, if the key has been encrypted to protect against disclosure, then the cleartext version of the key may not be displayed. This does not, however, preclude the display of the encrypted version of the key.
In paragraph (f), FRA requires that each railroad implement a service restoration and mitigation plan to address restoral of communications services in the event of their loss or disruption and to make this plan available to FRA. Loss of communications services reduces or eliminates the effectiveness of a PTC system and FRA requires that these critical safety systems, once implemented, are restored to operation as soon as practical. FRA believes that the restoration plan must include testing and validating the plan, communicating the plan, and validating backup and restoration operations.
To ensure that these or any other procedures work in the railroad's operational environment, the railroad must validate each procedure intended for implementation. The backup and restoration plan should clearly describe who is to implement procedures and how they are to do it. The primary information to be communicated includes: The team or person (specified as an individual or a role) that is responsible for determining when restoration of service is required and the procedures to be used to restore service, as well as the team or person responsible for implementing procedures for each restoration scenario; the criteria for determining which restoration procedures are most appropriate for a specific situation; the time estimates for restoration of service in each restoration scenario; the restoration procedures to be used, including the tools required to complete each procedure; and the information required to restore data and settings.
Finally, paragraph (g) makes clear that railroads are permitted to implement more restrictive security requirements provided the requirements do not adversely impact the interoperability.
FRA has received no comments on § 236.1033 and has adopted it as proposed.
Initial field or subsequent regression testing of a PTC product on the general rail system is often required before the product has been certified in order to obtain data to support the safety case presented in the PTCSP. To ensure the safety of the public and train crews, prior FRA approval is required to conduct test operations on the general rail system. This paragraph provides an alternative to the waiver process when only part 236 regulations are involved. When regulations concerning track safety grade crossing safety or when operational rules are involved, however, this process would not be available. Such testing may also implicate other safety issues, including adequacy of warning at highway-rail crossings (including part 234 compliance), qualification of passenger equipment (part 238), sufficiency of the track structure to support higher speeds or unbalance (part 213), and a variety of other safety issues, not all of which can be anticipated in any special approval procedure. Approval under this part for testing does not grant relief from other parts of this title and the railroads must still apply for relief from the non-part 236 regulations under the discrete special approval sections of those regulations, the provisions of part 211 related to waivers, or both.
The information required for this filing is described in paragraphs 236.1035(a)(1) through (a)(7). This information is necessary in order for FRA to make informed decisions regarding the safety of testing operations. FRA would prefer that the informational filings to test under this part be accompanied by any requests for relief from non-part 236 regulations so that they may be considered as a whole.
Paragraph (b) provides notification that FRA may—based on the results of the review of the information provided in paragraph (a) and in order to provide additional oversight to ensure the safety of rail operations—impose special conditions on the execution of the testing, including the appointment of an FRA test monitor. When a test monitor is appointed, he or she has the authority to stop testing if unsafe conditions arise, require additional tests as necessary to demonstrate the safe operation of the system, or have tests rerun when the results are in question.
Paragraph (c) reemphasizes the earlier discussion that either temporary or permanent requests for relief for other than requirements of part 236 must be submitted in accordance with the waiver processes specified by part 211.
FRA has received no comments on § 236.1035 and has adopted it as proposed.
In subpart H, §§ 236.917 through 236.929 contain various requirements that involve PSPs. FRA believes that these requirements should apply equally to PTC systems governed by subpart I. FRA has included §§ 236.1037 to 236.1049 to inform interested parties how these elements would apply. FRA intends that the meanings of those sections in subpart H, as described in the preamble to its proposed and final rules, would also apply equally in the context of this final rule. While FRA has considered amending these sections in subpart H to incorporate references to subpart I, FRA believes such an attempt and its results would be cumbersome and awkward. Thus, FRA has included the provisions in subpart I for clarity.
The Rail Labor Organizations have expressed support for the training and qualification provisions in §§ 236.1041, 236.1045, 236.1047, and 236.1049 and support an expansion of PTC personnel training requirements, as necessary, based upon experience gained and any training deficiencies identified during operations of these systems. The RLO states that training on the PTC system is essential for all employees who will interface with this technology. While the RLO supports the requirement that employees must maintain the skill level necessary to safely operate trains, they urge FRA to consider that the “4 hour work period” of manual operation of a train should be conducted not less often than once in any given tour of duty. Considering that the maximum workday (except in extreme emergencies) is 12 hours, the locomotive engineer will then be manually operating the train at least 33% of the time. FRA has considered this suggestion for a change in the approach from subpart H. However, FRA believes that this is an issue that should be more specifically addressed in the PTCSP for the system, should automatic operation ever be proposed.
Appendix A to part 236 contains a schedule of civil penalties for use in connection with this part. FRA is revising this schedule of civil penalties through issuance of the final rule to reflect the addition of subpart I to this part.
FRA hereby modifies Appendix B of part 236 to enhance the language for risk assessment criteria in light of the experience gained during the initial stage of PTC system implementation under subpart H and to accommodate the requirements of subpart I regulating the use of mandatory PTC systems. As modified, Appendix B includes certain headings and new language in paragraphs (a) through (h).
Paragraph (a) reflects the change in the required length of time over which the system's risk must be computed. FRA replaces the requirement to assess risk for the system “over the life-cycle of 25 years or greater” with the requirement to assess risk “over the designed life-cycle of the product.” FRA believes that the language is consistent with the preamble discussion of the subpart H final rule inasmuch that they do not specify the length of a system's life cycle, thereby providing flexibility for new processor-based systems to have a life cycle other than 25 years.
FRA hereby modifies paragraph (b) only to clarify FRA's intent.
FRA hereby modifies the heading and content of paragraph (c) to better identify the main purpose of this requirement and to ensure its consistency with the associated requirements of §§ 236.909(c) and (d). FRA believes that previous paragraph (c) and its heading did not fully support or clarify the main intent of subpart H, which requires that the total cost of hazardous events should be the risk measure for a full risk assessment and that the mean time to hazardous event (MTTHE) calculations for all hazardous events should be the risk measure for the abbreviated risk assessment. The existing subpart H text asks for both the base case and the proposed case to be expressed in the same metrics. Paragraph (c) of this appendix, as written prior to the issuance of this final rule, did not fully reflect FRA's intent that the same risk metric is to be used in the risk assessment for both the previous and current conditions (
FRA hereby modifies the heading and text of paragraph (d) to create a comprehensive and detailed list of system characteristics that must be included in the risk assessment for each proposed PTC system subject to requirements of subpart H or subpart I,
FRA hereby modifies paragraph (e) to clarify its intent and reflect the industry's experience in risk assessment techniques gained during the initial stage of PTC system implementation under subpart H. In the language of paragraph (e), FRA provides more specific guidance on how to derive the main risk characteristics, MTTHE, and what role reliability and availability parameters, such as mean time to failure (MTTF) or mean time between failures (MTBF), for different system components can play while assessing risk for vital and non-vital hardware or software components of the system. FRA emphasizes that it is critical that each railroad and its vendors or suppliers include the software failure rates into risk assessments for the system. FRA also finds it necessary to advise each railroad and its vendors or suppliers to include reliability and availability characteristics, such as MTTF or MTBF, into its risk assessment to account for potential system exposure to hazards during system failures or malfunctioning when the system operates in its fall back mode—the back-up operation, as described in the PTCSP, when the PTC system fails to operate.
FRA believes that the modifications to paragraph (e) more accurately address the industry's need for clarity in interpretation and execution of the requirements related to risk assessment. FRA received comments from HCRQ/CGI noting that the phrases “frequency of hazardous events” and “failure frequency”, which were contained in paragraph (e) of the proposed rule, are equivalent. HCRQ/CGI therefore recommended that FRA revise the second sentence in paragraph (e) to read as follows: “The MTTHE is to be derived for both fail-safe and non-fail-safe subsystems or components.” FRA agrees with this recommendation and has therefore revised the second sentence of paragraph (e) accordingly.
Several commenters questioned whether additional guidance on acceptable methods for calculating MTTHE values for processor-based subsystems and components can be given by FRA. FRA believes it is inappropriate to provide this guidance in the text of the final rule, especially counting the fact that FRA is not to be involved in all aspects of the design and engineering associated with a product. Any guidance that FRA could provide would not reflect the level of understanding that the vendor(s) or supplier(s) and system integrators of the product should have gained throughout the design and implementation process that would enable them to specify, evaluate and determine such critical measures as MTTF, MTBF, and MTTHE. There is a large body of publicly available work from the research and engineering community that addresses various perspectives on determination of appropriate methods of determining MTTHE and other related parameters. Upon receipt of the risk assessment documentation in the PTCSP, FRA will provide feedback on the appropriateness of a vendor, supplier, or railroad selected methodology for determining MTTHE and the acceptability of the results of calculations based on that methodology with respect to regulatory acceptability. However FRA views the specification and determination of appropriate MTTHE and other design parameters as a fundamental responsibility of the system integrator, vendor, or supplier that neither can nor should be abrogated.
FRA received comments on the last sentence in paragraph (f)(1) from HCRQ/CGI, in which HCRQ/CGI asserted that “permanent” faults would result in an MTTHE of zero. In addition, HCRQ/CGI asserted that “transient” by definition is something that comes and then goes away, which may never be detected. Thus, HCRQ/CGI questioned how one could determine the rate of its occurrence. In order to address these concerns, HCRQ/CGI recommended that FRA revise the last sentence in paragraph (f)(1) to read as follows: “The MTTHE calculation must consider the rates of failures caused by contributory faults accounting for the fault coverage of the integrated hardware/software subsystem or component, phased interval maintenance, and restoration of the detected failures.”
In response to this comment, FRA would like to reiterate that the main intent of the requirement specified in paragraph (f)(1) was to request that the statistics on subsystem or component failures available for MTTHE calculation must be used in its entirety. This means that all types of failures (faults) observed during subsystem or component operation should be accounted for, regardless of the types of failures by their appearance to the observer (permanent, transient or intermittent), and regardless of whether the failure was caused by the fault of the subsystem or component itself or by errors of the operating agent (human factor associated with operation, maintenance or restoration of the subsystem). FRA feels that replacing the enumerated in the original text types of faults “permanent, transient, and intermittent” with the term “contributory faults” will not assure that all types of faults will be accounted for. FRA also notes that the derivation of MTTHE for the operating system, subsystem or component for which the risk assessment is to be performed is a complex process which may require the use of Fault Tree Analysis or other relevant techniques. These techniques will use the probabilities of single point component failures identified for the system. This process cannot lead to MTTHE of zero value. Neither can this process result in MTTHE being equal to infinity. The calculated probability of accidents (the inverse value of MTTHE) may be infinitely small to the extent that the safety requirement of this Part is met (i.e., during the entire life time of the system it is very unlikely for the accident to occur), but rarely will the probability of such events be zero in a practical world. Based on this reasoning, FRA retains the text in proposed paragraph (f)(1).
FRA hereby modifies paragraph (f)(2) to reflect FRA's understanding that a software failure analysis may not necessarily be based on MTTHE “Verification and Validation” processes and that MTTHE characteristics cannot be easily obtained for the system software components. The modification intends to outline the significance of detailed software fault/failure analysis and software testing to demonstrate repeatable predictive results that all software defects are identified and corrected.
FRA received comments from HCRQ/CGI on paragraph (f)(2), in which HCRQ/CGI asserted that “proper” assessment is open to interpretation, while Real Time Operating System (RTOS) “evaluation” is possible. HCRQ/CGI also asserted that the assessment of device driver software would require the source code, which is usually proprietary. Thus, HCRQ/CGI recommended that the assessment should include Commercial Off-The-Shelf (COTS) software, if incorporated, other than the operating system. HCRQ/CGI asserted that FRA could make this change by revising the first sentence in paragraph (f)(2) to read as follows: “Software fault/failure analysis must be based on the assessment of the design and implementation of the application code, an evaluation of the operating/
In response to this comment, FRA revises paragraph (f)(2) to replace the phrase “proper assessment” with the word “assessment,” and to specify that “all safety-related software” should be included in the software fault/failure analysis including COTS software.
However, FRA disagrees with the commenter that, in the requirement for the software defects to be identified and corrected with the “high degree of confidence,” the term “high degree of confidence” requires further clarification. The definition of this term is already given in the preamble discussion for § 236.903 in subpart H of this part.
FRA hereby modifies paragraph (g) to clarify that MMTHE calculations should account for the restoration time after system or component failure and that the system design must be assessed for adequacy through the Verification and Validation process.
HCRQ/CG, in reference to paragraph (g)(1), repeated its comment given for the last sentence in paragraph (f)(1) that relates to the types of faults (permanent, transient).
FRA notes that the explanations provided in FRA's response to this comment for paragraph (f)(1) are also applicable for this paragraph and therefore includes the text of proposed (g)(1) in the final rule.
FRA hereby modifies paragraph (h) to emphasize the need to document all assumptions made during the risk assessment process. FRA believes that the assumptions should be documented while deriving the total cost of potential accident consequences for full risk assessment or MTTHE values for abbreviated risk assessment, rather than only documenting assumptions for other intermediate parameters, such as MTTF and Mean Time To Repair (MTTR), as currently required. These two referenced parameters may or may not be relevant for the risk assessment.
FRA received comments from HCRQ/CGI on paragraph (h)(1), in which HCRQ/CGI asserted that the first sentence should be its own paragraph. However, HCRQ/CGI also asserted that the proposed rule text was unclear as to how the railroad would be expected to comply with this requirement.
FRA disagrees with the commenter that the paragraph (h)(1) should be restructured and that further clarification is required for the process of documenting all assumptions made while deriving the risk metrics that are to be used in the risk assessment for the product. In order for FRA to assess the validity of risk assessment done by railroads for their particular products, all assumptions made by the railroad in regards of deriving chosen risk metrics shall be presented along with the risk assessment. This is critical for the further confirmation that the assumptions made were correct based on the following in-service experience. Documenting assumptions made in the process of risk analysis is rather common procedure recommended by various studies in safety and reliability engineering.
In its comments, HCRQ/CGI also asserted that there is no need to specify an “automated” process for comparing risk assessment assumptions with actual experience. This comment also was made for the similar text in paragraph (h)(3). Thus, HCRQ/CGI recommended that FRA revise the last sentence of paragraph (h)(1) to read as follows: “The railroad shall document these assumptions in such a form as to permit later comparisons with in-service experience.” FRA agrees with this comment and has therefore revised the last sentences of paragraphs (h)(1) and (h)(3) accordingly.
HCRQ/CGI also submitted comments on paragraph (h)(4), asserting that the language in this paragraph seems to imply that a detailed document, separate from the fault trees themselves, is required, which would be very costly. Therefore, HCGI/CGI recommended that FRA revise paragraph (h)(4) to read as follows: “The railroad shall document all of the identified safety critical fault paths to a mishap.”
FRA does not see the need to eliminate the clause in the first sentence “as predicted by the safety analysis methodology,” but finds it necessary to clarify that no additional tool to that chosen by the railroad for the risk assessment is required by this paragraph.
FRA hereby modifies Appendix C to part 236 to enhance and clarify its language, reorganize the existing list of safe system design principles in accordance with the well established models of system safety engineering, and augment the list of safe system design principles with the principles related to safe system software design. A safe state is a system state that the system defaults to in the event of a fault or failure or when unacceptable or dangerous conditions are detected. The safe state is a state when the hazardous event cannot occur. This final rule revises proposed paragraph (a) to reflect the main purpose of this appendix in clear, accurate, and consistent language that will be repeatedly used throughout the appendix. It also outlines that the requirements of this appendix will be applicable to each railroad's PTCIP and PTCSP, as required by subpart I.
This final rule modifies and restructures paragraph (b) to consistently present a complete list of safety assurance principles properly classified or categorized in accordance with well established system safety engineering principles that need to be followed by the designer of the system to assure that all system components perform safely under normal operating conditions and under failures, accounting for human factor impacts, external influencing, and procedures and policies related to maintenance, repair, and modification of the system. FRA also adds language indicating that these principles must also be applicable to PTC systems designed and implemented under the requirements of subpart I. FRA's intent in initially promulgating Appendix C was to ensure that safety principles are followed during the design stage and that Verification and Validation methods are used to assure that the product meets the safety criteria established in § 236.909. The heading of this paragraph and its subparagraphs are changed to more adequately and precisely capture this paragraph's purpose. For instance, FRA hereby modifies the heading of paragraph (b)(1) to better suit the chosen base of classification for all safety principles under paragraph (b).
HCRQ/CGI submitted comments asserting that the third sentence of paragraph (b)(1) implies that the system will operate safely in the presence of human error. Questioning whether this
In order to avoid ambiguity in interpreting the important requirement spelled out in the third sentence of this paragraph, FRA revises it to read as follows: “The system shall operate safely even in the absence of prescribed operator actions or procedures.”
With respect to the fifth sentence in paragraph (b)(1), HCRQ/CGI asserted that it is a rare situation when hazards can be “eliminated.” Therefore, HCRQ/CGI recommended that FRA revise the fifth and sixth sentences of proposed paragraph (b)(1) to read as follows: “The safety order of precedence is to eliminate hazards categorized as unacceptable or undesirable. If this is not possible or practical, these hazards should be mitigated to acceptable levels as required by this part.”
FRA agrees with the commenter that the last clause in this paragraph discussing elimination of unacceptable and undesirable hazards requires modification and revises this clause by adding extra clarifying sentence in the final rule for the entire clause to read as follows: “Hazards categorized as unacceptable, which is determined by hazard analysis, must be eliminated by design. Best effort must be made by the designer to also eliminate by design the hazards categorized as undesirable. Those undesirable hazards that cannot be eliminated should be mitigated to the acceptable level as required by this part.”
HCRQ/CGI submitted comments on the first and second sentences of paragraph (b)(2)(ii), asserting that it is not possible to implement a system that would continue to operate safely in the presence of multiple hardware failures. Therefore, HCRQ/CGI recommended that FRA revise the first and second sentences of paragraph (b)(2)(ii) to read as follows: “The product must be shown to operate safely under conditions of random hardware failure. This includes single failures and multiple hardware failures where one or more failures.”
FRA agrees with the commenter that the paragraph requires modification and revises the first two sentences to read as follows: “The product must be shown to operate safely under conditions of random hardware failures. This includes single hardware failures as well as multiple hardware failures that may occur at different times but remain undetected (latent) and react in combination with a subsequent failure as a later time to cause an unsafe operating situation.”
HCRQ/CGI asserted that the meaning of each of the last sentences in paragraphs (b)(2)(iii) and (b)(2)(iv) was unclear. In order to address this concern, HCRQ/CGI recommended that the last sentence in paragraph (b)(2)(iii) be revised to read as follows: “Occurrence of credible single point failures that can result in hazards must be detected and the product must achieve a known safe state before inadvertently activating any physical appliance.” Similarly, HCRQ/CGI recommended that the last sentence in paragraph (b)(2)(iv) be revised to read as follows: “If one non-self-revealing failure combined with a second failure can cause a hazard that is categorized as unacceptable or undesirable, then the second failure must be detected and the product must achieve a known safe state before inadvertently activating any physical appliance.”
FRA agrees with the commenter and revises the referenced sentences in paragraphs (b)(2)(iii) and (b)(2)(iv) for the sentences to end with the following clause: “* * * the product must achieve a known safe state that eliminates the possibility of false activation of any physical appliance.”
Under paragraph (b)(3), FRA amends the definition of Closed Loop Principle to reflect its industry accepted definition provided by the AREMA Manual. FRA believes that the previous definition was too general and did not reflect the essence of the most significant principles of safe signaling system design.
HCRQ/CGI submitted comments on the last sentence of paragraph (b)(3), asserting that the sentence is confusing because all system operation is a product of actions and decisions. In order to provide clarification, HCRQ/CGI recommended that FRA revise the last sentence of paragraph (b)(3) to read as follows: “In addition, closed loop design requires that failure to perform a single logical operation, or absence of a single logical input, output or decision shall not cause an unsafe condition, i.e. system safety does not depend upon the occurrence of a single action or logical decision.”
FRA has made an effort to perfect the definition of close loop principle in the NPRM and found it satisfactory to adopt the definition given in the 2009 issue of AREMA Communication and Signal Manual of Recommended Practices. FRA does not see the need for further enhancement of this definition.
Under paragraph (b)(4), FRA adds a list of Safety Assurance Concepts that the designer may consider for implementation to assure sail-safe system design and operation. These principles are predominantly applicable for the safe system software design and quoted from the IEEE-1483 standard. Based on this amendment, FRA also renumbers some of the remaining subparagraphs of paragraph (b) to follow the chosen scheme for the proper classification and sequence of safety principles.
GE asserts that more detail is required for the Human Factor Engineering Principle in paragraph (b)(5), which is part of the section on “safety principles during product development.” There are two components to applied Human Factor engineering in system safety: The component of ergonomic design and the system risk contribution of the human interaction with the system, along with the degree of dependency on the operator for safety coverage. According to GE, the latter is missing from the discussion and is most relevant to the safety principles section.
In response to this comment, FRA would like to emphasize that the main purpose of Appendix C is to provide safety criteria and processes for design of safe systems, or fail-safe, or vital signaling systems that by definition must exclude any hazards associated with human errors. The “reliance factor” or, in other words, the possibility of hazards arising due to overreliance of the operator on the proper functioning of the system itself, which the commenter is referring to, is an issue solely relevant to the non-vital overlays complementing existing method of operation. For non-vital signaling systems the designer must adhere to the safety principles of Appendix C only to the extent necessary to satisfy the safety requirements of this part. Therefore FRA does not see a need for further modification of paragraph (b)(5).
This final rule amends paragraph (c) to reflect the changes in recommended standards. For instance, the standard “EN50126: 1999, Railway Applications: Specification and Demonstration of Reliability, Availability, Maintainability and Safety” (RAMS) is superseded by the standard IEC62278: 2002 under the same title. The standard “EN50128 (May 2001), Railway Applications: Software for Railway Control and Protection Systems” is superseded by the Standard IEC62279: 2002 under the same title.
HCRQ/CGI submitted comments asserting that the U.S. Department of Defense Military Standard (MIL-STD) 882C, “System Safety Program Requirements” (January 19, 1993) has been superseded by U.S. Department of Defense Military Standard (MIL-STD) 882C, “System Safety Program Requirements”, Notice 1 (January 19, 1996)”.
In the NPRM, FRA suggested that railroads follow recommendations of MIL-STD-882C of January 19, 1993
Under paragraph (c)(3)(i), FRA references additional IEEE standards that have become available and will support the designs of PTC systems that are widely using communications as their main component. In addition to existing reference under paragraph (c)(3)(i)(A) for IEEE-1483 Standard, the following standards are added to paragraph (c)(3)(i): IEEE 1474.2-2003, Standard for user interface requirements in communications based train control (CBTC) systems; and IEEE 1474.1-2004, Standard for Communications-Based Train Control (CBTC) Performance and Functional Requirements.
After an analysis of the current applicability of ATCS Specification 130 and 140, FRA believes that they are not being used. Thus, FRA hereby removes these standards from the list of referenced standards. However, FRA also adds the ATCS 200, Data Communication standard that remains relevant for communication segment of PTC system designs.
FRA also considers it necessary to reference several additional sections of the current AREMA 2009 Communications and Signal Manual of Recommended Practices. In addition to Section 17 of this manual referenced in a previous version of Appendix C, FRA hereby adds to the list of references Section 16 Vital Circuit and Software Design; Section 21 Data Transmission; and Section 23 Communication-Based Signaling.
There has been no change in the underlying engineering principles associated with Appendix D. The changes made in this final rule are cosmetic, simply updating the Appendix so that it is applicable to both subpart H and I, and reducing the workload on the vendor or supplier, the railroad, and FRA. FRA determined that it would have been more burdensome to refer to different Appendices that are functionally identical, and whose only practical difference would be that one referred only to subpart H, and the other to subpart I of this part.
Paragraph (a) discusses the purpose of an independent third-party assessment of product Verification and Validation. FRA's position that the requirement for an independent third-party assessment is reasonably common in the field of safety-critical systems remains unchanged. FRA's recent experience confirms that this approach can enhance the quality of decision making by railroads and FRA. The potential for undergoing a third party audit provides incentives to those who design and produce safety-critical systems to more rigorously create and maintain safety documentation for their systems. FRA acknowledges that documentation, by itself, will not ensure a safe system. However, the absence of documentation will make it virtually impossible to ensure the safety of the system throughout its life-cycle. The third party also brings a level of technical expertise, and a perspective that may not be available on the staff of the railroad (or FRA)—effectively permitting the railroad (and thus FRA) to look behind claims of the vendor or supplier to actual engineering practice. This may be especially appropriate where the system in question utilizes a novel architecture or relies heavily on COTS hardware and software.
Paragraph (b) establishes the requirements for independence of the third-party auditor. The text associated with the underlying principle of independence has simply been clarified to indicate that there must be independence at all levels of the product design and manufacture. This situation has arisen where a third party wished to provide independent safety assessments of the system, but also provide technical support for the design of a component that would be used in the system being reviewed. FRA maintains that such practices, even if the entity in question attempts to firewall the parts of the organization doing the respective tasks, represents a conflict of interest and is unacceptable.
Paragraphs (c) through (f) discuss the substance of the third-party assessment. This assessment should be performed on the system as it is finally configured, before revenue operations commence. The assessor should review the supplier's processes as set forth in the applicable documentation and provide comments to the supplier. The reviewer should be able to determine vulnerabilities in the supplier's processes and the adequacy of the safety analysis (be it in an RSPP and PSP or in a PTCDP and PTCSP) as they apply to the product. “Acceptable methodology” is intended to mean standard industry practice, for example, as contained in MIL-STD-882C. FRA is aware of many other acceptable industry standards, but usage of a less common one in an analysis would most likely require a higher level of FRA scrutiny. In addition, the reviewer considers the completeness and adequacy of the required safety documents.
Paragraph (d) discusses the reviewer's tasks at the functional level. Here, the reviewer will analyze the supplier's methods to establish that they are complete and correct. First, a Preliminary Safety Analysis is performed in the design stage of a product. In addition to describing system requirements within the context of the concept of operations, it attempts, in an early stage, to classify the severity of the hazards and to assign an integrity level requirement to each major function (in conventional terms, a preliminary hazard analysis). Again there are many practices widely accepted within industry such as: Hazard Analysis (HA), Fault Tree Analysis (FTA), Failure Mode and Effects Analysis (FMEA), and Failure Modes, Effects, and Criticality Analysis (FMECA). Other simulation methods may also be used in conjunction with the preceding methods, or by themselves when appropriate. Commonly practiced techniques and methods include fault injection, a technique that evaluates performance by injecting known faults at random times during a simulation period; Markov modeling, a modeling technique that consists of states and transitions that control events; Monte Carlo model, a simulation technique based on randomly-occurring events; and Petri-net, an abstract, formal model of information flow that shows static and dynamic properties of a system.
Paragraphs (e) and (f) address what must be performed at the implementation level. At this stage, the product is beginning to take form. The reviewer typically evaluates the software and, if appropriate or required, the hardware. In the case of software, the software will most likely be in modular form, such that software modules are produced in accordance to a particular function. In the case of hardware, this may be at the component or line replaceable unit level. The reviewer must select a significant number of modules to be able to establish that the product is being developed in a safe manner.
Paragraph (g) discusses the reviewer's tasks at closure. The reviewer's primary task at this stage is to prepare a final report where all product deficiencies are noted in detail. This final report may include material previously presented to the supplier during earlier development stages.
FRA received several comments on Appendix D related to the proper documentation to be reviewed by the third-party reviewer according to
Appendix E provides human factors design criteria. Paragraphs (a) through (f) cover the same material as was previously contained in Appendix E.
FRA has noted that products implemented under the requirements of subpart H of this part, or proposed products that will be developed under subpart I of this part, all have been capable of generating electromagnetic radiation. Such emissions are strictly regulated by the Federal Communications Commission for public safety and health, as well as to ensure that the limited electromagnetic spectrum is optimally utilized. FRA is therefore adding a new paragraph (h) to Appendix E, which requires that as part of the HMI design process, the designer must ensure that the product has the appropriate FCC Equipment Authorization, and that the product meets FCC requirements for Maximum Permissible Exposure limits for field strength and power density. Paragraph (g) does not levy any new regulatory requirements. The requirements cited are mandatory FCC requirements for any device that emits electromagnetic radiation that the system designer must comply with. FRA is simply identifying these requirements, as not all railroad product developers may be aware of them.
FRA has revised the title of Appendix F in response to comments submitted by GE, in which GE noted that, while FRA may require a railroad to engage in an independent assessment of its PTC system based on the criteria set forth in § 236.913, FRA is not requiring an independent assessment of every PTCSP.
FRA received several comments from HCRQ/CGI on paragraphs (d), (e), (f), and (i) of Appendix F.
The commenter asserted that the term “acceptable methodology” used in the second sentence of paragraph (d) is not clear and suggested that it be replaced with the term “methodologies typical to safety-critical systems.” If revised in accordance with this recommendation, the second sentence of paragraph (d) would read as follows: “At a minimum, the reviewer shall compare the supplier processes with methodologies typical of safety-critical systems and employ any other such tests or comparisons if they have been agreed to previously with FRA.” In response to this comment, FRA notes that the term “acceptable methodologies,” by its very nature, includes methodologies typical of safety-critical systems. FRA believes that the proposed modification may artificially limit the use of the atypical analysis methodologies that may provide an equivalent, or better, analytical results. Therefore, FRA did not incorporate the proposed change. However, in the interest of providing clarification to reflect the main intent of this paragraph, FRA has modified the second and third sentences in paragraph (d) to read as follows: “At a minimum, the reviewer shall evaluate the supplier design and development process regarding the use of an appropriate design methodology. The reviewer may use the comparison processes and test procedures that have been previously agreed to with FRA.”
The commenter also asserted that, with respect to paragraph (e), the reviewer will be required to analyze a “Hazard Log,” as opposed to a “Preliminary Hazard Analysis” document, since the Hazard Log will supersede the Preliminary Hazard Analysis on the final stage of the system development process.
FRA agrees with the commenter that the Hazard Log more accurately reflects the perceived risk in the as-built condition and, therefore, has modified paragraph (e) to read as follows: “The reviewer shall analyze the Hazard Log and/or any other hazard analysis documents for comprehensiveness and compliance with applicable railroad, vendor, supplier, industry, national, and international standards.” The commenter also suggested that this comment is equally applicable to former paragraph (d)(1) in the prior version of Appendix D. FRA agrees and has modified the various applicable phrases in Appendices D and F accordingly. The commenter further suggested that in paragraph (f) the reviewer should be required to analyze samples of the hazard analyses “for completeness, correctness, and compliance with industry, national, or international standards,” as opposed to the proposed requirement to analyze “all” hazard analyses such as Fault Tree Analyses (FTA), Failure Mode and Effects Criticality Analysis (FMECA). The commenter asserted that it will be “difficult and prohibitive” for both the supplier and the reviewer to analyze “all” of these documents in their entire length. The commenter also noted that these comments are applicable to existing Appendix D, paragraph (d)(2).
In response to this comment, FRA notes that there does not appear to be a need for additional clarification on the depth of the quoted documents analysis by the reviewer. As FRA has already indicated in the section-by-section analysis of § 236.1017, “FRA has the discretion to limit the extent of the third party assessment.” Moreover, the section-by-section analysis of § 236.1017 goes on to state that “Appendix F represents minimum requirements and that if circumstances warrant, FRA may expand upon the Appendix F requirements as necessary to render a decision that is in the public interest.” FRA will, if appropriate, limit the scope of analysis. FRA notes the comment, and will execute its regulatory discretion in this matter.
With respect to paragraph (i)(7), HCRQ/CGI points out that the text of NPRM, while discussing methods of safety-critical software development by the manufacturer, enumerates examples that, according to the commenter, are not particular to the safety-critical systems, which appears to be contrary to the intent of this paragraph. The commenter recommends that FRA
FRA understands the commenter's concern. FRA believes that the review should include any documentation associated with the software development that may reflect on, or address, the safety of the system. To address the commenter's concern and to more accurately reflect FRA's position, paragraph (i)(7) has been revised by deleting the list of examples of methods of software development previously proposed in the NPRM. FRA modifies the text of this paragraph to emphasize that the review on any documentation that may reflect on the safety of software design is required. As with the preceding comment, FRA will exercise its regulatory discretion with regards to the specific documentation based on the system in question and public safety. FRA has also modified paragraph (i)(7) in Appendix D that discusses the same issue.
This final rule has been evaluated in accordance with existing policies and procedures, and determined to be significant under both Executive Order 12866 and DOT policies and procedures. 44 FR 11,034 (Feb. 26, 1979). We have prepared and placed in the docket a regulatory impact analysis (RIA) addressing the economic impact of this final rule.
The costs anticipated to accrue from adopting this final rule would include: (1) Costs associated with developing implementation plans and administrative functions related to the implementation and operation of PTC systems, including the information technology and communication systems that make up the central office; (2) hardware costs for onboard locomotive system components, including installation; (3) hardware costs for wayside system components, including installation; and (4) maintenance costs for all system components.
Two types of benefits are expected to result from the implementation of this final rule—benefits from railroad accident reduction and business benefits from efficiency gains. The first type would include safety benefits or savings expected to accrue from the reduction in the number and severity of casualties arising from train accidents that would occur on lines equipped with PTC systems. Casualty mitigation estimates are based on a value of statistical life of $6 million. In addition, benefits related to accident preventions would accrue from a decrease in damages to property such as: Locomotives, railroad cars, and track; equipment cleanup; environmental damage; train delay resulting from track closures; road closures; emergency response; and evacuations. Benefits more difficult to monetize—such as the avoidance of hazmat accident related costs incurred by federal, state, and local governments and impacts to local businesses—will also result. FRA also expects that once PTC systems are refined, there would likely be substantial additional business benefits resulting from more efficient transportation service; however, such benefits are not included because of significant uncertainties regarding whether and when individual elements will be achieved and given the complicating factor that some benefits might, absent deployment of PTC, be captured using alternative technologies at lower cost. In the NPRM, FRA requested comments on whether the proposed regulation exercised the appropriate level of discretion and flexibility to comply with RSIA08 in the most cost effective and beneficial manner. The FRA received comments, discussed above in the section-by-section analysis, that FRA had exceeded its discretion, in general, in not creating a
The RIA presents a 20-year analysis of the costs and benefits associated with this rule, using both 7 percent and 3 percent discount rates, and two types of sensitivity analyses. The first is associated with varying cost assumptions used for estimating PTC implementation costs. The second takes into account potential business benefits from realizing service efficiencies and related additional societal benefits from attainment of environmental goals and an overall reduction in transportation risk from modal diversion.
The 20-year total cost estimates are $9.55 billion (PV, 7%) and $13.21 billion (PV, 3%). Annualized costs are $0.87 billion (PV, 7%) and $0.88 billion (PV, 3%). Using high-cost assumptions, the 20-year total cost estimates would be $16.25 billion (PV, 7%) and $22.54 billion (PV, 3%). Using low-cost assumptions, the 20-year cost estimates would be $6.73 billion (PV, 7%) and $9.34 billion (PV, 3%). The later the expenditures are made, the lower the discounted cost impact, which in any event is a very small portion of the total PTC costs. This estimate is lower than the cost estimate presented in the NPRM. It reflects the low freight traffic volume exception for passenger train routes and the
Twenty-year railroad safety (railroad accident reduction) benefit estimates associated with implementation of the rule are $440 million (PV, 7%) and $674 million (PV, 3%). Annualized benefits are $42 million (PV, 7%), and $45 million (PV, 3%). This estimate is lower than that estimated at the NPRM stage of the rulemaking. The estimate was lowered as a result of revisions made to a study performed by Volpe Center regarding the cost of PTC-preventable accidents. Some forecasts predict significant growth of both passenger and freight transportation demands, and it is thus possible that greater activity on the system could present the potential for
The table below presents cost and benefit estimates by element using a 3% discount rate as well as a 7% discount rate.
The Port Authority Trans Hudson (PATH), a commuter railroad, is apparently considering the system used by the New York City Transit Authority on the Canarsie line. This system, which is known as Communication-Based Train Control, is not similar in concept to any of the other PTC systems (including the CSX CBTC, with which its name might easily be confused), and would not be suitable, as FRA understands the system, except on a railroad with operating characteristics similar to a heavy rail mass transit system. FRA believes that, in absence of the statutory mandate or this rulemaking, PATH would have adopted PTC for business reasons.
Although costs associated with implementation of the final rule are significant and such costs would far exceed the benefits, FRA is constrained by the requirements of RSIA08, which do not provide latitude for implementing PTC differently. Nevertheless, FRA has taken several steps to avoid triggering unnecessary costs in the proposed rule. For instance, FRA is not requiring use of separate monitoring of switch position in signal territory or that the system be designed to determine the position of the end of the train. FRA has also minimized costs, such as by requiring the monitoring of derails protecting the mainline, but limiting it to derails connected to the signal system; and by requiring the monitoring of hazard detectors protecting the mainline, but limiting it to hazard detectors connected to the signal system. FRA has also minimized costs related to diamond crossings, where a PTC equipped railroad crosses a non-PTC equipped railroad at grade; included exceptions to main track for passenger train operations, and provisions that would permit some Class III railroad operation of trains not equipped with PTC over Class I railroad freight lines equipped with PTC. FRA has also added provisions to the final rule which will permit passenger railroads to exclude up to roughly 1,900 miles of track from the requirements to install PTC. Finally, FRA has provided for de minimis exceptions for Class I freight lines with not passenger service and negligible risk, avoiding any expenses for right-of-way modifications on about 300 miles, saving about $15 million, and reducing costs by about 80% on about 3,200 additional miles, saving about $127 million.
RSIA08 requires the railroads to have all mandatory PTC systems operational on or before December 31, 2015. Members of the PTC Working Group, especially railroad and supplier representatives, said that the timeframe was very tight, and that the scheduled implementation dates would be difficult to meet. In general, the faster a government agency requires a regulated entity to adopt new equipment of procedures, the more expensive compliance becomes. In part, this is due to supply elasticity being less over shorter time periods.
FRA is unable to estimate the potential savings if Congress provided a longer implementation schedule or provided incentives, rather than mandates, for PTC system installation. In order to estimate the likely reduction in costs in such situations, FRA would need to develop some other schedule for implementation. The element least sensitive to an implementation's schedule appears to be onboard costs. Each PTC system's onboard equipment seems similar and is not very different from existing onboard systems. Further, the 2015 deadline is not so restrictive that it would cause railroads to pull locomotives out of service just to install on board PTC equipment. Locomotives must be inspected thoroughly every 90 and more extensively every 360 days. The inspections can last from one to several days. Railroads usually bring locomotives into their shops to perform these inspections, during which time a skilled and experienced team could install the on board equipment for PTC. System development is much less certain, and more time would enable vendors or suppliers to develop, test, and implement the software at a more reasonable cost. Wayside costs are also sensitive to the installation timetable, as the wayside must be mapped and
FRA believes that lower costs could result from a longer installation period, but FRA also believes that the differences in costs would be within the range of the low costs provided in the main analysis of the proposed rule. The 2004 report included some lower cost estimates, but, in light of current discussions with railroads, the cost estimates in the 1998 report seem more accurate. The lower estimates FRA received in preparing the 2004 report were both overly optimistic, and excluded installation costs, as well as higher costs which stem from meeting the performance standards.
Some of the costs of PTC implementation, operation, and maintenance may be offset by business benefits, especially in the long run, although there is uncertainty regarding the timing and level of those benefits. Economic and technical feasibility of the necessary system refinements and modifications to yield the potential business benefits has not yet been demonstrated. FRA analyzed business benefits associated with PTC system implementation and presented its findings in the 2004 Report. Due to the aggressive implementation schedule for PTC and the resulting need to issue a rule promptly, FRA has not formally updated this study. Nevertheless, FRA believes that there is opportunity for significant business benefits to accrue several years after implementation once the systems have been refined to the degree necessary. Thus, FRA conducted a sensitivity analysis of potential business benefits based on the 2004 Report.
The 2004 Report included business benefits from improved or enhanced locomotive diagnostics, fuel savings attributable to train pacing, precision dispatching, and capacity enhancement. Although railroads are enhancing locomotive diagnostics using other technologies, FRA believes that PTC could provide the basis for significant gains in the other three areas.
In the years since the 2004 Report, developing technology and rising fuel costs have caused the rail supply industry and the railroads to focus on additional means of conserving diesel fuel while minimizing in-train forces that can lead to derailments and delays from train separations (usually broken coupler knuckles). Software programs exist that can translate information concerning throttle position and brake use, together with consist information and route characteristics, to produce advice for prospective manipulation of the locomotive controls to limit in-train forces. Programs are also being conceived that project arrival at meet points and other locations on the railroad. These types of tools can be consolidated into programs that either coach the locomotive engineer regarding how to handle the train or even take over the controls of the locomotive under the engineer's supervision. The ultimate purpose of integrating this technology is to conserve fuel use while handling the train properly and arriving at a designated location “just in time” (e.g., to meet or pass a train or enter a terminal area in sequence ahead of or behind other traffic). Further integrating this technology with PTC communications platforms and traffic planning capabilities could permit transmittal of “train pacing” information to the locomotive cab in order to conserve fuel. Like the communications backbone, survey data concerning route characteristics can be shared by both systems. The cost of diesel fuel for road operations to the Class I railroads is approximately $3.5 billion annually and is gradually rising. If PTC technology helps to spur the growth and effective use of train pacing, fuel savings of 5% ($175,000,000 annually) or greater could very likely be achieved. Clearly, if the railroads are able to conserve use of fuel, they will also reduce emissions and contribute to attainment of environmental goals, even before modal diversion occurs.
The improvements in dispatch and capacity have further implications. With those improvements, railroads could improve the reliability of shipment arrival time and, thus, dramatically increase the value of rail transportation to shippers, who in turn would divert certain shipments from highway to rail. Such diversion would yield greater overall transportation safety benefits, since railroads have much lower accident risk than highways, on a point-to-point ton-mile basis. The total societal benefits of PTC system implementation and operation, following the analysis, would be much greater than total societal costs, although the costs would fall disproportionately more heavily on the railroads.
At present, the PTC systems contemplated by the railroads, with the possible exception of PATH, would not increase capacity, at least not for some time. If the locomotive braking algorithms need to be made more conservative in order to ensure that each train does not exceed the limits of its authority, PTC system operation may actually decrease rail capacity where applied in the early years. Further investment would be required to bring about the synergy that would result in capacity gains. A more significant business benefit of PTC system operation would be derived from precision dispatching, which decreases the variance of arrival times of delivered freight. To avoid the risk of running out of stock, shippers often overstock their inventory at an annual cost of approximately 25% of its inventory value, regardless of the material being stored. This estimate accounts for shrinkage, borrowing costs, and storage costs. Of course, freight with more value per unit of mass or volume tends to have greater storage costs per unit. At present, no rail precision dispatch system exists. However, if a shipper would take advantage of precision dispatching, thus increasing freight arrival time accuracy, then it could reduce its overstock inventory. Accurate train data is a necessary, but not a sufficient condition, for precision dispatch. At least two of the Class I railroads have unsuccessfully attempted to develop precision dispatch systems. The mandatory installation of PTC systems is likely to divert any resources that might have been devoted to precision dispatch, so these benefits are unlikely during the first several years of this rule.
Applying current factors to the variables used in the 2004 Report to Congress, the resulting analysis indicates that diversion could result in highway annual safety benefits of $744 million by 2022, and $1,148 million by 2032. Of course, these benefits require that the productivity enhancing systems be added to PTC, and are heavily dependent on the underlying assumptions of the 2004 model.
Modal diversion would also yield environmental benefits. The 2004 Report estimated that reduced air pollution costs would have been between $68 million and $132 million in 2010 (assuming PTC would be implemented by 2010), and between $103 million and $198 million in 2020. This benefit would have accrued to the general public. FRA has not broken out the pollution cost benefit of the current
While railroads argued that many of the benefits identified in FRA's 2004 report were exaggerated, shortly after the publication of the report, several railroads began developing strategies for PTC system development and implementation. This investment by the railroads would seem to illustrate that they believe that there is some potential for PTC to provide a boost to railroad profits, beyond providing any of the aforementioned societal benefits.
Modal diversion is highly sensitive to service quality. Problems with terminal congestion and lengthy dwell times might overwhelm the benefits of PTC or other initiatives which the railroads have been pursuing (reconfiguration of yards, pre-blocking of trains, shared power arrangements, car scheduling, Automatic Equipment Identification, etc.) that might actually work in synergy with PTC. It should also be noted that, in the years since the 2004 Report was developed, the Class I railroads have shown an increased ability to retain operating revenue as profit, rather than surrendering it in the form of reduced rates. This was particularly true during the period prior to the current recession, when strained highway capacity favored the growth of rail traffic. The sensitivity analysis performed by FRA indicates that realization of business benefits could yield benefits sufficient to close the gap between PTC implementation costs and rail accident reduction benefits within the first 18 years of the rule, applying a 3% discount rate, and by year 24 of the rule, applying a discount rate of 7%. Accordingly, the precise partition of business and societal benefits cannot be estimated with any certainty.
FRA recognizes that the likelihood of business benefits is uncertain and that the cost-to-benefit comparison of this rule, excluding any business benefits, is not favorable. However, FRA has taken measures to minimize the rule's adverse impacts and to provide as much flexibility as FRA is authorized to grant under RSIA08.
To ensure potential impacts of rules on small entities are properly considered, we developed this rule in accordance with Executive Order 13272 (“Proper Consideration of Small Entities in Agency Rulemaking”) and DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act (5 U.S.C. 601
The Regulatory Flexibility Act requires an agency to review regulations to assess their impact on small entities. An agency must conduct a Final Regulatory Flexibility Analysis (FRFA) unless it determines and certifies that a rule is not expected to have a significant impact on a substantial number of small entities.
In the NPRM, we published an Initial Regulatory Flexibility Assessment (IRFA) to aid the public in commenting on the potential small business impacts of the proposals. FRA has considered all comments submitted to the docket and at public hearings in response to the NPRM. FRA also worked with the PTC Working Group and its task forces in developing many of the facets of the final rule. We appreciate the information provided by the various parties. The proposed rule, and consequently the IRFA, included as part of the NPRM, have been modified as a result, as described above. Due to the uncertainties associated with new product development and deployment, FRA has prepared a FRFA and will issue a Small Entity Guidance document soon.
In accordance with the Regulatory Flexibility Act, a FRFA must contain:
(1) A succinct statement of the need for, and objectives of the rule;
(2) A summary of the significant issues raised by the public comments in response to the IRFA, a summary of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments.
(3) A description and an estimate of the number of small entities to which the rule will apply or an explanation of why no such estimate is available;
(4) A description of the projected reporting, recordkeeping and other compliance requirements of the final rule, including an estimate of the classes of small entities that will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; and
(5) A description of the steps the agency has taken to minimize the significant adverse economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each of the other significant alternatives to the rule considered by the agency was rejected. 5 U.S.C. 604(a)(1)-(5).
PTC systems will be designed to prevent train-to-train collisions, overspeed derailments, incursions into established work zone limits, and the movement of a train through a switch left in the wrong position.
As discussed in more detail in section I of the preamble, the RSIA08 mandates that widespread implementation of PTC across a major portion of the U.S. rail industry be accomplished by December 31, 2015. RSIA08 requires each Class I carrier and each entity providing regularly scheduled intercity or commuter rail passenger transportation to develop a plan for implementing PTC by April 16, 2010. The Secretary of Transportation is responsible for reviewing and approving or disapproving such plans. The Secretary has delegated this responsibility to FRA. This final rule details the process and procedure for obtaining FRA approval of the plans.
As discussed earlier in the preamble, FRA is issuing this final rule to provide regulatory guidance and performance standards for the development, testing, implementation, and use of Positive Train Control (PTC) systems for railroads mandated by the Rail Safety Improvement Act of 2008 § 104, Public Law 110-432, 122 Stat. 4848, 4856, (Oct. 16, 2008) (codified at 49 U.S.C. 20157).
The only comment which directly referred to the IRFA was a comment from Class I railroad representatives noting that the IRFA implied that Class I railroads would pay for installation of split point derails at railroad-railroad crossings where a PTC equipped line crosses a line not equipped with PTC. FRA agrees with commenters that costs will be borne according to preexisting agreements and any other laws or regulations that might affect which party is responsible for the costs incurred and has modified its analysis accordingly.
Other comments which affect the IRFA related to definition of main track for intercity and commuter operations where freight densities are relatively low. These comments, primarily from Amtrak, not a small entity, directly referred to the proposed rule, and not to the IRFA. In response, FRA provided significant relief to Amtrak for operations over Class II and Class III railroads, thus indirectly providing relief to some of the Class II and III railroads, potentially allowing one or more to avoid PTC system installation. The RSIA08 generally defines “main line” as “a segment of railroad tracks over which 5,000,000 or more gross tons of railroad traffic is transported
In accordance with the authority provided by the statute and with carefully considered recommendations from the RSAC, FRA will consider requests for designation of track over which rail operations are conducted as “other than main line track” for passenger and commuter railroads, or freight railroads operating jointly with passenger or commuter railroads. Such relief may be granted only after request by the railroad or railroads filing a PTCIP and approval by the Associate Administrator.
In § 236.1019(a), FRA requires the submittal of a main line track exclusion addendum (MTEA) to any PTCIP filed by a railroad that seeks to have any particular track segment deemed as other than main line. Since the statute only provides for such regulatory flexibility as it applies to passenger transportation routes or segments over which limited or no freight railroad operations occur, only a passenger railroad may file an MTEA as part of its PTCIP. This may include a PTCIP jointly filed by freight and passenger railroads. In fact, FRA expects that, in the case of joint operations, only one MTEA should be agreed upon and submitted by the railroads filing the PTCIP. After reviewing a submitted MTEA, FRA may provide full or conditional approval for the requested exemptions.
Each MTEA must clearly identify and define the physical boundaries, use, and characterization of the trackage for which exclusion is requested. When describing each track's use and characterization, FRA expects the requesting railroad or railroads to include copies of the applicable track and signal charts. Ultimately, FRA expects each MTEA to include information sufficiently specific to enable easy segregation between main line track and non-main line track. In the event the railroad subsequently requests additional track to be considered for exclusion, a well-defined MTEA should reduce the amount of future information required to be submitted to FRA. Moreover, if FRA decides to grant only certain requests in an MTEA, the portions of track for which FRA has determined should remain considered as main line track can be easily severed from the MTEA. Otherwise, the entire MTEA, and thus its concomitant PTCIP, may be entirely disapproved by FRA, increasing the risk of the railroad or railroads not meeting its statutory deadline for PTC implementation and operation.
For each particular track segment, the MTEA must also provide a justification for such designation in accordance with paragraphs (b) or (c) of this section.
In § 236.1019(b), FRA specifically addresses the conditions for relief for passenger and commuter railroads with respect to passenger-only terminal areas. As noted previously in the analysis of § 236.1005(b), any track within a yard used exclusively by freight operations moving at restricted speed is excepted from the definition of main line. In those situations, operations are usually limited to preparing trains for transportation and do not usually include actual transportation. This automatic exclusion does not extend to yard or terminal tracks that include passenger operations. Such operations may also include the boarding and disembarking of passengers, heightening FRA's sensitivity to safety. Moreover, while FRA could not expend its resources to review whether a freight-only yard should be deemed other than main line track, FRA believes that the relatively lower number of passenger yards and terminals would allow for such review. Accordingly, FRA believes that it is appropriate to review these circumstances on a case-by-case basis.
During the PTC Working Group discussions, the major passenger railroads requested an exception for tracks in passenger terminal areas because of the impracticability of installing PTC. These are locations where signal systems govern movements over very complex special track work divided into short signal blocks. Operating speeds are low (not to exceed 20 miles per hour), and locomotive engineers moving in this environment expect conflicting traffic and restrictive signals. Although low-speed collisions do occasionally occur in these environments, the consequences are low; and the rate of occurrence is very low in relation to the exposure. It is the nature of current-generation PTC systems that they use conservative braking algorithms. Requiring PTC to short blocks in congested terminals would add to congestion and frustrate efficient passenger service, in the judgment of those who operate these railroads. The density of wayside infrastructure required to effect PTC functions in these terminal areas would also be exceptionally costly in relation to the benefits obtained. FRA agrees that technical solutions to address these concerns are not presently available. FRA does believe that the appropriate role for PTC in this context is to enforce the maximum allowable speed (which is presently accomplished in cab signal territory through use of automatic speed control, a practice which could continue where already in place).
If FRA grants relief, the conditions of paragraphs (b)(1), (b)(2), or (b)(3), as applicable, as well as conditions attached to the approval, must be strictly adhered to.
In § 236.1019(b)(1), FRA specifies that relief under paragraph (b) is limited to operations that do not exceed 20 miles per hour. The PTC Working Group agreed upon the 20 miles per hour limitation, instead of requiring restricted speed, because the operations in question will be by signal indication in congested and complex terminals with short block lengths and numerous turnouts. FRA agrees with the PTC Working Group that the use of restricted speed in this environment would unnecessarily exacerbate congestion, delay trains, and diminish the quality of rail passenger service.
Moreover, when trains on the excluded track are controlled by a locomotive with an operative PTC onboard apparatus that PTC system component must enforce the regulatory speed limit or actual maximum authorized speed, whichever is less. While the actual track may not be outfitted with a PTC system in light of a MTEA approval, FRA believes it is nevertheless prudent to require such enforcement when the technology is available on the operating locomotives. This can be accomplished in cab signal territory using existing automatic train stop technology and outside of cab signal territory by mapping the terminal and causing the onboard computer to enforce the maximum speed allowed.
FRA also limits relief under § 236.1019(b)(2) to operations that enforce interlocking rules. Under interlocking rules, trains are prohibited from moving in reverse directions without dispatcher permission on track where there are no signal indications. FRA believes that such a restriction will minimize the potential for a head-on impact.
Also, under § 236.1019(b)(3), such operations are only allowed in yard or terminal areas where no freight
In § 236.1019(c), FRA provides the conditions under which joint limited passenger and freight operations may occur on defined track segments without the requirement for installation of PTC. Under § 236.1003 (Definitions), “limited operations” is defined as “operations on main line track that have limited or no freight operations and are approved to be excepted from this subpart's PTC system implementation and operation requirements in accordance with § 236.1019(c).” This paragraph provides five alternative paths to the main line exception, three of which were contained in the proposed rule and a fourth and fifth that respond to comments on the proposed rule.
The three alternatives derived from the NPRM are set forth in § 236.1019(c)(1). First, an exception may be available where both the freight and passenger trains are limited to restricted speed. Such operations are feasible only for short distances, and FRA will examine the circumstances involved to ensure that the exposure is limited and that appropriate operating rules and training are in place.
Second, under § 236.1019(c)(1)(ii), FRA notes that it will consider an exception where temporal separation of the freight and passenger operations can be ensured. A more complete definition of temporal separation is provided in § 236.1019(e). Temporal separation of passenger and freight services reduces risk because the likelihood of a collision is reduced (e.g., due to freight cars engaged in switching that are not properly secured) and the possibility of a relatively more severe collision between a passenger train and much heavier freight consist is obviated.
Third, under § 236.1019(c)(1)(iii), FRA notes that it will consider commingled freight and passenger operations provided that a jointly agreed risk analysis is provided by the passenger and freight railroads, and the level of safety is the same as that which would be provided under one of the two prior options selected as the base case. FRA requested comments on whether FRA or the subject railroad should determine the appropriate base case, but received none. FRA recognizes that there may be situations where temporal separation may not be possible. In such situations, FRA may allow commingled operations provided the risk to the passenger operation is no greater than if the passenger and freight trains were operating under temporal separation or with all trains limited to restricted speed. For an exception to be made under § 236.1019(c)(3), FRA requires a risk analysis jointly agreed to and submitted by the applicable freight and passenger services. This ensures that the risks and consequences to both parties have been fully analyzed, understood, and mitigated to the extent practical. FRA would expect that the moving party would elect a base case offering the greatest clarity and justify the selection.
Comments on the proposed rule generally supported the aforementioned exclusions or were silent.
In its comments on the NPRM, Amtrak requested further relief relating to lines requiring the implementation and operation of a PTC system due solely to the presence of light-density passenger traffic. According to Amtrak, the defining characteristic of light-density lines is the nature of the train traffic; low-density patterns on these lines lead to a correspondingly low risk of collision. Amtrak also asserted that, due to relatively limited wear and tear from lower traffic densities, these lines often have fewer track workers on site, further reducing the chance of collisions and incursions into work zones. Thus, states Amtrak, one of the principal reasons for installing PTC—collision avoidance—is a relatively low risk on many light density lines. With only marginal safety benefits anticipated from PTC use in such applications, Amtrak believed that there may be minimal justification for installing PTC on certain light-density lines.
Amtrak further noted that FRA itself had concluded that the costs of PTC generally exceed its benefits, and Amtrak urged that this may be even more so on light-density lines. Amtrak believed that Congress understood this issue and thus created the regulatory flexibility for the definition of “main line” for passenger routes found at 49 U.S.C. 20157(i)(2)(B) as a means to allow the Secretary to exempt certain routes from the PTC mandate. According to Amtrak, this provision essentially allows the Secretary to define certain passenger routes with limited or no freight traffic as other than “main line,” thereby effectively exempting such lines from the reach of the PTC mandate because the mandate only applies to railroad operations over “main line[s].” Said another way, urged Amtrak, the provision allows the Secretary the freedom to decide in what circumstances such routes should be considered “main lines” and thus be required to install PTC—pursuant to whatever factors the Secretary deems appropriate through the rulemaking process.
Amtrak urged that the Secretary should use this flexibility to limit which passenger routes it defines as “main lines” to those deemed to warrant the use of PTC using the FRA's usual risk-based approach to safety regulation and traditional measures of reasonableness, costs, and benefits. Amtrak posited that such a risk-based analysis by FRA would likely lead to the conclusion that PTC is simply not needed on many light-density lines over which passenger trains currently operate. Amtrak therefore asked that FRA exercise this authority by working with Amtrak and the rail industry to exempt certain light density freight lines which host passenger traffic from the obligation to install PTC where operating and safety conditions do not warrant an advanced signal system.
Should FRA choose not to exempt some of these light density freight lines over which passenger trains operate, Amtrak felt that the high costs of full PTC systems will be passed on to the passenger and freight operators of these routes. According to Amtrak, this obligation could threaten the continuation of intercity passenger rail service on several routes, including lines in California, Colorado, Kansas, Maine, Massachusetts, Michigan, Missouri, New Hampshire, New Mexico, North Dakota, Vermont, and Virginia, on what are potentially light density lines. Additionally, states Amtrak, this obligation, where it can be financed, could force the diversion of significant capital dollars away from essential safety investments in track and other infrastructure improvements, which are typically the leading safety risks for such light-density operations. According to Amtrak, the cost of PTC installation on these lines may be so out
According to the Amtrak testimony, the “limited operations exception” in subsection 236.1019(c) of the NPRM did not provide a practical solution to the problem created by defining all light-density routes and terminal areas with passenger service as “main lines.” Amtrak stated that this subsection would arguably require installation of PTC on most of the trackage and locomotives of the Terminal Railroad Association of St Louis (TRRA) unless: (1) The entire terminal operates at restricted speed (which TRRA is unlikely to agree to), (2) passenger and freight trains are temporally separated (which would not be practical on TRRA, and is unlikely to be practical on any of the light-density lines over which Amtrak operates, due to the 24/7 nature of railroad operations), or (3) a risk mitigation plan can be effected that would achieve a level of safety not less than would pertain if all operations on TRRA were at restricted speed or subject to temporal separation. Accordingly, Amtrak recommended: (a) That the FRA adopt a risk analysis-based definition of “main line” passenger routes that excludes light-density lines on which the installation of PTC is not warranted; and (b) with respect to freight terminal areas in which passenger trains operate, that FRA modify the limited operations exception in subsection 236.1019(c) to require that all trains be limited to 30 miles per hour rather than to restricted speed, or that non-PTC equipped freight terminals be deemed as other than “main lines” so long as all passenger operations are pursuant to signal indication and at speeds not greater than 30 miles per hour (with speeds reduced to not greater than restricted speed on unsignaled trackage or if the signals should fail).
FRA believes that Amtrak's request is much broader than contemplated by the law. FRA notes that TRRA is a very busy terminal operation. FRA does not believe that the “limited freight operations” concept is in any way applicable under those circumstances. Nor is there any indication in law that FRA was expected to fall back to traditional cost-benefit principles in relation to PTC and scheduled passenger service. However, there are a number of Amtrak routes with limited freight operations that will not otherwise be equipped with PTC because they are operated by other than Class I railroads. Further, there are some Class I lines with less than 5 million gross tons, or no PIH, that also warrant individualized review to the extent Amtrak and the host railroad might elect to propose it.
Accordingly, in response to the Amtrak comments, §§ 236.1019(c)(2) and (c)(3) have been added to the final rule to provide an option by which certain additional types of limited passenger train operations may qualify for a main line track exception where freight operations are also suitably limited and the circumstances could lead to significant hardship and cost that might overwhelm the value of the passenger service provided. In § 236.1019(c)(2), FRA addresses lines where the host is not a Class I freight railroad, describing characteristics of line segments that might warrant relief from PTC. In § 236.1019(c)(2)(i), FRA addresses passenger service involving up to four regularly scheduled passenger trains during a calendar day over a segment of unsignaled track on which less than 15 million gross tons of freight traffic is transported annually. In § 236.1019(c)(2)(ii), FRA addresses passenger service involving up to 12 regularly scheduled passenger trains during a calendar day over a segment of signaled track on which less than 15 million gross tons of freight traffic is transported annually. FRA derived § 236.1019(c)(2) indirectly from discussions in the RSAC in response to comments by Amtrak set forth above. The PTC Working Group proposed an exception that might have been available anywhere an intercity or commuter railroad operated over a line with 5 million gross tons of freight traffic, including Class I lines and the lines of the intercity or commuter railroad. This would have opened the potential for a considerable exception for lines with very light freight density under circumstances not thoroughly explored in the short time available to the working group (e.g., on commuter rail branch lines, low density track segments on Class I railroads, etc.).
Subsequent to the RSAC activities, Amtrak notified FRA that its conversations with Class II and III railroads whose lines had been at the root of the Amtrak comments revealed that some of the situations involved freight traffic exceeding 5 million gross tons, potentially rendering the exception ineffective for this purpose. At the same time, FRA noted that the policy rationale behind the proposed additional exception was related as much to the inherent difficulty associated with PTC installation during the initial period defined by law, given that the railroads identified by Amtrak were for the most part very small operations with limited technical capacity, as well as limited safety exposure. It was clear that in these cases care would need to be taken to analyze collision risk and potentially require mitigations.
Amtrak also provided to FRA a spreadsheet identifying each of its route segments with attributes such as route length, freight tonnage, number of Amtrak trains, and numbers of commuter trains. FRA further reviewed this information in light of Amtrak's request for main track exceptions. FRA noted a number of segments of the Amtrak system on Class I railroads where the number of Amtrak trains was low and the freight tonnage was also low (less than 15 million gross tons). Each of these lines, with the exception of one 33-mile segment, is signalized. FRA further noted that, with both Amtrak and Class I railroad locomotives equipped for PTC, use of partial PTC technology (e.g., monitoring of switches where trains frequently clear) should be available as a mitigation for collision risk. Accordingly, in § 236.1019(c)(3) FRA has provided a further narrow exception for Class I lines carrying no more than four intercity or commuter passenger trains per day and cumulative annual tonnage of less than 15 million gross tons, subject to FRA review. The limit of four trains takes into consideration that it is much less burdensome to equip the wayside of a Class I rail line than to install a full PTC system on a railroad that would not otherwise require one. Again, the exception is not automatic, and FRA's approval of a particular line segment would be discretionary.
The new § 236.1019(d), FRA makes clear that it will carefully review each proposed main track exception and may require that it be supported by appropriate hazard analysis and mitigations. FRA has previously vetted through the RSAC a Collision Hazard Analysis Guide that can be useful for this purpose. If FRA determines that freight operations are not “limited” as a matter of safety exposure or that proposed safety mitigations are inadequate, FRA will deny the exception.
“Small entity” is defined in 5 U.S.C. 601. Section 601(3) defines a “small entity” as having the same meaning as “small business concern” under section 3 of the Small Business Act. This includes any small business concern that is independently owned and operated, and is not dominant in its field of operation. Section 601(4) includes not-for-profit enterprises that are independently owned and operated, and are not dominant in their field of operations within the definition of “small entities.” Additionally, section 601(5) defines as “small entities” governments of cities, counties, towns, townships, villages, school districts, or special districts with populations less than 50,000.
The U.S. Small Business Administration (SBA) stipulates “size standards” for small entities. It provides that the largest a for-profit railroad business firm may be (and still classify as a “small entity”) is 1,500 employees for “Line-Haul Operating” railroads, and 500 employees for “Short-Line Operating” railroads.
SBA size standards may be altered by Federal agencies in consultation with SBA, and in conjunction with public comment. Pursuant to the authority provided to it by SBA, FRA has published a final policy, which formally establishes small entities as railroads that meet the line haulage revenue requirements of a Class III railroad.
The FRA's “universe” of considered entities generally includes only those small entities that can reasonably be expected to be directly regulated by the final rule. One type of small entity is potentially affected by this final rule: railroads. The level of impact on small railroads will vary from railroad to railroad. Class III railroads will be impacted for one or more of the following reasons: (1) They operate on Class I railroad lines that carry PIH materials and are required to have PTC, in which case they will need to equip the portion of their locomotive fleet that operates on such lines; (2) they operate on Amtrak or commuter rail lines, including freight railroad lines that host such service; (3) they host regularly scheduled intercity or commuter rail transportation; or (4) they have at-grade railroad crossings over lines required by RSIA08 to have PTC.
The final rule will apply to small railroads' tracks over which a passenger railroad conducts intercity or commuter operations and locomotives operating on main lines of Class I freight railroads required to have PTC and on railroads conducting intercity passenger or commuter operations. The impact on Class III railroads that operate on Class I railroad lines required to be equipped with PTC will depend on the nature of such operations. Class III railroads often make short moves on Class I railroad lines for interchange purposes. To the extent that their moves do not exceed four per day or 20 miles in length of haul (one way), Class III railroads will be exempt from the requirement to equip the locomotives. However, some Class III railroads operate much more extensively on Class I railroad lines that will be required to have PTC and will have to equip some of their locomotives. It is likely that Class III railroads will dedicate certain locomotives to such service, if they have not done so already. FRA estimates that approximately 55 small railroads will have to equip locomotives with PTC system components because they have trackage rights on Class I freight railroad PIH lines that will be required to have PTC and will not be able to qualify for any of the operational exceptions discussed.
FRA further estimates that 10 small railroads have trackage rights on intercity passenger or commuter railroads or other freight railroads hosting such operations, and will need to equip some locomotives with PTC systems. Half of these will need to equip locomotives anyway, because they also have trackage rights on Class I railroads that haul PIH and would otherwise be required to have PTC.
Thus, a total of 60 railroads will need to equip locomotives. FRA estimates that the average small railroad will need to equip four locomotives, at a per railroad cost of $55,000 each, totaling $220,000, and that the total cost for all 60 small railroads which will need to equip locomotives will be $13,200,000. FRA further estimates that the annual maintenance cost will be 15% of that total, equaling $33,000 per railroad or $1,980,000 total for all small railroads.
In addition, 15 small railroads host commuter or intercity passenger operations on what might be defined as main line track under the accompanying rulemaking; however, only five of these railroads are neither terminal nor port railroads, which tend to be owned and operated by large railroads or port authorities, or subsidiaries of large short
At rail-to-rail crossings where at least one of the intersecting tracks allows operating speeds in excess of 40 miles per hour, the approaching non-PTC line must have a permanent maximum speed limit of 20 miles per hour and either have some type of positive stop enforcement or a split-point derail incorporated into the signal system on the non-PTC route. In the IRFA, FRA incorrectly assumed that the cost of the derail would be borne by the PTC-equipped railroad, and that slowing to 20 miles per hour reflects current practice at most diamond crossings. In response to comments from Class I railroad representatives, FRA has revised its assumption and estimates that roughly half of the cost of derails will be borne by small entities. FRA estimates that five small railroads have rail-to-rail crossings, with two such crossings each, where the newly burdened small railroad will be slowing to 20 miles per hour from a higher track speed. FRA estimates that the average traffic on the newly burdened route is two trains per day, and that the cost to slow from a higher track speed is $30 per train, for a total cost of $60 per crossing per day, a per railroad cost of $120 per day, and a total national cost for all ten small railroads of $600 per day and an annual cost of $43,800 per railroad and a total for all small railroads of $219,000 per year. FRA further estimates that small railroads will pay for derails at five of the ten impacted crossings, at a price per crossing of $80,000, for two sets of derails, one on each side of the crossings, and a total cost of $400,000, with annual maintenance costs of $60,000 (15% of installation cost) total. The initial investment will therefore be $400,000 and the total annual cost will be $279,000. FRA estimates that only five Class III railroads will be affected by this provision, and that they will be railroads not affected by the requirement to equip locomotives, because railroads with equipped locomotives could simply use the PTC system and avoid the requirement to slow down.
This analysis yields a total of 65 affected small entities that may be impacted by implementation of the final rule. FRA requested comments regarding this estimate of small entities potentially impacted, and the only comment was that Class I railroads would not necessarily bear the cost of equipping rail-to-rail crossings with derails.
Class III railroads that host intercity or commuter rail service will need to file implementation plans, whether or not they directly procure or manage installation of the PTC system. FRA believes that, although the implementation plan must be jointly filed by the small host railroad and passenger tenant railroad, the cost of these plans will be borne by the passenger railroads, because under typical trackage rights agreements, the passenger railroads are responsible for any costs that would not exist in the absence of the passenger operations. Clearly, the Class III railroads would not be required to install PTC in the absence of passenger traffic, so any costs the Class III railroads bear initially will eventually be passed on to the passenger railroads operating on the Class III railroads' lines. FRA believes that only one small entity, as described above, is likely to have PTC installed on its lines. The implementation plan is likely to be an extension of the passenger railroad's plan, and the marginal cost will be the cost of tailoring the plan to the host railroad, which will be borne by the passenger railroad, and maintaining copies of the plan at the host railroad, which FRA estimates to be approximately $1,000 per year.
The total cost to small entities will include the initial cost of equipping locomotives, $13,200,000, and $400,000 to equip diamond crossings; annual costs of $1,980,000 for maintenance of locomotive systems; $219,000 due to operating speed restrictions at diamond crossings; $60,000 to maintain diamond crossings; and $1,000 to maintain a copy of the PTC implementation plan. The total annual costs to small entities after initial acquisition will be $2,260,000 ($1,980,000 + $219,000 + $60,000 + $1,000). Individual railroads affected will either face an initial cost of $220,000 to equip locomotives, and an annual cost of $33,000 to maintain the PTC systems on those locomotives, or will face a per railroad cost of $80,000 to equip a diamond crossing, $12,000 per year to maintain a diamond crossing, and $43,800 per year to slow at diamond crossings. No railroad will face both sets of costs, because if its locomotives are equipped, they will not need to slow down at diamond crossings, nor would the crossings need to be equipped with derails.
FRA is unaware of any significant alternatives that would meet the intent of RSIA08 and that would minimize the economic impact on small entities. FRA is exercising its discretion to provide the greatest flexibility for small entities available under RSIA08 by allowing operations of unequipped trains operated by small entities on the main lines of Class I railroads, and by defining main track on passenger railroads to avoid imposing undue burdens on small entities. The definition of passenger main track was adopted based on PTC Working Group recommendations that were backed strongly by representatives of small railroads. FRA added further, more expansive exclusions from main track for passenger railroads in the final rule. The provisions permitting operations of unequipped trains of Class I railroads exceeded the maximum flexibility for which the PTC Working Group could reach a consensus. FRA requested comments on this finding of no significant alternative related to small entities, but received no such comments.
The process by which this final rule was developed provided outreach to small entities. As noted earlier in the preamble, this notice was developed in consultation with industry representatives via the RSAC, which includes small railroad representatives. From January to April 2009, FRA met with the entire PTC Working Group five times over the course of twelve days. This PTC Working Group established a task force to focus on issues specific to short line and regional railroads. The discussions yielded many insights and this final rule takes into account the concerns expressed by small railroads during the deliberations. The PTC Working Group had further discussions after publication of the NPRM, on August 31, 2009, and September 1 and 2, 2009, related to the impact on small entities and on passenger railroads
The information collection requirements in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
All estimates include the time for reviewing instructions; searching existing data sources; gathering or maintaining the needed data; and reviewing the information.
Organizations and individuals desiring to submit comments on the collection of information requirements should direct them to the Office of Management and Budget, Office of Information and Regulatory Affairs, Washington, DC 20503,
OMB is required to make a decision concerning the collection of information requirements contained in this direct final rule between 30 and 60 days after publication of this document in the
FRA cannot impose a penalty on persons for violating information collection requirements which do not display a current OMB control number, if required. FRA intends to obtain current OMB control numbers for any new information collection requirements resulting from this rulemaking action prior to the effective date of this direct final rule. The OMB control number, when assigned, will be announced by separate notice in the
This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, “Federalism.”
As discussed earlier in the preamble, this final rule would provide regulatory guidance and performance standards for the development, testing, implementation, and use of Positive Train Control (PTC) systems for railroads mandated by the Rail Safety Improvement Act of 2008.
Executive Order 13132 requires FRA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” Policies that have “federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, the agency may not issue a regulation with Federalism implications that imposes substantial direct compliance costs and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or the agency consults with State and local government officials early in the process of developing the regulation. Where a regulation has Federalism implications and preempts State law, the agency seeks to consult with State and local officials in the process of developing the regulation.
FRA has determined that this final rule would not have substantial direct effects on the states, on the relationship between the national government and the states, nor on the distribution of power and responsibilities among the various levels of government. In addition, FRA has determined that this final rule, which is required by the Rail Safety Improvement Act of 2008, would not impose any direct compliance costs on state and local governments. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.
However, this final rule will have preemptive effect. Section 20106 of Title 49 of the United States Code provides that States may not adopt or continue in effect any law, regulation, or order related to railroad safety or security that covers the subject matter of a regulation prescribed or order issued by the Secretary of Transportation (with respect to railroad safety matters) or the Secretary of Homeland Security (with respect to railroad security matters), except when the State law, regulation, or order qualifies under the local safety or security exception to § 20106. The intent of § 20106 is to promote national uniformity in railroad safety and security standards. 49 U.S.C. 20106(a)(1). Thus, subject to a limited exception for essentially local safety or security hazards, this final rule would establish a uniform federal safety standard that must be met, and state requirements covering the same subject matter would be displaced, whether those state requirements are in the form of a state law, regulation, order, or common law. Part 236 establishes federal standards of care which preempt state standards of care, but this part does not preempt an action under state law seeking damages for personal injury, death, or property damage alleging that a party has failed to comply with the federal standard of care established by this part, including a plan or program required by this part. Provisions of a plan or program which exceed the requirements of this part are not included in the federal standard of care. The Locomotive Boiler Inspection Act (49 U.S.C. 20701-20703) has been held by the U.S. Supreme Court to preempt the entire field of locomotive safety; therefore, this part preempts any state law, including common law, covering the design, construction, or material of any part of or appurtenance to a locomotive.
In sum, FRA has analyzed this final rule in accordance with the principles and criteria contained in Executive Order 13132. As explained above, FRA has determined that this final rule has no federalism implications, other than the preemption of state laws covering the subject matter of this final rule, which occurs by operation of law under 49 U.S.C. 20106 whenever FRA issues a rule or order. Accordingly, FRA has determined that preparation of a federalism summary impact statement for this proposed rule is not required.
FRA has evaluated this final rule in accordance with its “Procedures for Considering Environmental Impacts” (“FRA's Procedures”) (64 FR 28,545 (May 26, 1999)) as required by the National Environmental Policy Act (42 U.S.C. 4321
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531) (UMRA) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a federal mandate likely to result in the expenditures by state, local or tribal governments, in the aggregate, or by the private sector, of $100 million (adjusted annually for inflation with base year of 1995) or more in any one year. The value equivalent of $100 million in CY 1995, adjusted annual for inflation to CY 2008 levels by the Consumer Price Index for All Urban Consumers (CPI-U) is $141.3 million. The assessment may be included in conjunction with other assessments, as it is in this rulemaking.
FRA is issuing this final rule to provide regulatory guidance and performance standards for the development, testing, implementation, and use of PTC systems for railroads mandated by the Rail Safety Improvement Act of 2008 § 104, Public Law 110-432, 122 Stat. 4854 (Oct. 16, 2008) (codified at 9 U.S.C. 20157), to
FRA received comments asserting that the rule extends beyond the congressional mandates communicated in RSIA08. Even if this assertion was correct, the final rule alone would not create an unfunded mandate in excess of the threshold amount. For instance, some railroads believe that § 236.1029(f)—which requires PTC screen access to every person in the locomotive cab—exceeds the statutory requirements. Certain freight railroads have said that this provision requires a second display unit, which will cost $8,000. AAR estimates that approximately 29,461 second display units would require installation, resulting in a cost of $235,688,000. FRA, however, believes that only 27,598 screens would require installation, totaling $220,784,000.
Certain railroads have also contested § 236.1005(b)(2), which governs the baseline information necessary to determine whether a Class I railroad's track segment shall be equipped with a PTC system. Under that provision, initial PTC territory shall be determined based on 2008 traffic levels. CSXT asserts that this provision will cause it to install PTC on 844 miles of track which will no longer meet the PIH materials threshold or will no longer meet the 5 million gross tons threshold in 2010. According to CSXT, the installation will cost $45,000 per mile (the RIA uses an estimate of $50,000 per mile) for a CSXT estimated cost of almost $38,000,000.
As noted above, FRA believes that these requirements respond directly to the requirements set forth in RSIA08. For instance, to effectuate Congress' intent to prevent incursions into roadway worker zones, it is necessary to require PTC screen access to all crew members in the locomotive cab so that they may perform their respective duties. Sometimes, this may require installation of a second display unit. In its analysis of § 236.1005(b), FRA provides sufficient justification for the baseline level based on the language in the statute, the context of the legislative process, and Congress' intent. If anything, FRA has reduced railroad expenditures by,
In any event, the aforementioned costs borne by the railroads will not exceed $141.3 million or more in any one year. The costs indicated above—totaling between $258,784,000 and $273,688,000, depending upon whether one relies on AAR's or FRA's second screen estimates—would be incurred over a period of several years. Even if FRA were to add the costs of paperwork filings, which FRA estimates to each have a one time cost of approximately $20,000, the annual monetary threshold will likely not be met.
Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” 66 FR 28,355 (May 22, 2001). Under the Executive Order, a “significant energy action” is defined as any action by an agency (normally published in the
FRA wishes to inform all interested parties that anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the document (or signing the document), if submitted on behalf of an association, business, labor union, etc.). Interested parties may also review DOT's complete Privacy Act Statement in the
Event recorders, Locomotives, Railroad safety.
Highway safety, Penalties, Railroad safety, Reporting and recordkeeping requirements.
Administrative practice and procedure, Penalties, Railroad safety, Reporting and recordkeeping requirements.
Penalties, Positive Train Control, Railroad safety, Reporting and recordkeeping requirements.
49 U.S.C. 20103, 20107, 20133, 20137-38, 20143, 20701-03, 21301-02, 21304; 28 U.S.C. 2401, note; and 49 CFR 1.49(c), (m).
(b) * * *
(3) * * *
(xxv) Safety-critical train control data routed to the locomotive engineer's display with which the engineer is required to comply, specifically including text messages conveying mandatory directives and maximum authorized speed. The format, content, and proposed duration for retention of such data shall be specified in the Product Safety Plan or PTC Safety Plan submitted for the train control system under subparts H or I, respectively, of part 236 of this chapter, subject to FRA approval under this paragraph. If it can be calibrated against other data required by this part, such train control data may, at the election of the railroad, be
(4) * * *
(xxi) Safety-critical train control data routed to the locomotive engineer's display with which the engineer is required to comply, specifically including text messages conveying mandatory directives and maximum authorized speed. The format, content, and proposed duration for retention of such data shall be specified in the Product Safety Plan or PTC Safety Plan submitted for the train control system under subparts H or I, respectively, of part 236 of this chapter, subject to FRA approval under this paragraph. If it can be calibrated against other data required by this part, such train control data may, at the election of the railroad, be retained in a separate certified crashworthy memory module.
49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; and 49 CFR 1.49.
(b)
(2) Highway-rail grade crossing warning systems, subsystems, or components that are processor-based and that are first placed in service after June 6, 2005, which contain new or novel technology, or which provide safety-critical data to a railroad signal or train control system that is governed by part 236, subpart H or I, of this chapter, shall also comply with those requirements. New or novel technology refers to a technology not previously recognized for use as of March 7, 2005.
(c)
(f)
49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; and 49 CFR 1.49.
(a) * * *
(4) Removal from service not to exceed 6 months of block signal system, interlocking, or traffic control system necessitated by catastrophic occurrence such as derailment, flood, fire, or hurricane; or
(5) Removal of an intermittent automatic train stop system in conjunction with the implementation of a positive train control system approved by FRA under subpart I of part 236 of this chapter.
(b) * * *
(2) Removal of electric or mechanical lock, or signal used in lieu thereof, from hand-operated switch in automatic block signal or traffic control territory where train speed over the switch does not exceed 20 miles per hour; or
(3) Removal of electric or mechanical lock, or signal used in lieu thereof, from hand-operated switch in automatic block signal or traffic control territory where trains are not permitted to clear the main track at such switch.
(c) * * *
(25) The temporary or permanent arrangement of existing systems necessitated by highway-rail grade crossing separation construction. Temporary arrangements shall be removed within 6 months following completion of construction.
49 U.S.C. 20102-20103, 20107, 20133, 20141, 20157, 20301-20303, 20306, 20501-20505, 20701-20703, 21301-21302, 21304; 28 U.S.C. 2461, note; and 49 CFR 1.49.
(a) Except as provided in paragraph (b) of this section, this part applies to all railroads and any person as defined in paragraph (f) of this section.
(c)(1) Prior to January 17, 2012, where a passenger train is operated at a speed of 60 or more miles per hour, or a freight train is operated at a speed of 50 or more miles per hour—
(i) A block signal system complying with the provisions of this part shall be installed; or
(ii) A manual block system shall be placed permanently in effect that shall conform to the following conditions:
(A) A passenger train shall not be admitted to a block occupied by another train except when absolutely necessary and then only by operating at restricted speed;
(B) No train shall be admitted to a block occupied by a passenger train except when absolutely necessary and then only by operating at restricted speed;
(C) No train shall be admitted to a block occupied by an opposing train except when absolutely necessary and then only while one train is stopped and the other is operating at restricted speed; and
(D) A freight train, including a work train, may be authorized to follow a freight train, including a work train, into a block and then only when the following train is operating at restricted speed.
(2) On and after January 17, 2012, where a passenger train is permitted to operate at a speed of 60 or more miles per hour, or a freight train is permitted to operate at a speed of 50 or more miles per hour, a block signal system complying with the provisions of this part shall be installed, unless an FRA approved PTC system meeting the requirements of this part for the subject speed and other operating conditions is installed.
(d)(1) Prior to December 31, 2015, where any train is permitted to operate at a speed of 80 or more miles per hour, an automatic cab signal, automatic train stop, or automatic train control system complying with the provisions of this part shall be installed, unless an FRA approved PTC system meeting the requirements of this part for the subject speed and other operating conditions, is installed.
(2) On and after December 31, 2015, where any train is permitted to operate at a speed of 80 or more miles per hour, a PTC system complying with the provisions of subpart I shall be installed and operational, unless FRA approval to continue to operate with an automatic cab signal, automatic train stop, or automatic train control system complying with the provisions of this part has been justified to, and approved by, the Associate Administrator.
(3) Subpart H of this part sets forth requirements for voluntary installation of PTC systems, and subpart I of this part sets forth requirements for mandated installation of PTC systems, each under conditions specified in their respective subpart.
(e) Nothing in this section authorizes the discontinuance of a block signal system, interlocking, traffic control system, automatic cab signal, automatic train stop or automatic train control system, or PTC system, without approval by the FRA under part 235 of this title. However, a railroad may apply for approval of discontinuance or material modification of a signal or train control system in connection with a request for approval of a Positive Train Control Development Plan (PTCDP) or Positive Train Control Safety Plan (PTCSP) as provided in subpart I of this part.
(i)
(2) This part establishes federal standards of care for railroad signal and train control systems. This part does not preempt an action under state law seeking damages for personal injury, death, or property damage alleging that a party has failed to comply with the federal standard of care established by this part, including a plan or program required by this part. Provisions of a plan or program which exceed the requirements of this part are not included in the federal standard of care.
(3) Under 49 U.S.C. 20701-20703, issuance of these regulations preempts the field of locomotive safety, extending to the design, the construction, and the material of every part of the locomotive and tender and all appurtenances thereof.
(b) Approach or time locking shall be provided and locking may be released either automatically, or by the control operator, but only after the control circuits of signals governing movement in either direction over the switch and which display aspects with indications more favorable than “proceed at restricted speed” have been opened directly or by shunting of track circuit.
(c) Where a signal is used in lieu of electric or mechanical lock to govern movements from auxiliary track to signaled track, the signal shall not display an aspect to proceed until after the control circuits of signals governing movement on main track in either direction over the switch have been opened, and either the approach locking circuits to the switch are unoccupied or a predetermined time interval has expired.
(e) * * *
(1) * * * The total risk assessment must have a supporting sensitivity analysis. The analysis must confirm that the risk metrics of the system are not negatively affected by sensitivity analysis input parameters including, for example, component failure rates, human factor error rates, and variations in train traffic affecting exposure. In this context, “negatively affected” means that the final residual risk metric does not exceed that of the base case or that which has been otherwise established through MTTHE target. The sensitivity analysis must document the sensitivity to worst case failure scenarios. * * *
(2) * * *
(i) In all cases exposure must be expressed as total train miles traveled per year over the relevant railroad infrastructure. Consequences must identify the total cost, including fatalities, injuries, property damage, and other incidental costs, such as potential consequences of hazardous materials involvement, resulting from preventable accidents associated with the function(s) performed by the system.
(a) This subpart prescribes minimum, performance-based safety standards for PTC systems required by 49 U.S.C. 20157, this subpart, or an FRA order, including requirements to ensure that the development, functionality,
(b) Each railroad may prescribe additional or more stringent rules, and other special instructions, that are not inconsistent with this subpart.
(c) This subpart does not exempt a railroad from compliance with any requirement of subparts A through H of this part or parts 233, 234, and 235 of this chapter, unless:
(1) It is otherwise explicitly excepted by this subpart; or
(2) The applicable PTCSP, as defined under § 236.1003 and approved by FRA under § 236.1015, provides for such an exception per § 236.1013.
(a) Definitions contained in subparts G and H of this part apply equally to this subpart.
(b) The following definitions apply to terms used only in this subpart unless otherwise stated:
(1) Of a Class I railroad, as documented in current timetables filed by the Class I railroad with the FRA under § 217.7 of this title, over which 5,000,000 or more gross tons of railroad traffic is transported annually; or
(2) Used for regularly scheduled intercity or commuter rail passenger service, as defined in 49 U.S.C. 24102, or both. Tourist, scenic, historic, or excursion operations as defined in part 238 of this chapter are not considered intercity or commuter passenger service for purposes of this part.
(a)
(1) Reliably and functionally prevent:
(i) Train-to-train collisions—including collisions between trains operating over rail-to-rail at-grade crossings in accordance with the following risk-based table or alternative arrangements providing an equivalent level of safety as specified in an FRA approved PTCSP:
(ii) Overspeed derailments, including derailments related to railroad civil engineering speed restrictions, slow orders, and excessive speeds over switches and through turnouts;
(iii) Incursions into established work zone limits without first receiving appropriate authority and verification from the dispatcher or roadway worker in charge, as applicable and in accordance with part 214 of this chapter; and
(iv) The movement of a train through a main line switch in the improper position as further described in paragraph (e) of this section.
(2) Include safety-critical integration of all authorities and indications of a wayside or cab signal system, or other similar appliance, method, device, or system of equivalent safety, in a manner by which the PTC system shall provide associated warning and enforcement to the extent, and except as, described and justified in the FRA approved PTCDP or PTCSP, as applicable;
(3) As applicable, perform the additional functions specified in this subpart;
(4) Provide an appropriate warning or enforcement when:
(i) A derail or switch protecting access to the main line required by § 236.1007, or otherwise provided for in the applicable PTCSP, is not in its derailing or protecting position, respectively;
(ii) A mandatory directive is issued associated with a highway-rail grade crossing warning system malfunction as required by §§ 234.105, 234.106, or 234.107;
(iii) An after-arrival mandatory directive has been issued and the train or trains to be waited on has not yet passed the location of the receiving train;
(iv) Any movable bridge within the route ahead is not in a position to allow permissive indication for a train movement pursuant to § 236.312; and
(v) A hazard detector integrated into the PTC system that is required by paragraph (c) of this section, or otherwise provided for in the applicable PTCSP, detects an unsafe condition or transmits an alarm; and
(5) Limit the speed of passenger and freight trains to 59 miles per hour and 49 miles per hour, respectively, in areas without broken rail detection or equivalent safeguards.
(b)
(i) Main line over which is transported any quantity of material poisonous by inhalation (PIH), including anhydrous ammonia, as defined in §§ 171.8, 173.115 and 173.132 of this title;
(ii) Main line used for regularly provided intercity or commuter passenger service, except as provided in § 236.1019; and
(iii) Additional line of railroad as required by the applicable FRA approved PTCIP, this subpart, or an FRA order requiring installation of a PTC system by that date.
(2)
(i) The traffic density threshold of 5 million gross tons shall be based upon calendar year 2008 gross tonnage, except to the extent that traffic may fall below 5 million gross tons for two consecutive calendar years and a PTCIP or an RFA reflecting this change is filed and approved under paragraph (b)(4) of this section and, if applicable, § 236.1021.
(ii) The presence or absence of any quantity of PIH hazardous materials shall be determined by whether one or more cars containing such product(s) was transported over the track segment in calendar year 2008 or prior to the filing of the PTCIP, except to the extent that the PTCIP or RFA justifies, under paragraph (b)(4) of this section, removal of the subject track segment from the PTCIP listing of lines to be equipped.
(3)
(i) If rail traffic exceeds 5 million gross tons in any year after 2008, the tonnage shall be calculated for the preceding two calendar years and if the total tonnage for those two calendar years exceeds 10 million gross tons, a PTCIP or its amendment is required.
(ii) If PIH traffic is carried on a track segment as a result of a request for rail service or rerouting warranted under part 172 of this title, and if the line carries in excess of 5 million gross tons of rail traffic as determined under this paragraph, a PTCIP or its amendment is required. This does not apply when temporary rerouting is authorized in accordance with paragraph (g) of this section.
(iii) Once a railroad is notified by FRA that its RFA filed in accordance with this paragraph has been approved, the railroad shall equip the line with the applicable PTC system by December 31, 2015, or within 24 months, whichever is later.
(4)
(i)
(A) FRA will approve the exclusion if, based upon data in the docket of the proceeding, FRA finds that it would be consistent with safety as further provided in this paragraph.
(
(
(
(
(
(B) [Reserved]
(ii)
(B) Absent special circumstances related to specific hazards presented by operations on the line segment, FRA will approve a request for relief under this paragraph for a rail line segment:
(
(
(
(
(C) FRA will also consider, and may approve, requests for relief under this paragraph for additional line segments where each such segment carries less than 15 million gross tons annually and where it is established to the satisfaction of the Associate Administrator that risk mitigations will be applied that will ensure that risk of a release of PIH materials is negligible.
(D) Failure to submit sufficient information will result in the denial of any request under this paragraph (b)(4)(ii). If the request is granted, on and after the date the line would have otherwise been required to be equipped under the schedule contained in the PTCIP and approved by FRA, operations on the line shall be conducted in accordance with any conditions attached to the grant, including implementation of proposed mitigations as applicable.
(5)
(6)
(c)
(2) The applicable PTCSP must provide for receipt and presentation to the locomotive engineer and other train crew members of warnings from any additional hazard detectors using the PTC data network, onboard displays, and audible alerts. If the PTCSP so provides, the action to be taken by the system and by the crew members shall be specified.
(3) The PTCDP (as applicable) and PTCSP for any new service described in § 236.1007 to be conducted above 90 miles per hour shall include a hazard analysis describing the hazards relevant to the specific route(s) in question (e.g., potential for track obstruction due to events such as falling rock or undermining of the track structure due to high water or displacement of a bridge over navigable waters), the basis for decisions concerning hazard detectors provided, and the manner in which such additional hazard detectors will be interfaced with the PTC system.
(d)
(i) Record safety-critical train control data routed to the locomotive engineer's display that the engineer is required to comply with;
(ii) Specifically include text messages conveying mandatory directives, maximum authorized speeds, PTC system brake warnings, PTC system brake enforcements, and the state of the PTC system (e.g., cut in, cut out, active, or failed); and
(iii) Include examples of how the captured data will be displayed during playback along with the format, content, and data retention duration requirements specified in the PTCSP submitted and approved pursuant to this paragraph. If such train control data can be calibrated against other data required by this part, it may, at the election of the railroad, be retained in a separate memory module.
(2) Each lead locomotive, as defined in part 229, manufactured and in service after October 1, 2009, that is equipped and operating with a PTC system required by this subpart, shall be equipped with an event recorder memory module meeting the crash hardening requirements of § 229.135 of this chapter.
(3) Nothing in this subpart excepts compliance with any of the event recorder requirements contained in § 229.135 of this chapter.
(e)
(1) A PTC system shall enforce restricted speed over any switch:
(i) Where train movements are made with the benefit of the indications of a wayside or cab signal system or other similar appliance, method, device, or system of equivalent safety proposed to FRA and approved by the Associate Administrator in accordance with this part; and
(ii) Where wayside or cab signal system or other similar appliance, method, device, or system of equivalent safety, requires the train to be operated at restricted speed.
(2) A PTC system shall enforce a positive stop short of any main line switch, and any switch on a siding where the allowable speed is in excess of 20 miles per hour, if movement of the train over the switch:
(i) Is made without the benefit of the indications of a wayside or cab signal system or other similar appliance, method, device, or system of equivalent safety proposed to FRA and approved by the Associate Administrator in accordance with this part; or
(ii) Would create an unacceptable risk. Unacceptable risk includes conditions when traversing the switch, even at low speeds, could result in direct conflict with the movement of another train (including a hand-operated crossover between main tracks, a hand-operated crossover between a main track and an adjoining siding or auxiliary track, or a hand-operated switch providing access to another subdivision or branch line, etc.).
(3) A PTC system required by this subpart shall be designed, installed, and maintained to perform the switch position detection and enforcement described in paragraphs (e)(1) and (e)(2) of this section, except as provided for and justified in the applicable, FRA approved PTCDP or PTCSP.
(4) The control circuit or electronic equivalent for all movement authorities over any switches, movable-point frogs, or derails shall be selected through circuit controller or functionally equivalent device operated directly by the switch points, derail, or by switch locking mechanism, or through relay or electronic device controlled by such circuit controller or functionally equivalent device, for each switch, movable-point frog, or derail in the route governed. Circuits or electronic equivalent shall be arranged so that any movement authorities less restrictive than those prescribed in paragraphs (e)(1) and (e)(2) of this section can only be provided when each switch, movable-point frog, or derail in the route governed is in proper position, and shall be in accordance with subparts A through G of this part, unless it is otherwise provided in a PTCSP approved under this subpart.
(f)
(1) Operating conditions under which trains are required by signal indication or operating rule to:
(i) Stop before continuing; or
(ii) Reduce speed to restricted speed and continue at restricted speed until encountering a more favorable indication or as provided by operating rule.
(2) Operation of trains within the limits of a joint mandatory directive.
(g)
(1)
(i) The rerouting is applicable only until the emergency condition ceases to exist and for no more than 14 consecutive calendar days, unless otherwise extended by approval of the Associate Administrator;
(ii) The railroad provides written or telephonic notification to the applicable Regional Administrator of the information listed in paragraph (i) of this section within one business day of the beginning of the rerouting made in accordance with this paragraph; and
(iii) The conditions contained in paragraph (j) of this section are followed.
(2)
(i) The maintenance period does not exceed 30 days;
(ii) A request is filed with the applicable Regional Administrator in accordance with paragraph (i) of this section no less than 10 business days prior to the planned rerouting; and
(iii) The conditions contained in paragraph (j) of this section are followed.
(h)
(2) In the event the temporary rerouting described in paragraph (g)(2) of this section is to exceed 30 consecutive calendar days:
(i) The railroad shall provide a request in accordance with paragraphs (i) and (j) of this section with the Associate Administrator no less than 10 business days prior to the planned rerouting; and
(ii) The rerouting shall not commence until receipt of approval from the Associate Administrator.
(i)
(1) The dates that such temporary rerouting will occur;
(2) The number and types of trains that will be rerouted;
(3) The location of the affected tracks; and
(4) A description of the necessity for the temporary rerouting.
(j)
(1) Where a train not equipped with a PTC system is rerouted onto a track equipped with a PTC system, or a train not equipped with a PTC system that is compatible and functionally responsive to the PTC system utilized on the line to which the train is being rerouted, the train shall be operated in accordance with § 236.1029; or
(2) Where any train is rerouted onto a track not equipped with a PTC system, the train shall be operated in accordance with the operating rules applicable to the line on which the train is rerouted.
(k)
(a) Except as provided in paragraph (b) of this section, each train operating on any track segment equipped with a PTC system shall be controlled by a locomotive equipped with an onboard PTC apparatus that is fully operative and functioning in accordance with the applicable PTCSP approved under this subpart.
(b)
(2) Each railroad shall adhere to its PTCIP and shall report, on April 16, of 2011, 2012, 2013, and 2014, its progress toward achieving the goals set under paragraph (b)(1) of this section. In the event any annual goal is not achieved, the railroad shall further report the actions it is taking to ensure achievement of subsequent annual goals.
(3) On and after December 31, 2015, a train controlled by a locomotive with an onboard PTC apparatus that has failed en route is permitted to operate in accordance with § 236.1029.
(4) A train operated by a Class II or Class III railroad, including a tourist or excursion railroad, and controlled by a locomotive not equipped with an onboard PTC apparatus is permitted to operate on a PTC-operated track segment:
(i) That either:
(A) Has no regularly scheduled intercity or commuter passenger rail traffic; or
(B) Has regularly scheduled intercity or commuter passenger rail traffic and the applicable PTCIP permits the operation of a train operated by a Class II or III railroad and controlled by a locomotive not equipped with an onboard PTC apparatus;
(ii) Where operations are restricted to four or less such unequipped trains per day, whereas a train conducting a “turn” operation (e.g., moving to a point of interchange to drop off or pick up cars and returning to the track owned by a Class II or III railroad) is considered two trains for this purpose; and
(iii) Where each movement shall either:
(A) Not exceed 20 miles in length; or
(B) To the extent any movement exceeds 20 miles in length, such movement is not permitted without the controlling locomotive being equipped with an onboard PTC system after December 31, 2020, and each applicable Class II or III railroad shall report to FRA its progress in equipping each necessary locomotive with an onboard PTC apparatus to facilitate continuation of the movement. The progress reports shall be filed not later than December 31, 2017 and, if all necessary locomotives are not yet equipped, on December 31, 2019.
(c) When a train movement is conducted under the exceptions described in paragraph (b)(4) of this section, that movement shall be made in accordance with § 236.1029.
(a) A PTC railroad that conducts a passenger operation at or greater than 60 miles per hour or a freight operation at or greater than 50 miles per hour shall have installed a PTC system including or working in concert with technology that includes all of the safety-critical functional attributes of a block signal system meeting the requirements of this part, including appropriate fouling circuits and broken rail detection (or equivalent safeguards).
(b) In addition to the requirements of paragraph (a) of this section, a host railroad that conducts a freight or passenger operation at more than 90 miles per hour shall:
(1) Have an approved PTCSP establishing that the system was designed and will be operated to meet the fail-safe operation criteria described in Appendix C to this part; and
(2) Prevent unauthorized or unintended entry onto the main line from any track not equipped with a PTC system compliant with this subpart by placement of split-point derails or equivalent means integrated into the PTC system; and
(3) Comply with § 236.1029(c).
(c) In addition to the requirements of paragraphs (a) and (b) of this section, a host railroad that conducts a freight or passenger operation at more than 125 miles per hour shall have an approved PTCSP accompanied by a document (“HSR-125”) establishing that the system:
(1) Will be operated at a level of safety comparable to that achieved over the 5 year period prior to the submission of the PTCSP by other train control systems that perform PTC functions required by this subpart, and which have been utilized on high-speed rail systems with similar technical and operational characteristics in the United States or in foreign service, provided that the use of foreign service data must be approved by the Associate Administrator before submittal of the PTCSP; and
(2) Has been designed to detect incursions into the right-of-way, including incidents involving motor vehicles diverting from adjacent roads and bridges, where conditions warrant.
(d) In addition to the requirements of paragraphs (a) through (c) of this section, a host railroad that conducts a freight or passenger operation at more than 150 miles per hour, which is governed by a Rule of Particular Applicability, shall have an approved PTCSP accompanied by a HSR-125 developed as part of an overall system safety plan approved by the Associate Administrator.
(e) A railroad providing existing high-speed passenger service may request in its PTCSP that the Associate Administrator excuse compliance with one or more requirements of this section upon a showing that the subject service has been conducted with a high level of safety.
(a)
(2) After April 16, 2010, a host railroad shall file:
(i) A PTCIP if it becomes a host railroad of a main line track segment for which it is required to implement and operate a PTC system in accordance with § 236.1005(b); or
(ii) A request for amendment (“RFA”) of its current and approved PTCIP in accordance with § 236.1021 if it intends to:
(A) Initiate a new category of service (i.e., passenger or freight); or
(B) Add, subtract, or otherwise materially modify one or more lines of railroad for which installation of a PTC system is required.
(3) The host and tenant railroad(s) shall jointly file a PTCIP that addresses shared track:
(i) If the host railroad is required to install and operate a PTC system on a segment of its track; and
(ii) If the tenant railroad that shares the same track segment would have been required to install a PTC system if the host railroad had not otherwise been required to do so.
(4) If railroads required to file a joint PTCIP are unable to jointly file a PTCIP in accordance with paragraphs (a)(1) and (a)(3) of this section, then each railroad shall:
(i) Separately file a PTCIP in accordance with paragraph (a)(1);
(ii) Notify the Associate Administrator that the subject railroads were unable to agree on a PTCIP to be jointly filed;
(iii) Provide the Associate Administrator with a comprehensive list of all issues not in agreement between the railroads that would prevent the subject railroads from jointly filing the PTCIP; and
(iv) Confer with the Associate Administrator to develop and submit a PTCIP mutually acceptable to all subject railroads.
(b)
(1) An unmodified Type Approval previously issued by the Associate Administrator in accordance with § 236.1013 or § 236.1031(b) with its associated docket number;
(2) A PTCDP requesting a Type Approval for:
(i) A PTC system that does not have a Type Approval; or
(ii) A PTC system with a previously issued Type Approval that requires one or more variances;
(3) A PTCSP subject to the conditions set forth in paragraph (c) of this section, with or without a Type Approval; or
(4) A document attesting that a Type Approval is not necessary since the host railroad has no territory for which a PTC system is required under this subpart.
(c)
(1) A provisional approval of a PTCIP, unless otherwise extended by the Associate Administrator, is valid for a period of 270 days from the date of approval by the Associate Administrator.
(2) The railroad must submit an updated PTCIP with either a complete PTCDP as defined in § 236.1013(a), an updated PTCIP referencing an already approved Type Approval, or a full PTCSP within 270 days after the “Provisional Approval.”
(i) Within 90 days of receipt of an updated PTCIP that was submitted with an NPI, the Associate Administrator will approve or disapprove of the updated PTCIP and notify in writing the affected railroad. If the updated PTCIP is not approved, the notification will include the plan's deficiencies. Within 30 days of receipt of that notification, the railroad or other entity that submitted the plan shall correct all deficiencies and resubmit the plan in accordance with this section and § 236.1011, as applicable.
(ii) If an update to a “Provisionally Approved” PTCIP is not received by the Associate Administrator by the end of the period indicated in this paragraph, the “Provisional Approval” given to the PTCIP is automatically revoked. The revocation is retroactive to the date the original PTCIP and NPI were first submitted to the Associate Administrator.
(d)
(1) A PTC System Certification for a PTC system may be obtained by submitting an acceptable PTCSP. If the PTC system is the subject of a Type Approval, the safety case elements contained in the PTCDP may be incorporated by reference into the PTCSP, subject to finalization of the human factors analysis contained in the PTCDP.
(2) Each PTCSP requirement under § 236.1015 shall be supported by information and analysis sufficient to establish that the requirements of this subpart have been satisfied.
(3) If the Associate Administrator finds that the PTCSP and supporting documentation support a finding that the system complies with this part, the Associate Administrator may approve the PTCSP. If the Associate Administrator approves the PTCSP, the railroad shall receive PTC System Certification for the subject PTC system and shall implement the PTC system according to the PTCSP.
(4) A required PTC system shall not:
(i) Be used in service until it receives from FRA a PTC System Certification; and
(ii) Receive a PTC System Certification unless FRA receives and approves an applicable:
(A) PTCSP; or
(B) Request for Expedited Certification (REC) as defined by § 236.1031(a).
(e)
(2) All materials filed in accordance with this subpart must be in the English language, or have been translated into English and attested as true and correct.
(3) Each filing referenced in this section may include a request for full or partial confidentiality in accordance with § 209.11 of this chapter. If confidentiality is requested as to a portion of any applicable document, then in addition to the filing requirements under § 209.11 of this chapter, the person filing the document shall also file a copy of the original unredacted document, marked to indicate which portions are redacted in the document's confidential version without obscuring the original document's contents.
(f)
(2) Upon request by FRA, the railroad requesting a Type Approval or PTC System Certification must engage in field testing or independent assessment performed in accordance with § 236.1035 or § 236.1017, respectively, to support the assertions made in any of the plans submitted under this subpart. These assertions include any of the plans' content requirements under this subpart.
(g)
(2) After granting a Type Approval or PTC System Certification, FRA may reconsider the Type Approval or PTC System Certification upon revelation of any of the following factors concerning the contents of the PTCDP or PTCSP:
(i) Potential error or fraud;
(ii) Potentially invalidated assumptions determined as a result of in-service experience or one or more unsafe events calling into question the safety analysis supporting the approval.
(3) During FRA's reconsideration in accordance with this paragraph, the PTC system may remain in use if otherwise consistent with the applicable law and regulations and FRA may impose special conditions for use of the PTC system.
(4) After FRA's reconsideration in accordance with this paragraph, FRA may:
(i) Dismiss its reconsideration and continue to recognize the existing FRA approved Type Approval or PTC System Certification;
(ii) Allow continued operations under such conditions the Associate Administrator deems necessary to ensure safety; or
(iii) Revoke the Type Approval or PTC System Certification and direct the railroad to cease operations where PTC systems are required under this subpart.
(h)
(1) Associated with a PTC system for which a Type Approval or PTC System Certification has been requested or provided; or
(2) To determine whether a railroad has been in compliance with this subpart.
(i)
(j)
(1) Within 30 days of receipt of a PTCDP or PTCSP, the Associate Administrator will either acknowledge receipt or acknowledge receipt and request more information.
(2) To the extent practicable, considering the scope, complexity, and novelty of the product or change:
(i) FRA will approve, approve with conditions, or deny the PTCDP within 60 days of the date on which the PTCDP was filed;
(ii) FRA will approve, approve with conditions, or deny the PTCSP within 180 days of the date on which the PTCSP was filed;
(iii) If FRA has not approved, approved with conditions, or denied the PTCDP or PTCSP within the 60-day or 180-day window, as applicable, FRA will provide the submitting party with a statement of reasons as to why the submission has not yet been acted upon and a projected deadline by which an approval or denial will be issued and any further consultations or inquiries will be resolved.
(a)
(1) The functional requirements that the proposed system must meet;
(2) How the PTC railroad intends to comply with §§ 236.1009(c) and (d);
(3) How the PTC system will provide for interoperability of the system between the host and all tenant railroads on the track segments required to be equipped with PTC systems under this subpart and:
(i) Include relevant provisions of agreements, executed by all applicable railroads, in place to achieve interoperability;
(ii) List all methods used to obtain interoperability; and
(iii) Identify any railroads with respect to which interoperability agreements have not been achieved as of the time the plan is filed, the practical obstacles that were encountered that prevented resolution, and the further steps planned to overcome those obstacles;
(4) How, to the extent practical, the PTC system will be implemented to address areas of greater risk to the public and railroad employees before areas of lesser risk;
(5) The sequence and schedule in which track segments will be equipped and the basis for those decisions, and shall at a minimum address the following risk factors by track segment:
(i) Segment traffic characteristics such as typical annual passenger and freight train volume and volume of poison- or toxic-by-inhalation (PIH or TIH) shipments (loads, residue);
(ii) Segment operational characteristics such as current method of operation (including presence or absence of a block signal system), number of tracks, and maximum allowable train speeds, including planned modifications; and
(iii) Route attributes bearing on risk, including ruling grades and extreme curvature;
(6) The following information relating to rolling stock:
(i) What rolling stock will be equipped with PTC technology;
(ii) The schedule to equip that rolling stock by December 31, 2015;
(iii) All documents and information required by § 236.1006; and
(iv) Unless the tenant railroad is filing its own PTCIP, the host railroad's PTCIP shall:
(A) Attest that the host railroad has made a formal written request to each tenant railroad requesting identification of each item of rolling stock to be PTC
(B) Include each tenant railroad's response to the host railroad's written request made in accordance with paragraph (a)(6)(iii)(A) of this section;
(7) The number of wayside devices required for each track segment and the installation schedule to complete wayside equipment installation by December 31, 2015;
(8) Identification of each track segment on the railroad as mainline or non-mainline track. If the PTCIP includes an MTEA, as defined by § 236.1019, the PTCIP should identify the tracks included in the MTEA as main line track with a reference to the MTEA;
(9) To the extent the railroad determines that risk-based prioritization required by paragraph (a)(4) of this section is not practical, the basis for this determination; and
(10) The dates the associated PTCDP and PTCSP, as applicable, will be submitted to FRA in accordance with § 236.1009.
(b)
(1) In its PTCIP a strategy for full deployment of its PTC system, describing the criteria that it will apply in identifying additional rail lines on its own network, and rail lines of entities that it controls or engages in joint operations with, for which full or partial deployment of PTC technologies is appropriate, beyond those required to be equipped under this subpart. Such criteria shall include consideration of the policies established by 49 U.S.C. 20156 (railroad safety risk reduction program), and regulations issued thereunder, as well as non-safety business benefits that may accrue.
(2) In the Technology Implementation Plan of its Risk Reduction Program, when first required to be filed in accordance with 49 U.S.C. 20156 and any regulation promulgated thereunder, a specification of rail lines selected for full or partial deployment of PTC under the criteria identified in its PTCIP.
(3) Nothing in this paragraph shall be construed to create an expectation or requirement that additional rail lines beyond those required to be equipped by this subpart must be equipped or that such lines will be equipped during the period of primary implementation ending December 31, 2015.
(4) As used in this paragraph, “partial implementation” of a PTC system refers to use, pursuant to subpart H of this part, of technology embedded in PTC systems that does not employ all of the functionalities required by this subpart.
(c)
(d)
(e) Upon receipt of a PTCIP, NPI, PTCDP, or PTCSP, FRA posts on its public web site notice of receipt and reference to the public docket in which a copy of the filing has been placed. FRA may consider any public comment on each document to the extent practicable within the time allowed by law and without delaying implementation of PTC systems.
(f) The PTCIP shall be maintained to reflect the railroad's most recent PTC deployment plans until all PTC system deployments required under this subpart are complete.
(a) For a PTC system to obtain a Type Approval from FRA, the PTCDP shall be filed in accordance with § 236.1009 and shall include:
(1) A complete description of the PTC system, including a list of all PTC system components and their physical relationships in the subsystem or system;
(2) A description of the railroad operation or categories of operations on which the PTC system is designed to be used, including train movement density (passenger, freight), operating speeds (including a thorough explanation of intended compliance with § 236.1007), track characteristics, and railroad operating rules;
(3) An operational concepts document, including a list with complete descriptions of all functions which the PTC system will perform to enhance or preserve safety;
(4) A document describing the manner in which the PTC system architecture satisfies safety requirements;
(5) A preliminary human factors analysis, including a complete description of all human-machine interfaces and the impact of interoperability requirements on the same;
(6) An analysis of the applicability to the PTC system of the requirements of subparts A through G of this part that may no longer apply or are satisfied by the PTC system using an alternative method, and a complete explanation of the manner in which those requirements are otherwise fulfilled;
(7) A prioritized service restoration and mitigation plan and a description of the necessary security measures for the system;
(8) A description of target safety levels (e.g., MTTHE for major subsystems as defined in subpart H of this part), including requirements for system availability and a description of all backup methods of operation and any critical assumptions associated with the target levels;
(9) A complete description of how the PTC system will enforce authorities and signal indications;
(10) A description of the deviation which may be proposed under § 236.1029(c), if applicable; and
(11) A complete description of how the PTC system will appropriately and timely enforce all integrated hazard detectors in accordance with § 236.1005(c)(3), if applicable.
(b) If the Associate Administrator finds that the system described in the PTCDP would satisfy the requirements for PTC systems under this subpart and that the applicant has made a reasonable showing that a system built to the stated requirements would achieve the level of safety mandated for such a system under § 236.1015, the Associate Administrator may grant a numbered Type Approval for the system.
(c) Each Type Approval shall be valid for a period of 5 years, subject to automatic and indefinite extension provided that at least one PTC System Certification using the subject PTC system has been issued within that period and not revoked.
(d) The Associate Administrator may prescribe special conditions, amendments, and restrictions to any Type Approval as necessary for safety.
(e) If submitted, an NPI must contain the following information:
(1) A description of the railroad operation or categories of operations on which the proposed PTC system is designed to be used, including train movement density (passenger, freight), operating speeds (including a thorough explanation of intended compliance with § 236.1007), track characteristics, and railroad operating rules;
(2) An operational concepts document, including a list with complete descriptions of all functions
(3) A description of target safety levels (e.g., MTTHE for major subsystems as defined in subpart H of this part), including requirements for system availability and a description of all backup methods of operation and any critical assumptions associated with the target levels;
(4) A complete description of how the proposed PTC system will enforce authorities and signal indications; and
(5) A complete description of how the proposed PTC system will appropriately and timely enforce all integrated hazard detectors in accordance with § 236.1005(c)(3), if applicable.
(a) Before placing a PTC system required under this part in service, the host railroad must submit to FRA a PTCSP and receive a PTC System Certification. If the Associate Administrator finds that the PTCSP and supporting documentation support a finding that the system complies with this part, the Associate Administrator approves the PTCSP and issues a PTC System Certification. Receipt of a PTC System Certification affirms that the PTC system has been reviewed and approved by FRA in accordance with, and meets the requirements of, this part.
(b) A PTCSP submitted under this subpart may reference and utilize in accordance with this subpart any Type Approval previously issued by the Associate Administrator to any railroad, provided that the railroad:
(1) Maintains a continually updated PTCPVL pursuant to § 236.1023;
(2) Shows that the supplier from which they are procuring the PTC system has established and can maintain a quality control system for PTC system design and manufacturing acceptable to the Associate Administrator. The quality control system must include the process for the product supplier or vendor to promptly and thoroughly report any safety-relevant failure and previously unidentified hazards to each railroad using the product; and
(3) Provides the applicable licensing information.
(c) A PTCSP submitted in accordance with this subpart shall:
(1) Include the FRA approved PTCDP or, if applicable, the FRA issued Type Approval;
(2)(i) Specifically and rigorously document each variance, including the significance of each variance between the PTC system and its applicable operating conditions as described in the applicable PTCDP from that as described in the PTCSP, and attest that there are no other such variances; or
(ii) Attest that there are no variances between the PTC system and its applicable operating conditions as described in the applicable PTCDP from that as described in the PTCSP; and
(3) Attest that the system was otherwise built in accordance with the applicable PTCDP and PTCSP and achieves the level of safety represented therein.
(d) A PTCSP shall include the same information required for a PTCDP under § 236.1013(a). If a PTCDP has been filed and approved prior to filing of the PTCSP, the PTCSP may incorporate the PTCDP by reference, with the exception that a final human factors analysis shall be provided. The PTCSP shall contain the following additional elements:
(1) A hazard log consisting of a comprehensive description of all safety-relevant hazards not previously addressed by the vendor or supplier to be addressed during the life-cycle of the PTC system, including maximum threshold limits for each hazard (for unidentified hazards, the threshold shall be exceeded at one occurrence);
(2) A description of the safety assurance concepts that are to be used for system development, including an explanation of the design principles and assumptions;
(3) A risk assessment of the as-built PTC system described;
(4) A hazard mitigation analysis, including a complete and comprehensive description of each hazard and the mitigation techniques used;
(5) A complete description of the safety assessment and Verification and Validation processes applied to the PTC system, their results, and whether these processes address the safety principles described in Appendix C to this part directly, using other safety criteria, or not at all;
(6) A complete description of the railroad's training plan for railroad and contractor employees and supervisors necessary to ensure safe and proper installation, implementation, operation, maintenance, repair, inspection, testing, and modification of the PTC system;
(7) A complete description of the specific procedures and test equipment necessary to ensure the safe and proper installation, implementation, operation, maintenance, repair, inspection, testing, and modification of the PTC system on the railroad and establish safety-critical hazards are appropriately mitigated. These procedures, including calibration requirements, shall be consistent with or explain deviations from the equipment manufacturer's recommendations;
(8) A complete description of any additional warning to be placed in the Operations and Maintenance Manual in the same manner specified in § 236.919 and all warning labels to be placed on equipment as necessary to ensure safety;
(9) A complete description of the configuration or revision control measures designed to ensure that the railroad or its contractor does not adversely affect the safety-functional requirements and that safety-critical hazard mitigation processes are not compromised as a result of any such change;
(10) A complete description of all initial implementation testing procedures necessary to establish that safety-functional requirements are met and safety-critical hazards are appropriately mitigated;
(11) A complete description of all post-implementation testing (validation) and monitoring procedures, including the intervals necessary to establish that safety-functional requirements, safety-critical hazard mitigation processes, and safety-critical tolerances are not compromised over time, through use, or after maintenance (adjustment, repair, or replacement) is performed;
(12) A complete description of each record necessary to ensure the safety of the system that is associated with periodic maintenance, inspections, tests, adjustments, repairs, or replacements, and the system's resulting conditions, including records of component failures resulting in safety-relevant hazards (
(13) A safety analysis to determine whether, when the system is in operation, any risk remains of an unintended incursion into a roadway work zone due to human error. If the analysis reveals any such risk, the PTCDP and PTCSP shall describe how that risk will be mitigated;
(14) A more detailed description of any alternative arrangements as already provided under § 236.1005(a)(1)(i).
(15) A complete description of how the PTC system will enforce authorities and signal indications, unless already completely provided for in the PTCDP;
(16) A description of how the PTCSP complies with § 236.1019(f), if applicable;
(17) A description of any deviation in operational requirements for en route failures as specified under § 236.1029(c), if applicable and unless already completely provided for in the PTCDP;
(18) A complete description of how the PTC system will appropriately and
(19) An emergency and planned maintenance temporary rerouting plan indicating how operations on the subject PTC system will take advantage of the benefits provided under § 236.1005(g) through (k); and
(20) The documents and information required under § 236.1007 and § 236.1033.
(e) The following additional requirements apply to:
(1)
(i) Reliably execute the functions set forth in § 236.1005;
(ii) Obtain at least 80 percent reduction of the risk associated with accidents preventable by the functions set forth in § 236.1005, when all effects of the change associated with the PTC system are taken into account. The supporting risk assessment shall evaluate all intended changes in railroad operations coincident with the introduction of the new system; and
(iii) Maintain a level of safety for each subsequent system modification that is equal to or greater than the level of safety for the previous PTC systems.
(2)
(i) Reliably execute the functions set forth in § 236.1005; and
(ii) Have sufficient documentation to demonstrate that the PTC system, as built, fulfills the safety assurance principles set forth in Appendix C of this part. The supporting risk assessment may be abbreviated as that term is used in subpart H of this part.
(3)
(i) Reliably execute the functions required by § 236.1005 and be demonstrated to do so to FRA's satisfaction; and
(ii) Have a PTCSP establishing, with a high degree of confidence, that the system will not introduce new hazards that have not been mitigated. The supporting risk assessment shall evaluate all intended changes in railroad operations in relation to the introduction of the new system and shall examine in detail the direct and indirect effects of all changes in the method of operations.
(4)
(f) When determining whether the PTCSP fulfills the requirements under paragraph (d) of this section, the Associate Administrator may consider all available evidence concerning the reliability and availability of the proposed system and any and all safety consequences of the proposed changes. In any case where the PTCSP lacks adequate data regarding safety impacts of the proposed changes, the Associate Administrator may request the necessary data from the applicant. If the requested data is not provided, the Associate Administrator may find that potential hazards could or will arise.
(g) If a PTCSP applies to a system designed to replace an existing certified PTC system, the PTCSP will be approved provided that the PTCSP establishes with a high degree of confidence that the new system will provide a level of safety not less than the level of safety provided by the system to be replaced.
(h) When reviewing the issue of the potential data errors (for example, errors arising from data supplied from other business systems needed to execute the braking algorithm, survey data needed for location determination, or mandatory directives issued through the computer-aided dispatching system), the PTCSP must include a careful identification of each of the risks and a discussion of each applicable mitigation. In an appropriate case, such as a case in which the residual risk after mitigation is substantial or the underlying method of operation will be significantly altered, the Associate Administrator may require submission of a quantitative risk assessment addressing these potential errors.
(a) The PTCSP must be supported by an independent third-party assessment when the Associate Administrator concludes that it is necessary based upon the criteria set forth in § 236.913, with the exception that consideration of the methodology used in the risk assessment (§ 236.913(g)(2)(vii)) shall apply only to the extent that a comparative risk assessment was required. To the extent practicable, FRA makes this determination not later than review of the PTCIP and the accompanying PTCDP or PTCSP. If an independent assessment is required, the assessment may apply to the entire system or a designated portion of the system.
(b) If a PTC system is to undergo an independent assessment in accordance with this section, the host railroad may submit to the Associate Administrator a written request that FRA confirm whether a particular entity would be considered an independent third party pursuant to this section. The request should include supporting information identified in paragraph (c) of this section. FRA may request further information to make a determination or provide its determination in writing.
(c) As used in this section, “independent third party” means a technically competent entity responsible to and compensated by the railroad (or an association on behalf of one or more railroads) that is independent of the PTC system supplier and vendor. An entity that is owned or controlled by the supplier or vendor, that is under common ownership or control with the supplier or vendor, or that is otherwise involved in the development of the PTC system is not considered “independent” within the meaning of this section.
(d) The independent third-party assessment shall, at a minimum, consist of the activities and result in the production of documentation meeting the requirements of Appendix F to this part, unless excepted by this part or by FRA order or waiver.
(e) Information provided that has been certified under the auspices of a foreign railroad regulatory entity recognized by the Associate Administrator may, at the Associate Administrator's discretion, be accepted as having been independently verified.
(a)
(b)
(1) The maximum authorized speed for all movements is not greater than 20 miles per hour, and that maximum is enforced by any available onboard PTC equipment within the confines of the yard or terminal;
(2) Interlocking rules are in effect prohibiting reverse movements other than on signal indications without dispatcher permission; and
(3) Either of the following conditions exists:
(i) No freight operations are permitted; or
(ii) Freight operations are permitted but no passengers will be aboard passenger trains within the defined limits.
(c)
(1) The trackage is used for limited operations by at least one passenger railroad subject to at least one of the following conditions:
(i) All trains are limited to restricted speed;
(ii) Temporal separation of passenger and other trains is maintained as provided in paragraph (e) of this section; or
(iii) Passenger service is operated under a risk mitigation plan submitted by all railroads involved in the joint operation and approved by FRA. The risk mitigation plan must be supported by a risk assessment establishing that the proposed mitigations will achieve a level of safety not less than the level of safety that would obtain if the operations were conducted under paragraph (c)(1) or (c)(2) of this section.
(2) Passenger service is operated on a segment of track of a freight railroad that is not a Class I railroad on which less than 15 million gross tons of freight traffic is transported annually and on which one of the following conditions applies:
(i) If the segment is unsignaled and no more than four regularly scheduled passenger trains are operated during a calendar day, or
(ii) If the segment is signaled (e.g., equipped with a traffic control system, automatic block signal system, or cab signal system) and no more than 12 regularly scheduled passenger trains are operated during a calendar day.
(3) Not more than four passenger trains per day are operated on a segment of track of a Class I freight railroad on which less than 15 million gross tons of freight traffic is transported annually.
(d) A limited operations exception under paragraph (c) is subject to FRA review and approval. FRA may require a collision hazard analysis to identify hazards and may require that specific mitigations be undertaken. Operations under any such exception shall be conducted subject to the terms and conditions of the approval. Any main line track exclusion is subject to periodic review.
(e)
(f)
(g)
(a) No changes, as defined by this section, to a PTC system, PTCIP, PTCDP, or PTCSP, shall be made unless:
(1) The railroad files a request for amendment (“RFA”) to the applicable PTCIP, PTCDP, or PTCSP with the Associate Administrator; and
(2) The Associate Administrator approves the RFA.
(b) After approval of an RFA in accordance with paragraph (a) of this section, the railroad shall immediately adopt and comply with the amendment.
(c) In lieu of a separate filing under part 235 of this chapter, a railroad may request approval of a discontinuance or material modification of a signal or train control system by filing an RFA to its PTCIP, PTCDP, or PTCSP with the Associate Administrator.
(d) An RFA made in accordance with this section will not be approved by FRA unless the request includes:
(1) The information listed in § 235.10 of this chapter and the railroad provides FRA upon request any additional information necessary to evaluate the RFA (see § 235.12), including:
(2) The proposed modifications;
(3) The reasons for each modification;
(4) The changes to the PTCIP, PTCDP, or PTCSP, as applicable;
(5) Each modification's effect on PTC system safety;
(6) An approximate timetable for filing of the PTCDP, PTCSP, or both, if the amendment pertains to a PTCIP; and
(7) An explanation of whether each change to the PTCSP is planned or unplanned.
(i) Unplanned changes that affect the Type Approval's PTCDP require submission and approval in accordance with § 236.1013 of a new PTCDP, followed by submission and approval in accordance with § 236.1015 of a new PTCSP for the PTC system.
(ii) Unplanned changes that do not affect the Type Approval's PTCDP require submission and approval of a new PTCSP.
(iii) Unplanned changes are changes affecting system safety that have not been documented in the PTCSP. The impact of unplanned changes on PTC system safety has not yet been determined.
(iv) Planned changes may be implemented after they have undergone suitable regression testing to demonstrate, to the satisfaction of the Associate Administrator, they have been correctly implemented and their implementation does not degrade safety.
(v) Planned changes are changes affecting system safety in the PTCSP and have been included in all required analysis under § 236.1015. The impact of these changes on the PTC system's safety has been incorporated as an integral part of the approved PTCSP safety analysis.
(e) If the RFA includes a request for approval of a discontinuance or material modification of a signal or train control system, FRA will publish a notice in the
(f) When considering the RFA, FRA will review the issue of the discontinuance or material modification and determine whether granting the request is in the public interest and consistent with railroad safety, taking into consideration all changes in the method of operation and system functionalities, both within normal PTC system availability and in the case of a system failed state (unavailable), contemplated in conjunction with installation of the PTC system. The railroad submitting the RFA must, at FRA's request, perform field testing in accordance with § 236.1035 or engage in Verification and Validation in accordance with § 236.1017.
(g) FRA may issue at its discretion a new Type Approval number for a PTC system modified under this section.
(h)
(1) Discontinuance of a PTC system, or other similar appliance or device;
(2) Decrease of the PTC system's limits (e.g., exclusion or removal of a PTC system on a track segment);
(3) Modification of a safety critical element of a PTC system; or
(4) Modification of a PTC system that affects the safety critical functionality of any other PTC system with which it interoperates.
(i)
(1) Removal of a PTC system from track approved for abandonment by formal proceeding;
(2) Removal of PTC devices used to provide protection against unusual contingencies such as landslide, burned bridge, high water, high and wide load, or tunnel protection when the unusual contingency no longer exists;
(3) Removal of the PTC devices that are used on a movable bridge that has been permanently closed by the formal approval of another government agency and is mechanically secured in the closed position for rail traffic; or
(4) Removal of the PTC system from service for a period not to exceed 6 months that is necessitated by catastrophic occurrence such as derailment, flood, fire, or hurricane, or earthquake.
(j)
(1) Decrease of the limits of a PTC system when interlocked switches, derails, or movable-point frogs are not involved;
(2) Removal of an electric or mechanical lock, or signal used in lieu thereof, from hand-operated switch in a PTC system where train speed over such switch does not exceed 20 miles per hour, and use of those devices has not been part of the considerations for approval of a PTCSP; or
(3) Removal of an electric or mechanical lock, or signal used in lieu thereof, from a hand-operated switch in a PTC system where trains are not permitted to clear the main track at such switch and use of those devices has not been a part of the considerations for approval of a PTCSP.
(k)
(1) A modification that is required to comply with an order of the Federal Railroad Administration or any section of part 236 of this title;
(2) Installation of devices used to provide protection against unusual contingencies such as landslide, burned bridges, high water, high and wide loads, or dragging equipment;
(3) Elimination of existing track other than a second main track;
(4) Extension or shortening of a passing siding; or
(5) The temporary or permanent arrangement of existing systems necessitated by highway-rail grade separation construction. Temporary arrangements shall be removed within six months following completion of construction.
(a) Each railroad implementing a PTC system on its property shall establish and continually update a PTC Product Vendor List (PTCPVL) that includes all vendors and suppliers of each PTC system, subsystem, component, and associated product, and process in use system-wide. The PTCPVL shall be made available to FRA upon request.
(b)(1) The railroad shall specify within its PTCSP all contractual arrangements with hardware and software suppliers or vendors for immediate notification between the parties of any and all safety-critical software failures, upgrades, patches, or revisions, as well as any hardware repairs, replacements, or modifications for their PTC system, subsystems, or components.
(2) A vendor or supplier, on receipt of a report of any safety-critical failure to their product, shall promptly notify all other railroads that are using that product, whether or not the other railroads have experienced the reported failure of that safety-critical system, subsystem, or component.
(3) The notification from a supplier to any railroad shall include explanation from the supplier of the reasons for such notification, the circumstances associated with the failure, and any recommended mitigation actions to be taken pending determination of the root cause and final corrective actions.
(c) The railroad shall:
(1) Specify the railroad's process and procedures in its PTCSP for action upon their receipt of notification of safety-critical failure, as well as receipt of a safety-critical upgrade, patch, revision, repair, replacement, or modification.
(2) Identify configuration/revision control measures in its PTCSP that are designed to ensure the safety-functional requirements and the safety-critical hazard mitigation processes are not compromised as a result of any change and that such a change can be audited.
(d) The railroad shall provide to the applicable vendor or supplier the railroad's procedures for action upon notification of a safety-critical failure, upgrade, patch, or revision for the PTC system, subsystem, component, product, or process, and actions to be taken until the faulty system, subsystem, or component has been adjusted, repaired or replaced.
(e) After the product is placed in service, the railroad shall maintain a database of all safety-relevant hazards as set forth in the PTCSP and those that had not previously been identified in the PTCSP. If the frequency of the safety-relevant hazard exceeds the thresholds set forth in the PTCSP, or has not been previously identified in the appropriate risk analysis, the railroad shall:
(1) Notify the applicable vendor or supplier and FRA of the failure, malfunction, or defective condition that decreased or eliminated the safety functionality;
(2) Keep the applicable vendor or supplier and FRA apprised on a continual basis of the status of any and all subsequent failures; and
(3) Take prompt counter measures to reduce or eliminate the frequency of the
(f) Each notification to FRA required by this section shall:
(1) Be made within 15 days after the vendor, supplier, or railroad discovers the failure, malfunction, or defective condition. However, a report that is due on a Saturday or a Sunday may be delivered on the following Monday and one that is due on a holiday may be delivered on the next business day;
(2) Be transmitted in a manner and form acceptable to the Associate Administrator and by the most expeditious method available; and
(3) Include as much available and applicable information as possible, including:
(i) PTC system name and model;
(ii) Identification of the part, component, or system involved, including the part number as applicable;
(iii) Nature of the failure, malfunctions, or defective condition;
(iv) Mitigation taken to ensure the safety of train operation, railroad employees, and the public; and
(v) The estimated time to correct the failure.
(4) In the event that all information required by paragraph (f)(3) of this section is not immediately available, the non-available information shall be forwarded to the Associate Administrator as soon as practicable in supplemental reports.
(g) Whenever any investigation of an accident or service difficulty report shows that a PTC system or product is unsafe because of a manufacturing or design defect, the railroad and its vendor or supplier shall, upon request of the Associate Administrator, report to the Associate Administrator the results of its investigation and any action taken or proposed to correct that defect.
(h) PTC system and product suppliers and vendors shall:
(1) Promptly report any safety-relevant failures or defective conditions, previously unidentified hazards, and recommended mitigation actions in their PTC system, subsystem, or component to each railroad using the product; and
(2) Notify FRA of any safety-relevant failure, defective condition, or previously unidentified hazard discovered by the vendor or supplier and the identity of each affected and notified railroad.
(i) The requirements of this section do not apply to failures, malfunctions, or defective conditions that:
(1) Are caused by improper maintenance or improper usage; or
(2) Have been previously identified to the FRA, vendor or supplier, and applicable user railroads.
(j) When any safety-critical PTC system, subsystem, or component fails to perform its intended function, the cause shall be determined and the faulty product adjusted, repaired, or replaced without undue delay. Until corrective action is completed, a railroad shall take appropriate action to ensure safety and reliability as specified within its PTCSP.
(k) Any railroad experiencing a failure of a system resulting in a more favorable aspect than intended or other condition hazardous to the movement of a train shall comply with the reporting requirements, including the making of a telephonic report of an accident or incident involving such failure, under part 233 of this chapter. Filing of one or more reports under part 233 of this chapter does not exempt a railroad, vendor, or supplier from the reporting requirements contained in this section.
(a) The requirements of this subpart apply to each office automation system that performs safety-critical functions within, or affects the safety performance of, the PTC system. For purposes of this section, “office automation system” means any centralized or distributed computer-based system that directly or indirectly controls the active movement of trains in a rail network.
(b) Changes or modifications to PTC systems otherwise excluded from the requirements of this subpart by this section do not exclude those PTC systems from the requirements of this subpart if the changes or modifications result in a degradation of safety or a material decrease in safety-critical functionality.
(c) Primary train control systems cannot be integrated with locomotive electronic systems unless the complete integrated systems:
(1) Have been shown to be designed on fail-safe principles;
(2) Have demonstrated to operate in a fail-safe mode;
(3) Have a manual fail-safe fallback and override to allow the locomotive to be brought to a safe stop in the event of any loss of electronic control; and
(4) Are included in the approved and applicable PTCDP and PTCSP.
(d) PTC systems excluded by this section from the requirements of this subpart remain subject to subparts A through H of this part as applicable.
(a) When any safety-critical PTC system component fails to perform its intended function, the cause must be determined and the faulty component adjusted, repaired, or replaced without undue delay. Until repair of such essential components are completed, a railroad shall take appropriate action as specified in its PTCSP.
(b) Where a PTC onboard apparatus on a controlling locomotive that is operating in or is to be operated within a PTC system fails or is otherwise cut-out while en route (i.e, after the train has departed its initial terminal), the train may only continue in accordance with the following:
(1) The train may proceed at restricted speed, or if a block signal system is in operation according to signal indication at medium speed, to the next available point where communication of a report can be made to a designated railroad officer of the host railroad;
(2) Upon completion and communication of the report required in paragraph (b)(1) of this section, or where immediate electronic report of said condition is appropriately provided by the PTC system itself, a train may continue to a point where an absolute block can be established in advance of the train in accordance with the following:
(i) Where no block signal system is in use, the train may proceed at restricted speed, or
(ii) Where a block signal system is in operation according to signal indication, the train may proceed at a speed not to exceed medium speed.
(3) Upon reaching the location where an absolute block has been established in advance of the train, as referenced in paragraph (b)(2) of this section, the train may proceed in accordance with the following:
(i) Where no block signal system is in use, the train may proceed at medium speed; however, if the involved train is a passenger train or a train hauling any amount of PIH material, it may only proceed at a speed not to exceed 30 miles per hour.
(ii) Where a block signal system is in use, a passenger train may proceed at a speed not to exceed 59 miles per hour and a freight train may proceed at a speed not to exceed 49 miles per hour.
(iii) Except as provided in paragraph (c), where a cab signal system with an automatic train control system is in operation, the train may proceed at a speed not to exceed 79 miles per hour.
(c) In order for a train equipped with PTC traversing a track segment equipped with PTC to deviate from the operating limitations contained in paragraph (b) of this section, the deviation must be described and justified in the FRA approved PTCDP or PTCSP, or the Order of Particular Applicability, as applicable.
(d) Each railroad shall comply with all provisions in the applicable PTCDP and PTCSP for each PTC system it uses and shall operate within the scope of initial operational assumptions and predefined changes identified.
(e) The normal functioning of any safety-critical PTC system must not be interfered with in testing or otherwise without first taking measures to provide for the safe movement of trains, locomotives, roadway workers, and on-track equipment that depend on the normal functioning of the system.
(f) The PTC system's onboard apparatus shall be so arranged that each member of the crew assigned to perform duties in the locomotive can receive the same PTC information displayed in the same manner and execute any functions necessary to that crew member's duties. The locomotive engineer shall not be required to perform functions related to the PTC system while the train is moving that have the potential to distract the locomotive engineer from performance of other safety-critical duties.
(a) Any PTC system fully implemented and operational prior to March 16, 2010, may receive PTC System Certification if the applicable PTC railroad, or one or more system suppliers and one or more PTC railroads, submits a Request for Expedited Certification (REC) letter to the Associate Administrator. The REC letter must do one of the following:
(1) Reference a product safety plan (PSP) approved by FRA under subpart H of this part and include a document fulfilling the requirements under §§ 236.1011 and 236.1013 not already included in the PSP;
(2) Attest that the PTC system has been approved by FRA and in operation for at least 5 years and has already received an assessment of Verification and Validation from an independent third party under part 236 or a waiver supporting such operation; or
(3) Attest that the PTC system is recognized under an Order issued prior to March 16, 2010.
(b) If an REC letter conforms to paragraph (a)(1) of this section, the Associate Administrator, at his or her sole discretion, may also issue a new Type Approval for the PTC system.
(c) In order to receive a Type Approval or PTC System Certification under paragraph (a) or (b) of this section, the PTC system must be shown to reliably execute the functionalities required by §§ 236.1005 and 236.1007 and otherwise conform to this subpart.
(d) Previous approval or recognition of a train control system, together with an established service history, may, at the request of the PTC railroad, and consistent with available safety data, be credited toward satisfaction of the safety case requirements set forth in this part for the PTCSP with respect to all functionalities and implementations contemplated by the approval or recognition.
(e) To the extent that the PTC system proposed for implementation under this subpart is different in significant detail from the system previously approved or recognized, the changes shall be fully analyzed in the PTCDP or PTCSP as would be the case absent prior approval or recognition.
(f) As used in this section—
(1)
(2)
(g) Upon receipt of an REC, FRA will consider all safety case information to the extent feasible and appropriate, given the specific facts before the agency. Nothing in this section limits re-use of any applicable safety case information by a party other than the party receiving:
(1) A prior approval or recognition referred to in this section; or
(2) A Type Approval or PTC System Certification under this subpart.
(a) All wireless communications between the office, wayside, and onboard components in a PTC system shall provide cryptographic message integrity and authentication.
(b) Cryptographic keys required under paragraph (a) of this section shall:
(1) Use an algorithm approved by the National Institute of Standards (NIST) or a similarly recognized and FRA approved standards body;
(2) Be distributed using manual or automated methods, or a combination of both; and
(3) Be revoked:
(i) If compromised by unauthorized disclosure of the cleartext key; or
(ii) When the key algorithm reaches its lifespan as defined by the standards body responsible for approval of the algorithm.
(c) The cleartext form of the cryptographic keys shall be protected from unauthorized disclosure, modification, or substitution, except during key entry when the cleartext keys and key components may be temporarily displayed to allow visual verification. When encrypted keys or key components are entered, the cryptographically protected cleartext key or key components shall not be displayed.
(d) Access to cleartext keys shall be protected by a tamper resistant mechanism.
(e) Each railroad electing to also provide cryptographic message confidentiality shall:
(1) Comply with the same requirements for message integrity and authentication under this section; and
(2) Only use keys meeting or exceeding the security strength required to protect the data as defined in the railroad's PTCSP and required under § 236.1013(a)(7).
(f) Each railroad, or its vendor or supplier, shall have a prioritized service restoration and mitigation plan for scheduled and unscheduled interruptions of service. This plan shall be included in the PTCDP or PTCSP as required by §§ 236.1013 or 236.1015, as applicable, and made available to FRA upon request, without undue delay, for restoration of communication services that support PTC system services.
(g) Each railroad may elect to impose more restrictive requirements than those in this section, consistent with interoperability requirements specified in the PTCSP for the system.
(a) Before any field testing of an uncertified PTC system, or a product of an uncertified PTC system, or any regression testing of a certified PTC system is conducted on the general rail system, the railroad requesting the testing must provide:
(1) A complete description of the PTC system;
(2) An operational concepts document;
(3) A complete description of the specific test procedures, including the measures that will be taken to protect trains and on-track equipment;
(4) An analysis of the applicability of the requirements of subparts A through G of this part to the PTC system that will not apply during testing;
(5) The date the proposed testing shall begin;
(6) The test locations; and
(7) The effect on the current method of operation the PTC system will or may have under test.
(b) FRA may impose additional testing conditions that it believes may be necessary for the safety of train operations.
(c) Relief from regulations other than from subparts A through G of this part that the railroad believes are necessary to support the field testing, must be requested in accordance with part 211 of this title.
(a) Each railroad with a PTC system required to be installed under this subpart shall maintain at a designated office on the railroad:
(1) A current copy of each FRA approved Type Approval, if any, PTCDP, and PTCSP that it holds;
(2) Adequate documentation to demonstrate that the PTCSP and PTCDP meet the safety requirements of this subpart, including the risk assessment;
(3) An Operations and Maintenance Manual, pursuant to § 236.1039; and
(4) Training and testing records pursuant to § 236.1043(b).
(b) Results of inspections and tests specified in the PTCSP and PTCDP must be recorded pursuant to § 236.110.
(c) Each contractor providing services relating to the testing, maintenance, or operation of a PTC system required to be installed under this subpart shall maintain at a designated office training records required under § 236.1039(b).
(d) After the PTC system is placed in service, the railroad shall maintain a database of all safety-relevant hazards as set forth in the PTCSP and PTCDP and those that had not been previously identified in either document. If the frequency of the safety-relevant hazards exceeds the threshold set forth in either of these documents, then the railroad shall:
(1) Report the inconsistency in writing by mail, facsimile, e-mail, or hand delivery to the Director, Office of Safety Assurance and Compliance, FRA, 1200 New Jersey Ave, SE, Mail Stop 25, Washington, DC 20590, within 15 days of discovery. Documents that are hand delivered must not be enclosed in an envelope;
(2) Take prompt countermeasures to reduce the frequency of each safety-relevant hazard to below the threshold set forth in the PTCSP and PTCDP; and
(3) Provide a final report when the inconsistency is resolved to the FRA Director, Office of Safety Assurance and Compliance, on the results of the analysis and countermeasures taken to reduce the frequency of the safety-relevant hazard(s) below the threshold set forth in the PTCSP and PTCDP.
(a) The railroad shall catalog and maintain all documents as specified in the PTCDP and PTCSP for the installation, maintenance, repair, modification, inspection, and testing of the PTC system and have them in one Operations and Maintenance Manual, readily available to persons required to perform such tasks and for inspection by FRA and FRA-certified state inspectors.
(b) Plans required for proper maintenance, repair, inspection, and testing of safety-critical PTC systems must be adequate in detail and must be made available for inspection by FRA and FRA-certified state inspectors where such PTC systems are deployed or maintained. They must identify all software versions, revisions, and revision dates. Plans must be legible and correct.
(c) Hardware, software, and firmware revisions must be documented in the Operations and Maintenance Manual according to the railroad's configuration management control plan and any additional configuration/revision control measures specified in the PTCDP and PTCSP.
(d) Safety-critical components, including spare equipment, must be positively identified, handled, replaced, and repaired in accordance with the procedures specified in the PTCDP and PTCSP.
(e) Each railroad shall designate in its Operations and Maintenance Manual an appropriate railroad officer responsible for issues relating to scheduled interruptions of service contemplated by § 236.1029.
(a)
(1) Persons whose duties include installing, maintaining, repairing, modifying, inspecting, and testing safety-critical elements of the railroad's PTC systems, including central office, wayside, or onboard subsystems;
(2) Persons who dispatch train operations (issue or communicate any mandatory directive that is executed or enforced, or is intended to be executed or enforced, by a train control system subject to this subpart);
(3) Persons who operate trains or serve as a train or engine crew member subject to instruction and testing under part 217 of this chapter, on a train operating in territory where a train control system subject to this subpart is in use;
(4) Roadway workers whose duties require them to know and understand how a train control system affects their safety and how to avoid interfering with its proper functioning; and
(5) The direct supervisors of persons listed in paragraphs (a)(1) through (a)(4) of this section.
(b)
(a)
(1) Identify the specific goals of the training program with regard to the target population (craft, experience level, scope of work, etc.), task(s), and desired success rate;
(2) Based on a formal task analysis, identify the installation, maintenance, repair, modification, inspection, testing, and operating tasks that must be performed on a railroad's PTC systems. This includes the development of failure scenarios and the actions expected under such scenarios;
(3) Develop written procedures for the performance of the tasks identified;
(4) Identify the additional knowledge, skills, and abilities above those required for basic job performance necessary to perform each task;
(5) Develop a training and evaluation curriculum that includes classroom, simulator, computer-based, hands-on, or other formally structured training designed to impart the knowledge, skills, and abilities identified as necessary to perform each task;
(6) Prior to assignment of related tasks, require all persons mentioned in § 236.1041(a) to successfully complete a training curriculum and pass an examination that covers the PTC system and appropriate rules and tasks for which they are responsible (however, such persons may perform such tasks under the direct onsite supervision of a qualified person prior to completing such training and passing the examination);
(7) Require periodic refresher training and evaluation at intervals specified in the PTCDP and PTCSP that includes classroom, simulator, computer-based, hands-on, or other formally structured
(8) Conduct regular and periodic evaluations of the effectiveness of the training program specified in § 236.1041(a)(1) verifying the adequacy of the training material and its validity with respect to current railroads PTC systems and operations.
(b)
(a) Any person responsible for issuing or communicating mandatory directives in territory where PTC systems are or will be in use shall be trained in the following areas, as applicable:
(1) Instructions concerning the interface between the computer-aided dispatching system and the train control system, with respect to the safe movement of trains and other on-track equipment;
(2) Railroad operating rules applicable to the train control system, including provision for movement and protection of roadway workers, unequipped trains, trains with failed or cut-out train control onboard systems, and other on-track equipment; and
(3) Instructions concerning control of trains and other on-track equipment in case the train control system fails, including periodic practical exercises or simulations, and operational testing under part 217 of this chapter to ensure the continued capability of the personnel to provide for safe operations under the alternative method of operation.
(b) [Reserved]
(a)
(1) Familiarization with train control equipment onboard the locomotive and the functioning of that equipment as part of the system and in relation to other onboard systems under that person's control;
(2) Any actions required of the onboard personnel to enable, or enter data to, the system, such as consist data, and the role of that function in the safe operation of the train;
(3) Sequencing of interventions by the system, including pre-enforcement notification, enforcement notification, penalty application initiation and post-penalty application procedures;
(4) Railroad operating rules and testing (part 217) applicable to the train control system, including provisions for movement and protection of any unequipped trains, or trains with failed or cut-out train control onboard systems and other on-track equipment;
(5) Means to detect deviations from proper functioning of onboard train control equipment and instructions regarding the actions to be taken with respect to control of the train and notification of designated railroad personnel; and
(6) Information needed to prevent unintentional interference with the proper functioning of onboard train control equipment.
(b)
(c)
(1) The PTCDP and PTCSP shall identify all safety hazards to be mitigated by the locomotive engineer.
(2) The PTCDP and PTCSP shall address and describe the training required with provisions for the maintenance of skills proficiency. As a minimum, the training program must:
(i) As described in § 236.1043(a)(2), develop failure scenarios which incorporate the safety hazards identified in the PTCDP and PTCSP including the return of train operations to a fully manual mode;
(ii) Provide training, consistent with § 236.1047(a), for safe train operations under all failure scenarios and identified safety hazards that affect train operations;
(iii) Provide training, consistent with § 236.1047(a), for safe train operations under manual control; and
(iv) Consistent with § 236.1047(a), ensure maintenance of manual train operating skills by requiring manual starting and stopping of the train for an appropriate number of trips and by one or more of the following methods:
(A) Manual operation of a train for a 4-hour work period;
(B) Simulated manual operation of a train for a minimum of 4 hours in a Type I simulator as required; or
(C) Other means as determined following consultation between the railroad and designated representatives of the affected employees and approved by FRA. The PTCDP and PTCSP shall designate the appropriate frequency when manual operation, starting, and stopping must be conducted, and the appropriate frequency of simulated manual operation.
(d)
(a)
(b)
(2) Instruction for all roadway workers working in territories where PTC is required under this subpart shall ensure recognition of processor-based signal and train control equipment on the wayside and an understanding of how to avoid interference with its proper functioning.
(3) Instructions concerning the recognition of system failures and the provision of alternative methods of on-track safety in case the train control system fails, including periodic practical exercises or simulations and operational testing under part 217 of this chapter to ensure the continued capability of roadway workers to be free from the danger of being struck by a moving train or other on-track equipment.
The safety-critical performance of each product for which risk assessment is required under this part must be assessed in accordance with the following minimum criteria or other criteria if demonstrated to the Associate Administrator for Safety to be equally suitable:
(a)
(b)
(c)
(d)
(1) Track plan infrastructure, switches, rail crossings at grade and highway-rail grade crossings as applicable;
(2) Train movement density for freight, work, and passenger trains where applicable and computed over a time span of not less than 12 months;
(3) Train movement operational rules, as enforced by the dispatcher, roadway worker/Employee in Charge, and train crew behaviors;
(4) Wayside subsystems and components;
(5) Onboard subsystems and components;
(6) Consist contents such as hazardous material, oversize loads; and
(7) Operating speeds if the provisions of part 236 cite additional requirements for certain type of train control systems to be used at such speeds for freight and passenger trains.
(e)
(f)
(2) Software fault/failure analysis must be based on the assessment of the design and implementation of all safety-related software including the application code, its operating/executive program, COTS software, and associated device drivers, as well as historical performance data, analytical methods and experimental safety-critical performance testing performed on the subsystem or component. The software assessment process must demonstrate through repeatable predictive results that all software defects have been identified and
(g)
(2) MTTHE compliance verification and validation must be based on the assessment of the design for adequacy by a documented verification and validation process, historical performance data, analytical methods and experimental safety-critical performance testing performed on the subsystem or component. The non-processor-based quantification compliance must be demonstrated to have a high degree of confidence.
(h)
(2) The railroad shall document any assumptions regarding human performance. The documentation shall be in such a form as to facilitate later comparisons with in-service experience.
(3) The railroad shall document any assumptions regarding software defects. These assumptions shall be in a form that permit the railroad to project the likelihood of detecting an in-service software defect. These assumptions shall be documented in such a form as to permit later comparisons with in-service experience.
(4) The railroad shall document all of the identified safety-critical fault paths to a mishap as predicted by the safety analysis methodology. The documentation shall be in such a form as to facilitate later comparisons with in-service faults.
(a)
(1) Address each of the safety principles of paragraph (b) of this appendix, or explain why they are not relevant, and
(2) Employ a validation and verification process pursuant to paragraph (c) of this appendix.
(b)
(1)
(2)
(i) It must be shown how the product is designed to eliminate or mitigate unsafe systematic failures—those conditions which can be attributed to human error that could occur at various stages throughout product development. This includes unsafe errors in the software due to human error in the software specification, design, or coding phases; human errors that could impact hardware design; unsafe conditions that could occur because of an improperly designed human-machine interface; installation and maintenance errors; and errors associated with making modifications.
(ii) The product must be shown to operate safely under conditions of random hardware failures. This includes single hardware failures as well as multiple hardware failures that may occur at different times but remain undetected (latent) and react in combination with a subsequent failure at a later time to cause an unsafe operating situation. In instances involving a latent failure, a subsequent failure is similar to there being a single failure. In the event of a transient failure, and if so designed, the system should restart itself if it is safe to do so. Frequency of attempted restarts must be considered in the hazard analysis required by § 236.907(a)(8).
(iii) There shall be no single point failures in the product that can result in hazards categorized as unacceptable or undesirable. Occurrence of credible single point failures that can result in hazards must be detected and the product must achieve a known safe state that eliminates the possibility of false activation of any physical appliance.
(iv) If one non-self-revealing failure combined with a second failure can cause a hazard that is categorized as unacceptable or undesirable, then the second failure must be detected and the product must achieve a known safe state that eliminates the possibility of false activation of any physical appliance.
(v) Another concern of multiple failures involves common mode failures in which two or more subsystems or components intended to compensate one another to perform the same function all fail by the same mode and result in unsafe conditions. This is of particular concern in instances in which two or more elements (hardware or software, or both) are used in combination to ensure safety. If a common mode failure exists, then any analysis performed under this appendix cannot rely on the assumption that failures are independent. Examples include: The use of redundancy in which two or more elements perform a given function in parallel and when one (hardware or software) element checks/monitors another element (of hardware or software) to help ensure its safe operation. Common mode failure relates to independence, which must be ensured in these instances. When dealing with the effects of hardware failure, the designer shall address the effects of the failure not only on other hardware, but also on the execution of the software, since hardware failures can greatly affect how the software operates.
(3)
(4)
(i)
(ii)
(iii)
(iv)
(v)
(5)
(6)
(i) Electrical influences such as power supply anomalies/transients, abnormal/improper input conditions (e.g., outside of normal range inputs relative to amplitude and frequency, unusual combinations of inputs) including those related to a human operator, and others such as electromagnetic interference or electrostatic discharges, or both;
(ii) Mechanical influences such as vibration and shock; and
(iii) Climatic conditions such as temperature and humidity.
(7)
(c)
(2) U.S. Department of Defense Military Standard (MIL-STD) 882C, “System Safety Program Requirements” (January 19, 1993), is recognized as providing appropriate risk analysis processes for incorporation into verification and validation standards.
(3) The following standards designed for application to processor-based signal and train control systems are recognized as acceptable with respect to applicable elements of safety analysis required by subpart H and subpart I of this part. The latest versions of the standards listed below should be used unless otherwise provided.
(i) IEEE standards as follows:
(A) IEEE 1483-2000, Standard for the Verification of Vital Functions in Processor-Based Systems Used in Rail Transit Control.
(B) IEEE 1474.2-2003, Standard for user interface requirements in communications based train control (CBTC) systems.
(C) IEEE 1474.1-2004, Standard for Communications-Based Train Control (CBTC) Performance and Functional Requirements.
(ii) CENELEC Standards as follows:
(A) EN50129: 2003, Railway Applications: Communications, Signaling, and Processing Systems-Safety Related Electronic Systems for Signaling; and
(B) EN50155:2001/A1:2002, Railway Applications: Electronic Equipment Used in Rolling Stock.
(iii) ATCS Specification 200 Communications Systems Architecture.
(iv) ATCS Specification 250 Message Formats.
(v) AREMA 2009 Communications and Signal Manual of Recommended Practices, Part 16, Part 17, 21, and 23.
(vi) Safety of High-Speed Ground Transportation Systems. Analytical Methodology for Safety Validation of Computer Controlled Subsystems. Volume II: Development of a Safety Validation Methodology. Final Report September 1995. Author: Jonathan F. Luedeke, Battelle. DOT/FRA/ORD-95/10.2.
(vii) IEC 61508 (International Electrotechnical Commission), Functional Safety of Electrical/Electronic/Programmable/Electronic Safety (E/E/P/ES) Related Systems, Parts 1-7 as follows:
(A) IEC 61508-1 (1998-12) Part 1: General requirements and IEC 61508-1 Corr. (1999-05) Corrigendum 1—Part 1: General Requirements.
(B) IEC 61508-2 (2000-05) Part 2: Requirements for electrical/electronic/programmable electronic safety-related systems.
(C) IEC 61508-3 (1998-12) Part 3: Software requirements and IEC 61508-3 Corr. 1 (1999-04) Corrigendum 1—Part 3: Software requirements.
(D) IEC 61508-4 (1998-12) Part 4: Definitions and abbreviations and IEC 61508-4 Corr. 1 (1999-04) Corrigendum 1—Part 4: Definitions and abbreviations.
(E) IEC 61508-5 (1998-12) Part 5: Examples of methods for the determination of safety integrity levels and IEC 61508-5 Corr. 1 (1999-04) Corrigendum 1—Part 5: Examples of methods for determination of safety integrity levels.
(F) IEC 61508-6 (2000-04) Part 6: Guidelines on the applications of IEC 61508-2 and -3.
(G) IEC 61508-7 (2000-03) Part 7: Overview of techniques and measures.
(H) IEC 62278: 2002, Railway Applications: Specification and Demonstration of Reliability, Availability, Maintainability and Safety (RAMS);
(I) IEC 62279: 2002 Railway Applications: Software for Railway Control and Protection Systems;
(4) Use of unpublished standards, including proprietary standards, is authorized to the extent that such standards are shown to achieve the requirements of this part. However, any such standards shall be available for inspection and replication by FRA and for public examination in any public proceeding before the FRA to which they are relevant.
(5) The various standards provided in this paragraph are for illustrative purposes only. Copies of these standards can be obtained in accordance with the following:
(i) U.S. government standards and technical publications may be obtained by contacting the federal National Technical Information Service, 5301 Shawnee Rd, Alexandria, VA 22312.
(ii) U.S. National Standards may be obtained by contacting the American
(iii) IEC Standards may be obtained by contacting the International Electrotechnical Commission, 3, rue de Varembé, P.O. Box 131 CH—1211, GENEVA, 20, Switzerland.
(iv) CENLEC Standards may be obtained by contacting any of one the national standards bodies that make up the European Committee for Electrotechnical Standardization.
(v) IEEE standards may be obtained by contacting the IEEE Publications Office, 10662 Los Vaqueros Circle, P.O. Box 3014, Los Alamitos, CA 90720-1264.
(vi) AREMA standards may be obtained from the American Railway Engineering and Maintenance-of-Way Association, 10003 Derekwood Lane, Suite 210, Lanham, MD 20706.
(a) This appendix provides minimum requirements for independent third-party assessment of product safety verification and validation pursuant to subpart H or subpart I of this part. The goal of this assessment is to provide an independent evaluation of the product manufacturer's utilization of safety design practices during the product's development and testing phases, as required by any mutually agreed upon controlling documents and standards and the applicable railroad's:
(1) Railroad Safety Program Plan (RSPP) and Product Safety Plan (PSP) for processor based systems developed under subpart H or,
(2) PTC Product Development Plan (PTCDP) and PTC Safety Plan (PTCSP) for PTC systems developed under subpart I.
(b) The supplier may request advice and assistance of the reviewer concerning the actions identified in paragraphs (c) through (g) of this appendix. However, the reviewer shall not engage in any design efforts associated with the product, the products subsystems, or the products components, in order to preserve the reviewer's independence and maintain the supplier's proprietary right to the product.
(c) The supplier shall provide the reviewer access to any and all documentation that the reviewer requests and attendance at any design review or walkthrough that the reviewer determines as necessary to complete and accomplish the third party assessment. The reviewer may be accompanied by representatives of FRA as necessary, in FRA's judgment, for FRA to monitor the assessment.
(d) The reviewer shall evaluate the product with respect to safety and comment on the adequacy of the processes which the supplier applies to the design and development of the product. At a minimum, the reviewer shall compare the supplier processes with acceptable validation and verification methodology and employ any other such tests or comparisons if they have been agreed to previously with FRA. Based on these analyses, the reviewer shall identify and document any significant safety vulnerabilities which are not adequately mitigated by the supplier's (or user's) processes. Finally, the reviewer shall evaluate and document the adequacy of the railroad's
(1) RSPP, the PSP, and any other documents pertinent to a product being developed under subpart H of this part; or
(2) PTCDP and PTCSP for systems being developed under subpart I of this part.
(e) The reviewer shall analyze the Hazard Log and/or any other hazard analysis documents for comprehensiveness and compliance with applicable railroad, vendor, supplier, industry, national, and international standards.
(f) The reviewer shall analyze all Fault Tree Analyses (FTA), Failure Mode and Effects Criticality Analysis (FMECA), and other hazard analyses for completeness, correctness, and compliance with applicable railroad, vendor, supplier, industry, national and international standards.
(g) The reviewer shall randomly select various safety-critical software, and hardware modules, if directed by FRA, for audit to verify whether the requirements of the applicable railroad, vendor, supplier, industry, national, and international standards were followed. The number of modules audited must be determined as a representative number sufficient to provide confidence that all unaudited modules were developed in compliance with the applicable railroad, vendor, supplier, industry, national, and international standards.
(h) The reviewer shall evaluate and comment on the plan for installation and test procedures of the product for revenue service.
(i) The reviewer shall prepare a final report of the assessment. The report shall be submitted to the railroad prior to the commencement of installation testing and contain at least the following information:
(1) Reviewer's evaluation of the adequacy of the PSP in the case of products developed under subpart H, or PTCSP for products developed under subpart I of this part, including the supplier's MTTHE and risk estimates for the product, and the supplier's confidence interval in these estimates;
(2) Product vulnerabilities, potentially hazardous failure modes, or potentially hazardous operating circumstances which the reviewer felt were not adequately identified, tracked, mitigated, and corrected by either the vendor or supplier or the railroad;
(3) A clear statement of position for all parties involved for each product vulnerability cited by the reviewer;
(4) Identification of any documentation or information sought by the reviewer that was denied, incomplete, or inadequate;
(5) A listing of each applicable vendor, supplier, industry, national, or international standard, procedure or process which was not properly followed;
(6) Identification of the software verification and validation procedures, as well as the hardware verification validation procedures if deemed appropriate by FRA, for the product's safety-critical applications, and the reviewer's evaluation of the adequacy of these procedures;
(7) Methods employed by the product manufacturer to develop safety-critical software;
(8) If deemed applicable by FRA, the methods employed by the product manufacturer to develop safety-critical hardware by generally acceptable techniques;
(9) Method by which the supplier or railroad addresses comprehensiveness of the product design which considers the safety elements listed in paragraph (b) of appendix C to this part.
(a) This appendix provides human factors design criteria applicable to both subpart H and subpart I of this part. HMI design criteria will minimize negative safety effects by causing designers to consider human factors in the development of HMIs. The product design should sufficiently incorporate human factors engineering that is appropriate to the complexity of the product; the gender, educational, mental, and physical capabilities of the intended operators and maintainers; the degree of required human interaction with the component; and the environment in which the product will be used.
(b) As used in this section, “designer” means anyone who specifies requirements for—or designs a system or subsystem, or both, for—a product subject to subpart H or subpart I of this part, and “operator” means any human who is intended to receive information from, provide information to, or perform repairs or maintenance on a safety-critical product subject to subpart H or I of this part.
(c) Human factors issues the designers must consider with regard to the general function of a system include:
(1)
(i) The system must require an operator to initiate action to operate the train and require an operator to remain “in-the-loop” for at least 30 minutes at a time;
(ii) The system must provide timely feedback to an operator regarding the system's automated actions, the reasons for such actions, and the effects of the operator's manual actions on the system;
(iii) The system must warn operators in advance when it requires an operator to take action;
(iv) HMI design must equalize an operator's workload; and
(v) HMI design must not distract from the operator's safety related duties.
(2)
(3)
(i) Present integrated information that directly supports the variety and types of decisions that an operator makes;
(ii) Provide information in a format or representation that minimizes the time required to understand and act; and
(iii) Conduct utility tests of decision aids to establish clear benefits such as processing time saved or improved quality of decisions.
(4)
(i) To minimize short-term memory load, the designer shall integrate data or information from multiple sources into a single format or representation (“chunking”) and design so that three or fewer “chunks” of information need to be remembered at any one time.
(ii) To minimize long-term memory load, the designer shall design to support recognition memory, design memory aids to minimize the amount of information that must be recalled from unaided memory when making critical decisions, and promote active processing of the information.
(d) Design systems that anticipate possible user errors and include capabilities to catch errors before they propagate through the system;
(1) Conduct cognitive task analyses prior to designing the system to better understand the information processing requirements of operators when making critical decisions; and
(2) Present information that accurately represents or predicts system states.
(e) When creating displays and controls, the designer must consider user ergonomics and shall:
(1) Locate displays as close as possible to the controls that affect them;
(2) Locate displays and controls based on an operator's position;
(3) Arrange controls to minimize the need for the operator to change position;
(4) Arrange controls according to their expected order of use;
(5) Group similar controls together;
(6) Design for high stimulus-response compatibility (geometric and conceptual);
(7) Design safety-critical controls to require more than one positive action to activate (e.g., auto stick shift requires two movements to go into reverse);
(8) Design controls to allow easy recovery from error; and
(9) Design display and controls to reflect specific gender and physical limitations of the intended operators.
(f) The designer shall also address information management. To that end, HMI design shall:
(1) Display information in a manner which emphasizes its relative importance;
(2) Comply with the ANSI/HFS 100-1988 standard;
(3) Utilize a display luminance that has a difference of at least 35cd/m2 between the foreground and background (the displays should be capable of a minimum contrast 3:1 with 7:1 preferred, and controls should be provided to adjust the brightness level and contrast level);
(4) Display only the information necessary to the user;
(5) Where text is needed, use short, simple sentences or phrases with wording that an operator will understand and appropriate to the educational and cognitive capabilities of the intended operator;
(6) Use complete words where possible; where abbreviations are necessary, choose a commonly accepted abbreviation or consistent method and select commonly used terms and words that the operator will understand;
(7) Adopt a consistent format for all display screens by placing each design element in a consistent and specified location;
(8) Display critical information in the center of the operator's field of view by placing items that need to be found quickly in the upper left hand corner and items which are not time-critical in the lower right hand corner of the field of view;
(9) Group items that belong together;
(10) Design all visual displays to meet human performance criteria under monochrome conditions and add color only if it will help the user in performing a task, and use color coding as a redundant coding technique;
(11) Limit the number of colors over a group of displays to no more than seven;
(12) Design warnings to match the level of risk or danger with the alerting nature of the signal; and
(13) With respect to information entry, avoid full QWERTY keyboards for data entry.
(g) With respect to problem management, the HMI designer shall ensure that the:
(1) HMI design must enhance an operator's situation awareness;
(2) HMI design must support response selection and scheduling; and
(3) HMI design must support contingency planning.
(h) Ensure that electronics equipment radio frequency emissions are compliant with appropriate Federal Communications Commission regulations. The FCC rules and regulations are codified in Title 47 of the Code of Federal Regulations (CFR).
(1) Electronics equipment must have appropriate FCC Equipment Authorizations. The following documentation is applicable to obtaining FCC Equipment Authorization:
(i) OET Bulletin Number 61 (October, 1992 Supersedes May, 1987 issue) FCC Equipment Authorization Program for Radio Frequency Devices. This document provides an overview of the equipment authorization program to control radio interference from radio transmitters and certain other electronic products and an overview of how to obtain an equipment authorization.
(ii) OET Bulletin 63: (October 1993) Understanding The FCC Part 15 Regulations for Low Power, Non-Licensed Transmitters. This document provides a basic understanding of the FCC regulations for low power, unlicensed transmitters, and includes answers to some commonly-asked questions. This edition of the bulletin does not contain information concerning personal communication services (PCS) transmitters operating under Part 15, Subpart D of the rules.
(iii) 47 Code of Federal Regulations Parts 0 to 19. The FCC rules and regulations governing PCS transmitters may be found in 47 CFR, Parts 0 to 19.
(iv) OET Bulletin 62 (December 1993) Understanding The FCC Regulations for Computers and other Digital Devices. This document has been prepared to provide a basic understanding of the FCC regulations for digital (computing) devices, and includes answers to some commonly-asked questions.
(2) Designers must comply with FCC requirements for Maximum Permissible Exposure limits for field strength and power density for the transmitters operating at frequencies of 300 kHz to 100 GHz and specific absorption rate (SAR) limits for devices operating within close proximity to the body. The Commission's requirements are detailed in parts 1 and 2 of the FCC's Rules and Regulations (47 CFR 1.1307(b), 1.1310, 2.1091, 2.1093). The following documentation is applicable to demonstrating whether proposed or existing transmitting facilities, operations or devices comply with limits for human exposure to radiofrequency RF fields adopted by the FCC:
(i) OET Bulletin No. 65 (Edition 97-01, August 1997), “Evaluating Compliance With FCC Guidelines For Human Exposure To Radiofrequency Electromagnetic Fields”,
(ii) OET Bulletin No 65 Supplement A, (Edition 97-01, August 1997), OET Bulletin No 65 Supplement B (Edition 97-01, August 1997) and
(iii) OET Bulletin No 65 Supplement C (Edition 01-01, June 2001).
(3) The bulletin and supplements offer guidelines and suggestions for evaluating compliance. However, they are not intended to establish mandatory procedures. Other methods and procedures may be acceptable if based on sound engineering practice.
(a) This appendix provides minimum requirements for mandatory independent third-party assessment of PTC system safety verification and validation pursuant to subpart H or I of this part. The goal of this assessment is to provide an independent evaluation of the PTC system manufacturer's utilization of safety design practices during the PTC system's development and testing phases, as required by the applicable PSP, PTCDP, and PTCSP, the applicable requirements of subpart H or I of this part, and any other previously agreed-upon controlling documents or standards.
(b) The supplier may request advice and assistance of the independent third-party reviewer concerning the actions identified in paragraphs (c) through (g) of this appendix. However, the reviewer should not engage in design efforts in order to preserve the reviewer's independence and maintain the
(c) The supplier shall provide the reviewer access to any and all documentation that the reviewer requests and attendance at any design review or walkthrough that the reviewer determines as necessary to complete and accomplish the third party assessment. The reviewer may be accompanied by representatives of FRA as necessary, in FRA's judgment, for FRA to monitor the assessment.
(d) The reviewer shall evaluate with respect to safety and comment on the adequacy of the processes which the supplier applies to the design and development of the PTC system. At a minimum, the reviewer shall evaluate the supplier design and development process regarding the use of an appropriate design methodology. The reviewer may use the comparison processes and test procedures that have been previously agreed to with FRA. Based on these analyses, the reviewer shall identify and document any significant safety vulnerabilities which are not adequately mitigated by the supplier's (or user's) processes. Finally, the reviewer shall evaluate the adequacy of the railroad's applicable PSP or PTCSP, and any other documents pertinent to the PTC system being assessed.
(e) The reviewer shall analyze the Hazard Log and/or any other hazard analysis documents for comprehensiveness and compliance with railroad, vendor, supplier, industry, national, or international standards.
(f) The reviewer shall analyze all Fault Tree Analyses (FTA), Failure Mode and Effects Criticality Analysis (FMECA), and other hazard analyses for completeness, correctness, and compliance with railroad, vendor, supplier, industry, national, or international standards.
(g) The reviewer shall randomly select various safety-critical software modules, as well as safety-critical hardware components if required by FRA for audit to verify whether the railroad, vendor, supplier, industry, national, or international standards were followed. The number of modules audited must be determined as a representative number sufficient to provide confidence that all unaudited modules were developed in compliance with railroad, vendor, supplier, industry, national, or international standards
(h) The reviewer shall evaluate and comment on the plan for installation and test procedures of the PTC system for revenue service.
(i) The reviewer shall prepare a final report of the assessment. The report shall be submitted to the railroad prior to the commencement of installation testing and contain at least the following information:
(1) Reviewer's evaluation of the adequacy of the PSP or PTCSP including the supplier's MTTHE and risk estimates for the PTC system, and the supplier's confidence interval in these estimates;
(2) PTC system vulnerabilities, potentially hazardous failure modes, or potentially hazardous operating circumstances which the reviewer felt were not adequately identified, tracked or mitigated;
(3) A clear statement of position for all parties involved for each PTC system vulnerability cited by the reviewer;
(4) Identification of any documentation or information sought by the reviewer that was denied, incomplete, or inadequate;
(5) A listing of each applicable vendor, supplier, industry, national or international standard, process, or procedure which was not properly followed;
(6) Identification of the hardware and software verification and validation procedures for the PTC system's safety-critical applications, and the reviewer's evaluation of the adequacy of these procedures;
(7) Methods employed by PTC system manufacturer to develop safety-critical software; and
(8) If directed by FRA, methods employed by PTC system manufacturer to develop safety-critical hardware.
Board of Governors of the Federal Reserve System (Board) and Federal Trade Commission (Commission).
Final rules.
The Board and the Commission are jointly issuing final rules to implement the risk-based pricing provisions in section 311 of the Fair and Accurate Credit Transactions Act of 2003 (FACT Act), which amends the Fair Credit Reporting Act (FCRA). The final rules generally require a creditor to provide a risk-based pricing notice to a consumer when the creditor uses a consumer report to grant or extend credit to the consumer on material terms that are materially less favorable than the most favorable terms available to a substantial proportion of consumers from or through that creditor. The final rules also provide for two alternative means by which creditors can determine when they are offering credit on material terms that are materially less favorable. The final rules also include certain exceptions to the general rule, including exceptions for creditors that provide a consumer with a disclosure of the consumer's credit score in conjunction with additional information that provides context for the credit score disclosure.
These rules are effective on January 1, 2011.
The Fair and Accurate Credit Transactions Act of 2003 (FACT Act) was signed into law on December 4, 2003. Public Law 108-159, 117 Stat. 1952. In general, the FACT Act amended the Fair Credit Reporting Act (FCRA) to enhance the ability of consumers to combat identity theft, increase the accuracy of consumer reports, and allow consumers to exercise greater control regarding the type and amount of solicitations they receive.
Section 311 of the FACT Act added a new section 615(h) to the FCRA to address risk-based pricing. Risk-based pricing refers to the practice of setting or adjusting the price and other terms of credit offered or extended to a particular consumer to reflect the risk of nonpayment by that consumer. Information from a consumer report is often used in evaluating the risk posed by the consumer. Creditors that engage in risk-based pricing generally offer more favorable terms to consumers with good credit histories and less favorable terms to consumers with poor credit histories.
Under section 615(h) of the FCRA, a risk-based pricing notice must be provided to consumers in certain circumstances. Generally, a person must provide a risk-based pricing notice to a consumer when the person uses a consumer report in connection with an application, grant, extension, or other provision of credit and, based in whole or in part on the consumer report, grants, extends, or provides credit to the consumer on material terms that are materially less favorable than the most favorable terms available to a substantial proportion of consumers from or through that person. The risk-based pricing notice requirement is designed primarily to improve the accuracy of consumer reports by alerting consumers to the existence of negative information on their consumer reports so that consumers can, if they choose, check their consumer reports for accuracy and correct any inaccurate information. It is meant to complement the existing adverse action notice provisions of the FCRA.
Section 615(h) requires the Board and the Commission (the Agencies) jointly to issue rules implementing the risk-based pricing provisions. The statute requires the Agencies to address in the implementing rules the form, content, timing, and manner of delivery of any notices pursuant to section 615(h). The rules also must clarify the meaning of certain terms used in this section, including what are “material” credit terms and when credit terms are “materially less favorable.” Section 615(h) gives the Agencies the authority to provide exceptions to the notice requirement for classes of persons or transactions for which the Agencies determine that risk-based pricing notices would not significantly benefit consumers. Finally, the Agencies must provide a model notice that can be used to comply with section 615(h).
The Agencies published proposed regulations that would implement these risk-based pricing provisions on May 19, 2008 (73 FR 28966). The comment period closed on August 18, 2008. The Agencies received more than 80 comment letters regarding the proposal from banks and other creditors, industry trade associations, consumer groups, a trade association representing consumer reporting agencies, and others.
In developing the risk-based pricing rules, the Agencies sought to implement the statutory provisions in a manner that would provide a substantial benefit to consumers and be operationally feasible for the wide variety of entities subject to the rules. Based on in-depth outreach with interested parties undertaken before issuing the proposed rules, the Agencies determined that it would not be operationally feasible in many cases for creditors to compare the terms offered to each consumer with the terms offered to other consumers to whom the creditor has extended credit. The Agencies considered several approaches and concluded that the most effective way to implement the statute was to develop certain tests that could serve as proxies for comparing the terms offered to different consumers. The Agencies' goal was to determine which tests would both identify those consumers who likely received materially less favorable terms than the
The final rules retain the tests the Agencies identified in the proposal as the best approaches for meeting the statute's requirements with some revisions made in response to the comments received on the proposal. As noted in the proposal, the Agencies recognize that no single test or approach is likely to be feasible for all of the various types of creditors to which the rules apply or for the many different credit products for which risk-based pricing is used. Therefore, the final rules provide a menu of approaches that creditors may use to comply with the statute's legal requirements. The next section provides a brief explanation of the final rules.
The final rules implement the risk-based pricing notice requirement of section 615(h). The final rules apply to any person that both: (i) Uses a consumer report in connection with an application for, or a grant, extension, or other provision of, credit to a consumer; and (ii) based in whole or in part on the consumer report, grants, extends, or otherwise provides credit to that consumer on material terms that are materially less favorable than the most favorable terms available to a substantial proportion of consumers from or through that person. The rules clarify that the risk-based pricing notice requirements apply only in connection with credit that is primarily for personal, household, or family purposes, but not in connection with business credit. For more information about the scope of the final rules, see the discussion of § __.70 in the Section-by-Section Analysis.
The final rules define certain key terms. Specifically, the final rules define “material terms” as the annual percentage rate for credit that has an annual percentage rate,
The final rules state that a person must provide the consumer with a notice if that person both: (i) uses a consumer report in connection with an application for, or a grant, extension, or other provision of, credit to that consumer primarily for personal, family, or household purposes; and (ii) based in whole or in part on the consumer report, grants, extends, or otherwise provides credit to that consumer on material terms that are materially less favorable than the most favorable terms available to a substantial proportion of consumers from or through that person. The final rules apply to the person to whom the obligation is initially payable (also referred to as “the original creditor”).
A person subject to the rule may determine, on a case-by-case basis, whether a consumer has received material terms that are materially less favorable than terms other consumers have received from or through that person by comparing the material terms offered to the consumer to the material terms offered to other consumers for a specific type of credit product. Because it may not be operationally feasible for many persons subject to the rule to make such direct comparisons between consumers, the final rules provide two alternative methods for determining which consumers must receive risk-based pricing notices for those persons that prefer not to compare directly the material terms offered to their consumers. Using either of the alternative methods, a person may determine when credit offered from or through that person is on material terms that are materially less favorable than the most favorable terms available to a substantial proportion of consumers from or through that person.
The first alternative method is the credit score proxy method. A credit score is a numerical representation of a consumer's credit risk based on information in the consumer's credit file. The final rules permit a creditor that uses credit scores to set the material terms of credit to determine a cutoff score, representing the point at which approximately 40 percent of its consumers have higher credit scores and 60 percent of its consumers have lower credit scores, and provide a risk-based pricing notice to each consumer who has a credit score lower than the cutoff score. The final rules also provide that, in the case of credit that has been granted, extended, or provided on the most favorable material terms to more than 40 percent of consumers, a person may set its cutoff score at a point at which the approximate percentage of consumers who historically have been granted, extended, or provided credit on material terms other than the most favorable terms would receive risk-based pricing notices under this section. The final rules require periodic updating of the cutoff score.
The second alternative method is the tiered pricing method. Under this method, a creditor that sets the material terms of credit by assigning each consumer to one of a discrete number of pricing tiers, based in whole or in part on a consumer report, may use this method and provide a risk-based pricing notice to each consumer who is not assigned to the top pricing tier or tiers. The number of tiers of consumers to whom the notice is required to be given depends upon the total number of tiers. For more information about the general rule and the alternative methods for determining which consumers must receive notices, see the discussion of § __.72 in the Section-by-Section Analysis.
The final rules set forth a special test that a credit card issuer may use to identify the circumstances in which the issuer must provide a risk-based pricing notice to consumers, as an alternative to the options discussed above. If a credit card issuer uses this option, the issuer is required to provide a risk-based pricing notice to a consumer if the consumer applies for a credit card in connection with a multiple-rate offer and, based in whole or in part on a consumer report, is granted credit at an annual percentage rate referenced in § __.71(n)(1)(ii) that is higher than the lowest annual percentage rate referenced in § __.71(n)(1)(ii) available under that offer. The final rules assume that a consumer who applies for credit in response to a multiple-rate offer is applying for the best rate available. For more information about the application of the rule to credit card issuers, see the discussion of § __.72 in the Section-by-Section Analysis.
A creditor may periodically review the consumer report of a consumer with whom the creditor has an existing credit relationship as permitted under section 604 of the FCRA. If a consumer's credit history has deteriorated, the creditor may, pursuant to applicable account terms, increase the annual percentage rate applicable to that consumer's account. The final rules generally require the creditor to provide a risk-based pricing notice to the consumer if the creditor increases the consumer's annual percentage rate in an account review based in whole or in part on a consumer report, unless the creditor provides an adverse action notice to the consumer. For more information about the application of the general rule to account reviews, see the discussion of § __.72 in the Section-by-Section Analysis.
In addition to the minimum content prescribed by section 615(h)(5) of the FCRA, the final rules require the risk-based pricing notice to include a statement that the terms offered may be less favorable than the terms offered to consumers with better credit histories. The Agencies believe that including such a statement in the notice could encourage consumers to check their consumer reports for inaccuracies. The final rules also include special content requirements for the notice that must be provided in the context of account reviews. For more information about the content of the risk-based pricing notices, see the discussion of § __.73 in the Section-by-Section Analysis.
The final rules require the risk-based pricing notice and account review notice to be clear and conspicuous and to be provided to the consumer in oral, written, or electronic form. The final rules also state that creditors are deemed to be in compliance with the provisions requiring risk-based pricing notices and account review notices through use of the appropriate model forms. Use of the forms is optional. For more information about the form of these notices, see the discussion of § __.73 in the Section-by-Section Analysis.
The final rules generally require a risk-based pricing notice to be provided to the consumer after the terms of credit have been set, but before the consumer becomes contractually obligated on the credit transaction. In the case of closed-end credit, the notice must be provided to the consumer before consummation of the transaction, but not earlier than the time the approval decision is communicated to the consumer. In the case of open-end credit, the notice must be provided to the consumer before the first transaction is made under the plan, but not earlier than the time the approval decision is communicated to the consumer. For account reviews, the notice must be provided at the time that the decision to increase the annual percentage rate is communicated to the consumer or, if no notice of the increase in the annual percentage rate is provided to the consumer prior to the effective date of the change (to the extent permitted by law), no later than five days after the effective date of the change in the annual percentage rate. The final rules explain how the required notices may be delivered in the case of certain automobile lending transactions and also include an exception to the general timing rules in the case of contemporaneous purchase credit (instant credit). For more information about the timing requirements, see the discussion of § __.73 in the Section-by-Section Analysis.
The final rules contain a number of exceptions to the risk-based pricing notice requirement. The final rules implement the statutory exceptions that apply: (i) When a consumer applies for, and receives, specific material terms; and (ii) when a consumer has been or will be provided a notice of adverse action under section 615(a) of the FCRA in connection with the transaction.
In addition, the Agencies have used their exception authority set forth in section 615(h)(6)(iii) of the FCRA to create exceptions for creditors that provide consumers who apply for credit with a notice consisting of their credit score and certain additional information, in lieu of the risk-based pricing notice. For credit secured by one to four units of residential real property, a creditor may provide consumers with a notice containing the credit score disclosure required by section 609(g) of the FCRA along with certain additional information that provides context for the credit score disclosure. This notice also describes the creditor's use of credit scores to set the terms of credit and explains how consumers can obtain their free annual consumer reports. In the case of credit that is not secured by one to four units of residential real property, a creditor similarly may provide consumers with a notice of their credit score and certain additional information specified in the final rules. The final rules also include optional model forms for use by creditors.
In some cases, a consumer's credit file may not contain sufficient information to permit a consumer reporting agency or other person to calculate a score for that individual. In those cases, a creditor using either of the credit score disclosure exceptions described above is permitted to comply with the rules by providing an alternate narrative notice that does not include a credit score to those consumers for whom a score is not available.
The final rules also include an exception for prescreened solicitations. Under this exception, a creditor is not required to provide a risk-based pricing notice if that creditor obtains a consumer report that is a prescreened list and uses that consumer report to make a firm offer of credit to consumers, regardless of how the material terms of that offer compare to the terms that the creditor includes in other firm offers of credit. For more information about the exceptions, see the discussion of § __.74 in the Section-by-Section Analysis.
Section 615(h)(5)(C) of the FCRA states that the risk-based pricing notice must contain a statement informing the consumer that he or she may obtain a copy of a consumer report, without charge, from the consumer reporting agency identified in the notice. The final rules are based on the Agencies' reading of section 615(h) as giving
The notices provided under the credit score disclosure exceptions are not risk-based pricing notices, and therefore do not give rise to the right to a free consumer report. Instead, a consumer who receives a credit score disclosure notice that identifies a consumer reporting agency or other third party as the source of the credit score could request the free annual consumer report that is available from each of the three nationwide consumer reporting agencies. For more information about the credit score disclosure exceptions, see the discussion of § __.74 in the Section-by-Section Analysis.
The final rules contain a rule of construction to clarify that, in general, only one risk-based pricing notice is required to be provided per credit extension, except in the case of a notice provided in connection with an account review. The person to whom the obligation is initially payable must provide the risk-based pricing notice, or satisfy one of the exceptions, even if the loan is assigned to a third party or if that person is not the funding source for the loan. Although legal responsibility for providing the notice rests with the person to whom the obligation is initially payable, the various parties involved in a credit extension may determine by contract which party will send the notice. Generally, purchasers or assignees of credit contracts are not subject to the risk-based pricing notice requirements, except in the case of a notice provided in connection with an account review. For more information about the rules of construction, see the discussion of § __.75 in the Section-by-Section Analysis.
The final rules contain a rule of construction to clarify that in a transaction involving two or more consumers who are granted, extended, or otherwise provided credit, a person must provide a risk-based pricing notice to each consumer. If the consumers have the same address, a person may satisfy the requirements by providing a single notice addressed to both consumers. If the consumers do not have the same address, a person must provide a notice to each consumer.
For credit score disclosure exception notices, a person must provide a separate notice to each consumer in a transaction involving two or more consumers who are granted, extended, or otherwise provided credit. Whether the consumers have the same address or not, the person must provide a separate notice to each consumer. Each separate notice must contain only the credit score(s) of the consumer to whom the notice is provided, and not the credit score(s) of the other consumer. For more information about the rules of construction, see the discussion of § __.75 in the Section-by-Section Analysis.
Section 615(h)(6)(B)(iv) requires the Agencies to provide a model notice that may be used to comply with the risk-based pricing rules. For each of the risk-based pricing notices and alternative credit score disclosures, the Agencies have finalized model forms that are appended to the final rules as Appendices H-1 through H-5 of the Board's rule and Appendices B-1 through B-5 of the Commission's rule. For more information, see the discussion of the model forms in the Section-by-Section Analysis.
Proposed § __.70 set forth the scope of the Agencies' rules. Proposed paragraph (a)(1) generally tracked the statutory language from section 615(h)(1) of the FCRA, except that it limited coverage of the proposed rules to credit to a consumer that is primarily for a consumer's personal, family, or household purposes.
Proposed paragraph (a)(2) provided that the risk-based pricing rules do not apply to persons who use consumer reports in connection with an application for, or grant, extension, or other provision of, credit for business purposes. Section 615(h) of the FCRA does not explicitly state that it applies only to a person using a consumer report in connection with consumer purpose credit. However, the statute's repeated use of the term “consumer,” which section 603(c) of the FCRA defines to mean “an individual,” suggests that Congress intended for the risk-based pricing provisions to apply only to credit that is primarily for personal, family, or household purposes.
Business-purpose loans generally are made to partnerships or corporations, as well as to individual consumers in the case of sole proprietorships. The Agencies understand that business borrowers generally are more sophisticated than individual consumers. For business loans made to partnerships or corporations, a creditor may obtain consumer reports on the principals of the business who may serve as guarantors for the loan.
Most commenters agreed that the coverage of the proposed rule, including the exclusion of business purpose credit, was appropriate. Some commenters requested that the Agencies clarify that the rules do not apply to consumer leases. Consumer leases generally are not treated as “credit” under the Equal Credit Opportunity Act (ECOA) and the Board's Regulation B (12 CFR 202.1
Proposed paragraph (b) provided that compliance with either the Board's or the Commission's substantively identical risk-based pricing rules would be deemed to satisfy the requirements of the statute. The Board proposed to codify its risk-based pricing rules at 12 CFR 222.70
Proposed § __.71 contained definitions for the following terms: “annual percentage rate” (and the related terms “closed-end credit” and “open-end credit plan”), “credit,” “creditor,” “credit card,” “credit card issuer,” “credit score,” “material terms” (and the related term “consummation”), and “materially less favorable.” These definitions are retained in the final rules, with certain revisions as discussed below.
Proposed paragraph (a) defined “annual percentage rate” by incorporating the definitions of “annual percentage rate” for open-end credit plans and closed-end credit set forth in sections 226.14(b) and 226.22 of Regulation Z, respectively (12 CFR 226.14(b), 12 CFR 226.22). Paragraph (b) of the proposal defined “closed-end credit” to have the same meaning as in Regulation Z (12 CFR 226.2(a)(10)). Paragraph (k) of the proposal defined “open-end credit plan” to have the same meaning as set forth in the Truth in Lending Act (TILA), as implemented by the Board in Regulation Z and the Official Staff Commentary to Regulation Z (15 U.S.C. 1602(i), 12 CFR 226.2(a)(20)).
The Agencies received one comment in support of the definition of “annual percentage rate” and no comments regarding “closed-end credit” and “open-end credit plan.” The Agencies believe that use of the Regulation Z definitions promotes consistency among the rules pertaining to consumer credit, including the rules that implement the FCRA and the TILA. Therefore, the definitions of “annual percentage rate,” “closed-end credit,” and “open-end credit plan” are adopted as proposed in the final rules, but renumbered as paragraphs (b), (c), and (p), respectively.
Proposed paragraph (c) defined the term “consummation” to mean the time that a consumer becomes contractually obligated on a credit transaction. The proposed definition was identical to the definition of “consummation” in Regulation Z. 12 CFR 226.2(a)(13). The Agencies received no comments on this definition. In the final rules, the definition of “consummation” is substantively the same as in the proposal, but the text has been revised (and redesignated as paragraph (e)) so that the term is defined to have the same meaning as in 12 CFR 226.2(a)(13). This is consistent with other definitions in the final rules that cross-reference existing definitions.
Proposed paragraphs (d), (e), (f), (g), and (h) incorporated the FCRA's statutory definitions of “credit,” “creditor,” “credit card,” “credit card issuer,” and “credit score.” The Agencies received few comments on these definitions, all of which incorporate existing statutory definitions. They are adopted as proposed in the final rules as paragraphs (h), (i), (j), (k), and (l).
Proposed paragraph (i) contained three separate definitions of “material terms,” depending on whether the credit (1) is extended under an open-end credit plan for which there is an annual percentage rate, (2) is closed-end credit for which there is an annual percentage rate, or (3) is credit for which there is no annual percentage rate. Proposed paragraph (i)(1) defined “material terms” for credit extended under an open-end credit plan as the annual percentage rate required to be disclosed in the account-opening disclosures required by Regulation Z. The definition excluded both any temporary initial rate that is lower than the rate that would apply after the temporary rate expires and any penalty rate that would apply upon the occurrence of one or more specific events, such as a late payment or extension of credit that exceeds the credit limit. For credit cards (other than those used to access a home equity line of credit), the proposal defined “material terms” as the annual percentage rate applicable to purchases (“purchase annual percentage rate”), and no other annual percentage rate.
Proposed paragraph (i)(2) defined “material terms” for closed-end credit as the annual percentage rate required to be disclosed prior to consummation under the provisions of Regulation Z regarding closed-end credit (12 CFR 226.17(c) and 226.18(e)). This definition did not address temporary initial rates or penalty rates because, for purposes of the closed-end provisions of Regulation Z, a penalty rate is not included in the calculation of the annual percentage rate and a temporary initial rate is but one component of a single annual percentage rate for the transaction.
Most commenters supported defining material terms as the annual percentage rate for credit extended under an open-end credit plan and closed-end credit and, in the case of credit cards, the purchase annual percentage rate. Some commenters, however, suggested that the definition should include certain additional terms, such as fees or a down payment, depending upon the particular loan product. A consumer group commenter suggested that the definition should not be limited to a single term, but instead should be defined as any change to a credit transaction that is based upon a consumer's credit history or credit score.
For practical and operational reasons, §§ __.71(i)(1) and (i)(2) are adopted largely as proposed as renumbered §§ __.71(n)(1) and (n)(2), but with certain substantive revisions as discussed below. The Agencies recognize that the pricing of credit products is complex and that the annual percentage rate is only one of the costs of consumer credit. However, the Agencies have adopted a definition of “material terms” that generally focuses on a single term in order to ensure that there is a feasible way for creditors to identify those consumers who must receive risk-based pricing notices. Based on the comments received, extensive outreach to interested parties, and their own analysis, the Agencies conclude that it would not be feasible for creditors to compare credit terms on the basis of multiple variables. For example, it is unclear how a creditor would compare one mortgage loan with a given combination of annual percentage rate, down payment, and points and fees to another such loan where all three variables differ, even for the same product, such as a 30-year fixed-rate loan.
Focusing on the annual percentage rate is appropriate because most consumer credit products have an annual percentage rate, and it has historically been a significant factor, and often the most significant factor, in the pricing of credit. The Agencies understand that the annual percentage rate is the primary term that varies as a result of risk-based pricing. For credit cards, which often have multiple annual percentage rates applicable to purchases, cash advances, and balance transfers, purchases are the most common type of transaction. The Agencies understand that the annual percentage rate applicable to purchases is the primary term that varies as a result of risk-based pricing. Thus, the Agencies conclude that, in most cases, defining “material terms” with reference to the annual percentage rate (or the purchase annual percentage rate, in the case of credit cards) will effectively
One commenter requested clarification regarding whether the definition of “material terms” for credit cards in § __.71(n)(1)(ii) excludes the temporary initial annual percentage rate and penalty annual percentage rate, as are excluded in § __.71(n)(1)(i), the definition applicable to credit extended under an open-end credit plan. Section __.71(n)(1)(ii) is a specific application of the general definition of “material terms” for credit extended under an open-end credit plan to a specific type of product, credit cards, that frequently has multiple annual percentage rates applicable to different balances. Therefore, the exclusions in § __.71(n)(1)(i) of the final rules apply to all credit extended under an open-end credit plan, including credit cards.
Upon further analysis, the Agencies also have added “any fixed annual percentage rate option for a home equity line of credit” as an additional exclusion from § __.71(n)(1)(i). Most annual percentage rates for home equity lines of credit are variable. Some creditors, however, also offer a fixed annual percentage rate option, which may be exercised on some portion of the advances. In these arrangements, the variable annual percentage rate is the most significant pricing term. Therefore, the Agencies have excluded the fixed annual percentage rate option from the definition. Finally, the Agencies have changed the citations in § __.71(n)(1)(i) of the final rules to reflect amendments to Regulation Z made subsequent to the proposed rule.
In response to one commenter's suggestion, the Agencies have excluded charge cards from § __.71(n)(1)(ii). Under Regulation Z, a “charge card” is defined as a credit card on an account for which no periodic rate is used to compute a finance charge. 12 CFR 226.2(a)(15). This exclusion reflects the fact that charge cards do not have an annual percentage rate. As discussed below, material terms of charge cards are addressed in paragraph (n)(3).
Another commenter suggested that the rule should account for situations where a credit card has no purchase annual percentage rate. The final rules provide that in those instances, material terms means “the annual percentage rate that varies based on information in a consumer report and that has the most significant financial impact on consumers.” For example, if a credit card product does not permit purchases, but allows for balance transfers and cash advances, the material term would be whichever of the two annual percentage rates varies based on information in a consumer report and has the most significant impact on consumers.
Proposed paragraph (i)(3), renumbered as paragraph (n)(3) in the final rules, defined “material terms” for credit with no annual percentage rate as any monetary terms that the person varies based on information in a consumer report, such as the down payment or deposit. Some commenters agreed with the definition, but other commenters suggested that “any monetary terms” should be limited to a single monetary term. For the same operational concerns that led the Agencies to focus exclusively on the annual percentage rate, the Agencies agree that the third prong of the definition should focus on a single significant term. Thus, in the final rules, “material terms” for credit with no annual percentage rate is defined as “the financial term that varies based on information in a consumer report and that has the most significant financial impact on consumers.” By way of example, the final rules clarify that, depending upon the creditor's business and pricing practices, a significant financial term may include a deposit required by a telephone company or utility or an annual membership fee required to obtain a charge card.
Proposed paragraph (j) defined “materially less favorable,” when applied to material terms, to mean that the terms granted, extended, or otherwise provided to a consumer differ from the terms granted or extended to another consumer from or through the same person such that the cost of credit to the first consumer would be significantly greater than the cost of credit granted or extended to the other consumer. This definition clarified that a comparison between one set of material terms and another set of material terms generally would be required to satisfy the general rule and to identify which consumers must receive the notice.
Some commenters stated that the definition of “materially less favorable” was generally appropriate, but other commenters believed the Agencies should define the term with more objective criteria. The Agencies believe the definition of “materially less favorable” provides sufficient guidance regarding how to determine whether a particular set of terms is materially less favorable. Thus, the Agencies are adopting the definition of “materially less favorable” substantively as proposed as renumbered paragraph (o), with some revisions for clarity. The phrase “or otherwise provided” has been added to the definition to track the language of the statute. As noted in the supplementary information to the proposal, factors relevant to determining the significance of a difference in the cost of credit include the type of credit product, the term of the credit extension, if any, and the extent of the difference between the material terms granted, extended, or otherwise provided to the consumer and the material terms granted, extended, or otherwise provided to the comparison group.
Two commenters suggested that terms such as “consumer” should also be defined in the final rules. For clarity and consistency, the final rules add definitions of the following terms by reference to the FCRA's statutory definitions: “adverse action” is defined in paragraph (a); “consumer” is defined in paragraph (d); “consumer report” is defined in paragraph (f); “consumer reporting agency” is defined in paragraph (g); “firm offer of credit” is defined in paragraph (m); and “person” is defined in paragraph (q).
Proposed § __.72 established the basic rules implementing the risk-based pricing notice requirement of section 615(h). Paragraph (a) stated the general requirement that a person must provide the consumer with a notice if that person both: (i) uses a consumer report in connection with an application for, or a grant, extension, or other provision of, credit to that consumer that is primarily for personal, family, or household purposes; and (ii) based in whole or in part on the consumer report, grants, extends, or otherwise provides credit to that consumer on material terms that are materially less favorable than the most favorable terms available to a substantial proportion of consumers from or through that person. This paragraph mirrored the language in proposed § __.70(a) and generally tracked the statutory language. In the final rules, paragraph (a) is adopted as proposed.
The proposed rules did not define what constitutes “a substantial proportion” of consumers. Some commenters stated that this term was too subjective and should be defined. The Agencies, however, do not believe
While each creditor's “substantial proportion” determination is an individual decision, the Agencies expect that creditors will consider “a substantial proportion” as constituting more than a de minimis percentage, but that may or may not represent a majority. The Agencies caution that creditors should not automatically apply the proportions set forth in the proxy methods when determining what constitutes “a substantial proportion” for purposes of making a direct comparison. Rather, creditors should determine what constitutes “a substantial proportion” based on their own circumstances.
Although the statute would permit various interpretations of “from or through that person,” the Agencies in the proposal interpreted the phrase to refer to the person to whom the obligation is initially payable,
Many commenters generally agreed that it is appropriate to require the original creditor to provide the risk-based pricing notice, rather than a broker or other intermediary. Some commenters, however, suggested that the Agencies require intermediaries to provide the notices in certain contexts, such as automobile or mortgage lending, instead of the original creditor. Others recommended that the Agencies allow either the original creditor or the intermediary to provide the notice.
The Agencies continue to believe that it is appropriate to require the original creditor, but not a broker or other intermediary, to provide the risk-based pricing notice. An intermediary's decision regarding where to shop a consumer's credit application generally occurs before the material terms are set. Thus, at the time the application is shopped to various creditors, it is too early in the process to perform the direct comparison of material terms required by the statute, even if a consumer report influenced the intermediary's decision regarding where to shop the consumer's credit application. Moreover, a rule requiring intermediaries to provide notices when they shop applications to certain creditors would frequently result in the consumer receiving multiple risk-based pricing notices in connection with a single extension of credit. The Agencies believe that, in general, a consumer would not benefit from receiving more than one risk-based pricing notice in connection with a single extension of credit and requiring multiple notices would increase compliance burdens and costs.
In certain situations, automobile dealers serve as the original creditor, but extend credit contingent on the ability to assign the loan to a third-party—a process known as “three-party financing.” A typical three-party automobile financing transaction involves an automobile dealer, a consumer, and a third-party creditor or financing source. In these transactions, the dealer sells a vehicle to a consumer, the consumer signs a retail installment sale contract with the dealer, and the dealer assigns the contract to a third-party financing source that has notified the dealer that it will purchase the consumer's contract on specified terms. The third-party financing source then services the debt directly with the customer.
Some commenters asserted that in three-party financing transactions, automobile dealers are not engaged in risk-based pricing and therefore should not be subject to the requirements of the rules. These commenters stated that, although the dealer obtains a consumer's credit report in a three-party financing transaction, it does so in order to determine which third-party creditors to send the consumer's credit application, and not to set the terms of the retail installment sale contract. According to these commenters, the rate offered to the consumer by the automobile dealer is not based on the consumer's credit-worthiness, but rather on the combination of the “buy” rate—the wholesale rate at which the third-party creditor has indicated it will purchase the consumer's loan (which is determined, in part, by the third-party creditor's underwriting standards)—and the retail margin the dealer has been able to negotiate with the consumer. These commenters stated that in such circumstances, the automobile dealer is not engaged in risk-based pricing because it is the third-party creditor, not the dealer, who analyzes the consumer's credit-worthiness.
The Agencies disagree with the commenters' contention that three-party financing does not involve risk-based pricing by the automobile dealer. In the examples provided by the commenters, the automobile dealer uses a consumer report in connection with an application for credit to determine which third-party financing source it will attempt to assign the retail installment sale contract, and on what material terms. The material terms of the sales contract—specifically the annual percentage rate of the automobile loan—are based, in part, on the “buy” rate offered or expected to be offered by the third-party financing source. The automobile dealer's use of a consumer report to determine which third-party financing source is likely to purchase the retail installment sale contract and at what “buy rate,” and to set the annual percentage rate based in part on the “buy rate,” is conduct that fits squarely within the description of risk-based pricing in § __.72(a) of the final rules. Thus, automobile dealers that are original creditors in a three-party financing transaction must provide risk-based pricing notices to consumers, in accordance with the rules.
Commenters also suggested that the Agencies allow the original creditor to provide a risk-based pricing notice to all consumers who apply for credit, including those who did not receive materially less favorable terms. However, the statute's general rule does not suggest that a notice should be provided to every consumer who applies for credit. Moreover, the risk-based pricing notice requirement was designed to be a substitute for adverse action notices when a consumer received less favorable credit terms based on his or her consumer report, rather than being denied credit.
Under the final rules, a person is required to provide notice only to consumers to whom it “grants, extends, or otherwise provides credit.” Except as discussed below, this generally refers to any consumer who applies and is approved for credit. A person does not grant, extend, or otherwise provide credit to a consumer who merely acts as a guarantor, co-signer, surety, or endorser for another consumer who applies and is approved for credit. As noted above, a guarantor, co-signer, surety, or endorser simply supports, and assumes liability for, credit granted, extended, or provided to a consumer, but does not itself receive a grant, extension, or other provision of credit.
Some commenters requested that the Agencies clarify whether a notice is required when a person grants credit, but a consumer does not accept the credit. As explained below in the discussion of § __.73(c), a person is generally only required to provide a notice before consummation in the case of closed-end credit and before the first transaction in the case of open-end credit. A person may grant credit to a consumer, and the consumer may reject the offer of credit before a notice is required to be provided. Thus, some consumers who are granted credit may not receive a notice if they decline that credit before they are given the notice. In practice, however, some of these consumers may receive risk-based pricing notices if creditors provide notices at the time the decision to grant, extend, or provide credit is communicated to the consumer.
The Agencies proposed three methods that a person could use to determine which consumers must receive a risk-based pricing notice. The proposed direct comparison method would permit a person to apply the statutory test and determine on a case-by-case basis whether a consumer received from the person materially less favorable terms than the terms a substantial proportion of consumers received from that person. The Agencies also proposed two proxy methods: the credit score proxy method and the tiered pricing method. Under the credit score proxy method, a person could comply with the rules by (i) determining the credit score that represents the point at which approximately 40 percent of its consumers have higher credit scores and approximately 60 percent of its consumers have lower credit scores, and (ii) providing a risk-based pricing notice to each consumer with a credit score below that cutoff score. Under the tiered pricing method, a person that sets the material terms of credit granted, extended, or otherwise provided to a consumer by placing the consumer within one of a discrete number of pricing tiers could comply with the rules by providing a risk-based pricing notice to those consumers who are not placed in the person's best pricing tier or tiers. Consumers identified by either of these two alternative methods would be deemed to have been granted, extended, or otherwise provided credit on materially less favorable material terms.
Commenters supported the Agencies' decision to provide several methods for determining which consumers must receive a risk-based pricing notice. Many commenters believed the three methods were appropriate.
One commenter suggested an alternative method for determining which consumers must receive a risk-based pricing notice. This commenter suggested that the Agencies permit a method whereby creditors would determine the median annual percentage rate of consumers who received a particular type of product over a period of time and provide the notice to those receiving an annual percentage rate less favorable than that median. This suggestion was not adopted because it poses certain practical difficulties. Because rates fluctuate over time, sometimes quite dramatically, the median would have to be recalculated and recalibrated relatively frequently to retain an accurate measure of the median annual percentage rate. This would likely be impractical in many cases.
Under the proposed rule, creditors could determine, on a case-by-case basis, whether a consumer had received materially less favorable terms than the terms a substantial proportion of consumers have received from or through that creditor. The Agencies acknowledged that when a creditor undertakes direct, consumer-to-consumer comparisons, such comparisons necessarily must take into account the unique aspects of that creditor's business. Creditors would have to compare the transaction at issue with past transactions of a similar type and control for changes in interest rates and other market conditions over time. In addition, the Agencies recognized that a particular method of comparison that is sensible and feasible for one creditor may not be sensible and feasible for another creditor. Thus, the Agencies did not propose a quantitative standard or specific methodology for determining whether a consumer is receiving materially less favorable terms.
Nevertheless, the Agencies stated that the determination should be made in a reasonable manner and outlined their expectations for creditors who use this method. The creditor would first need to identify the appropriate subset of its current or past consumers to compare to any given consumer. The subset would need to be an adequate sample of consumers who have applied for a specific type of credit product. The creditor also would need to tailor its comparison to disregard any underwriting criteria that do not depend upon consumer report information. Such a comparison also would have to account for changes in the creditor's customer base, product offerings, or underwriting criteria over time. Similarly, adjustments would have to be made if the terms offered to consumers in the past are not presently offered to consumers. The Agencies would expect that creditors would provide risk-based pricing notices to some, but fewer than all, of the consumers to whom they extend credit.
Many commenters believed the direct comparison method would likely be impractical for most creditors. Some stated that the method was too subjective. Commenters nevertheless recommended that the option should be retained in the final rules. Industry
In the final rules, § __.72(b) is generally adopted as proposed, with certain changes. The Agencies have substituted the term “specific type of credit product” for the proposed terms “similar types of transactions” and “given class of products” in the final rules in order to eliminate ambiguity in the terminology. The final rules define the term “specific type of credit product” to mean “one or more credit products with similar features that are designed for similar purposes.” The final rules also provide examples of what constitutes a specific type of credit product, such as student loans, new auto loans, used auto loan, and others. The Agencies have also made non-substantive changes for clarity.
The Agencies recognize that different creditors' consideration of various factors when making direct comparisons may result in two creditors reaching opposite conclusions about the materiality of the same difference in annual percentage rates. For example, a credit card issuer considering these factors may conclude that a one-quarter percentage point difference in the annual percentage rate is not material, whereas a mortgage lender may conclude that a one-quarter percentage point difference in the annual percentage rate is material. In assessing the extent of the difference between two sets of material terms, a creditor should consider how much the consumer's cost of credit would increase as a result of receiving the less favorable material terms and whether that difference is likely to be important to a reasonable consumer.
Creditors may use one of the alternative methods, set forth below, if they determine the direct comparison method is not practical. The Agencies note that although a person may use the alternative methods, for purposes of consistency a person must use the same method to evaluate all consumers who are granted, extended, or otherwise provided a specific type of credit product from or through that person. For example, if a creditor uses the credit score proxy method to evaluate consumers who obtain credit to finance the purchase of a new automobile, the creditor must use that method for all such consumers for new automobile loans. On the other hand, the Agencies recognize that the feasibility of these methods may vary for different types of credit products, and creditors may use different methods for different types of credit products.
Proposed § __.72(b)(1) set forth the credit score proxy method for determining which consumers should receive risk-based pricing notices. That subsection discussed the credit score proxy method; how to determine the cutoff score when using this method and how to recalculate that cutoff score; how to determine the cutoff score when using two or more credit scores; and how to determine a cutoff score when a credit score is not available. In the final rules, the credit score proxy method is adopted generally as proposed. However, the final rules contain some modifications from the proposal, as discussed below, made in response to comments received and the Agencies' own analysis.
Proposed paragraph (b)(1)(i) set forth the credit score proxy method. Under this method, a person that sets the material terms of credit granted, extended, or otherwise provided to a consumer, based in whole or in part on a credit score, would comply with the rules by (i) determining the credit score that represents the point at which approximately 40 percent of its consumers have higher credit scores and approximately 60 percent of its consumers have lower credit scores, and (ii) providing a risk-based pricing notice to each consumer with a credit score below that cutoff score.
The credit score proxy method focused on a single variable: the consumer's credit score. A credit score obtained from an entity regularly engaged in the business of selling credit scores is based on information in a consumer report. For a creditor that obtains such a credit score, the credit score proxy method generally would eliminate the influence of variables that are not derived from information in a consumer report, such as the consumer's income, the term of the loan, or the amount of any down payment. In effect, this method would substitute a comparison of the credit scores of different consumers as a proxy for a comparison of the material terms offered to different consumers.
Commenters' suggestions regarding an appropriate cutoff point varied, but many suggested that the Agencies modify the proposed 40 percent/60 percent cutoff score point. Many commenters generally believed the cutoff score should be at a point where less than 60 percent of consumers receive the risk-based pricing notice. For example, some commenters believed the point at which a cutoff score is set should be where 50 percent of consumers have higher credit scores and 50 percent have lower credit scores, such that only those 50 percent of consumers with lower credit scores receive the risk-based pricing notice. The Agencies continue to believe that setting the standard for the cutoff score at a point that requires notices to be provided to the approximately 60 percent of a creditor's consumers who have the lowest credit scores is appropriate and reasonable. For example, one major credit score developer has published a national distribution of its scores, which indicates that approximately 40 percent of consumers receive scores that would likely enable them to qualify for the most favorable terms available.
One commenter requested greater flexibility to determine the cutoff score where the creditor could demonstrate that the 40 percent/60 percent cutoff score did not reflect the creditor's own lending experience. In the final rules, a new § __.72(b)(1)(ii) is adopted to address such situations and an example is added under § __.72(b)(1)(v)(B) to demonstrate this alternative.
In the case of credit that has been granted, extended, or provided on the most favorable material terms to more than 40 percent of consumers, § __.72(b)(1)(ii) of the final rules permits a person to set its cutoff score
This alternative approach may reduce the number of risk-based pricing notices provided to consumers who are granted, extended, or provided credit on the most favorable material terms as compared with strictly applying the 40 percent/60 percent approach. In the example provided above, for instance, the creditor may provide notices only to the 20 percent of consumers who actually received credit on material terms other than the most favorable terms. If the same creditor had used the credit score proxy method, the creditor would have to provide notices to approximately 60 percent of consumers, many of whom likely would have received credit on the most favorable terms. The Agencies believe it is appropriate to minimize, where possible, the number of consumers who receive risk-based pricing notices and also receive the creditor's most favorable terms. However, to avoid undermining the basic purpose of the statute, the alternative approach does not permit risk-based pricing notices to be provided to more than approximately 60 percent of consumers. Thus, if credit has been granted, extended, or provided on the most favorable material terms to less than 40 percent of a creditor's consumers, a creditor may not use the alternative approach.
Finally, one commenter requested that the Agencies clarify that the appropriate population to consider when setting the cutoff score is “accepted applicants.” The language in the final rules is revised to clarify the appropriate population to consider when setting the cutoff score in a manner that more closely tracks the language of the statute. Thus, the appropriate population to consider is consumers to whom the creditor grants, extends, or otherwise provides credit, regardless of whether those consumers decide to accept and use the credit.
Proposed paragraph (b)(1)(ii) described two methods for determining the cutoff score. In general, creditors would be required to use a sampling approach. Under this approach, a person that currently uses risk-based pricing with respect to the credit products it offers would calculate the cutoff score by considering the credit scores of all or a representative sample of the consumers to whom it has granted, extended, or otherwise provided credit. Where a creditor's customer base or underwriting standards varied significantly among different classes of credit products, such as mortgages, credit cards, automobile loans, and student loans, the proposal would have required creditors to calculate separate cutoff scores for different classes of products based on representative samples of consumers offered that type of credit.
The Agencies recognized that the sampling approach would not be feasible for some creditors, such as new entrants to the credit business, entities that introduce new credit products, or entities that have just started to use risk-based pricing and have not yet developed a representative sample of consumers. Thus, the Agencies proposed to allow such creditors initially to determine the appropriate cutoff score based on information from appropriate market research or relevant third-party sources for similar products, such as information from companies that develop credit scores. In addition, the Agencies proposed to permit a creditor that acquired a credit portfolio as a result of a merger or acquisition to determine the cutoff score based on information it received from the merged or acquired party.
The Agencies received few comments regarding these provisions, and they are generally adopted as proposed in renumbered paragraphs (b)(1)(iii)(A) and (b)(1)(iii)(B) in the final rules, with minor changes. An acquisition of a portfolio could be the result of a person either merging with or acquiring a party or acquiring a portfolio, but not the previous owner of the portfolio. Therefore, the language stating that a person may determine its cutoff score based on information from a “merged or acquired party” has been revised in the final rules to state that the cutoff score may be based on information from a “party which it acquired, with which it merged, or from which it acquired the portfolio.”
The Agencies note that all of these approaches to determining the cutoff score apply to the 40 percent/60 percent cutoff score proxy method. A person using the alternative to the 40/60 percent cutoff score proxy method, however, may only make its determination of the cutoff score either using the sampling approach or, if a person acquires a credit portfolio as a result of a merger or acquisition, by basing its determination on information from the party which it acquired, with which it merged, or from which it acquired the portfolio.
Proposed paragraph (b)(1)(ii)(C) addressed the recalculation of cutoff scores. As explained in the proposal, the Agencies understand that the distribution of credit scores for a creditor's customer base may shift over time. It is important to recalculate the cutoff score from time to time, but the time period between recalculations should be long enough so that the rule does not require continual sampling. On the other hand, the Agencies also indicated in the proposal that, to obtain a representative sample, the creditor must use an appropriate sampling period in order to minimize the risk of introducing distortions, such as seasonal variations, into the sampling. Therefore, the Agencies proposed to require persons using the sampling approach to recalculate their cutoff scores at least every two years.
As proposed, a person who used secondary sources to determine its cutoff score, however, generally would
Many commenters believed that re-assessing the cutoff score every two years, or every year when a cutoff score is derived from market research, third-party data, or information from a merged or acquired party, was appropriate. Commenters generally agreed with allowing the use of secondary sources to identify the cutoff score in the circumstances proposed, and some suggested that the Agencies allow creditors to use such secondary sources in all circumstances.
The general two-year reassessment requirement for cutoff scores is retained in the final rules. However, the final rules have been revised to reflect the language change discussed above regarding certain secondary sources, which provides that a person may determine its cutoff score based on information from a “party which it acquired, with which it merged, or from which it acquired a portfolio.” The final rules also are revised with regard to situations where a person is permitted to use a cutoff score derived from market research, third-party data, or information from a party which it acquired, with which it merged, or from which it acquired a portfolio. In those situations, if a person does not grant, extend, or provide credit to new consumers during the one-year period such that the person lacks sufficient data with which to recalculate a cutoff score, the person may continue to use market research, third-party data, or information from a party which it acquired, with which it merged, or from which it acquired a portfolio until it obtains sufficient data. However, the Agencies want to ensure that a creditor engaging in risk-based pricing for new customers does not continue to use a cutoff score based on market research, third-party data, or information from a party which it acquired, with which it merged, or from which it acquired a portfolio for an indefinite period of time. Therefore, renumbered paragraph (b)(1)(iii)(C) of the final rules provides that if the person has granted, extended, or provided credit to some new consumers within two years, the person must recalculate the cutoff score using the sampling approach described in paragraph (b)(1)(iii)(A).
Proposed paragraph (b)(1)(ii)(D) addressed the situation where a creditor uses two or more credit scores in setting the material terms of credit. The proposal stated that if a person using the credit score proxy method generally used two or more scores in setting the material terms of credit granted, extended, or otherwise provided to a consumer, the person must determine the appropriate cutoff score based on how the person evaluates the multiple credit scores when making credit decisions. For example, if a creditor generally purchased two scores for each consumer and used the average of those two scores when setting the material terms of credit, the proposal would have required the creditor to use the average of its consumers' scores when calculating its cutoff score. In circumstances where creditors did not consistently use the same method for evaluating multiple scores, however, the proposed rules would have required the creditor to use a reasonable means for determining the appropriate cutoff score and provided a safe harbor for a creditor that used either a method that the creditor regularly used or the average credit score for each consumer as the means of calculating the cutoff score.
The Agencies received few comments regarding this paragraph, and it is generally adopted as proposed as renumbered paragraph (b)(1)(iii)(D), with minor changes.
For a consumer that does not have a credit score, proposed paragraph (b)(1)(iii) provided that the person using the credit score proxy method must assume that a consumer for whom a credit score is not available receives credit on material terms that are materially less favorable than the most favorable credit terms offered to a substantial proportion of consumers, and provide a risk-based pricing notice to that consumer.
A few commenters objected to the Agencies' assumption that consumers without credit scores are likely to receive less favorable terms and should receive a risk-based pricing notice, while one commenter believed the assumption was correct. Another commenter believed the Agencies should make an exception to the default rule in instances where the presumption is incorrect. The Agencies continue to believe the assumption regarding consumers without credit scores is appropriate. Initiatives undertaken to promote the use of non-traditional data, such as utility, telecommunications, and rental housing data, in consumer reports and credit scoring support the Agencies' belief that consumers who lack credit scores may have greater difficulty obtaining credit, or obtaining credit on the most favorable terms available. Although there may be isolated cases where a consumer without a credit score obtains the most favorable terms, the Agencies do not believe that an exception is warranted in such cases because the notice would provide information to the consumer that may be relevant to the consumer for future transactions, where the most favorable terms may not be offered if the consumer has no credit score. Thus, the substance of this provision is adopted as proposed in renumbered paragraph (b)(1)(iv) of the final rules, with a change in title and other non-substantive revisions.
The proposal included examples of how a credit card issuer and an auto lender could apply the credit score proxy method. The Agencies have retained these examples in the final rules, and added another example of a credit card issuer to illustrate the alternative approach discussed above.
Proposed paragraph (b)(2) set forth the tiered pricing method for determining which consumers should receive a risk-based pricing notice. The general rule in proposed paragraph (b)(2)(i) provided that a person that sets the material terms of credit granted, extended, or otherwise provided to a consumer by placing the consumer within one of a discrete number of pricing tiers, based in whole or in part on a consumer report, may use the tiered pricing method. Pricing tiers could be reflected in a rate sheet that lists different rates available to the consumer depending upon information in a consumer report, such as the consumer's credit score, among other factors. For example, if a creditor offers automobile loans for which the annual percentage rate will be set at seven, nine, or eleven percent based in whole or in part on information from a consumer report, the creditor would only need to consider which annual percentage rate pricing tier applies to a consumer in order to determine whether the consumer should receive a risk-
Proposed paragraph (b)(2)(ii) described the application of the tiered pricing method when a person using this method has four or fewer pricing tiers. Proposed paragraph (b)(2)(iii) described the application of the tiered pricing method when a person using this method has five or more tiers. Each paragraph provided an example to illustrate the application of the tiered pricing method.
Some commenters suggested that the Agencies change the number of pricing tiers for which a notice must be sent. Those commenters generally believed that consumers falling into a greater number of the top, or lower-priced, tiers should not receive a risk-based pricing notice. Several commenters agreed with the Agencies' proposal to focus only on the number and percentage of tiers, rather than the number or percentage of consumers who are assigned to each tier. One commenter, however, suggested that the Agencies should allow creditors to consider the percentage of accepted consumers assigned to each tier and adjust the numbers of tiers receiving a notice accordingly.
In the proposal, the Agencies considered the possibility that creditors may attempt to circumvent the tiered pricing method by establishing an additional tier or tiers for which no consumers will likely qualify. The Agencies stated that a creditor using the tiered pricing method would not be permitted to consider tiers for which no consumers have qualified nor are reasonably expected to qualify, and requested comment on whether the proposed rules should be modified to prevent circumvention. Commenters generally did not believe creditors would seek to circumvent the tiered pricing method by establishing an additional tier or tiers for which no consumers will likely qualify.
Section __.72(b)(2), the tiered pricing method, is generally adopted as proposed in the final rules, with some non-substantive changes. Under the final rules, where there are four or fewer pricing tiers, a person must provide a risk-based pricing notice to each consumer who does not qualify for the top, or lowest-priced, tier. Where there are five or more pricing tiers, a person using the tiered pricing method must send a risk-based pricing notice to each consumer who does not qualify for the top two (lowest-priced) tiers, plus any other tier that represents at least the top 30 percent but no more than the top 40 percent of the total number of tiers. As noted in the proposal, creditors may use different pricing tiers for different types of credit products, such as automobile loans and boat loans. If a creditor uses different pricing tiers for different products, a separate analysis is required for each product for which different tiers apply. If the same tiers apply regardless of the product, then a creditor need not distinguish between those products.
Proposed paragraph (c) set forth special provisions applicable to credit card issuers. Proposed paragraph (c)(1) generally would have required a credit card issuer to provide a risk-based pricing notice to a consumer if: (i) the consumer applied for a credit card in connection with an application program, such as a direct-mail or take-one offer, or a pre-screened solicitation, for which more than a single possible purchase annual percentage rate may apply; and (ii) based in whole or in part on that consumer's consumer report, the card issuer provided a credit card to the consumer with a purchase annual percentage rate that is higher than the lowest purchase annual percentage rate available under that application or solicitation.
Proposed paragraph (c)(2) described those circumstances in which a credit card issuer would not have been required to provide a risk-based pricing notice. Under this provision, a credit card issuer would not be required to provide a risk-based pricing notice to a consumer if the consumer applied for a credit card for which the creditor provides a single purchase annual percentage rate (excluding temporary and penalty rates). In addition, a credit card issuer would not be required to provide a risk-based pricing notice to a consumer if the consumer is offered the lowest purchase annual percentage rate available under the credit card offer for which the consumer applied, even if a lower rate is available from that issuer under a different credit card offer. Proposed paragraph (c)(3) set forth an example of the application of the risk-based pricing rules to a credit card solicitation containing multiple possible purchase annual percentage rates.
The proposed rule was based on the assumption that when a credit card issuer offers a range of rates within a single solicitation or offer, the consumer applies for the best rate available under that offer. Some industry commenters challenged this assumption, stating that consumers are applying for the best rate for which they qualify within the range of rates in the offer of credit. However, if the Agencies were to adopt this suggestion, then no consumers who apply for credit cards would receive risk-based pricing notices. The Agencies do not believe this would be consistent with the purpose of the statute. Accordingly, the final rules are based on the assumption that a consumer applies for the best rate available under a credit card offer.
Some commenters requested that the Agencies clarify whether all of the risk-based pricing and exception notice options, including the credit score proxy and tiered pricing methods, would be available to credit card issuers. The final rules have been revised to clarify that credit card issuers may comply with the rules by using either the special method for credit card issuers or any of the other methods permitted by the rules. When using the special method for credit cards, a card issuer determines which consumers must receive a notice on an offer-by-offer basis. However, if a credit card issuer opts to use the credit score proxy method or the tiered pricing method, it must determine which consumers must receive a notice through an analysis of the issuer's entire portfolio, rather than on an offer-by-offer basis.
The Agencies have also revised the language that states that a credit card issuer using this option must make its determination regarding whether a risk-based pricing notice is required to be provided to a consumer based solely on a purchase annual percentage rate. There may be instances where an issuer offers a credit card that does not have a purchase annual percentage rate, such as credit cards that may only be used for cash advances or balance transfers. To clarify that credit card issuers may also apply these special provisions to credit cards that do not have a purchase annual percentage rate, the final rules refer to the “annual percentage rate referenced in § __.71(n)(1)(ii)” rather than the “purchase annual percentage rate.” The annual percentage rate to be applied in this provision, therefore, is either the purchase annual percentage rate or, in the case of a credit card that has no purchase annual percentage rate, the annual percentage rate that varies based on information in a consumer report and that has the most significant financial impact on consumers.
The special provisions applicable to credit cards are otherwise adopted as proposed in paragraph (c) of the final rules, with some non-substantive changes.
Proposed paragraph (d) described how the risk-based pricing rules apply
Industry commenters objected to this requirement, stating that account review is not covered by the statute. They also argued that the provision was not needed because adverse action notices were already provided when annual percentage rates are increased during account review.
Paragraph (d) of the final rules is adopted as proposed. The legislative history indicates that the statute was meant to apply to account reviews, as well as to new accounts.
Proposed § __.73 set forth the content, form, and timing requirements for risk-based pricing notices that would apply whether the creditor made the direct, consumer-to-consumer comparisons described in the general rule or used one of the proxy methods.
Proposed paragraph (a)(1) stated the general content requirements for risk-based pricing notices (hereafter “general risk-based pricing notice”). Proposed paragraph (a)(2) set forth the content requirements for any risk-based pricing notice required to be given as a result of the use of a consumer report in an account review (hereafter “account review notice”). The proposal provided that the general risk-based pricing notice must include a statement that the person sending the notice has set the terms of credit offered, such as the annual percentage rate, based on information from a consumer report and a statement that those terms may be less favorable than the terms offered to consumers with better credit histories. Similarly, the proposal provided that the account review notice must include a statement that the person sending the notice has conducted a review of the account based in whole or in part on information from a consumer report and a statement that as a result of that review the annual percentage rate on the account has been increased. In connection with both the general risk-based pricing notice and the account review notice, the proposal also provided that the notices must: (i) State that a consumer report includes information about a consumer's credit history and the type of information included in that credit history; (ii) state that the consumer is encouraged to verify the accuracy of the information contained in the consumer report and has the right to dispute any inaccurate information in the consumer report; (iii) state the identity of each consumer reporting agency that furnished a consumer report used in the credit decision or account review; (iv) state that federal law gives the consumer a right to obtain a free copy of his or her consumer report from that consumer reporting agency for 60 days after receipt of the notice; (v) inform the consumer how to obtain such a consumer report; and (vi) direct the consumer to the web sites of the Board and the Commission to obtain more information about consumer reports. Paragraphs (a)(1) and (a)(2) are adopted as proposed in the final rules, with minor revisions for clarity.
The proposed rules did not require the notice to state that the terms offered to the consumer “are” or “will be” less favorable than the terms offered to other consumers. The Agencies were concerned that such a statement would not be accurate in certain cases if the creditor could not precisely distinguish consumers who received the most favorable terms from those who did not. For example, if a creditor applies the credit score proxy method, some consumers may receive a risk-based pricing notice even if they receive the most favorable terms available from that creditor. This may occur, for instance, if factors other than the consumer report, such as income or down payment amount, influenced the pricing decision.
Proposed paragraph (a)(1)(iii) provided that the general risk-based pricing notice must state that the terms offered to the consumer may be less favorable than the terms offered to consumers with better credit histories. This statement related the general information about credit history and credit pricing contained in the notice to the specific consumer. Absent this statement, the Agencies were concerned that some consumers may assume that the general information had no relevance to them. This statement was designed to carry out the statutory purpose of prompting consumers to check their consumer reports for any errors.
Some commenters urged the Agencies to delete the statement in proposed paragraph (a)(1)(iii) because they believed it was negative, potentially confusing to customers, and potentially misleading. For example, one commenter believed that the statement erroneously implied that other creditors would offer better terms. These commenters suggested replacing this language with neutral language that encouraged consumers to shop for better credit terms. Other commenters, however, stated that the language was accurate and should be retained. In the final rules, the Agencies have retained the phrase “terms offered to you may be less favorable” because they continue to believe that it puts consumers on notice that they should check their consumer reports for errors and accurately depicts the reason why consumers are receiving the notice.
Proposed paragraphs (a)(1)(vi) and (a)(2)(vi) implemented the statutory requirement in paragraph 615(h)(5)(C) of the FCRA that the notices include a statement informing the consumer that the consumer may obtain a copy of a consumer report without charge from the consumer reporting agency identified in the risk-based pricing notice. These paragraphs stated that the notice must include a statement that federal law gives the consumer the right to obtain a consumer report from the consumer reporting agency or agencies identified in the notice without charge for 60 days after receipt of the notice. Although section 615(h) of the FCRA does not prescribe any time period within which the consumer may obtain a free consumer report, the 60-day time period was proposed for consistency with the time limit contained in the adverse action notice provisions in section 612(b) of the FCRA. Under section 612(b), any right to a free consumer report is valid for 60 days
Some industry commenters urged the Agencies to read the statute as not giving the consumer the right to a free consumer report upon receipt of a risk-based pricing notice, arguing that section 311 of the FACT Act did not create this right. These industry representatives stated that section 615(h) of the FCRA does not give the consumer a right to a separate free consumer report, but that the reference in that section to a free consumer report refers to the free annual consumer report described in section 612(a) of the FCRA. Consumer groups, on the other hand, stated that section 615(h) gives a consumer a right to a separate free consumer report upon receipt of a risk-based pricing notice. Several commenters noted that if the Agencies believe that receipt of a risk based pricing notice gives the consumer the right to a free consumer report, then the 60-day time period in which the consumer may obtain the report is appropriate.
The Agencies read the statute as creating the right to a free consumer report upon receipt of a risk-based pricing notice and believe 60 days is an appropriate time period in which the consumer can request the report. Section 612(b) of the FCRA provides for free consumer reports to consumers who have received a notification pursuant to “section 615” of the FCRA. Section 615 of the FCRA includes both the adverse action notice requirement (section 615(a)), the risk-based pricing notice provision (section 615(h)), and certain other requirements. Accordingly, the Agencies read the reference to the free consumer report in section 612(b) to apply equally when notices are given under section 615(a) and section 615(h)(5)(C),
One commenter requested that the Agencies add a provision requiring a disclosure of each consumer's name and the date the notice was provided in each form. The Agencies are not requiring this information to be included in the notices. However, as discussed below, the Agencies have included among acceptable changes to the model forms “including the name of the consumer, transaction identification numbers, a date, and other information that will assist in identifying the transaction to which the form pertains.” Therefore, a creditor may elect to add this information to its notice.
Several commenters requested that the Agencies add other disclosures to the notices. Some stated that the notice should contain a more complete statement regarding why the consumer is receiving the notice. For example, one commenter suggested the notice state that the notice is required by Federal law. Several commenters suggested that the notice should state that the consumer reporting agencies were not involved in the decision to extend credit. Some commenters asked the Agencies to add a statement to the notice to clarify that the terms of credit may have been established based on creditworthiness criteria other than a credit score, such as income or loan-to-value ratio. The Agencies do not believe that these suggested additions are critical pieces of information for the consumer. These statements also would add to the length of the notice and potentially detract from more important pieces of information conveyed in the notice. Therefore, these suggestions have not been adopted.
Proposed paragraph (b) set forth the format requirements for risk-based pricing notices. Proposed paragraph (b)(1)(i) provided that risk-based pricing notices must be clear and conspicuous. Proposed paragraph (b)(1)(ii) specified that persons subject to the rule would be permitted to make the disclosures in writing, orally, or electronically.
Proposed paragraph (b)(2) referenced the model forms of the risk-based pricing notices required by §§ __.72(a) and (c), and by § __.72(d), which were contained in Appendices H-1 and H-2 of the Board's proposed rule and Appendices B-1 and B-2 of the Commission's proposed rule. Appropriate use of these model forms would be deemed to be a safe harbor for compliance with the risk-based pricing notice requirements. Use of these model forms would be optional.
The Agencies received relatively few comments regarding the format of the risk-based pricing notices. Most of the comments received were requests for clarification regarding how much the notices could deviate from the model forms while still retaining the protection of the safe harbor. The Agencies have adopted some of the suggestions made by commenters, which are discussed below in the Section-by-Section Analysis regarding the model forms.
Paragraph (b) is adopted as proposed.
Proposed paragraph (c) set forth the timing requirements for providing risk-based pricing notices in connection with extensions of closed-end and open-end credit, as well as credit account reviews. For closed-end transactions, the proposal provided that the notice must be provided to the consumer before consummation of the transaction, but not earlier than the time the decision to approve an application for, or a grant, extension, or other provision of, credit is communicated to the consumer by the person required to give the notice. For open-end credit, the proposal provided that the notice must be provided to the consumer before the first transaction is made under the plan, but not earlier than the time the decision to approve an application for, or a grant, extension, or other provision of credit is communicated to the consumer. Finally, for account reviews, the proposal provided that the notice must be provided to the consumer at the time the decision to increase the annual percentage rate based on a consumer report is communicated to the consumer by the person required to give the notice, or if no notice of the increase in the annual percentage rate is provided to the consumer prior to the effective date of the change, no later than five days after the effective date of the change in the annual percentage rate.
The timing rules in paragraph (c) are generally adopted as proposed, with several minor changes for clarification. In the case of the provision in paragraph (c)(iii) addressing account reviews where no notice of an increase in annual percentage rate is provided, the final rules add the phrase “to the extent permitted by law” to clarify that the timing provision applies only when an increase in the annual percentage rate without prior notice is legally permissible.
Two commenters believed the proposed timing requirements were appropriate. Other commenters, however, stated that because the statute allows for the notices to be given at the time of application, the Agencies should require a general educational notice at application rather than a personalized notice. Commenters also argued that this notice should contain a reminder to obtain a free annual consumer report, rather than create a right to a free consumer report in addition to the free annual consumer reports.
The Agencies considered whether to allow the risk-based pricing notice to be provided at the time of application, but have rejected that approach. Instead, the Agencies have concluded that the notice generally should be provided no earlier than the time when the decision to approve the credit is communicated to the consumer. The Agencies believe that requiring the notice to be provided later than the time of application gives effect to the statute's general rule by ensuring that risk-based pricing notices are provided only to those consumers who may receive materially less favorable material terms. The Agencies believe that a notice at the time of application is less likely to be noticed, read, and acted upon by consumers than a more targeted, personalized notice. The Agencies also believe that permitting the notice to be provided at the time of application would increase significantly the number of risk-based pricing notices provided to consumers compared to the number of notices that would be provided later in the credit process. The final rules are based on the Agencies' reading of section 615(h) as giving consumers a right to a separate free consumer report upon receipt of a risk-based pricing notice. Therefore, permitting application notices could greatly expand the number of free reports to which consumers may be entitled. This could be costly for all parties, and may result in costs being passed on to consumers.
Some commenters suggested that when a notice is provided upon account review, the Agencies should require that the notice be provided with the next periodic statement or at another later date. The Agencies continue to believe that providing the notice no later than five days after the effective date of the change in annual percentage rate is appropriate, because the effectiveness of the notice may be diminished if notice is not provided promptly after the decision to increase the rate is made. Accordingly, the timing requirements for the account review notice generally have been adopted as proposed, with the addition of the language “(to the extent permitted by law),” as discussed above.
Many commenters objected to the Agencies' timing requirements as applied to indirect automobile lending. These commenters stated that fulfilling the notice requirement at or prior to consummation would be impossible in instances where the creditor does not know that the dealer has placed a loan with the creditor until after the loan documents have been signed by the consumer. The commenters believed that the creditor should be permitted to send a notice after it receives necessary information or within a reasonable time after consummation, such as within 30 days or when the welcome letter is sent to the consumer. Alternatively, some commenters argued that the dealer arranging the loan should have the compliance responsibility.
In the final rules, the Agencies retained the general timing requirement for automobile lending. In some cases, the creditor directly communicates with the consumer about the transaction before consummation. For example, a consumer may obtain credit for an automobile purchase at a credit union or other financial institution prior to purchasing the vehicle. In these circumstances, the creditor should be able to provide a notice described in §§ __.72(a), __.74(e), or __.74(f) to the consumer within the time periods set forth in paragraph (c)(1)(i) of this section, § __.74(e)(3), or § __.74(f)(4), as applicable.
The Agencies recognize, however, that the nature of indirect automobile lending may prevent creditors themselves from fulfilling their compliance responsibilities prior to consummation without relying upon the dealer or other party as an agent. In many cases, the creditor may approve and set the terms of credit for a particular consumer without any direct interaction with that consumer. In other circumstances, the creditor may not receive a completed application until after a consumer has already purchased the automobile. For example, a consumer may purchase a car from a dealer on a Saturday and sign the loan documents. The creditor, however, may not receive or have a chance to review the loan documents provided by the dealer until the creditor resumes business hours on Monday. The creditor would not have the opportunity to communicate with the consumer before it accepts or refuses the loan.
To account for such circumstances, the Agencies in the final rules have provided that when a person to whom a credit obligation is initially payable grants, extends, or otherwise provides credit to a consumer for the purpose of financing the purchase of an automobile from an auto dealer or other party that is not affiliated with the person, any requirement to provide a risk-based pricing notice pursuant to this subpart is satisfied if the person arranges to have the auto dealer or other party provide a notice described in §§ __.72(a), __.74(e), or __.74(f) to the consumer on its behalf within the time periods set forth in paragraph (c)(1)(i) of this section, § __.74(e)(3), or § __.74(f)(4), as applicable, and maintains reasonable policies and procedures to verify that the auto dealer or other party provides such notice to the consumer within the applicable time periods.
The Agencies recognize that the auto dealer may not use the same credit score that the creditor uses. For example, the dealer may obtain a credit score from one consumer reporting agency, while the creditor obtains a credit score from a different consumer reporting agency. Because the auto dealer may not know which credit score the creditor will use, it is not feasible in these circumstances to require the dealer to disclose the same credit score that the creditor uses. Thus, the final rules provide that if the person to whom the credit obligation is initially payable arranges to have the auto dealer or other party provide a notice described in § __.74(e), the person's obligation is satisfied if the consumer receives a notice containing a credit score obtained by the dealer or other party, even if a different credit score is obtained and used by the person on whose behalf the notice is provided. Moreover, because a dealer may provide a credit score on behalf of a creditor, the dealer, as agent of the creditor, may provide copies of any notice that it provides to a consumer, including a credit score disclosure, to the creditor without becoming a consumer reporting agency.
Many commenters objected to the Agencies' proposed timing requirements as applied in the context of contemporaneous purchase credit (often referred to as “instant credit”). These commenters stated that providing a notice after approval but prior to the first transaction would be infeasible and costly and would substantially delay
Although the Agencies generally believe that the notice is likely to have the greatest utility if it is provided early enough in a transaction to encourage a consumer to check his or her consumer report for inaccuracies, the Agencies also agree with many of the concerns raised by commenters. Accordingly, the Agencies have added a special timing provision in the final rules for certain instant credit scenarios. Under the final rules, when credit under an open-end credit plan is granted, extended, or provided to a consumer in person or by telephone for the purpose of financing the contemporaneous purchase of goods or services, any risk-based pricing notice required to be provided pursuant to this subpart (or the disclosures permitted under § __.74(e) or (f)) may be provided at the earlier of: the time of the first mailing by the person to the consumer after the decision is made to approve the grant, extension, or other provision of open-end credit, such as in a mailing containing the account agreement or a credit card; or within 30 days after the decision to approve the grant, extension, or other provision of credit. This special provision applies only to contemporaneous purchase credit transactions by telephone or in person. The Agencies do not believe that the same operational and privacy concerns apply to online credit transactions. Therefore, in the final rules, the general timing requirements apply when providing risk-based pricing notices for online contemporaneous purchase credit transactions.
Proposed § __.74 set forth a number of exceptions to the general requirements regarding risk-based pricing notices. Each exception is discussed below.
Proposed paragraph (a) provided that notice is not required if the consumer applied for specific material terms and was granted those terms. This exception does not apply if the specific material terms were specified by the person after the consumer applied for or requested credit and after the person obtained a consumer report. This exception implemented the statutory exception in FCRA section 615(h)(3)(A). The proposed exception clarified that “specific material terms” means a single material term or set of material terms, such as a single annual percentage rate, and not a range of alternatives, such as an offer that gives multiple annual percentage rates or a range of annual percentage rates. The example in proposed paragraph (a)(ii) explained that if a consumer received a firm offer of credit from a credit card issuer with a single rate, based in whole or in part on a consumer report, a risk-based pricing notice would not be required if the consumer applied for and received a credit card with that advertised rate. This would be the result because the creditor set the material terms of the offer before, not after, the consumer applied for or requested the credit.
Commenters believed that the proposed exception was appropriate. In the final rules, the application for specific terms exception in § __.74(a) is adopted as proposed, with some non-substantive changes for clarity.
Proposed paragraph (b) provided that a risk-based pricing notice is not required if a creditor has provided or will provide an adverse action notice to the consumer under FCRA section 615(a) in connection with the transaction. This exception implemented the statutory exception in FCRA section 615(h)(3)(B). The proposed exception applied to any risk-based pricing notices otherwise required under the general rule, the rule applicable to credit card issuers, or the rule applicable upon account review, so long as an adverse action notice has been or will be provided to the consumer pursuant to section 615(a) of the FCRA.
Commenters believed that the proposed exception was appropriate. In the final rules, the adverse action exception in § __.74(b) is adopted as proposed, with some non-substantive changes for clarity.
Proposed paragraph (c) provided an exception to the general risk-based pricing rule when consumer reports are used to set the terms in a prescreened solicitation (firm offer of credit). Proposed paragraph (c)(1) stated that a person is not required to provide a risk-based pricing notice if that person (i) obtains a consumer report that is a prescreened list as described in section 604(c)(2) of the FCRA, and (ii) uses that consumer report for the purpose of making a firm offer of credit to the consumer. The proposed exception applied regardless of the terms the creditor may offer to other consumers in other firm offers of credit. In other words, under the proposal, a creditor would not have been required to provide a risk-based pricing notice to a consumer to whom it sends a particular prescreened solicitation just because the creditor sends prescreened solicitations that offer more favorable material terms to another group of consumers.
The Agencies noted that this exception applied only when a consumer report is used to set the terms offered in a prescreened solicitation to a consumer at the pre-application stage, and did not eliminate the requirement to provide a risk-based pricing notice later in connection with the credit extension, pursuant to proposed § __.72. For example, a firm offer of credit may contain several possible rates and, if a consumer applies in response to the offer and does not receive the lowest rate, the creditor generally would be required to provide a risk-based pricing notice to that consumer.
Commenters' views on the proposed exception varied. Some commenters believed this exception was appropriate. Other commenters believed this exception was unnecessary, arguing that because no credit is extended as part of a prescreened solicitation, those solicitations fall outside of the scope of the rule.
The Agencies continue to believe that requiring a notice in connection with prescreened solicitations would not significantly benefit consumers, but would impose substantial burdens on creditors and the credit reporting system. Prescreened solicitations typically are sent to many consumers who meet specific credit-granting criteria provided by a creditor. The Agencies understand that only about one half of one percent of consumers who receive prescreened solicitations respond to them. Therefore, for the vast majority of consumers who are not interested in obtaining credit via the
This exception is consistent with the Agencies' determination that the appropriate time to provide a notice is no earlier than the time the decision to approve the credit application, or to grant, extend, or provide credit, is communicated to the consumer. At the time a creditor sends a prescreened solicitation, the consumer has not made an application or otherwise indicated any interest in the credit. The exception also is consistent with the rule of construction that consumers should receive only one risk-based pricing notice per credit transaction, as discussed below. Absent this exception, some consumers who respond to prescreened solicitations would receive multiple notices in connection with the transaction: the first when they receive the solicitation, and the second when they respond to the solicitation but do not receive the most favorable terms offered in that solicitation (
The Agencies also believe the prescreened solicitations exception provides an important clarification of the statutory requirements. Whether a prescreened solicitation is made “in connection with an application for, or a grant, extension, or other provision of credit”—and, thus, whether it is covered by section 615(h)—may depend on the circumstances of a particular solicitation, including whether a specific consumer actually applies for credit in response to the solicitation. Because the Agencies have created an exception for prescreened solicitations based on their finding, pursuant to section 615(h)(6)(B)(iii), that there is no significant benefit to consumers, the Agencies do not need to determine whether, and under what circumstances, such solicitations are “in connection with” an application for credit.
In the final rules, the prescreened solicitations exception in § __.74(c) is adopted as proposed, with some non-substantive changes to better explain the purpose of the exception.
The Agencies proposed three exceptions to the risk-based pricing notice requirement for creditors that provide a credit score disclosure to consumers, which are described more fully below. The credit score disclosure generally would include the consumer's credit score, along with explanatory information regarding the score and information regarding the use of consumer reports and scores in the underwriting process. Under the proposed exceptions, a creditor would provide this disclosure to any consumer who requested an extension of credit. Thus, a creditor would not need to apply a test to determine which consumers likely were offered or received materially less favorable material terms. The Agencies also proposed an alternate form of the notice to be provided to consumers for whom credit scores are unavailable. As discussed below, these exceptions were proposed under section 615(h)(6)(iii) of the FCRA, which gives the Agencies the authority to create exceptions to the risk-based pricing notice requirement for classes of persons or transactions regarding which the Agencies determine that the notice would not significantly benefit consumers. Unlike a risk-based pricing notice given under proposed § __.72, the notice provided with the credit score disclosure under these proposed exceptions would not give rise to an independent right to a free consumer report.
Proposed paragraph (d) provided an exception to the risk-based pricing notice requirement for creditors offering loans secured by one to four units of residential real property. This exception would permit creditors offering loans to consumers that are secured by residential real property (purchase money mortgages, mortgage refinancings, home-equity lines of credit, and home-equity plans) to comply with the rules by adding certain supplemental disclosures regarding the use of consumer reports to the credit score disclosure they already are required to provide to consumers pursuant to section 609(g) of the FCRA. These creditors could provide this integrated notice to any consumer who requested credit in connection with loans secured by real property and would not be required to compare the terms offered to different consumers, as is required by the general rule.
Proposed paragraph (d)(1) set forth the requirements that a creditor would be required to meet to avail itself of the exception and stated that a creditor is not required to provide a risk-based pricing notice if it complies with this subsection. Paragraph (d)(1)(i) provided that in order to qualify for the exception, the credit requested by the consumer must involve an extension of credit secured by one to four units of residential real property.
Proposed paragraph (d)(1)(ii) set forth the contents of the notice that must be provided to the consumer in order for a creditor to qualify for the exception. Proposed paragraphs (d)(1)(ii)(A)-(d)(1)(ii)(C) would require disclosure of certain background information regarding consumer reports and credit scores, including: (i) A statement that a consumer report is a record of the consumer's credit history and includes information about whether the consumer pays his or her obligations on time and how much the consumer owes to creditors; (ii) a statement that a credit score is a number that takes into account information in a consumer report and that a credit score can change over time to reflect changes in the consumer's credit history; and (iii) a statement that the consumer's credit score can affect whether the consumer can obtain credit and what the cost of that credit will be.
Proposed paragraph (d)(1)(ii)(D) would have required the notice to include all of the information required to be disclosed to the consumer pursuant to section 609(g) of the FCRA. Section 609(g) requires disclosure of: (i) The current credit score of the consumer or the most recent credit score of the consumer that was previously calculated for a purpose related to the extension of credit; (ii) the date on which that score was created; (iii) the name of the person or entity that provided the credit score or credit file on which the credit score was created; (iv) the range of possible credit scores under the model used; and (v) up to four key factors that adversely affected the consumer's credit score (or up to five factors if the number of inquiries made with respect to that consumer report is one of the factors).
For many consumers, a disclosure of the credit score number alone would provide no indication of whether that credit score is favorable, unfavorable, or about average when compared to the credit scores of other consumers. Therefore, proposed paragraph (d)(1)(ii)(E) contained the additional requirement that the notice disclose by clear and readily understandable means either a distribution of credit scores (
Under the proposal, if a creditor chose to disclose the credit score distribution, this information could be presented in the form of a bar graph containing a minimum of six bars, or by a different form of graphical presentation that is clear and readily understandable. If a credit score has a range of 1 to 100, the distribution must be disclosed using that same 1 to 100 scale. For a creditor using the bar graph, each bar would have to illustrate the percentage of consumers with credit scores within the range of scores reflected by that bar. A creditor would not be required to prepare its own bar graph; use of a bar graph obtained from the person providing the credit score that meets the requirements of this paragraph would be deemed compliant.
Alternatively, the proposal would permit the notice to inform the consumer by clear and readily understandable means how his or her credit score compares to the scores of other consumers. As discussed more fully in the Model Forms section below, a concise narrative statement informing the consumer that his or her credit score ranks higher than a specified percentage of consumers would be a clear and readily understandable means of providing this information.
Proposed paragraph (d)(1)(ii)(F) would have required the notice to include a statement that the consumer is encouraged to verify the accuracy of the information contained in the consumer report and has the right to dispute any inaccurate information in the consumer report.
Proposed paragraphs (d)(1)(ii)(G) and (d)(1)(ii)(H) would have required the credit score disclosure to provide the consumer with information about how to obtain his or her consumer report. The notice must state that federal law gives the consumer the right to obtain copies of his or her consumer reports directly from the consumer reporting agencies, including a free consumer report from each of the nationwide consumer reporting agencies once during any 12-month period, and provide contact information for the centralized source from which consumers can obtain their free annual reports. Finally, proposed paragraph (d)(1)(ii)(I) would have required the notice to include a statement directing the consumer to the Web sites of the Board and the Commission to obtain more information about consumer reports.
Proposed paragraph (d)(2) set forth the form that the credit score disclosure must take in order to satisfy the exception. Under the proposal, the notice must be clear and conspicuous, provided on or with the notice required by section 609(g) of the FCRA, and segregated from other information provided to the consumer. The notice would also be provided to the consumer in writing in a form retainable by the consumer. The requirement that the notice be in writing would be satisfied if it is provided in electronic form in accordance with the consumer consent and other applicable provisions of the Electronic Signatures in Global and National Commerce Act (E-Sign Act) (15 U.S.C. 7001
Proposed paragraph (d)(3) described the timing requirements for the notice that would satisfy the exception. The notice would be required to be provided to the consumer concurrently with the notice required by section 609(g) of the FCRA, but in any event at or before consummation of a transaction in the case of closed-end credit or before the first transaction is made under an open-end credit plan. Section 609(g) of the FCRA states that the notice required by that subsection must be provided to the consumer “as soon as reasonably practicable.” It was the Agencies' understanding that industry practice is generally to provide the credit score disclosure within three business days of obtaining a credit score and the Agencies would expect the integrated disclosure generally would be provided within the same timeframe.
Proposed paragraph (d)(4) stated that a model form of the notice described in proposed paragraph (d)(1)(ii), consolidated with the notice required by section 609(g) of the FCRA, is contained in Appendix H-3 of the Board's rules and Appendix B-3 of the Commission's rules. Under the proposal, appropriate use of this model form was deemed to be a safe harbor for compliance with the exception. Use of the model form was optional.
Proposed paragraph (e)(1) set forth a credit score disclosure exception for loans that are not secured by one to four units of residential real property, for which creditors are not required to provide the section 609(g) notice. This exception could be used, for example, by auto lenders, credit card issuers, and student loan companies. Creditors offering loans that are not secured by residential real property could comply with the rules by disclosing a consumer's credit score along with certain additional information.
This proposed exception was similar to the exception proposed for credit secured by residential real property. Consistent with the exception for credit secured by residential real property set forth in proposed paragraph (d), the Agencies proposed this exception under the authority conferred by FCRA section 615(h)(6)(iii). Creditors could provide this notice to any consumer who requested credit in connection with loans that are not secured by real property, without performing a comparison of the terms offered to different consumers.
Proposed paragraph (e)(1) set forth the requirements that a creditor must meet in order to satisfy the exception and stated that a person is not required to provide a risk-based pricing notice if it complies with this subsection. Proposed paragraph (e)(1)(i) stated that in order to qualify for the exception, the credit requested by the consumer must involve credit other than an extension of credit secured by one to four units of residential real property. Thus, a creditor that is obligated to give the notice required by FCRA section 609(g)(1) could not use this exception, but would need to use the exception described in proposed paragraph (d). Proposed paragraphs (e)(1)(ii)(A)-(e)(1)(ii)(C) would have required the notice to include contextual information identical to that set forth in proposed paragraphs (d)(1)(ii)(A)-(d)(1)(ii)(C) for credit secured by residential real property.
Proposed paragraph (e)(1)(ii)(D) would have required disclosure of the current credit score of the consumer or the most recent credit score of the consumer that was previously calculated for a purpose related to the extension of credit. As with the exception under proposed paragraph (d), a person using this exception generally would be required to provide a credit score that was used in connection with the credit decision, though a person that uses a credit score that was not created by a consumer reporting agency, such as a proprietary score, would be permitted to satisfy the exception either by providing the proprietary score to the consumer or by providing to the consumer a credit score and associated information it obtains from an entity regularly engaged in the business of selling credit scores. Similarly, a creditor that does not use a credit score in its credit evaluation process would be permitted to rely on this exception by purchasing and providing to the consumer a credit score and associated information it obtains
Proposed paragraph (e)(1)(ii)(F) would have required that the notice disclose by clear and readily understandable means either a distribution of credit scores (
Proposed paragraphs (e)(1)(ii)(I)-(e)(1)(ii)(L) are identical to proposed paragraphs (d)(1)(ii)(F)-(d)(1)(ii)(I) and would have required that the notice: contain a statement that the consumer is encouraged to verify the accuracy of the consumer report information and has the right to dispute any inaccurate information in the consumer report; provide the consumer with information about how to obtain his or her consumer report; and include a statement directing the consumer to the Web sites of the Board and the Commission to obtain more information about consumer reports. Unlike the notice required by section 609(g), the Agencies did not propose to require this notice to contain up to four key factors that adversely affected the credit score. The Agencies believe that the notice provides sufficient information to enable a consumer to evaluate his or her credit score without including the key factors.
Proposed paragraph (e)(2) set forth the form that the credit score notice must take in order to satisfy the exception. These requirements are the same as the form prescribed for the exception in proposed paragraph (d), except that the form is not provided on or with the notice required by section 609(g) of the FCRA. Proposed paragraph (e)(3) described the timing requirements for the notice that would satisfy the exception, which were also consistent with the timing requirement for the exception for loans secured by residential real property. Proposed paragraph (e)(4) stated that a model form of the notice described in paragraph (e)(1)(ii) is contained in Appendix H-4 of the Board's rules and Appendix B-4 of the Commission's rules. As with the exception for loans secured by residential real property, appropriate use of this model form is deemed to be a safe harbor for compliance with the exception, and use of the model form is optional.
Many commenters supported the two credit score disclosure exceptions. These comments stated that the exceptions would be effective and should be retained in the final rules. Some commenters believed the credit score disclosure exceptions were burdensome, would cause confusion, and exceed the Agencies' statutory authority.
The Agencies continue to believe the credit score disclosure exceptions are appropriate as an alternative means of complying with the rules. The credit score disclosure provides to the consumer free of charge his or her credit score, which is an important piece of individualized information about the consumer's credit history. The notice integrates the score disclosure with additional information that will provide consumers with context for understanding how their credit scores may affect the terms of the offer and how their credit scores compare with the credit scores of other consumers. A consumer who discovers that his or her credit score ranks less favorably than the credit scores of other consumers may have a greater motivation to check his or her consumer report for errors than a consumer who receives the more generic information about consumer reports that will be included in a risk-based pricing notice. By providing a consumer with such specific information about his or her own credit history and how it compares to the credit histories of other consumers, the credit score disclosure and notice likely will provide consumers with equal or greater value than the more generic information a consumer will receive in a risk-based pricing notice. Furthermore, a consumer will obtain this valuable information without having to take action to request a consumer report from a consumer reporting agency. Finally, this specific information can be provided to consumers without the need for creditors to determine whether the terms of some offers are materially less favorable than the terms of other offers. Accordingly, the credit score disclosure exceptions are retained in the final rules as proposed, with certain revisions as discussed below.
Commenters supported the Agencies' conclusion that receipt of an exception notice does not trigger a free consumer report under section 612(b) of the FCRA. When a consumer receives an exception notice, the consumer receives a free credit score as well as specific information to enable the consumer to compare his or her credit score to the credit scores of other consumers. Moreover, consumers who receive free credit scores have other opportunities to obtain free consumer reports, such as the free annual reports.
Some commenters requested that the Agencies clarify in the final rules that a credit score disclosure exception should only be given to those consumers who would otherwise receive a risk-based pricing notice. The credit score disclosure exceptions were created to provide an alternative to the risk-based pricing notices that was potentially simpler for compliance purposes, but that also would provide consumers with information of equal or greater value than the information a consumer would receive in a risk-based pricing notice. Requiring creditors to provide credit score disclosure exception notices only to those who would otherwise receive the risk-based pricing notices would not be consistent with the Agencies' intent to provide a simpler alternative that could reduce the cost and burden associated with determining which consumers must receive notices. Thus, the final rules retain the requirement that in order to use these exceptions to the risk-based pricing disclosure requirements, a person must provide an exception notice to every consumer requesting an extension of credit for a product for which the person uses risk-based pricing, even those who would not otherwise receive a risk-based pricing notice. To clarify this, paragraph (d)(1)(ii) in the final rules is revised to replace the phrase “the consumer” with the phrase “each consumer described in paragraph (d)(1)(i) of this section.” Similarly, paragraph (e)(1)(ii) in the final rules is revised to replace the phrase “the consumer” with the phrase
One commenter believed that the Agencies' statement that a creditor must provide a credit score disclosure exception notice to “all” consumers was too broad, noting that some consumers may not be entitled to receive any type of notice under the rules. The Agencies agree that some consumers would not receive an exception notice. For instance, some consumers may fall outside of the scope of the rule completely, such as consumers who apply for business credit or who apply for a type of credit for which risk-based pricing is not used.
Creditors also do not need to provide an exception notice to a consumer if one of the other exceptions applies. For example, consumers who apply for and receive a specific rate or who receive an adverse action notice pursuant to the exceptions under § __.74(a) and § __.74(b), respectively, are not entitled to a notice. The Agencies note, however, that reliance on the other exceptions may not be possible in certain cases because the timing rules require the credit score disclosure exception notices to be provided to the consumer as soon as reasonably practicable after the credit score is obtained. For example, a mortgage lender may obtain a consumer's credit score and, in order to meet the timing requirements, provide an exception notice to the consumer within several days. However, the lender may ultimately determine after a more lengthy credit underwriting process, that it will not extend credit to the consumer and therefore provide an adverse action notice to the consumer.
The Agencies note that for purposes of providing credit score disclosure exception notices to a consumer as soon as reasonably practicable after a credit score is obtained, what is a reasonably practicable time period may be different depending on the circumstances of the transaction and the type of credit. For example, while it may be reasonably practicable to provide a notice to a consumer in several days in the mortgage lending context, what is reasonably practicable in other forms of credit may be a shorter or longer time period.
Some commenters asked the Agencies to clarify the exception notice requirements in circumstances where more than one credit score is used in making a credit decision. Some commenters urged the Agencies to permit creditors to disclose a single credit score, while another commenter suggested the Agencies permit creditors to disclose either a single credit score or all of the credit scores used in connection with the credit decision.
In the final rules, new §§ __.74(d)(4) and (e)(4) have been adopted to clarify the credit score disclosure exception requirements in circumstances where creditors use multiple credit scores to make a credit decision. When a creditor obtains two or more credit scores from consumer reporting agencies, and uses one of those credit scores in setting the material terms of credit granted, extended, or provided to a consumer, for example, by using the low, middle, high, or most recent score, the notice described in paragraphs (d)(1)(ii) or (e)(1)(ii) of this section must include that credit score and the other information required by that paragraph. When a creditor obtains two or more credit scores from consumer reporting agencies and uses multiple credit scores in setting the material terms of credit granted, extended, or provided to a consumer, for example, by computing the average of all the credit scores obtained, the notice described in paragraph (d)(1)(ii) or (e)(1)(ii) of this section must include one of those credit scores and the other information required by that paragraph. At the creditor's option, the notice may include more than one credit score along with the additional information specified in § __.74(d)(1)(ii) or (e)(1)(ii) for each credit score disclosed.
For example, a creditor that uses consumer reports to set the material terms of mortgage credit granted, extended, or provided to consumers regularly requests credit scores from several consumer reporting agencies and uses the low score when determining the material terms it will offer to the consumer. That creditor must disclose the low score in the notice described in paragraph (d)(1)(ii). A creditor that uses consumer reports to set the material terms of mortgage credit granted, extended, or provided to consumers regularly requests credit scores from several consumer reporting agencies, each of which it uses in an underwriting program in order to determine the material terms it will offer to the consumer. That creditor may choose one of these scores to include in the notice described in paragraph (d)(1)(ii).
The Agencies believe it is appropriate to require disclosure of only a single credit score because requiring disclosure of multiple scores would unnecessarily increase the complexity of the notices and increase the compliance burden for creditors. Requiring disclosure of multiple scores in these circumstances also would require disclosure of accompanying information for each score, which would increase the length of the notices, especially if the creditor disclosed how the consumer's score compared to other consumers' scores in the form of bar graphs. Moreover, the Agencies believe consumers may not benefit from this additional information, could be confused by the disclosure of multiple scores, and could be less likely to read a longer form.
Many commenters asked for clarification regarding the requirement to disclose the distribution of credit scores among consumers or how the credit score of the consumer receiving the notice compares to the scores of other consumers, whether in the form of a bar graph or a narrative. Some commenters suggested the Agencies should allow for a general disclosure about how a credit score statistically compares with others, rather than performing the comparison for each consumer. Some commenters mistakenly believed that both the bar graph and the narrative comparisons were required to be included in the notices. Other commenters suggested that the Agencies clarify how often either the bar graph or narrative must be updated. Commenters also asked Agencies to clarify where creditors could obtain information to make the appropriate comparisons. Alternatively, they asked the Agencies to publish this information.
The final rules, like the proposal, require that creditors disclose how a consumer compares to other consumers either in bar graph or in a narrative, but not in both forms. While creditors may obtain the information used to make a comparison from any source, the Agencies expect that many creditors will obtain the information from the person from whom the credit score is obtained. The final rules do not specify how frequently this information must be updated. Rather, the Agencies expect that the persons providing the information to the creditors will update the information periodically as necessary. Accordingly, the final rules retain the requirement to compare a consumer's credit score to the credit scores of other consumers generally as proposed, but with some changes for clarification. Sections __.74(d)(1)(E) and (e)(1)(F) have been revised to clarify that the consumers who should be considered when determining the distribution of credit scores are those who are scored under the same scoring model that is used to generate the consumer's credit score.
A few commenters requested clarification regarding whether creditors
One commenter asked the Agencies to clarify that any contractual prohibitions imposed by consumer reporting agencies are void. Section 609(g)(2)(A) of the FCRA specifically provides that any contract provision that prohibits the disclosure of a credit score by a person who makes or arranges loans or by a consumer reporting agency is void. The Agencies note that section 609(g)(2)(A) is not expressly limited to residential real property loans. Moreover, California law requires automobile dealers that use a consumer's credit score in connection with an application for credit to disclose that credit score to the consumer. The Agencies understand that contract provisions prohibiting credit score disclosures have not been invoked by consumer reporting agencies or other persons to prevent automobile dealers from disclosing credit scores to satisfy the requirements of California law. Similarly, the Agencies would not expect that contractual provisions would be invoked to prevent non-mortgage creditors from providing credit score disclosure exception notices for non-mortgage credit.
One commenter stated that permitting creditors to disclose a credit score from a consumer reporting agency, rather than the proprietary score used to make the credit decision, was appropriate. Two commenters requested that the Agencies address whether using a credit score obtained from a consumer reporting agency is permissible both for the credit score disclosure exception for credit secured by residential real property and the credit score disclosure exception for non-mortgage credit.
A person relying upon one of the exceptions set forth in §§ __.74(d) or (e) generally would be required to provide to the consumer a credit score that was used in connection with the credit decision. If, however, the person uses a credit score that was not created by a consumer reporting agency, such as a proprietary score, that person is permitted to satisfy the exception by providing to the consumer either the proprietary score or a credit score and associated information it obtains from an entity regularly engaged in the business of selling credit scores. In addition, a person that uses a consumer report, but not a credit score, in its credit evaluation process is permitted to rely on this exception by purchasing and providing to the consumer a credit score and associated information it obtains from an entity regularly engaged in the business of selling credit scores.
Some commenters believed that requiring disclosure of the credit score creation date was appropriate and would be useful to consumers. Other commenters believed such a requirement would impose undue burdens. The credit score creation date is required to be disclosed to the consumer pursuant to section 609(g) of the FCRA, and this requirement has been incorporated into the disclosure requirements for the exception for credit secured by residential real property to ensure that the exception notice satisfies the requirements of section 609(g). Therefore, the Agencies have determined that it is appropriate, and not unduly burdensome, to retain the credit score creation date requirement for both the exception for credit secured by residential real property and the exception for non-mortgage credit.
One commenter requested that the Agencies allow creditors to use a credit score disclosure exception notice in lieu of an account review disclosure. The Agencies do not believe that the reasons for permitting exception notices in lieu of risk-based pricing notices apply in the case of account review notices. Account review notices do not require the creditor to make comparisons with other consumers using the direct comparison method or one of the alternative proxy methods. The Agencies have crafted a simple test for determining which consumers must receive risk-based pricing notices in the context of account reviews. Therefore, the Agencies find no compelling need to mitigate compliance burdens in the case of account reviews. Moreover, account review notices provide a very precise statement of the reason the consumer is receiving the notice. Unlike a risk-based pricing notice that can only generalize that the consumer “may” have received less favorable credit terms because of information in the consumer's consumer report, the account review notice is precise in its disclosure that the consumer did in fact receive less favorable terms. The account review disclosures also provide for free consumer reports. Thus, the exception notices do not provide as good or better information than the account review notice, and this suggestion has not been adopted in the final rules.
In the proposal, the Agencies recognized that a creditor may not be able to obtain a credit score for each consumer for whom it obtains a consumer report. This might occur, for example, when a creditor obtains the consumer report for an individual who has only a limited credit history with few trade lines. A consumer report that contains such limited data may not produce sufficient information to permit the computation of a score.
Proposed paragraph (f) created an exception to the risk-based pricing notice requirement for creditors that regularly use one of the credit score disclosure exceptions in proposed paragraph (d) or (e), but are unable to provide the notices described in those paragraphs to a consumer because a credit score is not available for that consumer. To take advantage of this exception, the creditor would be required to provide a notice meeting the requirements of paragraph (f)(1)(ii).
Proposed paragraph (f)(1) set forth the requirements for the exception that applies when no credit score is available. Proposed paragraph (f)(1)(i) stated that in order to qualify for the exception, the person must regularly obtain credit scores from a consumer reporting agency and provide credit score disclosures to consumers in accordance with the exceptions in paragraphs (d) or (e) of this section, but be unable to obtain a credit score for the particular consumer from the consumer reporting agency from which the person regularly obtains credit scores. Proposed paragraph (f)(1)(ii) clarified that a person may qualify for this exception only if that person does not obtain a credit score from another consumer reporting agency in connection with granting, extending, or otherwise providing credit to the consumer. A person would not be required, however, to seek a credit score from another consumer reporting agency if the consumer reporting agency from which that person regularly obtains credit scores did not provide a credit score for a particular consumer. In addition, a person that regularly requests a particular type of credit score from a consumer reporting agency to provide to consumers to satisfy the requirements of paragraphs (d) or (e) of this section would not need to obtain or seek to obtain a different type of credit score if the score that it regularly obtains is not available. For example, a person that regularly requests a credit score from a
Proposed paragraph (f)(1)(iii) set forth the specific content of the notice to be provided to the consumer. The notice would be required to include: (i) A statement that the person was not able to obtain a credit score about the consumer from a consumer reporting agency, which must be identified by name, and that this is generally due to insufficient information regarding the consumer's credit history; (ii) a statement that a consumer report includes information about a consumer's credit history; (iii) a statement that a credit score is a number that takes into account information in a consumer report and that a credit score can change over time if the consumer's credit history changes; (iv) a statement that credit scores are important because consumers with higher credit scores generally obtain more favorable credit terms; and (v) a statement that not having a credit score can affect whether the consumer can obtain credit and what the cost of that credit will be. The notice also would be required to include a statement that the consumer is encouraged to verify the accuracy of the information contained in the consumer report and has the right to dispute any inaccurate information in the consumer report, and provide the consumer with information about how to obtain his or her consumer report. The notice would inform the consumer that federal law gives the consumer the right to obtain copies of his or her consumer reports directly from the consumer reporting agencies, including a free consumer report from each of the nationwide consumer reporting agencies once during any 12-month period, and must give contact information for the centralized source from which consumers can obtain their free annual reports. Finally, the notice would include a statement directing the consumer to the Web sites of the Board and the Commission to obtain more information about consumer reports.
This notice, like the two credit score disclosure exception notices, would not give rise to an independent right to a free consumer report because it is not a risk-based pricing notice provided under section 615(h) of the FCRA. A consumer who received this personalized notice containing specific information regarding his or her limited credit history would not receive a separate risk-based pricing notice.
Proposed paragraph (f)(2) illustrated this exception with an example. The example described a person that uses consumer reports to set the material terms of non-mortgage credit provided to consumers, and who regularly requests credit scores from a particular consumer reporting agency and provides those credit scores to consumers to satisfy the exception set forth in proposed paragraph (e). The consumer reporting agency provides a consumer report on a particular consumer that contains one trade line, but does not provide a credit score on that consumer. If the creditor does not obtain a credit score from another consumer reporting agency and, based in whole or in part on information in a consumer report, extends credit to the consumer, the creditor may provide the notice described under paragraph (f)(1)(iii) in order to satisfy its obligations under this subsection. If, however, the person obtains a credit score from another consumer reporting agency in connection with offering credit to the consumer, that person could not rely on the exception in proposed paragraph (f) of this section, but must satisfy the requirements of paragraph (e) and disclose the score obtained.
Proposed paragraph (f)(3) set forth the form that the notice must take in order to satisfy the exception for circumstances where a credit score is not available. Proposed paragraph (f)(4) described the timing requirements for the notice that will satisfy the exception. Proposed paragraph (f)(5) stated that a model form of the notice described in paragraph (f)(1)(iii) is contained in Appendix H-5 of the Board's rules and Appendix B-5 of the Commission's rules. These requirements were intended to be consistent with the comparable requirements for the exceptions in proposed paragraphs (d) and (e).
Commenters generally believed the credit score disclosure exception for circumstances where no credit score is available was appropriate. The Agencies conclude that consumers with limited credit histories will benefit from receiving a notice indicating that they do not have a credit score because there is insufficient information in their consumer reports. The Agencies continue to believe that a creditor that otherwise uses the credit score disclosure exception should not be required to use a different analysis for those consumers for whom no credit score is available. Therefore, paragraph (f) of the final rules is adopted as proposed, with several non-substantive changes.
Finally, commenters requested the inclusion of certain other exceptions in the final rules. A few commenters believed there should be an exception for credit extended in connection with a private banking relationship available only to high net worth consumers. One commenter also believed accommodation loans made to owners and executives of commercial accounts should be excepted because such loans are made to more sophisticated borrowers who would derive little benefit from the risk-based pricing notice. Two commenters believed there should be an exception for non-residential mortgage transactions with amounts financed in excess of $50,000. Another commenter suggested the Agencies create an exception for situations where a consumer withdraws a credit application before the creditor has provided a notice.
The Agencies have determined that it is not appropriate to provide exceptions from the final rules for certain transactions based on the financial condition of a consumer or the value of the transaction. It is challenging to define appropriate metrics to differentiate consumers and consumer transactions based on the perceived financial sophistication of the participating consumer. Moreover, such metrics tend to become obsolete over time. In instances where a consumer withdraws an application before a creditor has provided a notice, no exception is necessary because a creditor generally is only required to provide a risk-based pricing notice before consummation or the first transaction under an open-end plan. For the foregoing reasons, no further exceptions have been added to the final rules.
Proposed § __.75 set forth two rules of construction. Proposed paragraph (a) stated that a consumer generally is entitled to no more than one risk-based pricing notice under proposed § __.72(a) or (c) or one notice under proposed § __.74(d), (e), or (f), for each grant, extension, or other provision of credit. Because the statute focuses on the material terms granted or extended to a consumer, and consumers receive only a single material term or set of material terms in each extension of credit, the Agencies generally did not
Commenters generally believed that requiring only one notice per credit extension is appropriate. Many commenters, however, believed the Agencies should also clarify how the rule applies to transactions involving multiple consumers, such as joint applicants. Some commenters suggested that the Agencies require creditors to give one notice to the primary consumer, if a primary consumer is readily apparent, as is required with adverse action notices under Regulation B. Other commenters suggested requiring that notice be given only to the consumer whose credit score served as the basis for the loan terms. Others suggested the Agencies require that a separate notice be given to each consumer when individual credit scores are disclosed.
The one-notice-per-transaction rule of construction is adopted as proposed in paragraph (a) of the final rules. New paragraph (c), however, has been added to the final rules to address transactions involving multiple consumers. Paragraph (c) clarifies that for risk-based pricing notices, in a transaction involving two or more consumers who are granted, extended, or otherwise provided credit, a person must provide a notice to each consumer. If the two consumers have the same address, a person may satisfy the requirements by providing a single notice addressed to both consumers. If the consumers do not have the same address, a person must provide a notice to each consumer. For credit score disclosure exception notices, a person must provide a separate notice to each consumer who is granted, extended, or otherwise provided credit in a transaction involving two or more consumers. Whether the consumers have the same address or not, the person must provide a separate notice to each consumer. Each separate notice must contain only the credit score(s) of the consumer to whom the notice is provided, and not the credit score(s) of the other consumer. The final rules include examples to illustrate the notice requirements for multiple consumers.
Proposed paragraph (b) set forth the rules governing multi-party transactions. Proposed paragraph (b)(1) stated that the person to whom the loan obligation is initially payable must provide a risk-based pricing notice under § __.72 or comply with the notice requirements of the exceptions under § __.74, even if that person immediately assigns the loan to a third party and is not the source of funding for the loan. Correspondingly, proposed paragraph (b)(2) clarified that a purchaser or assignee of a credit contract with a consumer is not required to provide the risk-based pricing notice or satisfy the conditions for one of the exceptions, even if that purchaser or assignee provides the funding for the loan. Proposed paragraph (b)(3) illustrated the rules of construction with several examples pertaining to auto finance transactions.
Commenters generally supported requiring the initial creditor, rather than a purchaser or assignee, to provide the notice. However, as discussed above in § __.72, some commenters disagreed with this approach in the context of auto lending, since contracts for auto loans are often assigned immediately after the credit is extended.
The Agencies continue to believe it is appropriate for the initial creditor to provide a notice. Therefore, the provision requiring the person to whom the loan obligation is initially payable to provide a risk-based pricing notice, when appropriate, is adopted as proposed in paragraph (b) of the final rules.
Proposed Appendix H of the Board's rules and Appendix B of the Commission's rules contained model forms that the Agencies prepared to facilitate compliance with the rules. Two of the model forms were for risk-based pricing notices, and three of the model forms were for the credit score disclosure exceptions. Each of the model forms was designated for use in a particular set of circumstances as indicated by the title of that model form. Model forms H-1 and B-1 were for use in complying with the general risk-based pricing notice requirements in § __.72. Model forms H-2 and B-2 were for risk-based pricing notices given in connection with account review. Model forms H-3 and B-3 were for use in connection with the credit score disclosure exception for loans secured by residential real property. Model forms H-4 and B-4 were for use in connection with the credit score disclosure exception for loans that are not secured by residential real property. Model forms H-5 and B-5 were for use in connection with the credit score disclosure exception when no credit score is available for a consumer. Each form, including its format, language, and other elements, was designed to communicate key information in a clear and readily understandable manner.
Although the Agencies did not test the proposed model forms with consumers, the design of the model forms was informed by consumer testing undertaken in connection with the interagency short-form privacy notice project and the Board's review of its credit card disclosure rules under the TILA.
Several commenters believed the model forms were appropriate to ensure consistency and simplify compliance with the rules. One commenter believed the Agencies should allow creditors to provide notices in any “clear and conspicuous” manner while still retaining the safe harbor and substitute model clauses for model forms. Other commenters believed the model forms should be shorter and more succinct.
The Agencies believe the provision for model forms is appropriate, and that the length of the forms is appropriate in light of the content that must be communicated to the consumer. A creditor is permitted to change the forms by rearranging the format without modifying the substance of the disclosures and still rely upon the safe harbor. However, as the Agencies learned from consumer testing on privacy notices and credit card disclosures, format changes can have a significant effect on consumer comprehension.
Some commenters supported providing flexibility with regard to the content of the model forms, but asked the Agencies to clarify further the ways in which creditors could modify the notices, while still retaining the safe harbor. Some commenters suggested specific changes to the model forms that the Agencies should deem permissible without losing the safe harbor.
The Agencies agree that creditors should have some additional flexibility to modify the content of the model forms, while still retaining the safe harbor. Language has been added to the final rules to clarify that technical modifications to the language of the forms are permitted. More examples also have been added to the list of examples of acceptable changes to the model forms: substitution of the words “credit” and “creditor” or “finance” and “finance company” for the terms “loan” and “lender”; including pre-printed lists of the sources of consumer reports or consumer reporting agencies in a “check-the-box” format; and including the name of the consumer, transaction identification numbers, a date, and other information that will assist in identifying the transaction to which the form pertains. The final rules also specifically state that unacceptable changes to the model forms include: providing model forms on register receipts or interspersed with other disclosures and eliminating empty lines and extra spaces between sentences within the same section.
Some commenters asked the Agencies to clarify whether creditors must disclose in both bar graph and narrative form the distribution of credit scores and how a consumer's credit score compares to those scores. A creditor is permitted to use any clear and readily understandable means to convey this information and that information must only be disclosed using one format. A creditor may use the bar graph set forth in model forms H-3 and H-4 of the Board's rules and B-3 and B-4 of the Commission's rules to disclose the distribution of credit scores. Other clear and readily understandable means could include a different form of graphical presentation of the distribution. Alternatively, a creditor could include a short narrative statement such as that set forth in model forms H-3 and H-4 of the Board's rules and B-3 and B-4 of the Commission's rules to disclose how a consumer's credit score compares to the scores of other consumers. This statement must be simple and concise; a paragraph-length narrative description about the credit score distribution, such as a narrative description of the information represented in the bar graph set forth in the model forms, does not satisfy the clear and readily understandable standard.
The model forms are adopted generally as proposed, with revisions to address appropriate modifications that can be made to the model forms without losing the safe harbor and other revisions for clarification. Use of the model forms by creditors is optional. If a creditor uses an appropriate Appendix H or Appendix B model form, or modifies a form in accordance with the rules or the instructions to the appendix, that creditor is deemed to be acting in compliance with the provisions of §§ __.72, __.73, or __.74, as applicable, of the final rules. Appropriate use of model form H-3 or model form B-3 is also intended to be compliant with the disclosure that may be required under section 609(g) of the FCRA.
Industry commenters requested that the Agencies provide a sufficient period of time to implement the final rules. These commenters noted that they would have to develop and update systems and procedures to comply with the final rules. Appropriate implementation periods suggested by various commenters were two years, 18 months, and one year.
The Agencies have determined that 12 months is the appropriate implementation period. The Agencies believe that this provides a sufficient amount of time for creditors to implement the final rules. It will allow creditors to determine the method of disclosure they will use to implement the final rules and adjust their systems and make other changes accordingly. Moreover, for creditors who elect to use the credit score proxy method, this implementation period will also allow for time to take a sample and calculate a corresponding cutoff score. At the same time, this implementation period balances the need for creditors to have a sufficient period of time to prepare for implementation of the final rules with the Agencies' goal of providing disclosures based on risk-based pricing to consumers in a timely manner.
In accordance with the requirements of the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506; 5 CFR part 1320, Appendix A.1), the Board and the Commission (the Agencies) have reviewed the final rules and determined that they contain collections of information subject to the PRA. The collections of information required by these rules are found in 12 CFR 222.72(a), (c), and (d); 12 CFR 222.74(d), (e), and (f); 16 CFR 640.72(a), (c), and (d); and 16 CFR 640.74(d), (e), and (f).
An agency may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a currently valid OMB control number. The Commission submitted the information collection requirements contained in these joint final rules to OMB for review and approval under the PRA; OMB withheld formal action on the rule pending its further review of the joint final rule. The Board, under its delegated authority from OMB, has approved the implementation of this information collection; OMB control number is 7100-0308.
The final rules generally require a creditor to provide a risk-based pricing notice to a consumer when the creditor uses a consumer report to grant or extend credit to the consumer on material terms that are materially less favorable than the most favorable terms available to a substantial proportion of consumers from or through that creditor. The final rules also provide for two alternative means by which creditors can determine when they are offering credit on material terms that are materially less favorable. The final rules also include certain exceptions to the general rule, including exceptions for creditors that provide a consumer with a disclosure of the consumer's credit score in conjunction with additional information that provides context for the credit score disclosure.
In the proposal, the Agencies estimated that respondents potentially affected by the new notice and
The Agencies received two comments, one from a bank and another from a banking trade association, in response to the PRA section of the proposal. The commenters asserted that the time needed to update database systems may exceed the 40 hours estimated by the Agencies. The commenters, however, did not provide specific alternatives to this estimate.
The Agencies continue to believe that 40 hours is a reasonable estimate of the average amount of time to modify existing database systems. The Agencies have provided two alternative methods which creditors could use to determine which consumers must receive a risk-based pricing notice. The methods are intended to simplify compliance with the risk-based pricing requirement when it is not operationally feasible to make direct comparisons between consumers. Moreover, the Agencies have provided exceptions to the final rule, whereby creditors may fulfill their compliance obligation by providing credit score disclosures to consumers who apply for and are granted credit. Because creditors may provide credit score disclosures to consumers without regard to the terms offered, supplying these disclosures would eliminate the need for a creditor to perform an analysis to determine which consumers must receive a disclosure. The Agencies also believe that the availability of model notices may significantly reduce the cost of compliance with the final rules.
The Board is estimating the burden for entities regulated by the Board, Office of the Comptroller of the Currency, Federal Deposit Insurance Corporation, Office of Thrift Supervision, National Credit Union Administration, and the U.S. Department of Housing and Urban Development (collectively, the “federal financial regulatory agencies”) pursuant to the FCRA. Such entities are identified in section 621(b)(1)-(3) of the FCRA (15 U.S.C. 1681s(b)(1)-(3)) and may include, among others, state member banks, national banks, insured nonmember banks, savings associations, federally-chartered credit unions, and other mortgage lending institutions.
For purposes of the PRA, the Commission is estimating the burden for entities that extend credit to consumers for personal, household, or family purposes, and that are subject to the Commission's administrative enforcement pursuant to section 621(a)(1) of the FCRA (15 U.S.C. 1681s(a)(1)). These businesses include, among others, nonbank mortgage lenders, consumer lenders, utilities, state-chartered credit unions, and automobile dealers and retailers that directly extend credit to consumers for personal, non-business uses.
Based on the above estimates and assumptions, the estimated average annual labor cost for all categories of covered entities under the final rules is $252,048,000 (rounded to the nearest thousand) [{(40 hours × $42.15) + (180 hours × $11.69)} × 199,500 ÷ 3], or $1,263 per covered entity.
Commission staff does not anticipate that compliance with the final rules will require any new capital or other non-labor expenditures.
The Agencies have a continuing interest in the public's opinions of our collections of information. At any time, comments regarding the burden estimate, or any other aspect of this collection of information, including suggestions for reducing the burden, may be sent to:
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All public comments are available from the Board's Web site at
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Comments on any proposed filing, recordkeeping, or disclosure requirements that are subject to paperwork burden review under the PRA should additionally be submitted to: Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Federal Trade Commission. Comments should be submitted via facsimile to (202) 395-5167 because U.S. postal mail at the OMB is subject to delays due to heightened security precautions.
The FTC Act and other laws the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. All timely and responsive public comments, whether filed in paper or electronic form, will be considered by the Commission, and will be available to the public on the Commission's Web site, to the extent practicable, at
The Board prepared an initial regulatory flexibility analysis as required by the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
Section 311 of the FACT Act (which amends section 615 of the FCRA by adding a new subsection (h)) requires the Agencies to prescribe rules jointly to implement the duty of users of consumer reports to provide risk-based pricing notices in certain circumstances. Specifically, the rules must address, but are not limited to, the following aspects of section 615(h) of the FCRA: (i) The form, content, time, and manner of delivery of any risk-based pricing notice; (ii) clarification of the meaning of terms used in section 615(h), including what credit terms are material, and when credit terms are materially less favorable; (iii) exceptions to the risk-based pricing notice requirement for classes of persons or transactions regarding which the Agencies determine that notice would not significantly benefit consumers; (iv) a model notice that may be used to comply with section 615(h); and (v) the timing of the risk-based pricing notice, including the circumstances under which the notice must be provided after the terms offered to the consumer were set based on information from a consumer report. The Agencies are issuing the rules to fulfill their statutory duty to implement the risk-based
The
In connection with the proposed rule to implement the risk-based pricing provisions in section 311 of the FACT Act, the Board sought information and comment on any costs, compliance requirements, or changes in operating procedures arising from the application of the rule to small institutions. The Board received comments from a credit union and from trade associations that represent both banks and credit unions. The commenters asserted that compliance with the final rules would increase costs. They also believed that performing an analysis to determine which consumers must receive risk-based pricing notices would be too burdensome and could result in small creditors providing risk-based pricing notices to all consumers who apply for credit. These comments, however, did not contain specific information about costs that will be incurred or changes in operating procedures that will be required to comply with the final rule. In general, the comments discussed the impact of statutory requirements rather than any impact that the Board's proposed rules themselves would generate. The Board continues to believe that the final rules will not have a significant impact on a substantial number of small entities.
The rules apply to any person that both (i) uses a consumer report in connection with an application for, or a grant, extension, or other provision of, credit to a consumer that is primarily for personal, family, or household purposes; and (ii) based in whole or in part on the consumer report, grants, extends, or otherwise provides credit to the consumer on material terms that are materially less favorable than the most favorable terms available to a substantial proportion of consumers from or through that person. The rules do not apply to any person that uses a consumer report in connection with an application for, or a grant, extension, or other provision of, credit primarily for a business purpose.
The total number of small entities likely to be affected by the final rules is unknown because the Agencies do not have data on the number of small entities that use consumer reports for risk-based pricing in connection with consumer credit. The risk-based pricing provisions of the FACT Act have broad applicability to persons who use consumer reports and engage in risk-based pricing in connection with the provision of consumer credit. Based on estimates compiled by the Board and other federal bank and thrift regulatory agencies,
It also is unknown how many of these small entities that meet the SBA's size standards and are potentially subject to the rules engage in risk-based pricing based in whole or in part on consumer reports. The rules do not impose any requirements on small entities that do not use consumer reports or that do not engage in risk-based pricing of consumer credit on the basis of consumer reports.
The compliance requirements of the rules are described in detail in the
The rules generally require a person to provide a risk-based pricing notice to a consumer when that person uses a consumer report to grant or extend credit to the consumer on material terms that are materially less favorable than the most favorable terms available to a substantial proportion of consumers from or through that person. A person can identify consumers to whom it must provide the notice by directly comparing the material terms offered to its consumers or by using one of two alternative methods specified in the rules. The rules also include several exceptions to the general rule, including exceptions that would allow a person otherwise subject to the risk-based pricing notice requirement to provide a consumer with a credit score disclosure in conjunction with additional information that provides context for the credit score disclosure.
A person must determine if it engages in risk-based pricing, based in whole or in part on consumer reports, in connection with the provision of consumer credit. A person that does engage in such risk-based pricing must analyze the rules. Subject to the exceptions set forth in the final rule, the person generally would need to establish procedures for identifying those consumers to whom it must provide risk-based pricing notices. These procedures could involve either applying the general rule and performing a direct comparison among the terms offered to the person's consumers or utilizing one of the alternative methods set forth in the rules. Persons required to provide risk-based pricing notices also must design, generate, and provide those notices to the consumers that they have identified. Alternatively, a person that complies with the rules by providing notices that meet the requirements of any of the credit score disclosure exceptions would need to design, generate, and provide those notices to its consumers. In the case of automobile lending transactions, it may also be necessary for a person to arrange to have an auto dealer or other party provide risk-based pricing notices or credit score disclosures to consumers on its behalf and maintain reasonable policies and procedures to verify that the auto dealer or other party provides such notices to consumers within applicable time periods.
The Board has sought to minimize the economic impact on small entities by adopting rules that are consistent with those adopted by the Commission; providing creditors with potentially less burdensome alternatives to the direct comparison method; permitting creditors to fulfill their compliance obligation by providing credit score disclosures to consumers who apply for and are granted credit; and providing model notices to ease creditors' compliance burden.
The Regulatory Flexibility Act (“RFA”), 5 U.S.C. 601-612, requires that the Commission provide an Initial Regulatory Flexibility Analysis (IRFA) with a proposed rule and a Final Regulatory Flexibility Analysis (FRFA) with the final rule, unless the Commission certifies that the rule will not have a significant economic impact on a substantial number of entities.
The Commission hereby certifies that the final rule will not have a significant economic impact on a substantial number of small business entities. The Commission recognizes that the final rule will affect some small business entities; however we do not expect that a substantial number of small businesses will be affected or that the final rule will have a significant economic impact on them.
The Commission continues to believe that a precise estimate of the number of small entities that fall under the final rule is not feasible. The Commission did not receive any comments relating to the number of small entities which would be affected by the final rule. Nor did we receive any comments on the cost and burden on small entities of complying with the final rule. However, based on the Commission's own experience and knowledge of industry practices, the Commission continues to believe that the cost and burden to small entities of complying with the final rule are minimal. Accordingly, this document serves as notice to the Small Business Administration of the agency's certification of no effect. Nonetheless, the Commission has decided to publish a FRFA with the final rule. Therefore, the Commission has prepared the following analysis:
The FTC is charged with enforcing the requirements of section 311 of the FACT Act (which amends section 615 of the FCRA by adding a new subsection (h)) which requires that a risk-based pricing notice be provided to consumers in certain circumstances. The rule is generally intended to improve the accuracy of consumer reports by alerting consumers to the existence of potentially negative information in their consumer reports so that consumers may check their reports for accuracy and correct any inaccurate information. In addition, section 311 requires the Agencies jointly to prescribe rules to implement the duty of users of consumer reports to provide risk-based pricing notices in certain circumstances. Specifically, the rules must address, but are not limited to, the following aspects of section 615(h) of the FCRA: (i) The form, content, time, and manner of delivery of any risk-based pricing notice; (ii) clarification of the meaning of terms used in section 615(h), including what credit terms are material, and when credit terms are materially less favorable; (iii) exceptions to the risk-based pricing notice requirement for classes of persons or transactions regarding which the Agencies determine that notice would not significantly benefit consumers; (iv) a model notice that may be used to comply with section 615(h); and (v) the timing of the risk-based pricing notice, including the circumstances under which the notice must be provided after the terms offered to the consumer were set based on information from a consumer report. In this action, the FTC promulgates final rules that would implement these requirements of the FACT Act.
The Commission received a number of comments in response to the proposed rule. Some of the comments addressed the effect of the proposed rule on businesses generally, but none identified small businesses as a particular category.
Two commenters suggested that the FTC staff has underestimated the amount of time and effort it would take businesses of all sizes to comply with the proposed rule. However, these commenters did not explain why they felt the Commission's estimate that compliance with the rule would take businesses on average 40 hours (1 business week) during the first year, and 5 hours per month on a continuing basis thereafter, was too low. These comments also did not offer any alternate time estimates. As explained in the PRA section, the Commission continues to believe that these time estimates are accurate and they remain unchanged in the final rule.
The total number of small entities likely to be affected by the final rule is unknown, because the Commission does not have data on the number of small entities that use consumer reports for risk-based pricing in connection with consumer credit. Moreover, the entities under the Commission's jurisdiction are so varied that there is no way to identify them in general and, therefore, no way to know how many of them qualify as small businesses. Generally, the entities under the Commission's jurisdiction that also are covered by section 311 include state-chartered credit unions, non-bank mortgage lenders, auto dealers, and utility companies. The available data, however, is not sufficient for the Commission to realistically estimate the number of small entities, as defined by the U.S. Small Business Administration (SBA), that the Commission regulates and that would be subject to the proposed rule.
The final rule is a disclosure rule that generally requires a creditor to provide a risk-based pricing notice to a consumer when that creditor uses a consumer report to grant or extend credit to the consumer on material terms that are materially less favorable than the most favorable terms available to a substantial proportion of consumers from or through that creditor. A creditor can identify consumers to whom it must provide the notice by directly comparing the material terms offered to its consumers or by using one of the two alternative methods specified in the final rule. The final rule also includes several exceptions to the general rule, including exceptions that would allow a creditor otherwise subject to the risk-based pricing notice requirement to provide a consumer with a credit score disclosure in conjunction with additional information that provides context for the credit score disclosure.
The final rule will involve some expenditure of time and resources for entities to comply, although Commission staff anticipates that the costs per entity will not be significant. Most of the costs will be incurred initially as entities develop systems for determining which of their consumers should receive risk-based pricing notices and as they train staff to comply with the rule. In calculating these costs, Commission staff assumes that for all entities managerial and/or professional technical personnel will handle the initial aspects of compliance with the proposed rule, and that sales associates or administrative personnel will handle any ongoing responsibilities. Cost estimates for compliance with the final
To minimize these costs, the final rule offers several different ways that businesses can perform a risk-based pricing analysis, allowing businesses to choose the method that is least burdensome and best-suited to their particular business model. Additionally, Commission staff believes that, as creditors, most of the covered entities are familiar already with the existing provisions of section 615 of the FCRA, which require specific disclosures in connection with adverse action notices whenever a creditor uses a credit report to deny credit. Commission staff anticipates that many businesses already have systems in place to handle the existing requirements under section 615 and that they will be able to incorporate the risk-based pricing notice requirements into those systems. As for any continuing costs such as those involved in preparing and distributing the notices, the final rule provides a model risk-based pricing notice, thereby significantly limiting the ongoing time and effort required by businesses to comply with the rule.
For these reasons, Commission staff does not expect that the costs associated with the final rule will place a significant burden on small entities.
The Commission considered whether any significant alternatives, consistent with the purposes of the FACT Act, could further minimize the final rule's impact on small entities. The FTC asked for comment on this issue and received none. The final rule provides flexibility so that a covered entity, regardless of its size, may tailor its practices to its individual needs. For example, the rule identifies several different ways that an entity can perform a risk-based pricing analysis, allowing each entity to choose the approach that fits best with its business model. A small business may find it easiest to make individual, consumer-to-consumer comparisons. If it uses a tiered system to determine a consumer's interest rate, however, then it may prefer to use the tiered pricing method to conduct the risk-based pricing analysis. Alternatively, a business may find the credit score disclosure notice to be least burdensome, and opt for that approach to comply with the rule. A business may prefer to deliver these notices electronically. By providing a range of options, the Agencies have sought to help businesses of all sizes reduce the burden or inconvenience of complying with the final rule.
Similarly, the final rule provides model notices and model credit score disclosures to facilitate compliance. By using these model notices, businesses qualify for a safe harbor. They are not required to use the model notices, however, as long as they provide a notice that effectively conveys the required information; these businesses simply would not receive the benefit of the safe harbor. Having this option, again, provides businesses of all sizes flexibility in how to comply with the final rule.
Some commenters requested that the FTC delay implementation of the final rule for up to two years in order that businesses may update software, develop and implement risk-based pricing procedures, and adequately train staff on the new rule. The agencies have set a compliance deadline that gives all affected entities one year in which to implement the final regulations. The Commission believes that one year is an adequate amount of time for businesses to reprogram and update systems to incorporate these new notice requirements, to provide employee training, and to modify model notices with respondent information to comply with the final rule.
Banks, Banking, Consumer protection, Fair Credit Reporting Act, Holding companies, Privacy, Reporting and recordkeeping requirements, State member banks.
Consumer reporting agencies, Consumer reports, Credit, Fair Credit Reporting Act, Trade practices.
Consumer reporting agencies, Consumer reports, Credit, Fair Credit Reporting Act, Trade practices.
15 U.S.C. 1681b, 1681c, 1681m and 1681s; Secs. 3, 214, and 216, Pub. L. 108-159, 117 Stat. 1952.
(a)
(i) Uses a consumer report in connection with an application for, or a grant, extension, or other provision of, credit to a consumer that is primarily for personal, family, or household purposes; and
(ii) Based in whole or in part on the consumer report, grants, extends, or otherwise provides credit to the consumer on material terms that are materially less favorable than the most favorable material terms available to a substantial proportion of consumers from or through that person.
(2)
(b)
(c)
For purposes of this subpart, the following definitions apply:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(1) (i) Except as otherwise provided in paragraphs (n)(1)(ii) and (n)(3) of this section, in the case of credit extended under an open-end credit plan, the annual percentage rate required to be disclosed under 12 CFR 226.6(a)(1)(ii) or 12 CFR 226.6(b)(2)(i), excluding any temporary initial rate that is lower than the rate that will apply after the temporary rate expires, any penalty rate that will apply upon the occurrence of one or more specific events, such as a late payment or an extension of credit that exceeds the credit limit, and any fixed annual percentage rate option for a home equity line of credit;
(ii) In the case of a credit card (other than a credit card that is used to access a home equity line of credit or a charge card), the annual percentage rate required to be disclosed under 12 CFR 226.6(b)(2)(i) that applies to purchases (“purchase annual percentage rate”) and no other annual percentage rate, or in the case of a credit card that has no purchase annual percentage rate, the annual percentage rate that varies based on information in a consumer report and that has the most significant financial impact on consumers;
(2) In the case of closed-end credit, the annual percentage rate required to be disclosed under 12 CFR 226.17(c) and 226.18(e); and
(3) In the case of credit for which there is no annual percentage rate, the financial term that varies based on information in a consumer report and that has the most significant financial impact on consumers, such as a deposit required in connection with credit extended by a telephone company or utility or an annual membership fee for a charge card.
(o)
(p)
(q)
(a)
(1) Uses a consumer report in connection with an application for, or a grant, extension, or other provision of, credit to that consumer that is primarily for personal, family, or household purposes; and
(2) Based in whole or in part on the consumer report, grants, extends, or otherwise provides credit to that consumer on material terms that are materially less favorable than the most favorable material terms available to a substantial proportion of consumers from or through that person.
(b)
(1)
(A) Determining the credit score (hereafter referred to as the “cutoff score”) that represents the point at which approximately 40 percent of the consumers to whom it grants, extends, or provides credit have higher credit scores and approximately 60 percent of the consumers to whom it grants, extends, or provides credit have lower credit scores; and
(B) Providing a risk-based pricing notice to each consumer to whom it grants, extends, or provides credit whose credit score is lower than the cutoff score.
(ii)
(iii)
(B)
(C)
(D)
(iv)
(v)
(B) A credit card issuer engages in risk-based pricing, and the annual percentage rates it offers to consumers are based in whole or in part on a credit score. The credit card issuer takes a representative sample of the consumers to whom it issued credit cards over the preceding six months. The credit card issuer determines that approximately 80 percent of the sampled consumers received credit at its lowest annual percentage rate, and 20 percent received credit at a higher annual percentage rate. Approximately 80 percent of the sampled consumers have a credit score at or above 750 (on a scale of 350 to 850), and 20 percent have a credit score below 750. Thus, the card issuer selects 750 as its cutoff score. A consumer applies to the credit card issuer for a credit card. The card issuer obtains a credit score for the consumer. The consumer's credit score is 740. Since the consumer's 740 credit score falls below the 750 cutoff score, the credit card issuer must provide a risk-based pricing notice to the consumer.
(C) An auto lender engages in risk-based pricing, obtains credit scores from one of the nationwide consumer reporting agencies, and uses the credit score proxy method to determine which consumers must receive a risk-based pricing notice. A consumer applies to the auto lender for credit to finance the purchase of an automobile. A credit score about that consumer is not available from the consumer reporting agency from which the lender obtains credit scores. The lender nevertheless grants, extends, or provides credit to the consumer. The lender must provide a risk-based pricing notice to the consumer.
(2)
(ii)
(iii)
(c)
(i) A consumer applies for a credit card either in connection with an application program, such as a direct-mail offer or a take-one application, or in response to a solicitation under 12 CFR 226.5a, and more than a single possible purchase annual percentage rate may apply under the program or solicitation; and
(ii) Based in whole or in part on a consumer report, the credit card issuer provides a credit card to the consumer with an annual percentage rate referenced in § 222.71(n)(1)(ii) that is greater than the lowest annual percentage rate referenced in § 222.71(n)(1)(ii) available in connection with the application or solicitation.
(2)
(i) The consumer applies for a credit card for which the card issuer provides a single annual percentage rate referenced in § 222.71(n)(1)(ii), excluding a temporary initial rate that is lower than the rate that will apply after the temporary rate expires and a penalty rate that will apply upon the occurrence of one or more specific events, such as a late payment or an extension of credit that exceeds the credit limit; or
(ii) The credit card issuer offers the consumer the lowest annual percentage rate referenced in § 222.71(n)(1)(ii) available under the credit card offer for which the consumer applied, even if a lower annual percentage rate referenced in § 222.71(n)(1)(ii) is available under a different credit card offer issued by the card issuer.
(3)
(ii) The same facts as in the example in paragraph (c)(3)(i) of this section, except that the card issuer provides a credit card to the consumer at a purchase annual percentage rate of 10 percent. The card issuer is not required to provide a risk-based pricing notice to the consumer even if, under a different credit card solicitation, that consumer or other consumers might qualify for a purchase annual percentage rate of 8 percent.
(d)
(i) Uses a consumer report in connection with a review of credit that has been extended to the consumer; and
(ii) Based in whole or in part on the consumer report, increases the annual percentage rate (the annual percentage rate referenced in § 222.71(n)(1)(ii) in the case of a credit card).
(2)
(a)
(i) A statement that a consumer report (or credit report) includes information about the consumer's credit history and the type of information included in that history;
(ii) A statement that the terms offered, such as the annual percentage rate, have been set based on information from a consumer report;
(iii) A statement that the terms offered may be less favorable than the terms offered to consumers with better credit histories;
(iv) A statement that the consumer is encouraged to verify the accuracy of the information contained in the consumer report and has the right to dispute any inaccurate information in the report;
(v) The identity of each consumer reporting agency that furnished a consumer report used in the credit decision;
(vi) A statement that federal law gives the consumer the right to obtain a copy of a consumer report from the consumer reporting agency or agencies identified in the notice without charge for 60 days after receipt of the notice;
(vii) A statement informing the consumer how to obtain a consumer report from the consumer reporting agency or agencies identified in the notice and providing contact information (including a toll-free telephone number, where applicable) specified by the consumer reporting agency or agencies; and
(viii) A statement directing consumers to the Web sites of the Federal Reserve Board and Federal Trade Commission to obtain more information about consumer reports.
(2)
(i) A statement that a consumer report (or credit report) includes information about the consumer's credit history and the type of information included in that credit history;
(ii) A statement that the person has conducted a review of the account using information from a consumer report;
(iii) A statement that as a result of the review, the annual percentage rate on the account has been increased based on information from a consumer report;
(iv) A statement that the consumer is encouraged to verify the accuracy of the information contained in the consumer report and has the right to dispute any inaccurate information in the report;
(v) The identity of each consumer reporting agency that furnished a consumer report used in the account review;
(vi) A statement that federal law gives the consumer the right to obtain a copy of a consumer report from the consumer
(vii) A statement informing the consumer how to obtain a consumer report from the consumer reporting agency or agencies identified in the notice and providing contact information (including a toll-free telephone number, where applicable) specified by the consumer reporting agency or agencies; and
(viii) A statement directing consumers to the Web sites of the Federal Reserve Board and Federal Trade Commission to obtain more information about consumer reports.
(b)
(i) Clear and conspicuous; and
(ii) Provided to the consumer in oral, written, or electronic form.
(2)
(c)
(i) In the case of a grant, extension, or other provision of closed-end credit, before consummation of the transaction, but not earlier than the time the decision to approve an application for, or a grant, extension, or other provision of, credit, is communicated to the consumer by the person required to provide the notice;
(ii) In the case of credit granted, extended, or provided under an open-end credit plan, before the first transaction is made under the plan, but not earlier than the time the decision to approve an application for, or a grant, extension, or other provision of, credit is communicated to the consumer by the person required to provide the notice; or
(iii) In the case of a review of credit that has been extended to the consumer, at the time the decision to increase the annual percentage rate (annual percentage rate referenced in § 222.71(n)(1)(ii) in the case of a credit card) based on a consumer report is communicated to the consumer by the person required to provide the notice, or if no notice of the increase in the annual percentage rate is provided to the consumer prior to the effective date of the change in the annual percentage rate (to the extent permitted by law), no later than five days after the effective date of the change in the annual percentage rate.
(2)
(i) Provides a notice described in §§ 222.72(a), 222.74(e), or 222.74(f) to the consumer within the time periods set forth in paragraph (c)(1)(i) of this section, § 222.74(e)(3), or § 222.74(f)(4), as applicable; or
(ii) Arranges to have the auto dealer or other party provide a notice described in §§ 222.72(a), 222.74(e), or 222.74(f) to the consumer on its behalf within the time periods set forth in paragraph (c)(1)(i) of this section, § 222.74(e)(3), or § 222.74(f)(4), as applicable, and maintains reasonable policies and procedures to verify that the auto dealer or other party provides such notice to the consumer within the applicable time periods. If the person arranges to have the auto dealer or other party provide a notice described in § 222.74(e), the person's obligation is satisfied if the consumer receives a notice containing a credit score obtained by the dealer or other party, even if a different credit score is obtained and used by the person on whose behalf the notice is provided.
(3)
(i) The time of the first mailing by the person to the consumer after the decision is made to approve the grant, extension, or other provision of open-end credit, such as in a mailing containing the account agreement or a credit card; or
(ii) Within 30 days after the decision to approve the grant, extension, or other provision of credit.
(a)
(2)
(b)
(c)
(i) Obtains a consumer report that is a prescreened list as described in section 604(c)(2) of the FCRA; and
(ii) Uses the consumer report for the purpose of making a firm offer of credit to the consumer.
(2)
(3)
(d)
(i) The consumer requests from the person an extension of credit that is or will be secured by one to four units of residential real property; and
(ii) The person provides to each consumer described in paragraph (d)(1)(i) of this section a notice that contains the following—
(A) A statement that a consumer report (or credit report) is a record of the consumer's credit history and includes information about whether the consumer pays his or her obligations on time and how much the consumer owes to creditors;
(B) A statement that a credit score is a number that takes into account information in a consumer report and that a credit score can change over time to reflect changes in the consumer's credit history;
(C) A statement that the consumer's credit score can affect whether the consumer can obtain credit and what the cost of that credit will be;
(D) The information required to be disclosed to the consumer pursuant to section 609(g) of the FCRA;
(E) The distribution of credit scores among consumers who are scored under the same scoring model that is used to generate the consumer's credit score using the same scale as that of the credit score that is provided to the consumer, presented in the form of a bar graph containing a minimum of six bars that illustrates the percentage of consumers with credit scores within the range of scores reflected in each bar or by other clear and readily understandable graphical means, or a clear and readily understandable statement informing the consumer how his or her credit score compares to the scores of other consumers. Use of a graph or statement obtained from the person providing the credit score that meets the requirements of this paragraph (d)(1)(ii)(E) is deemed to comply with this requirement;
(F) A statement that the consumer is encouraged to verify the accuracy of the information contained in the consumer report and has the right to dispute any inaccurate information in the report;
(G) A statement that federal law gives the consumer the right to obtain copies of his or her consumer reports directly from the consumer reporting agencies, including a free report from each of the nationwide consumer reporting agencies once during any 12-month period;
(H) Contact information for the centralized source from which consumers may obtain their free annual consumer reports; and
(I) A statement directing consumers to the Web sites of the Federal Reserve Board and Federal Trade Commission to obtain more information about consumer reports.
(2)
(i) Clear and conspicuous;
(ii) Provided on or with the notice required by section 609(g) of the FCRA;
(iii) Segregated from other information provided to the consumer, except for the notice required by section 609(g) of the FCRA; and
(iv) Provided to the consumer in writing and in a form that the consumer may keep.
(3)
(4)
(ii)
(B) A person that uses consumer reports to set the material terms of mortgage credit granted, extended, or provided to consumers regularly requests credit scores from several consumer reporting agencies, each of which it uses in an underwriting program in order to determine the material terms it will offer to the consumer. That person may choose one of these scores to include in the notice described in paragraph (d)(1)(ii) of this section.
(5)
(e)
(i) The consumer requests from the person an extension of credit other than credit that is or will be secured by one to four units of residential real property; and
(ii) The person provides to each consumer described in paragraph (e)(1)(i) of this section a notice that contains the following—
(A) A statement that a consumer report (or credit report) is a record of the consumer's credit history and includes information about whether the consumer pays his or her obligations on time and how much the consumer owes to creditors;
(B) A statement that a credit score is a number that takes into account information in a consumer report and that a credit score can change over time
(C) A statement that the consumer's credit score can affect whether the consumer can obtain credit and what the cost of that credit will be;
(D) The current credit score of the consumer or the most recent credit score of the consumer that was previously calculated by the consumer reporting agency for a purpose related to the extension of credit;
(E) The range of possible credit scores under the model used to generate the credit score;
(F) The distribution of credit scores among consumers who are scored under the same scoring model that is used to generate the consumer's credit score using the same scale as that of the credit score that is provided to the consumer, presented in the form of a bar graph containing a minimum of six bars that illustrates the percentage of consumers with credit scores within the range of scores reflected in each bar, or by other clear and readily understandable graphical means, or a clear and readily understandable statement informing the consumer how his or her credit score compares to the scores of other consumers. Use of a graph or statement obtained from the person providing the credit score that meets the requirements of this paragraph (e)(1)(ii)(F) is deemed to comply with this requirement;
(G) The date on which the credit score was created;
(H) The name of the consumer reporting agency or other person that provided the credit score;
(I) A statement that the consumer is encouraged to verify the accuracy of the information contained in the consumer report and has the right to dispute any inaccurate information in the report;
(J) A statement that federal law gives the consumer the right to obtain copies of his or her consumer reports directly from the consumer reporting agencies, including a free report from each of the nationwide consumer reporting agencies once during any 12-month period;
(K) Contact information for the centralized source from which consumers may obtain their free annual consumer reports; and
(L) A statement directing consumers to the web sites of the Federal Reserve Board and Federal Trade Commission to obtain more information about consumer reports.
(2)
(i) Clear and conspicuous;
(ii) Segregated from other information provided to the consumer; and
(iii) Provided to the consumer in writing and in a form that the consumer may keep.
(3)
(4)
(ii)
(5)
(f)
(i) Regularly obtains credit scores from a consumer reporting agency and provides credit score disclosures to consumers in accordance with paragraphs (d) or (e) of this section, but a credit score is not available from the consumer reporting agency from which the person regularly obtains credit scores for a consumer to whom the person grants, extends, or provides credit;
(ii) Does not obtain a credit score from another consumer reporting agency in connection with granting, extending, or providing credit to the consumer; and
(iii) Provides to the consumer a notice that contains the following—
(A) A statement that a consumer report (or credit report) includes information about the consumer's credit history and the type of information included in that history;
(B) A statement that a credit score is a number that takes into account information in a consumer report and that a credit score can change over time in response to changes in the consumer's credit history;
(C) A statement that credit scores are important because consumers with higher credit scores generally obtain more favorable credit terms;
(D) A statement that not having a credit score can affect whether the consumer can obtain credit and what the cost of that credit will be;
(E) A statement that a credit score about the consumer was not available from a consumer reporting agency, which must be identified by name, generally due to insufficient information regarding the consumer's credit history;
(F) A statement that the consumer is encouraged to verify the accuracy of the information contained in the consumer report and has the right to dispute any inaccurate information in the consumer report;
(G) A statement that federal law gives the consumer the right to obtain copies of his or her consumer reports directly from the consumer reporting agencies, including a free consumer report from each of the nationwide consumer reporting agencies once during any 12-month period;
(H) The contact information for the centralized source from which consumers may obtain their free annual consumer reports; and
(I) A statement directing consumers to the web sites of the Federal Reserve Board and Federal Trade Commission to obtain more information about consumer reports.
(2)
(3)
(i) Clear and conspicuous;
(ii) Segregated from other information provided to the consumer; and
(iii) Provided to the consumer in writing and in a form that the consumer may keep.
(4)
(5)
For purposes of this subpart, the following rules of construction apply:
(a)
(b)
(2)
(3)
(ii) A consumer obtains credit to finance the purchase of an automobile. If a bank or finance company is the person to whom the loan obligation is initially payable, the bank or finance company must provide the risk-based pricing notice to the consumer (or satisfy the requirements for and provide the notice required under one of the exceptions noted above) based on the terms offered by that bank or finance company only. The auto dealer has no duty to provide a risk-based pricing notice to the consumer. However, the bank or finance company may comply with this rule if the auto dealer has agreed to provide notices to consumers before consummation pursuant to an arrangement with the bank or finance company, as permitted under § 222.73(c).
(c)
(2)
(3)
(ii) Two consumers jointly apply for credit with a creditor. The two consumers reside at the same address. The creditor obtains credit scores on each of the two consumer applicants. The creditor grants credit to the consumers. The creditor provides credit score disclosure notices to satisfy its obligations under this subpart. Even though the two consumers reside at the same address, the creditor must provide a separate credit score disclosure notice to each of the consumers. Each notice must contain only the credit score of the consumer to whom the notice is provided.
1. This appendix contains two model forms for risk-based pricing notices and three model forms for use in connection with the credit score disclosure exceptions. Each of the model forms is designated for use in a particular set of circumstances as indicated by the title of that model form.
2. Model form H-1 is for use in complying with the general risk-based pricing notice requirements in § 222.72. Model form H-2 is for risk-based pricing notices given in connection with account review. Model form H-3 is for use in connection with the credit score disclosure exception for loans secured by residential real property. Model form H-4 is for use in connection with the credit score disclosure exception for loans that are not secured by residential real property. Model form H-5 is for use in connection with the credit score disclosure exception when no credit score is available for a consumer. All forms contained in this appendix are models; their use is optional.
3. A person may change the forms by rearranging the format or by making technical modifications to the language of the forms, in each case without modifying the substance of
a. Acceptable changes include, for example:
i. Corrections or updates to telephone numbers, mailing addresses, or Web site addresses that may change over time.
ii. The addition of graphics or icons, such as the person's corporate logo.
iii. Alteration of the shading or color contained in the model forms.
iv. Use of a different form of graphical presentation to depict the distribution of credit scores.
v. Substitution of the words “credit” and “creditor” or “finance” and “finance company” for the terms “loan” and “lender.”
vi. Including pre-printed lists of the sources of consumer reports or consumer reporting agencies in a “check-the-box” format.
vii. Including the name of the consumer, transaction identification numbers, a date, and other information that will assist in identifying the transaction to which the form pertains.
viii. Including the name of an agent, such as an auto dealer or other party, when providing the “Name of the Entity Providing the Notice.”
b. Unacceptable changes include, for example:
i. Providing model forms on register receipts or interspersed with other disclosures.
ii. Eliminating empty lines and extra spaces between sentences within the same section.
4. If a person uses an appropriate Appendix H model form, or modifies a form in accordance with the above instructions, that person shall be deemed to be acting in compliance with the provisions of § 222.73 or § 222.74, as applicable, of this regulation. It is intended that appropriate use of Model Form H-3 also will comply with the disclosure that may be required under section 609(g) of the FCRA.
H-1 Model form for risk-based pricing notice.
H-2 Model form for account review risk-based pricing notice.
H-3 Model form for credit score disclosure exception for credit secured by one to four units of residential real property.
H-4 Model form for credit score disclosure exception for loans not secured by residential real property.
H-5 Model form for credit score disclosure exception for loans where credit score is not available.
Pub. L. 108-159, sec. 311; 15 U.S.C. 1681m(h).
(a)
(i) Uses a consumer report in connection with an application for, or a grant, extension, or other provision of, credit to a consumer that is primarily for personal, family, or household purposes; and
(ii) Based in whole or in part on the consumer report, grants, extends, or otherwise provides credit to the consumer on material terms that are materially less favorable than the most favorable material terms available to a substantial proportion of consumers from or through that person.
(2)
(b)
(c)
For purposes of this part, the following definitions apply:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(1) (i) Except as otherwise provided in paragraphs (n)(1)(ii) and (n)(3) of this section, in the case of credit extended under an open-end credit plan, the annual percentage rate required to be disclosed under 12 CFR 226.6(a)(1)(ii) or 12 CFR 226.6(b)(2)(i), excluding any temporary initial rate that is lower than the rate that will apply after the temporary rate expires, any penalty rate that will apply upon the occurrence of one or more specific events, such as a late payment or an extension of credit that exceeds the credit limit, and any fixed annual percentage rate option for a home equity line of credit;
(ii) In the case of a credit card (other than a credit card that is used to access a home equity line of credit or a charge card), the annual percentage rate required to be disclosed under 12 CFR 226.6(b)(2)(i) that applies to purchases (“purchase annual percentage rate”) and no other annual percentage rate, or in the case of a credit card that has no purchase annual percentage rate, the annual percentage rate that varies based on information in a consumer report and that has the most significant financial impact on consumers;
(2) In the case of closed-end credit, the annual percentage rate required to be disclosed under 12 CFR 226.17(c) and 226.18(e); and
(3) In the case of credit for which there is no annual percentage rate, the financial term that varies based on information in a consumer report and that has the most significant financial impact on consumers, such as a deposit required in connection with credit extended by a telephone company or utility or an annual membership fee for a charge card.
(o)
(p)
(q)
(a)
(1) Uses a consumer report in connection with an application for, or a grant, extension, or other provision of, credit to that consumer that is primarily for personal, family, or household purposes; and
(2) Based in whole or in part on the consumer report, grants, extends, or otherwise provides credit to that consumer on material terms that are materially less favorable than the most favorable material terms available to a substantial proportion of consumers from or through that person.
(b)
(1)
(A) Determining the credit score (hereafter referred to as the “cutoff score”) that represents the point at which approximately 40 percent of the consumers to whom it grants, extends, or provides credit have higher credit scores and approximately 60 percent of the consumers to whom it grants, extends, or provides credit have lower credit scores; and
(B) Providing a risk-based pricing notice to each consumer to whom it grants, extends, or provides credit whose credit score is lower than the cutoff score.
(ii)
(iii)
(B)
(C)
(D)
(iv)
(v)
(B) A credit card issuer engages in risk-based pricing, and the annual percentage rates it offers to consumers are based in whole or in part on a credit score. The credit card issuer takes a representative sample of the consumers to whom it issued credit cards over the preceding six months. The credit card issuer determines that approximately 80 percent of the sampled consumers received credit at its lowest annual percentage rate, and 20 percent received credit at a higher annual percentage rate. Approximately 80 percent of the sampled consumers have a credit score at or above 750 (on a scale of 350 to 850), and 20 percent have a credit score below 750. Thus, the card issuer selects 750 as its cutoff score. A consumer applies to the credit card issuer for a credit card. The card issuer obtains a credit score for the consumer. The consumer's credit score is 740. Since the consumer's 740 credit score falls below the 750 cutoff score, the credit card
(C) An auto lender engages in risk-based pricing, obtains credit scores from one of the nationwide consumer reporting agencies, and uses the credit score proxy method to determine which consumers must receive a risk-based pricing notice. A consumer applies to the auto lender for credit to finance the purchase of an automobile. A credit score about that consumer is not available from the consumer reporting agency from which the lender obtains credit scores. The lender nevertheless grants, extends, or provides credit to the consumer. The lender must provide a risk-based pricing notice to the consumer.
(2)
(ii)
(iii)
(c)
(i) A consumer applies for a credit card either in connection with an application program, such as a direct-mail offer or a take-one application, or in response to a solicitation under 12 CFR 226.5a, and more than a single possible purchase annual percentage rate may apply under the program or solicitation; and
(ii) Based in whole or in part on a consumer report, the credit card issuer provides a credit card to the consumer with an annual percentage rate referenced in § 640.2(n)(1)(ii) that is greater than the lowest annual percentage rate referenced in § 640.2(n)(1)(ii) available in connection with the application or solicitation.
(2)
(i) The consumer applies for a credit card for which the card issuer provides a single annual percentage rate referenced in § 640.2(n)(1)(ii), excluding a temporary initial rate that is lower than the rate that will apply after the temporary rate expires and a penalty rate that will apply upon the occurrence of one or more specific events, such as a late payment or an extension of credit that exceeds the credit limit; or
(ii) The credit card issuer offers the consumer the lowest annual percentage rate referenced in § 640.2(n)(1)(ii) available under the credit card offer for which the consumer applied, even if a lower annual percentage rate referenced in § 640.2(n)(1)(ii) is available under a different credit card offer issued by the card issuer.
(3)
(ii) The same facts as in the example in paragraph (c)(3)(i) of this section, except that the card issuer provides a credit card to the consumer at a purchase annual percentage rate of 10 percent. The card issuer is not required to provide a risk-based pricing notice to the consumer even if, under a different credit card solicitation, that consumer or other consumers might qualify for a purchase annual percentage rate of 8 percent.
(d)
(i) Uses a consumer report in connection with a review of credit that has been extended to the consumer; and
(ii) Based in whole or in part on the consumer report, increases the annual percentage rate (the annual percentage rate referenced in § 640.2(n)(1)(ii) in the case of a credit card).
(2)
(a)
(i) A statement that a consumer report (or credit report) includes information
(ii) A statement that the terms offered, such as the annual percentage rate, have been set based on information from a consumer report;
(iii) A statement that the terms offered may be less favorable than the terms offered to consumers with better credit histories;
(iv) A statement that the consumer is encouraged to verify the accuracy of the information contained in the consumer report and has the right to dispute any inaccurate information in the report;
(v) The identity of each consumer reporting agency that furnished a consumer report used in the credit decision;
(vi) A statement that federal law gives the consumer the right to obtain a copy of a consumer report from the consumer reporting agency or agencies identified in the notice without charge for 60 days after receipt of the notice;
(vii) A statement informing the consumer how to obtain a consumer report from the consumer reporting agency or agencies identified in the notice and providing contact information (including a toll-free telephone number, where applicable) specified by the consumer reporting agency or agencies; and
(viii) A statement directing consumers to the Web sites of the Board and Federal Trade Commission to obtain more information about consumer reports.
(2)
(i) A statement that a consumer report (or credit report) includes information about the consumer's credit history and the type of information included in that credit history;
(ii) A statement that the person has conducted a review of the account using information from a consumer report;
(iii) A statement that as a result of the review, the annual percentage rate on the account has been increased based on information from a consumer report;
(iv) A statement that the consumer is encouraged to verify the accuracy of the information contained in the consumer report and has the right to dispute any inaccurate information in the report;
(v) The identity of each consumer reporting agency that furnished a consumer report used in the account review;
(vi) A statement that federal law gives the consumer the right to obtain a copy of a consumer report from the consumer reporting agency or agencies identified in the notice without charge for 60 days after receipt of the notice;
(vii) A statement informing the consumer how to obtain a consumer report from the consumer reporting agency or agencies identified in the notice and providing contact information (including a toll-free telephone number, where applicable) specified by the consumer reporting agency or agencies; and
(viii) A statement directing consumers to the Web sites of the Federal Reserve Board and Federal Trade Commission to obtain more information about consumer reports.
(b)
(i) Clear and conspicuous; and
(ii) Provided to the consumer in oral, written, or electronic form.
(2)
(c)
(i) In the case of a grant, extension, or other provision of closed-end credit, before consummation of the transaction, but not earlier than the time the decision to approve an application for, or a grant, extension, or other provision of, credit, is communicated to the consumer by the person required to provide the notice;
(ii) In the case of credit granted, extended, or provided under an open-end credit plan, before the first transaction is made under the plan, but not earlier than the time the decision to approve an application for, or a grant, extension, or other provision of, credit is communicated to the consumer by the person required to provide the notice; or
(iii) In the case of a review of credit that has been extended to the consumer, at the time the decision to increase the annual percentage rate (annual percentage rate referenced in § 640.2(n)(1)(ii) in the case of a credit card) based on a consumer report is communicated to the consumer by the person required to provide the notice, or if no notice of the increase in the annual percentage rate is provided to the consumer prior to the effective date of the change in the annual percentage rate (to the extent permitted by law), no later than five days after the effective date of the change in the annual percentage rate.
(2)
(i) Provides a notice described in §§ 640.3(a), 640.5(e), or 640.5(f) to the consumer within the time periods set forth in paragraph (c)(1)(i) of this section, § 640.5(e)(3), or § 640.5(f)(4), as applicable; or
(ii) Arranges to have the auto dealer or other party provide a notice described in §§ 640.3(a), 640.5(e), or 640.5(f) to the consumer on its behalf within the time periods set forth in paragraph (c)(1)(i) of this section, § 640.5(e)(3), or § 640.5(f)(4), as applicable, and maintains reasonable policies and procedures to verify that the auto dealer or other party provides such notice to the consumer within the applicable time periods. If the person arranges to have the auto dealer or other party provide a notice described in § 640.5(e), the person's obligation is satisfied if the consumer receives a notice containing a credit score obtained by the dealer or other party, even if a different credit score is obtained and used by the person on whose behalf the notice is provided.
(3)
(i) The time of the first mailing by the person to the consumer after the decision is made to approve the grant, extension, or other provision of open-end credit, such as in a mailing containing the account agreement or a credit card; or
(ii) Within 30 days after the decision to approve the grant, extension, or other provision of credit.
(a)
(2)
(b)
(c)
(i) Obtains a consumer report that is a prescreened list as described in section 604(c)(2) of the FCRA; and
(ii) Uses the consumer report for the purpose of making a firm offer of credit to the consumer.
(2)
(3)
(d)
(i) The consumer requests from the person an extension of credit that is or will be secured by one to four units of residential real property; and
(ii) The person provides to each consumer described in paragraph (d)(1)(i) of this section a notice that contains the following—
(A) A statement that a consumer report (or credit report) is a record of the consumer's credit history and includes information about whether the consumer pays his or her obligations on time and how much the consumer owes to creditors;
(B) A statement that a credit score is a number that takes into account information in a consumer report and that a credit score can change over time to reflect changes in the consumer's credit history;
(C) A statement that the consumer's credit score can affect whether the consumer can obtain credit and what the cost of that credit will be;
(D) The information required to be disclosed to the consumer pursuant to section 609(g) of the FCRA;
(E) The distribution of credit scores among consumers who are scored under the same scoring model that is used to generate the consumer's credit score using the same scale as that of the credit score that is provided to the consumer, presented in the form of a bar graph containing a minimum of six bars that illustrates the percentage of consumers with credit scores within the range of scores reflected in each bar or by other clear and readily understandable graphical means, or a clear and readily understandable statement informing the consumer how his or her credit score compares to the scores of other consumers. Use of a graph or statement obtained from the person providing the credit score that meets the requirements of this paragraph (d)(1)(ii)(E) is deemed to comply with this requirement;
(F) A statement that the consumer is encouraged to verify the accuracy of the information contained in the consumer report and has the right to dispute any inaccurate information in the report;
(G) A statement that federal law gives the consumer the right to obtain copies of his or her consumer reports directly from the consumer reporting agencies, including a free report from each of the nationwide consumer reporting agencies once during any 12-month period;
(H) Contact information for the centralized source from which consumers may obtain their free annual consumer reports; and
(I) A statement directing consumers to the web sites of the Board and Federal Trade Commission to obtain more information about consumer reports.
(2)
(i) Clear and conspicuous;
(ii) Provided on or with the notice required by section 609(g) of the FCRA;
(iii) Segregated from other information provided to the consumer, except for the notice required by section 609(g) of the FCRA; and
(iv) Provided to the consumer in writing and in a form that the consumer may keep.
(3)
(4)
(ii)
(B) A person that uses consumer reports to set the material terms of mortgage credit granted, extended, or provided to consumers regularly requests credit scores from several consumer reporting agencies, each of which it uses in an underwriting program in order to determine the material terms it will offer to the consumer. That person may choose one of these scores to include in the notice described in paragraph (d)(1)(ii) of this section.
(5)
(e)
(i) The consumer requests from the person an extension of credit other than credit that is or will be secured by one to four units of residential real property; and
(ii) The person provides to each consumer described in paragraph (e)(1)(i) of this section a notice that contains the following—
(A) A statement that a consumer report (or credit report) is a record of the consumer's credit history and includes information about whether the consumer pays his or her obligations on time and how much the consumer owes to creditors;
(B) A statement that a credit score is a number that takes into account information in a consumer report and that a credit score can change over time to reflect changes in the consumer's credit history;
(C) A statement that the consumer's credit score can affect whether the consumer can obtain credit and what the cost of that credit will be;
(D) The current credit score of the consumer or the most recent credit score of the consumer that was previously calculated by the consumer reporting agency for a purpose related to the extension of credit;
(E) The range of possible credit scores under the model used to generate the credit score;
(F) The distribution of credit scores among consumers who are scored under the same scoring model that is used to generate the consumer's credit score using the same scale as that of the credit score that is provided to the consumer, presented in the form of a bar graph containing a minimum of six bars that illustrates the percentage of consumers with credit scores within the range of scores reflected in each bar, or by other clear and readily understandable graphical means, or a clear and readily understandable statement informing the consumer how his or her credit score compares to the scores of other consumers. Use of a graph or statement obtained from the person providing the credit score that meets the requirements of this paragraph (e)(1)(ii)(F) is deemed to comply with this requirement;
(G) The date on which the credit score was created;
(H) The name of the consumer reporting agency or other person that provided the credit score;
(I) A statement that the consumer is encouraged to verify the accuracy of the information contained in the consumer report and has the right to dispute any inaccurate information in the report;
(J) A statement that federal law gives the consumer the right to obtain copies of his or her consumer reports directly from the consumer reporting agencies, including a free report from each of the nationwide consumer reporting agencies once during any 12-month period;
(K) Contact information for the centralized source from which consumers may obtain their free annual consumer reports; and
(L) A statement directing consumers to the web sites of the Federal Reserve Board and Federal Trade Commission to obtain more information about consumer reports.
(2)
(i) Clear and conspicuous;
(ii) Segregated from other information provided to the consumer; and
(iii) Provided to the consumer in writing and in a form that the consumer may keep.
(3)
(4)
(ii)
(5)
(f)
(i) Regularly obtains credit scores from a consumer reporting agency and provides credit score disclosures to consumers in accordance with paragraphs (d) or (e) of this section, but a credit score is not available from the consumer reporting agency from which the person regularly obtains credit scores for a consumer to whom the
(ii) Does not obtain a credit score from another consumer reporting agency in connection with granting, extending, or providing credit to the consumer; and
(iii) Provides to the consumer a notice that contains the following—
(A) A statement that a consumer report (or credit report) includes information about the consumer's credit history and the type of information included in that history;
(B) A statement that a credit score is a number that takes into account information in a consumer report and that a credit score can change over time in response to changes in the consumer's credit history;
(C) A statement that credit scores are important because consumers with higher credit scores generally obtain more favorable credit terms;
(D) A statement that not having a credit score can affect whether the consumer can obtain credit and what the cost of that credit will be;
(E) A statement that a credit score about the consumer was not available from a consumer reporting agency, which must be identified by name, generally due to insufficient information regarding the consumer's credit history;
(F) A statement that the consumer is encouraged to verify the accuracy of the information contained in the consumer report and has the right to dispute any inaccurate information in the consumer report;
(G) A statement that federal law gives the consumer the right to obtain copies of his or her consumer reports directly from the consumer reporting agencies, including a free consumer report from each of the nationwide consumer reporting agencies once during any 12-month period;
(H) The contact information for the centralized source from which consumers may obtain their free annual consumer reports; and
(I) A statement directing consumers to the web sites of the Board and Federal Trade Commission to obtain more information about consumer reports.
(2)
(3)
(i) Clear and conspicuous;
(ii) Segregated from other information provided to the consumer; and
(iii) Provided to the consumer in writing and in a form that the consumer may keep.
(4)
(5)
For purposes of this part, the following rules of construction apply:
(a)
(b)
(2)
(3)
(ii) A consumer obtains credit to finance the purchase of an automobile. If a bank or finance company is the person to whom the loan obligation is initially payable, the bank or finance company must provide the risk-based pricing notice to the consumer (or satisfy the requirements for and provide the notice required under one of the exceptions noted above) based on the terms offered by that bank or finance company only. The auto dealer has no duty to provide a risk-based pricing notice to the consumer. However, the bank or finance company may comply with this rule if the auto dealer has agreed to provide notices to consumers before consummation pursuant to an arrangement with the bank or finance company, as permitted under § 640.4(c).
(c)
(2)
(3)
(ii) Two consumers jointly apply for credit with a creditor. The two consumers reside at the same address. The creditor obtains credit scores on each of the two consumer applicants. The creditor grants credit to the consumers. The creditor provides credit score disclosure notices to satisfy its obligations under this part. Even though the two consumers reside at the same address, the creditor must provide a separate credit score disclosure notice to each of the consumers. Each notice must contain only the credit score of the consumer to whom the notice is provided.
15 U.S.C. 1681e, 1681g, 1681j, 1681m, 1681s, and 1681s-3; Public Law 108-159, sections 211(d), 214(b), and 311; 117 Stat. 1952.
(b)
1. This appendix contains two model forms for risk-based pricing notices and three model forms for use in connection with the credit score disclosure exceptions. Each of the model forms is designated for use in a particular set of circumstances as indicated by the title of that model form.
2. Model form B-1 is for use in complying with the general risk-based pricing notice requirements in § 640.3. Model form B-2 is for risk-based pricing notices given in connection with account review. Model form B-3 is for use in connection with the credit score disclosure exception for loans secured by residential real property. Model form B-4 is for use in connection with the credit score disclosure exception for loans that are not secured by residential real property. Model form B-5 is for use in connection with the credit score disclosure exception when no credit score is available for a consumer. All forms contained in this appendix are models; their use is optional.
3. A person may change the forms by rearranging the format or by making technical modifications to the language of the forms, in each case without modifying the substance of the disclosures. Any such rearrangement or modification of the language of the model forms may not be so extensive as to materially affect the substance, clarity, comprehensibility, or meaningful sequence of the forms. Persons making revisions with that effect will lose the benefit of the safe harbor for appropriate use of Appendix B model forms. A person is not required to conduct consumer testing when rearranging the format of the model forms.
a. Acceptable changes include, for example:
i. Corrections or updates to telephone numbers, mailing addresses, or web site addresses that may change over time.
ii. The addition of graphics or icons, such as the person's corporate logo.
iii. Alteration of the shading or color contained in the model forms.
iv. Use of a different form of graphical presentation to depict the distribution of credit scores.
v. Substitution of the words “credit” and “creditor” or “finance” and “finance company” for the terms “loan” and “lender.”
vi. Including pre-printed lists of the sources of consumer reports or consumer reporting agencies in a “check-the-box” format.
vii. Including the name of the consumer, transaction identification numbers, a date, and other information that will assist in identifying the transaction to which the form pertains.
viii. Including the name of an agent, such as an auto dealer or other party, when providing the “Name of the Entity Providing the Notice.”
b. Unacceptable changes include, for example:
i. Providing model forms on register receipts or interspersed with other disclosures.
ii. Eliminating empty lines and extra spaces between sentences within the same section.
4. If a person uses an appropriate Appendix B model form, or modifies a form in accordance with the above instructions, that person shall be deemed to be acting in compliance with the provisions of § 640.4 or § 640.5, as applicable, of this regulation. It is intended that appropriate use of Model Form B-3 also will comply with the disclosure that may be required under section 609(g) of the FCRA.
B-1 Model form for risk-based pricing notice.
B-2 Model form for account review risk-based pricing notice.
B-3 Model form for credit score disclosure exception for credit secured by one to four units of residential real property.
B-4 Model form for credit score disclosure exception for loans not secured by residential real property.
B-5 Model form for credit score disclosure exception for loans where credit score is not available.