Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2014-0446; Directorate Identifier 2013-NM-077-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2013-08, dated March 12, 2013 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc. Model CL-215-6B11 (CL-215T Variant), and CL-215-6B11 (CL-415 Variant) airplanes. The MCAI states:

Required actions include applying grease to the bearing, doing a general visual inspection of the expelled old grease for any contaminants, metal wear, and indication of corrosion, and replacing the bearing if necessary; revising the maintenance or inspection program, as applicable, to incorporate the rudder spring tab operational test; and revising the maintenance or inspection program, as applicable, to incorporate a check of the rudder spring tab operation into the daily inspection.

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2014-0446.

Bombardier, Inc. has issued Service Bulletin 215-A3171, Revision 1, dated January 25, 2012; and Service Bulletin 215-A4452, Revision 1, dated January 3, 2012. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

Since late 2006, we have included a standard paragraph titled “Airworthy Product” in all MCAI ADs in which the FAA develops an AD based on a foreign authority's AD.

The MCAI or referenced service information in an FAA AD often directs the owner/operator to contact the manufacturer for corrective actions, such as a repair. Briefly, the Airworthy Product paragraph allowed owners/operators to use corrective actions provided by the manufacturer if those actions were FAA-approved. In addition, the paragraph stated that any actions approved by the State of Design Authority (or its delegated agent) are considered to be FAA-approved.

In another NPRM, Directorate Identifier 2012-NM-101-AD (78 FR 78285, December 26, 2013), we proposed to prevent the use of repairs that were not specifically developed to correct the unsafe condition, by requiring that the repair approval provided by the State of Design Authority or its delegated agent specifically refer to the FAA AD. This change was intended to clarify the method of compliance and to provide operators with better visibility of repairs that are specifically developed and approved to correct the unsafe condition. In addition, we proposed to change the phrase “its delegated agent” to include a design approval holder (DAH) with State of Design Authority design organization approval (DOA), as applicable, to refer to a DAH authorized to approve required repairs for the proposed AD.

One commenter to the other NPRM, Directorate Identifier 2012-NM-101-AD (78 FR 78285, December 26, 2013), stated the following: “The proposed wording, being specific to repairs, eliminates the interpretation that Airbus messages are acceptable for approving minor deviations (corrective actions) needed during accomplishment of an AD mandated Airbus service bulletin.”

This comment has made the FAA aware that some operators have misunderstood or misinterpreted the Airworthy Product paragraph to allow the owner/operator to use messages provided by the manufacturer as approval of deviations during the accomplishment of an AD-mandated action. The Airworthy Product paragraph does not approve messages or other information provided by the manufacturer for deviations to the requirements of the AD-mandated actions. The Airworthy Product paragraph only addresses the requirement to contact the manufacturer for corrective actions for the identified unsafe condition and does not cover deviations from other AD requirements. However, deviations to AD-required actions are addressed in 14 CFR 39.17, and anyone may request the approval for an alternative method of compliance to the AD-required actions using the procedures found in 14 CFR 39.19.

To address this misunderstanding and misinterpretation of the Airworthy Product paragraph, we have changed that paragraph and retitled it “Contacting the Manufacturer.” This paragraph now clarifies that for any requirement in this proposed AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the FAA, TCCA, or Bombardier's TCCA Design Approval Organization (DAO).

The Contacting the Manufacturer paragraph also clarifies that, if approved by the DAO, the approval must include the DAO-authorized signature. The DAO signature indicates that the data and information contained in the document are TCCA-approved, which is also FAA-approved. Messages and other information provided by the manufacturer that do not contain the DAO-authorized signature approval are not TCCA-approved, unless TCCA directly approves the manufacturer's message or other information.

This clarification does not remove flexibility previously afforded by the Airworthy Product paragraph. Consistent with long-standing FAA policy, such flexibility was never intended for required actions. This is also consistent with the recommendation of the Airworthiness Directive Implementation Aviation Rulemaking Committee to increase flexibility in complying with ADs by identifying those actions in manufacturers' service instructions that are “Required for Compliance” with ADs. We continue to work with manufacturers to implement this recommendation. But once we determine that an action is required, any deviation from the requirement must be approved as an alternative method of compliance.

We estimate that this proposed AD affects 5 airplanes of U.S. registry.

We also estimate that it would take about 2 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would be negligible. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $850, or $170 per product.

We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Comments Invited

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2014-0305 and Airspace Docket No. 14-AWP-2) and be submitted in triplicate to the Docket Management System (see “ ADDRESSES ” section for address and phone number). You may also submit comments through the Internet at http://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2014-0305 and Airspace Docket No. 14-AWP-2”. The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the Internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the “ ADDRESSES ” section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 1601 Lind Avenue SW., Renton, WA 98057.

Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by establishing Class E airspace designated as an extension and modifying Class E airspace extending upward from 700 feet above the surface at Charles M. Schultz-Sonoma County Airport, Santa Rosa, CA. After a biennial review of the airspace, the FAA found modification of the airspace necessary for the safety and management of aircraft departing and arriving under IFR operations at the airport. Class E airspace designated as an extension to the Class D and Class E surface area would be established from the 4.3-mile radius of the airport to 14 miles northwest of the airport. Class E airspace extending upward from 700 feet above the surface would be modified with segments extending 23 miles northwest, 28 miles southeast, and 13 miles southwest of the airport. The description for the Class D airspace would reflect the airport name change from Santa Rosa/Sonoma County Airport to Charles M. Schultz-Sonoma County Airport.

Class D and E airspace designations are published in paragraph 5000, 6004, and 6005, respectively, of FAA Order 7400.9X, dated August 7, 2013, and effective September 15, 2013, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in this Order.

The FAA has determined this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation; (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority for the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend controlled airspace at Charles M. Schultz-Sonoma County Airport, Santa Rosa, CA.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR Part 71 as follows:

In some cases, studies submitted to FDA as part of a new drug application or biologics license application will demonstrate that a drug is safe and effective for its intended use (i.e., that its benefits outweigh its identified risks), but the Agency will nevertheless require a sponsor to conduct additional postmarketing studies or trials under section 505(o)(3) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 355( o )(3)) for the following reasons: To assess a known serious risk related to use of the drug, to assess signals of a serious risk related to use of the drug, or to identify an unexpected risk when available data indicate the potential for a serious risk.

For most drugs, clinical trials of reasonable size can establish a favorable relationship of benefit to relatively common risks, but they are not large enough to assess the risk of rare serious events such as heart attacks, strokes, or death. Where there is concern about these risks (e.g., concern about drugs to treat Type II diabetes mellitus (T2DM) or to promote weight loss), development programs include CVOTs to help assess the risk to meet the requirements for drug approval. In some cases, applicants have conducted a metaanalysis of cardiovascular (CV) risk from Phase 2/3 trials to help establish the safety of a drug and a separate larger CVOT as a postmarketing requirement under section 505(o)(3) of the FD&C Act. In other cases, analyses of interim data from a single CVOT will demonstrate that a drug is safe with regard to CV risk for its intended use, and, if the overall risk-benefit analysis supports approval, the applicant will further assess the CV risks by continuing the trial as a postmarketing requirement.

The Agency has described its expectations for CV outcome data for drugs to treat T2DM in the guidance for industry “Diabetes Mellitus Evaluating Cardiovascular Risk in New Antidiabetic Therapies to Treat Type 2” (available at Diabetes” ( http://www.fda.gov/downloads/Drugs/GuidanceComplianceRegulatoryInformation/Guidances/UCM071627.pdf ), which was issued based on the discussion at an advisory committee meeting, 1 as well as in other available data and information. The guidance makes recommendations about how to demonstrate that a new therapy to treat T2DM is not associated with an unacceptable increase in CV risk.

The guidance states that before submission of a new drug application (NDA) or biologics license application, the premarketing CV outcome data should show that the incidence of important CV events occurring with the investigational agent is not more than 80 percent increase compared to the control group (i.e., that the upper bound of the 2-sided 95 percent confidence interval for the estimated risk ratio for CV events is less than 1.8). The guidance also states that if the risk ratio is between 1.3 and 1.8 and the overall risk-benefit analysis supports approval, a postmarketing trial will generally be necessary to show that the upper bound of the 2-sided 95 percent confidence interval for the estimated risk ratio is less than 1.3. This showing can be achieved by conducting an adequately powered new postmarketing trial, by combining results of separate premarketing and postmarketing trials, or by continuing a large CVOT in which a planned interim analysis is the basis for concluding that the risk ratio is less than 1.8. If the risk ratio of 1.3 is ruled out based on premarket data, then a postmarketing requirement may not be necessary.

Interim analyses are analyses of study data conducted partway through an ongoing clinical trial. They can play an integral role in clinical trials by allowing for the safety of enrolled patients to be monitored at various intervals in the study and also by allowing for the possibility of stopping the trial early for safety concerns, for futility, or for early evidence of efficacy that would make it unethical for the trial to proceed. Confidentiality of interim data is a paramount concern: The 1998 International Conference on Harmonization (ICH) guidance for industry “E9 Statistical Principles for Clinical Trials” (ICH E9 guidance) (available at http://www.fda.gov/downloads/Drugs/GuidanceComplianceRegulatoryInformation/Guidances/ucm073137.pdf ) reflects a collective view across regulatory agencies in the European Union, Japan, and the United States when it states that “All staff involved in the conduct of the trial should remain blind to the results of such analyses, because of the possibility that their attitudes to the trial will be modified and cause changes in the characteristics of patients to be recruited or biases in treatment comparisons.”

An independent Data Monitoring Committee (DMC) is usually established to review the interim analysis results and make recommendations to the sponsor about any action needed based on those results, allowing the sponsor and other personnel associated with the trial to remain masked to interim results. In 2006, FDA issued the guidance for clinical trial sponsors “Establishment and Operation of Clinical Trial Data Monitoring Committees” (DMC guidance) (available at http://www.fda.gov/downloads/RegulatoryInformation/Guidances/UCM127073.pdf ) that reiterated many of the best practices for interim analyses and DMCs outlined in the ICH E9 guidance. Specifically, the guidance states that “[p]rocedures should be established to safeguard confidential interim data from the project team, investigators, sponsor representatives, or anyone else outside the DMC and the statistician(s) performing the interim analyses (see 21 CFR 314.126(b)(5) (drugs) and 21 CFR 860.7(f)(1) (devices)).” An exception is made in considering the need to disseminate safety data to allow for appropriate monitoring of patients' safety.

The concern with widespread disclosure of interim results in an ongoing trial, as described in the DMC guidance, stems from the potential of the disclosure to negatively affect the conduct of the remaining portion of the trial. The impact could include unanticipated changes in recruitment, treatment administration, or other aspects of trial conduct, as well as loss of objectivity in safety event reporting. Sponsors and other interested parties with access to interim data may have difficulty managing the remainder of the trial in an objective manner, particularly if changes to the trial protocol are needed for other reasons. Knowledge of interim data may influence decisions about the trial going forward, and it is nearly impossible to assess the impact of that influence on the trial's final results. To ensure the integrity of the trial and the validity of its findings, the DMC guidance strongly recommends maintaining the confidentiality of interim data until the trial completion.

Once FDA sends an approval letter for a new drug, the FD&C Act and FDA regulations require that a summary or summaries of the safety and effectiveness data and information submitted with or incorporated by reference in the application be made available immediately for public disclosure, with certain limited redactions. FDA's analyses of the safety and effectiveness data and information from clinical studies that support the approval of a new drug are typically disclosed with little or no redaction. However, data relied on to make approval decisions are ordinarily derived from fully completed clinical trials. In the case of T2DM therapies where a single, large CVOT to rule out CV risk was designed to meet both the requirement for approval and the postmarketing requirements, approval would indicate that the study had indeed ruled out the risk ratio of 1.8, so this aspect of the interim results would be known. But that fact would not reveal the detailed result, e.g., a finding that CV events were actually reduced by the drug in the interim analysis. Disclosure of detailed and more extensive information or analyses from an ongoing trial, that is, the results of an interim analysis, could undermine the integrity of the trial and jeopardize its continuation, which could delay or even prevent obtaining the safety data about serious risks that were required to be assessed at the time of approval.

For example, in connection with a recent approval decision of a drug to treat T2DM (see MEMORANDA: Disclosure of Interim Cardiovascular Risk Study Data, NDA 22271, Nesina (alogliptin) tablets, and Its Fixed-Dose Combination Product NDAs 22426 and 203414, dated March 12, 2013, and Disclosure of Interim Cardiovascular Risk Study Data and Information Relied on to Approve, NDA 22271, Nesina (alogliptin) tablets, and Its Fixed-Dose Combination Product NDAs 22426 and 203414, dated March 12, 2013, available at http://www.fda.gov/Drugs/NewsEvents/ucm398454.htm ), FDA released information at the time of approval that was considered not likely to undermine the integrity of the ongoing trial, including (1) general background and study information; (2) high-level summary conclusions that the trial ruled out the prespecified risk margin recommended by FDA guidance; and (3) other data and information from the trial unrelated to CV risk. FDA decided, however, to delay disclosure of other information that it determined could jeopardize successful completion of the trial, specifically point estimates of hazard ratios and associated confidence intervals for CV risk and detailed data on CV events and rates. Based on the circumstances of this case, FDA determined that delaying disclosure of these data was appropriate for a limited time. This information would become available when FDA completed its review of the final CV risk study report and had taken any related regulatory action based on the final results.

The Agency is holding this hearing to solicit input from stakeholders on the effects of disclosing information or analyses, at various levels of detail, from an ongoing trial, and whether general information about the trial can be disclosed without significant risk to the integrity of the trial or its completion. Making a determination about the effect of disclosure on a particular trial requires consideration of the details of that trial and relevant context.

FDA is seeking input from the various stakeholders on the following issues:

The Commissioner of Food and Drugs is announcing that the public hearing will be held in accordance with part 15 (21 CFR part 15). The hearing will be conducted by a presiding officer, who will be accompanied by FDA senior management from the Office of the Commissioner and the Center for Drug Evaluation and Research.

Under § 15.30(f), the hearing is informal and the rules of evidence do not apply. No participant may interrupt the presentation of another participant. Only the presiding officer and panel members may question any person during or at the conclusion of each presentation.

Public hearings under part 15 are subject to FDA's policy and procedures for electronic media coverage of FDA's public administrative proceedings (part 10, subpart C (21 CFR part 10, subpart C)). Under § 10.205, representatives of the electronic media may be permitted, subject to certain limitations, to videotape, film, or otherwise record FDA's public administrative proceedings, including presentations by participants. The hearing will be transcribed as stipulated in § 15.30(b) (see section VI for more details). To the extent that the conditions for the hearing, as described in this notice, conflict with any provisions set out in part 15, this notice acts as a waiver of those provisions as specified in § 15.30(h).

The FDA Conference Center at the White Oak location is a Federal facility with security procedures and limited seating. Individuals who wish to attend the public hearing must register on or before July 28, 2014, by visiting https://www.surveymonkey.com/s/7L8Z66Q and contacting Indira Hills (see FOR FURTHER INFORMATION CONTACT ). Early registration is recommended. Registration is free and will be on a first-come, first-served basis. However, FDA may limit the number of participants from each organization based on space limitations. Onsite registration on the day of the hearing will be based on space availability.

FDA will provide additional background information at the time the Federal Register notice is published and an agenda approximately 2 weeks before the hearing at FDA Meeting Information page, which is available online at http://www.fda.gov/Drugs/NewsEvents/ucm398454.htm .

Time will be reserved during the hearing for planned presentations from the audience. If you would like to present at the hearing, please indicate this in your hearing registration. Time for audience presentations is limited and will be assigned on a first-come, first-served basis. Note also that time will be designated throughout the day for general comments and questions from the audience following the panel discussions.

In this Federal Register notice, FDA has included specific issues that will be addressed by the panel. If you wish to address one or more of these issues in your presentation, please indicate this at the time you register so that FDA can consider that in organizing the presentations. FDA will do its best to accommodate requests to speak, and will determine the amount of time allotted to each presenter and the approximate time that each oral presentation is scheduled to begin.

If you need special accommodations because of disability, please contact Indira Hills (see FOR FURTHER INFORMATION CONTACT ) at least 7 days before the hearing.

A live webcast of this hearing will be viewable at https://collaboration.fda.gov/dmcidcvtpart15/ on the day of the hearing. A video record of the hearing will be available at the same Web address for 1 year.

Regardless of attendance at the public hearing, interested persons may submit either electronic comments regarding this document to http://www.regulations.gov or written comments to the Division of Dockets Management (see ADDRESSES ). It is only necessary to send one set of comments. Identify comments with the docket number found in brackets in the heading of this document. Received comments may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday, and will be posted to the docket at http://www.regulations.gov .

As soon as a transcript is available, it will be accessible at http://www.regulations.gov . It may be viewed at the Division of Dockets Management (see ADDRESSES ). A transcript will also be available in either hard copy or on CD-ROM, after submission of a Freedom of Information request. Written requests are to be sent to Division of Freedom of Information (ELEM-1029), Food and Drug Administration, 12420 Parklawn Dr., Element Bldg., Rockville, MD 20857.

Background

This document contains proposed amendments to 26 CFR Part 301 relating to section 6103(j)(1)(A) of the Internal Revenue Code (Code). Section 6103(j)(1)(A) authorizes the Secretary of the Treasury to furnish, upon written request by the Secretary of Commerce, such return or return information as the Secretary of Treasury may prescribe by regulation to officers and employees of the Bureau for the purpose of, but only to the extent necessary in, the structuring of censuses and conducting related statistical activities authorized by law. Section 301.6103(j)(1)-1 of the regulations further defines such purposes by reference to 13 U.S.C. chapter 5 and provides an itemized description of the return information authorized to be disclosed for such purposes. This document contains proposed regulations authorizing the disclosure of additional items of return information requested by the Secretary of Commerce. Temporary regulations in the Rules and Regulations section of this issue of the Federal Register amend 26 CFR part 301. The text of those temporary regulations serves as the text of these proposed regulations. The preamble to the temporary regulations explains the temporary regulations and these proposed regulations.

It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedures Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulation does not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, this regulation has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

Before these proposed regulations are adopted as final regulations, consideration will be given to any comments that are submitted timely to the IRS as prescribed in this preamble under the Addresses heading. The IRS and Treasury Department request comments on all aspects of the proposed regulations. All comments that are submitted will be available for public inspection and copying at www.regulations.gov or upon request. A public hearing may be scheduled if requested in writing by any person that timely submits written or electronic comments. If a public hearing is scheduled, notice of the date, time, and place for the public hearing will be published in the Federal Register .

The principal author of these proposed regulations is Melissa Avrutine, Office of the Associate Chief Counsel (Procedure and Administration).

Accordingly, 26 CFR part 301 is proposed to be amended as follows:

VA proposes to update its regulations incorporating NFPA codes and standards applicable to community residential care facilities, contract facilities for outpatient and residential treatment services for veterans with alcohol or drug dependence or abuse disabilities, Medical Foster Homes, and State home facilities. VA's regulations that govern these facilities require that these facilities meet certain provisions of the codes and standards published by NFPA. These codes and standards are reviewed and updated by NFPA on a 3-year cycle. In 38 CFR 17.1, VA currently incorporates by reference the NFPA codes and standards cited in §§ 17.63, 17.74, 17.81, and 17.82. VA also relies on NFPA codes and standards in 38 CFR 51.200, 52.200, and 59.130.

The NFPA is a leading advocate for fire prevention and is an authoritative source on public safety and emergency management. The NFPA codes and standards are developed in a process accredited by the American National Standards Institute (ANSI) and conform to the Office of Management and Budget (OMB) Circular A-119. It is important that VA rely upon the most current fire and life safety codes and standards to ensure a safe environment is provided and maintained for veterans. VA has elected to rely upon the codes and standards established by NFPA to provide consistency across the country. By adopting the most current editions of these codes and standards, VA works to ensure veterans reside and receive care in facilities that are safe; ensure there is one set of codes and standards for the design, renovation, and inspection of these facilities; and help maintain high levels of safety by following these codes and standards for community facilities used or approved by VA.

NFPA 101, Life Safety Code, is the primary source document that establishes the safety requirements for newly constructed and existing facilities. NFPA 101 is unique in that it provides a different set of requirements for the same type of facility based on whether the facility is to be newly constructed or already exists.

Chapter 2 of NFPA 101 references other ANSI-accredited, consensus-based codes and standards, including other NFPA Codes and Standards. The documents listed in Chapter 2 of NFPA 101 are considered part of the requirements of NFPA 101 only to the extent called for in other chapters of NFPA 101. For example, the inclusion of NFPA 13, Standard for the Installation of Sprinkler Systems, in Chapter 2 does not mean that all buildings must have sprinklers. Rather, where NFPA 101 requires buildings to be sprinkler protected, NFPA 13 is to be used for sprinkler installation.

NFPA 101 provides different requirements for new and existing construction because it recognizes that it may be impractical to continually upgrade existing installations as new editions of the codes and standards referenced in Chapter 2 are adopted. Accordingly, NFPA 101 includes a provision that existing facilities can continue in service even if they do not conform to an updated code or standard that is referenced in Chapter 2 as long as the lack of conformity does not present a serious hazard to the occupants. However, since some NFPA codes and standards are referenced within VA regulations that do not also reference this provision in Chapter 2, we propose to add a new paragraph (c) to § 17.1 that contains similar language to permit fire and safety specialists to determine when upgrades to existing facilities are necessary on a case-by-case basis.

NFPA 101 is updated on a 3-year cycle, and the citations to the codes and standards referenced in Chapter 2 are updated the same time. This proposed rulemaking would amend § 17.1 to reflect the current edition of NFPA 101, Life Safety Code, and the editions of the NFPA codes and standards that are cited in Chapter 2 of NFPA 101.

VA likewise relies on NFPA codes and standards in 38 CFR 51.200, 52.200, and 59.130, and we propose to amend these sections to reflect the current editions of NFPA 101, Life Safety Code, and NFPA 99, Health Care Facilities Code.

The NFPA codes and standards that have been updated since we published the current 38 CFR 17.1 are NFPA 101, Life Safety Code (2009 edition); NFPA 25, Standard for the Inspection, Testing, and Maintenance of Water-Based Fire Protection Systems (2008 edition); NFPA 30, Flammable and Combustible Liquids Code (2008 edition); and NFPA 720, Standard for the Installation of Carbon Monoxide (CO) Detection and Warning Equipment (2009 edition). The NFPA codes and standards updated from the editions referenced in current §§ 51.200 and 59.130 are NFPA 101 (2009 edition) and NFPA 99, Standard for Health Care Facilities (2005). The NFPA codes and standards updated from the edition referenced in current 38 CFR 52.200 is NFPA 101, Life Safety Code (2000 edition). This proposed rulemaking would update the references to these NFPA codes and standards in the cited VA regulations to reflect the most recent editions cited in NFPA 101, Life Safety Code (2012 edition). We would also update cited references within VA regulations to be consistent with the current NFPA codes and standards. In some cases reorganization of material in the NFPA codes and standards, without change in substance, has affected the citation within VA regulations, and we make minor amendments to reflect these changes. Regarding the citations to the NFPA codes in 38 CFR 17.74(g)(1), NFPA has moved the information previously in paragraph 24.3.4.1 to paragraph 24.3.4.1.1, the information previously in paragraph 24.3.4.2 to paragraph 24.3.4.1.2, and the information previously in paragraph 24.3.4.3 to paragraph 24.3.4.1.3. Similarly, paragraph 3.3.32.5 of NFPA 101, as referenced in 38 CFR 59.130, has been relocated to paragraph 3.3.36.5. As the NFPA codes and standards are updated in the future, we will consider their adoption by VA and, if we decide to adopt the newer version, we will publish a rulemaking amending VA's regulations to reference the new version.

The provisions of NFPA 25 and 720 used in VA's regulations are generally relied on to establish the requirements for the inspection, testing, and maintenance of already installed existing systems, and the majority of the changes in the updated editions are relatively minor with respect to inspection, testing, and maintenance. We believe that compliance with these minor revisions would not be difficult for the affected facilities.

NFPA 99 went through a major revision from the 2005 edition and was re-written to be more consistent with other NFPA standards, establishing requirements based on risk, rather than occupancy for the new 2012 edition. Revising fire safety standards to provide for safety standards based on the risk of a critical condition rather than earlier models that looked at the probability of such conditions has become the international standard. However, the requirements of NFPA 99 that are to be applied to existing health care facilities were effectively unchanged from the previous edition.

The revisions to NFPA 101, Life Safety Code, contain changes that VA believes would allow health care facilities to make desirable alterations (previously not permitted by NFPA 101) to benefit veterans. Other changes are not significant and we do not believe that it would be difficult for affected facilities to comply with these changes. Twenty changes to the Life Safety Code are highlighted below for health care facilities as well as other types of facilities to alert affected entities to them.

New one- and two-family dwellings containing fuel-burning appliances (such as gas stoves, gas heaters, gas clothes dryers or gas hot water heaters, fireplaces, and wood or oil stoves) and new one- and two-family dwellings with communicating attached garages that meet certain criteria, are now required to have carbon monoxide detectors installed on each occupiable level and near sleeping rooms (NFPA 101, Life Safety Code, Chapter 24, One- and Two-Family Dwellings, section 24.3.4.2).

Roofed porches, decks, and balconies in new, small residential board and care facilities (defined in NFPA 101 (section 32.2.1.1.1) as occupancies providing sleeping accommodations for not more than 16 residents) must now be sprinkler protected when sprinkler protection is provided in accordance with either NFPA 13R, Standard for the Installation of Sprinkler Systems in Residential Occupancies up to and Including Four Stories in Height, or in accordance with NFPA 13D, Standard for the Installation of Sprinkler Systems in One- and Two-Family Dwellings and Manufactured Homes (NFPA 101, Life Safety Code, Chapter 32, New Residential Board and Care Occupancies, sections 32.2.3.5.3.1 and 32.2.3.5.3.2).

When automatic sprinklers are installed, there are also new requirements for protecting attics of existing board and care facilities that include the option of either heat detection, sprinkler protection, non- or limited-combustible construction, or fire-retardant treated wood (NFPA 101, Life Safety Code, Chapter 33, Existing Residential Board and Care Occupancies, sections 33.2.3.5.7 and 33.3.3.5.4). VA would accept the installation of heat alarm(s) connected to the existing smoke alarms to meet the intent of the requirement for heat detection in the attic, based on the NFPA Board and Care Technical Committee proposed revisions to these requirements for the 2015 edition of NFPA 101.

If an existing fire alarm system, in existing large board and care facilities (defined in NFPA 101 (section 33.3.1.1.2) as those having sleeping accommodations for more than 16 residents), does not automatically notify the fire department, provisions must be made for such immediate notification. Further, when an existing fire alarm system is replaced or a new system is installed, automatic notification of emergency services must be included (NFPA 101, Life Safety Code, Chapter 33, Existing Residential Board and Care Occupancies, section 33.3.3.4.6).

New draperies, curtains, and other loosely hanging furnishing or decorations other than in common areas (e.g., dining rooms, activity rooms, and other areas outside of resident sleeping rooms or suites) are no longer regulated when located in a space that is sprinkler protected in existing board and care facilities, (NFPA 101, Life Safety Code, Chapter 33, Existing Residential Board and Care Occupancies, section 33.7.5.1.2).

If a facility elects to change to a slower evacuation capability, the facility is required to have sprinkler protection throughout and comply with the standards for the slower evacuation, or comply with the requirements for new construction (NFPA 101, Life Safety Code, Chapter 33, Existing Residential Board and Care Occupancies, section 33.1.8). To accommodate the limited mobility of an increasing population of patients who, because of physical or mental disabilities, have become more feeble and are unable to cooperate in an emergency evacuation, large residential board and care facilities may choose to adopt revised safety standards and change the facility's current evacuation standards of prompt or slow to the impractical standard or comply with the standards for limited care facilities in Chapter 19 of NFPA 101. In existing large board and care facilities where evacuation capability is classified as impractical, hazardous areas must be separated with smoke partitions (NFPA 101, Life Safety Code, Chapter 33, Existing Residential Board and Care Occupancies, section 33.3.3.2.3), a minimum exit corridor width of 44 inches is required (section 33.3.2.3.3), emergency lighting is required (section 33.3.2.9), and the building must be protected throughout by an automatic sprinkler system (section 33.3.3.5.2).

NFPA 101 has been revised to clarify that the treatment of inpatients that are capable of self-preservation is permitted in facilities classified as other than a health care occupancy that are contiguous to health care occupancies. (NFPA 101, Life Safety Code, Chapter 19, Existing Health Care Occupancies, section 19.1.3.4.2). When safety conditions identified in the standards are met to manage emergencies, preserve safe egress and allow for access to building service and fire protection equipment in the event of emergency, items such as crash carts, emergency supply carts, patient lifts, transportation equipment, and, certain wheeled items may be placed in corridors of health care facilities (NFPA 101, Life Safety Code, Chapter 19, Existing Health Care Occupancies, section 19.2.3.4). Patient suites requiring two exit doors may now have a door that leads directly to an exit stair, exit passageway, or to the exterior (NFPA 101, Life Safety Code, Chapter 19, Existing Health Care Occupancies, section 19.2.5.7.2.1). Allowable sleeping suite sizes have been increased from 7,500 to 10,000 square feet when certain requirements are met (NFPA 101, Life Safety Code, Chapter 19, Existing Health Care Occupancies, section 19.2.5.7.2.3). There are new rules for the use of cooking equipment to prepare meals for 30 persons or less within a smoke compartment (NFPA 101, Life Safety Code, Chapter 19, Existing Health Care Occupancies, section 19.3.2.5.3), and direct-vent gas fireplaces are now permitted inside a smoke compartment containing sleeping areas when certain requirements are met (NFPA 101, Life Safety Code, Chapter 19, Existing Health Care Occupancies, section 19.5.2.3).

Current 38 CFR 17.74(o)(2) reads where, within NFPA 30, the definition of a safety can is found. The NFPA codes and standards have not changed the information or requirements for a safety can, however, the paragraph that contains the definition of a safety can has changed from 3.3.44 to 3.3.48. It is not uncommon for NFPA to make minor reorganization changes to their guidance documents. In order to avoid the necessity of revising our regulations each time a non-significant change of this nature is made to the underlying codes and standards, we propose eliminating the specific section reference while retaining the safety requirements to which the guidance refers. We do not anticipate this would be burdensome as the document itself is indexed and searchable.

The Office of the Federal Register, in accordance with 5 U.S.C. 552(a) and 1 CFR part 51, approved our incorporation by reference of previous editions of NFPA codes and standards into current regulations. We propose to amend our regulations to require facilities seeking VA approval to meet the applicable requirements of the 2012 edition of NFPA 101, Life Safety Code, and the editions of the NFPA codes and standards that are cited in Chapter 2 of NFPA 101. These changes merely reflect updates to the standards that are currently incorporated by reference. This proposed action is necessary to ensure that facilities meet current industry-wide standards regarding fire safety. We are not aware of any significant changes from the previous editions to the current editions. Therefore, we are requesting that the Office of the Federal Register approve our incorporation by reference of updated NFPA 101.

Additionally, we are requesting that the Office of the Federal Register approve the following standards published by the National Fire Protection Association: NFPA 25, Standard for the Inspection, Testing, and Maintenance of Water-Based Fire Protection Systems (2011 edition); NFPA 30, Flammable and Combustible Liquids Code (2012 edition); NFPA 720, Standard for the Installation of Carbon Monoxide (CO) Detection and Warning Equipment (2012 edition); and NFPA 99, Health Care Facilities Code (2012 edition). Earlier editions of NFPA 25, NFPA 30, and NFPA 720 are incorporated by reference in current part 17. Current references in parts 51 and 59 incorporate by reference the 2005 edition of NFPA 99. VA believes that it is in the best interest of veterans to apply the most up to date fire safety codes to the greatest extent practicable, and this proposed rule addresses that objective. The materials for which we are seeking incorporation by reference are available for inspection at the ANSI Incorporation by Reference (IBR) Portal, http://ibr.ansi.org. These materials are also available at the National Archives and Records Administration (NARA). For information on the availability of these materials at NARA, call (202) 741-6030, or go to: https://standards.gov/sibr/query/index.cfm?fuseaction=rsibr.regulatory_sibr. Copies may be obtained from the National Fire Protection Association, 1 Batterymarch Park, Quincy, MA 02269. (For ordering information, call toll-free 1-800-344-3555.)

The Code of Federal Regulations, as proposed to be revised by this proposed rulemaking, would represent the exclusive legal authority on this subject. No contrary rules or procedures would be authorized. All VA guidance would be read to conform with this proposed rulemaking if possible or, if not possible, such guidance would be superseded by this rulemaking.

This proposed rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

The Acting Secretary hereby certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This proposed rule would update current fire safety standards and would not require more than a modest capital investment on the part of affected entities. The changes to § 17.1 would likely affect between 50 and 100 of the 1,293 community residential care facilities approved for referral of veterans under the regulations. Medical Foster Homes are small entities, providing between 1 and 3 resident beds to veterans in each Medical Foster Home. The changes to § 17.74 would likely affect fewer than 10 of the 561 Medical Foster Homes approved by VA for referral under the regulations. Any additional costs for compliance with the proposed rule incurred by either community residential care facilities or Medical Foster Homes would constitute an inconsequential amount of the operational costs of such facilities. Where modification is anticipated, such as adding heat detection to unused attic space, the impact would be minimal because the costs to comply with the new requirements range from $100.00 to $500.00 dollars, which includes labor costs. In many cases, the adoption of the current NFPA codes and standards would provide options that are less restrictive than the prior NFPA codes and standards. The changes to §§ 17.81 and 17.82 would affect only small entities; however, most, if not all, of these entities are already in compliance with the current NFPA codes and therefore should not be significantly impacted by this rule. The changes to parts 51, 52, and 59 would affect State homes. The State homes that would be subject to this rulemaking are State government entities under the control of State governments. All State homes are owned, operated and managed by State governments except for a small number operated by entities under contract with State governments. These contractors are not small entities. On this basis, the Acting Secretary certifies that the adoption of this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. Therefore, under 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604.

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” requiring review by OMB unless OMB waives such review as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.”

The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's Web site at http://www1.va.gov/orpm/, by following the link for “VA Regulations Published.”

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This proposed rule would have no such effect on State, local, and tribal governments, or on the private sector.

The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are 64.005, Grants to States for Construction of State Home Facilities; 64.007, Blind Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans Prosthetic Appliances; 64.014, Veterans State Domiciliary Care; 64.015, Veterans State Nursing Home Care; 64.016, Veterans State Hospital Care; 64.018, Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; 64.022, Veterans Home Based Primary Care.

The Acting Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Jose D. Riojas, Chief of Staff, Department of Veterans Affairs, approved this document on June 17, 2014, for publication.

For the reasons set forth in this rulemaking, VA proposes to amend 38 CFR parts 17, 51, 52, and 59 as follows:

The addition reads as follows:

I. Background

On June 9, 2014, the EPA published in the Federal Register a rule proposing to withdraw any prior determination or presumption that, for the 1997 8-hour ozone national ambient air quality standard (NAAQS) and the 1997 fine particle NAAQS, compliance with the Clean Air Interstate Rule or the NO X SIP Call automatically constitutes reasonably available control technology or reasonably available control measures for oxides of nitrogen or sulfur dioxide emissions from electric generating unit sources participating in these regional cap-and trade programs. The public comment period for the rulemaking closed on July 9, 2014. In response to a request from a commenter for additional time to submit comments, the EPA is reopening the comment period for an additional 30 days.

1. Submitting CBI. Do not submit this information to the EPA through www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to the EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed to be CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for Preparing Your Comments. When submitting comments, remember to:

• Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

• Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

• Describe any assumptions and provide any technical information and/or data that you used.

• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

• Provide specific examples to illustrate your concerns, and suggest alternatives.

• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

• Make sure to submit your comments by the comment period deadline identified.

In addition to being available in the docket, an electronic copy of this notice will be posted at http://www.epa.gov/airquality/ozonepollution/actions.html.

This is a summary of the Commission's Notice of Proposed Rulemaking ( NPRM ) in EB Docket No. 04-296, FCC 14-93, adopted on June 25, 2014, and released on June 26, 2014. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street SW., Washington, DC 20554. The complete text of this document also may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at: www.fcc.gov.

This document contains proposed information collection requirements. It will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13, 109 Stat 163 (1995). The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and OMB to comment on the information collection requirements contained in this document, as required by the PRA. Public and agency comments on the PRA proposed information collection requirements are due September 15, 2014. Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; (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. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

OMB Control Number: 3060-0207.

Title: Emergency Alert System Information Collection.

Form Number: Not applicable.

Type of Review: Revision of a currently approved collection.

Respondents: Business or other for-profit entities; Non-profit entities.

Number of Respondents: 27,468.

Estimated Time per Response: 3.28 hours.

Frequency of Response: Recordkeeping requirements; Reporting requirements; Third party disclosure requirement.

Obligation to Respond: Mandatory.

Total Annual Burden: 90,095 hours.

Total Annual Cost: $3,423,611.52.

Privacy Impact Assessment: No impact(s).

Nature and Extent of Confidentiality: The Commission will treat submissions pursuant to 47 CFR 11.61(a)(3) as confidential. See Review of the Emergency Alert System, EB Docket No. 04-296, Third Report and Order, 26 FCC Rcd 1460, 1485, paragraph 65 (2011).

1. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact of the proposals described in the attached NPRM on small entities. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments in the NPRM. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the NPRM and IRFA (or summaries thereof) will be published in the Federal Register.

2. The NPRM proposes rules to resolve problems with the EAS uncovered in the first nationwide Emergency Alert System (EAS) test conducted on November 9, 2011, and proposes further rules to evolve the paradigm for the future testing, exercise and use of the EAS to enhance the effectiveness of the EAS as an alerting tool for the public. In this NPRM, the Commission proposes that a national location code be adopted, that “six zeroes” should be that code; and that the National Periodic Test code be used to evaluate the readiness of the EAS for a live EAN. The Commission also proposes to establish a reporting requirement using an updated, online EAS test reporting system (ETRS). Finally, the Commission proposes to establish minimum standards for visual crawl speed, completeness and placement that will improve the accessibility of EAS alerts. These proposed rules will help to ensure that the EAS better protects the life and property of all Americans.

3. Specifically, the NPRM contains the following proposed rule changes, and seeks comment on each:

• Proposes to establish a national location code for EAS alerts issued by the President;

• Proposes to adopt the National Periodic Test (NPT) code that emulates the functionality of the EAN for future nationwide EAS tests;

• Proposes to require EAS Participants to file test result data electronically using a new EAS Test Reporting System (ETRS);

• Proposes to require EAS Participants to meet minimal accessibility and comprehensibility standards.

• Authority for the actions proposed in this NPRM may be found in sections 1, 2, 4(i), 4(o), 301, 303(r), 303(v), 307, 309, 335, 403, 624(g), 706, and 715 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(o), 301, 303(r), 303(v), 307, 309, 335, 403, 544(g), 606, and 615.

1. The RFA directs agencies to provide a description of, and, where feasible, an estimate of, the number of small entities that may be affected by the rules adopted herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (“SBA”).

2. Small Businesses, Small Organizations, and Small Governmental Jurisdictions. The rules proposed in the attached NPRM may, over time, affect small entities that are not easily categorized at present, beyond the list of representative entities listed in the subsequent paragraphs. The Commission therefore describes here, at the outset, three comprehensive, statutory small entity size standards. First, nationwide, there are a total of approximately 27.9 million small businesses, according to the SBA. In addition, a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 2007, there were approximately 1,621,315 small organizations. Finally, the term “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2011 indicate that there were 89,476 local governmental jurisdictions in the United States. The Commission estimates that, of this total, as many as 88,506 entities may qualify as “small governmental jurisdictions.” Thus, the Commission estimates that most governmental jurisdictions are small.

3. Television Broadcasting. The SBA has developed a small business sized standard for television broadcasting, which consists of all such firms having $13 million or less in annual receipts. Business concerns included in this industry are those “primarily engaged in broadcasting images together with sound.” According to Commission staff review of BIA Publications, Inc. Master Access Television Analyzer Database, as of May 16, 2003, about 814 of the 1,220 commercial television stations in the United States had revenues of $12 million or less. The Commission notes, however, that, in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations must be included. The Commission's estimate, therefore, likely overstates the number of small entities that might be affected by the Commission's action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. There are also 2,127 low power television stations (“LPTV”). Given the local nature and power limits of this service, the Commission will presume that all LPTV licensees qualify as small entities under the SBA size standard.

4. Radio Stations. The revised rules and policies potentially will apply to all AM and commercial FM radio broadcasting licensees and potential licensees. The SBA defines a radio broadcasting station that has $6.5 million or less in annual receipts as a small business. A radio broadcasting station is an establishment primarily engaged in broadcasting aural programs by radio to the public. Included in this industry are commercial, religious, educational, and other radio stations. Radio broadcasting stations which primarily are engaged in radio broadcasting and which produce radio program materials are similarly included. However, radio stations that are separate establishments and are primarily engaged in producing radio program material are classified under another NAICS number. According to Commission staff review of BIA Publications, Inc. Master Access Radio Analyzer Database on March 31, 2005, about 10,840 (95 percent) of 11,410 commercial radio stations have revenue of $6 million or less. The Commission notes, however, that many radio stations are affiliated with much larger corporations having much higher revenue. The Commission's estimate, therefore, likely overstates the number of small entities that might be affected by the Commission's action.

5. Cable and Other Program Distribution. The SBA has developed a small business size standard for cable and other program distribution, which consists of all such firms having $12.5 million or less in annual receipts. According to Census Bureau data for 1997, in this category there was a total of 1,311 firms that operated for the entire year. Of this total, 1,180 firms had annual receipts of under $10 million, and an additional 52 firms had receipts of $10 million to $24,999,999. Thus, under this size standard, the majority of firms can be considered small. In addition, limited preliminary census data for 2002 indicate that the total number of cable and other program distribution companies increased approximately 46 percent from 1997 to 2002.

6. Cable System Operators (Rate Regulation Standard). The Commission has developed its own small business size standard for cable system operators, for purposes of rate regulation. Under the Commission's Rules, a “small cable company” is one serving 400,000 or fewer subscribers nationwide. The Commission has estimated that there were 1,065 cable operators who qualified as small cable system operators at the end of 2005. Since then, some of those companies may have grown to serve over 400,000 subscribers, and others may have been involved in transactions that caused them to be combined with other cable operators. Consequently, the Commission estimates that there are fewer than 1,065 small entity cable system operators that may be affected by the rules and policies proposed herein.

7. Cable System Operator (Telecom Act Standard). The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” The Commission has determined that an operator serving fewer than 677,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. Industry data indicate that, of 1,076 cable operators nationwide, all but ten are small under this size standard. The Commission notes that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million, and therefore the Commission is unable to estimate more accurately the number of cable system operators that would qualify as small under this size standard.

8. Broadband Radio Service (BRS). The proposed rules apply to Broadband Radio Service (BRS), operated as part of a wireless cable system. The Commission has defined “small entity” for purposes of the auction of BRS frequencies as an entity that, together with its affiliates, has average gross annual revenues that are not more than $40 million for the preceding three calendar years. This definition of small entity in the context of BRS auctions has been approved by the SBA. The Commission completed its BRS auction in March 1996 for authorizations in 493 basic trading areas. Of 67 winning bidders, 61 qualified as small entities. At this time, the Commission estimates that of the 61 small business BRS auction winners, 48 remain small business licensees.

9. Cable and Other Subscription Programming. This industry comprises establishments primarily engaged in operating studios and facilities for the broadcasting of programs on a subscription or fee basis. The broadcast programming is typically narrowcast in nature ( e.g., limited format, such as news, sports, education, or youth-oriented). These establishments produce programming in their own facilities or acquire programming from. The programming material is usually delivered to a third party, such as cable systems or direct-to-home satellite systems, for transmission to viewers. The SBA size standard for this industry establishes as small any company in this category which receives annual receipts of $15 million or less. Based on U.S. Census data for 2007, in that year 659 establishments operated for the entire year. Of that 659,197 operated with annual receipts of $10 million a year or more. The remaining 462 establishments operated with annual receipts of less than $10 million. Based on this data, the Commission estimates that the majority of establishments operating in this industry are small.

10. The Educational Broadband Service (EBS). The proposed rules would also apply to The Educational Broadband Service (EBS) facilities operated as part of a wireless cable system. The SBA definition of small entities for pay television services also appears to apply to EBS. There are presently 2,032 ITFS licensees. All but 100 of these licenses are held by educational institutions. Educational institutions are included in the definition of a small business. However, the Commission does not collect annual revenue data for EBS licensees, and are not able to ascertain how many of the 100 non-educational licensees would be categorized as small under the SBA definition. Thus, the Commission tentatively concludes that at least 1,932 are small businesses and may be affected by the established rules.

11. Incumbent Local Exchange Carriers (“LECs”). The Commission has included small incumbent LECs in this present IRFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard ( e.g., a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent LECs are not dominant in their field of operation because any such dominance is not “national” in scope. The Commission has therefore included small incumbent local exchange carriers in this RFA analysis, although the Commission emphasizes that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts. Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, one-thousand three-hundred and three carriers have reported that they are engaged in the provision of incumbent local exchange services. Of these 1,303 carriers, an estimated 1,020 have 1,500 or fewer employees and 283 have more than 1,500 employees. Consequently, the Commission estimates that most providers of incumbent local exchange service are small businesses that may be affected by the Commission's proposed rules.

12. Competitive (LECs), Competitive Access Providers (CAPs), “Shared-Tenant Service Providers,” and “Other Local Service Providers.” Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 769 carriers have reported that they are engaged in the provision of either competitive access provider services or competitive local exchange carrier services. Of these 769 carriers, an estimated 676 have 1,500 or fewer employees and 93 have more than 1,500 employees. In addition, 12 carriers have reported that they are “Shared-Tenant Service Providers,” and all 12 are estimated to have 1.500 or fewer employees. In addition, 39 carriers have reported that they are “Other Local Service Providers.” Of the 39, an estimated 38 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that most providers of competitive local exchange service, competitive access providers, “Shared-Tenant Service Providers,” and “Other Local Service Providers” are small entities that may be affected by the Commission's proposed rules.

13. Satellite Telecommunications and Other Telecommunications. The Commission has not developed a small business size standard specifically for providers of satellite service. The appropriate size standards under SBA rules are for the two broad categories of Satellite Telecommunications and Other Telecommunications. Under both categories, such a business is small if it has $12.5 million or less in average annual receipts. For the first category of Satellite Telecommunications, Census Bureau data for 1997 show that there were a total of 324 firms that operated for the entire year. Of this total, 273 firms had annual receipts of under $10 million, and an additional twenty-four firms had receipts of $10 million to $24,999,999. Thus, the majority of Satellite Telecommunications firms can be considered small.

14. The second category— Other Telecommunications —includes “establishments primarily engaged in . . . providing satellite terminal stations and associated facilities operationally connected with one or more terrestrial communications systems and capable of transmitting telecommunications to or receiving telecommunications from satellite systems.” Of this total, 424 firms had annual receipts of $5 million to $9,999,999 and an additional 6 firms had annual receipts of $10 million to $24,999,990. Thus, under this second size standard, the majority of firms can be considered small.

• This NPRM proposes that EAS Participants submit data concerning their compliance with the EAS rules via a mandatory electronic reporting system, the Electronic Test Reporting System (ETRS). The Commission proposes that any reporting under the ETRS would be identical that required of all EAS Participants, including small entities, in the November, 2011 Nationwide EAS Test, a collection that was approved by OMB. The impact on small entities of the ETRS is consistent with their past OMB-approved practice under the EAS, and thus would impose no undue burden.

15. The RFA requires an agency to describe any significant, specifically small business alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) and exemption from coverage of the rule, or any part thereof, for small entities.”

16. The NPRM is technologically neutral in order to enable small entities flexibility to comply with the Commission's proposed rules using EAS equipment offered by a variety of vendors. Commenters are invited to propose steps that the Commission may take to minimize any significant economic impact on small entities. When considering proposals made by other parties, commenters are invited to propose significant alternatives that serve the goals of these proposals. The Commission expects that the record will develop to demonstrate significant alternatives. In particular, the Commission expects that the record will develop to indicate whether EAS Participants who otherwise would be required to replace their EAS equipment can comply with the rules the Commission proposes by deploying an intermediary device.

17. None.

1. Since the first nationwide EAS test in 2011, there have been technological advances and deployments of new systems in the alerting landscape. Most relevant to EAS has been the changeover to alerting that uses the Internet-based Common Alerting Protocol (CAP). In addition to CAP implementation, beginning in April 2012, FEMA, the Commission and the wireless industry deployed the Wireless Emergency Alert (WEA) system, which allows the public to receive geographically-targeted alerts over WEA-capable cell phones and other mobile devices. Further, the Nation's communications networks are in the midst of technology transitions which will entail fundamental and comprehensive changes in how data and voice are communicated end to end (involving virtually all aspects of the routing and coding of such communications). Many stakeholders, realizing the impact that this transition will have on the way in which consumers will be able to receive timely and accurate emergency alerts, express the need and desire to routinely test and exercise not only the EAS, but also the WEA and the entire IPAWS to ensure that Americans continue to have access to an effective emergency alert system.

2. While the Commission agrees with this assessment and understands the desire for prompt testing of these systems, the Commission believes it is imperative first to establish at the national level overarching parameters for such testing. Such an alerting paradigm would allow alert originators at the federal, state and local levels, as well as other stakeholders, to ensure that these systems are an effective and viable tool for alerting the public. Consequently, with this NPRM, the Commission continues its dialogue with federal government partners, state and local governments, communications service providers and other alerting stakeholders to achieve this result.

3. As the Commission continues this discussion, it is crucial that it first take steps to address known vulnerabilities in the EAS. In this NPRM, the Commission seeks comment on proposed rule changes designed to address two of the problems identified by the 2011 Nationwide EAS Test, specifically the lack of a national location code, and the lack of minimum comprehensibility and accessibility guidelines to ensure that the public, including those with disabilities, can clearly understand alerts provided to them. The Commission also seeks comment on whether it should adopt an electronic EAS Test Reporting System (ETRS), and how the Commission should define use of the NPT code for future nationwide tests.

4. Section 11.31(c) of the Commission's rules requires, among other things, that all EAS alert messages include a geographic location code to indicate the affected area of an emergency. The EAS rules contain a list of location codes for the States, Territories and offshore Marine Areas that EAS equipment are required to recognize. The EAS rules do not contain a location code for the entire United States. In the Third Report and Order, the Commission declined to adopt a national location code for the first nationwide EAS test out of concern that to do so would require significant reprogramming of EAS equipment. Rather, for the first test, the Bureau and FEMA elected to use the Washington, DC location code. Use of this code resulted in inconsistent results across the country. As detailed in the EAS Nationwide Test Report, although many EAS Participants outside of Washington, DC were able to process the Washington, DC code, some EAS Participants reported that their EAS and other network equipment rejected the “out of area” alert, and terminated the test alert partway through the transmission. In the EAS Operational Issues Public Notice, the Bureau noted the difficulties arising from the use of the Washington DC location code and sought comment on whether the Commission should adopt a national location code for future testing, and if so, what that code should be.

5. Most commenters, including FEMA, support adoption of a national location code to facilitate national activations and testing of the EAS. In particular, commenters overwhelmingly support the adoption of “six zeroes” (000000) as the national location code. Commenters provide an array of justifications for their position. FEMA asserts that use of the “six zeroes” location code will further harmonize the Commission's EAS rules with CAP standards, which already recognize “six zeroes” as the national location code. Trilithic adds that the addition of the “six zeroes” code for general use is a prerequisite for geo-targeting of the EAN, as EAS equipment would otherwise ignore the location codes if the event code is an EAN. NCTA states that use of “six zeroes” as the national location code will ensure that the EAN is processed and retransmitted in the same format throughout the EAS ecosystem. Sage also supports the use of “six zeroes” as the national location code, but concedes that the “DC code may have a smaller total system cost.” Only DirecTV does not support the “six zeroes” location code, stating its belief that “[r]ather than embark upon an untested approach that would rely upon a new nationwide location code . . . the Commission would be better served by continuing to use the approach taken for the Nationwide EAS Test.”

6. With regard to the steps that equipment manufacturers need to take to integrate a “six zeroes” location code into their equipment, Monroe and Trilithic note that most equipment is already capable of processing “six zeroes” as the national location code either because the code is resident in the equipment, or because the software in the equipment can be upgraded to accommodate the location code. Other manufacturers note that equipment that reaches the end of its lifecycle will need to be replaced because manufacturers no longer support such equipment and will not provide the type of software upgrade necessary to activate the “six zeroes” national location code. NCTA comments that, notwithstanding the fact that the software in most of its members' EAS equipment can be upgraded to accommodate the “six zeroes” national location code, cable and other multichannel video programming distributors (MVPD) will have to upgrade various “downstream” portions of their networks to accommodate the “six zeroes” code and accurately deliver alerts.

7. Based on the comments received in response to the Bureau's EAS Operational Issues Public Notice, the Commission proposes that EAS Participants be required to have the capability to receive and process a national location code, and that “six zeroes” be designated as that code. The Commission believes that the addition of this national location code will bring additional consistency to the operation of EAS equipment in both national and local activations. In addition, the equipment and network upgrades that will enable the use of a national location code, taken in conjunction with the Commission's rules requiring that EAS equipment recognize all header codes, will prevent EAS equipment from programmatically ignoring location header codes when used with an EAN event code, thus enabling FEMA to use other specific location codes for a geo-targeted EAN should the President wish to address a particular part of the country rather than the nation as a whole. The Commission also agrees with FEMA that adoption of “six zeroes” as the national location code has the additional long-term benefit of ensuring consistency between the Commission's EAS rules and industry CAP standards, which, in turn, will facilitate the integration of the EAS into IP-based alerting systems such as IPAWS. The Commission seeks comment on this proposal and rationale.

8. In the Third Report and Order, the Commission chose to use the EAN for the first nationwide EAS test primarily because an EAN-based test most closely mirrored an actual alert. At that time, the Commission also acknowledged that there was value to testing the national-level EAS without using a live code, and concluded that it would consider an alternative to live code testing such as the NPT in the future. For that first test, in order to minimize confusion from the use of the live EAN code and its attendant video text crawl announcing a national emergency, EAS Participant stakeholder organizations provided “This is only a Test” slides for broadcast and MVPD EAS Participants to display during the test. Not all cable service providers were able to display the slide, and as noted in the EAS Nationwide Test Report, while the use of the EAN had been successful, some deaf and hard of hearing people had reported confusion caused by the inability of some EAS Participants to visually display the “This is only a Test” slide. The EAS Nationwide Test Report noted that one way to avoid such confusion in the future would be to use the NPT, and that “use of the NPT would allow FEMA and the FCC to conduct nationwide EAS tests without the need for an extensive public outreach campaign such as that necessary for the first nationwide EAS test.”

9. In the EAS Operational Issues Public Notice, the Bureau sought comment on whether it should consider amending its rules to facilitate use of the NPT code instead of the EAN for future testing. The Bureau also sought guidance on the technical feasibility and operational requirements of an NPT activation, and whether the Commission's rules should “require that EAS messages containing the NPT code be promulgated throughout the EAS just like an EAN.” In its comments, FEMA expresses a desire to use the NPT code for the next nationwide test of the EAS component of IPAWS—a test that FEMA also notes that it wishes to conduct “in the near future—but acknowledges that the EAS rules do not provide enough guidance on how EAS equipment must process the NPT. Accordingly, FEMA requests that the Commission provide such guidance, and notes its preference that the NPT be “relayed and forwarded in the same fashion and with the same immediacy as an EAN.” Other commenters agree that the NPT should be used for most nationwide EAS tests, but also believe that the NPT does not need to fully emulate the EAN duration function to be an effective test code.

10. Commenters support the use of the NPT, but most agree that requiring the NPT to emulate the EAN's priority and duration qualities will entail significantly more substantial software and hardware upgrades for EAS Participants than those required for the national location code the Commission proposes. Commenters also state that use of an NPT that fully emulates the EAN will require testing, and updates to software and standards for downstream equipment such as cable set top boxes and Digital Network Control Systems (DNCS). NCTA, in particular, notes that requiring an NPT coded test to trigger automatically, immediately upon receipt, and to last longer than two minutes would require changes to the SCTE 18 2013 standard, as well as to corresponding product specifications and system design changes that would affect the entire MVPD industry. According to NCTA, this process would take as long as three years to complete, and would be significantly more expensive than requiring the “six zeroes” location code alone.

11. According to commenters, a less expensive and more rapidly deployable method of utilizing the NPT for a national EAS test would simply be to enable the NPT as it is currently programmed in most, if not all, EAS equipment. Specifically, Sage recommends that programming EAS equipment to treat the NPT as a “normal” EAS alert would be a simpler and equally effective way to test the integrity of the links in the EAS distribution hierarchy. As the Commission noted in the Third Report and Order, although such use of the NPT would be limited to two minutes, EAS Participants could ensure mandatory carriage of the NPT by manually reprogramming their EAS equipment to automatically respond to the NPT.

12. The Commission agrees with the majority of commenters that there should be a non-EAN option for future EAS testing, and that the NPT is the obvious alternative. The Commission is aware that it must balance the need for regular testing of the EAS with a clear standard by which such tests should be conducted, and that any EAS testing rules should offer FEMA maximum flexibility to test the EAS and the other IPAWS elements that FEMA administers. At the same time, the Commission wants to ensure that its rules provide a benefit that fully justifies the costs that implementing any proposed rules would impose on EAS Participants. Accordingly, the Commission proposes to amend its rules to create an option to use the NPT for EAS testing. That being said, the Commission is cognizant that the NPT can be tailored in different ways, with different costs and benefits. The Commission therefore seeks comment on the manner in which the NPT should be deployed for any upcoming EAS tests.

13. The Commission first seeks comment on whether it should require that the NPT be activated like any other EAS alert. This option, according to commenters, offers almost all the benefits of full EAN emulation. However, it would not test the reset functionality of EAS equipment by lasting longer than two minutes, and it would not override all other EAS alerts. An NPT event code that does not exceed two minutes in length is consistent with the existing EAS rules, as the EAN is the only event code that does not limit the duration of the alert. The Bureau currently has the delegated authority to require that EAS Participants use the NPT for future national testing, and the Bureau may exercise this authority at any time to require the NPT to be used in a nationwide EAS test in a manner consistent with the current rules, i.e., that it be treated like any other event code. Treating the NPT like any other EAS activation also would satisfy FEMA's stated desire for a test in near future, and would do so in a manner that imposes minimal costs on EAS Participants. Thus, should FEMA decide to schedule a nationwide EAS test that does not exceed two minutes in length, the Bureau may, should this issue still be pending before the Commission, require that EAS Participants reprogram their EAS equipment to automatically process the NPT.

14. The Commission also seeks comment on whether it should revise its EAS rules to define the NPT as a test code that fully emulates the EAN in all of its characteristics—particularly its priority over any other message, and its indefinite length. The Commission notes that an NPT that fully emulates the EAN would create a test environment that closely approximates real emergency conditions, thereby maximizing the information that can be derived from testing the EAS with a non-EAN option. On the other hand, it would be a far more costly option for EAS Participants, and the extra time that it would take for EAS Participants to implement an EAN-emulating NPT would preclude FEMA's ability to use such an NPT for a test conducted in the near future. Thus, would the benefits of full emulation outweigh the costs? The Commission also seeks comment on whether a test that lasts more than two minutes is necessary. Can the question of whether EAS equipment will reset after the first two minutes of an EAN alert (or an EAN-emulating NPT test) be answered in a test bed, or does such a test require that the entire “daisy chain” linkage be involved? If a test of more than two minutes is needed, could FEMA avoid the expense of such a test by using the EAN option instead? How would the cost of conducting another EAN-based nationwide test compare with the costs of conducting a test with an NPT that fully emulates the EAN? What were the costs to EAS Participants to participate in the first nationwide EAS test, including any efforts to conduct public outreach in advance of the test? Would the costs of a new EAN-based test differ from those of the first nationwide EAS test? How would such costs compare to a test using the NPT that operates within a two minute duration, the approach suggested by some commenters? Commenters should offer specific figures and data to support their comments and should include costs of any public outreach that would be required with each type of test. The Commission also seeks comment on whether the three-year time period for full implementation of an EAN-emulating NPT, suggested by some commenters, is reasonable or necessary. Can an EAN emulating NPT be deployed in a shorter period of time? Would deploying an NPT that fully emulates the EAN increase costs fourfold, as some commenters suggest? Parties should offer specific technical and cost-based support to their comments.

15. In the Third Report and Order, the Commission adopted a new § 11.61(a)(3)(iv) to require that EAS Participants submit nationwide test result data to the Commission within 45 days following the test ( i.e., by December 27, 2011, for the first test). EAS Participants had the option of complying with the reporting requirements either with a paper filing or through an electronic reporting system.

16. As the Bureau reported in the EAS Nationwide Test Report, over 16,000 EAS Participants submitted test result data; the vast majority chose to file electronically rather than submit paper filings. The data available from the electronic reporting system allowed the Commission to generate reports that would not have been feasible with paper filings alone. As a result of the positive response to the electronic filing system employed in the first nationwide EAS test, the EAS Nationwide Test Report recommended that the Commission develop a new electronic reporting system and related database to expedite filing of test result data by EAS Participants. Subsequently, at its March 20, 2014 meeting, the CSRIC also recommended that the Commission adopt a federal government database to contain EAS Participants' monitoring assignments.

17. EAS Participants and other stakeholders support use of an electronic reporting system to facilitate filing of EAS test result data. NAB suggests improvements, primarily the addition of a filing receipt to provide verification that the EAS Participant has successfully and timely submitted its report.

18. Based on the preference shown for the electronic filing option prior to and during the first nationwide EAS test, and on the largely positive responses to a permanent electronic filing system in general, the Commission proposes to designate in the Commission's EAS rules the ETRS (as defined below) as the primary EAS reporting system, and to require that all EAS Participants submit nationwide EAS test result data electronically via the ETRS for any future national EAS tests. As the Commission discusses in further detail below, the Commission also proposes to require EAS Participants to file ETRS Form One, the self-identifying portion of the ETRS, within one year of the effective date of the rules the Commission ultimately adopts, and to update the information that EAS Participants are required to supply in Form One on a yearly basis, and as required by any updates or waivers to EAS State Plans.

19. The ETRS adopted for the 2011 Nationwide EAS Test is comprised of the following three web-based forms: Form One asked each EAS Participant for identifying and background information, including EAS designation, EAS monitoring assignments, facility location, equipment type, and contact information, and other relevant data. Form Two asked each EAS Participant whether it received the Nationwide EAS Test alert code and, if required to do so, whether the EAS Participant propagated the alert code downstream. Form Three asked each EAS Participant to submit detailed information regarding its receipt and propagation, if applicable, of the alert code, including an explanation of any complications in receiving or propagating the code. The Commission proposes that it adopt the identical format for the permanent ETRS, subject to the revisions it proposes below regarding filing receipts and the pre-population of the forms with identifying data already in the Commission's possession. The Commission seeks comment on this proposal and the proposed forms.

20. Based on the Bureau's experience during the first nationwide EAS test, and on stakeholder comments, the Commission also agrees that the next iteration of the ETRS should give filers the capability to review filings prior to final submission and to retrieve previous filings to correct errors. The Commission seeks comment on this proposal.

21. We further propose that EAS Participants not be required to input into the ETRS data that EAS Participants may have previously provided to the Commission elsewhere. The Commission agrees with the recent CSRIC Report that pre-populating the ETRS with data such as transmitter location, call signs, etc., that are already in the possession of the Commission would lessen the burden of filing and make the reporting process more cost effective for EAS Participants. The Commission seeks comment on what data should be included in this category. The Commission further proposes that data drawn from other systems, such as a licensing database, not be editable in the ETRS by the filer. The Commission seeks comment on these proposals.

22. The Commission next proposes that it revise its rules to integrate the identifying information provided by Form One of the new ETRS into the EAS State Plans filed pursuant to § 11.21 of the Commission's EAS rules. This rule requires that EAS State Plans include “a data table, in computer readable form, clearly showing monitoring assignments and the specific primary and backup path for EAN messages that are formatted in the EAS Protocol (specified in § 11.31), from the PEP to each station in the plan.” The rules further require that such tables be combined into an FCC Mapbook that “organizes all broadcast stations and cable systems according to their State, EAS Local Area, and EAS designation.” The CSRIC endorses the use of a tabular matrix for the collection of test data from EAS Participants. To date, however, the State Emergency Communication Committees (SECCs) have not been able to supply the Commission with the data necessary to populate the data tables or Mapbook.

23. In the Commission's review of the data from the first nationwide EAS test, it noted that the data from Form One of the ETRS could be used to create the required data table and the FCC Mapbook, and that both could be maintained in a dynamic, consistently updated manner. The Commission believes that using the data from the ETRS in this fashion has great value, as it transforms the ETRS from a one-time burden into a permanently useful tool that will allow the Commission and authorized state authorities to see how an EAN (or any other EAS alert) is actually propagated through the EAS architecture, and see any vulnerabilities and single points of failure in the distribution architecture before such a failure could cause real harm. Accordingly, the Commission proposes that the ETRS be maintained on a permanent basis to act as a complement to the EAS State Plans that are filed with the Commission.

24. It is the Commission's statutory obligation, as well as longstanding Federal government and Commission policy, to ensure that all members of the public, including those with disabilities, have access to emergency alerts. The Commission's EAS rules are designed to provide such accessibility by requiring that EAS Participants deliver EAS alerts in both audio and visual form. The visual form of an EAS alert generally takes the form of a text crawl that is displayed at the top of the screen.

25. According to several comments and other feedback the Commission received, the test message transmitted during the first nationwide test was inaccessible to many consumers. For example, stakeholders note that the visual message in some of the text crawls generated for the EAN scrolled across the screen too quickly, or its font was difficult to read. Others state that “the national EAS test message did not consistently present the alert in both audio and visual formats.”

26. In the EAS Operational Issues Public Notice, the Bureau noted that although the EAS rules require that EAS alerts be presented visually, the rules do not specify font size or text crawl speed. The Bureau sought comment on whether and how the Commission should address this lack of guidance. Specifically, the Bureau asked whether the Commission should encourage the development of industry best practices, amend its EAS rules to establish minimum specifications for the presentation of EAS text crawls, or propose other solutions. The Bureau invited suggestions for how specifications could be crafted for all text crawl elements.

27. Most commenters agree that EAS alert accessibility must be improved. Some commenters emphasize the importance of equal access to information, and assert that information provided visually also should be provided audibly, and vice versa. Despite this general agreement, no party provides detailed recommendations for achieving this goal. In addition, EAS Participants and other stakeholders argue that, rather than “one size fits all” rules, the Commission should address this issue by encouraging the development of voluntary best practices either through an initiative spearheaded by the CSRIC, or by encouraging consumer groups and industry organizations to engage in joint efforts themselves. Industry stakeholders argue that text crawls are generated in multiple fashions and by various pieces of equipment other than EAS encoder/decoders. As a result, these commenters argue, the process is too “decentralized” to be encompassed within the EAS rules. Commenters also claim—without supplying specific cost data—that any Commission “one size fits all” rules would lead to “astronomical” costs because such rules would necessitate replacement of much of the multi-use hardware involved in message display.

28. We are mindful of EAS Participants' concerns about cost and the desire for flexibility in managing their technical systems. However, all members of the public should be able to receive timely and accurate EAS alerts so that they can take quick action to protect their lives as well as those of family members. It is critical, therefore, that the EAS be accessible to all members of the public, including those with disabilities. Moreover, as noted above, FEMA expresses a desire to test the EAS again in the near future. Even more importantly, a national emergency requiring activation of the EAS by the President could come at any time. In light of this, the Commission believes it is imperative that the Commission consider the option of establishing minimum accessibility requirements. In so doing, the Commission's goal is to ensure that EAS alerts are delivered in a format that is readily understood by the public and therefore can accomplish their intended impact, i.e., to warn the public about impending threats to life and property. Accordingly, as discussed below, the Commission proposes to amend its EAS rules to require minimum standards for EAS visual crawls, specifically with respect to crawl speed, completeness and placement. The Commission seeks comment on these proposals. In addition, the Commission encourages parties representing industry and consumers, including those with disabilities to work together to develop alternative recommendations and to submit them promptly in the record for the Commission's consideration in this proceeding.

29. Crawl Speed: The Commission believes that its Commission's closed captioning rules provide a useful guide in addressing the visual crawl speed issue. Those rules require that “captions be displayed on the screen at a speed that can be read by viewers.” The Commission believes that such a standard should apply to EAS alerts and thus propose to revise § 11.51(d) of the Commission's EAS rules to require that an EAS text crawl be displayed on the screen at a speed that can be read by viewers. The Commission seeks comment on this proposal. In addition, the Commission seeks comment on what might constitute “a speed that can be read by viewers,” and whether the Commission should include a specific crawl speed in the EAS rules. Is there research demonstrating whether text crawls of certain word or character lengths and speeds are more or less challenging to read or comprehend? The Commission also seeks comment on a standard for non-English alerts.

30. Completeness: Under the closed captioning rules, “completeness” requires that closed captions must run from the beginning to the end of the program, to the fullest extent possible. The Commission believes that a text crawl describing the nature of the EAS alert or test should continue throughout the duration of the EAS activation. Thus, the Commission proposes to revise § 11.51(d) of the Commission's EAS rules to require that an EAS text crawl must be displayed continuously throughout the duration of any EAS activation. The Commission seeks comment on this proposal.

31. Placement: Under the Commission's closed captioning rules, captions must be “well-placed.” In other words, they “shall not block other important visual content on the screen,” caption font should be sized appropriately for legibility, lines of captions should not overlap one another, and captions should be adequately positioned so that they do not run off the edge of the video screen. The Commission believes that the EAS rules already contain a portion of this requirement, stating that an EAS text crawl “shall be displayed at the top of the television screen or where it will not interfere with other visual messages.” The Commission believes that adding the remainder of the closed caption placement standard to its EAS rules would address the difficulties that certain members of the public had understanding the text crawls during the first nationwide EAS test, and would do so in a manner that provides EAS Participants and other EAS stakeholders with sufficient flexibility to accommodate various broadcast and MVPD ecosystems. Accordingly, the Commission proposes that it revise § 11.51(d) of the Commission's EAS rules to incorporate the language of the closed captioning rules with respect to text crawl placement. In other words, an EAS text crawl must be displayed in a manner that (1) does not block other important visual content on the screen, (2) utilizes a text font that is sized appropriately for legibility, (3) prevents overlap of lines of text with one another, and (4) positions the text crawl adequately so it does not run off the edge of the video screen. Similarly, the Commission proposes prohibiting MVPD EAS Participants from placing crawls or other information on the video screen in a manner that would interfere with the ability of the public to read EAS crawls. The Commission seeks comment on these proposals.

32. At the outset, the Commission notes that FEMA has already addressed and corrected the primary audio quality problems experienced during the first nationwide EAS test, i.e., a technical malfunction that occurred at the National Primary level that affected the underlying quality of EAS audio nationwide. Thus, its primary concern in this Section is to seek comment on how the Commission may improve the accessibility of EAS audio by taking steps to ensure that the audio and visual elements of an EAS alert convey the identical, or at a minimum, comparable text. Currently, the visual element of an EAS alert ( i.e., the text crawl) is generated from header codes (location, event, etc. ) that are preprogrammed into EAS equipment, whereas the audio portion may be recorded by the alert originator ( e.g., the National Weather Service). Because the audio and visual elements of an EAS alert are generated from two different sources, they can differ significantly in language and detail, notwithstanding that they are describing the same event. The Commission believes that for an EAS alert to be fully accessible, the audio and visual elements should convey the same message. What steps would need to be taken to achieve this goal? For example, how would the Commission ensure that the public is able to receive the same, i.e., comparable, information, irrespective of whether they receive the alert in an audio or visual format? In furtherance of this goal, the Commission notes that the implementation of the CAP standard enables alert message originators to include enhanced text in their messages, and that the Commission's rules require EAS Participants to utilize enhanced text, when available, for the generation of text crawls. The Commission notes that the ECIG Implementation Guide states that “[i]t is a recommended practice that the recorded audio message match the alert text display message.” Should the Commission take further steps to achieve this goal?

33. We also note that text to speech (TTS) may also offer a mechanism to provide audio-visual alert message parity. TTS refers to an artificial process of converting text into human speech. Although the Commission initially declined to allow EAS equipment to use TTS software to generate the visual crawl element of an EAS alert, in the Fifth Report and Order on Reconsideration, in response to a strong record of support for TTS solutions, the Commission revised its earlier position and allowed EAS Participants to deploy text-to-speech solutions to generate the audio portion of EAS alerts. To what extent are EAS Participants currently using TTS technology to generate EAS audio? Has it proven to be an effective manner of ensuring parity between the audio and visual elements of an EAS alert? The Commission seeks comment on whether text-to-speech is sufficiently technologically advanced to become a mandatory element of the Commission's EAS Rules.

34. Based on the record, the Commission proposes that a reasonable, minimally burdensome time for all EAS Participants to replace unsupported equipment and to perform necessary firmware upgrades and required testing to implement the proposed rules regarding the national location code, the ETRS and the Commission's proposed accessibility rules would be six months from the effective date of any rules the it may adopt as a result of this NPRM. The Commission believes that the public safety benefits of the Commission's proposed rules, plus FEMA's stated desire to conduct a further test, militates for a more rapid implementation period than commenters request. As the record indicates, most equipment and systems already have the capability to implement the Commission's proposed rules. The Commission believes that a six month period will allow EAS Participants and equipment manufacturers to schedule any required equipment replacement, software or certification upgrades and necessary testing, and that this schedule will have minimal impact on the costs discussed in this Section. The Commission seeks comment on this proposal. The Commission notes that the record indicates that an NPT that fully emulates an EAN cannot be implemented in six months and that, if FEMA wants to have a test in such a near term, a test of more than two minutes using an NPT would not be an option. The Commission seeks comment on this view, and also seeks comment on what would be a reasonable date for compliance with the Commission's proposed rule requiring the NPT fully to emulate the EAN. For example, would a three year period from the effective date of any rules adopted as a result of this NPRM be appropriate?

35. In this Section, the Commission compares the expected costs that would be imposed by the Commission's proposed rules to their expected benefits and seek comment on the accuracy of these estimates. The Commission believes that the significant public safety benefit of its proposed rules far outweighs the costs associated with those rules. In particular, the Commission believes that by proposing rules that require EAS equipment to distribute alerts consistently, accessibly, and in a manner that can be accurately measured, it ensures that the public is provided with the most effective alerting system currently possible. The Commission's cost estimates are based on industry figures submitted in response to questions raised in the EAS Operational Issues Public Notice. According to these figures, the Commission anticipates that the Commission's proposed requirements would impose costs on EAS Participants in three affected areas: (1) EAS national location code and NPT in lieu of EAN for tests, (2), Electronic Test Reporting System, and (3) visual and audio accessibility. As the Commission discusses in greater detail in below, the Commission seeks comment on estimates that put the total cost for EAS Providers to implement the proposed requirements between $7.0 million and $13.6 million. With regard to benefits, the Commission estimates that the minimum expected benefit common to all of the Commission's proposed changes is $9.1M. The Commission believes all three proposed changes are essential for the EAS to function properly and thus share the common benefit of saving human lives, reducing injuries, mitigating property damage, and minimizing the disruption of the national economy.

36. Our proposed rules pertaining to the national location code and NPT, as well as those pertaining to test reporting and accessibility, will establish the baseline for a rigorous program of EAS testing and use that will allow the Commission to continue to improve the EAS. Further, the Commission's proposed rules will allow the Commission to quantify the EAS's effectiveness as a lifesaving tool, as well as its progress towards CAP compatibility, an improvement that will enhance the overall efficacy of the EAS in the future. The Commission therefore requests comment that will enable it to weigh the costs and benefits associated with these proposed rules. The Commission requests that commenters provide specific data and information, such as actual or estimated dollar figures for each specific cost or benefit addressed, including a description of how the data or information was calculated or obtained and any documentation or other support.

37. Proposed National Location Code Rules. Commenters claim that the costs associated with implementing the Commission's proposed rules regarding the national location code will include both operational costs associated with the installation, configuration, and testing of necessary software updates in EAS and related equipment, as well as capital costs associated with hardware replacement, where necessary. According to Sage and Trilithic, operational costs for most broadcaster EAS Participants will be minimal. According to NCTA, cable provider EAS Participants face additional operational costs associated with programming middleware, set-top boxes and other downstream equipment to accept the new code. Commenters agree that the costs associated with implementing the Commission's proposed rules can be reduced by bundling all required upgrades into a regularly scheduled system update. Further, EAS Participants in both the cable and broadcast industries may need to replace older EAS equipment if they are using EAS equipment that has exceeded its useful life, is no longer supported by the manufacturer, and thus cannot be upgraded to comply with the Commission's proposed rules. The Commission seeks comment on the reasonableness of this analysis and its underlying assumptions.

38. NCTA asserts that implementing the Commission's proposed rules regarding the national location code will present cable service provider EAS Participants with approximately $1.1 million in aggregated capital and operational costs for the entire cable industry. The Commission seeks comment on this assessment, and whether such costs are outweighed by the benefits of adopting the proposed national location code. While broadcasters would not experience the operational costs that cable providers would face, there are approximately three times as many broadcast-based EAS Participant facilities as there are cable EAS Participant facilities. Accordingly, the Commission seeks comment on whether a similar $1.1 million figure would apply to the broadcast industry, including the reasonableness of this analysis and its underlying assumptions.

39. Proposed NPT rules. The costs associated with implementation of the rules the Commission proposes regarding the NPT would vary, depending on whether the NPT is deployed as a “normal” EAS alert, or whether the Commission revises its rules to implement the NPT in a manner that fully emulates an EAN. In the case of the former, the Commission seeks comment on whether the costs would be de minimis. The NPT is already present in the EAS rules and programmed into EAS equipment. As Sage notes, costs would largely be limited to those incurred by EAS Participants having to manually reprogram their EAS equipment to automatically respond to the NPT, a cost which could further be mitigated by bundling any reprogramming with that required for the national location code. Should the Commission revise its rules to define the NPT as an event code that would fully emulate the EAN, NCTA asserts that such a requirement would add approximately $3.3 million to the cost, thus totaling $4.4 million to accommodate all rules changes, and would require approximately three years, as opposed to one year, to complete. According to NCTA, these additional costs would be necessary because requiring the NPT to emulate the EAN would require the underlying SCTE 18 standard to be revised, sub-standards rewritten, EAS and MVPD downstream equipment reprogrammed, and significant testing to be undertaken. Although broadcasters in general do not have as extensive downstream facilities as do cable facilities, they do possess such facilities, and this also will be affected by the necessary standards revision. Thus, the Commission seeks comment whether the same three year time frame would also be borne by the broadcast industry. Further, and as the Commission discusses above, the greater number of broadcasters may increase their overall cost to an amount that could approximate the $4.4 million dollar cost for cable. The Commission notes, however, that costs associated with use of the NPT could be offset by savings elsewhere. For example, as the Commission discusses in paragraph 15 above, EAS Participant stakeholder organizations provided “This is only a Test” slides for broadcast and MVPD EAS Participants to display during the test, a requirement that would be obviated were the NPT to be used. Further, as noted in the EAS Nationwide Test Report, the various stakeholders engaged in significant outreach to avoid any public confusion associated with the use of the live code EAN. The Commission seeks comment on whether all parties would incur cost savings associated with not having to conduct such “live code” test outreach, and if so, what such cost savings might be. The Commission otherwise seeks comment on the reasonableness of this analysis and its underlying assumptions.

40. Proposed ETRS Rules. Regarding the Commission's proposed ETRS rules, the Commission seeks comment on whether any costs that arise from the adoption of the ETRS, either for test reporting purposes or for integration into Commission's EAS State Plan rules will be minimal. Most of the information that the Commission proposes EAS Participants submit to the ETRS has already been populated in other FCC databases, and thus compliance with this requirement may require little further action beyond a simple review for accuracy. For the few data fields that EAS Participants would need to supply, the Commission has already determined that compliance would entail a one-time cost of approximately $125.00 per EAS Participant, a figure that has already been reviewed and approved by the Office of Management and Budget. Accordingly, the cost associated with the Commission's proposed ETRS rules may be a one-time cost of $125.00 per EAS Participant, or approximately $3.4 million in the aggregate for all EAS Participants. The Commission seeks comment on the reasonableness of this analysis and its underlying assumptions.

41. Accessibility Rules. Finally, regarding the accessibility standards that the Commission proposes, the Commission breaks these down into their two constituent elements: the visual text crawl element and the audio element. With regard to the visual text crawl element, one approach to estimating its cost would be the methodology adopted by the Commission in its Closed Captioning Order. Using this approach, the Commission calculates that text crawls might be necessary for approximately 50 hours of alerts. Thus, at a cost of $500 an hour, if the Commission were requiring EAS closed captions, the aggregate costs of the Commission's proposed visual crawl rules for all EAS Participants under this methodology could be as much as $25,000. However, EAS text crawls are not closed captions. They are largely generated automatically and employ the same or similar language for the extreme weather and child abduction incidents that comprise the vast majority of EAS alerts, and thereby require far less time to produce. Thus, the costs associated with that proposed rule change may be de minimis, potentially far less than $25,000. The Commission seeks comment on this analysis.

42. Regarding the Commission's proposed audio accessibility rules, as the Commission discusses above, it believes that an effective way to ensure that the audio and text portions of an EAS alert are equivalent is to use CAP-based text to speech functionalities. Thus, the Commission's cost estimate for the Commission's proposed audio equivalency rule is based on the aggregate cost for all EAS Participants to employ TTS. The Commission believes that the number of EAS Participants that would need to employ hardware and/or software TTS upgrades is approximately 2,750. Given that the TTS upgrade will cost, on average, $500, the aggregate one-time cost for EAS Participants to comply with the Commission's proposed audio equivalency rules could be no more than approximately $1.4 million ( i.e., 2,750 × $500 = $1,375,000). The Commission seeks comment on this analysis.

43. Comparison of total costs and benefits. The EAS must remain a resilient public alert and warning tool if it is to save lives and protect property during times of national, state, regional, and local emergencies. The Commission seeks comment on whether its proposals are the most cost-effective methods to accomplish the goal of ensuring that the EAS is sufficiently robust to perform its life saving task, or whether there are more effective means available. By aggregating the three cost components discussed above, the Commission estimates that the total cost of the Commission's proposed rules would at most be $13.6 million. One measure against which this cost can be balanced is the Department of Transportation model, which estimates the value of risk reduction, measured in terms of an expected life saved, to be $9.1 million. Under this yardstick, even two lives saved could more than offset the costs of the system upgrades imposed by the Commission's proposals. The Commission seeks comment on whether the DOT statistic is the most appropriate yardstick to measure the benefits the Commission's proposals. The Commission seeks comment on whether there is a better measure for the Commission's NPT and ETRS proposals, and if so, commenters should specify what specific measure should be used. The Commission does note, however, that none of the commenters responding to the EAS Operational Issues Public Notice objected on the grounds that the cost of the Commission's proposed rules would be prohibitive, or even burdensome. The Commission encourages EAS Participants and equipment manufacturers to include with their comments any data relevant to the Commission's analysis of the costs and timing involved with the implementation of its proposals.

44. The EAS Nationwide Test Report indicated that EAS equipment manufacturers had made inconsistent assumptions about whether the requirement in the EAS rules that the EAS header code must not be amended, extended or abridged without FCC authorization pertained to an EAN, and whether the “time of release” element in the header code had any impact on the requirement in the rules that an EAN be transmitted immediately upon receipt. In the EAS Operational Issues Public Notice, the Bureau sought comment on whether the unique nature of the EAN as a mandatory nationwide live alert code somehow obviated the above stated requirements. As the Commission discusses in more detail below, it finds no basis to propose rule revisions nor does it seek comment on these issues, as the rules are clear on their face and it sees no reason for changing them.

45. Section 11.31 of the Commission's EAS rules establishes the EAS protocol, a four-part message that contains the header code elements of an EAS alert. Header codes contain basic identifying information about the alert, including the identity of the message originator, the event code, the location code, the valid time period for the message, the Time of Release code, and the identification of the entity transmitting or retransmitting the message. Section 11.31(c) states that “[t]he EAS protocol, including any codes, must not be amended, extended or abridged without FCC authorization.” There is no exception for EANs, and, indeed, the definition of “Emergency Action Notification (EAN)” clearly envisions that EANs can be formatted in the EAS protocol as defined in § 11.31.

46. Despite this rule, some EAS manufacturers apparently programmed their EAS equipment to ignore some of the header codes by processing those codes as “wildcards.” This action resulted in a lack of uniformity in EAS message dissemination across the nation. In the EAS Operational Issues Public Notice, the Bureau sought comment on this practice, asking whether the unique nature of the EAN as a mandatory, nationwide, live alert obviated the need for EAS equipment to acknowledge header code elements such as the location code.

47. Based on its review, the Commission finds that § 11.31 prohibits any amendment, extension or abridgement of any part of the EAS protocol, except in cases where the FCC has authorized such action. As wildcards and other shortcuts serve to “abridge” the EAS protocol, they are prohibited by the FCC rules. While the Commission recognizes that these shortcuts may have been taken to address gaps associated with the EAN ( e.g., lack of a national location code), there is nothing in the rules that allows for a different result in the case of an EAN or any other type of EAS alert. Indeed, use of such programming shortcuts, in the absence of FCC authorization, undermines the effectiveness of the EAS. As several commenters note, the presence of EAS header codes enhances the reliability of the EAS ecosystem and is necessary for header validity checking, and duplicate detection. According to commenters, even in equipment that uses wildcards, if any header code element is missing from an alert, equipment currently deployed in the field will discard otherwise valid messages. Finally, the use of wildcards and other programming shortcuts also undermines EAS testing in that such actions can preclude the Commission, FEMA and other stakeholders from gaining an accurate picture of whether the EAS works in the manner contemplated by FCC rules and other standards.

48. The Commission's rules require that an EAN must be broadcast “immediately” upon receipt. As the Bureau noted in its report, although FEMA initiated the alert at 2:00 p.m. EST, some EAS equipment apparently held the test alert for release until 2:03 EST, apparently because FEMA erroneously included a Time of Release code indicating 2:03 p.m. EST, three minutes after the scheduled start time of the test. As the EAS Nationwide Test Report indicated, this caused further delay to EAS message propagation.

49. Several of the Commission's rules make clear that the EAN must be transmitted upon receipt. No rule provides for the transmission based on the Time of Release. Simply put, under the Commission's rules, EAS equipment must transmit the EAN immediately upon receipt, regardless of the Time of Release provided by the alert originator. The Commission notes that most EAS manufacturers understand this reading of the rule. Indeed, one commenter notes that equipment manufacturers have integrated the “transmission upon immediate release” requirement into current EAS technical standards which apply to broadcast as well as CAP-based EAS.

50. Requiring transmission of EANs immediately upon receipt is consistent with the Commission's goal of ensuring that the public has access to timely and accurate EAS alerts. As some commenters argue, any delay in processing an EAN undermines its value as a tool for the President of the United States to communicate with the American people in an emergency. Moreover, retransmitting an EAN alert immediately upon receipt is the only possible method to transmit alerts uniformly and consistently within an EAS ecosystem that is not time synchronized. Any divergence from the immediate release would have a ripple effect throughout the system that could affect the receipt of the EAN by other EAS Participants and the public.

51. The proceeding initiated by this NPRM shall be treated as “permit-but-disclose” proceedings in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must: (1) List all persons attending or otherwise participating in the meeting at which the ex parte presentation was made; and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda, or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule § 1.1206(b). In proceedings governed by rule § 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format ( e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

52. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments in response to this NPRM on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/ .

Paper Filers: Parties that choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

1. All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.

2. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

3. U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington DC 20554.

53. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

54. As required by the Regulatory Flexibility Act of 1980, see 5 U.S.C. 604, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the policies and rules addressed in this document. The IRFA is set forth in Appendix A. Written public comments are requested in the IRFA. These comments must be filed in accordance with the same filing deadlines as comments filed in response to this NPRM as set forth on the first page of this document, and have a separate and distinct heading designating them as responses to the IRFA.

55. This NPRM contains proposed new or modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and OMB to comment on the information collection requirements contained in this document, as required by PRA. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, the Commission seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

56. Accordingly, it is ordered that pursuant to sections 1, 2, 4(i), 4(o), 301, 303(r), 303(v), 307, 309, 335, 403, 624(g),706, and 715 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(o), 301, 303(r), 303(v), 307, 309, 335, 403, 544(g), 606, and 615, this NPRM IS adopted.

57. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, SHALL SEND a copy of this NPRM including the Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 11 to read as follows:

I. Background

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. In response to a U.S. Government Accountability Office report (GAO-12-83) issued on November 3, 2011, Defense Contract Management Agency: Amid Ongoing Efforts to Rebuild Capacity, Several Factors Present Challenges in Meeting Its Mission, DoD agreed to consider alternative approaches to audit contractor business systems.

To improve the efficiency and effectiveness of auditing contractor business systems, DoD is proposing to amend the DFARS to entrust contractors with the capability to demonstrate compliance with DFARS system criteria for contractors' accounting systems, estimating systems, and material management and accounting systems, based on contractors' self-evaluations and audits by independent Certified Public Accountants (CPAs) of their choosing. Government auditors will perform overviews of the results of contractor self-evaluations and CPA audits.

Individuals wishing to attend the public meeting should register by August 11, 2014, to ensure adequate room accommodations and to facilitate entry into the Mark Center building. Interested parties may register at the Web site, http://www.acq.osd.mil/dpap/dars/business_systems_compliance.html by providing the following information:

• Company or organization name.

• Names and email addresses of persons planning to attend.

• Identify if desiring to make a presentation; limited to a 10-minute presentation per company or organization.

One valid government-issued photo identification card will be required in order to enter the building. Non-U.S. citizens may use their valid passport as photo identification. Attendees are encouraged to arrive at least one hour early to accommodate security procedures.

Transportation information for the Mark Center may be obtained at http://www.whs.mil/our-services/transportation/getting-mark-center. Accommodations for parking at the Mark Center will not be available, but may be found in the surrounding areas.

If you wish to make a presentation, please submit an electronic copy of your presentation to osd.dfars@mail.mil no later than August 13, 2014. Files must not exceed 19MB. Please cite “Public Meeting—Contractor Business Systems Compliance” in all correspondence related to this public meeting. When submitting presentations, provide the presenter's name, organization affiliation, telephone number, and email address on the cover page. There will be no transcription of the public meeting. Submitted presentations will be the only record.

Special accommodations: The public meeting is physically accessible to people with disabilities. Requests for reasonable accommodations, sign language interpretation or other auxiliary aids should be directed to Mark Gomersall at 571-372-6099, at least 10 working days prior to the meeting date.

The TTY number for further information is: 1-800-877-8339. When the operator answers the call, let them know the agency is the Department of Defense; the point of contact is Mark Gomersall at 571-372-6099.

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 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 improve the efficiency and effectiveness of auditing contractor business systems by entrusting contractors with the capability to demonstrate compliance with the Defense Federal Acquisition Regulation Supplement (DFARS) system criteria for contractors' accounting systems, estimating systems, and material management and accounting systems, based on contractors' self-evaluations and audits by independent Certified Public Accountants (CPAs) of their choosing. The requirements of the rule will apply to solicitations and contracts that include the contract clause for the applicable defined contractor business system.

The rule will apply to solicitations and contracts that are with large businesses for the purposes of reporting for estimating systems, and material management and accounting systems. For reporting on accounting systems, the rule will apply to contractors who are subject to the Cost Accounting Standards (CAS) under 41 U.S.C. chapter 15, as implemented in regulations found at 48 CFR 9903.201-1 (see the FAR Appendix), other than for contracts with educational institutions, Federally Funded Research and Development Centers operated by educational institutions, or University Associated Research Centers. Since contracts and subcontracts with small businesses are exempt from CAS requirements, DoD estimates that this rule will have no impact on small businesses. DoD, however, 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 2012-D042) in correspondence.

The Paperwork Reduction Act (44 U.S.C. chapter 38) applies. The proposed rule contains information collection requirements. Accordingly, DoD has submitted a request for approval of a new information collection requirement concerning Defense Federal Acquisition Regulation Supplement; Business Systems Compliance (DFARS Case 2012-D042) to the Office of Management and Budget.

A. Public reporting burden for this collection of information is estimated to average 2.87 hours 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.

The annual reporting burden estimated as follows:

Respondents: 2,953.

Responses per respondent: 1.

Total annual responses: 2,953.

Average hours per response: 2.87.

Total annual burden hours: 8,468.

B. Request for Comments Regarding Paperwork Burden. Written comments and recommendations on the proposed information collection, including suggestions for reducing this burden, 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, or email Jasmeet_K._Seehra@omb.eop.gov, with a copy to the Defense Acquisition Regulations System, Attn: Mark Gomersall, OUSD(AT&L)DPAP/DARS, Room 3B941, 3060 Defense Pentagon, Washington, DC 20301-3060. 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.

Public comments are particularly invited on: whether this collection of information is necessary for the proper performance of functions of the DFARS, and will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.

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: Mark Gomersall, OUSD(AT&L)DPAP/DARS, Room 3B941, 3060 Defense Pentagon, Washington, DC 20301-3060, or e-mail osd.dfars@mail.mil. Include DFARS Case 2012-D042 in the subject line of the message.

Therefore, 48 CFR parts 215, 242, and 252 are proposed to be amended as follows:

The revisions read as follows:

The revisions and additions read as follows:

The additions and revisions read as follows:

The revisions and additions read as follows:

Table of Contents I. Executive Summary II. Background III. Summary Review of Proposed Amendments IV. Regulatory Analyses and Notices A. Statutory/Legal Authority for this Rulemaking B. Executive Order 13610, Executive Order 13563, Executive Order 12866, and DOT Regulatory Policies and Procedures C. Executive Order 13132 D. Executive Order 13175 E. Regulatory Flexibility Act, Executive Order 13272, and DOT Procedures and Policies F. Paperwork Reduction Act G. Regulatory Identifier Number (RIN) H. Unfunded Mandates Reform Act I. Environmental Assessment and Finding of No Significant Impact J. Privacy Act K. Executive Order 13609 and International Trade Analysis L. National Technology Transfer and Advancement Act V. List of Subjects I. Executive Summary

In this notice of proposed rulemaking (NPRM), the Pipeline and Hazardous Materials Safety Administration (PHMSA) proposes to amend the Hazardous Materials Regulations (HMR) by establishing standards for the safe transportation of bulk explosives. This rulemaking would be responsive to two petitions for rulemaking submitted by industry representatives: P-1557, concerning the continued use of renewal applications, and P-1583, concerning the incorporation of an industry standard publication. Further, developing these requirements would provide wider access to the regulatory flexibility currently offered only by special permit and competent authority approvals. These proposed revisions are intended to eliminate the need for future renewal requests of nine special permits (the transportation of certain explosives, ammonium nitrates, ammonium nitrate emulsions, and other specific hazardous materials in bulk packaging) that have established safety records. The revisions would reduce paperwork burdens and facilitate commerce while maintaining a appropriate level of safety.

This rulemaking specifically proposes to adopt a combination of features, including: incorporating by reference (IBR) the Institute of Makers of Explosives' (IME) Safety Library Publication No. 23 “Recommendations for the Transportation of Explosives, Division 1.5, Ammonium Nitrate Emulsions, Division 5.1, Combustible Liquids, Class 3 and Corrosives, Class 8 in Bulk Packaging” (referred to as SLP-23); requiring fire suppression systems in heat containing compartments (e.g., engine, transmission, etc.) and emergency shut-off/battery disconnect of newly constructed or modified multipurpose bulk trucks (MBTs); and complying with certain National Highway Traffic Safety Administration (NHTSA) requirements. PHMSA believes this NPRM will be of benefit to both the public and the industry, as it will: (1) Eliminate the need for firms to apply individually for the transportation of certain classes of bulk materials in MBTs, (2) provide regulatory flexibility and relief while maintaining an high level of safety, (3) promote safer transportation practices, (4) facilitate commerce, (5) reduce paperwork burdens, (6) protect the public health, welfare, safety, and environment, and (7) eliminate unnecessary regulatory requirements. Finally, with this rulemaking amending the HMR by incorporating IME publication SLP-23, the majority of provisions from nine special permits will be incorporated since those permits were used as the basis to create the SLP-23 document.

This NPRM affects the following entities and proposes the following requirements:

The overall costs and benefits of the proposed regulations are dependent on the level of preexisting compliance with the nine special permits and the overall effectiveness of the proposed regulations (e.g., flexibility provided when incorporating portions or whole special permits). Additionally, we believe the net benefits of these proposals will be attractive to the explosives industry as it will allow them to do business in a faster manner, and consequently provide significant cost savings.

The costs associated with the proposed rule are primarily driven by the one-time cost of equipping newly constructed or modified MBTs with fire suppression systems. The other costs associated with this NPRM are estimated to be much smaller. The primary driver for the benefits from this NPRM is the cost savings associated with the incorporation by reference of SLP-23. PHMSA estimates that the positive economic effects of this rulemaking, once finalized and adopted, will be sustained indefinitely. The table below summarizes the calculated costs and benefits associated with this NPRM. 1

Under the NPRM, the one-time costs are approximately $10.4 million; the recurring annual costs are approximately $1.4 million. The net present value of these costs discounted at 3 percent and 7 percent over the 10 years is approximately $22 million and $19 million, respectively. The annualized cost of the rule discounted at 3 percent is $2.2 million and at 7 percent is approximately $1.9 million.

The present values of the $16.3 million in annual cost savings (which represent the major benefits of the proposed rule) discounted at 3 percent and 7 percent over 10 years are approximately $143 million and $122 million, respectively. The annualized benefits at 3 percent are $14.3 million and at 7 percent are $12.2 million.

The annualized net benefits of the proposed rule at 3 percent are approximately $12.1 million ($14.3 million in annualized benefits—$2.2 million in annualized costs) and at 7 percent are approximately $10.3 million ($12.2 million in annualized benefits—$1.9 million in annualized costs). As such, PHMSA has concluded that the aggregate benefits justify the aggregate costs. A summary of the expected annualized costs and benefits is provided in the table below.

PHMSA requests comments on the analysis underlying these estimates, as well as possible approaches to reduce the costs of this rule while maintaining or increasing the benefits. Additionally, PHMSA seeks comments on possible changes that might improve the rule and increase regulatory flexibility.

The Pipeline and Hazardous Materials Safety Administration (PHMSA) is proposing to amend the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) by establishing standards for the safe transportation of bulk explosives. These proposed standards for bulk explosives will mirror the majority of provisions contained in nine widely-used longstanding special permits issued by PHMSA under 49 CFR Part 107, Subpart B (§§ 107.101 to 107.127). A special permit sets forth alternative requirements (variances) to the requirements in the HMR in a way that achieves a safety level at least equal to the safety level required under the regulations or that is consistent with the public interest. Congress expressly authorized DOT to issue these variances in the Hazardous Materials Transportation Act of 1975 as amended.

The HMR generally are performance oriented regulations, which provide the regulated community with a certain amount of flexibility in meeting safety requirements. Even so, not every transportation situation can be anticipated and built into the regulations. Innovation is the strength of our economy and the hazardous materials community is particularly strong at developing new materials and technologies and innovative ways of moving materials. Special permits enable the hazardous materials industry to quickly, effectively, and safely integrate new products and technologies into production and the transportation stream. Thus, special permits provide a mechanism for testing new technologies, promoting increased transportation efficiency and productivity, and ensuring global competitiveness.

Hazardous materials transported under the terms of a special permit must achieve a level of safety at least equal to the level of safety achieved when transported under the HMR. Implementation of new technologies and operational techniques enhances safety because the authorized operations or activities may achieve a greater level of safety than that currently required under the regulations. Special permits also reduce the volume and complexity of the HMR by addressing unique or infrequent transportation situations that would be difficult to accommodate in regulations intended for use by a wide range of shippers and carriers.

PHMSA conducts ongoing reviews of special permits to identify widely used and longstanding special permits with an established safety record for conversion (fully or in part) into regulations of broader applicability. To obtain a special permit, interested parties must prepare and submit a detailed application that PHMSA reviews extensively. If granted and its use is needed after the expiration date assigned, the person authorized to use the special permit must submit an application to continue their use of it and undergo another extensive PHMSA renewal process. Converting the provisions (fully or in part) of these special permits into regulations reduces paperwork burdens and facilitates commerce while maintaining an acceptable level of safety. Additionally, adoption of special permits as rules of general applicability provides wider access to the benefits and regulatory flexibility of the provisions granted in the special permits. Factors that influence whether a specific special permit is a candidate for regulatory action include: the safety record for hazardous materials transported, or the transport operations conducted, under a special permit; the potential for broad application of a special permit; suitability of provisions in the special permit for incorporation (fully or in part) into the HMR; rulemaking activity in related areas; and agency priorities. Special permits involving packaging used by a large number of persons—such as those issued to many persons with party status or issued to a manufacturer as a “manufacture, mark, and sell”—are potentially among the most suitable types of special permits for adoption into the HMR. Such special permits have broad applicability; moreover, many of them have been in effect for a number of years and have demonstrated safety records.

Further, although we make every effort to stay as true as possible to the conditions prescribed in each special permit when converting it to proposed regulatory text, PHMSA recognizes that sometimes, due to existing regulations or historical interpretations, provisions in a special permit may require revision to convert them into regulations of general applicability. In addition, when converting special permits we often have to modify the language to describe documents and procedures that are authorized under the special permit but not specifically described in it or to modify the language to comply with requirements for proposed regulatory text prescribed by PHMSA, by other agencies in the Department of Transportation (DOT), and potentially by federal agencies outside of DOT.

The special permits addressed in this NPRM have hundreds of party-to status grantees. Party-to status is granted to a person who would like to offer for transport or transport a hazardous material, or perform an operation in association with a hazardous material in the same manner as the original applicant.

This NPRM proposes to incorporate elements of nine special permits (by way of incorporating SLP-23) that authorize multipurpose bulk truck operations not specifically permitted under the HMR. The proposed amendments will eventually eliminate the need for hundreds of current grantees to reapply for renewal of nine special permits every four years and for PHMSA to process those renewal applications. These proposals will also apply to any special permits PHMSA issues during the development of this rulemaking whose provisions are identical in every respect to those described in the rulemakings issued under this docket. To emphasize this, we preface the description of the affected special permits with the wording “include” or “includes” to clarify that additional special permits other than those specifically listed in this NPRM may have elements of them incorporated under these amendments. These special permits were initially issued to members of industry associations or similar organizations. These nine petitions are:

• DOT-SP 4453: Authorizes the transportation in commerce of certain Division 1.5D explosives contained in non-DOT specification bulk, hopper-type tanks. This special permit was issued in 1980 and is utilized by 142 grantees with acceptable safety performance.

• DOT-SP 5206: Authorizes the transportation in commerce of Division 1.5D explosives contained in privately operated bulk hopper-type units. Specific operational controls are specified in lieu of compliance with these two requirements. This special permit has been in effect since 1980 and is utilized by 44 grantees with acceptable safety performance.

• DOT-SP 8453: Authorizes the transportation in commerce of certain Division 1.5D explosives and Division 5.1 materials contained in DOT specification cargo tanks and certain non-DOT specification cargo tanks and portable tanks. This special permit has been in effect since 1980 and is utilized by 64 grantees with acceptable safety performance.

• DOT-SP 8554: Authorizes the transportation in commerce of certain Division 1.5D explosives and/or Division 5.1 oxidizers in the bulk motor vehicles described in the special permit. This special permit has been in effect since 1981 and is utilized by at least 182 grantees with acceptable safety performance.

• DOT-SP 8723: Authorizes the transportation in commerce of certain Division 1.5 explosives and/or Division 5.1 oxidizers, in bulk, in motor vehicles and portable tanks described in the special permit. This special permit has been in effect since 1981 and has been utilized by at least 109 grantees with acceptable safety performance.

• DOT-SP 9623: Authorizes the transportation in commerce of certain Division 1.5D explosives and Division 5.1 oxidizers in a cargo tank with a dromedary compartment (cargo compartments) containing Division 1.1 explosives mounted directly behind the trailer cab subject to the limitations specified in the special permit. This special permit was issued in 1986 and is utilized by 42 grantees with acceptable safety performance.

• DOT-SP 10751: Authorizes the transportation in commerce of certain Division 1.1, 1.4, and 1.5 explosives, Division 5.1 oxidizers, and Class 3 combustible liquids in separate containers mounted on the same vehicle frame structure. This special permit was issued in 1994 and is utilized by 38 grantees with acceptable safety performance.

• DOT-SP 11579: Authorizes the transportation in commerce of certain Division 1.1B, 1.1D, 1.4B, 1.4D, 1.4S, and 1.5D explosives, Division 5.1 oxidizers, Class 8 materials, and Class 3 combustible liquids in separate containers secured on the same vehicle frame structure. This special permit was issued in 1996 and is utilized by 72 grantees with acceptable safety performance.

• DOT-SP 12677: Authorizes the transportation in commerce of certain Division 1.1, 1.4, and 1.5D explosives, Division 5.1 oxidizers, Class 8 corrosive liquids, and Class 3 combustible liquids in separate containers secured on the same vehicle frame structure. This special permit was issued in 2001 and is utilized by 15 grantees with acceptable safety performance.

PHMSA has included discussion of these nine special permits in this NPRM because we have determined these special permits have well established safety records and the regulated industry would benefit from the HMR mirroring the majority of provisions contained in them. 2 These proposed revisions are intended to eliminate the need for future renewal requests, thus reducing paperwork burdens and facilitating commerce while maintaining an appropriate level of safety.

Further, developing standards for the transportation of bulk explosives into the HMR eliminates a significant paperwork burden. As a condition of those special permits issued by PHMSA and depending on the provisions of the special permit, a copy of each special permit must be: (1) Maintained at each facility where an operation is conducted or packaging is manufactured under a special permit; (2) maintained at each facility where a package is offered or re-offered for transportation under a special permit; and (3) in some cases, carried aboard each transport vehicle used to transport a hazardous material under a special permit.

Two elements in this proposed rulemaking were presented to PHMSA in petitions for rulemaking. A more detailed description of each is provided below.

The petition from R&R Trucking, Inc. (P-1557) dated March 23, 2010, asks PHMSA to eliminate the need to operate under the terms and conditions of a special permit for deliveries of certain types of bulk explosives, and develop bulk explosive requirements in the HMR. R&R Trucking states that “the request is limited to Explosives, blasting, type E, 1.5D, UN0332, PG II and Ammonium nitrate emulsion, 5.1, UN3375, PG II, transported on articulated DOT specification cargo tank motor vehicles.” Further, the petition states that “no other hazardous material may be loaded into or carried on the vehicle or any vehicle in a combination of vehicles when transporting either of these materials in the approved bulk packaging.”

In support of their petition, R&R Trucking states that:

As for a specific case of why the petition is needed, R&R Trucking states that:

P-1557 requests two regulatory changes, both of them contained in the Hazardous Materials Table (HMT), in 49 CFR 172.101. For “Ammonium nitrate emulsion, 5.1, UN3375”, R&R Trucking petitions us to change:

For “Explosive, blasting, type E, l.5D, UN0332”, R&R Trucking petitions us to change:

Finally, these two revisions would be permitted for motor vehicle and cargo vessel modes of transportation.

Lastly, R&R Trucking states that “the impact of the proposal should not be substantial. The impact of governing transport of these materials by regulation rather than by special permit should be minimal.”

PHMSA agrees with the petitioner on the merit of establishing requirements for the transportation of bulk explosives in commerce. With the incorporation of IME SLP-23, PHMSA will be establishing all relevant and appropriate requirements set out in the current multipurpose bulk transportation special permits, 3 including the special permits R&R Trucking operates under. While we are not incorporating every provision in all nine special permits, we will have established criteria by which to transport these commodities in conformance with the HMR.

The petition from the Institute of Makers of Explosives (IME) (P-1583) dated May 13, 2011, asks PHMSA to develop bulk explosive requirements in the HMR by incorporating by reference IME Safety Library Publication No. 23, Recommendations for the Transportation of Explosives Division 1.5, Ammonium Nitrate Emulsions Division 5.1, Combustible Liquids Class 3, and Corrosives Class 8 in Bulk Packagings (“SLP-23”). Per IME's petition, IME is a non-profit association founded in 1913 to provide accurate information and comprehensive recommendations concerning the safety and security of commercial explosive materials. IME represents U.S. manufacturers and distributors of commercial explosive materials and oxidizers as well as other companies that provide related services, and the majority of IME members are “small businesses” as determined by the U.S. Small Business Administration.

In support of their petition, IME states that:

In the petition, IME states that it submitted P-1583 for two reasons:

PHMSA agrees with the petitioners request to develop bulk explosive requirements in the HMR by proposing to incorporate by reference IME SLP-23. A more in-depth review of the SLP-23 (including its recommendations, its differences with the nine special permits, etc.) is discussed in Section III below.

Access to the IME SLP-23 publication discussed in this NPRM is available for public download and review at: http://www.ime.org/. Under the “Publications” tab, click the “Safety Library Publications” link and either order a physical copy or download a free PDF copy via email. Also, a copy of the IME SLP-23 publication has been added to the Docket under “PHMSA-2011-0345” at http://www.regulations.gov. Additionally, access to the petitions referenced in this NPRM can be found at http://www.regulations.gov under Docket Numbers “PHMSA-2010-0101” (P-1557), and “PHMSA-2011-0137” (P-1583), or at DOT's Docket Operations Office (see ADDRESSES ).

In this NPRM, PHMSA is proposing to revise the HMR by amending the regulations to establish standards for the safe transportation of bulk explosives. These proposals are further described below.

In 1999, PHMSA requested IME to assist the Agency in preparing a set of standards that would incorporate bulk explosives transportation requirements into the HMR. Between 1999 and early 2001, PHMSA and IME worked cooperatively to prepare an acceptable document. The result of this effort was SLP-23, first published in 2001. At that point in time, PHMSA was considering incorporating the document into the HMR. Unfortunately, the events of September 11th 2001 intervened, and it was determined to be a difficult time to pursue the development of a rule dealing with explosives.

The SLP-23 document itself is structured into four main sections: Section I, Section II, Appendix A, and Appendix B.

• Section I (Standards for Transporting a Single Bulk Hazardous Material for Blasting by Cargo Tank Motor Vehicles) includes parts on: General requirements; modes of transportation; additional provisions; qualifications, maintenance, and repair of packagings; qualifications of individuals certifying non-DOT specification bulk packaging; placarding and marking requirements; and security and safety of the bulk hazardous materials transported.

• Section II (Standards for Cargo Tank Motor Vehicles Capable of Transporting Multiple Hazardous Materials for Blasting in Bulk and Non-Bulk Packaging) includes parts on: Purpose and limitations; hazardous materials covered under Section II; packagings; operational controls; qualifications, maintenance, and repair of packagings; special provisions; and emergency response, reporting, and training requirements.

• Appendix A is comprised of information on the vented pipe test (apparatus and materials, procedure, and test criteria and method of assessing results) including a diagram.

• Appendix B is comprised of information on the qualification, maintenance, and repair for non-DOT specification cargo tanks, for pressure capable sift-proof closed vehicles, and for pressure-capable closed bulk bins (periodic qualification, external visual inspection and testing, internal visual inspection, leakage test, pressure tests, test and inspection markings, repairs, modifications or alterations).

In 2011, IME updated and revised SLP-23 in direct response to concerns expressed by PHMSA regarding bulk transportation of explosives. IME used a team that was comprised of a broad group of experts (including both IME members and non-members) with extensive experience in hazardous materials transportation generally and the bulk transportation of explosives in particular.

The 2011 edition of SLP-23 includes all relevant and appropriate requirements set out in the bulk transportation special permits. In addition, because SLP-23 is a comprehensive standard, the recommendations are broader in scope than the combined special permits and the document succeeds in avoiding certain inconsistencies that inevitably exist between the current special permits. In addition to providing a clear and consolidated framework for the regulation of bulk transportation of explosives, SLP-23 recommends certain practices that exceed the requirements of the current special permits. These recommendations are as follows:

• SLP-23 requires at least two fire extinguishers, each with a rating of at least 4-A:40-B:C to be carried on MBTs.

• SLP-23 incorporates the United Nations (UN) requirement that no closed bulk packaging may have a maximum allowable working pressure exceeding 35 psi. This is a recommendation of the UN and reduces the probability of a deflagration to detonation transition of the cargo.

• SLP-23 provides that materials shall not be allowed to remain in the vehicle for any period of time that might result in caking. In certain environments with certain products, caking occurs relatively easily. This is a situation that is easily preventable, and is not currently addressed in special permits.

• Any non-DOT specification cargo tanks, portable tanks, sift-proof closed vehicles and closed bulk bins must be qualified, inspected, and maintained essentially the same as a DOT-specification bulk container (set out in Appendix B of SLP-23).

• Inspectors conducting inspections of non-DOT non-specification tanks (see above) must meet training qualifications outlined in Appendix B for the MBTs. DOT specification cargo tanks must still be inspected by registered inspectors.

• Each non-DOT non-specification bulk packaging must display a nameplate with a certification that the packaging meets SLP-23 standards and must include additional technical information. The nameplate must be visible for inspection. This helps users stay within the design parameters of the vehicle and inspectors verify compliance with manufacturer specifications.

• SLP-23 addresses security comprehensively. The recommendations specifically address the security of 1.5 and 5.1 materials when in transit, including locking mechanisms for all openings and elimination of any material spillage and/or residue in hoses and other access points. In addition, the recommendations address the safety of process delivery vehicles in general, including: Battery enclosure and disconnect specifications and tire specifications.

• Drivers must meet stringent qualifications and undergo extensive safety training, in addition to the training required to obtain a commercial driver's license with the hazmat endorsement under the Federal Motor Carrier Safety Administration (FMCSA). Furthermore, in addition to meeting the training requirements specified in 49 CFR 172, Subpart H, new drivers must also have a driving record without any preventable accidents in the past year and no moving violations in the previous three years. Drivers must also complete additional classroom training and pass a road test in a vehicle similar to the vehicle the driver will be operating.

In addition to the recommendations above, SLP-23 provides increased clarity compared to the current special permits in the following areas:

• SLP-23 clearly delineates the different transportation risks between single bulk commodities transported by articulated tractor-trailers (cargo tanks), and MBTs. Currently, all the special permits cover both articulated tractor-trailer vehicles carrying one hazmat and MBT straight trucks carrying many.

• All DOT-specification tanks appropriate for transportation of covered materials are clearly identified.

• All standards are consolidated into one document. Further, tanks are required to be marked “IME SLP23.”

Therefore, in this NPRM, PHMSA proposes to incorporate SLP-23 and establish requirements of general applicability governing the transportation of bulk explosive materials. As such, PHMSA proposes to revise the 49 CFR 171.7 table of material incorporated by reference to include SLP-23, and establish a new § 173.66 (to be discussed further below) for the bulk explosives requirements.

PHMSA's proposal to incorporate SLP-23 into the HMR and establish requirements of general applicability governing the transportation of bulk explosive materials requires an update to the Hazardous Materials Table (HMT). Currently, the 49 CFR does not include a provision for the transportation in bulk packaging of certain Class 1 and Class 5 hazardous materials that are used in commercial blasting operations. When reviewing the HMT under the bulk packaging section, those types of commodities will have a “None” in Column (8C) meaning bulk packagings are not authorized, except as may be provided by special provisions in Column (7). With the proposed incorporation of SLP-23, the affected hazardous materials require a new special provision 148 added to each entry under Column 7 of the HMT. These HMT entry revisions range from Divisions 1.1B, 1.1D, 1.4B, 1.4D, 1.4S and 1.5D Explosives, Division 5.1 Oxidizers, Class 8 Corrosives, and Combustible liquids.

Special Provision 148 is being proposed in order to allow for the transportation of certain hazardous materials in bulk quantities, or with materials normally not permitted to be transported with such commodities. This Special Provision 148 will direct readers to Section 173.66 in order to comply with the bulk explosives requirements. No other hazardous materials entries will be directed to Section 173.66 and therefore, only certain explosives, oxidizers, etc. will be eligible for bulk explosives transportation.

PHMSA is proposing to add a new section to 49 CFR part 173 (§ 173.66), which would specify the requirements for MBTs. This includes existing MBTs, future newly constructed MBTs, and future modified MBTs.

In the preamble of the new section, prior to paragraph (a), we propose the requirements for multipurpose bulk trucks as follows. When § 172.101 specifies that a Class 1 (explosive) material may be packaged in accordance with this section, only the bulk packagings specified for these materials in IME SLP-23 (IBR, see § 171.7 of this subchapter) would be authorized, subject to the requirements of subparts A and B of this part and the special provisions in column 7 of the § 172.101 table. Thus, an entity operating a MBT under current conditions, such as a Special Permit, would be subject to operating under the IME SLP-23 document. Additional requirements in paragraphs (a), (b), and (c) apply to: (1) A new multipurpose bulk truck constructed after December 31, 2014, or (2) an old multipurpose bulk truck that requires modifications due to wear and tear (i.e., re-chassis, etc.).

In paragraph (a), we propose additional requirements regarding fire suppression systems for newly constructed and modified MBTs. In addition to complying with the applicable requirements of the HMR (e.g., placarding, shipping papers, etc.) and the applicable requirements in IME Safety Library Publication No. 23 (SLP-23) per § 171.7 of the HMR, these vehicles would be required to have a fire suppression system that is an engineered system connected to the engine and transmission compartments. The system would be activated by manual switch or passive means in the event of a fire. Also, all fire extinguishers used as components of the system would be required to meet the requirements of 49 CFR 393.95(a) and the applicable NFPA codes and standards. Further, the fire suppression system's design would be required to be verified and certified by the Design Certifying Engineer (DCE) of the vehicle, and the design would need to be tested through engineering analysis or physical testing to verify the initial design or future modification(s) to the current fire suppression system. The fire suppression system would be required to be visually inspected annually for defects, flaws, damage, etc., to ensure none are present. The system would need to be pneumatically tested every five years to ensure the system is free of debris, leaks, and damage, and to ensure the system will function properly. Finally, the DCE would need to prepare a test report and provide it to the manufacturer of the vehicle and the manufacturer would need to provide a copy to the owner of the vehicle.

In paragraph (b), we propose additional requirements of emergency shut-off/battery disconnect for newly constructed and modified MBTs. For these trucks, the batteries for the chassis would be required to have three easily accessible manual disconnect switches. One manual disconnect switch would be located inside the driver's cab and would not include the ignition, and that the remaining two manual disconnect switches would be located on each side of the vehicle. Further, all three switches would be connected to the positive battery terminal and the line of the switch would be protected from rubbing and abrasion that could cause a short circuit. Finally, the battery disconnect would be required to isolate all manufacturing equipment except critical instrumentation that requires the maintenance of the electrical supply, and that the battery disconnect is tested monthly to ensure proper operation.

In paragraph (c), we propose that for newly constructed and modified MBTs, those trucks would need to be in compliance with the applicable Federal Motor Vehicle Safety Standard (FMVSS) found in 49 CFR part 571. Furthermore, the multipurpose bulk truck manufacturer would need to maintain a certification record ensuring the final manufacturing is in compliance with the FMVSS, per the certification requirements found in 49 CFR Part 567, and these certification records would need to be available to DOT representatives upon request.

By proposing these requirements, PHMSA is echoing the majority of provisions contained in nine widely used or longstanding special permits that have established safety records. These proposed revisions are intended to eliminate the need for future renewal requests, thus reducing paperwork burdens and facilitating commerce while maintaining an appropriate level of safety.

In § 177.835, we propose to revise paragraph (a) to state that no Class 1 (explosive) materials may be loaded into or on or be unloaded from any motor vehicle with the engine running, except that the engine of a multipurpose bulk truck may be used for the operation of the pumping equipment of the vehicle during loading or unloading.

Furthermore, we propose a new paragraph (d) which discusses multipurpose bulk trucks and specifies that Class 1 (explosive) materials may be packaged in accordance with § 173.66 of this subchapter. However, these materials would be permitted to be transported on the same vehicle with Division 5.1 (oxidizing) materials, or Class 8 (corrosive) materials, and/or Combustible Liquid, n.o.s., NA1993 only under the conditions and requirements set forth in SLP-23 (IBR, see § 171.7 of this subchapter) and paragraph (g) of this section (177.835).

This NPRM is published under the authority of 49 U.S.C. 5103(b) which authorizes the Secretary to prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce. 49 U.S.C. 5117(a) authorizes the Secretary of Transportation to issue a special permit from a regulation prescribed in 5103(b), 5104, 5110, or 5112 of the Federal Hazardous Materials Transportation Law to a person transporting, or causing to be transported, hazardous material in a way that achieves a safety level at least equal to the safety level required under the law, or consistent with the public interest, if a required safety level does not exist. The proposed rule would amend the regulations by incorporating SLP-23 and provisions from certain widely used and longstanding special permits that have established a history of safety and which may, therefore, be converted into the regulations for general use.

This proposed rulemaking is not considered a significant regulatory action under Executive Order (E.O.) 12866 (“Regulatory Planning and Review”), as supplemented and reaffirmed by E.O. 13563 (“Improving Regulation and Regulatory Review”), stressing that, to the extent permitted by law, an agency rulemaking action must be based on benefits that justify its costs, impose the least burden, consider cumulative burdens, maximize benefits, use performance objectives, and assess available alternatives, and the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034). However, due to the specific issues related to the transportation of explosive materials in MBTs, a regulatory impact assessment is available for review in the public docket for this rulemaking (filed under “PHMSA-2011-0345” at http://www.regulations.gov ).

Executive Order 13563 is supplemental to and reaffirms the principles, structures, and definitions governing regulatory review that were established in Executive Order 12866 Regulatory Planning and Review of September 30, 1993. Executive Order 13563, issued January 18, 2011, notes that our nation's current regulatory system must not only protect public health, welfare, safety, and our environment but also promote economic growth, innovation, competitiveness, and job creation. 4 Further, this executive order urges government agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. In addition, Federal agencies are asked to periodically review existing significant regulations, retrospectively analyze rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and modify, streamline, expand, or repeal regulatory requirements in accordance with what has been learned.

Executive Order 13610, issued May 10, 2012, urges agencies to conduct retrospective analyses of existing rules to examine whether they remain justified and whether they should be modified or streamlined in light of changed circumstances, including the rise of new technologies. 5

By building off of each other, these three Executive Orders require agencies to regulate in the “most cost-effective manner,” to make a “reasoned determination that the benefits of the intended regulation justify its costs,” and to develop regulations that “impose the least burden on society.”

In this notice, PHMSA proposes to amend the HMR to incorporate alternatives this agency has permitted under widely used and longstanding special permits and competent authority approvals with established safety records that we have determined meet the safety criteria for inclusion in the HMR. Incorporation of SLP-23 into the regulations of general applicability will provide shippers and carriers with additional flexibility to comply with established safety requirements, thereby reducing transportation costs and increasing productivity. In addition, the proposed rule will reduce the paperwork burden on industry and this agency resulting from putting an end to the need for renewal applications for special permits. Taken together, the provisions of this proposed rule will promote the continued safe transportation of hazardous materials while reducing transportation costs for the industry and administrative costs for the agency.

PHMSA considered five potential regulatory alternatives.

• Alternative 1: No Action. Under this option, PHMSA would continue existing requirements for Special Permits to transport bulk explosives by taking no action. However, PHMSA believes that there are considerable benefits to taking action provided that a high level of safety is maintained. Furthermore, all costs and benefits are relative to this option.

• Alternative 2: PHMSA Defers to Voluntary Standards. Under this option, PHMSA will defer to voluntary standards developed through organizations or trade associations. PHMSA will likely participate in standard-setting to develop standards that meet safety criteria that are in the interest of the United States. While compliance with voluntary standards is thought to be high by industry participants, firms do not have to comply with them, since they are voluntary. This creates some concern since the non-adoption may mean that those firms may not comply with minimum safety standards.

• Alternative 3: Incorporate Special Permits That Have a Good Safety Record into the HMR. Under this option, PHMSA will incorporate seven of the nine special permits into the HMR. These seven special permits have very good safety records. By incorporating these special permits, PHMSA will need to work through the Federal rulemaking process to modify the HMR in response to technological enhancements and other matters relating to the transportation of the bulk explosives covered under the seven special permits. It may be more advantageous to incorporate standards developed by industry than for PHMSA to develop its own standards and incorporate them into the HMR.

• Alternative 4: Adopt Other National or International Standards. Under this option, PHMSA would adopt other national or international standards, such as those used by Canada, Australia, or the United Nations. These other standards do not conform well to existing U.S. law and to the nine special permits. For example, the U.S. Bridge Law (USBL) provides known standards for bridge construction, by, among other requirements, placing restrictions on the overall size of MBTs in service in the United States. Other standards do not conform to the USBL. Also, these standards are implemented in ways that may not be possible within the regulatory framework in the United States.

• Alternative 5: Incorporate SLP-23 into the HMR with Additional Features. SLP-23 recommends standards for MBT straight trucks that typically transport multiple hazardous materials in support of blasting operations and articulated cargo tanks that carry a single bulk blasting agent or oxidizer. Under this option, PHMSA will incorporate SLP-23 into the HMR with additional features. This rulemaking specifically proposes to adopt a combination of features, including incorporating by reference (IBR) the Institute of Makers of Explosives' (IME) Safety Library Publication No. 23 “Recommendations for the Transportation of Explosives, Division 1.5, Ammonium Nitrate Emulsions, Division 5.1, Combustible Liquids, Class 3 and Corrosives, Class 8 in Bulk Packaging” (referred to as SLP-23), requiring fire suppression systems in heat-containing compartments (e.g., engine, transmission) and emergency shut-off/battery disconnect of newly constructed or modified MBTs, and complying with certain National Highway Traffic Safety Administration (NHTSA) requirements. The NPRM requirements are more comprehensive and have stricter standards than the nine special permits, and it may eliminate some duplicative functions covered by other industry standards. While SLP-23 may need to be re-evaluated and changed to keep pace with technological enhancements and other matters, IME will perform this and publish the revised standards free of charge. SLP-23 was developed with input of IME members, stakeholders, and PHMSA. In addition to incorporating SLP-23, under this option, we would add fire suppressions systems to the vehicles similar to the designs authorized under the Canadian requirements. The fire suppression requirements would strengthen the performance standards, and further accomplish PHMSA's objective of enhancing safety. For all of these reasons, alternative five was PHMSA's chosen alternative for this NPRM.

The proposed rule adopts Alternative 5, “Incorporate SLP-23 into the HMR with Additional Features.” By proposing these requirements, PHMSA will be echoing the majority of provisions contained in nine widely used or longstanding special permits that have established safety records. These proposed revisions are intended to eliminate the need for future renewal requests, thus reducing paperwork burdens and facilitating commerce while maintaining an appropriate level of safety.

The costs to comply with the NPRM are the sum of the costs of incorporating SLP-23 into the HMR as estimated for Alternative 5 plus costs for existing and new trucks to meet the additional requirements described in section III above (Proposed New Section on the Requirements for MBTs). Below is an analysis of costs associated with the various provisions under SLP-23 that affect its incorporation into the HMR, followed by an analysis of costs associated with some additional features.

Costs associated with tire-pressure checks. SLP-23 contains a requirement to check tire pressure before the initial trip of the day. This would be part of a routine pre-trip inspection and should not add any costs.

Costs associated with fire extinguishers. SLP-23 requires a minimum of two fire extinguishers rated 4-A:40B:C. Current Federal regulations require a minimum of one fire extinguisher rated 10B:C. IME makes the following estimates:

• Fire extinguishers could be affixed in 8 hours.

• The cost for two fire extinguishers is approximately $250.

• The labor costs for installing the fire extinguishers are estimated at $280.

• The cost associated with the MBT downtime is approximately $560.

• Approximately 25 percent of the MBTs (or 375 of the 1,500 MBTs in service) would need to acquire and affix the extinguishers.

Using IME's data, it's estimated that the cost to equip 375 MBTs with fire extinguishers would be approximately $408,750 ($250 for the fire extinguishers + $280 labor costs + $560 vehicle downtime * 375 MBTs). This is expected to be a one-time cost. There will be annual maintenance costs, but it's believed these costs will be negligible (somewhere between $0 and $5 per MBT over a 10-year period). Each vehicle should already have at least one fire extinguisher on board per DOT regulations. IME's data estimates that the fire extinguisher has a longer life than the MBT; therefore, it's estimated that there would be no annual costs to industry resulting from this requirement.

Costs associated with working pressure limit. SLP-23 limits the maximum allowable working pressure of an MBT cargo tank to 35 psi. 6 This measure is intended to help prevent a build-up of pressure in the tank, which could result in a detonation of the contents in a fire. IME data estimates that most MBTs already meet this standard. IME data estimates that at most 10 percent of the MBTs (or 150 MBTs) would need a retrofit. IME data estimates the cost of retrofitting each MBT would be approximately $3,000. The cost to industry to retrofit 150 MBTs would be approximately $450,000. This is a one-time cost.

Costs associated with periodic tests and inspections of non-DOT specification cargo tanks. SLP-23 requires that non-DOT-specification cargo tanks be inspected essentially the same way as specification tanks. This requires competence training of inspectors and physical inspections as described in Appendix B of SLP-23. IME data estimates that 75 percent of the MBTs with non-specification tanks are in substantial compliance with SLP-23 in this regard and 25 percent are not. IME data estimates that the annual cost of performing inspections and test for non-compliant vehicles is $3,500 per vehicle. Assuming that 25 percent of MBTs (or 375 vehicles) would need to comply, the annual cost of complying is approximately $1.3 million (375 MBTs not in compliance * $3,500 for inspection and tests per vehicle).

Costs associated with the nameplate. SLP-23 requires a nameplate be affixed to the vehicle describing its design characteristics. According to IME data, virtually all MBTs will need a retrofit, costing an average of about $125 per truck for a total cost of $187,500 ($125 * 1,500 MBTs). This is a one-time cost.

Costs associated with accident investigations. SLP-23 requires companies to provide PHMSA an incident investigation report of all MBT crashes. This report may be an internal investigation because: (1) Some companies are self-insured and (2) some insurance companies will not allow their reports to be released. An independent accident investigation of an MBT crash would be conducted only if PHMSA requests it. IME data estimates that under SLP-23 this would be necessary once a year. An independent accident investigation of an MBT crash costs about $10,000. The annual cost associated with accident investigations could reach $20,000 per year.

Driver training after preventable accidents. SLP-23 requires that drivers involved in preventable accidents (as defined in 49 CFR Section 385.3) while operating an MBT be retrained if the driver remains employed by the motor carrier. The SLP-23 requirement is similar to the requirement in the current applicable SPs, although SLP-23 clarifies that the carrier does not have a responsibility to continue to employ the driver. Driver training costs are variable, depending on the amount of training needed and required by the rule. New driver training is in the vicinity of $3,000 per driver. 7 As noted earlier, there are on average approximately three incidents per year under SPs. If the trend continues under SLP-23, the cost of driver training to the industry is expected to be approximately $9,000 per year.

Maintaining and updating SLP-23. The cost of standard development is spread amongst many standards that IME makes available to the public. Some standards require more resources than others. IME estimates that annual cost for maintaining and updating SLP-23 is approximately $50,000. IME is prepared to bear the cost of maintaining SLP-23 and updating it at no cost to PHMSA, once it is incorporated into the HMRs. This cost is not included in the total cost to industry, as this not a new cost but an ongoing expenditure that is currently an integral part of industry's management and operation.

Fire suppression system. The cost of equipping an MBT with a fire suppression system is approximately $10,000 to $15,000 per vehicle (or on average $12,500). This is a one-time cost for newly constructed vehicles or trucks undergoing modifications (i.e., re-chassis). Assuming that approximately 750 new vehicles are constructed (per the analysis under Alternative 5), it would on average cost industry approximately $9.4 million ($12,500 average cost of a fire suppression system * 750 new vehicles).

In addition, compliance with the NPRM would involve the cost of inspection of fire suppression systems every 6 months by a qualified and approved facility or person as described in the National Fire Protection Association (NFPA) Standard. 8 Should there be any additional costs beyond those included under the incorporation of SLP-23 for the testing of fire suppression systems, the cost is uncertain. PHMSA seeks comment. Finally, there are no additional marginal costs associated with NHTSA requirements in the NPRM.

The following table shows the cost associated with the NPRM.

The total one-time costs to comply with the requirements in the NPRM are estimated at $10.4 million; the recurring annual costs are estimated at approximately $1.4 million.

The benefits associated with the NPRM are the sum of the benefits of incorporating SLP-23 into the HMR as estimated for Alternative 5 plus any benefits that may accrue from existing and new trucks meeting the additional requirements. There will be some cost savings associated with reduced paperwork burdens (see Section IV. Regulatory Analyses and Notices, Part F—Paperwork Reduction Act). Below is an analysis of the benefits provided by incorporating SLP-23 into the HMR, along with the cost savings provided to both stakeholders and PHMSA.

Cost savings to industry from no longer having to apply for the nine SPs. According to PHMSA data, from 2005 through 2011 there were 534 requests for SPs submitted. 9 There were no requests for new permits; all 534 were party to SPs, modifications, or renewals. This translates to approximately 76 requests for permits per year. According to IME data, the industry spends approximately $825.00 for each renewal, party to, or modification; the cost to industry of applying for new permits is $50,000. Since none of the applications involved new permits, the annual cost to industry would be $62,700 (76 permit applications per year * $825 per renewal, party to, or modification).

Cost savings to PHMSA from no longer having to review and approve applications for the nine SPs. PHMSA spends approximately $414.00 per application. 10 The annual total cost to PHMSA for the application and review process is $31,464 [($414.00 per application * 76 (the average number of permits processed per year)].

Costs savings to industry associated with not having to check tire pressure before each departure onto the public roads. Currently, the nine special permits may require the tire pressure to be checked multiple times each day. The proposed rule would only require one tire check a day. It is possible that there are multiple times that the MBT is running back and forth to the blast site in a day, therefore, a significant costs savings is accrued with the potential incorporation of SLP-23. For the calculation of costs ensuing from the requirement to check tire pressure (based on information from IME), PHMSA assumed the following:

• There are approximately 1,500 MBTs in service and 500 ACTVs in service.

• Drivers of MBTs earn approximately $35.00 per hour, including overhead. 11

• Drivers perform work-related activities approximately 250 days per year (14-hour days). The 14-hour day consists of driving (which, under current U.S. regulations, is restricted to 11 driving hours during a 14-hour workday), non-driving (such as loading, unloading, performing required tire checks, and doing paperwork), and rest breaks. According to a DOT study, commercial motor vehicle (CMV) drivers spend approximately 66 percent of their workday driving; 23 percent performing non-driving activities; and the remaining 11 percent resting, eating, and sleeping while on duty. 12

• A gallon of diesel fuel as of December 2012 is approximately $4.00. 13

• It costs $560.00 per day to operate an MBT in compliance with SPs.

• Time to check the tire pressure is on average approximately 30 minutes per day. 14 PHMSA believes this may be an overestimation but has included it in the absence of an alternative value.

PHMSA seeks comments on these estimates and assumptions.

Under the above assumptions the cost per year for the tire checks is approximately $4,375 per year ($17.50 driver wage per half hour of work * 250 work days). Vehicles idle during the tire check and consume 1 gallon of fuel per hour. The fuel costs per year are $500 ($2.00 per half gallon * 250 workdays).

Additionally, industry estimates that the time needed to comply with tire checks translates to approximately 0.036 days (0.5 hours/14-hour workday) in lost time. Thus the additional MBT trips required annually cost approximately $5,000 (.036 lost time * 250 workdays * $560 to operate MBT per day). Below is a table demonstrating this entire calculation.

The annual cost per vehicle associated with the tire-pressure check requirement is $9,875, which works out to an annual cost to industry from the tire-pressure test requirement of approximately $14.8 million ($9,875 total cost per vehicle per year * 1,500 MBTs).

Costs savings to industry associated with caking. There is a cost savings from the requirements relating to caking. If left sitting for several days, ammonium nitrate (AN), can absorb moisture from the air, allowing it to cake into a solid mass, which is extremely difficult to break up. AN is highly hygroscopic; that is, it readily absorbs water from the atmosphere. AN is also highly water soluble. If AN sits undisturbed in a bulk container long enough, it will absorb water, and the prills will dissolve slightly around the edges. A drop in temperature will then cause the prills to solidify into a solid mass. SLP-23 counteracts this by unloading the transport container. Almost all bulk trucks will have AN prill in them at some point, making them susceptible to caking. Routine maintenance requirements under SLP-23 do not permit caking of the contents of an MBT to occur. SLP-23 specifies that if the interior surfaces of bulk packaging are not smooth and free of obstructions, the bulk packaging is to be inspected and cleaned “to prevent caking and/or drying-out of the bulk hazardous material.” SLP-23 further specifies that bulk hazardous material not be allowed to remain in the bulk packaging for any period of time that could result in caking. SLP-23 recommends that the equipment be cleaned as needed to minimize the accumulation and packing of the bulk hazardous material in the bulk packaging. IME data notes that instances of caking currently occur 5 to 10 times annually and cost about $12,000 to remediate each time caking occurs. There is no additional cost to industry to comply with the requirement in SLP-23 that helps prevent caking. Thus, this preventive requirement represents a savings to industry on average of $90,000 per year (7.5 caking incidents per year * $12,000 per incident for remediation).

Costs savings to the public associated with IBR of SLP-23. In addition, IME will make the standard available at no charge, which represents a cost saving to the public of approximately $1.3 million. Based on IME's experience with standards, we conclude that the total annual costs for the development and maintenance of standards would likely be over $1.3 million ($1 million for staff and equipment + $100,000 for meetings + $50,000 to maintain the standard + $100,000 for videos and posters, etc. + an undetermined licensing fee).

Benefits of fire suppression on new construction and trucks undergoing modifications. The benefits of fire suppression systems are many, including that they stand up under the heavy vibration and shock conditions common to MBTs, are designed to protect human life and property by quickly and efficiently suppressing a fire before it can reach the operator or passenger areas, help to prevent extensive vehicle damage, and curtail the damage that threatens adjacent areas. The system can be water based or chemical based. If a suppressant is water based, it is—without question—environmentally safe. If the suppressants are chemical based, the environment can be remediated. 16 There is evidence (noted in a study that examined the effects of fire suppressant agents on art artifacts) that the fire may cause more harm to the environment than the agent used to extinguish it and that the “heat from the fire would help to vaporize the agent.”  17 There are too few incident data to estimate and monetize the benefits from a fire suppression system, but given that the cost is in the range of $1,000 to $1,500 per year over the life of a truck, the benefits are likely to justify those low costs. PHMSA seeks comment on this analysis.

Benefits of NHTSA requirements on new construction and trucks undergoing modifications. NHTSA is the U.S. Government agency responsible for implementing and enforcing the National Traffic and Motor Vehicle Safety Act of 1966, as amended, 49 U.S.C. Chapter 301 (the Vehicle Safety Act), and certain other laws relating to motor vehicle safety. Under that authority, NHTSA issues and enforces Federal motor vehicle safety standards (FMVSS) that apply to motor vehicles and to certain items of motor vehicle equipment. The Vehicle Safety Act requires that motor vehicles and regulated items of motor vehicle equipment manufactured for sale in the United States be certified to comply with all applicable FMVSS. Before offering a motor vehicle or motor vehicle equipment item for sale in the United States, the fabricating manufacturer must: (1) Designate a permanent resident of the United States as its agent for service of process if the fabricating manufacturer is not located in the United States (49 CFR part 551, Subpart D Service of Process on Foreign Manufacturers and Importers) and (2) submit to NHTSA identifying information on itself and on the products it manufactures to the FMVSS, not later than 30 days after the manufacturing process begins (49 CFR part 566 Manufacturer Identification). This requirement is expected to reduce regulatory and administrative burden, without negatively affecting transportation safety. There are likely to be no significant marginal costs or benefits associated with this requirement. PHMSA seeks comment on this analysis.

The following table shows the benefits and cost savings associated with the NPRM.

The annual total cost savings are approximately $16.3 million. The quantified annual benefits of approximately $16.3 million arise mainly from the incorporation of SLP-23 into the HMR. There are other benefits from the other requirements (e.g., from the installation of fire suppression systems and the NHTSA requirements) but these benefits are not quantified.

Under the NPRM, the one-time costs are approximately $10.4 million; the recurring annual costs are approximately $1.4 million. The net present value of these costs discounted at 3 percent and 7 percent over the 10 years is approximately $22 million and $19 million, respectively. The annualized cost of the rule discounted at 3 percent is $2.2 million and at 7 percent is approximately $1.9 million.

The present value of the $16.3 million in annual cost savings (which represent the major benefits of the proposed rule) discounted at 3 percent and 7 percent over 10 years is approximately $143 million and $122 million, respectively. The annualized benefits at 3 percent are approximately $14.3 million and at 7 percent $12.2 million.

The annualized net benefits of the proposed rule at 3 percent are approximately $12.1 million and at 7 percent approximately $10.3 million.

This proposed rule was analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”), and the President's memorandum on “Preemption” published in the Federal Register on May 22, 2009 (74 FR 24693). This proposed rule would preempt state, local and Indian tribe requirements but does not propose any regulation that has substantial direct effects on the states, the relationship between the national government and the states, or the distribution of power and responsibilities among the various levels of governments. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply. Federal hazardous material transportation law, 49 U.S.C. 5101-5128, contains an express preemption provision (49 U.S.C 5125(b)) preempting state, local and Indian tribe requirements on certain covered subjects. Covered subjects are:

(1) The designation, description, and classification of hazardous materials;

(2) The packing, repacking, handling, labeling, marking, and placarding of hazardous materials;

(3) The preparation, execution, and use of shipping documents related to hazardous materials and requirements related to the number, contents, and placement of those documents;

(4) The written notification, recording, and reporting of the unintentional release in transportation of hazardous materials; or

(5) The designing, manufacturing, fabricating, inspecting, marking, maintaining, reconditioning, repairing, or testing a package, container or packaging component that is represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce.

This proposed rule addresses covered subject items (2), (3), and (5) and would preempt any State, local, or Indian tribe requirements concerning these subjects unless the non-Federal requirements are “substantively the same” as the Federal requirements. Furthermore, this proposed rule is necessary to update, clarify, and provide relief from regulatory requirements.

Federal hazardous materials transportation law provides at 49 U.S.C. 5125(b)(2) that if PHMSA issues a regulation concerning any of the covered subjects, PHMSA must determine and publish in the Federal Register the effective date of Federal preemption. The effective date may not be earlier than the 90th day following the date of issuance of the final rule and not later than two years after the date of issuance. PHMSA proposes the effective date of federal preemption will be 90 days from publication of the final rule in this matter in the Federal Register .

This proposed rule was analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this proposed rule does not have tribal implications and does not impose substantial direct compliance costs on Indian tribal governments, the funding and consultation requirements of Executive Order 13175 do not apply.

The Regulatory Flexibility Act of 1980 (RFA), as amended, requires Federal agencies to conduct a separate analysis of the economic impact of rules on small entities, taking into account small entities' particular concerns when developing, writing, publicizing, promulgating, and enforcing regulations. Under Section 603(b) of the RFA, each initial regulatory flexibility analysis is required to address: (1) The reasons why the agency is considering the action; (2) the objectives and legal basis for the proposed rule; (3) the kind and number of small entities to which the proposed rule will apply; (4) the projected reporting, recordkeeping and other compliance requirements of the proposed rule; and (5) all federal rules that may duplicate, overlap, or conflict with the proposed rule. 18 Furthermore, under Section 603(c) of the RFA, each initial regulatory flexibility analysis shall also contain a description of any significant alternatives to the proposed rule which accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the proposed rule on small entities. A discussion of the significant alternatives is provided first, and then a discussion of the requirements follows afterward.

The goal of this rulemaking is to facilitate the safe transportation of explosives in domestic commerce. In developing this proposed rulemaking, PHMSA considered five alternatives:

Under this option, PHMSA would continue existing requirements for Special Permits to transport bulk explosives by taking no action. However, PHMSA believes that there are considerable benefits to utilizing a codified standard, provided that a high level of safety is maintained. With this rationale, alternative one was not selected in this NPRM.

Under this option, PHMSA would defer to voluntary standards developed through organizations or trade associations. PHMSA would likely participate in standard-setting to develop standards that meet safety criteria that are in the interest of the United States. While compliance with voluntary standards is thought to be high by industry participants, firms do not have to comply with them, since they are voluntary. This creates some concern since the non-adoption may mean that those firms may not comply with minimum safety standards. For these reasons, alternative two was not selected in this NPRM.

Under this option, PHMSA would incorporate seven of the nine special permits into the HMR. These seven special permits have very good safety records. By incorporating these special permits, PHMSA would need to work through the Federal rulemaking process to modify the HMR in response to technological enhancements and other matters relating to the transportation of the bulk explosives covered under the seven special permits. It would be more advantageous to incorporate standards developed by industry than for PHMSA to develop its own standards and incorporate them into the HMR. Therefore, alternative three was not selected in this NPRM.

Under this option, PHMSA would adopt other national or international standards, such as those used by Canada, Australia, or the United Nations. These other standards do not conform well to existing U.S. law and to the nine special permits. For example, the U.S. Bridge Law (USBL) provides known standards for bridge construction, by, among other requirements, placing restrictions on the overall size of MBTs in service in the United States. Other standards do not conform to the USBL. Also, these standards are implemented in ways that may not be possible within the regulatory framework in the United States. For these reasons, alternative four was not selected in this NPRM.

SLP-23 recommends standards for MBT straight trucks that typically transport multiple hazardous materials in support of blasting operations and articulated cargo tanks that carry a single bulk blasting agent or oxidizer. Under this option, PHMSA will incorporate SLP-23 into the HMR with additional features. This rulemaking specifically proposes to adopt a combination of features, including incorporating by reference (IBR) the Institute of Makers of Explosives' (IME) Safety Library Publication No. 23 “Recommendations for the Transportation of Explosives, Division 1.5, Ammonium Nitrate Emulsions, Division 5.1, Combustible Liquids, Class 3 and Corrosives, Class 8 in Bulk Packaging” (referred to as SLP-23), requiring fire suppression systems in heat-containing compartments (e.g., engine, transmission) and emergency shut-off/battery disconnect of newly constructed or modified MBTs, and complying with certain National Highway Traffic Safety Administration (NHTSA) requirements. The NPRM requirements are more comprehensive and have stricter standards than the nine special permits, and it may eliminate some duplicative functions covered by other industry standards. While SLP-23 may need to be re-evaluated and changed to keep pace with technological enhancements and other matters, IME will perform this and publish the revised standards free of charge. SLP-23 was developed with input of IME members, stakeholders, and PHMSA. In addition to incorporating SLP-23, under this option, we would add fire suppressions systems to the vehicles similar to the designs authorized under the Canadian requirements. The fire suppression requirements would strengthen the performance standards, and further accomplish PHMSA's objective of enhancing safety. For all of these reasons, alternative five was PHMSA's chosen alternative for this NPRM.

In this notice of proposed rulemaking, PHMSA proposes to amend the HMR to establish standards for the safe transportation of bulk explosives. Developing such provisions of the HMR is intended to provide wider access to the regulatory flexibility that is currently only offered by way of obtaining a special permit. For example, the adoption of a regulatory standard in the HMR would eliminate the need for persons who hold a special permit to apply for renewal in the future.

This rulemaking specifically focuses on reviewing the Institute of Makers of Explosives (IME) Safety Library Publication 23 (SLP-23: Recommendations for the Transportation of Explosives, Division 1.5, Ammonium Nitrate Emulsions, Division 5.1, Combustible Liquids, Class 3, and Corrosives, Class 8 in Bulk Packagings) and special permits related to multipurpose bulk trucks (MBTs) used to transport various explosives, oxidizers, flammable liquids, and corrosive liquids on the same transport vehicle. The objective of this rulemaking is to develop a set of standards related to the safe transportation of these materials in MBTs that will no longer require the need to apply for a special permit as the standard will be in the HMR.

This rulemaking action is necessary to provide regulatory flexibility and relief while protecting public health, welfare, safety, and the environment. This NPRM will be beneficial to stakeholders by reducing paperwork for industry and government while maintaining an appropriate level of safety which promotes safer transportation practices. Finally, this rulemaking action facilitates commerce and eliminates unnecessary regulatory requirements. The intended effects of this rulemaking action would provide enhanced flexibility for industry transporting hazardous materials in commerce while maintaining an appropriate level of safety. The rulemaking would amend the HMR by incorporating IME publication SLP-23 with some additional requirements discussed above.

PHMSA is proposing to amend the HMR by establishing standards for the safe transportation of bulk explosives. By proposing these requirements, PHMSA will be mirroring the majority of provisions contained in nine widely used or longstanding special permits that have established safety records. These proposed revisions are intended to eliminate the need for future modifications, or renewal requests, thus reducing paperwork burdens and facilitating commerce while maintaining an appropriate level of safety. As proposed, the requirements would authorize the transportation of certain explosives, ammonium nitrates, ammonium nitrate emulsions, and other specific hazardous materials in bulk packaging, which are not otherwise authorized under the regulations. These hazardous materials are used in blasting operations on specialized vehicles, known as multipurpose bulk trucks, which are used as mobile work platforms to create blends of explosives that are unique for each blast site. Finally, this rulemaking addresses the construction of new and modified multipurpose bulk trucks.

This NPRM is published under 49 U.S.C. 5103(b) which authorizes the Secretary to prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce. 49 U.S.C. 5117(a) authorizes the Secretary of Transportation to issue a special permit from a regulation prescribed in 5103(b), 5104, 5110, or 5112 of the Federal Hazardous Materials Transportation Law to a person transporting, or causing to be transported, hazardous material in a way that achieves a safety level at least equal to the safety level required under the law, or consistent with the public interest, if a required safety level does not exist. If adopted, the final rule would amend the regulations by incorporating provisions from certain widely used and longstanding special permits that have established a history of safety and which may, therefore, be converted into the regulations for general use.

By amending the HMR, this proposed action could affect any firm operating under the HMR. In practice, this action will likely affect only existing holders of the nine special permits. Firms newly engaged in the transportation of bulk explosives will benefit from the elimination of the special permit application process. Manufacturers of MBTs will also be affected by the proposed rule.

PHMSA data detailing the application from firms for the nine special permits under consideration show that (from 2005 through 2011) 115 firms were involved in obtaining permits. All were applications for renewals, party to, or modifications; there have been no new applicant firms since at least 2005. Based on PMHSA's registration data files, 72 percent of the 115 firms  19 are small businesses. There may be other small firms for which we do not have information that may be affected in the future. PHMSA does not expect but a few in this category, since the industry operates in a mature market with multiple established players. However, PHMSA seeks comments on this estimate.

An analysis of the compliance costs for the proposed rule can be found in the Regulatory Impact Analysis (RIA) for Hazardous Materials: Requirements for the Safe Transportation of Bulk Explosives (RRR) [Docket No. PHMSA-2011-0345 (HM-233D)] [RIN#: 2137-AE86]. A discussion of the impacts of the proposed regulation on small businesses is included below.

IME data estimates that there are approximately 1,500 MBTs in service, and PHMSA concurs with this estimate. 20 PHMSA conservatively assumes a uniform distribution of MBTs among small and large firms, even though large firms operate a significant proportion of the MBTs in service. 21 Thus PHMSA assumes that small firms operate 1,080 MBTs (1,500 MBTs in service * 0.72 small business entities).

Costs associated with tire-pressure checks. SLP-23 contains a requirement to check tire pressure before the initial trip of the day. This would be part of a routine pre-trip inspection and should not add any costs.

Costs associated with fire extinguishers. SLP-23 requires a minimum of two fire extinguishers rated 4-A:40B:C. Approximately 25 percent of the MBTs in service would need to acquire and affix the fire extinguishers. Assuming these MBTs are distributed uniformly across all 1,500 MBTs in service, small businesses will need to acquire and affix fire extinguishers to 270 MBTs (1,080 MBTs * 0.25 MBTs in service would need to acquire and affix the fire extinguishers) at a total cost of $294,300 [($250 for the fire extinguishers + $280 labor costs + $560 vehicle downtime) * 270 MBTs]. This is expected to be a one-time cost.

Costs associated with working pressure limit. SLP-23 limits the maximum allowable working pressure of an MBT cargo tank to 35 psi. IME estimates that at most 10 percent of the MBTs would need a retrofit to meet this standard. Assuming these MBTs are distributed uniformly across all 1,500 MBTs in service, small businesses will need to retrofit 108 MBTs (1,080 MBTs * 10 percent), leading to a total cost of $324,000 ($3,000 for the retrofit * 108 MBTs). This is a one-time cost.

Costs associated with periodic tests and inspections of non-DOT specification cargo tanks. SLP-23 requires that non-DOT specification cargo tanks be inspected identical to specification tanks. This requires competence training of inspectors and physical inspections as described in Appendix B of SLP-23. IME data estimates that 25 percent of the MBTs with non-specification tanks are not in compliance with SLP-23 in this regard. Assuming these MBTs are distributed uniformly across all 1,500 MBTs in service, small businesses will need to conduct tests and inspections on 270 MBTs (1,080 MBTs * 0.25 MBTs with non-specification tanks are not in compliance with SLP-23 in this regard) at an annual cost of $945,000 ($3,500 per inspection and test * 270 MBTs). This is a recurring cost.

Costs associated with the nameplate. SLP-23 requires a nameplate be affixed to the vehicle describing its design characteristics. PHMSA assumes that all MBTs will need to affix a nameplate. For small businesses, the total cost associated with the nameplate is $135,000 ($125 per nameplate * 1,080 MBTs). This is a one-time cost.

Costs associated with accident investigations and driver training after preventable accidents. SLP-23 requires companies to provide PHMSA an incident investigation report of all MBT crashes. This report may be an internal investigation because: (1) Some companies are self-insured and (2) some insurance companies will not allow their reports to be released. An independent accident investigation of an MBT crash would be conducted only if PHMSA requests it. IME estimates that under SLP-23 this would be necessary once a year. An independent accident investigation of an MBT crash costs about $10,000. In addition three incidents per year will require driver training at the cost of $9,000 ($3,000 per training * 3 incidents). Assuming incidents over time are distributed uniformly among all firms, small businesses will have an expected annual cost of $13,680 per year [($10,000 for investigations + $9,000 for training) * 0.72 small entities].

The total one-time cost borne by small businesses associated with the NPRM requirements is $753,300. The total recurring cost borne by small businesses is expected to be $958,680 per year.

Savings from applications of special permits. Incorporating SLP-23 into the HMR will eliminate nine special permits and the costs associated with preparing and submitting applications for these special permits. Assuming the 76 special permit applications per year are distributed uniformly among small and large firms, small businesses account for approximately 55 (76 * 0.72 small entities) applications per year. Thus small businesses will save $45,375 (55 special permit applications * $825 per special permit party to or renewal application) per year.

Savings from tire pressure checks. The special permits require that tires must be checked and the pressure of each tire recorded before each departure onto or across a public road, which adds a cost of $14.8 million annually to operating requirements for the 1,500 MBTs in service, a cost not incurred by any other hazardous materials trucking operation. Under the incorporation of SLP-23 into the HMR, the mandate to check and record tire pressures before each on-road departure would no longer apply. This will represent a cost saving of $10.7 million ($14.8 million for operating requirements * 0.72 small entities) per year to small businesses.

Savings from caking remediation. The requirements relating to caking in SLP-23 will eliminate the cost of remediating caking in the bulk packaging. Assuming the 7.5 caking incidents per year are distributed uniformly among small and large firms, the requirements will lead to a cost savings of $64,800 ($12,000 to remediate caking * 7.5 caking incidents per year * 0.72 small entities) per year.

The total cost savings for small businesses associated with the NPRM are estimated at approximately $10.8 million ($45,375 savings from applications + $10.7 million savings from tire pressure checks + $64,800 savings from caking remediation) per year. The benefits far outweigh the costs. PHMSA seeks comments on the estimated costs and benefits.

PHMSA is proposing to revise the HMR by amending the regulations to establish standards for the safe transportation of bulk explosives. The NPRM has a detailed explanation of all the proposed requirements. None of the existing Federal rules duplicate, overlap, or conflict with the proposed rule.

This proposed rule has been developed in accordance with Executive Order 13272 (“Proper Consideration of Small Entities in Agency Rulemaking”) and DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act to ensure that potential impacts of draft rules on small entities are properly considered. In summary, the proposed rule provides substantial benefits to small entities as demonstrated above.

PHMSA currently has an approved information collections under Office of Management and Budget (OMB) Control Number 2137-0014, entitled “Cargo Tank Specification Requirements.” This NPRM may result in a slight increase in the annual burden and costs under OMB Control Number 2137-0014 due to proposed changes to the recordkeeping requirements following the verification and certification of the MBTs Fire Suppression System by the Design Certifying Engineer (DCE). The slight increase is due to the fact that the DCE must prepare a test report and provide the test report to the manufacturer of the vehicle, and both must keep the records for ten years. Further, the manufacturer must provide a copy of the report to the owner of the vehicle, and the owner maintains it while he/she owns the vehicle.

PHMSA currently has an approved information collection under OMB Control Number 2137-0051, entitled “Rulemaking, Special Permits, and Preemption Requirements.” This NPRM may result in a decrease in the annual burden and costs under OMB Control Number 2137-0051 due to proposed changes to incorporate SLP-23 and certain provisions contained in certain widely-used or longstanding special permits that have an established safety record.

Under the Paperwork Reduction Act of 1995, no person is required to respond to an information collection unless it has been approved by OMB and displays a valid OMB control number. Section 1320.8(d), title 5, Code of Federal Regulations requires that PHMSA provide interested members of the public and affected agencies an opportunity to comment on information and recordkeeping requests.

This notice identifies revised information collection requests that PHMSA will submit to OMB for approval based on the requirements in this proposed rule. PHMSA has developed burden estimates to reflect changes in this proposed rule and estimates that the information collection and recordkeeping burdens would be revised as follows:

OMB Control No. 2137-0014:

Net Increase in Annual Number of Respondents: 1.

Net Increase in Annual Responses: 1.

Net Increase in Annual Burden Hours: 2.

Net Increase in Annual Burden Costs: $200.

OMB Control No. 2137-0051:

Net Decrease in Annual Number of Respondents: 76.

Net Decrease in Annual Responses: 76.

Net Decrease in Annual Burden Hours: 76.

Net Decrease in Annual Burden Costs: $1,900.

PHMSA specifically requests comments on the information collection and recordkeeping burdens associated with developing, implementing, and maintaining these requirements for approval under this proposed rule.

Requests for a copy of this information collection should be directed to Steven Andrews or T. Glenn Foster, Office of Hazardous Materials Standards (PHH-12), Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, Telephone (202) 366-8553.

Address written comments to the Dockets Unit as identified in the ADDRESSES section of this rulemaking. We must receive comments regarding information collection burdens prior to the close of the comment period identified in the DATES section of this rulemaking. In addition, you may submit comments specifically related to the information collection burden to the PHMSA Desk Officer, Office of Management and Budget, at fax number (202) 395-6974.

A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document may be used to cross-reference this action with the Unified Agenda.

This proposed rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $141.3 million or more to either state, local or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the rule.

The National Environmental Policy Act, 42 U.S.C. 4321-4375, requires that federal agencies consider the consequences of major Federal actions and prepare a detailed statement on actions significantly affecting the quality of the human environment. The Council on Environmental Quality (CEQ) regulations require federal agencies to conduct an environmental review considering: (1) The need for the action; (2) alternatives to the action; (3) probable environmental impacts of the action and alternatives; and (4) the agencies and persons consulted during the consideration process (40 CFR 1508.9(b)).

PHMSA is proposing to amend the HMR by establishing standards for the safe transportation of bulk explosives. This rulemaking specifically focuses on reviewing the Institute of Makers of Explosives (IME) Safety Library Publication (SLP) 23 (SLP-23: Recommendations for the Transportation of Explosives, Division 1.5, Ammonium Nitrate Emulsions, Division 5.1, Combustible Liquids, Class 3, and Corrosives, Class 8 in Bulk Packagings) and nine special permits related to multipurpose bulk trucks (MBTs) used to transport various explosives, oxidizers, flammable liquids, and corrosive liquids on the same transport vehicle. The objective of this rulemaking is to develop a set of standards related to the safe transportation of these materials in MBTs that will no longer require a special permit because the standard will be in the HMR.

Through this notice of proposed rulemaking (NPRM) PHMSA is proposing to incorporate SLP-23 and establish requirements of general applicability governing the transportation of bulk explosive materials. In addition, PHMSA is proposing requirements for new construction and MBTs undergoing modifications, including fire suppression systems, emergency shut-off/battery disconnect, and compliance with Federal Motor Vehicle Safety Standard (FMVSS).

This rulemaking is responsive to two petitions for rulemaking submitted by industry representatives, P-1557 concerning the elimination of the need to operate under special permits by incorporating them into the HMR, and P-1583 concerning the incorporation of an industry standard publication. Further, developing these requirements would provide wider access to the regulatory flexibility currently only offered by special permit and competent authorities.

This rulemaking specifically focuses on reviewing IME SLP-23 (SLP-23: Recommendations for the Transportation of Explosives, Division 1.5, Ammonium Nitrate Emulsions, Division 5.1, Combustible Liquids, Class 3, and Corrosives, Class 8 in Bulk Packagings) and nine special permits related to MBTs used to transport various explosives, oxidizers, flammable liquids, and corrosive liquids on the same transport vehicle. The objective of this rulemaking is to develop a set of standards related to the safe transportation of these materials in MBTs that will no longer require the need to apply for a special permit as the standard will be in the HMR.

This NPRM is published under the authority of 49 U.S.C. 5103(b), which authorizes the Secretary to prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce. 49 U.S.C. 5117(a) authorizes the Secretary of Transportation to issue a special permit from a regulation prescribed in 5103(b), 5104, 5110, or 5112 of the Federal Hazardous Materials Transportation Law to a person transporting, or causing to be transported, hazardous material in a way that achieves a safety level at least equal to the safety level required under the law, or consistent with the public interest, if a required safety level does not exist. If adopted, the final rule would amend the regulations by incorporating provisions from certain widely used and longstanding special permits that have established a history of safety and that may, therefore, be converted into the regulations for general use.

PHMSA proposes to amend the HMR to establish standards for the safe transportation of bulk explosives. Developing such provisions of the HMR is intended to provide wider access to the regulatory flexibility that currently only is offered by way of obtaining a special permit. For example, the adoption of a regulatory standard in the HMR would eliminate the need for persons who hold a special permit to apply for renewal in the future.

In this NPRM, PHMSA is proposing to revise the HMR by amending the regulations to establish standards for the safe transportation of bulk explosives. The following is a description of the action and the need for the action.

Action: PHMSA proposes to incorporate SLP-23 and establish requirements of general applicability governing the transportation of bulk explosive materials. As such, PHMSA proposes to revise the 49 CFR 171.7 table of material incorporated by reference to include SLP-23, and establish a new section for the bulk explosives requirements.

Need: PHMSA has concluded that the incorporation of SLP-23 into the HMR will provide wider access to the regulatory flexibility currently only offered by special permit and competent authorities. PHMSA believes this will benefit the government and the industry, as it will eliminate the need for firms to apply individually to transport certain classes of bulk materials in MBTs, provide regulatory flexibility and relief while maintaining an high level of safety, promote safer transportation practices, facilitate commerce, reduce paperwork burdens, and eliminate unnecessary regulatory requirements.

Action: All new construction and modified MBTs must include a Fire Suppression System conforming to the following specifications. The Fire Suppression System must be an engineered system connected to the engine and transmission compartments. The system shall be activated by manual switch or passive means in the event of a fire. All fire extinguishers used as components of the system must meet the requirements of 49 CFR 393.95(a) and the applicable National Fire Protection Association (NFPA) codes and standards. The Fire Suppression System's design must be verified and certified by the Design Certifying Engineer (DCE) of the vehicle. The design must be tested through engineering analysis or physical testing to verify the initial design or future modification(s) to the current fire suppression system. The Fire Suppression System must be visually inspected annually for defects, flaws, damage, etc., and ensure none are present. The system must be pneumatically tested every five years to ensure the system is free of debris, leaks, and damage, and to ensure the system will function properly.

Need: This specifies that all new construction and modified MBTs must conform to the requirements in the HMR and SLP-23 with respect to the Fire Suppression System. This proposed action also provides specific details as to the functionality, design, certification, and inspection of the Fire Suppression System.

Action: All new construction and modified MBTs must include an Emergency Shut-Off/Battery Disconnect system conforming to the following specifications. The batteries for the chassis must be equipped with three easily accessible manual disconnect switches. One manual disconnect switch must be located inside the driver's cab and does not include the ignition. The remaining two manual disconnect switches must be located on each side of the vehicle. All three switches must be connected to the positive battery terminal and the line of the switch must be protected from rubbing and abrasion that could cause a short circuit. The battery disconnect must isolate all manufacturing equipment except critical instrumentation which requires the maintenance of the electrical supply. The battery disconnect shall be tested monthly to ensure proper operation.

Need: This specifies that all new construction and modified MBTs must conform to the requirements in the HMR and SLP-23 with respect to Emergency Shut-Off and Battery Disconnect systems. This proposed action also provides specific details as to the functionality, design, and testing of the Emergency Shut-Off/Battery Disconnect system.

Action: New or modified multipurpose bulk trucks constructed after the effective date of the Final Rule must be in compliance with the FMVSS found in 49 CFR part 571, as applicable. Furthermore, the multipurpose bulk truck manufacturer must maintain a certification record ensuring the final manufacturing is in compliance with the FMVSS, per the certification requirements found in 49 CFR part 567. These certification records must be made available to DOT representatives upon request.

Need: This specifies that all new construction and modified MBTs must conform to the FMVSS requirements.

This rulemaking is responsive to two petitions for rulemaking submitted by industry representatives, P-1557 concerning the elimination of the need to operate under special permits by incorporating them into the HMR, and P-1583 concerning the incorporation of an industry standard publication. Developing these requirements would provide wider access to the regulatory flexibility currently only offered by special permit and competent authorities.

PHMSA is actively seeking public comment on this NPRM.

This proposed rule proposes to incorporate elements of nine special permits that authorize multipurpose bulk truck operations not specifically permitted under the HMR. The proposed amendments will eventually eliminate the need for current grantees to reapply for renewal of special permits every four years and for PHMSA to process those renewal applications. It will also allow other operators to transport bulk explosives without a special permit, provided that the operators conform to the requirements of this rule, including those explicitly stated in SLP-23.

This would not be the preferred alternative. Under this option, PHMSA would continue existing requirements for Special Permits to transport bulk explosives by taking no action. However, PHMSA believes that there are considerable benefits (both environmental and economic) to taking action provided that a high level of safety is maintained. If no action is taken there will be no beneficial or adverse environmental effects compared to the status quo. Finally, this alternative would not impose any costs, but it would prevent the opportunity to realize any efficiency benefits.

This would not be the preferred alternative. Under this option, PHMSA will defer to voluntary standards developed through organizations or trade associations. PHMSA will likely participate in standard-setting to develop standards that meet safety criteria that are in the interest of the United States. While compliance with voluntary standards is thought to be high by industry participants, firms do not have to comply with them, since they are voluntary. This creates some concern since the non-adoption may mean that those firms may not comply with minimum safety standards. A review of this alternative leads to a possibility that important environmental safety measures would not be implemented as completely as they would under proposed alternative (5). For example, the provisions: (1) Any non-DOT specification cargo tanks, portable tanks, sift-proof closed vehicles and closed bulk bins must be qualified, inspected, and maintained essentially the same as a DOT-specification bulk container (as set out in Appendix B of SLP-23); and (2) inspectors conducting inspections of non-DOT non-specification tanks must meet training qualifications outlined in Appendix B, would not be implemented if this alternative (#2: PHMSA Defers to Voluntary Standards) was selected. While there may be certain beneficial environmental effects with this alternative, there are certainly drawbacks too. Furthermore, this alternative does not ensure the level of safety that alternative (5) would because firms may not comply with a voluntary standard.

This would not be the preferred alternative. Under this option, PHMSA would incorporate seven of the nine special permits into the HMR. These seven special permits have very good safety records. By incorporating these special permits, PHMSA would need to work through the Federal rulemaking process to modify the HMR in response to technological enhancements and other matters relating to the transportation of the bulk explosives covered under the seven special permits. It may be more advantageous to incorporate standards developed by industry than for PHMSA to develop its own standards and incorporate them into the HMR. There may be beneficial environmental effects with this alternative, but not to the extent of the proposed action proposed in the NPRM because this alternative is not as comprehensive.

This would not be the preferred alternative. Under this option, PHMSA would adopt other national or international standards, such as those used by Canada, Australia, or the United Nations. These other standards do not conform well to existing U.S. law and to the nine special permits. For example, the U.S. Bridge Law (USBL) provides known standards for bridge construction, by, among other requirements, placing restrictions on the overall size of MBTs in service in the United States. Other standards do not conform to the USBL. Also, these standards are implemented in ways that may not be possible within the regulatory framework in the United States. This alternative will not have beneficial environmental effects beyond the status quo.

This option is the preferred alternative, because it would provide regulatory flexibility without imposing burdensome costs. SLP-23 recommends standards for MBT straight trucks that typically transport multiple hazardous materials in support of blasting operations and articulated cargo tanks that carry a single bulk blasting agent or oxidizer. Under this option, PHMSA would incorporate SLP-23 into the HMR with additional features. This rulemaking specifically proposes to adopt a combination of features, including incorporating by reference (IBR) the Institute of Makers of Explosives' (IME) Safety Library Publication No. 23 “Recommendations for the Transportation of Explosives, Division 1.5, Ammonium Nitrate Emulsions, Division 5.1, Combustible Liquids, Class 3 and Corrosives, Class 8 in Bulk Packaging” (referred to as SLP-23), requiring fire suppression systems in heat-containing compartments (e.g., engine, transmission) and emergency shut-off/battery disconnect of newly constructed or modified MBTs, and complying with certain National Highway Traffic Safety Administration (NHTSA) requirements. The proposed requirements are more comprehensive and have stricter standards than the nine special permits, and may eliminate some duplicative functions covered by other industry standards. While SLP-23 may need to be re-evaluated and changed to keep pace with technological enhancements and other matters, IME will perform this and publish the revised standards free of charge. SLP-23 was developed with input of IME members, stakeholders, and PHMSA. In addition to incorporating SLP-23, PHMSA would require fire suppressions systems to the vehicles similar to the designs authorized under the Canadian requirements. The fire suppression requirements would strengthen the performance standards, and further accomplish PHMSA's objective of enhancing safety. There are beneficial effects with the proposed action that are superior to those achieved by the other alternatives, and these environmental benefits (direct, indirect, and cumulative) are discussed below.

Routes used to transport bulk explosives traverse a variety of environments—from highly populated urban sites to remote, unpopulated rural areas. PHMSA manages the transportation of specific hazardous materials, including bulk explosives, with special permits that must achieve a level of safety at least equal to the level of safety achieved when transported under the HMR.

The physical environment potentially affected by the proposed rule includes the airspace, water resources (e.g., oceans, streams, lakes), cultural and historical resources (e.g., properties listed on the National Register of Historic Places), biological and ecological resources (e.g., coastal zones, wetlands, plant and animal species and their habitat, forests, grasslands, offshore marine ecosystems), and special ecological resources (e.g., threatened and endangered plant and animal species and their habitat, national and state parklands, biological reserves, Wild and Scenic Rivers) that exist directly adjacent to and within the vicinity of roads and routes used in the transportation of bulk explosives.

The proposed rule incorporates SLP-23 into the HMR and eliminates nine special permits. SLP-23 is more comprehensive and has stricter standards than the nine special permits, and it may eliminate some duplicative functions covered by other industry standards.

Direct Effects: The proposed rule will not increase and may decrease the frequency or severity of motor carrier incidents involving bulk explosives, as SLP-23 is more comprehensive and has stricter standards than the existing special permits. PHMSA assessment suggests that there are no adverse significant environmental impacts associated with the proposed rule.

Indirect Effects: The proposed rule will not increase and may decrease the frequency or severity of motor carrier incidents involving bulk explosive, and thus will not have an adverse indirect effect on the environment. PHMSA assessment suggests that there are no adverse significant environmental impacts associated with the proposed rule.

Cumulative Effects: The proposed rule will not increase and may decrease the frequency or severity of motor carrier incidents involving bulk explosives, as SLP-23 is more comprehensive and has stricter standards than the existing special permits. PHMSA assessment suggests that there are no adverse significant environmental impacts associated with the proposed rule.

In considering the potential environmental impacts of the proposed action, PHMSA does not anticipate that permitting the new alternative would result in any significant impact on the human environment because the process through which special permits for bulk explosives are developed and certified has historically demonstrated an equivalent level of safety of the HMR.

Given that this rulemaking proposes to amend the HMR to permit an alternative with equivalent and established safety records, these proposed changes in regulation have the potential to increase safety and environmental protections. However, PHMSA welcomes and will consider and address comments about foreseeable environmental impacts or risk that commenters believe PHMSA might have overlooked in this NPRM. As such, PHMSA solicits comments about potential environmental impacts associated with this rulemaking from other agencies, stakeholders, and citizens.

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 comments (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) which may be viewed at: http://www.gpo.gov/fdsys/pkg/FR-2000-04-11/pdf/00-8505.pdf .

Under E.O. 13609, agencies must consider whether the impacts associated with significant variations between domestic and international regulatory approaches are unnecessary or may impair the ability of American business to export and compete internationally. In meeting shared challenges involving health, safety, labor, security, environmental, and other issues, international regulatory cooperation can identify approaches that are at least as protective as those that are or would be adopted in the absence of such cooperation. International regulatory cooperation can also reduce, eliminate, or prevent unnecessary differences in regulatory requirements.

Similarly, the Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. For purposes of these requirements, Federal agencies may participate in the establishment of international standards, so long as the standards have a legitimate domestic objective, such as providing for safety, and do not operate to exclude imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.

PHMSA participates in the establishment of international standards in order to protect the safety of the American public, and we have assessed the effects of the proposed rule to ensure that it does not cause unnecessary obstacles to foreign trade. Accordingly, this rulemaking is consistent with E.O. 13609 and PHMSA's obligations under the Trade Agreement Act, as amended.

The National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) directs federal agencies to use voluntary consensus standards in their regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g. specification of materials, test methods, or performance requirements) that are developed or adopted by voluntary consensus standard bodies.

This proposed rulemaking involves one technical standard: IME Safety Library Publication No. 23 (SLP-23), Recommendations for the Transportation of Explosives Division 1.5, Ammonium Nitrate Emulsions Division 5.1, Combustible Liquids Class 3, and Corrosives Class 8 in Bulk Packagings, October 2011 version. This consensus technical standard is proposed to be listed in 49 CFR 171.7.

In consideration of the foregoing, PHMSA is proposing to amend 49 CFR Chapter I as follows:

Public Comments

We will accept written comments and information during this reopened comment period on our proposed designation of critical habitat for Brickellia mosieri and Linum carteri var. carteri that was published in the Federal Register on October 3, 2013 (78 FR 61293), the revisions to the proposal described in this document, our DEA of the proposed designation, and the amended required determinations provided in this document. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning:

(1) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act (16 U.S.C. 1531 et seq. ), including whether there are threats to Brickellia mosieri or Linum carteri var. carteri from human activity, the degree of which can be expected to increase due to the designation, and whether that increase in threat outweighs the benefit of designation such that the designation of critical habitat is not prudent.

(2) Specific information on:

(a) The amount and distribution of Brickellia mosieri and Linum carteri var. carteri and their habitats;

(b) What may constitute “physical or biological features essential to the conservation of the species,” within the geographical range currently occupied by these plants;

(c) Where these features are currently found;

(d) Whether any of these features may require special management considerations or protection;

(e) What areas, that were occupied at the time of listing (or are currently occupied) and that contain features essential to the conservation of these plants, should be included in the designation and why; and

(f) What areas not occupied at the time of listing are essential for the conservation of these plants and why.

(3) Land use designations and current or planned activities in the areas occupied by Brickellia mosieri or Linum carteri var. carteri or proposed to be designated as critical habitat, and possible impacts of these activities on these plants and proposed critical habitat.

(4) Information on the projected and reasonably likely impacts of climate change on Brickellia mosieri and Linum carteri var. carteri and proposed critical habitat.

(5) Any probable economic, national security, or other relevant impacts that may result from designating any area that may be included in the final designation. We are particularly interested in any impacts on small entities, and the benefits of including or excluding areas from the proposed designation that are subject to these impacts.

(6) Information on the extent to which the description of economic impacts in the draft economic analysis is a reasonable estimate of the likely economic impacts.

(7) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act.

(8) Information specific to the management of pine rocklands under Miami-Dade County's Environmentally Endangered Lands Covenant Program that might allow us to evaluate potential exclusions.

(9) Whether our approach to designating critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments.

If you submitted comments or information on the proposed rule (78 FR 61293) during the initial comment period from October 3, 2013, to December 2, 2013, please do not resubmit them. We will incorporate them into the public record as part of this comment period, and we will fully consider them in the preparation of our final determination. Our final determination concerning critical habitat will take into consideration all written comments and any additional information we receive during both comment periods. On the basis of public comments, we may, during the development of our final determination, find that areas proposed are not essential, are appropriate for exclusion under section 4(b)(2) of the Act, or are not appropriate for exclusion.

You may submit your comments and materials concerning the proposed rule, the revisions to the proposal described in this document, or the DEA by one of the methods listed in the ADDRESSES section. We request that you send comments only by the methods described in the ADDRESSES section.

If you submit a comment via http://www.regulations.gov, your entire comment—including any personal identifying information—will be posted on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so.

Comments and materials we receive, as well as supporting documentation we used in preparing the proposed rule, this document, and the DEA, will be available for public inspection on http://www.regulations.gov at Docket No. FWS-R4-ES-2013-0108, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, South Florida Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ). You may obtain copies of the proposed rule, this document, and the DEA on the Internet at http://www.regulations.gov at Docket No. FWS-R4-ES-2013-0108, or by mail from the South Florida Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

It is our intent to discuss only those topics directly relevant to the designation of critical habitat for Brickellia mosieri and Linum carteri var. carteri in this document. On October 3, 2013, we published both a proposed rule to list B. mosieri and L. c. var. carteri as endangered (78 FR 61273) and a proposed rule to designate critical habitat for both plants (78 FR 61293).

In the proposed critical habitat rule, we proposed to designate a combined total of approximately 2,707 acres (ac) (1,096 hectares (ha)) in seven units located in Miami-Dade County, Florida, as critical habitat. That proposal had a 60-day comment period, ending December 2, 2013. We intend to submit for publication in the Federal Register a final critical habitat designation for Brickellia mosieri and Linum carteri var. carteri on or before October 3, 2014.

For more information on previous Federal actions concerning B. mosieri and L. c. var. carteri, refer to the proposed rules, which are available online at http://www.regulations.gov or from the South Florida Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

Section 3 of the Act defines critical habitat as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting critical habitat must consult with us on the effects of their proposed actions, under section 7(a)(2) of the Act.

In the proposed critical habitat rule (78 FR 61293), we proposed seven units (Units 1-7) as critical habitat for both Brickellia mosieri and Linum carteri var. carteri. In the final rule, we intend to change unit names to be specific to each plant; for example, Unit 1 would be Unit BM1 for B. mosieri and Unit LCC1 for L. c. var. carteri. Additionally, the large overall unit boundaries described in the original proposed rule encompass multiple, smaller designations within each unit; in the final rule, we would add subunit names that identify individual patches, or multiple patches having the same occupancy status that are only separated by a road. These changes would provide more detail to help clarify locations and needs for each plant within the larger unit areas. The unit naming conventions we intend to adopt in the final rule are summarized in Table 1.

Finally, as a result of coordination meetings and our initial public comment period, we received new information concerning the current habitat condition of proposed areas, as well as information regarding additional areas of suitable habitat that were not included in the proposed designation but that meet the definition of critical habitat. Based on this new information, we are proposing to substantively revise the critical habitat designation as follows:

We propose to remove State-owned Navy Wells #23 from Unit 7 of the proposed critical habitat designation for Brickellia mosieri. This area is unoccupied, and is composed of State-owned and neighboring private land (totaling approximately 45.0 ac (18.2 ha)). We propose this change based on new information regarding the current condition of these lands. Recent observations indicate that Navy Wells #23 has a dense understory of hammock trees and shrubs, and that the neighboring private land is not native habitat (i.e., it is an exotic-dominated, disturbed area). Based on this new information, we have determined that the area is no longer essential to the conservation of the species.

We propose to revise the boundaries of three previously proposed, unoccupied areas: Camp Matecumbe (in Unit 2 for both plants), Tamiami Pineland Complex Addition (in Unit 2 for Linum carteri var. carteri ), and U.S. Coast Guard (USCG) lands (in Unit 4 for both plants), as a result of information we received from partners and other Federal agencies. These revisions reflect the best scientific information on current site conditions within individual units. Because the following changes are fairly small and are not likely to be discernable at the scale of the published critical habitat maps, we instead describe these proposed revisions by text as follows:

• Addition of two small, suitable, unoccupied pine rockland areas, totaling approximately 2.7 ac (1.1 ha) and managed by Miami-Dade County, located adjacent to the east boundary of Camp Matecumbe, to the critical habitat designation for both Brickellia mosieri and Linum carteri var. carteri. Based on onsite observations, these two areas consist of suitable habitat for both plants as well as functioning as buffers to the previously proposed, adjacent habitat within Camp Matecumbe, and are considered essential to the conservation of both plants. Their inclusion in the unit is also consistent with the habitat delineation methodology used for proposed critical habitat, as well as with our approach to supplemental areas (i.e., where the addition of the habitat increases conservation quality of adjacent proposed critical habitat).

• Inclusion of suitable unoccupied habitat for Linum carteri var. carteri within a utility corridor, totaling approximately 11.2 ac (4.5 ha) and owned by Florida Power and Light, located adjacent to the north boundary of Tamiami Pineland Complex, in the critical habitat designation for L. c. var. carteri. Based on onsite observations, this area is suitable habitat for L. c. var. carteri, and is considered essential to the conservation of the plant. Its inclusion in the unit is also consistent with the habitat delineation methodology used for proposed critical habitat, which includes cleared areas occurring over pine rockland soils.

• Revision of unoccupied critical habitat on USCG land for both Brickellia mosieri and Linum carteri var. carteri to remove a recreational area from the critical habitat polygon (approximately 7.0 ac (2.8 ha)). This revision is based on our recent coordination with the USCG, during which we learned that the subject area was an existing park with high use, including military training, sporting events, and camping throughout the area. Based on this new information, we believe the removed area is unlikely to serve as suitable habitat for either plant, and we have determined that it is no longer essential to the conservation of either plant. This revision is also consistent with the habitat delineation methodology used for proposed critical habitat, which avoids delineating areas with existing high human use (such as parks).

We also propose to add three small, unoccupied areas as a result of new information received since the publication of the proposed rule. These areas are adjacent to or near previously proposed areas. Revised maps, set forth in the Proposed Regulation Promulgation section of this document, indicate these additional areas, as well as areas already proposed in only those relevant units; the revised maps of those units use the naming conventions we intend to adopt in the final rule (described above under Changes from Previously Proposed Critical Habitat) for all of the critical habitat units. A description of the three areas follows:

• Addition of suitable, unoccupied pine rocklands within Bill Sadowski Park, totaling approximately 19.5 ac (7.9 ha) and owned and managed by Miami-Dade County, to the critical habitat designation for both Brickellia mosieri and Linum carteri var. carteri. Bill Sadowski Park is shown on the revised maps for Units BM3 and LCC3, as subunits BM3H and LCC3I, respectively. Onsite observations indicate that the habitat quality of these pine rocklands is higher than previously assessed (using aerial imagery) in our analysis for the proposed critical habitat rule. Based on this new information, we have determined that the habitat is essential to the conservation of both plants.

• Addition of suitable unoccupied pine rockland within Eachus Pineland, totaling approximately 17.3 ac (7.0 ha) and owned and managed by Miami-Dade County, to the critical habitat designation for both Brickellia mosieri and Linum carteri var. carteri. Eachus Pineland is shown on the revised maps for Units BM4 and LCC4, as subunits BM4H and LCC4D, respectively. Onsite observations indicate that the habitat quality of this pine rockland is higher than previously assessed (using aerial imagery) in our analysis for the proposed critical habitat rule. Based on this new information, we have determined that the habitat is essential to the conservation of both plants.

• Addition of up to three unoccupied areas on Department of Defense lands (Homestead Air Reserve Base and U.S. Special Operations Command South) was also suggested during the initial comment period. Onsite observations indicate that these areas consist of suitable pine rockland habitat for both plants. One of these areas (approximately 12.9 ac (5.2 ha)) meets the criteria used in our methodology for designating proposed unoccupied critical habitat for Brickellia mosieri, and is considered essential to the conservation of the species. This area is shown on the revised map for Unit BM6, as subunit BM6M. All three areas (totaling approximately 17.3 ac (7.0 ha)) meet the criteria used in our methodology for designating proposed unoccupied critical habitat for Linum carteri var. carteri, and are considered essential to the conservation of the plant. These areas are shown on the revised map for Unit LCC6, as subunits LCC6V and LCC6W. However, all three areas may be subject to an integrated natural resources management plan (INRMP), as described in the October 3, 2013, proposed rule. We are currently reviewing relevant INRMPs and want to notify the public that these areas may be exempted from the final rule under section 4(a)(3) of the Act.

As a result of the deletions and revisions described above, we are now proposing approximately 1,067 ha (2,637 ac) of critical habitat for Brickellia mosieri, and 1,079 ha (2,666 ac) for Linum carteri var. carteri.

Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. We may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species.