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Foreign-Trade Zones Board
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National Institutes of Health
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Coast Guard
Land Management Bureau
National Park Service
Federal Aviation Administration
Federal Motor Carrier Safety Administration
National Highway Traffic Safety Administration
Pipeline and Hazardous Materials Safety Administration
Surface Transportation Board
Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
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Office on Violence Against Women, Justice.
Final rule.
This rule amends the regulations for the Grants to Encourage Arrest Policies and Enforcement of Protection Orders Program (Arrest Program) to incorporate statutory changes, make minor technical corrections, and streamline existing regulations to reduce repetition of statutory language. This rule also amends the regulations to clarify that existing regulations on grant-related procedures continue to apply to grants made by the Office on Violence Against Women.
This rule is effective March 9, 2015.
Marnie Shiels, Office on Violence Against Women, 145 N Street NE., Suite 10W.121, Washington, DC 20530, by telephone (202) 307-6026 or by email at
In 1994, Congress passed the Violence Against Women Act (VAWA), a comprehensive legislative package aimed at ending violence against women. VAWA was enacted on September 13, 1994, as title IV of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, 108 Stat. 1796. VAWA was designed to improve criminal justice system responses to domestic violence, sexual assault, and stalking, and to increase the availability of services for victims of these crimes. VAWA recognized the need for specialized responses to violence against women given the unique barriers that impede victims from accessing assistance from the justice system. To help communities develop these specialized responses, VAWA authorized several grant programs, including the Grants to Encourage Arrest Policies Program (Arrest Program). The Arrest Program is codified at 42 U.S.C. 3796hh through 3796hh-4. The final rule for the Arrest Program, found at 28 CFR part 90, subpart D, was promulgated on August 6, 1996.
On October 28, 2000, Congress enacted the Violence Against Women Act of 2000 (VAWA 2000), Division B of the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-386, 114 Stat. 1464. On January 5, 2006, Congress enacted the Violence Against Women and Department of Justice Reauthorization Act (VAWA 2005), Pub. L. 109-162, 119 Stat. 2960. On March 7, 2013, Congress enacted the Violence Against Women Reauthorization Act of 2013 (VAWA 2013), Pub. L. 113-4, 127 Stat. 54. These reauthorizations all enhanced the Arrest Program in different ways.
The Arrest Program is designed to encourage State, local, and tribal governments and State, local, and tribal courts to treat domestic violence, dating violence, sexual assault, and stalking as serious violations of criminal law. The Arrest Program recognizes that sexual assault, domestic violence, dating violence, and stalking are crimes that require the criminal justice system to hold offenders accountable for their actions through investigation, arrest, and prosecution of violent offenders, and through close judicial scrutiny and management of offender behavior. The Arrest Program challenges the community to listen, communicate, identify problems, and share ideas that will result in new responses to ensure victim safety and offender accountability.
VAWA 2000 made several changes to the Arrest Program including prioritizing enforcement of protection orders, recognizing the roles of courts, probation, and parole, and addressing the specific needs of older victims and victims with disabilities. VAWA 2005 made additional changes including expanding the program to address sexual assault, adding new purpose areas, and adding new certification requirements relating to HIV testing of sex offenders and prohibiting polygraphing of sexual assault victims. VAWA 2013 added several sexual assault-specific purpose areas, a set aside of funds of 25% for projects that address sexual assault, and improved the certification and eligibility requirements.
This amends the regulations for the Arrest Program to comply with statutory changes and reduce repetition of statutory language.
In addition, the Violence Against Women Office Act, title IV of the 21st Century Department of Justice Appropriations Authorization Act, Pub. L. 107-273, codified at 42 U.S.C. 3796gg-0
The Office on Violence Against Women published the Notice of Proposed Rulemaking in the
This regulation has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review” section 1(b), Principles of Regulation, and in accordance with Executive Order 13563 “Improving Regulation and Regulatory Review” section 1(b), General Principles of Regulation.
The Department of Justice has determined that this rule is not a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and accordingly this rule has not been reviewed by the Office of Management and Budget. This rule relates to matters of agency practice and procedure and amends the applicable regulations to conform to statutory changes.
This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant preparation of a Federalism Assessment.
The Office on Violence Against Women, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact upon a substantial number of small entities for the following reason: the economic impact is limited to the Office on Violence Against Women's appropriated funds.
This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector of $100,000,000 or more in any one year, and it will not uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in cost or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete in domestic and export markets.
Judicial administration, Reporting and recordkeeping requirements, Whistleblowing.
Grant programs—law, Judicial administration, Reporting and recordkeeping requirements, Women.
For the reason set forth in the preamble, the Office on Violence Against Women amends 28 CFR parts 0 and 90 as follows:
5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.
(c) Departmental regulations set forth in part 18 of this title, shall apply with equal force and effect to grant programs administered by the Office on Violence Against Women, with references to the Office of Justice Programs and its components in such regulations deemed to refer to the Office on Violence Against Women, as appropriate.
42 U.S.C. 3711-3796gg-7; Sec. 826, Part E, Title VIII, Pub. L. 105-244, 112 Stat. 1581, 1815.
The eligibility criteria, purpose areas, application requirements, and statutory priorities for this program are established by 42 U.S.C. 3796hh
(a)
(b)
(1) Police departments;
(2) Pre-trial service agencies;
(3) District or city attorneys' offices;
(4) Sheriffs' departments;
(5) Probation and parole departments;
(6) Shelters;
(7) Nonprofit, nongovernmental victim service providers; and
(8) Universities.
(a) Purpose areas for the program are provided by 42 U.S.C. 3796hh(b).
(b) Grants awarded for these purposes must demonstrate meaningful attention to victim safety and offender accountability.
(a)
(b)
(2)
(3)
(4)
(c)
(i) Address a demonstrated need in their communities by providing services that promote the dignity and self-sufficiency of victims, improve their access to resources, and create options for victims seeking safety from perpetrator violence; and
(ii) Do not engage in or promote activities that compromise victim safety.
(2)
(a)
(b)
(2) In the event that a unit of local government does not have authority to prosecute “crime[s] in which by force or threat of force the perpetrator compels the victim to engage in sexual activity[,]” the unit of local government may submit a letter from an appropriate legal authority in the jurisdiction certifying that the jurisdiction does not have the authority to prosecute “crime[s] in which by force or threat of force the perpetrator compels the victim to engage in sexual activity” and that therefore the certification is not relevant to the unit of local government in question.
(a)
(b)
(a) Recipients of Arrest Program funds must agree to cooperate with federally-sponsored research and evaluation studies of their projects at the direction of the Office on Violence Against Women.
(b) Grant funds may not be used for purposes of conducting research or evaluations. Recipients of Arrest Program funds are, however, strongly encouraged to develop a local evaluation strategy to assess the impact and effectiveness of their projects. Applicants should consider entering into partnerships with research organizations that are submitting simultaneous grant applications to the National Institute of Justice or other research funding sources for this purpose.
The provisions of 42 U.S.C. 3796
Federal Communications Commission.
Final rule; correction.
The Commission published in the
This rule corrects an amendment that contains new or modified information collection requirements that will not be effective until approved by the Office of Management and Budget. The Federal Communications Commission will publish a document in the
Claude Aiken, Wireline Competition Bureau, Competition Policy Division, (202) 418-1580, or send an email to
The Commission published a document in the
In Final rule FR Doc. 2014-28936 published on December 10, 2014, (79 FR 73237), make the following correction. On page 73237, in the second column, revise amendatory instruction 2 regarding § 64.2101, and remove the “(f)” before the definition of “Long-distance voice service.”
The revision reads as follows:
Federal Communications Commission.
Federal Aviation Administration (FAA), DOT.
Supplemental notice of proposed rulemaking (NPRM); reopening of comment period.
We are revising an earlier proposed airworthiness directive (AD) for certain Airmotive Engineering Corp. (AEC) replacement parts manufacturer approval (PMA) cylinder assemblies marketed by Engine Components International Division (ECi). These cylinder assemblies are used on all Continental Motors, Inc. (CMI) model 520 and 550 reciprocating engines, and on all other CMI engine models approved for the use of model 520 and 550 cylinder assemblies, such as the CMI model 470 when modified by supplemental type certificate (STC). The NPRM proposed to require initial and repetitive inspections, replacement of cracked cylinder assemblies, and replacement of cylinder assemblies at reduced times-in-service. The NPRM also proposed to prohibit the installation of affected cylinder assemblies into any engine. The NPRM was prompted by reports of multiple cylinder head-to-barrel separations and cracked and leaking aluminum cylinder heads. This supplemental NPRM (SNPRM) modifies the schedule for removal of the affected cylinder assemblies, adds that overhauled affected cylinder assemblies be removed within 80 hours, eliminates a reporting requirement, and removes the requirement for initial and repetitive inspections. We are proposing this SNPRM to prevent failure of the cylinder assemblies, which could lead to failure of the engine, in-flight shutdown, and loss of control of the airplane. We are reopening the comment period to allow the public the chance to comment on the proposed changes to the NPRM.
We must receive comments on this SNPRM by February 23, 2015.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Engine Components International Division, 9503 Middlex Drive, San Antonio, TX 78217; phone: 210-820-8101; Internet:
You may examine the AD docket on the Internet at
Jurgen E. Priester, Aerospace Engineer, Special Certification Office, FAA, Rotorcraft Directorate, 2601 Meacham Blvd., Fort Worth, TX 76137; phone: 817-222-5190; fax: 817-222-5785; email:
We invite your review of the commenter list provided in Docket No. FAA-2012-0002. If you submitted a comment to an organization and do not see the name of the organization in the commenter list, please submit your comment directly to us as provided for in this SNPRM. If you submitted as an individual, you will not be listed as a commenter.
We also invite you to review our responses to comments, and to resubmit your comment if you conclude that your comment was not responded to below.
We also invite you to send any written relevant data, views, or arguments about this SNPRM. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We issued an NPRM to amend 14 CFR part 39 by adding an AD that would apply to certain AEC replacement PMA cylinder assemblies marketed by ECi. These assemblies are used on CMI model 520 and 550 reciprocating engines, and all other CMI engine models approved for the use of models 520 and 550 cylinder assemblies such as the CMI model 470 when modified by STC. The NPRM published in the
Since the NPRM published on August 12, 2013 (78 FR 48828), we received numerous comments on the proposed rule. We reviewed those comments and considered their impact to safety. Some of those comments included additional failure information that we subsequently incorporated in our updated risk analysis.
Following our comment review, we determined that we needed to review how we proposed to address the unsafe condition. So, we formed a multi-directorate/multi-disciplinary team to review the technical basis of the proposed rule, as well as the numerous public comments, and the additional failure information provided by commenters, to the NPRM. This team confirmed that the subject cylinder assemblies are unsafe.
The team's review of the new data provided by commenters supports a lengthier compliance interval. This team therefore recommended several changes to the NPRM, which resulted in this SNPRM.
We gave the public the opportunity to comment on the NPRM (78 FR 48828, August 12, 2013). The following presents the comments received on the NPRM and the FAA's response to each comment.
Many operators, maintenance organizations, and private citizens asked that we withdraw the NPRM (78 FR 48828, August 12, 2013). The commenters claimed that the affected ECi cylinder assemblies have an equivalent, or lower, failure rate than that of cylinder assemblies manufactured by the original equipment manufacturer (OEM). We concluded that these commenters were requesting that we withdraw the NPRM because they believe that the ECi cylinder assemblies are not unsafe.
We disagree. The rate of separation for the affected ECi cylinder assemblies is at least 32 times greater than that of OEM cylinder assemblies over the same period. Although there are approximately four times as many OEM cylinder assemblies in service than ECi cylinder assemblies, the ECi cylinder assemblies suffered more cylinder head separations than OEM cylinder assemblies since 2004. This data is available for review in Docket No. FAA-2012-0002. We did not withdraw the NPRM.
Numerous aircraft operators, maintenance organizations, and private citizens commented that we should not issue the AD because airplanes can continue to operate safely even after a cylinder head separation. Several commenters have also stated that airplane engines are designed and certified to safely operate with one failed cylinder. They cited 14 CFR 33.43 in support of their position.
We disagree. The safety consequences represented by a cylinder head separation in flight are significant, and include multiple secondary effects, like fire. We did not withdraw the NPRM.
We also disagree that § 33.43, Vibration Test, supports the commenter's position that airplanes are certified to operate safely after a cylinder head separation. Section 33.43(d), addressing the engine vibration survey of § 33.43(a), requires assessment of crankshaft vibration for an engine that has one cylinder that “is not firing.” That paragraph, like the rest of § 33.43, does not discuss cylinder head separation. We did not withdraw the NPRM.
Numerous aircraft operators, maintenance organizations, and private citizens requested that we withdraw the NPRM (78 FR 48828, August 12, 2013) because the FAA failed to identify the root cause(s) of cylinder head separations.
We disagree. The root cause of the cylinder head separation is not the unsafe condition. We have identified the unsafe condition—cylinder head separation. Removal of the cylinder assembly resolves the unsafe condition. We did not withdraw the NPRM.
Numerous organizations, aircraft operators, and private citizens commented that cylinder head separations involving the ECi cylinder assemblies affected by this NPRM (78 FR 48828, August 12, 2013) were caused by pilot error rather than by design deficiencies of the cylinder assemblies. They therefore requested that we not issue the AD.
We disagree. If pilot error was leading to cylinder head separation, then we would expect to see similar damage in engines with other than ECi cylinder assemblies installed where the pilots exceeded the same limitation(s). However, we do not have any such data. We did not withdraw the NPRM.
The National Transportation Safety Board (NTSB), other organizations, numerous aircraft operators, and private citizens commented that the compliance requirements in the proposed AD are too severe and that we should adopt less stringent requirements.
We agree that the requirements for removal of the cylinder assemblies can be made less severe. Our updated analysis indicates that our proposed reduced compliance interval with the attendant removal from service of affected cylinder assemblies and lesser impact to operators addresses the unsafe condition and is consistent with our risk guidelines. We revised the compliance paragraphs in this SNPRM by changing the schedule for removal of affected cylinder assemblies to a phased removal schedule for all affected cylinder assemblies based on total time in service since new.
The NTSB also recommended in NTSB Safety Recommendation A-12-7 that we impose a repetitive inspection requirement for certain ECi cylinder assemblies and their removal once they reach the manufacturer's recommended time between overhaul (TBO).
We disagree. Repetitive inspections until TBO as suggested by the commenter, is inconsistent with the serious hazard represented by cylinder assembly failures. Therefore, we are requiring removal of affected cylinder assemblies from service prior to TBO. Also, engine overhaul is not a requirement for all operators. Therefore, tying the proposed recurrent inspection to engine overhaul would not resolve the unsafe condition. We did not change this proposed AD based on this comment.
The NTSB also noted that the proposed rule would affect many more cylinder assemblies than the NTSB had included in its safety recommendation letter A-12-7, dated February 24, 2012, to the FAA. The NTSB commented that the NPRM's proposal to remove Group A cylinder assemblies (S/Ns 1 through
We disagree. Based on service failure data and known implementation of design improvements, this proposed AD must apply to cylinder assemblies S/Ns 1 through 61176. We did not change this proposed AD based on this comment.
Numerous aviation associations, aircraft operators, maintenance organizations, and private citizens commented that the FAA had not followed its own risk assessment policies in issuing the NPRM (78 FR 48828, August 12, 2013).
We disagree. The corrective actions proposed in the NPRM, and as revised by this SNPRM, are consistent with FAA Order 8040.4A, “Safety Risk Management Policy,” dated April 30, 2012, and the Monitor Safety/Analyze Data (MSAD) process defined in FAA Order 8110.107A, “Monitor Safety/Analyze Data,” dated October 1, 2012. The requirements of this proposed AD are also consistent with the guidance of Engine & Propeller Directorate memorandum “Risk Assessment for Reciprocating Engine Airworthiness Directives,” PS-ANE-100-1999-00006, dated May 24, 1999. We did not change this SNPRM as a result of this comment.
Numerous aircraft operators, maintenance organizations, and private citizens commented that the FAA should withdraw the NPRM (78 FR 48828, August 12, 2013) because the removal and replacement of affected cylinder assemblies before TBO would result in maintenance errors that would adversely affect safety.
We disagree. Our regulatory framework presumes that maintenance will be performed correctly by personnel authorized by the FAA to return aircraft to service in an airworthy condition. Further, we have not observed any negative effects on safety due to removal of these cylinder assemblies during maintenance. Also, cylinder removal and replacement is a maintenance action addressed in engine maintenance manuals. We did not withdraw the NPRM.
Some aircraft operators commented that they successfully passed the compression test with the piston at top-dead-center, while still finding the cylinders cracked. We interpret the comment to be that the proposed inspection and test was inadequate to detect a cracked cylinder assembly.
We agree. The inspection and test may not detect cracks. Also, we have received field reports of separated cylinders that occurred within the repetitive 50-hour compression test and leak check inspection intervals proposed by the NPRM. We therefore concluded that these tests are not sufficiently reliable and the cost associated with such ongoing tests outweighs the safety benefit. We changed this SNPRM by removing the requirement for repetitive compression and leak inspection tests.
Numerous aviation associations, aircraft operators, maintenance organizations, and private citizens commented that the FAA should withdraw the NPRM (78 FR 48828, August 12, 2013) because the cost of compliance is excessive to owners and operators of aircraft with engines that have affected cylinder assemblies.
We disagree. We find that the safety benefits of the proposed rule, as changed by this SNPRM, outweigh its estimated cost. Further, we recalculated the cost of the NPRM (78 FR 48828, August 12, 2013). Our previous estimate was based on 36,000 cylinder assemblies. Based on data available to the FAA, we subsequently reduced the number affected cylinder assemblies to 28,874.
We also determined that a replacement cost based on a pro-rated life of the cylinder assemblies more accurately reflects the true cost of replacing the cylinder assemblies. In the NPRM, we used $1,700 per cylinder assembly for the entire affected cylinder assembly population. We recalculated the total value for loss of the part based on a pro-rated estimate of usage for the cylinder assembly population over their current accumulated time in service. This recalculated loss is $19,867,882 for the entire affected cylinder assembly population.
Finally, since we issued the NPRM, we eliminated those inspections and their associated cost from this SNPRM. For further information on the estimated cost of this AD, please see our Initial Regulatory Flexibility Analysis (IRFA) in the text of this SNPRM. We did not withdraw the NPRM.
We received several comments on the rulemaking process, including several who supported the NPRM (78 FR 48828, August 12, 2013) as proposed. Several commenters stated that hundreds of failures of the affected cylinder assemblies had been reported to the FAA and ECi.
We thank the commenters for their participation in the rulemaking process.
First, we removed the 50 hour repetitive inspection requirement in the NPRM (78 FR 48828, August 12, 2013). We did so because we determined that the inspection, compression test, and leak check proposed by the NPRM was not effective in detecting cracked cylinders. Based on further review of service information, we determined that a compression test and leak check will not identify a crack until the crack has propagated all the way through the cylinder wall to some detectable location. Therefore, we are relying on the phased removal of the cylinders along with annual or 100-hour inspections already required by other regulations to provide an adequate level of safety.
We eliminated the requirement to report details of all cylinder assemblies removed per the requirements of the AD to the FAA. This information is no longer needed since we will rely on our established reporting channels,
We reduced the estimated population of affected cylinder assemblies from 36,000 to 28,874.
We used a pro-rated loss of cylinder life which more accurately reflects the cost of replacing the affected cylinder assemblies.
We removed the cost of inspection from this SNPRM since the recurrent visual inspections and compression/leak tests proposed by the NPRM were ineffective in detecting the unsafe condition.
We changed the compliance paragraphs by removing references to “Group A” (serial numbers (S/Ns) between 1 and 33696) and “Group B” (S/Ns between 33697 and 61176). We determined that TIS and serial number (S/N) are sufficient to identify and correct the suspect cylinder assembly population.
We modified the compliance schedule for removal of affected cylinder assemblies from 500 or 1,000 operating
Finally, we specified in this SNPRM that overhauled cylinder assemblies should be removed within 80 hours after the effective date of this AD. We concluded that overhauling of the cylinder assembly does not diminish the fatigue damage that has already accumulated in the cylinder head.
We are proposing this SNPRM because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design. Certain changes described above revise the scope of the NPRM (78 FR 48828, August 12, 2013). As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this SNPRM.
This SNPRM would require removal of the affected cylinder assemblies, including overhauled cylinder assemblies, according to a phased removal schedule.
We estimate that this proposed AD would affect about 5,000 CMI models IO-520, TSIO-520, IO-550, and IOF-550 reciprocating engines and all other CMI engine models approved for the use of CMI models 520 and 550 cylinder assemblies (such as the CMI model 470 when modified by STC), installed on airplanes of U.S. registry. The average labor rate is $85 per hour. We estimate that about 18 hours would be required to replace all six cylinder assemblies during overhaul maintenance. We estimate the pro-rated value of the cost of replacement of six cylinder assemblies to be about $4,202 per engine. Based on these figures, we estimate the total cost of this proposed AD to U.S. operators to change all ECi cylinder assemblies to be $28,660,000. Our cost estimate is exclusive of possible warranty coverage.
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.
The Regulatory Flexibility Act of 1980 (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the business, organizations, and governmental jurisdictions subject to regulation.” To achieve that principle, the RFA requires agencies to solicit and consider flexible regulatory proposals and to explain the rationale for their actions. The RFA covers a wide range of small entities, including small businesses, not-for-profit organizations and small governmental jurisdictions.
Agencies must perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the Act.
This proposed rule would have a significant impact on a substantial number of small entities of part 135 operators and smaller air services businesses.
The U.S. Small Business Administration (SBA) classifies businesses as small based on size standards, typically expressed as number of employees. The FAA identified 609 part 135 operators that meet the SBA definition of a small entity (entities with 1,500 or fewer employees) which would be affected by this proposed rule. Of these 609, the FAA identified 209 small part 135 operators on which the rule would have a significant economic impact. We consider this a substantial number of small entities. In addition, we estimate that more than 2,000 smaller air services businesses would be affected by this proposed rule. This business segment also has a substantial number of small entities. The FAA is unaware of the assets or financial resources of these businesses. The FAA requests comments from these businesses regarding their economic impact.
The FAA estimates the compliance cost from this AD to be the sum of the replacement cost per aircraft, plus the loss of use due to earlier replacement, plus minor paperwork cost. The labor cost to replace all six cylinder assemblies is the average labor rate $85 per hour multiplied by the estimated 18 hours to complete the task.
The FAA believes that a pro-rated value of the replacement cost of the cylinder assemblies is more accurate and reflects on the true cost to replacing the cylinder assemblies. This AD would result in a loss-of-use as some cylinder assemblies would be replaced sooner than current practice. This AD requires removal of the cylinder assemblies at an average of 1,000 hours instead of at the average TBO of 1,700 hours. This means that the allowable life is only 1,000 of the original 1,700 hours, or at 58.82% of the current life. Therefore the life value that is lost equals 0.4118 (1.0−0.5882). We estimate the pro-rated loss of life value for six cylinder assemblies to be about $4,200 per engine (1,700 × 6 × .4118). The loss-of-use expense implicitly includes the earlier purchase of the replacement cylinder assemblies.
Therefore the AD cost per aircraft equals the labor costs of $1,530 and the loss-of-service cost of $4,202, or about $6,000. Based on the number of aircraft owned by the operators impacted, total compliance costs range between $6 thousand to $525 thousand per small entity encompassing one to eighty-eight aircraft.
To determine whether the compliance cost would be a significant economic impact, we measured the annualized compliance cost relative to the value of the aircraft. The estimated value of their aircraft ranges between $22 thousand to $21 million. Using the preceding information, the FAA estimates that their ratio of annualized cost to asset value is higher than 5 percent for many of these operators. Based on this information the FAA decided that the rule would have a significant economic impact on a substantial number of entities. Therefore, we have performed a regulatory flexibility analysis for these small entities.
Under Section 603(b) of the RFA, the initial analysis must address:
(1) Description of reasons the agency is considering the action;
(2) Statement of the legal basis and objectives for the proposed rule;
(3) Description of the record keeping and other compliance requirements of the proposed rule;
(4) All federal rules that may duplicate, overlap, or conflict with the proposed rule;
(5) Description and an estimated number of small entities to which the proposed rule will apply; and
(6) Describe alternatives considered.
This proposed AD was prompted by failure reports of multiple cylinder head-to-barrel separations and cracked and leaking aluminum cylinder heads. This AD would apply to certain Airmotive Engineering Corp. replacement PMA cylinder assemblies marketed by ECi, used on CMI model 520 and 550 reciprocating engines, and all other engine models approved for the use of CMI models 520 and 550 cylinder assemblies, such as the CMI model 470 when modified by STC.
We estimate that this proposed AD would affect about 5,000 Continental Motors, Inc. models IO-520, TSIO-520, IO-550, and IOF-550 reciprocating engines and all other engine models approved for the use of CMI models 520 and 550 cylinder assemblies (such as the CMI model 470 when modified by STC), installed on airplanes of U.S. registry.
The FAA will affect 609 part 135 operators and more than 2,000 air service businesses for which the rule will have an economic impact. The affected entities fly fixed wing aircraft; employ less than 1,500 employees; and conduct a variety of air services such as fly passengers and cargo for hire. We estimate that the small part 135 operators have assets valued between $22 thousand to $21 million (range of 1 to 88 aircraft).
Public reporting for this collection of information is estimated to be approximately 5 minutes per response at an hourly wage rate of $85 per hour, including the time for reviewing instructions, completing and reviewing the collection of information. The paperwork cost for them is between $7 and $616.
The FAA is unaware of any Federal rules that duplicate, overlap, or conflict with this rule.
The FAA received comments concerning this AD. Some commenters requested withdrawal of this NPRM because of excessive cost with only negligible safety gains. In response to comments about problems with repetitive compression/soap test, the FAA agrees that these tests are not reliable and the costs associated with such ongoing tests outweigh the safety benefit. This SNPRM has removed the requirement for repetitive compression/soap inspection tests. We also considered these following alternatives:
(1) Do nothing—This option is not acceptable due to the number of failures of ECi cylinder assemblies and the consequences of the failures.
(2) Periodic inspections only (no forced removals)—Though the NTSB recommends this option, the service history has shown that such inspections may not reliably detect existing cracks and the rate of crack growth to separation is unknown and variable.
(3) Forced removal with periodic inspections—As stated above, such periodic inspections may not reliably detect cracks and the rate of crack growth to separation is unknown and variable.
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 to the extent that it justifies making a regulatory distinction, and
(4) Will have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by February 23, 2015.
None.
This AD applies to all Continental Motors, Inc. (CMI) model 520 and 550 reciprocating engines, and to all other CMI engine models approved for the use of model 520 and 550 cylinder assemblies such as the CMI model 470 when modified by supplemental type certificate (STC), with Airmotive Engineering Corp. replacement parts manufacturer approval (PMA) cylinder assemblies, marketed by Engine Components International Division (hereinafter referred to as ECi), part number (P/N) AEC631397, with ECi Class 71 or Class 76, serial number (S/N) 1 through S/N 61176, installed.
This AD was prompted by multiple failure reports of cylinder head-to-barrel separations and cracked and leaking aluminum cylinder heads. We are issuing this AD to prevent failure of the cylinder assemblies, which could lead to failure of the engine, in-flight shutdown, and loss of control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) Review the engine maintenance records to determine if any affected cylinder assemblies are installed.
(2) If you cannot determine based on review of engine maintenance records if any affected cylinder assemblies are installed, comply with paragraph (e)(4) of this AD.
(3) If you do not have any of the affected ECi cylinder assemblies installed on your engine, no further action is required.
(i) Check the cylinder assembly P/N and Class number. The ECi cylinder assembly, P/N AEC631397, Class 71 or Class 76, is stamped on the bottom flange of the cylinder barrel. Guidance on the P/N and Class number description and location can be found in ECi Service Instruction No. 99-8-1, Revision 9, dated February 23, 2009.
(ii) If you cannot see the cylinder assembly P/N when the cylinder assembly is installed on the engine, you may use the following alternative method of identification:
(A) Remove the cylinder assembly rocker box cover.
(B) Find the letters ECi, cast into the cylinder head between the valve stems.
(C) Check the cylinder head casting P/N. Affected cylinder assemblies have the cylinder head casting P/N, AEC65385, cast into the cylinder head between the valve stems.
(D) Find the cylinder assembly S/N as specified in paragraph (e)(4)(iii) or (e)(4)(iv) of this AD, as applicable.
(iii) For ECi cylinder assemblies, P/N AEC631397, manufactured through 2008, find the cylinder assembly S/N stamped on the intake port boss two inches down from the top edge of the head.
(iv) For ECi cylinder assemblies, P/N AEC631397, manufactured on or after January 1, 2009, find the cylinder assembly S/N stamped just below the top edge of the head on the exhaust port side.
(i) For any affected cylinder assembly with 680 or fewer operating hours time-in-service (TIS) since new on the effective date of this AD, remove the cylinder assembly from service before reaching 1,000 operating hours TIS since new.
(ii) For any affected cylinder assembly with more than 680 operating hours TIS since new and 1,000 or fewer operating hours TIS since new on the effective date of this AD, remove the cylinder assembly from service within the next 320 operating hours TIS or within 1,160 operating hours TIS since new, whichever occurs first.
(iii) For any affected cylinder assembly with more than 1,000 operating hours TIS since new on the effective date of this AD, remove the cylinder assembly from service within the next 160 operating hours or at next engine overhaul, whichever occurs first.
(iv) For any affected cylinder assembly that has been overhauled, remove the cylinder assembly from service within the next 80 operating hours TIS after the effective date of this AD.
After the effective date of this AD:
(1) Do not repair, or reinstall onto any engine, any cylinder assembly removed per this AD.
(2) Do not install any affected ECi cylinder assembly that has been overhauled, into any engine.
(3) Do not install any engine that has one or more affected overhauled ECi cylinder assemblies, onto any aircraft.
(4) Do not return to service any aircraft that has an engine installed with an ECi cylinder assembly subject to this AD, if the cylinder assembly has 1,000 or more operating hours TIS.
The Manager, Special Certification Office, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request.
(1) For more information about this AD, contact Jurgen E. Priester, Aerospace Engineer, Special Certification Office, FAA, Rotorcraft Directorate, 2601 Meacham Blvd., Fort Worth, TX 76193; phone: 817-222-5190; fax: 817-222-5785; email:
(2) For ECi Service Instruction No. 99-8-1, Revision 9, dated February 23, 2009, which is not incorporated by reference in this AD, contact Engine Components International Division, 9503 Middlex Drive, San Antonio, TX 78217; phone: 210-820-8101; Internet:
(3) You may view this service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
The Forest Service will prepare an Environmental Impact Statement (EIS) to disclose the effects of revising the motorized travel plan for the Powell Ranger District (District) of the Dixie National Forest. The District is proposing to relocate, reclassify, or decommission a number of existing roads and trails as well as construct or designate new roads and trails. Some of the activities are proposed within Inventoried Roadless Areas. This revision only addresses subpart B of the Travel Management Rule which provides for a system of National Forest Roads, National Forest Trails, and areas on the National Forest System (NFS) lands that are designated for motorized use. This project does not address over the snow motor vehicle use, motorized cross-country travel, nor does it revisit motorized cross-country travel for big game retrieval. The project is limited to addressing known deficiencies for the District in the 2009 Dixie National Forest Motorized Travel Plan.
Comments concerning the scope of the analysis must be received by February 9, 2015. The draft environmental impact statement is expected in August, 2015, and the final environmental impact statement is expected in March, 2016.
Send written comments to: Paul Hancock, District Ranger; Powell Ranger District; Dixie National Forest; Attn: Powell Travel Management, 225 East Center Street, P.O. Box 80, Panguitch, UT 84759. Comments may also be sent via email to
Keith Gustafson, Project Leader; 225 E. Center Street; P.O. Box 80; Panguitch, UT 84759; telephone: (435) 676-9354; email:
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday.
The purpose of this project is to revise the Motorized Travel Plan for the Powell Ranger District of the Dixie National Forest. The revision is to provide a road and trail system for the District, designated for motorized use that is considered safe and responsive to public needs and desires, conforms to the Forest Plan, and is environmentally sound. This action is needed because: (1) There is a need for travel management revisions to restore or protect forest resources and conditions. (2) There is a need for travel management revisions to provide a broad range of dispersed motorized recreation opportunities; to disperse motorized recreation users to prevent overuse in popular areas; and provide safety for the user. (3) There is a need for travel management revisions to improve special and public use administration and to reduce resource impacts from these activities.
To meet the purpose and need for action, the Powell Ranger District of the Dixie National Forest proposes to make changes to the existing system of roads on the District. For details of the proposed action please visit the following Web page:
Lead Agency—USDA Forest Service, Dixie National Forest.
Cooperating Agencies—Garfield and Kane Counties, Utah.
Forest Supervisor, Dixie National Forest.
This notice of intent initiates the scoping process, which guides the development of the environmental impact statement. Additional information about the project and information about scheduled public meetings can be found on the project Web page at
It is important that reviewers provide their comments at such times and in such manner that they are useful to the agency's preparation of the environmental impact statement. Therefore, comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions.
Please keep comments specific to only this proposal. Comments which are not specific to the project and project area will be deemed outside the scope of the analysis and will not be considered. If you provide recommendations for changes to routes or areas, please include route numbers or location descriptions, as well as the reasons for your recommendations. If you are including references, citations, or additional information to be considered for this project, please specify exactly how the material relates to the project. Also indicate exactly what part of the material you would like the District to consider (such as page or figure number).
Comments received in response to this solicitation, including names and addresses of those who comment, will be part of the public record for this project proposal. Individuals or organizations who submit timely and specific written comments regarding the proposed project will be eligible to file an objection (36 CFR 218). Comments submitted anonymously will be accepted and considered; however, anonymous comments will not provide the Agency with the ability to provide the respondent with subsequent environmental documents nor will the respondent be eligible to provide an objection pursuant to 36 CFR 218.
January 15, 2015, 6:00 p.m.-9:00 p.m. EST.
Hilton Meadowlands Hotel, Two Meadowlands Plaza, East Rutherford, New Jersey 07073. Diamond Court Ballrooms A&B.
Open to the public.
The Chemical Safety and Hazard Investigation Board (CSB) will convene a public meeting on January 15, 2015, starting at 6:00 p.m. at the Hilton Meadowlands Hotel, Two Meadowlands Plaza, Diamond Court Ballrooms A&B, East Rutherford, New Jersey 07073. At the public meeting, the Board will hear from teams investigating the 2012 explosion and fire at the US Ink facility located in East Rutherford, NJ, that injured seven workers. Time permitting, the Board may also consider a report into the CSB's investigation of the 2010 anhydrous ammonia release at Millard Refrigerated Services, a warehouse and distribution center in Theodore, Alabama, near Mobile, Alabama, where more than 130 members of the public sought medical attention as a result of an uncontrolled ammonia release.
This public meeting is intended to provide the community affected by the US Ink explosion and other interested stakeholders, with an opportunity to consider and hear about the CSB staff's findings on this matter. In addition, time permitting, the Board will also consider the staff's presentation and lessons learned resulting from the Millard ammonia release, with information into how these incidents occurred and how similar future incidents can be prevented or mitigated.
Following the staff presentation the Board will hear comments from the public. All staff presentations are preliminary and are intended solely to allow the Board to consider in a public forum the issues and factors involved in these cases. No factual analyses, conclusions, or findings presented by staff should be considered final. At the conclusion of the staff presentation the board may vote on the final product(s).
Lastly, the Board may consider such other items of business as determined by the Chairperson.
The meeting is free and open to the public. If you require a translator or interpreter, please notify the individual listed below as the “Contact Person for Further Information,” at least five business days prior to the meeting.
The CSB is an independent federal agency charged with investigating accidents and hazards that result, or may result, in the catastrophic release of extremely hazardous substances. The agency's Board Members are appointed by the President and confirmed by the Senate. CSB investigations look into all aspects of chemical accidents and hazards, including physical causes such as equipment failure as well as inadequacies in regulations, industry standards, and safety management systems.
Members of the public are invited to make brief statements to the Board at the conclusion of the staff presentation(s). The time provided for public statements will depend upon the number of people who wish to speak. Speakers should assume that their presentations will be limited to five minutes or less, but commenters may submit written statements for the record.
Hillary J. Cohen, Communications Manager,
On August 21, 2014, the City of Mobile, Alabama, grantee of Foreign-Trade Zone 82, submitted a notification of proposed production activity to the Foreign-Trade Zones (FTZ) Board on behalf of Airbus Americas, Inc., within Site 1, in Mobile.
The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the
On August 28, 2014, Orbital Sciences Corporation, operator of FTZ 75—Site 10, submitted a notification of proposed production activity to the Foreign-Trade Zones (FTZ) Board for its facility in Gilbert, Arizona.
The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Based on affirmative final determinations by the Department of Commerce (the Department) and the
Brian Smith or Brandon Custard, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1766 or (202) 482-1823, respectively.
In accordance with sections 735(d) and 777(i)(1) of the Tariff Act of 1930, as amended (the Act) and 19 CFR 351.210(c), on November 19, 2014, the Department published its affirmative final determination of sales at less-than-fair-value in the antidumping duty investigation of steel wire rod from the PRC, and its affirmative final determination that critical circumstances exist, in part.
The scope of this order covers certain hot-rolled products of carbon steel and alloy steel, in coils, of approximately circular cross section, less than 19.00 mm in actual solid cross-sectional diameter. Specifically excluded are steel products possessing the above-noted physical characteristics and meeting the Harmonized Tariff Schedule of the United States (HTSUS) definitions for (a) stainless steel; (b) tool steel; (c) high nickel steel; (d) ball bearing steel; or (e) concrete reinforcing bars and rods. Also excluded are free cutting steel (also known as free machining steel) products (
The products under order are currently classifiable under subheadings 7213.91.3011, 7213.91.3015, 7213.91.3020, 7213.91.3093; 7213.91.4500, 7213.91.6000, 7213.99.0030, 7227.20.0030, 7227.20.0080, 7227.90.6010, 7227.90.6020, 7227.90.6030, and 7227.90.6035 of the HTSUS. Products entered under subheadings 7213.99.0090 and 7227.90.6090 of the HTSUS also may be included in this scope if they meet the physical description of subject merchandise above. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this order is dispositive.
As stated above, on January 2, 2015, in accordance with section 735(d) of the Act, the ITC notified the Department of its final determination in this investigation, in which it found material injury with respect to imports of steel wire rod from the PRC.
Therefore, in accordance with section 736(a)(1) of the Act, the Department will direct U.S. Customs and Border Protection (CBP) to assess, upon further instruction by the Department, antidumping duties equal to the amounts listed below for all relevant entries of steel wire rod from the PRC. These antidumping duties will be assessed on unliquidated entries of steel wire rod from the PRC entered, or withdrawn from warehouse, for consumption on or after September 8, 2014, the date of publication of the
In accordance with section 735(c)(1)(B) of the Act, we will instruct CBP to continue to suspend liquidation on all entries of steel wire rod from the PRC. We will also instruct CBP to require cash deposits equal to the amounts as indicated below. These instructions suspending liquidation will remain in effect until further notice.
Accordingly, effective on the date of publication of the ITC's final affirmative injury determination, CBP will require, at the same time as importers would normally deposit estimated duties on this subject merchandise, a cash deposit equal to the estimated weighted-average antidumping duty margins listed below.
The weighted-average dumping margins are as follows:
With
This notice constitutes the antidumping duty order with respect to steel wire rod from the PRC pursuant to section 736(a) of the Act. Interested parties may contact the Department's Central Records Unit, Room 7046 of the main Commerce Building, for copies of an updated list of antidumping duty orders currently in effect.
This order is published in accordance with section 736(a) of the Act and 19 CFR 351.211.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Elizabeth Eastwood, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-3874.
On May 29, 2009, the Department of Commerce (Department) published in the
On June 27, 2014, in accordance with section 751(a) of the Tariff Act of 1930, as amended (the Act), the Department published in the
Pursuant to 19 CFR 351.213(d)(1), the Secretary will rescind an administrative review, in whole or in part, if a party that requested the review withdraws the request within 90 days of the date of publication of the notice of initiation of the requested review. The petitioners' and RZBC's withdrawal of their requests were submitted within the 90-day period and, thus, are timely. Because the petitioners' and RZBC's withdrawal of their requests for review are timely and because no other party requested a review of these companies, in accordance with 19 CFR 351.213(d)(1), we are rescinding this administrative review, in part, with respect to the following companies: Changsha Huir, Huangshi Xinghua, Hunan Dongting, Jiali Bio Group, Juxian Hongde, Lianyungang Debang, Lianyungang Dongtai, Lianyungang Hengsheng, Lianyungang Yunbo, Lianyungang Zhengrong, Nantong Feiyu, Ningxiang Xinyang, Penglai Marine Bio-Tech, Qingdao Fuso, Reephos Chemical, Rugao Jiangbei, RZBC Group and RZBC, Shandong Hongshide, Shandong TTCA, Shihezi City Changyum, Weifang Ensign, Wuhan Shuangfeng, Yixing Union, Yixing Zhenfen, and Yunnan Fuel. The administrative review will continue with respect to Laiwu Taihe.
The Department will instruct U.S. Customs and Border Protection (CBP) to assess countervailing duties on all appropriate entries. For the companies for which this review is rescinded, countervailing duties shall be assessed at rates equal to the cash deposit of estimated countervailing duties required at the time of entry, or withdrawal from warehouse, for consumption, during the period January 1, 2013, through December 31, 2013, in accordance with 19 CFR 351.212(c)(1)(i). The Department intends to issue appropriate assessment instructions to CBP 15 days after publication of this notice.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This notice is issued and published in accordance with sections 751 and 777(i)(1) of the Act, and 19 CFR 351.213(d)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Based on affirmative final determinations by the Department of Commerce (the Department) and the International Trade Commission (ITC), the Department is issuing a countervailing duty (CVD) order on carbon and certain alloy steel wire rod (steel wire rod) from the People's Republic of China (PRC). Also, as explained in this notice, the Department is amending its final determination to correct an error with respect to the identification of an affiliate of one of the respondents.
Rebecca Trainor or Reza Karamloo, Office II, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-4007 and (202) 482-4470, respectively.
On November 19, 2014, the Department published its final determination that countervailable subsidies are being provided to producers and exporters of steel wire rod from the PRC.
The scope of this order covers certain hot-rolled products of carbon steel and alloy steel, in coils, of approximately circular cross section, less than 19.00 mm in actual solid cross-sectional diameter. Specifically excluded are steel products possessing the above-noted physical characteristics and meeting the Harmonized Tariff Schedule of the United States (HTSUS) definitions for (a) stainless steel; (b) tool steel; (c) high nickel steel; (d) ball bearing steel; or (e) concrete reinforcing bars and rods. Also excluded are free cutting steel (also known as free machining steel) products
The products under order are currently classifiable under subheadings 7213.91.3011, 7213.91.3015, 7213.91.3020, 7213.91.3093, 7213.91.4500, 7213.91.6000, 7213.99.0030, 7227.20.0030, 7227.20.0080, 7227.90.6010, 7227.90.6020, 7227.90.6030, and 7227.90.6035 of the HTSUS. Products entered under subheadings 7213.99.0090 and 7227.90.6090 of the HTSUS also may be included in this scope if they meet the physical description of subject merchandise above. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this order is dispositive.
In the
In accordance with sections 705(b)(1)(A)(i) and 705(d) of the Act, the ITC notified the Department of its final determination that the industry in the United States producing steel wire rod is materially injured by reason of subsidized imports of steel wire rod from the PRC. Therefore, in accordance with section 705(c)(2) of the Act, we are publishing this CVD order.
Pursuant to section 706(a) of the Act, the Department will direct U.S. Customs and Border Protection (CBP) to assess, upon further instruction by the Department, CVDs on unliquidated entries of steel wire rod entered, or withdrawn from warehouse, for consumption on or after July 8, 2014, the date on which the Department published its affirmative
With regard to the ITC's negative critical circumstances determination, the Department will instruct CBP to lift suspension and refund any cash deposits of estimated CVDs for entries on or after April 9, 2014 (
In accordance with section 706 of the Act, the Department will direct CBP to reinstitute the suspension of liquidation of steel wire rod from the PRC, effective the date of publication of the ITC's notice of final determination in the
This notice constitutes the CVD order with respect to steel wire rod from the PRC pursuant to section 706(a) of the Act. Interested parties may contact the Department's Central Records Unit, Room 7046 of the main Commerce Building, for copies of an updated list of countervailing duty orders currently in effect.
This order is issued and published in accordance with section 706(a) of the Act and 19 CFR 351.211(b).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the countervailing duty (CVD) order on crystalline silicon photovoltaic cells, whether or not assembled into modules (Solar Cells), from the People's Republic of China (PRC). The period of review (POR) is March 26, 2012, through December 31, 2012. This review covers multiple exporters/producers, two of which are being individually reviewed as mandatory respondents. We preliminarily determine that Lightway Green New Energy Co., Ltd. (Lightway), Shanghai BYD Co. Ltd. (Shanghai BYD) and its cross-owned affiliates received countervailable subsidies during the POR. Interested parties are invited to comment on these preliminary results.
Elfi Blum-Page, Lingjun Wang, or Andrew Huston, Office VII, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-0197, (202) 482-2316, and (202) 482-4261, respectively.
The merchandise covered by this investigation is crystalline silicon photovoltaic cells, and modules, laminates, and panels, consisting of crystalline silicon photovoltaic cells, whether or not partially or fully assembled into other products, including, but not limited to, modules, laminates, panels and building integrated materials.
The Department is conducting this countervailing duty review in accordance with section 751(a)(1)(A) of the Tariff Act of 1930, as amended (the Act). For each of the subsidy programs found countervailable, we determine that there is a subsidy,
Pursuant to 19 CFR 351.213(d)(1), the Department will rescind an administrative review, in whole or in part, if the parties that requested a review withdraw the request within 90 days of the date of publication of the notice of initiation. SolarWorld Industries America, Inc. (Petitioner) submitted the withdrawal of its review request within the deadline set forth under 19 CFR 351.213(d)(1). Therefore, in accordance with 19 CFR 351.213(d)(1), the Department is rescinding this review of the countervailing duty order on solar cells from the PRC with respect to the companies listed in Appendix II. No other party requested a review of any of the companies listed in Appendix II. The review will continue with respect to the other companies for which a review was requested: The mandatory respondents Lightway and Shanghai BYD, and the remaning companies not selected for individual review, listed in Appendix III.
For the companies not selected for individual review (
As a result of this review, we preliminarily determine the countervailable subsidy rates to be:
The Department intends to disclose to interested parties the calculations performed in connection with this preliminary determination within five days of its public announcement.
Interested parties who wish to request a hearing, or to participate if one is requested, must do so within 30 days of publication of these preliminary results by submitting a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, using Enforcement and Compliance's ACCESS system.
Unless the deadline is extended pursuant to section 751(a)(3)(A) of the Act, we intend to issue the final results of this administrative review, including the results of our analysis of the issues raised by the parties in their comments, within 120 days after issuance of these preliminary results.
In accordance with 19 CFR 351.221(b)(4)(i), we assigned a subsidy rate for each producer/exporter subject to this administrative review. Upon issuance of the final results, the Department shall determine, and U.S. Customs and Border Protection (CBP) shall assess, countervailing duties on all appropriate entries covered by this review. We intend to issue instructions to CBP 15 days after publication of the final results of review.
Pursuant to section 751(a)(2)(C) of the Act, the Department also intends to instruct CBP to collect cash deposits of estimated countervailing duties, in the amounts shown above for each of the respective companies shown above, on shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this review. For all non-reviewed firms, we will instruct CBP to continue to collect cash deposits at the most-recent company-specific or all-others rate applicable to the company, as appropriate. These cash deposit requirements, when imposed, shall remain in effect until further notice.
These preliminary results are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.221(b)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (“the Department”) is conducting an administrative review of the antidumping duty order on crystalline silicon photovoltaic cells, whether or not assembled into modules (“solar cells”), from the People's Republic of
Brandon Farlander or Drew Jackson, AD/CVD Operations, Office IV, Enforcement & Compliance, International Trade Administration, Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-0182 or (202) 482-4406, respectively.
The merchandise covered by the order is crystalline silicon photovoltaic cells, and modules, laminates, and panels, consisting of crystalline silicon photovoltaic cells, whether or not partially or fully assembled into other products, including, but not limited to, modules, laminates, panels and building integrated materials.
Based on an analysis of U.S. Customs and Border Protection (“CBP”) information, and comments provided by a number of companies, the Department preliminarily determines that 23 of the companies that claimed no shipments during this POR did not have any reviewable transactions during the POR.
Consistent with an announced refinement to its assessment practice in non-market economy (“NME”) cases, the Department is not rescinding this review, in part, but intends to complete the review with respect to the companies for which it has preliminarily found no shipments and issue appropriate instructions to CBP based on the final results of the review.
Based on record evidence, the Department preliminarily finds that the mandatory respondent Yingli Energy (China) Company Limited is affiliated with the following seven companies pursuant to section 771(33)(F) of the Tariff Act of 1930, as amended (“the Act”): (1) Baoding Tianwei Yingli New Energy Resources Co., Ltd.; (2) Tianjin Yingli New Energy Resources Co., Ltd.; (3) Hengshui Yingli New Energy Resources Co., Ltd.; (4) Lixian Yingli New Energy Resources Co., Ltd.; (5) Baoding Jiasheng Photovoltaic Technology Co., Ltd.; (6) Beijing Tianneng Yingli New Energy Resources Co., Ltd.; and (7) Hainan Yingli New Energy Resources Co., Ltd. (collectively “Yingli”). Furthermore, the Department preliminarily finds that the mandatory respondent Wuxi Suntech Power Co., Ltd. is affiliated with the following three companies pursuant to section 771(33)(F) of the Act: (1) Luoyang Suntech Power Co., Ltd.; (2) Suntech Power Co., Ltd.; and (3) Wuxi Sunshine Power Co., Ltd. (collectively, “Wuxi Suntech Single Entity”). In addition, based on the information presented in this review, we preliminarily find that each of the mandatory respondents and the respective companies listed above should be treated as a single company for the purposes of this review pursuant to 19 CFR 351.401(f). For additional information,
Several companies for which the Department initiated this review failed to respond to the Department's request for quantity and value information. Therefore, these companies are not eligible for separate rate status.
Additionally, the Department finds that the PRC-wide entity failed to cooperate by not acting to the best of its ability to comply with a request for information. Therefore, pursuant to section 776(b) of the Act, the Department is using an adverse inference when selecting from among the facts otherwise available. Thus, the Department is relying on adverse facts available (“AFA”) in order to determine a margin for the PRC-wide entity, pursuant to sections 776(a)(1), 776(a)(2)(A), (B), (C) and 776(b) of the Act. For additional information,
As provided in section 782(i) of the Act, the Department verified information provided by Yingli. The Department conducted the verification using standard verification procedures including the examination of relevant sales and financial records and the selection and review of original documentation containing relevant information. The results of the
Section 776(a) of the Act provides that the Department shall apply FA if (1) necessary information is not on the record, or (2) an interested party or any other person (A) withholds information that has been requested, (B) fails to provide information within the deadlines established, or in the form and manner requested by the Department, subject to subsections (c)(1) and (e) of section 782 of the Act, (C) significantly impedes a proceeding, or (D) provides information that cannot be verified as provided by section 782(i) of the Act.
Section 776(b) of the Act further provides that the Department may use an adverse inference in applying FA when a party has failed to cooperate by not acting to the best of its ability to comply with a request for information. Such an adverse inference may include reliance on information derived from the petition, the final determination, a previous administrative review, or other information placed on the record.
Based on findings at verification, pursuant to sections 776(a) and (b) of the Act, we are applying partial AFA to a portion of Yingli's U.S. sales. Moreover, Yingli did not report FOP data from certain suppliers or tollers based on the specific facts on the record of this review. Thus, because necessary information is not available on the record, and in accordance with section 776(a)(1) of the Act, the Department is applying FA with respect to these unreported FOP data. For details regarding these determinations,
Wuxi Sunshine, an exporter and member of the Wuxi Suntech Single Entity, reported that certain shareholders are state-owned companies.
The statute and the Department's regulations do not address the establishment of a rate to be applied to individual respondents not selected for examination when the Department limits its examination in an administrative review pursuant to section 777A(c)(2)(B) of the Act. Generally, the Department looks to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in an investigation, for guidance when calculating the rate for respondents which we did not examine in an administrative review. Section 735(c)(5)(A) of the Act articulates a preference that we are not to calculate an all-others rate using rates which are zero,
The Department conducted this review in accordance with section 751(a)(1)(B) of the Act. The Department calculated export prices and constructed export prices in accordance with section 772 of the Act. Given that the PRC is a NME country, within the meaning of section 771(18) of the Act, the Department calculated NV in accordance with section 773(c) of the Act.
For a full description of the methodology underlying the preliminary results of this review,
The Department preliminarily determines that the following weighted-average dumping margins exist for the POR:
The Department intends to disclose to parties the calculations performed for these preliminary results of review within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). Interested parties may submit case briefs no later than 30 days after the date of publication of these preliminary results of review.
Interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, within 30 days after the date of publication of this notice.
All submissions, with limited exceptions, must be filed electronically using ACCESS.
Unless otherwise extended, the Department intends to issue the final results of this administrative review, which will include the results of its analysis of issues raised in any briefs, within 120 days of publication of these preliminary results, pursuant to section 751(a)(3)(A) of the Act.
Upon issuance of the final results of this review, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review.
On October 24, 2011, the Department announced a refinement to its assessment practice in NME antidumping duty cases.
In accordance with section 751(a)(2)(C) of the Act, the final results of this review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by the final results of this review and for future deposits of estimated duties, where applicable.
The Department will instruct CBP to require a cash deposit equal to the weighted-average amount by which the normal value exceeds U.S. price. The following cash deposit requirements will be effective upon publication of the final results of this administrative review for shipments of the subject merchandise from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date of this notice, as provided by section 751(a)(2)(C) of the Act: (1) For the exporters listed above, the cash deposit rate will be equal to the weighted-average dumping margin established in the final results of this review (except, if the rate is zero or
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (“Department”) is conducting an administrative review of the antidumping duty order on non-malleable cast iron pipe fittings (“NMPF”) from the People's Republic of China (“PRC”) for the period of review (“POR”) April 1, 2013, through March 31, 2014. This review covers one PRC company, Overseas Industrial Corporation (“OIC”).
Karine Gziryan, AD/CVD Operations, Office IV, Enforcement & Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-4081.
The products covered by the order are finished and unfinished non-malleable cast iron pipe fittings with an inside diameter ranging from 1/4 inch to 6 inches, whether threaded or unthreaded, regardless of industry or proprietary specifications. For a full description of the scope of the order,
The Department conducted this review in accordance with section 751(a)(1)(B) of the Tariff Act of 1930, as amended (“the Act”). For a full description of the methodology underlying our conclusions,
Because OIC has not demonstrated its eligibility for a separate rate, we preliminarily find it to be part of the PRC-wide entity
Interested parties are invited to comment on the preliminary results and may submit case briefs and/or written comments, filed electronically using ACCESS, within 30 days of the date of publication of this notice, pursuant to 19 CFR 351.309(c)(ii). Rebuttal briefs, limited to issues raised in the case briefs, will be due five days after the due date for case briefs, pursuant to 19 CFR 351.309(d). Parties who submit case or rebuttal briefs in this proceeding are requested to submit with each argument a statement of the issue, a summary of the argument not to exceed five pages, and a table of statutes, regulations, and cases cited, in accordance with 19 CFR 351.309(c)(2).
Pursuant to 19 CFR 351.310(c), interested parties, who wish to request a hearing, or to participate in a hearing if one is requested, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, filed electronically using ACCESS. Electronically filed case briefs/written comments and hearing requests must be received successfully in their entirety by the Department's electronic records system, ACCESS, by 5:00 p.m. Eastern Standard Time, within 30 days after the date of publication of this notice.
Upon issuance of the final results, the Department will determine, and U.S. Customs and Border Protection (“CBP”) shall assess, antidumping duties on all appropriate entries covered by this review.
The Department announced a refinement to its assessment practice in NME antidumping duty cases. Pursuant to this refinement in practice, for merchandise that was not reported in the U.S. sales databases submitted by an exporter individually examined during this review, but that entered under the case number of that exporter (
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of review, as provided by section 751(a)(2)(C) of the Act: (1) For previously investigated or reviewed PRC and non-PRC exporters which are not under review in this segment of the proceeding but which have separate rates, the cash deposit rate will continue to be the exporter-specific rate published for the most recent period; (2) for all PRC exporters of subject merchandise that have not been found to be entitled to a separate rate, including Overseas Industrial Corporation, the cash deposit rate will be the PRC-wide rate of 75.50 percent; and (3) for all non-PRC exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the PRC exporter(s) that supplied that non-PRC exporter. These deposit requirements, when imposed, shall remain in effect until further notice.
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application.
Notice is hereby given that Allyson Hindle, Assistant Professor of Anesthesia, Massachusetts General Hospital, 55 Fruit Street, Thier 503, Boston, MA 02114, has applied in due form for a permit to receive, import, and export specimens of marine mammals for scientific research purposes.
Written, telefaxed, or email comments must be received on or before February 9, 2015.
The application and related documents are available for review by selecting “Records Open for Public Comment” from the
These documents are also available upon written request or by appointment in the Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427-8401; fax (301) 713-0376.
Written comments on this application should be submitted to the Chief, Permits and Conservation Division, at the address listed above. Comments may also be submitted by facsimile to (301) 713-0376, or by email to
Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.
Rosa L. González or Amy Sloan, (301) 427-8401.
The subject permit is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
The applicant proposes to receive, import, and export tissue and other specimen materials (
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Concurrent with the publication of this notice in the
Bureau of Consumer Financial Protection.
Notice and request for comment.
In accordance with the Paperwork Reduction Act of 1995 (PRA), the Consumer Financial Protection Bureau (Bureau) is proposing a new information collection titled, “Bridges to Financial Security: A Multi-site Demonstration Project.”
Written comments are encouraged and must be received on or before February 9, 2015 to be assured of consideration.
You may submit comments, identified by the title of the information collection, OMB Control Number (see below), and docket number (see above), by any of the following methods:
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Documentation prepared in support of this information collection request is available at
Department of the Army, U.S. Army Corps of Engineers, DoD.
Revised notice of intent.
The U.S. Army Corps of Engineers (Corps) Jacksonville District intends to prepare a National Environmental Policy Act (NEPA) assessment to restore and sustain the overall quantity, quality, timing, and distribution of freshwaters to the federally designated “National Wild and Scenic” Northwest Fork of the Loxahatchee River for current and future generations in Martin and Palm Beach Counties of Florida.
Mr. Andrew J. LoSchiavo, U.S. Army Corps of Engineers, Planning Division, Environmental Branch, P.O. Box 4970, Jacksonville, FL 32232-0019, by email
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e. Alternatives. A reevaluation of alternatives that include the following management measures will be pursued—
1. Spreader Canals, Flowways—Shallow canals to distribute and improve water delivery and connectivity of flow.
2. Spill Ways, Weirs, and Gravity Structures—to deliver allow water to move as specific depths.
3. Pump Stations—New Pump Stations to distribute and improve water delivery.
4. Backfill or plugging of canals—Internal drainage and routing features in the system would be plugged, partially or completely backfilled to improve surface water distribution and eliminate drainage.
5. Removal of levees and berms—Levees or berms would be degraded or removed to allow water to sheetflow freely.
6. Bridges and Culverts—Structures to be used to allow water flows through existing barriers in the systems.
7. Storage Features—Shallow, intermediate and deep water reservoirs, flow equalization basins and aquifer storage and recovery for capturing, holding and delivering both normal and peak flows and discharging when water required.
8. Operational Changes—Adjustments to operational criteria to improve timing and distribution of flow.
9. Non-Structural Solutions—Management measures that can address project goals and objectives without physical structural modifications to the managed/natural system. For example, leasing and/or purchasing land acquisition rights to maintain undeveloped natural areas adaptation zones above high tide to promote ecosystem adaptations to climate change.
Alternatives will also include the No Action alternative.
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In notice document 2014-30685 appearing on pages 40 through 41 in the issue of Friday, January 2, 2015, make the following correction:
1. On page 40, in the third column, in the
Equal Employment Opportunity Commission.
Wednesday, January 14, 2015, 9:30 a.m. Eastern Time.
Commission Meeting Room on the First Floor of the EEOC Office Building, 131 “M” Street NE., Washington, DC 20507.
The meeting will be open to the public.
In accordance with the Sunshine Act, the meeting will be open to public observation of the Commission's deliberations and voting. Seating is limited and it is suggested that visitors arrive 30 minutes before the meeting in order to be processed through security and escorted to the meeting room. (In addition to publishing notices on EEOC Commission meetings in the
Please telephone (202) 663-7100 (voice) and (202) 663-4074 (TTY) at any time for information on these meetings. The EEOC provides sign language interpretation and Communication Access Realtime Translation (CART) services at Commission meetings for the hearing impaired. Requests for other reasonable accommodations may be made by using the voice and TTY numbers listed above.
Bernadette B. Wilson, Acting Executive Officer on (202) 663-4077.
Federal Election Commission.
Tuesday January 13, 2015 at 10:00 a.m. and Its Continuation on Thursday January 15, 2015 at the Conclusion of the Open Meeting.
999 E Street NW., Washington, DC.
This meeting will be closed to the public.
Compliance matters pursuant to 2 U.S.C. 437g. Internal personnel rules and internal rules and practices. Matters concerning participation in civil actions or proceedings or arbitration.
Judith Ingram, Press Officer, Telephone: (202) 694-1220.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than January 23, 2015.
A. Federal Reserve Bank of Minneapolis (Jacquelyn K. Brunmeier, Assistant Vice President) 90 Hennepin Avenue, Minneapolis, Minnesota 55480-0291:
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This notice corrects a notice (FR Doc. 2014-30815) published on pages 226 and 227 of the issue for Monday, January 5, 2015.
Under the Federal Reserve Bank of Boston heading, the entry for New Hampshire Mutual Bancorp, Manchester, New Hampshire, is revised to read as follows:
A. Federal Reserve Bank of Boston (Richard Walker, Community Affairs Officer) 600 Atlantic Avenue, Boston, Massachusetts 02210-2204:
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Board of Governors of the Federal Reserve System, December 30, 2014.
Comments on this application must be received by January 20, 2015.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer on (240) 276-1243.
Comments are invited on: (a) Whether the proposed collections of information are necessary for the proper performance of the functions of the
The Substance Abuse and Mental Health Services Administration (SAMHSA), is requesting approval from the Office of Management and Budget (OMB) for a revision of the 2016 and 2017 Community Mental Health Services Block Grant (MHBG) and Substance Abuse Prevention and Treatment Block Grant (SABG) Plan and Report Guidance and Instructions.
Currently, the SABG and the MHBG differ on a number of their practices (
Increasingly, under the Affordable Care Act, more individuals are eligible for Medicaid and private insurance. This expansion of health insurance coverage will continue to have a significant impact on how State Mental Health Authorities (SMHAs) and Single State Agencies (SSAs) use their limited resources. In 2009, more than 39 percent of individuals with serious mental illnesses (SMI) or serious emotional disturbances (SED) were uninsured. Sixty percent of individuals with substance use disorders whose treatment and recovery support services were supported wholly or in part by SAMHSA block grant funds were also uninsured. A substantial proportion of this population, as many as six million people, will gain health insurance coverage in 2014 and will have various outpatient and other services covered through Medicaid, Medicare, or private insurance. However, these plans will not provide access to the full range of support services necessary to achieve and maintain recovery for most of these individuals and their families.
Given these changes, SAMHSA has conveyed that block grant funds be directed toward four purposes: (1) To fund priority treatment and support services for individuals without insurance or who cycle in and out of health insurance coverage; (2) to fund those priority treatment and support services not covered by Medicaid, Medicare or private insurance offered through the exchanges and that demonstrate success in improving outcomes and/or supporting recovery; (3) to fund universal, selective and targeted prevention activities and services; and (4) to collect performance and outcome data to determine the ongoing effectiveness of behavioral health prevention, treatment and recovery support services and to plan the implementation of new services on a nationwide basis.
To help states meet the challenges of 2016 and beyond, and to foster the implementation of an integrated physical health and mental health and addiction service system, SAMHSA must establish standards and expectations that will lead to an improved system of care for individuals with or at risk of mental and substance use disorders. Therefore, this application package includes fully exercising SAMHSA's existing authority regarding states', territories' and the Red Lake Band of the Chippewa Tribe's (subsequently referred to as “states”) use of block grant funds, and a shift in SAMHSA staff functions to support and provide technical assistance for states receiving block grant funds as they fully integrate behavioral health services into health care.
Consistent with previous applications, the FY 2016-2017 application has sections that are required and other sections where additional information is requested. The FY 2016-2017 application requires states to submit a face sheet, a table of contents, a behavioral health assessment and plan, reports of expenditures and persons served, an executive summary, and funding agreements and certifications. In addition, SAMHSA is requesting information on key areas that are critical to the states success in addressing health care integration. Therefore, as part of this block grant planning process, SAMHSA is asking states to identify their technical assistance needs to implement the strategies they identify in their plans for FY 2016 and 2017.
To facilitate an efficient application process for states in FY 2016-2017, SAMHSA convened an internal workgroup to develop the application for the block grant planning section. In addition, SAMHSA consulted with representatives from SMHAs and SSAs to receive input regarding proposed changes to the block grant. Based on these discussions with states, SAMHSA is proposing several changes to the block grant programs, discussed in greater detail below.
The proposed revisions reflect changes within the planning section of the application. The most significant of these changes relate to evidenced based practice for early intervention for the MHBG, participant directed care, medication assisted treatment for the SABG, crisis services, pregnant women and women with dependent children, community living and the implementation of Olmstead, and quality and data readiness collection.
The FY2014-2015 application sections on the Affordable Care Act, health insurance marketplace, enrollment and primary and behavioral health care integration have been consolidated into a Health Care System and Integration section moving the emphasis to implementation of health care systems rather than preparation of the Affordable Care Act. Additionally, the FY2014-2015 Quality, Data and Information Technology sections have been consolidated into one section in the FY2016-2017 application. SAMHSA has provided a set of guiding questions to stimulate and direct the dialogue that states may engage in to determine the various approaches used to develop their responses to each of the focus areas.
The proposed revisions are described below:
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Implementation by SMHAs, SSAs and their partners of the Affordable Care Act is an important part of efforts to ensure access to care and better integrate care. In a recent report, the Congressional Budget Office estimates that by 2018, 25 million persons will have enrolled in the Affordable Care Act Marketplace and 12 million in Medicaid and the State Children's Health Insurance Program (SCHIP). The Department of Health and Human Services Assistant Secretary for Planning and Evaluation (ASPE) estimates that 32 million Americans will acquire coverage for mental and substance use disorder treatment as a result of the Affordable Care Act, including both previously uninsured persons and those enrolled in plans that lacked adequate coverage. In 2014, non-grandfathered health plans sold in the individual or the small group health insurance markets offered coverage for mental and substance use disorders as an essential health benefit.
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States can implement models across a continuum, which have demonstrated efficacy, including the range of services and principles identified by NIMH. Utilizing these principles, regardless of the amount of investment, and with leveraging funds through inclusion of services reimbursed by Medicaid or private insurance, every state will be able to begin to move their system toward earlier intervention, or enhance the services already being implemented.
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States interested in utilizing a voucher system should create or maintain a voucher management system to support vouchering and the reporting of data to enhance accountability by measuring outcomes. Meeting these voucher program challenges by creating and coordinating a wide array of service providers, leading them though the innovations and inherent system change processes results in the building of an integrated system that provides holistic care to individuals recovering from mental and substance use disorders.
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A crisis response system will have the capacity to recognize and respond to crises across a continuum, from crisis planning, to early stages of support and respite, to crisis stabilization and intervention, to post-crisis follow-up and support for the individual and their family. SAMHSA expects that states will build on the emerging and growing body of evidence for effective community-based crisis response systems. Given the multi-system involvement of many individuals with behavioral health issues, the crisis response system approach provides the infrastructure to improve care coordination and outcomes, manage costs and better invest resources.
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Community living has been a priority across the federal government with recent changes to Section 811 and other housing programs operated by the Department of Housing and Urban Development (HUD). HUD and HHS collaborate to support housing opportunities for persons with disabilities, including persons with mental/substance use disorders. The Department of Justice (DOJ) and HHS Office of Civil Rights (OCR) cooperate on enforcement and compliance measures. DOJ and HHS OCR have expressed concern about some aspects of state mental health systems including use of traditional institutions and other residences that have institutional characteristics to house persons whose needs could be better met in community settings. More recently, there has been litigation regarding certain supported employment services such as sheltered workshops. States should ensure Block Grant funds are allocated to support treatment and recovery services in community settings whenever feasible and remain committed, as SAMHSA is, to ensuring services are implemented in accordance with Olmstead and Title II of the ADA.
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The foundation of this effort is National Quality Behavioral Health Framework, which derives from the National Quality Strategy and seeks to improve the delivery of health care services, individual patient health outcomes, and the overall health of the population. The overarching goals are to ensure that services are evidence-based and effective; that they are person/family-centered; that care is coordinated across systems; that services promote healthy living; and that they are safe, accessible and affordable.
For the FY 2016-2017 MHBG and SABG reports, achieving these goals will result in a more coordinated behavioral health data collection program that complements other existing systems (
SAMHSA anticipates this movement is consistent with the current state authority's movement toward system integration and will minimize challenges associated with changing operational logistics of data collection and reporting. SAMHSA understands some modifications to data collection systems may be necessary, but will work with the states to minimize the impact of these changes.
The overall format has been streamlined to integrate the environmental factors throughout the behavioral health assessment and plan narrative. This has reduced the length of the application by 10 pages.
While the statutory deadlines and block grant award periods remain unchanged, SAMHSA encourages states to turn in their application as early as possible to allow for a full discussion and review by SAMHSA. Applications for the MHBG-only is due no later than September 1, 2015. The application for SABG-only is due no later than October 1, 2015. A single application for MHBG
The estimated annualized burden for a uniform application is 37, 429 hours. Burden estimates are broken out in the following tables showing burden separately for Year 1 and Year 2. Year 1 includes the estimates of burden for the uniform application and annual reporting. Year 2 includes the estimates of burden for the application update and annual reporting. The reporting burden remains constant for both years.
Link for the application:
Send all comments via email to
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer on (240) 276-1243.
Comments are invited on: (a) Whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
In 2014, the Center for Behavioral Health Statistics and Quality (CBHSQ) funded the GDTA contract to provide training and technical assistance to all grantees receiving funding from the Center for Substance Abuse Treatment (CSAT), the Center for Mental Health Services (CMHS), and some grantees receiving funding from the Center for Substance Abuse Prevention (CSAP) that fall under the GDTA contract. This currently only includes discretionary grants but is expected to include block grants in future years. Training and technical assistance from the GDTA contract will focus on helping grantees use their Government and Performance Results Act of 1993 (GPRA) data for performance management and monitoring, and services improvement. The information being collected in this needs assessment will inform CBHSQ regarding the types of activities SAMHSA's grants use their funding for and what types of training activities they would like to receive in the future.
Description of Forms: Forms will include two questions. The first question asks about the services provided under the grant. Answer options include activities such as behavioral health care services, screening, prevention activities, and services to specific populations. The second question asks respondents to
Description of Respondents: The respondent universe for this data collection effort is one Project Director from each SAMHSA-funded grants being served by the GDTA contract. This currently only includes discretionary grants but is expected to include block grants in future years. There are currently 2,670 SAMHSA-funded discretionary grants served by the GDTA contract, therefore this is the number of respondents expected for this data collection effort.
Coast Guard, DHS.
Notice of federal advisory committee meeting.
The Chemical Transportation Advisory Committee and its subcommittees will meet on February 24, 25, and 26, 2015, in New Orleans, LA, to discuss the safe and secure marine transportation of hazardous materials. The meetings will be open to the public.
Subcommittees will meet on Tuesday, February 24, 2015, from 8:30 a.m. to 5 p.m. and on Wednesday, February 25, 2015, from 8:30 a.m. to 5 p.m. The full committee will meet on Thursday, February 26, 2015, from 8:30 a.m. to 5 p.m. Please note that these meetings may close early if the Committee has completed its business.
The meetings will be held at the NASA Michoud Assembly Facility, 13800 Old Gentilly Road, New Orleans, LA 70129. Attendees will be required to pre-register no later than 5 p.m. on February 13, 2015, to be admitted to the meeting. To pre-register contact Lieutenant Cristina Nelson at 202-372-1419 or
For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, contact the individual listed in the
To facilitate public participation, we are inviting public comment on the issues to be considered by the Committee as listed in the “Agenda” section below. Written comments for distribution to Committee members must be submitted no later than February 13, 2015, if you want the Committee members to be able to review your comments before the meeting, and must be identified by USCG-2014-0098. Written comments may be submitted by
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Commander Evan Hudspeth, Designated Federal Official of the Chemical Transportation Advisory Committee, 2703 Martin Luther King Jr. Ave. SE., Stop 7509, Washington, DC 20593-7509, telephone 202-372-1420, fax 202-372-8380, or
Notice of this meeting is given under the
The Chemical Transportation Advisory Committee is an advisory committee authorized under section 871 of the Homeland Security Act of 2002, 6 United States Code 451, and is chartered under the provisions of the Federal Advisory Committee Act. The committee acts solely in an advisory capacity to the Secretary of the Department of Homeland Security through the Commandant of the Coast Guard and the Deputy Commandant for Operations on matters relating to safe and secure marine transportation of hazardous materials activities insofar as they relate to matters within the United States Coast Guard's jurisdiction. The Committee advises, consults with, and makes recommendations reflecting its independent judgment to the Secretary.
The subcommittees on biofuels, liquefied gases, outreach, Ship to Ship
The agenda for each subcommittee will include the following:
1. Review task statements, which are listed in paragraph (4) of the agenda for the February 26, 2015, meeting.
2. Work on tasks assigned in task statements mentioned above.
3. Public comment period.
4. Discuss and prepare proposed recommendations for the Chemical Transportation Advisory Committee meeting on February 26, 2015, on tasks assigned in detailed task statements mentioned above.
The agenda for the Chemical Transportation Advisory Committee meeting on February 26, 2015, is as follows:
1. Introductions and opening remarks.
2. Swear in newly appointed Committee members.
3. Public comment period.
4. Committee will review, discuss, and formulate recommendations on the following task statements:
a. Harmonization of Response and Carriage Requirements for Biofuels and Biofuel Blends
b. Recommendations on Safety Standards for the Design of Vessels Carrying Natural Gas or Using Natural Gas as Fuel
c. Recommendations for Safety Standards for Ship to Ship Transfer of Hazardous Material Outside of the Baseline
d. Recommendations for Guidance on the Implementation of Revisions to MARPOL Annex II and the International Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk (commonly known as the IBC Code)
e. Improving Implementation of and Education about MARPOL Discharge Requirements under MARPOL Annex II and V
5. USCG presentations on the following items of interest:
a. Update on International Maritime Organization activities as they relate to the marine transportation of hazardous materials
b. Update on U.S. regulations and policy initiatives as they relate to the marine transportation of hazardous materials
6. Set next meeting date and location.
7. Set subcommittee meeting schedule.
A public comment period will be held during each Subcommittee and the full committee meeting concerning matters being discussed. Public comments will be limited to 3 minutes per speaker. Please note that the public comment period may end before the time indicated, following the last call for comments. Please contact Commander Evan Hudspeth, listed in the
Office of the Assistant Secretary for Public and Indian Housing, PIH, HUD; Office of the Deputy Assistant Secretary for Multifamily Housing, MF, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Room 4176, Washington, DC 20410-5000; telephone 202-402-3400 (this is not a toll-free number) or email at
Arlette Mussington, Office of Policy, Programs and Legislative Initiatives, PIH, Department of Housing and Urban Development, 451 7th Street SW., (L'Enfant Plaza, Room 2206), Washington, DC 20410; telephone 202-402-4109, (this is not a toll-free number). Persons with hearing or speech impairments may access this number via TTY by calling the Federal Information Relay Service at (800) 877-8339. Copies of available documents submitted to OMB may be obtained from Ms. Mussington.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice advises the public of a third allocation of Community Development Block Grant disaster recovery (CDBG-DR) funds for the purpose of assisting recovery in the most impacted and distressed areas identified in major disaster declarations in calendar year 2013. This is the seventh allocation of CDBG-DR funds under the Disaster Relief Appropriations Act, 2013 (Pub. L. 113-2). In addition to an initial allocation for disasters occurring in 2013, prior allocations addressed the areas most impacted by Hurricane Sandy, as well as the areas most impacted by disasters occurring in 2011 or 2012. In prior
Stan Gimont, Director, Office of Block Grant Assistance, Department of Housing and Urban Development, 451 7th Street SW., Room 7286, Washington, DC 20410, telephone number 202-708-3587. Persons with hearing or speech impairments may access this number via TTY by calling the Federal Relay Service at 800-877-8339. Facsimile inquiries may be sent to 202-401-2044. (Except for the “800” number, these telephone numbers are not toll-free.) Email inquiries may be sent to
The Disaster Relief Appropriations Act, 2013 (Pub. L. 113-2, approved January 29, 2013) (Appropriations Act) made available $16 billion in Community Development Block Grant disaster recovery (CDBG-DR) funds for necessary expenses related to disaster relief, long-term recovery, restoration of infrastructure and housing, and economic revitalization in the most impacted and distressed areas resulting from a major disaster declared pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1974 (42 U.S.C. 5121
On March 1, 2013, the President issued a sequestration order pursuant to section 251A of the Balanced Budget and Emergency Deficit Control Act, as amended (2 U.S.C. 901a), and reduced funding for CDBG-DR grants under the Appropriations Act to $15.18 billion. To date, a total of $15.1 billion has been allocated or set aside: $13 billion in response to Hurricane Sandy, $514 million in response to disasters occurring in 2011 or 2012, $565 million in response to 2013 disasters, and $1 billion set aside for the National Disaster Resilience Competition. This Notice advises the public of a third allocation for 2013 disasters—$89.8 million is provided for the purpose of assisting recovery in the most impacted and distressed areas in Colorado, the city of Chicago, Illinois, Cook County, Illinois, and Du Page County, Illinois. As the Appropriations Act requires funds to be awarded directly to a state or unit of general local government (hereinafter, local government), the term “grantee” refers to any jurisdiction receiving a direct award from HUD under this Notice.
To comply with statutory direction that funds be used for disaster-related expenses in the most impacted and distressed areas, HUD computes allocations based on the best available data that cover all the eligible affected areas. Based on further review of the impacts from Presidentially-declared disasters that occurred in 2013, and estimates of remaining unmet need, this Notice provides the following awards:
As outlined in Table 2, to ensure funds provided under this Notice address unmet needs within the “most impacted and distressed” counties, each local government receiving a direct award under this Notice must expend its entire CDBG-DR award within its jurisdiction (
This Notice builds upon the requirements of the
The requirements of this Notice parallel those established for other grantees receiving funds under the Appropriations Act in a
As a reminder, the Appropriations Act requires funds to be used only for specific disaster-recovery related purposes. This allocation provides additional funds to areas impacted by disasters in 2013 for recovery, including mitigation and resilience as part of the recovery effort and directs grantees to undertake comprehensive planning to promote resilience as part of that effort. The law also requires that prior to the obligation of CDBG-DR funds, a grantee shall submit a plan detailing the proposed use of funds, including criteria for eligibility and how the use of these funds will address disaster relief, long-term recovery, restoration of infrastructure and housing, and economic revitalization in the most impacted and distressed areas. To access funds provided by the prior allocations, HUD approved an Action Plan and Action Plan amendments for each of the grantees identified as receiving funds under this Notice. Grantees are now directed to submit a substantial Action Plan Amendment in order to access funds provided in this Notice. For more guidance on requirements for substantial Action Plan Amendments, please see section III of this Notice.
Note that, as provided by the HCD Act, funds may be used as a matching requirement, share, or contribution for any other federal program when used to carry out an eligible CDBG-DR activity.
To access funds allocated by this Notice grantees must submit a substantial Action Plan Amendment to their approved Action Plan. Any substantial Action Plan Amendment submitted after the effective date of this Notice is subject to the following requirements:
• Grantee consults with affected citizens, stakeholders, local governments and public housing authorities to determine updates to its needs assessment; in addition, grantee prepares a comprehensive risk analysis (see section V.3.d. of the June 3, 2014 Notice);
• Grantee amends its citizen participation plan to reflect the requirements of the June 3, 2014 Notice (
• Grantee publishes a substantial amendment to its previously approved Action Plan for Disaster Recovery on the grantee's official Web site for no less than 30 calendar days and holds at least one public hearing to solicit public comment;
• Grantee responds to public comment and submits its substantial Action Plan Amendment to HUD (with any additional certifications required by this Notice or Prior Notices) no later than 120 days after the effective date of this Notice;
• HUD reviews the substantial Action Plan Amendment within 60 days from date of receipt and approves the Amendment according to criteria identified in the Prior Notices;
• HUD sends an Action Plan Amendment approval letter, revised grant conditions (may not be applicable to all grantees), and an amended unsigned grant agreement to the grantee. If the substantial Amendment is not approved, a letter will be sent identifying its deficiencies; the grantee must then re-submit the Amendment within 45 days of the notification letter;
• Grantee ensures that the HUD-approved substantial Action Plan Amendment (and updated Action Plan) is posted on its official Web site;
• Grantee signs and returns the grant agreement;
• HUD signs the grant agreement and revises the grantee's line of credit amount;
• If it has not already done so, grantee enters the activities from its published Action Plan Amendment into the Disaster Recovery Grant Reporting (DRGR) system and submits it to HUD within the system;
• The grantee may draw down funds from the line of credit after the Responsible Entity completes applicable environmental review(s) pursuant to
• Grantee amends its published Action Plan to include its projection of expenditures and outcomes within 90 days of the Action Plan Amendment approval as provided for in paragraph 4.f. of section V of the June 3, 2014 Notice; and
• If not already completed, grantee updates its full consolidated plan to reflect disaster-related needs no later than its Fiscal Year 2015 consolidated plan update.
The Catalog of Federal Domestic Assistance number for the disaster recovery grants under this Notice is as follows: 14.269.
A Finding of No Significant Impact (FONSI) with respect to the environment has been made in accordance with HUD regulations at
HUD calculates the cost to rebuild the most impacted and distressed homes, businesses, and infrastructure back to pre-disaster conditions. From this base calculation, HUD calculates both the amount not covered by insurance and other federal sources to rebuild back to pre-disaster conditions as well as a “resiliency” amount which is calculated at 30 percent of the total basic cost to rebuild back the most distressed flooded homes, businesses, and infrastructure to pre-disaster conditions; 10 percent for other disaster types (
Public Law 113-2 (January 29, 2013) provides the following language on how the Secretary shall allocate the funds: “For an additional amount for “Community Development Fund”, $16,000,000,000,
The “best available” data HUD staff have identified as being available to calculate unmet needs at this time for all disasters in 2011, 2012, and 2013 meeting HUD's Most Impacted and Distressed threshold comes from the following data sources:
• FEMA Individual Assistance program data on housing unit damage;
• SBA for management of its disaster assistance loan program for housing repair and replacement;
• SBA for management of its disaster assistance loan program for business real estate repair and replacement as well as content loss; and
• FEMA Public Assistance, Department of Transportation Federal Transit Administration and Federal Highway Administration, Corps of Engineers, and US Department of Agriculture Emergency Watershed Restoration data on infrastructure.
These funds are only allocated toward disasters in 2011, 2012, and 2013 determined by HUD to be most impacted and distressed disasters.
The core data on housing damage for both the unmet housing needs calculation and the concentrated damage are based on home inspection data for FEMA's Individual Assistance program (extracted January 2014). For unmet housing needs, the FEMA data are supplemented by Small Business Administration data from its Disaster Loan Program (extracted January 2014). HUD calculates “unmet housing needs” as the number of housing units with unmet needs times the estimated cost to repair those units less repair funds already provided by FEMA, where:
• Each of the FEMA inspected owner units are categorized by HUD into one of five categories:
○ Minor-Low: Less than $3,000 of FEMA inspected real property damage.
○ Minor-High: $3,000 to $7,999 of FEMA inspected real property damage.
○ Major-Low: $8,000 to $14,999 of FEMA inspected real property damage (if basement flooding only, damage categorization is capped at major-low).
○ Major-High: $15,000 to $28,800 of FEMA inspected real property damage and/or 4 to 6 feet of flooding on the first floor.
○ Severe: Greater than $28,800 of FEMA inspected real property damage or determined destroyed and/or 6 or more feet of flooding on the first floor.
To meet the statutory requirement of “most impacted and distressed” in this legislative language, homes are determined to have a high level of damage if they have damage of “major-low” or higher. That is, they have a real property FEMA inspected damage of $8,000 or flooding over 4 foot. Furthermore, a homeowner is determined to have unmet needs if they have received a FEMA grant to make home repairs. For homeowners with a FEMA grant and insurance for the covered event, HUD assumes that the unmet need “gap” is 20 percent of the difference between total damage and the FEMA grant.
• FEMA does not inspect rental units for real property damage so personal property damage is used as a proxy for unit damage. Each of the FEMA inspected renter units are categorized by HUD into one of five categories:
○ Minor-Low: Less than $1,000 of FEMA inspected personal property damage.
○ Minor-High: $1,000 to $1,999 of FEMA inspected personal property damage.
○ Major-Low: $2,000 to $3,499 of FEMA inspected personal property damage (if basement flooding only, damage categorization is capped at major-low).
○ Major-High: $3,500 to $7,499 of FEMA inspected personal property damage or 4 to 6 feet of flooding on the first floor.
○ Severe: Greater than $7,500 of FEMA inspected personal property damage or determined destroyed and/or 6 or more feet of flooding on the first floor.
For rental properties, to meet the statutory requirement of “most impacted and distressed” in this legislative language, homes are determined to have a high level of damage if they have damage of “major-low” or higher. That is, they have a FEMA personal property damage assessment of $2,000 or greater or flooding over 4 foot. Furthermore, landlords are presumed to have adequate insurance coverage unless the unit is occupied by a renter with income of $30,000 or less. Units are occupied by a tenant with income less than $30,000 are used to calculate likely unmet needs for affordable rental housing. For those units occupied by tenants with incomes under $30,000, HUD estimates unmet needs as 75 percent of the estimated repair cost.
• The median cost to fully repair a home for a specific disaster to code within each of the damage categories noted above is calculated using the average real property damage repair costs determined by the Small Business Administration for its disaster loan program for the subset of homes inspected by both SBA and FEMA. Because SBA is inspecting for full repair costs, it is presumed to reflect the full cost to repair the home, which is generally more than the FEMA estimates on the cost to make the home habitable. If fewer than 100 SBA inspections are made for homes within a FEMA damage category, the estimated damage amount in the category for that disaster has a cap applied at the 75th percentile of all damaged units for that category for all disasters and has a floor applied at the 25th percentile.
• To proxy unmet infrastructure needs, HUD uses data from FEMA's Public Assistance program on the state match requirement (extracted January 2014). This allocation uses only a subset of the Public Assistance damage estimates reflecting the categories of activities most likely to require CDBG-DR funding above the Public Assistance and state match requirement. Those activities are categories: C—Roads and Bridges; D—Water Control Facilities; E—Public Buildings; F—Public Utilities; and G—Recreational-Other. Categories A (Debris Removal) and B (Protective Measures) are largely expended immediately after a disaster and reflect interim recovery measures rather than the long-term recovery measures for which CDBG-DR funds are generally used.
For the third round of CDBG-DR funding for Sandy recovery, HUD also includes data from the USDA Emergency Watershed Repair Program (extracted May 2014). For most impacted disasters in 2011, 2012, and 2013 that have not received supplemental funding to address watershed repairs, HUD includes the estimated unmet repair costs calculated by USDA in the unmet repair needs calculation.
• Based on SBA disaster loans to businesses (extracted January 2014), HUD used the sum of real property and real content loss of small businesses not receiving an SBA disaster loan. This is adjusted upward by the proportion of applications that were received for a disaster that content and real property loss were not calculated because the applicant had inadequate credit or income. For example, if a state had 160 applications for assistance, 150 had calculated needs and 10 were denied in the pre-processing stage for not enough income or poor credit, the estimated unmet need calculation would be increased as (1 + 10/160) * calculated unmet real content loss.
• Because applications denied for poor credit or income are the most likely measure of needs requiring the type of assistance available with CDBG-
○ Category 1: real estate + content loss = below $12,000
○ Category 2: real estate + content loss = $12,000 to $30,000
○ Category 3: real estate + content loss = $30,000 to $65,000
○ Category 4: real estate + content loss = $65,000 to $150,000
○ Category 5: real estate + content loss = above $150,000
To obtain unmet business needs, the amount for approved SBA loans is subtracted out of the total estimated damage.
CDBG DR funds are often used to not only support rebuilding to pre-storm conditions, but also to build back much stronger. For the disasters covered by this Notice, HUD has required that grantees use their funds in a way that results in rebuilding back stronger so that future disasters do less damage and recovery can happen faster. To calculate these resiliency costs, HUD multiplied its estimates of total repair costs for seriously damaged homes, small businesses, and infrastructure by 30 percent for flooding disasters and 10 percent for other disasters.
For grantees with housing construction costs above the national average, HUD increases their estimated housing and business construction costs using the same Marshall & Swift regional cost adjustment multipliers as used for HUD's annual calculation of Total Development Costs developed for HUD's public housing repair programs. No estimate of damage is reduced by the multiplier (
Office of the Special Trustee for American Indians, Interior.
Notice of amendment to an existing system of records.
Pursuant to the provisions of the Privacy Act of 1974, as amended, the Department of the Interior is issuing a public notice of its intent to amend the Office of the Special Trustee for American Indians Privacy Act system of records, “Individual Indian Money (IIM) Trust Funds-Interior, OS-02,” to combine the existing system of records with the OST Privacy Act system of records, “Accounting Reconciliation Tool (ART)—Interior, OS-11” into one system of records for efficiency purposes and to promote the overall streamlining and management of Department of the Interior Privacy Act systems of records. This amendment will also update the system location, categories of individuals covered by the system, categories of records in the system, authority for maintenance of the system, storage, safeguards, retention and disposal, system manager and address, notification procedures, records access and contesting procedures, records source categories, and the routine uses to include activities related to land consolidation of fractionated lands.
Comments must be received by February 17, 2015. The amendments to the system will be effective February 17, 2015.
Any person interested in commenting on this notice may do so by: submitting comments in writing to Veronica Herkshan, Office of the Special Trustee for American Indians Privacy Act Officer, 4400 Masthead Street NE., Albuquerque, New Mexico 87109; hand-delivering comments to Veronica Herkshan, Office of the Special Trustee for American Indians Privacy Act Officer, 4400 Masthead Street NE., Albuquerque, New Mexico, 87109; or emailing comments to veronica
Chief of Staff, Office of the Special Trustee for American Indians, 1849 C Street NW., Room 3254, Washington, DC 20240, or by telephone at 202-208-4866.
The Department of the Interior (DOI), Office of the Special Trustee for American Indians (OST), maintains the “Individual Indian Money (IIM) Trust Funds—Interior, OS-02,” system of records. Due to a recent reorganization of OST and the Office of Historical Accounting, DOI is proposing to combine the OST Privacy Act system of records, “Individual Indian Money (IIM) Trust Funds—Interior, OS-02,” with the OST Privacy Act system of records, “Accounting Reconciliation Tool (ART)—Interior, OS-11,” for efficiency purposes and to promote the overall streamlining and management of DOI Privacy Act systems of records. The two systems have the same authorities and purpose, to manage the collection, distribution, and disbursement of Indian Trust land income; are managed by the same system manager within OST; and have the same or similar categories of records, categories of individuals, and routine uses.
The IIM system will assist OST in meeting the fiduciary responsibilities set forth in the American Indian Trust Fund Management Reform Act of 1994 including management of the receipt, investment, disbursement and administration of money held in trust for individual Indians and Alaskan Natives (or their heirs), and Indian Tribes; and ensure timely, accurate, and consistent responses to beneficiary inquiries. The system also assists the OST in providing litigation support in analyzing and reconciling the historical collection, distribution, and disbursement of income from IIM accounts, Indian trust land, and other revenue sources. The amendments to this system includes updating the system locations, categories of individuals covered by the system, categories of records in the system, authority for maintenance of the system, storage, safeguards, retention and disposal, system manager and address, notification procedures, records access and contesting procedures, records source categories, and updating the routine uses to include activities related to land consolidation of fractionated
The amendments to the system will be effective as proposed at the end of the comment period (the comment period will end 40 days after the publication of this notice in the
The Privacy Act of 1974, as amended (5 U.S.C. 552a), embodies fair information practice principles in a statutory framework governing the means by which Federal agencies collect, maintain, use, and disseminate individuals' personal information. The Privacy Act applies to records about individuals that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency for which information about an individual is retrieved by the name or by some identifying number, symbol, or other identifying particular assigned to the individual. The Privacy Act defines an individual as a U.S. citizen or lawful permanent resident. As a matter of policy, DOI extends administrative Privacy Act protections to all individuals. Individuals may request access to their own records that are maintained in a system of records in the possession or under the control of the DOI by complying with DOI Privacy Act regulations at 43 CFR part 2, subpart K.
The Privacy Act requires each agency to publish in the
In accordance with 5 U.S.C. 552a(r), DOI has provided a report of this system of records to the Office of Management and Budget and to Congress.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Individual Indian Money (IIM) Trust Funds—Interior, OS-02.
Unclassified.
The system is located and centrally managed at OST, U.S. Department of the Interior, 4400 Masthead Street, NE., Albuquerque, New Mexico 87109. Records are also located at the American Indian Records Repository, 17501 West 98th Street, Lenexa, Kansas 66219; SEI, One Freedom Valley Drive, Oaks, Pennsylvania 19456; the Bureau of Indian Affairs, Southwest Region, Albuquerque Data Center, 1001 Indian School Road, Albuquerque, New Mexico 87109; the OST, U.S. Department of the Interior, 1849 C Street NW., Washington, DC 20240; other DOI and Office of the Secretary program offices; OST regional and field offices; offices of contractors; and offices of Indian Tribes that administer the IIM account program under Indian Self-Determination or Self-Governance contracts or compacts.
Individuals covered by the system include individual Indians and Alaskan Natives (or their heirs), Indian Tribes, current and former Federal employees and contractors who receive IIM account information or are IIM account holders, owners of land held in trust or restricted status by the Federal Government, and DOI employees, contractors, and officials acting in their official capacity to administer program activities. Additionally, this system contains information regarding individuals owning purchasable fractional interests in land or who may be interested in participating in the Land Buy-Back Program; members of the public, including individuals who make inquiries about the Cobell Settlement payments, acquaintances of IIM account holders, depositors into and claimants against IIM accounts, individuals who lease, contract, or who are permit holders on Indian lands, and individuals with whom OST conducts business.
The system contains information about private organizations that provide contact information about individual Indian account holders whose whereabouts are unknown to OST, and records concerning corporations and other business entities, which are not subject to the Privacy Act. However, records pertaining to individuals acting on behalf of corporations and other business entities may reflect personal information.
Records in this system include IIM account and Tribal trust fund account records such as financial documents, account reconciliation information, disbursements, investments, bonds, transfers, and historical statements of account, which contain the following information: Names, aliases, addresses, gender, dates of birth, dates of death, telephone numbers, email addresses and other contact information, Social Security numbers, IIM account numbers, Tribal affiliation (membership), Tribal enrollment numbers, blood quantum, bank routing numbers, bank account numbers, taxpayer identification numbers, guardianship information, and Tribal trust account codes. Records also include documents related to financial and investment activity, custodianship of investments for IIM accounts and Tribal trust fund accounts. Financial documents, transaction data regarding receipts, disbursements, investments and transfers, and contact information for individuals who may know the whereabouts of unknown locations of beneficiaries is also included in this system.
Records also include data regarding IIM accounts that may be obtained from the OST Accounting Reconciliation Tool system, Trust Funds Accounting System (TFAS), and the Bureau of Indian Affairs (BIA) Trust Asset and Accounting Management System (TAAMS). These records help reconcile IIM accounts and may include land
American Indian Trust Fund Management Reform Act of 1994, Public Law 103-412, 108 Stat. 4239; 25 U.S.C. 42, American Indian Trust Fund Management Reform; 25 U.S.C. 116, 117(a)(b)(c), 118, 119, 120, 121, 151, 159, 161(a), 162(a), 4011, 4043(b)(2)(B).
The IIM Trust Funds system of records is used to manage the collection, investment, distribution, and disbursement of IIM account and Tribal trust fund income; comply with the American Indian Trust Fund Management Reform Act of 1994 (Pub. L. 103-412, 108 Stat. 4239); improve accountability and management of Indian funds held in trust by the Government; provide trust services and information for Indian trust funds program management; manage beneficiary contact including inquiries and requests regarding their trust assets; provide IIM account status to IIM account holders; locate IIM account holders whose whereabouts are currently unknown; document trust account transaction history and quarterly statements; and transfer electronic data to the Department of the Treasury for the processing of IIM account and Tribal trust fund account payments. It also supports DOI land consolidation activities and provides an interface to TAAMS, a system of record for title and land resource management of Indian trust land within DOI and the Bureau of Indian Affairs (BIA).
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed outside DOI as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
(1) (a) To any of the following entities or individuals, when the circumstances set forth in paragraph (b) are met:
(i) The U.S. Department of Justice (DOJ);
(ii) A court or an adjudicative or other administrative body;
(iii) A party in litigation before a court or an adjudicative or other administrative body; or
(iv) Any DOI employee acting in his or her individual capacity if DOI or DOJ has agreed to represent that employee or pay for private representation of the employee;
(b) When:
(i) One of the following is a party to the proceeding or has an interest in the proceeding:
(A) DOI or any component of DOI;
(B) Any other Federal agency appearing before the Office of Hearings and Appeals;
(C) Any DOI employee acting in his or her official capacity;
(D) Any DOI employee acting in his or her individual capacity if DOI or DOJ has agreed to represent that employee or pay for private representation of the employee;
(E) The United States, when DOJ determines that DOI is likely to be affected by the proceeding; and
(ii) DOI deems the disclosure to be:
(A) Relevant and necessary to the proceeding; and
(B) Compatible with the purpose for which the records were compiled.
(2) To a congressional office in response to a written inquiry that an individual covered by the system, or the heir of such individual if the covered individual is deceased, has made to the office.
(3) To any criminal, civil, or regulatory law enforcement authority (whether Federal, state, territorial, local, Tribal or foreign) when a record, either alone or in conjunction with other information, indicates a violation or potential violation of law—criminal, civil, or regulatory in nature, and the disclosure is compatible with the purpose for which the records were compiled.
(4) To an official of another Federal agency to provide information needed in the performance of official duties related to reconciling or reconstructing data files or to enable that agency to respond to an inquiry by the individual to whom the record pertains.
(5) To Federal, state, territorial, local, Tribal, or foreign agencies that have requested information relevant or necessary to the hiring, firing or retention of an employee or contractor, or the issuance of a security clearance, license, contract, grant or other benefit, when the disclosure is compatible with the purpose for which the records were compiled.
(6) To representatives of the National Archives and Records Administration to conduct records management inspections under the authority of 44 U.S.C. 2904 and 2906.
(7) To state and local governments and Tribal organizations to provide information needed in response to court order and/or discovery purposes related to litigation, when the disclosure is compatible with the purpose for which the records were compiled.
(8) To an expert, consultant, or contractor (including employees of the contractor) of DOI that performs services requiring access to these records on DOI's behalf to carry out the purposes of the system.
(9) To appropriate agencies, entities, and persons when:
(a) It is suspected or confirmed that the security or confidentiality of information in the system of records has been compromised; and
(b) The Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interest, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Department or another agency or entity) that rely upon the compromised information; and
(c) The disclosure is made to such agencies, entities and persons who are reasonably necessary to assist in connection with the Department's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
(10) To the Office of Management and Budget during the coordination and clearance process in connection with legislative affairs as mandated by OMB Circular A-19.
(11) To the Department of the Treasury, as needed, in the performance of their official duties to disburse trust funds and to issue disbursements, Explanation of Payment reports (EOPs), Statements of Performance (including Assets), IRS Form 1099s, Osage Headright Owner's Share of Income, Deductions, etc., and BIA invoices for the use or sale of Indian trust lands and resources, as well as, to recover debts owed to the United States.
(12) To agency contractors who have been engaged to assist the Government in the performance of a contract, grant, cooperative agreement, or other activity related to this system of records and who need to have access to the records in order to perform the activity.
(13) To Indian Tribes entering into a contract or compacts of the trust funds management functions under the Indian Self-Determination and Education Assistance Act, as amended.
(14) To any of the following entities or individuals, when the entity or individual makes a written request for information of owners of any interest in
(i) To other owners of interests in trust or restricted lands within the same Indian Reservation;
(ii) To Tribes that exercise jurisdiction over the land where the parcel is located or any person who is eligible for membership in a Tribe; and
(iii) To any person that is leasing, using or consolidating, or is applying to lease, use or consolidate trust or restricted land or the interest in trust or restricted lands.
(15) To Indian Tribes entering into a contract or compacts of real estate or title functions under the Indian Self-Determination and Education Assistance Act, as amended.
(16) To Indian Tribes (including employees) who (1) operate, or are eligible to operate, land consolidation activities on behalf of DOI, (2) agree to non-disclosure, and (3) submit a request in writing, upon a determination by DOI that such activities shall occur on the Tribe's Reservation within 6 months or less and when the information relates to owners of fractionated land. Information disclosed may include, but not limited to, the following:
(a) Contact information (telephone number, email address);
(b) Relevant personal characteristics of the owner (age, Tribal membership, living/deceased);
(c) Type of ownership,
(d) Transaction status,
(17) To the lineal descendant, heir, or devisee of a deceased individual covered by the system or to any other person entitled to the deceased's trust assets.
(18) To IIM account owners, their heirs, guardians, or agents.
(19) To members of the public, the names of IIM account holders whose whereabouts are unknown and OST is seeking a current address.
(18) To the news media and the public, with the approval of the Public Affairs Officer in consultation with Counsel and the Senior Agency Official for Privacy, where there exists a legitimate public interest in the disclosure of the information, except to the extent it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.
Pursuant to 5 U.S.C. 552a(b)(12), disclosures may be made to a consumer reporting agency as defined in the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) or the Federal Claims Collection Act of 1996 (31 U.S.C. 3701(a)(3)).
Records maintained in paper form are stored in file folders in file cabinets. Electronic records are maintained in computer servers, computer hard drives, electronic databases, email, and electronic media such as removable drives, compact disc, magnetic disk, diskette, and computer tapes.
Records are retrieved by individual names, Social Security numbers, IIM or Tribal trust fund account numbers, Tribe, Tribal enrollment or census numbers, Tribal codes, electronic ticket numbers, contact names, and call numbers or incident numbers. Identifiers may also be linked to appraisals, parcels, or encumbrances on ownership.
The records contained in this system are safeguarded in accordance with 43 CFR 2.226 and other applicable security and privacy policies and standards. During normal hours of operation, paper records are maintained in locked file cabinets under the control of authorized personnel. Computerized records systems follow the National Institute of Standards and Technology standards as developed to comply with the Privacy Act of 1974 (Pub. L. 93-579), Paperwork Reduction Act of 1995 (Pub. L. 104-13), Federal Information Security Management Act of 2002 (Pub. L. 107-347), and the Federal Information Processing Standards 199, Standards for Security Categorization of Federal Information and Information Systems. Computer servers in which electronic records are stored are located in secured DOI and contractor facilities. Access to records in the system is limited to authorized personnel who have a need to access the records in the performance of their official duties. Electronic data is protected through user identification, passwords, database permissions and software controls. Such security measures establish different access levels for different types of users associated with pre-defined groups and/or bureaus. Each user's access is restricted to only the functions and data necessary to perform that person's job responsibilities. Access can be restricted to specific functions (create, update, delete, view, assign permissions) and is restricted utilizing role-based access. Authorized users are trained and required to follow established internal security protocols and must complete all security, privacy, and records management training and sign the DOI Rules of Behavior. Contract employees with access to the system are monitored by their Contracting Officer's Technical Representative and agency Security Manager. A Privacy Impact Assessment was conducted to ensure that Privacy Act safeguard requirements are met and appropriate privacy controls and safeguards are in place.
Records in this system are covered by the Indian Affairs Records Schedule records series 6100 and 9000 approved on June 28, 2006, by the National Archives and Records Administration (NARA) Job No. N1-075-04-7 and Job. No. N1-075-06-8. The Indian Fiduciary Financial Trust records are cut off at the end of the fiscal year, maintained in the office two years after cut off, and then retired to the American Indian Records Repository (AIRR), Federal Records Center, Lenexa, Kansas. Subsequent legal transfer of the records to the National Archives of the United States will be in accordance with the signed Standard Form 258, Agreement to Transfer Records to the National Archives of the United States. Historical Trust Accounting records are cut off at fiscal year-end, maintained in the office of records for a maximum of 5 years after cut off, and then retired to the AIRR, Federal Records Center, Lenexa, Kansas. Subsequent legal transfer of the records to the National Archives of the United States will be as jointly agreed to between the U.S. Department of the Interior and NARA. Temporary records are maintained and disposed of in accordance with the General Records Schedule for the appropriate record type (including data backup tapes or copies).
Chief of Staff, Office of the Special Trustee for American Indians, 1849 C Street NW., Room 3254, Washington, DC 20240.
An individual requesting notification of the existence of records on himself or herself should send a signed, written inquiry to the System Manager identified above. The request envelope and letter should both be clearly marked
(a) Proof of your identity;
(b) List of all of the names by which you have been known, such as maiden name or alias(es);
(c) Social Security number;
(d) Mailing address;
(e) Tribe, IIM account number, Tribal enrollment, or census number;
(f) BIA home agency; and
(g) Time period(s) during which the records may have been created or maintained, to the extent known by you.
An individual requesting records on himself or herself should send a signed written request to the System Manager identified above. The request should describe the records sought as specifically as possible. The request envelope and letter should both be clearly marked “PRIVACY ACT REQUEST FOR ACCESS.” A request for access must meet the requirements of 43 CFR 2.238. Provide the following information with your request:
(a) Proof of your identity;
(b) List of all of the names by which you have been known, such as maiden name or alias(es);
(c) Social Security number;
(d) Mailing address;
(e) Tribe, IIM account number, Tribal enrollment, or census number;
(f) BIA home agency;
(g) Time period(s) during which the records may have been created or maintained, to the extent known by you; and
(h) Description or identification of the records you are requesting (including whether you are asking for a copy of all of your records or only a specific part of them) and the maximum amount of money that you are willing to pay for duplication.
An individual requesting corrections or the removal of material from his or her records should send a signed, written request to the System Manager identified above. A request for corrections or removal must meet the requirements of 43 CFR 2.246. Provide the following information with your request:
(a) Proof of your identity;
(b) List of all of the names by which you have been known, such as maiden name or alias(es);
(c) Social Security number;
(d) Mailing address;
(e) Tribe, IIM account number, Tribal enrollment, or census number;
(f) BIA home agency;
(g) Time period(s) during which the records may have been created or maintained, to the extent known by you;
(h) Specific description or identification of the record(s) you are contesting and the reason(s) why you believe the record(s) are not accurate, relevant, timely, or complete; and
(i) Copy of documents or evidence in support of (h) above.
Sources of information in the system include individual Indians and Alaskan Natives (or their heirs), Indian Tribes, current and former Federal employees and contractors who receive IIM account information or are IIM account holders. Records and financial data in this system are also obtained from the OST ART and TFAS, other DOI Bureaus and Offices including BIA, Office of Natural Resources and Revenue, Bureau of Land Management, Office of Hearings and Appeals, and the Office of the Secretary. Information may also be obtained from the DOJ, Department of the Treasury, and other Federal, state and local agencies, and Tribes; Courts of competent jurisdiction, including Tribal courts; and private, financial and business institutions and entities.
Additionally, this system contains information received from members of the public, including individuals who make inquiries about Cobell Settlement payments, acquaintances of IIM account holders, depositors into and claimants against IIM accounts, individuals who lease, contract, or who are permit holders on Indian lands, and individuals with whom OST conducts business. The system also contains information received from private organizations about individual Indian account holders whose whereabouts are unknown to OST; and correspondents, participants, beneficiaries, land owners, and members of the public who participate or are interested in land consolidation or related program activities.
None.
Bureau of Land Management, Interior.
60-Day notice and request for comments.
In compliance with the Paperwork Reduction Act, the Bureau of Land Management (BLM) invites public comments on, and plans to request approval to continue, the collection of information about transfers and assignments of leases for oil, gas, and geothermal resources. The Office of Management and Budget (OMB) has assigned control number 1004-0034 to this information collection.
Please submit comments on the proposed information collection by March 9, 2015.
Comments may be submitted by mail, fax, or electronic mail. Mail: U.S. Department of the Interior, Bureau of Land Management, 1849 C Street NW., Room 2134LM, Attention: Jean Sonneman, Washington, DC 20240. Fax: to Jean Sonneman at 202-245-0050. Electronic mail:
Jennifer Spencer at 202-912-7146 (oil and gas) or Lorenzo Trimble at 775-861-6567 (geothermal resources). Persons who use a telecommunication device for the deaf may call the Federal Information Relay Service at 1-800-877-8339, to leave a message for Ms. Spencer or Mr. Trimble.
OMB regulations at 5 CFR part 1320, which implement provisions of the Paperwork Reduction Act, 44 U.S.C. 3501-3521, require that interested members of the public and affected agencies be given an opportunity to comment on information collection and recordkeeping activities (see 5 CFR 1320.8 (d) and 1320.12(a)). This notice identifies an information collection that the BLM plans to submit to OMB for approval. The Paperwork Reduction Act provides that an agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. Until OMB approves a collection of information, you are not obligated to respond.
The BLM will request a 3-year term of approval for this information collection
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
The following information pertains to this request:
• Form 3000-3, Assignment of Record Title Interest in a Lease for Oil and Gas or Geothermal Resources; and
• Form 3000-3a, Transfer of Operating Rights (Sublease) in a Lease for Oil and Gas or Geothermal Resources.
The estimated annual burdens are itemized in the following table:
National Park Service, Interior.
Notice of availability.
The National Park Service (NPS) announces the availability of the Record of Decision (ROD) for the General Management Plan (GMP) for Gulf Islands National Seashore (National Seashore). On September 11, 2014, the Regional Director, Southeast Region, approved the ROD for the project.
Superintendent Dan Brown, Gulf Islands National Seashore, 1801 Gulf Breeze Parkway, Gulf Breeze, FL 32563; or via telephone at (850) 934-2600.
The NPS evaluated four alternatives for managing use and development of the national seashore in the GMP Final Environmental Impact Statement:
Alternative 1—no action.
Alternative 2—The National Seashore would be managed to adapt to the wild and dynamic processes of the northern Gulf Coast while providing seashore recreational and educational opportunities. The level of infrastructure to support visitor services on barrier island areas would be adapted or removed as the environment changes over time.
Alternative 3 (NPS preferred alternative)—the National Seashore would be managed as an outdoor classroom for exploring the natural and human history of the northern Gulf Coast while providing seashore recreational opportunities. Collaboration and cooperation between a consortium of academia, visiting scientists, conservation organizations, and other agencies would be actively pursued to enhance resource management, stewardship, and understanding of the northern gulf coastal environment.
Alternative 4—The NPS would seek to collaborate and expand partnerships with educational and cultural institutions, nonprofit organizations, and commercial service providers to promote a greater array of National Seashore recreational and educational opportunities among a variety of coastal settings.
The ROD announces that the NPS has selected alternative 3, and the NPS will immediately begin to implement that alternative as the GMP. The GMP will guide the management of the national monument over the next 20+ years.
The responsible official for this FEIS/GMP is the Regional Director, NPS Southeast Region, 100 Alabama Street SW., 1924 Building, Atlanta, Georgia 30303.
On the basis of the record
The Commission instituted these investigations effective January 31, 2014, following receipt of a petition filed with the Commission and Commerce by ArcelorMittal USA LLC, Chicago, Illinois; Charter Steel, Saukville, Wisconsin; Evraz Pueblo, Pueblo, Colorado; Gerdau Ameristeel US Inc., Tampa, Florida; Keystone Consolidated Industries, Inc., Dallas, Texas; and Nucor Corporation, Charlotte, North Carolina. The final phase of the investigations was scheduled by the Commission following notification of a preliminary determination by Commerce that imports of carbon and certain alloy steel wire rod from China were subsidized within the meaning of section 703(b) of the Act (19 U.S.C. 1671b(b)) and dumped within the meaning of 733(b) of the Act (19 U.S.C. 1673b(b)). Notice of the scheduling of the final phase of the Commission's investigations and of a public hearing to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission completed and filed its determination in these investigations on January 2, 2015. The views of the Commission are contained in USITC Publication 4509 (January 2015), entitled
By order of the Commission.
Judicial Conference of the United States, Advisory Committee on Rules of Criminal Procedure.
Notice of cancellation of public hearing.
The following public hearing on proposed amendments to the Federal Rules of Criminal Procedure has been canceled: Criminal Rules Hearing, January 30, 2015, in Nashville, Tennessee. Announcements for this meeting were previously published in 79 FR 48250 and 79 FR 72702.
Jonathan C. Rose, Secretary and Chief Rules Officer, Rules Committee Support Office, Administrative Office of the United States Courts, Washington, DC 20544, telephone (202) 502-1820.
On January 2, 2015, the Department of Justice lodged a proposed Consent Decree in
The United States and the State filed an amended complaint against Fort Smith on the same date. The amended complaint alleges that Fort Smith discharged untreated wastewater from Fort Smith's sanitary sewer collection system to waters of the United States and the State on numerous occasions, and that Fort Smith failed to comply with certain terms and conditions of its National Pollutant Discharge Elimination System permits, in violation of Sections 301 and 402 of the Clean Water Act, 33 U.S.C. 1311 and 1342.
Under the settlement, Fort Smith will implement various injunctive measures to achieve full compliance with the Clean Water Act and eliminate sanitary system overflows. The injunctive measures to be undertaken by Fort Smith include conducting a comprehensive inspection of its collection system for condition defects, increasing capacity of sewer lines, where needed, repairing, rehabilitating or replacing sewer lines with significant defects, upgrading of pump stations, and developing and implementing a “capacity, management, operation and maintenance system” to further reduce the incidence of sanitary sewer overflows. The estimated cost of implementing these measures, over an anticipated 12 year period, is approximately $205,000,000 in current dollars. Fort Smith will also implement a Supplemental Environmental Project aimed at assisting qualified low income residential property owners to repair or replace defective private service lines which connection to its collection system, valued at $400,000. Fort Smith will also pay a civil penalty of to the United States of $300,000.
The publication of this notice opens a period for public comment on the proposed Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the proposed Consent Decree may be examined and downloaded at this Justice Department Web site:
On January 2, 2015, the Department of Justice lodged a proposed consent decree (“proposed Decree”) with the United States District Court for the Western District of Pennsylvania in the lawsuit entitled
The United States filed this lawsuit under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the complaint names American Iron and Metal Company, Inc.; Garfield Alloys, Inc.; Pace Industries on behalf of Leggett and Platt, Inc.; Magnesium Products of America, Inc.; Spartan Light Metals Products, LLC; and SPX Corporation as defendants. The complaint requests recovery of costs that the United States incurred responding to releases of hazardous substances at the Remacor Site in West Pittsburg, Lawrence County, Pennsylvania. All defendants signed the consent decree, and collectively agree to pay $5,920,000 of the United States' past response costs. In return, the United States agrees not to sue the defendants under section 107(a) of CERCLA, 42 U.S.C. 9607(a).
The publication of this notice opens a period for public comment on the proposed Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the consent decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $7.00 (25 cents per page reproduction cost) payable to the United States Treasury.
Notice.
The Department of Labor (DOL) is submitting the Bureau of Labor Statistics (BLS) sponsored information collection request (ICR) revision titled, “Telephone Point of Purchase Survey,” to the Office of Management and Budget (OMB) for review and approval for use in accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501
The OMB will consider all written comments that agency receives on or before February 9, 2015.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the
Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-BLS, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
Contact Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064, (these are not toll-free numbers) or sending an email to
44 U.S.C. 3507(a)(1)(D).
This ICR seeks approval under the PRA for revisions to the Telephone Point of Purchase Survey (TPOPS) information collection. The BLS administers the survey quarterly via a computer-assisted-telephone-interview. This survey is flexible and creates the possibility of introducing new products into the Consumer Price Index (CPI) in a timely manner. The data collected in this survey are necessary for the continuing construction of a current outlet universe from which locations are
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
All meetings are held at 2:00 p.m., Wednesday, January 7; Tuesday, January 13; Wednesday, January 14; Thursday, January 15; Tuesday, January 20; Wednesday, January 21; Thursday, January 22; Tuesday, January 27; Wednesday, January 28; Thursday, January 29.
Board Agenda Room, No. 11820, 1099 14th St. NW., Washington, DC 20570.
Closed.
Pursuant to § 102.139(a) of the Board's Rules and Regulations, the Board or a panel thereof will consider “the issuance of a subpoena, the Board's participation in a civil action or proceeding or an arbitration, or the initiation, conduct, or disposition . . . of particular representation or unfair labor practice proceedings under section 8, 9, or 10 of the [National Labor Relations] Act, or any court proceedings collateral or ancillary thereto.” See also 5 U.S.C. 552b(c)(10).
Henry Breiteneicher, Associate Executive Secretary, (202) 273-2917.
Nuclear Regulatory Commission.
Notice of pending NRC action to submit an information collection request to the Office of Management and Budget (OMB) and solicitation of public comment.
The U.S. Nuclear Regulatory Commission (NRC) invites public comment about our intention to request the OMB's approval for renewal of an existing information collection that is summarized below. We are required to publish this notice in the
Information pertaining to the requirement to be submitted:
1.
2.
3.
4.
5.
6.
7.
Submit, by March 9, 2015, comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility?
2. Is the burden estimate accurate?
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection be minimized, including the use of automated collection techniques or other forms of information technology?
The public may examine and have copied for a fee publicly-available documents, including the draft supporting statement, at the NRC's Public Document Room, Room O-1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. The OMB clearance requests are available at the NRC's Web site:
The document will be available on the NRC's home page site for 60 days after the signature date of this notice.
Comments submitted in writing or in electronic form will be made available for public inspection. Because your comments will not be edited to remove any identifying or contact information, the NRC cautions you against including any information in your submission that you do not want to be publicly disclosed. Comments submitted should reference Docket No. NRC-2014-0272. You may submit your comments by any of the following methods: Electronic comments go to
Questions about the information collection requirements may be directed to the NRC Clearance Officer, Tremaine Donnell (T-5 F53), U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, by telephone at 301-415-6258, or by email to
For the Nuclear Regulatory Commission.
January 12, 19, 26, February 2, 9, 16, 2015.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
There are no meetings scheduled for the week of January 19, 2015.
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of February 9, 2015
The schedule for Commission meetings is subject to change on short notice. For more information or to verify the status of meetings, contact Glenn Ellmers at (301) 415-0442 or via email at
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (
Members of the public may request to receive this information electronically. If you would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301-415-1969), or send an email to
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
Regulation AC requires that research reports published, circulated, or provided by a broker or dealer or covered person contain a statement attesting that the views expressed in each research report accurately reflect the analyst's personal views and whether or not the research analyst received or will receive any compensation in connection with the views or recommendations expressed in the research report. Regulation AC also requires broker-dealers to, on a quarterly basis, make, keep, and maintain records of research analyst statements regarding whether the views expressed in public appearances accurately reflected the analyst's personal views, and whether any part of the analyst's compensation is related to the specific recommendations or views expressed in the public appearance. Regulation AC also requires that research prepared by foreign persons be presented to U.S. persons pursuant to Securities Exchange Act Rule 15a-6 and that broker-dealers notify associated persons if they would be covered by the regulation. Regulation AC excludes the news media from its coverage.
The collections of information under Regulation AC are necessary to provide investors with information with which to determine the value of the research available to them. It is important for an investor to know whether an analyst may be biased with respect to securities or issuers that are the subject of a research report. Further, in evaluating a research report, it is reasonable for an investor to want to know about an analyst's compensation. Without the information collection, the purposes of Regulation AC could not be met.
The Commission estimates that Regulation AC imposes an aggregate annual time burden of approximately 25,395 hours on 5,186 respondents, or approximately 5 hours per respondent. The Commission estimates that the total annual internal cost of compliance attributable to the 25,395 hours is approximately $11,616,150.00, or approximately $2,239.90 per respondent, annually.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
The public may view background documentation for this collection at the following Web site:
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 24b-1 under the Securities Exchange Act of 1934 (15 U.S.C. 78a
There are 18 national securities exchanges that spend approximately one half hour each complying with this rule, for an aggregate total compliance burden of 9 hours per year. The staff estimates that the average cost per respondent is $65.18 per year, calculated as the costs of copying ($13.97) plus storage ($51.21), resulting in a total cost of compliance for the respondents of $1,173.24.
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the Commission's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
Please direct your written comments to: Pamela Dyson, Acting Director/Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 100 F Street NE., Washington, DC 20549, or send an email to:
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
Rule 15g-4 requires brokers and dealers effecting transactions in penny
The Commission estimates that approximately 221 broker-dealers will spend an average of 87 hours annually to comply with this rule. Thus, the total compliance burden is approximately 19,245 burden-hours per year.
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimates of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
Please direct your written comments to: Pamela Dyson, Acting Director/Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 100 F Street NE., Washington, DC 20549 or send an email to
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
Rule 17a-5(c) generally requires broker-dealers who carry customer accounts to provide statements of the broker-dealer's financial condition to their customers. Paragraph (5) of Rule 17a-5(c) provides a conditional exemption from this requirement. A broker-dealer that elects to take advantage of the exemption must publish its statements on its Web site in a prescribed manner, and must maintain a toll-free number that customers can call to request a copy of the statements.
The purpose of the Rule is to ensure that customers of broker-dealers are provided with information concerning the financial condition of the firm that may be holding the customers' cash and securities. The Commission, when adopting the Rule in 1972, stated that the goal was to “directly” send a customer essential information so that the customer could “judge whether his broker or dealer is financially sound.” The Commission adopted the Rule in response to the failure of several broker-dealers holding customer funds and securities in the period between 1968 and 1971.
The Commission estimates that approximately 213 broker-dealer respondents carrying approximately 115 million public customer accounts incur an average burden of 142,424 hours per year to comply with the Rule.
Written comments are invited on: (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 estimates of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
Please direct your written comments to: Pamela Dyson, Acting Director/Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 100 F Street NE., Washington, DC 20549, or send an email to:
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
Rule 9b-1 (17 CFR 240.9b-1) sets forth the categories of information required to be disclosed in an options disclosure document (“ODD”) and requires the options markets to file an ODD with the Commission 60 days prior to the date it is distributed to investors. In addition, Rule 9b-1 provides that the ODD must be amended if the information in the document becomes materially inaccurate or incomplete and that amendments must be filed with the Commission 30 days prior to the distribution to customers. Finally, Rule 9b-1 requires a broker-dealer to furnish to each customer an ODD and any amendments, prior to accepting an order to purchase or sell an option on behalf of that customer.
There are 12 options markets that must comply with Rule 9b-1. These respondents work together to prepare a single ODD covering options traded on
In addition, approximately 1,500 broker-dealers must comply with Rule 9b-1. Each of these respondents will process an average of 3 new customers for options each week and, therefore, will have to furnish approximately 156 ODDs per year. The postal mailing or electronic delivery of the ODD takes respondents no more than 30 seconds to complete for an annual compliance burden for each of these respondents of 78 minutes or 1.3 hours. Thus, the total time burden per year for broker-dealers is 1,950 hours (1,500 broker-dealers × 1.3 hours). The estimated cost for a general clerk of a broker-dealer is $57 per hour,
The total time burden for all respondents under this rule (both options markets and broker-dealers) is 2,238 hours per year (288 + 1,950), and the total internal cost of compliance is $220,590 ($109,440 + $111,150).
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
The public may view background documentation for this information collection at the following Web site:
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission will hold a Closed Meeting on Thursday, January 8, 2015 at 2:00 p.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain staff members who have an interest in the matters also may be present.
The General Counsel of the Commission, or her designee, has certified that, in her opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) and 17 CFR 200.402(a)(3), (5), (7), 9(ii) and (10), permit consideration of the scheduled matter at the Closed Meeting.
Commissioner Gallagher, as duty officer, voted to consider the items listed for the Closed Meeting in closed session, and determined that no earlier notice thereof was possible.
The subject matter of the Closed Meeting will be:
Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings;
Adjudicatory matter; and
Other matters relating to enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact the Office of the Secretary at (202) 551-5400.
Pursuant to Section 19(b)(1)
The Exchange proposes to extend its program that allows transactions to take place at a price that is below $1 per option contract until January 5, 2016. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below,
The purpose of this filing is to extend the Pilot Program
An “accommodation” or “cabinet” trade refers to trades in listed options on the Exchange that are worthless and typically not actively traded. Cabinet trading is generally conducted in accordance with the Exchange Rules, except as provided in Exchange Rule 968NY Accommodation Transactions (Cabinet Trades), which sets forth specific procedures for engaging in cabinet trades. Rule 968NY currently provides for cabinet transactions to occur via open outcry at a cabinet price of a $1 per option contract in any options series open for trading in the Exchange, except that the Rule is not applicable to trading in option classes participating in the Penny Pilot Program. Under the procedures, bids and offers (whether opening or closing a position) at a price of $1 per option contract may be represented in the trading crowd by a Floor Broker or by a Market Maker or provided in response to a request by a Trading Official, a Floor Broker or a Market Maker, but must yield priority to all resting orders in the Cabinet (those orders held by the Trading Official, and which resting cabinet orders may be closing only). So long as both the buyer and the seller yield to orders resting in the cabinet book, opening cabinet bids can trade with opening cabinet offers at $1 per option contract.
The Exchange has temporarily amended the procedures through January 5, 2015 to allow transactions to take place in open outcry at a price of at least $0 but less than $1 per option contract. These lower-priced transactions are permitted to be traded pursuant to the same procedures applicable to $1 cabinet trades, except that (i) bids and offers for opening transactions are only permitted to accommodate closing transactions in order to limit use of the procedure to liquidations of existing positions, and (ii) the procedures are also made available for trading in option classes participating in the Penny Pilot Program.
As with other accommodation liquidations under Rule 968NY, transactions that occur for less than $1 will not be disseminated to the public on the consolidated tape. In addition, as with other accommodation liquidations under Rule 968NY the transactions will be exempt from the Consolidated Options Audit Trail (“COATS”) requirements of Exchange Rule 955NY Order Format and System Entry Requirements. However, the Exchange will maintain quotation, order and transaction information for the transactions in the same format as the COATS data is maintained. In this regard, all transactions for less than $1 must be reported to the Exchange following the close of each business day.
The Exchange believes the proposed rule change is consistent with Section 6(b)
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is to extend an established pilot program for one additional year and continue to facilitate ATP Holders ability to close positions in worthless or not actively traded series.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing rule does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, provided that the self-regulatory organization has given the Commission written notice of its intent to file the proposed rule change at least five business days prior to the date of filing of the proposed rule change or such shorter time as designated by the Commission,
Under Rule 19b-4(f)(6) of the Act,
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission will institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to impose a minimum fee for execution venues operating a trading platform or multiple platforms that utilize NASDAQ proprietary depth data on a non-displayed basis and that pay monthly aggregate NASDAQ market proprietary Depth-of-Book Data fees of less than $15,000.
The text of the proposed rule change is below; proposed new language is in italics; proposed deletions are in brackets.
(a) Definitions applicable to this rule.
(1)-(6) No Change.
(b) No Change.
(c) No Change.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
NASDAQ is proposing to amend NASDAQ Rule 7023 (NASDAQ Depth-of-Book Data) to modify the fees governing the use of NASDAQ TotalView, NASDAQ OpenView and NASDAQ Level 2 Information (collectively, “NASDAQ Depth-of-Book Data”) to increase the fairness and equity of the current fee schedule. Specifically, NASDAQ is amending Rule 7023(d) to establish a minimum level of fees for operators of Trading Platforms that utilize NASDAQ Depth-of-Book Data and that pay less than $15,000 per month for such usage. The Trading Platform Fee shall be $5,000 per month per Trading Platform up to a maximum of $15,000 per month, with such fees being offset once the total NASDAQ Depth-of-Book Data fees paid by such Trading Platform operator exceed $15,000 per month.
Effective January 1, 2015, NASDAQ will impose a fee for operators of Trading Platforms that currently utilize NASDAQ Depth-of-Book Data and that pay less than $15,000 per month for such usage. Trading Platforms include registered National Securities Exchanges, Alternative Trading Systems (“ATSs”), and Electronic Communications Networks (“ECNS”) as those terms are defined in the Exchange Act and regulations and rules thereunder. The fee will be $5,000 per month per Trading Platform up to a maximum of three platforms operated by the same entity or affiliated entities.
The fee will be assessed in addition to existing Distributor and Subscriber fees paid, but will be offset when the entity reaches the level of $15,000 per month. For example, if a Distributor already pays $15,000 or more in total monthly Distributor and Subscriber fees, the Trading Platform fee does not apply. Also, if a firm accrues $10,000 in Platform fees, and already pays $75,000 in Subscriber fees, the Distributor is responsible for the $75,000 fee and the Trading Platform fee does not apply. Additional scenarios are shown below:
Vendors offering Managed Data Solutions (“MDS”) to downstream Recipients pursuant to NASDAQ Rule 7026 are responsible for the payment of fees associated with this program. Furthermore, the MDS Vendor must count each Trading Platform operator separately; an MDS Vendor cannot avoid the three Trading Platform maximum by commingling multiple firms' Trading Platforms. For example, the MDS Vendor below has five customers that collectively operate 10 Trading Platforms:
The Exchange believes that this proposal is reasonable, proper, and desirable. NASDAQ attempts to more equitably allocate fees among users with varying business models. As trading has become more electronic and automated, displayed and non-displayed usage has shifted dramatically. Use by individuals versus use by algorithms has shifted as well. NASDAQ attempts to ensure that its fee schedule tracks these shifts and that no category of users pays a disproportionately high or low amount relative to other categories of users.
To accommodate new subparagraph (d), NASDAQ is renumbering current subparagraphs (d) and (e) to become new subparagraphs (e) and (f). Additionally, NASDAQ is eliminating pricing details from re-numbered paragraph (e) to eliminate specific information which is extraneous and subject to change.
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder, including the requirements of Section 6(b) of the Act.
NASDAQ believes that this proposal represents an equitable allocation of reasonable dues and fees, consistent with the requirements of the Act. The MDS Fee, which has been available as an option for four years, has reduced costs for Distributors and Subscriber firms that voluntarily opt for this service. The fee currently includes a bas [sic] Distributor fee plus a fee per subscriber, which has been found to be consistent with the Act in multiple contexts due to the economic efficiencies attributable to providing the same data elements to an increasing population of subscribers.
The Trading Platform fee is equitable and reasonable in that it ensures that heavy users of the NASDAQ Depth Information pay an equitable share of the total NASDAQ Depth Information fees. Currently, Professional Subscribers pay higher fees than Non-Professional Subscribers based on the calculated assumption of higher usage. Similarly, External Distributors pay higher fees than Internal Distributors, also based upon their assumed higher usage levels. NASDAQ believes that Trading Platforms are generally high users of the data, using it to power a matching engine for millions or even billions of trading messages per day. Additionally, the vast majority of operators of Trading Platforms that use NASDAQ Depth-of-Book Data already pay $15,000 per month or close to it. Those operators will pay no or little in additional fees.
In adopting Regulation NMS, the Commission granted self-regulatory organizations and broker-dealers increased authority and flexibility to offer new and unique market data to the public. It was believed that this authority would expand the amount of data available to consumers, and also spur innovation and competition for the provision of market data.
The Commission concluded that Regulation NMS—by deregulating the market in proprietary data—would itself further the Act's goals of facilitating efficiency and competition:
[E]fficiency is promoted when broker-dealers who do not need the data beyond the prices, sizes, market center identifications of the NBBO and consolidated last sale information are not required to receive (and pay for) such data. The Commission also believes that efficiency is promoted when broker-dealers may choose to receive (and pay for) additional market data based on their own internal analysis of the need for such data.
On July 21, 2010, President Barack Obama signed into law H.R. 4173, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank Act”), which amended Section 19 of the Act. Among other things, Section 916 of the Dodd-Frank Act amended paragraph (A) of Section 19(b)(3) of the Act by inserting the phrase “on any person, whether or not the person is a member of the self-regulatory organization” after “due, fee or other charge imposed by the self-regulatory organization.” As a result, all SRO rule proposals establishing or changing dues, fees, or other charges are immediately effective upon filing regardless of whether such dues, fees, or other charges are imposed on members of the SRO, non-members, or both. Section 916 further amended paragraph (C) of Section 19(b)(3) of the Exchange Act to read, in pertinent part, “At any time within the 60-day period beginning on the date of filing of such a proposed rule change in accordance with the provisions of paragraph (1) [of Section 19(b)], the Commission summarily may temporarily suspend the change in the rules of the self-regulatory organization made thereby, if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of this title. If the Commission takes such action, the Commission shall institute proceedings under paragraph (2)(B) [of Section 19(b)] to determine whether the proposed rule should be approved or disapproved.”
NASDAQ believes that these amendments to Section 19 of the Act reflect Congress's intent to allow the Commission to rely upon the forces of competition to ensure that fees for market data are reasonable and equitably allocated. Although Section 19(b) had formerly authorized immediate effectiveness for a “due, fee or other charge imposed by the self-regulatory organization,” the Commission adopted a policy and subsequently a rule stipulating that fees for data and other products available to persons that are not members of the self-regulatory organization must be approved by the Commission after first being published for comment. At the time, the Commission supported the adoption of the policy and the rule by pointing out that unlike members, whose representation in self-regulatory organization governance was mandated by the Act, non-members should be given the opportunity to comment on fees before being required to pay them, and that the Commission should specifically approve all such fees. NASDAQ believes that the amendment to Section 19 reflects Congress's conclusion that the evolution of self-regulatory organization governance and competitive market structure have rendered the Commission's prior policy on non-member fees obsolete. Specifically, many exchanges have evolved from member-owned not-for-profit corporations into for-profit investor-owned corporations (or subsidiaries of investor-owned corporations). Accordingly, exchanges no longer have narrow incentives to manage their affairs for the exclusive benefit of their members, but rather have incentives to maximize the appeal of their products to all customers, whether members or non-members, so as to broaden distribution and grow revenues. Moreover, we believe that the change also reflects an endorsement of the Commission's determinations that reliance on competitive markets is an appropriate means to ensure equitable and reasonable prices. Simply put, the change reflects a presumption that all fee changes should be permitted to take effect immediately, since the level of all fees are constrained by competitive forces.
The recent decision of the United States Court of Appeals for the District of Columbia Circuit in
NASDAQ does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. Notwithstanding its determination that the Commission may rely upon competition to establish fair and equitably allocated fees for market data, the
There is intense competition between trading platforms that provide transaction execution and routing services and proprietary data products. Transaction execution and proprietary data products are complementary in that market data is both an input and a byproduct of the execution service. In fact, market data and trade execution are a paradigmatic example of joint products with joint costs. The decision whether and on which platform to post an order will depend on the attributes of the platform where the order can be posted, including the execution fees, data quality and price and distribution of its data products. Without the prospect of a taking order seeing and reacting to a posted order on a particular platform, the posting of the order would accomplish little. Without trade executions, exchange data products cannot exist. Data products are valuable to many end users only insofar as they provide information that end users expect will assist them or their customers in making trading decisions.
The costs of producing market data include not only the costs of the data distribution infrastructure, but also the costs of designing, maintaining, and operating the exchange's transaction execution platform and the cost of regulating the exchange to ensure its fair operation and maintain investor confidence. The total return that a trading platform earns reflects the revenues it receives from both products and the joint costs it incurs. Moreover, an exchange's customers view the costs of transaction executions and of data as a unified cost of doing business with the exchange. A broker-dealer will direct orders to a particular exchange only if the expected revenues from executing trades on the exchange exceed net transaction execution costs and the cost of data that the broker-dealer chooses to buy to support its trading decisions (or those of its customers). The choice of data products is, in turn, a product of the value of the products in making profitable trading decisions. If the cost of the product exceeds its expected value, the broker-dealer will choose not to buy it. Moreover, as a broker-dealer chooses to direct fewer orders to a particular exchange, the value of the product to that broker-dealer decreases, for two reasons. First, the product will contain less information, because executions of the broker-dealer's orders will not be reflected in it. Second, and perhaps more important, the product will be less valuable to that broker-dealer because it does not provide information about the venue to which it is directing its orders. Data from the competing venue to which the broker-dealer is directing orders will become correspondingly more valuable.
Thus, a super-competitive increase in the fees charged for either transactions or data has the potential to impair revenues from both products. “No one disputes that competition for order flow is `fierce'.”
Analyzing the cost of market data distribution in isolation from the cost of all of the inputs supporting the creation of market data will inevitably underestimate the cost of the data. Thus, because it is impossible to create data without a fast, technologically robust, and well-regulated execution system, system costs and regulatory costs affect the price of market data. It would be equally misleading, however, to attribute all of the exchange's costs to the market data portion of an exchange's joint product. Rather, all of the exchange's costs are incurred for the unified purposes of attracting order flow, executing and/or routing orders, and generating and selling data about market activity. The total return that an exchange earns reflects the revenues it receives from the joint products and the total costs of the joint products.
Competition among trading platforms can be expected to constrain the aggregate return each platform earns from the sale of its joint products, but different platforms may choose from a range of possible, and equally reasonable, pricing strategies as the means of recovering total costs. For example, some platform may choose to pay rebates to attract orders, charge relatively low prices for market information (or provide information free of charge) and charge relatively high prices for accessing posted liquidity. Other platforms may choose a strategy of paying lower rebates (or no rebates) to attract orders, setting relatively high prices for market information, and setting relatively low prices for accessing posted liquidity. In this environment, there is no economic basis for regulating maximum prices for one of the joint products in an industry in which suppliers face competitive constraints with regard to the joint offering. This would be akin to strictly regulating the price that an automobile manufacturer can charge for car sound systems despite the existence of a highly competitive market for cars and the
The market for market data products is competitive and inherently contestable because there is fierce competition for the inputs necessary to the creation of proprietary data and strict pricing discipline for the proprietary products themselves. Numerous exchanges compete with each other for listings, trades, and market data itself, providing virtually limitless opportunities for entrepreneurs who wish to produce and distribute their own market data. This proprietary data is produced by each individual exchange, as well as other entities, in a vigorously competitive market.
Broker-dealers currently have numerous alternative venues for their order flow, including ten self-regulatory organization (“SRO”) markets, as well as internalizing broker-dealers (“BDs”) and various forms of alternative trading systems (“ATSs”), including dark pools and electronic communication networks (“ECNs”). Each SRO market competes to produce transaction reports via trade executions, and two FINRA-regulated Trade Reporting Facilities (“TRFs”) compete to attract internalized transaction reports. Competitive markets for order flow, executions, and transaction reports provide pricing discipline for the inputs of proprietary data products.
The large number of SROs, TRFs, BDs, and ATSs that currently produce proprietary data or are currently capable of producing it provides further pricing discipline for proprietary data products. Each SRO, TRF, ATS, and BD is currently permitted to produce proprietary data products, and many currently do or have announced plans to do so, including NASDAQ, NYSE, NYSE Amex, NYSEArca, and BATS.
Any ATS or BD can combine with any other ATS, BD, or multiple ATSs or BDs to produce joint proprietary data products. Additionally, order routers and market data vendors can facilitate single or multiple broker-dealers' production of proprietary data products. The potential sources of proprietary products are virtually limitless.
The fact that proprietary data from ATSs, BDs, and vendors can by-pass SROs is significant in two respects. First, non-SROs can compete directly with SROs for the production and sale of proprietary data products, as BATS and Arca did before registering as exchanges by publishing proprietary book data on the Internet. Second, because a single order or transaction report can appear in an SRO proprietary product, a non-SRO proprietary product, or both, the data available in proprietary products is exponentially greater than the actual number of orders and transaction reports that exist in the marketplace.
Market data vendors provide another form of price discipline for proprietary data products because they control the primary means of access to end users. Vendors impose price restraints based upon their business models. For example, vendors such as Bloomberg and Thomson Reuters that assess a surcharge on data they sell may refuse to offer proprietary products that end users will not purchase in sufficient numbers. Internet portals, such as Google, impose a discipline by providing only data that will enable them to attract “eyeballs” that contribute to their advertising revenue. Retail broker-dealers, such as Schwab and Fidelity, offer their customers proprietary data only if it promotes trading and generates sufficient commission revenue. Although the business models may differ, these vendors' pricing discipline is the same: They can simply refuse to purchase any proprietary data product that fails to provide sufficient value. NASDAQ and other producers of proprietary data products must understand and respond to these varying business models and pricing disciplines in order to market proprietary data products successfully.
In addition to the competition and price discipline described above, the market for proprietary data products is also highly contestable because market entry is rapid, inexpensive, and profitable. The history of electronic trading is replete with examples of entrants that swiftly grew into some of the largest electronic trading platforms and proprietary data producers: Archipelago, Bloomberg Tradebook, Island, RediBook, Attain, TracECN, BATS Trading and Direct Edge. A proliferation of dark pools and other ATSs operate profitably with fragmentary shares of consolidated market volume.
Regulation NMS, by deregulating the market for proprietary data, has increased the contestability of that market. While broker-dealers have previously published their proprietary data individually, Regulation NMS encourages market data vendors and broker-dealers to produce proprietary products cooperatively in a manner never before possible. Multiple market data vendors already have the capability to aggregate data and disseminate it on a profitable scale, including Bloomberg, and Thomson Reuters.
The court in
Competition among platforms has driven NASDAQ continually to improve its platform data offerings and to cater to customers' data needs. For example, NASDAQ has developed and maintained multiple delivery mechanisms (IP, multi-cast, and compression) that enable customers to receive data in the form and manner they prefer and at the lowest cost to them. NASDAQ offers front end applications such as its “Bookviewer” to help customers utilize data. NASDAQ has created new products like TotalView Aggregate to complement TotalView ITCH and Level 2/NQDS, because offering data in multiple formatting allows NASDAQ to better fit customer needs. NASDAQ offers data via multiple extranet providers, thereby helping to reduce network and total cost for its data products. NASDAQ has developed an online administrative system to provide customers transparency into their data feed requests and streamline data usage reporting. NASDAQ has also expanded its Enterprise License options that reduce the administrative burden and costs to firms that purchase market data.
Despite these enhancements and a dramatic increase in message traffic, NASDAQ's fees for market data have remained flat. In fact, as a percent of total customer costs, NASDAQ data fees have fallen relative to other data usage costs—including bandwidth, programming, and infrastructure—that have risen. The same holds true for execution services; despite numerous enhancements to NASDAQ's trading platform, absolute and relative trading costs have declined. Platform competition has intensified as new entrants have emerged, constraining prices for both executions and for data.
The vigor of competition for depth information is significant and the Exchange believes that this proposal
The Exchange has witnessed competitors creating new products and innovative pricing in this space over the course of the past year. NASDAQ continues to see firms challenge its pricing on the basis of the Exchange's explicit fees being higher than the zero-priced fees from other competitors such as BATS. In all cases, firms make decisions on how much and what types of data to consume on the basis of the total cost of interacting with NASDAQ or other exchanges. Of course, the explicit data fees are but one factor in a total platform analysis. Some competitors have lower transactions fees and higher data fees, and others are vice versa. The market for this depth information is highly competitive and continually evolves as products develop and change.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-NASDAQ-2014-125 and should be submitted on or before January 29, 2015.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On November 6, 2014, The Options Clearing Corporation (“OCC”) filed with the Securities and Exchange Commission (“Commission”) advance notice SR-OCC-2014-809 (“Advance Notice”) pursuant to Section 806(e)(1) of the Payment, Clearing, and Settlement Supervision Act of 2010 (“Clearing Supervision Act” or “Title VIII”)
The purpose of the proposed change is to allow OCC to implement a committed master repurchase agreement program (“MRA Program”) in order to access an additional committed source of liquidity to meet its settlement obligations in a manner that does not increase the concentration of OCC's counterparty exposure, given OCC's existing affiliations between a number of commercial banking institutions and OCC's clearing members. According to OCC, the MRA Program will take the form of OCC entering into a committed master repurchase agreement and related confirmations (together, the “Master Repurchase Agreement”) with one or more non-bank, non-clearing
Although the Master Repurchase Agreement would be based on the standard form of master repurchase agreement
According to OCC, the Master Repurchase Agreement generally will be structured like a typical repurchase arrangement, in order to help OCC attract interest from potential institutional investors willing to be counterparties to OCC. Under the Master Repurchase Agreement, the buyer (
At all times while a transaction is outstanding, OCC will be required to maintain a specified amount of securities or cash margin with the buyer.
As in a typical master repurchase agreement, an event of default will occur with respect to the buyer if the buyer fails to purchase securities on a purchase date, fails to transfer purchased securities on any applicable Repurchase Date, or fails to transfer any interest, dividends or distributions on purchased securities to OCC within a specified period after receiving notice of such failure. An event of default will occur with respect to OCC if OCC fails to transfer purchased securities on a purchase date or fails to repurchase purchased securities on an applicable Repurchase Date. The Master Repurchase Agreement also will provide for standard events of default for either party, including a party's failure to maintain required margin or an insolvency event with respect to one of the parties.
Upon the occurrence of an event of default, the non-defaulting party, at its option, will have the right, among others, to accelerate the Repurchase Date of all outstanding transactions between the defaulting party and the non-defaulting party. For example, if OCC were the defaulting party with respect to a transaction and the buyer chose to terminate the transaction, OCC will be required to immediately transfer the Repurchase Price to the buyer. If the buyer were the defaulting party with respect to a transaction and OCC chose to terminate the transaction, the buyer will be required to deliver all purchased securities to OCC. If OCC or the buyer does not perform in a timely manner, the non-defaulting party will be permitted to buy or sell, or deem itself to have bought or sold, securities as needed to be made whole and the defaulting party will be required to pay the costs related to any covering transactions. Additionally, if OCC is required to obtain replacement securities as a result of an event of default, the buyer will be required to pay the excess of the price paid by OCC to obtain replacement securities over the Repurchase Price.
As part of the Master Repurchase Agreement, OCC will enter into an individualized master confirmation with each buyer and its agent which will set forth certain terms and conditions applicable to all transactions entered into under the Master Repurchase Agreement by that buyer. According to OCC, these required terms and conditions will be designed to promote OCC's goals of reduced concentration risk, certainty of funding and operational effectiveness. The terms of the master confirmations under each Master Repurchase Agreement may vary from one another, because a separate master confirmation will be negotiated for a given buyer at the time that buyer becomes a party to the Master Repurchase Agreement. OCC has identified the following as key standards that will need to be incorporated into each repurchase arrangement entered into under the program.
OCC only will enter into repurchase arrangements with non-bank institutional investors, such as pension funds or insurance companies that are not OCC clearing members or banks affiliated with any OCC clearing member. OCC believes this requirement will allow OCC to access stable, reliable sources of funding, without increasing the concentration of its exposure to counterparties that are affiliated banks, broker/dealers and futures commission merchants. OCC believes that this reduction in concentration risk is a key advantage of this proposed program.
OCC will seek funding commitments from one or more potential counterparties that will equal $1 billion in the aggregate,
According to OCC, funding mechanics will be targeted so that OCC will receive the Purchase Price in immediately available funds within 60 minutes of its request for funds and delivery of Eligible Securities and, if needed, prior to OCC's regular daily settlement time.
Under the terms of each master confirmation, the buyer would not be permitted to grant any third party an interest in purchased securities, the custody account at the custodian where purchased securities are held, or any cash held in OCC's account. As a result, OCC states that the buyer would be prohibited from rehypothecating purchased securities, the purchased securities should never leave the account, and there should be no third-party claims against the purchased securities. OCC believes that the prohibition on rehypothecation also would reduce the risk that a third party could interfere with the buyer's transfer of the purchased securities on the Repurchase Date. Further, according to OCC, the custodian would agree to provide OCC with daily information about each buyer's account. OCC believes that this visibility would allow OCC to act quickly in the event a buyer violates any requirements.
Under the Master Repurchase Agreement, OCC would have the ability to terminate any transaction upon written notice to the buyer, but a buyer only would be able to terminate a transaction upon the occurrence of an event of default with respect to OCC.
Under the Master Repurchase Agreement, OCC would have the ability to substitute any Eligible Securities for purchased securities in its discretion by a specified time, so long as the Eligible Securities satisfy any applicable criteria contained in the Master Repurchase Agreement and the transfer of the Eligible Securities would not create a margin deficit, as described above.
In addition to the standard events of default for a failure to purchase or transfer securities on the applicable Purchase Date or Repurchase Date, OCC would require that the Master Repurchase Agreement not contain any additional events of default that would restrict OCC's access to funding and that it contain an additional default remedy. OCC would require that it would not be an event of default if OCC suffers a “material adverse change.”
Upon the occurrence of an event of default, in addition to the non-defaulting party's right to accelerate the Repurchase Date of all outstanding transactions or to buy or sell securities as needed to be made whole, the non-defaulting party may elect to take the actions specified in the “mini close-out” provision of the Master Repurchase Agreement, rather than declaring an event of default.
Although Title VIII does not specify a standard of review for an advance notice, the Commission believes that the stated purpose of Title VIII is instructive.
Section 805(a)(2) of the Clearing Supervision Act
• Promote robust risk management;
• promote safety and soundness;
• reduce systemic risks; and
• support the stability of the broader financial system.
The Commission has adopted risk management standards under Section 805(a)(2) of the Clearing Supervision Act (“Clearing Agency Standards”).
The Commission believes that the proposal in this Advance Notice is designed to further the objectives and principles of Section 805(b) of the Clearing Supervision Act.
Exchange Act Rule 17Ad-22(b)(3),
By the Commission.
Pursuant to Section 19(b)(1)
The Exchange proposes to extend its program that allows transactions to take place at a price that is below $1 per option contract until January 5, 2016. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below,
The purpose of this filing is to extend the Pilot Program
An “accommodation” or “cabinet” trade refers to trades in listed options on the Exchange that are worthless or not actively traded. Cabinet trading is generally conducted in accordance with the Exchange Rules, except as provided in Exchange Rule 6.80 Accommodation Transactions (Cabinet Trades), which sets forth specific procedures for engaging in cabinet trades. Rule 6.80 currently provides for cabinet transactions to occur via open outcry at a cabinet price of a $1 per option contract in any options series open for trading in the Exchange, except that the Rule is not applicable to trading in option classes participating in the Penny Pilot Program. Under the procedures, bids and offers (whether opening or closing a position) at a price of $1 per option contract may be represented in the trading crowd by a Floor Broker or by a Market Maker or provided in response to a request by a Trading Official, a Floor Broker or a Market Maker, but must yield priority to all resting orders in the Cabinet (those orders held by the Trading Official, and which resting cabinet orders may be closing only). So long as both the buyer and the seller yield to orders resting in the cabinet book, opening cabinet bids can trade with opening cabinet offers at $1 per option contract.
The Exchange has temporarily amended the procedures through January 5, 2015 to allow transactions to take place in open outcry at a price of at least $0 but less than $1 per option contract. These lower-priced transactions are permitted to be traded pursuant to the same procedures applicable to $1 cabinet trades, except that (i) bids and offers for opening transactions are only permitted to accommodate closing transactions in order to limit use of the procedure to liquidations of existing positions, and (ii) the procedures are also made available for trading in option classes participating in the Penny Pilot Program.
As with other accommodation liquidations under Rule 6.80, transactions that occur for less than $1 will not be disseminated to the public on the consolidated tape. In addition, as with other accommodation liquidations under Rule 6.80, the transactions will be exempt from the Consolidated Options Audit Trail (“COATS”) requirements of Exchange Rule 6.67 Order Format and System Entry Requirements. However, the Exchange will maintain quotation, order and transaction information for the transactions in the same format as the COATS data is maintained. In this regard, all transactions for less than $1 must be reported to the Exchange following the close of each business day.
The Exchange believes that this proposed rule change is consistent with Section 6(b) of the Securities Exchange Act of 1934 (“Act”),
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing rule does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, provided that the self-regulatory organization has given the Commission written notice of its intent to file the proposed rule change at least five business days prior to the date of filing of the proposed rule change or such shorter time as designated by the Commission,
Under Rule 19b-4(f)(6) of the Act,
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission will institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including lists of the exhibit objects, contact Paul W. Manning, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6469). The mailing address is U.S. Department of State, SA-5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522-0505.
Federal Aviation Administration (FAA), DOT.
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Title 14 of the Code of Federal Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before January 28, 2015.
Send comments identified by docket number FAA-2014-1016 using any of the following methods:
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Jake Troutman, (202) 267-9521. 800 Independence Avenue SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), DOT.
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Title 14 of the Code of Federal Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before January 28, 2015.
Send comments identified by docket number FAA-2014-1088 using any of the following methods:
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Jake Troutman, (202) 267-9521. 800 Independence Avenue SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), DOT.
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Title 14 of the Code of Federal Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before January 28, 2015.
Send comments identified by docket number FAA-2014-1054 using any of the following methods:
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For technical questions concerning this action, contact Nia Daniels, Office of Rulemaking, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-9677.
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), DOT.
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Title 14 of the Code of Federal Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before January 28, 2015.
Send comments identified by docket number FAA-2014-0916 using any of the following methods:
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For technical questions concerning this action, contact Nia Daniels, Office of Rulemaking, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-9677.
This notice is published pursuant to 14 CFR 11.85.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of application for exemption; request for comments.
FMCSA announces that it has received an application from the California Farm Bureau Federation (CFBF) on behalf of its members and other agricultural organizations for an exemption from the 30-minute rest break provision of the Agency's hours-of-service regulations for certain commercial motor vehicle (CMV) drivers transporting bees. The exemption would enable CMV drivers transporting bees to operate without taking a 30-minute break during the
Comments must be received on or before February 9, 2015.
You may submit comments identified by Federal Docket Management System Number FMCSA-2014-0445 by any of the following methods:
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Mr. Robert F. Schultz, Jr., FMCSA Driver and Carrier Operations Division; Office of Carrier, Driver and Vehicle Safety Standards; Telephone: 202-366-4325. Email:
FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant exemptions from certain parts of the Federal Motor Carrier Safety Regulations. Before doing so, the Agency must provide an opportunity for public comment. The Agency is required to publish a notice of each exemption request in the
On December 27, 2011, FMCSA published a final rule establishing mandatory rest breaks for CMV drivers (76 FR 81133). Effective July 1, 2013, drivers were barred from operating a CMV if 8 hours or more had elapsed since the end of their last off-duty or sleeper-berth period of at least 30 minutes [49 CFR 395.3(a)(3)(ii)]. FMCSA did not specify when drivers must take the 30-minute break.
CFBF is a trade organization representing various stakeholders in the beekeeping industry, including those who provide bee-pollination services and those who benefit from these services. Many crops in the U.S. require bee pollination, including almonds, apples, lettuce, and several varieties of berries. There is no substitute for the pollination provided by bees. CFBF cites a report in
Because of the reduced number of colonies available to pollinate, bees are transported long distances to provide crop pollination. CFBF states that the CMVs transporting bees must maintain a flow of cool, fresh air to the hives on board and that excessive heat in the CMV interior can jeopardize the health and welfare of the bees. CFBF maintains that if CMVs transporting hives were stopped for 30 minutes, particularly in warm weather, the risk of harm to the bees would be significant, and possibly fatal. A copy of the application for exemption is available for review in the docket for this notice.
In accordance with 49 U.S.C. 31136(e) and 31315(b)(4), FMCSA requests public comment on CFBF's application for an exemption from the rest-break requirement of 49 CFR 395.3(a)(3)(ii). The Agency will consider all comments received by close of business on February 9, 2015. Comments will be available for examination in the docket at the location listed under the
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA confirms its decision to exempt 32 individuals from its rule prohibiting persons with insulin-treated diabetes mellitus (ITDM) from operating commercial motor vehicles (CMVs) in interstate commerce. The exemptions
The exemptions were effective on November 22, 2014. The exemptions expire on November 22, 2016.
Elaine M. Papp, R.N., Chief, Medical Programs Division, (202) 366-4001,
You may see all the comments online through the Federal Document Management System (FDMS) at:
On October 22, 2014, FMCSA published a notice of receipt of Federal diabetes exemption applications from 32 individuals and requested comments from the public (79 FR 63214). The public comment period closed on November 21, 2014, and no comments were received.
FMCSA has evaluated the eligibility of the 32 applicants and determined that granting the exemptions to these individuals would achieve a level of safety equivalent to or greater than the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(3).
The Agency established the current requirement for diabetes in 1970 because several risk studies indicated that drivers with diabetes had a higher rate of crash involvement than the general population. The diabetes rule provides that “A person is physically qualified to drive a commercial motor vehicle if that person has no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control” (49 CFR 391.41(b)(3)).
FMCSA established its diabetes exemption program, based on the Agency's July 2000 study entitled “A Report to Congress on the Feasibility of a Program to Qualify Individuals with Insulin-Treated Diabetes Mellitus to Operate in Interstate Commerce as Directed by the Transportation Act for the 21st Century.” The report concluded that a safe and practicable protocol to allow some drivers with ITDM to operate CMVs is feasible. The September 3, 2003 (68 FR 52441),
These 32 applicants have had ITDM over a range of 1 to 34 years. These applicants report no severe hypoglycemic reactions resulting in loss of consciousness or seizure, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning symptoms, in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the past 5 years. In each case, an endocrinologist verified that the driver has demonstrated a willingness to properly monitor and manage his/her diabetes mellitus, received education related to diabetes management, and is on a stable insulin regimen. These drivers report no other disqualifying conditions, including diabetes-related complications. Each meets the vision requirement at 49 CFR 391.41(b)(10).
The qualifications and medical condition of each applicant were stated and discussed in detail in the October 22, 2014,
FMCSA received no comments in this proceeding.
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the diabetes requirement in 49 CFR 391.41(b)(3) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. The exemption allows the applicants to operate CMVs in interstate commerce.
To evaluate the effect of these exemptions on safety, FMCSA considered medical reports about the applicants' ITDM and vision, and reviewed the treating endocrinologists' medical opinion related to the ability of the driver to safely operate a CMV while using insulin.
Consequently, FMCSA finds that in each case exempting these applicants from the diabetes requirement in 49 CFR 391.41(b)(3) is likely to achieve a level of safety equal to that existing without the exemption.
The terms and conditions of the exemption will be provided to the applicants in the exemption document and they include the following: (1) That each individual submit a quarterly monitoring checklist completed by the treating endocrinologist as well as an annual checklist with a comprehensive medical evaluation; (2) that each individual reports within 2 business days of occurrence, all episodes of severe hypoglycemia, significant complications, or inability to manage diabetes; also, any involvement in an accident or any other adverse event in a CMV or personal vehicle, whether or not it is related to an episode of hypoglycemia; (3) that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (4) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy in his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the certification when driving, for presentation to a duly authorized Federal, State, or local enforcement official.
Based upon its evaluation of the 32 exemption applications, FMCSA exempts the following drivers from the diabetes requirement in 49 CFR 391.41(b)(10), subject to the requirements cited above 949 CFR 391.64(b)):
In accordance with 49 U.S.C. 31136(e) and 31315 each exemption is valid for two years unless revoked earlier by FMCSA. The exemption will be revoked if the following occurs: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315. If the exemption is still effective at the end of the 2-year period, the person may apply to FMCSA for a renewal under procedures in effect at that time.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew the exemptions from the hearing requirement in the Federal Motor Carrier Safety Regulations for 15 individuals. FMCSA has statutory authority to exempt individuals from the hearing requirement if the exemptions granted will not compromise safety. The Agency has concluded that granting these exemption renewals will provide a level of safety that is equivalent to or greater than the level of safety maintained without the exemptions for these commercial motor vehicle (CMV) drivers.
This decision is effective January 12, 2015. Comments must be received on or before February 9, 2015.
You may submit comments bearing the Federal Docket Management System (FDMS) numbers: Docket No. [Docket No. FMCSA-2012-0154], using any of the following methods:
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In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to
Elaine M. Papp, Chief, Medical Programs Division, 202-366-4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may renew an exemption from the hearing requirement in 49 CFR 391.41(b)(11), which applies to drivers of CMVs in interstate commerce, for a two-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The procedures for requesting an exemption (including renewals) are set out in 49 CFR part 381.
This notice addresses 15 individuals who have requested renewal of their exemptions in accordance with FMCSA procedures. FMCSA has evaluated these applications for renewal on their merits and decided to extend each exemption for a renewable two-year period. They are:
The exemption will be rescinded if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315.
Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no longer than two years from its approval date and may be renewed upon application for additional two year periods. In
FMCSA will review comments received at any time concerning a particular driver's safety record and determine if the continuation of the exemption is consistent with the requirements at 49 U.S.C. 31136(e) and 31315. However, FMCSA requests that interested parties with specific data concerning the safety records of these drivers submit comments by February 9, 2015.
FMCSA believes that the requirements for a renewal of an exemption under 49 U.S.C. 31136(e) and 31315 can be satisfied by initially granting the renewal and then requesting and evaluating, if needed, subsequent comments submitted by interested parties. As indicated above, the Agency previously published notices of final disposition announcing its decision to exempt these 15 individuals from the hearing requirement in 49 CFR 391.41(b)(11). The final decision to grant an exemption to each of these individuals was made on the merits of each case and made only after careful consideration of the comments received to its notices of applications. That information is available by consulting the above cited
Interested parties or organizations possessing information that would otherwise show that any, or all, of these drivers are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315, FMCSA will take immediate steps to revoke the exemption of a driver.
You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
To view comments, as well as any documents mentioned in this notice, or to submit your comment online, go to
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Meeting announcement.
This notice announces a public meeting on Tuesday, January 20, 2015 concerning the development of the Test Device for Human Occupant Restraint (THOR). NHTSA has been developing the THOR anthropomorphic test device (ATD) in order to better understand the causal mechanisms for injury and develop countermeasures to prevent injuries and fatalities in motor vehicle crashes. The purpose of this public meeting is to provide a forum for open communication and data sharing on the THOR ATD towards the common goal of improving the safety of passenger vehicle occupants. This notice announces the date and location of the meeting and explains how those who wish to attend can register for the meeting.
The public meeting is scheduled from 9 a.m. to 3 p.m. on Tuesday, January 20, 2015. If you would like to attend the public meeting (either in person or via teleconference), you must register no later than Thursday, January 15, 2015. For further information about registration, please see the information provided under
The meeting will be held at: Department of Transportation, 1200 New Jersey Ave SE., Washington, DC 20590. This facility is accessible to individuals with disabilities.
• Federal eRulemaking Portal: Go to
• Mail: Docket Management Facility: U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001.
• Hand Delivery or Courier: 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays.
• Fax: 202-493-2251.
To register for the public meeting, please send your name, affiliation, phone number, email address, and whether you will attend in person or over teleconference to
The Test Device for Human Occupant Restraint (THOR) is an advanced anthropomorphic test device (ATD, or test dummy). It is designed to better represent the automotive occupants in the sophisticated restraint systems developed since the advent of the Hybrid III test dummy, such as force-limited three-point belts and air bags. NHTSA has been researching the application of the THOR 50th percentile adult male ATD in frontal and frontal oblique crash test modes. The purpose of this public meeting is to provide a forum for open communication and data sharing on the THOR ATD towards the common goal of improving the safety of passenger vehicle occupants. Potential topics for discussion at the meeting include qualification procedures, repeatability and reproducibility, biofidelity evaluation, injury criteria, and computational models.
Registration is necessary for all attendees. Please see registration instructions under
Written comments can be submitted to the docket. See information under
Pennsylvania & Southern Railway, LLC (PSCC), a Class III carrier, has filed a verified notice of exemption under 49 CFR 1150.41 to acquire extended operating rights over approximately 25 miles of track and associated right-of-way within the Cumberland Valley Business Park and the Letterkenny Army Depot near Chambersburg, Franklin County, Pa. (the Rail Lines), pursuant to an amended agreement between PSCC and the Franklin County General Authority (FCGA).
PSCC states that it currently operates over the Rail Lines pursuant to an operation exemption issued in
PSCC also states that it will continue to interchange with CSXT and certifies that no interchange commitments will be required as part of this transaction.
PSCC certifies that its projected revenues as a result of the transaction will not result in the creation of a Class I or Class II rail carrier.
PSCC states that it intends to begin operations under the amended rail operating agreement on or after the effective date of the exemption, which is January 22, 2015 (30 days after the verified notice was filed).
If the verified notice contains false or misleading information, the exemption is void
An original and ten copies of all pleadings, referring to Docket No. FD 35893, must be filed with the Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on Eric M. Hocky, Clark Hill PLC, One Commerce Square, 2005 Market Street, Suite 1000, Philadelphia, PA 19103.
Board decisions and notices are available on our Web site at
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Final rule.
PHMSA is amending the Hazardous Materials Regulations to maintain alignment with international standards by incorporating various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements. These revisions are necessary to harmonize the Hazardous Materials Regulations with recent changes made to the International Maritime Dangerous Goods (IMDG) Code, the International Civil Aviation Organization's Technical Instructions (ICAO TI) for the Safe Transport of Dangerous Goods by Air, the United Nations Recommendations on the Transport of Dangerous Goods (UN Model Regulations) and subsequently address three petitions for rulemaking.
Steven Webb, Office of Hazardous Materials Standards or Vincent Babich, International Standards, telephone (202) 366-8553, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., 2nd Floor, Washington, DC 20590-0001.
K. Executive Order 13609 and International Trade Analysis
In this final rule, PHMSA is amending the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) to incorporate changes adopted in the IMDG Code, the ICAO Technical Instructions, and the UN Model Regulations, effective January 1, 2015. These changes ensure the domestic hazard classification, hazard communication and packaging requirements are consistent with those employed throughout the world.
Federal law and policy strongly favor the harmonization of domestic and international standards for hazardous materials transportation. The Federal hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 5101
The foreign trade of chemicals is a large segment of the United States economy. In 2000, U.S. foreign trade in chemicals totaled $154 billion and generated a $6 billion positive trade balance. The consistency of regulations reduces regulatory compliance costs and helps to avoid costly frustrations of international shipments. PHMSA's continued leadership in maintaining consistency with international regulations enhances the hazardous materials safety program and assists in maintaining a favorable trade balance.
PHMSA published a notice of proposed rulemaking (NPRM) under Docket HM-215M (79 FR 50741, August 25, 2014) to incorporate various amendments to harmonize the HMR with recent changes to the UN Model Regulations, the IMDG Code, and the ICAO Technical Instructions. When considering alignment of the HMR with international standards, we review and evaluate each amendment on its own merit, on the basis of its overall impact on transportation safety, and on the basis of the economic implications associated with its adoption into the HMR. Our goal is to harmonize without diminishing the level of safety currently provided by the HMR or imposing undue burdens on the regulated community.
Based on this review and evaluation, in this final rule, PHMSA is amending the HMR to incorporate changes from the 18th Revised Edition of the UN Model Regulations, Amendment 37-14 to the IMDG Code, and the 2015-2016 ICAO Technical Instructions, which become effective January 1, 2015 (The IMDG Code is effective January 1, 2015; however, Amendment 36-12 may continue to be used until January 1, 2016). Notable amendments to the HMR in this final rule include the following:
• Updating references to international regulations including the ICAO Technical Instructions, the IMDG Code, the UN Model Regulations, the UN Manual of Tests and Criteria the Canadian Transportation of Dangerous Goods Regulations and various technical standards.
• Adding, revising, or removing certain proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, bulk packaging requirements, and passenger and cargo aircraft maximum quantity limits from the Hazardous Materials Table (HMT).
• Adopting an exception from the HMR for marine pollutants up to 5 L (1.3 gal) for liquids or 5 kg (11 lbs.) for solids when these materials are packaged in accordance with the general packaging requirements of §§ 173.24 and 173.24a. These exceptions are consistent with the UN Model Regulations, the IMDG Code, and the ICAO TI.
• Modifying the list of marine pollutants in Appendix B to § 172.101.
• Adding minimum sizes for the OVERPACK and SALVAGE markings.
• Revising and adding vessel stowage codes listed in column 10B of the HMT and segregation requirements in § 176.83 consistent with the IMDG Code.
• Adsorbed gases: Adopting new entries into the HMR; adding a definition; authorizing packagings; and adding safety requirements including quantity limitations and filling limits.
• Harmonizing with the latest version of the ICAO TI to ensure that the information currently authorized by the HMR to be provided by means of an alternative document be included on a shipping paper for batteries transported under the provisions of § 173.185(c)(4)(v) equivalent to Section IB of ICAO TI Packing Instructions 965 and 968. PHMSA is also harmonizing with the latest version of the ICAO TI by requiring a “CARGO AIRCRAFT ONLY” label on packages containing small lithium metal batteries not packed in or with equipment.
• Amending the HMR definition of non-bulk packaging by adding a new paragraph (4) to include bags and boxes conforming to the applicable requirements for specification packagings in subpart L of part 178 of this subchapter, if they have a maximum net mass of 400 kg (882 pounds) or less.
The United Nations Recommendations on the Transport of Dangerous Goods—Model Regulations, Manual of Tests and Criteria, all of the Transport Canada Clear Language Amendments, and the IAEA Regulations are all free and easily accessible for the public to access on the internet, with access provided via Web sites provided by the parent organization. The International Civil Aviation Organization Technical Instructions for the Safe Transport of Dangerous Goods by Air, International Maritime Organization International Maritime Dangerous Goods Code, and all of the International Organization for Standardization references are available for interested parties to purchase in either print or electronic versions through the parent organization Web sites. The price charged for these standards not freely available to interested parties helps to cover the cost of developing, maintaining, hosting, and accessing these standards. The specific standards are discussed in greater detail in the following analysis.
In response to PHMSA's August 25, 2014 NPRM (79 FR 50741), PHMSA received comments from the following organizations and individuals:
• Aaron Adamczyk
• Alaska Airlines
• American Chemistry Council (ACC)
• American Society of Travel Agents
• Anonymous
• Autoliv
• Carla Clark
• The Council on Safe Transportation of Hazardous Articles, Inc. (COSTHA)
• The Dangerous Goods Advisory Council (DGAC)
• Dow Chemical
• Edward Altemos
• Entegris
• Gregory Sutherland
• The Institute of Makers of Explosives (IME)
• International Vessel Operators Dangerous Goods Association (IVODGA)
• James Lynch
• Jeffery Richmond
• Katherine Whelan
• Key Safety Systems
• Paul Rankin/RIPA
• Sally Mitchell
• Shondra Hector
• TK Holdings Inc. (Takata)
• TRW Automotive
• Veolia ES Technical Solutions, L.L.C. (Veolia)
• United Parcel Service (UPS)
Below is a listing of major amendments to the international transportation regulations that we proposed for adoption into the HMR, a brief synopsis of the comments we received regarding those proposals, and PHMSA's position regarding the comments. Additional comments are addressed in the section-by-section analysis section.
In the NPRM, PHMSA proposed to incorporate by reference the latest editions of various international transport standards including the 2015-2016 ICAO TI, Amendment 37-14 of the IMDG Code, the 18th Revised Edition of the UN Model Regulations, the International Atomic Energy Agency Safety Standards for Protecting People and the Environment; Regulations for the Safe Transport of Radioactive Material, No. SSR-6, and the Canadian Transportation of Dangerous Goods Regulations. Finally, PHMSA proposed the incorporation by reference of new and updated standards published by the International Organization for Standardization (ISO). PHMSA received general support from the commenters on the principle of harmonizing the U.S. regulations with international transport and technical standards. We did not receive any comments that opposed our proposals to incorporate these standards and will adopt them in this final rule.
In the NPRM, PHMSA proposed to add a new exception from the HMR to § 171.4 for marine pollutants up to 5 L (1.3 gallons) for liquids or 5 kg (11 lbs) for solids when these materials are packaged in accordance with the general packaging requirements of §§ 173.24 and 173.24a.
PHMSA received comments from Gregory Sutherland, DGAC, IVODGA, and COSTHA concerning our proposed amendments to this section. General support for the harmonization effort was provided by COSTHA, IVODGA, and DGAC.
Mr. Sutherland asks if the intent of the proposal was to eliminate limited quantity and excepted quantity shipments of marine pollutants, and further asks why anyone would offer a marine pollutant as a limited or excepted quantity with the new exception in place. PHMSA is not proposing to remove the ability to offer marine pollutants as limited or excepted quantities, but does agree with the commenter that the vast majority of shippers of limited or excepted quantity amounts of marine pollutants will choose to utilize the new exception instead of existing limited or excepted quantity provisions. Mr. Sutherland notes that as proposed there would be no restriction on the number of 5 L containers that are permitted in a combination package, so a package containing four 5 L bottles would contain 20 L of non-regulated marine pollutants, but a 10 L jerrican would be fully regulated. Mr. Sutherland is correct. There is no limit to the number of up to 5 L or 5 kg single or inner packagings that may be placed inside of a package under the conditions of the exception. Lastly, Mr. Sutherland notes that as proposed there would be no requirement to mark a freight container with the large marine pollutant marking even if that freight container contains nothing but packages of excepted marine pollutants. Mr. Sutherland is correct. If the shipments of marine pollutants are below the provided quantity thresholds per inner or single packaging and meet the applicable general packaging provisions no marking would be required on a cargo transport unit, regardless of the number of packages being offered under the exception.
DGAC noted that they believe the language in the proposed paragraph (c)(l) could be clarified, as a partial reading could imply that single or inner packagings of 5 L or 5 kg of any material are excepted from the HMR. PHMSA agrees. The wording of the proposed exception is not clear enough to indicate that all shipments of marine pollutants meeting the quantity thresholds and general packaging provisions can utilize the exception assuming they are not also hazardous substances or hazardous wastes. The use of the exception for single or inner packagings of 5 L or 5 kg or less is not limited to materials offered under the UN identification numbers UN 3077 and UN 3082, but would also apply to marine pollutants that meet the definition of other hazard classes (
IVODGA, while providing general support for harmonization on this issue, notes the reporting requirements under the International Convention for the Prevention of Pollution from Ships (MARPOL) and the Environmental Protection Agency (EPA) Vessel's General Permit (VGP) Plan requirements and has some concern regarding the vessel operator's ability to identify these marine pollutants. Vessel owners or operators may be caught in a situation where they are transporting materials which may be excepted from various transport requirements, but still require reporting under domestic and international mandates. IVODGA states that some consideration of these reporting requirements should be addressed since these substances in small packages still represent a hazard if spilled from or on a vessel during operational phases especially when transported in container load quantities.
PHMSA asserts that excepting up to 5 L for liquids and 5 kg for solids provides significant benefit to the shipper and aligns with requirements of other modes of transportation and international regulations. EPA's VGP Plan regulates discharges incidental to normal operations. Reporting requirements under the VGP Plan are for reportable quantities of substances as listed in Appendix A in 49 CFR 172.101, and does not cover marine pollutants. PHMSA data over the past 10 years contains just one record of a marine pollutant released on a vessel.
In the NPRM, PHMSA proposed the addition of 62 new entries consistent with the IMDG Code and removing the entry “Chlorotoluenes (meta-;para-)” based on its removal from the IMDG Code.
PHMSA received two comments from the ACC regarding our proposed addition of dodecene, to the list of marine pollutants. In its first comment, the ACC requests a 30 day extension of the comment period to better understand “dodecene's place on other lists referenced in the proposed rule.” ACC notes that it would use the time to coordinate with industry to better understand the information contained in the dodecene Regulation on Registration, Evaluation, Authorization and Restriction of Chemicals (REACH) dossiers. PHMSA is denying the ACC's request for a 30 day extension of the comment period for this rulemaking as the revision to include dodecene in the Marine Pollutant List is consistent with our standard practice of aligning Appendix B with the indicative list of marine pollutants found in the IMDG Code. In its second comment, the ACC notes that the use of the name “dodecene” in both the IMDG Code and PHMSA's proposed rule makes it unclear exactly what substance is being regulated. When manufactured, dodecene may represent a number of Chemical Abstracts Service (CAS) numbers and different chemical properties. In other words, this single description of dodecene may not reflect what ACC panel members currently manufacture and ship. The ACC also notes that the REACH registration of a close analog of dodecene, 1-dodecene/dodec-1-ene, indicates that dodecene would not meet the criteria of a Marine Pollutant, as set forth in the PHMSA list, based on aquatic toxicity data. The REACH dossier indicates “conclusive but not sufficient for classification” on both acute and chronic environmental categories associated with this compound. The inclusion of all entries proposed for addition in the NPRM was thoroughly vetted by several sub-committees of the International Maritime Organization prior to adoption into amendment 37-14 of the IMDG Code. The Group of Experts on the Scientific Aspects of Marine Environmental Protection (GESAMP) data assigns all dodecene isomers a B1 numerical rating of 4. This rating of 4 indicates acute aquatic toxicity, and thus merits inclusion of dodecene (all isomers) to the list of marine pollutants in Appendix B to § 172.101.
In the NPRM, PHMSA proposed to revise the Hazardous Materials Table (HMT) in § 172.101 to include seventeen new entries for adsorbed gases consistent with amendments adopted into the UN Model Regulations. We also proposed to add into the HMR a definition, authorized packagings, and safety requirements including quantity limitations and filling limits.
PHMSA received three comments from COSTHA, DGAC, and Entegris noting that the entry for “Arsine, adsorbed” was not added to the HMT in the NPRM as intended. As a result, PHMSA is adding the entry “UN3522, Arsine, adsorbed” to the HMT. Entegris also provided comment suggesting that § 173.302c cannot be referenced in the HMT as a packaging instruction for bulk shipments of adsorbed gases, as there is no internationally accepted standard or authorization for bulk receptacles containing such gases. PHMSA agrees with the Entegris comment that bulk packagings for adsorbed gases are not presently authorized. As a result, PHMSA is revising Column (8C) of the HMT for the Adsorbed gas entries to indicate “None.”
In addition, Entegris and COSTHA requested that PHMSA incorporate provisions for the use of DOT specification cylinders to transport adsorbed gasses. PHMSA agrees with the commenters that appropriate provisions for the use of DOT cylinders should be considered. However this action was not proposed in the NPRM. Continued transportation of adsorbed gases is provided for under the provisions of Special Permit 14237 and PHMSA will consider inclusion of DOT specification cylinder authorizations under a future rulemaking.
In the NPRM, PHMSA proposed harmonization with the latest version of the ICAO TI to ensure that the information currently authorized by the HMR, to be provided by means of an alternative document, be included on a shipping paper for batteries transported
Taking into account the comments from Alaska Airlines, PHMSA confirmed that the proposed amendments align with the requirements of the ICAO TI with regard to documentation. However, based on the comment from UPS, in this final rule PHMSA is revising § 173.185(c)(4)(v) as suggested by UPS for clarity. This editorial amendment will clarify that packages offered in accordance with § 173.185(c)(4)(v) are subject to the shipping paper requirements of subpart C of Part 172.
In the NPRM, PHMSA proposed revision of § 173.185(c)(1)(iii) to harmonize with the latest version of the ICAO TI by providing the option to use a “CARGO AIRCRAFT ONLY” label or the existing HMR marking requirement on packages containing small lithium metal batteries excluding those packed with or contained in equipment. PHMSA received comments from UPS and COSTHA in support of the proposal. UPS commented that the provision in this paragraph excepting lithium metal cells or batteries packed with or contained in equipment in quantities “less than 5 kg net weight” from the § 173.185(c)(1)(iii) marking requirement differs slightly in wording from the current ICAO TI and previous requirements of the HMR. In this final rule, PHMSA is revising § 173.185(c)(1)(iii) as proposed in the NPRM with an additional editorial revision to clarify that lithium metal cells or batteries packed with or contained in equipment in quantities “not exceeding” as opposed to “less than” 5 kg net weight are not subject to the marking or “CARGO AIRCRAFT ONLY” label requirement. This provides editorial consistency with the provisions of the ICAO TI.
In the NPRM, PHMSA proposed to amend the lithium battery requirements by authorizing use of a large packaging for a single large lithium battery or batteries contained in equipment. PHMSA received one comment from COSTHA in support of this proposal.
To harmonize with the 18th Revised Edition of the UN Model Regulations, in the NPRM, PHMSA proposed to amend the definition of non-bulk packaging in § 171.8 to include a bag or box having a capacity of greater than 450 liters (119 gallons) provided the net mass of the bag or box is 400 kg (882 pounds) or less. PHMSA received comments from Key Safety Systems, RIPA, TK Holdings Inc., and TRW Automotive in support of this proposal. However, RIPA conditioned their support on the presumption that the references to “bag” and “box” in the definition do limit users to all the conditions stipulated in subpart L of part 178. For example, the standard for each of the different bags provided in subpart L of part 178 imposes a maximum net mass limitation of 50 kg (110 pounds). PHMSA agrees that the text proposed in the revised definition of non-bulk packaging requiring the bag or box to conform to all applicable requirements for the specification packagings in subpart L of part 178 should be clarified and has revised the definition to include that the packaging may not exceed the maximum net mass limitation provided in subpart L of part 178.
In the NPRM, PHMSA proposed to revise and add vessel stowage codes listed in column 10B of the HMT and segregation requirements in § 176.83 consistent with the IMDG Code. These changes harmonize the HMR with the IMDG Code and provide additional guidance on the loading and stowage of various materials. Additionally, we proposed to increase the required segregation distances between Division 4.3 dangerous when wet material (
The following is a section-by-section review of the amendments adopted in this final rule:
Section 171.4 prohibits the transportation of materials meeting the definition of a marine pollutant except in accordance with HMR requirements. Paragraph (c) provides that marine pollutants transported in non-bulk packagings are excepted from the HMR unless the transportation is by vessel. PHMSA is adding a new exception from the HMR for marine pollutants up to 5 L (1.3 gallons) for liquids or 5 kg (11 pounds) for solids when these materials are packaged in accordance with the general packaging requirements of §§ 173.24 and 173.24a. This amendment, applicable to all modes, exempts small packages of hazardous material from the HMR that are regulated only because of the presence of one or more marine pollutants.
Comments received on this issue are discussed in detail in the Section IV “Comment Discussion” portion of this final rule. As a result of comments from DGAC, PHMSA is amending the exception in 171.4 to indicate that the use of the exception for single or inner packagings of 5 L or 5 kg or less is not limited to materials offered under the UN identification numbers UN 3077 and UN 3082, but also applies to marine pollutants that meet the definition of other hazard classes (
Section 171.7 provides a listing of all standards incorporated by reference into the HMR. For this rulemaking, we evaluated updated international consensus standards pertaining to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements and determined that the revised standards provide an enhanced level of safety without imposing significant compliance burdens. These standards have a well-established and documented safety history and their adoption will maintain the high safety
Paragraph (s)(1) which incorporates the
Paragraph (t)(1) which incorporates the
Paragraph (v)(2), which incorporates the
In paragraph (w) various
In paragraph (bb)(1), the
Paragraph (dd)(1), the
Paragraph (dd)(2), the
This section defines terms generally used throughout the HMR that have broad or multi-modal applicability. PHMSA is adding the following defined terms:
PHMSA received comments from Key Safety Systems, RIPA, TK Holdings Inc., and TRW Automotive in support of this proposal. However, RIPA conditioned their support on the presumption that the references to “bag” and “box” in the definition do limit users to all the conditions stipulated in subpart L of part 178. For example, the standard for each of the different bags provided in subpart L of part 178 imposes a maximum net mass limitation of 50 kg (110 pounds). PHMSA believes that the text proposed in the revised definition of non-bulk packaging requiring the bag or box to conform to all applicable requirements for the specification packagings in subpart L or part 178 is clear in requiring the bags and boxes to completely conform to the specification, including the questioned maximum net mass limitation of 50 kg (110 pounds) for bags.
Section 171.23 prescribes requirements for specific materials and packagings transported under various international standards. Section 171.22(b)(2) requires shipments made in accordance with an authorized international standard or regulation to conform to all applicable requirements of Subpart C of Part 171 which includes any requirements found in § 171.23.
Paragraph (b)(2) of this section requires the shipping paper description of items such as air bag inflators, air bag modules, and seat-belt pretensioners to conform to the requirements in § 173.166(c). Consistent with the UN Model Regulations, PHMSA is revising the proper shipping name of these items to read “Safety device,” with the addition of the term “pyromechanical device” being included as a “Safety device.” Paragraph (b)(2) is being revised to reference the new proper shipping name, “Safety device” and the new term “pyromechanical device.” As a consequence of the addition of the proper shipping name “Safety devices, pyrotechnic,” and special provision 161 being removed, paragraph (b)(2)(ii) is removed.
PHMSA received one comment from DGAC concerning paragraph (b)(2)(i). Paragraph (b)(2)(i) states that an EX number or product code number must be included as part of the shipping description. DGAC notes that safety devices tested and certified as Class 9 in accordance with § 173.166(b) do not require EX numbers and that the wording in this paragraph is confusing as it conveys that all safety devices require either an EX number or product code in association with the basic description on a shipping paper. We agree with DGAC that the EX number or product code shipping paper requirements when offering under international standards in accordance with § 171.23(b) may be confusing when compared to the corresponding domestic requirements in § 173.166(c) that only require the EX number or product code on a shipping paper for safety devices classed as Class 1, but excepts Class 9 safety devices from this requirement. Taking into account the comments from DGAC, in this final rule, PHMSA is removing § 171.23(b)(2)(i) as the preceding paragraph (b)(2) requires that for each safety device, the shipping paper description must conform to the requirements in § 173.166(c). By removing (b)(2)(i) and directing readers to the EX number and product code requirements prescribed in § 173.166(c), any potential conflict between the two sections is removed.
Paragraph (b)(11) of this section prescribes additional requirements for shipments of radioactive materials made under authorized international standards or regulations. PHMSA is incorporating by reference the 2012 IAEA SSR-6 regulations to replace the TS-R-1 (ST-1, Revised) 1996 Edition to allow shipments to be offered for transportation or transported under the most recent IAEA regulations. Several changes to the definition of excepted fissile materials and the requirements for its transport were adopted by the IAEA. Under their respective statutory authorities, DOT and the Nuclear Regulatory Commission (NRC) jointly regulate the transportation of radioactive materials to, from, and within the United States. The NRC has not initiated any rulemaking activities to address changes made by the IAEA regarding the transportation of excepted fissile materials. In order to maintain uniform treatment for shippers of excepted fissile materials, PHMSA is amending § 171.23 to require that shipments of excepted fissile materials offered in accordance with the IAEA SSR-6 regulations must also conform to the requirements of § 173.453.
Section 171.24 details additional requirements for the use of the ICAO TI. PHMSA is amending the marking requirement for packages containing primary lithium batteries and cells that meet the exceptions in paragraph (d)(1)(ii). Packages meeting these exceptions currently are required to be marked with an indication that they contain lithium batteries, and that these lithium batteries are forbidden for transport aboard passenger aircraft. PHMSA is making this change to allow the message that these batteries are forbidden for transport aboard passenger aircraft to be expressed through the current marking or by using a CARGO AIRCRAFT ONLY label as shown in § 172.448.
Section 171.25 details additional requirements for the use of the IMDG Code. PHMSA is amending the marking requirement for packages containing primary lithium batteries and cells that meet the exceptions in § 173.185(c) in paragraph (b)(3). Packages meeting these exceptions currently are required to be marked with an indication that they contain lithium batteries, and that these lithium batteries are forbidden for transport aboard passenger aircraft. PHMSA is proposing to allow the message that these batteries are forbidden for transport aboard passenger aircraft to be expressed through the current marking or by using a CARGO AIRCRAFT ONLY label as shown in § 172.448.
Section 172.101 provides instructions for using the Hazardous Materials Table (HMT) and the HMT itself. In this final rule, PHMSA is revising the instructional text that precedes the HMT for paragraph (k) of this section.
Paragraph (k) of § 172.101 explains the purpose of column (10) of the HMT and prescribes the vessel stowage and segregation requirements for specific entries in the HMT. Column (10) is divided into two columns: column (10A) [Vessel stowage] specifies the authorized stowage locations on board cargo and passenger vessels and column (10B) [Other provisions] specifies special stowage and segregation provisions. PHMSA is amending this instructional text to note that the codes in column 10B address not only codes for stowage requirements, but also, in certain instances, handling requirements that need to be observed during loading of the hazardous materials. The IMO, in amendment 37-14 of the IMDG Code, has split their stowage and segregation column (16) in the dangerous goods list into two columns and assigned codes to the existing stowage, handling, and segregation text. The new first column (16a) in the IMDG Code is entitled stowage and handling, and the second column (16b) is titled segregation. PHMSA is maintaining the HMR's current column 10A and 10B system, with text in this section and § 176.84 indicating that handling/loading of hazardous materials is also covered by certain codes in column 10B. See
In this final rule, PHMSA is proposing to amend the HMT. Readers should review all changes for a complete understanding of the amendments. For purposes of the Government Printing Office's typesetting procedures, changes to the HMT appear under three sections of the Table, “remove,” “add,” and “revise.” Certain entries in the HMT, such as those with revisions to the proper shipping names, appear as a “remove” and “add.” Amendments to the HMT include the following:
This new HMT entry addresses small quantities of uranium hexafluoride having corrosive properties by assigning the material to Class 8 with a subsidiary risk of Class 7, since this is more consistent with the general rule of classification of radioactive material in limited quantities possessing other hazards per § 173.423. Shipments must comply with new special provision 369 and requirements found in § 173.420(d).
PHMSA received one comment from Veolia requesting that the proper shipping name be amended to read “Radioactive material, uranium hexafluoride, excepted package,
This new HMT entry covers asymmetric capacitors with an energy storage capacity greater than 0.3 Wh. Asymmetric capacitors are assigned as a Class 9 miscellaneous hazardous material.
The “Adsorbed gas” HMT entries are added to address shipments of gas, which when packaged for transport, are adsorbed onto a solid porous material in a pressure receptacle. Entries classified as Division 2.3 gases are forbidden for transport by aircraft. PHMSA received three comments from COSTHA, DGAC, and Entegris noting that the entry for “Arsine, adsorbed” was not added to the HMT in the NPRM as intended. As a result, in this final rule PHMSA is adding the entry “UN3522, Arsine, adsorbed” to the HMT. Entegris also provided a comment suggesting that § 173.302c cannot be referenced in the HMT as a packaging instruction for bulk shipments of adsorbed gases, as there is no internationally accepted standard or authorization for bulk receptacles containing such gases. PHMSA agrees with the Entegris comment that bulk packagings for adsorbed gases are not presently authorized. As a result, in this final rule, PHMSA is revising Column (8C) of the HMT for the Adsorbed gas entries to indicate “None.” .
Duplicate entries for UN0214 Trinitrobenzene,
Section 172.101(b) describes column (1) of the HMT and the associated symbols that may be indicated in the column. In accordance with § 172.101(b), the symbol “G” identifies proper shipping names for which one or more technical names of the hazardous material must be entered in parentheses in association with the basic description on a shipping paper. The symbol “I” indicates these proper shipping names are appropriate for describing materials in international transportation, but that an alternate proper shipping name may be selected when only domestic transportation is involved. The letter “A” denotes a material that is subject to the requirements of this subchapter only when offered or intended for transportation by aircraft, unless the material is a hazardous substance or a hazardous waste.
In this final rule, PHMSA is adding international proper shipping names for “Asbestos, amphibole (amosite, tremolite, actinolite, anthophyllite, crocidolite)” and “Asbestos, chrysotile,” and removing shipping descriptions for Blue, Brown, and White Asbestos. These new international proper shipping names for “Asbestos, amphibole” and “Asbestos, chrysotile” have an “I” assigned in column one. PHMSA is also assigning a “G” to the “Asbestos, amphibole” entry. The “G” indicates that the technical name(s) of the hazardous material must be entered in parentheses, in association with the basic description. In the case of this proper shipping name, the technical name shown should be selected from the list of five different minerals (amosite, tremolite, actinolite, anthophyllite, crocidolite) indicated in italics after the proper shipping name. See the amendments to column (2) of the HMT for additional discussion regarding the revision of the proper shipping names for these entries.
In this final rule PHMSA is assigning an “A” to column 1 for “Fish meal, stabilized
Section 172.101(c) describes column (2) of the HMT and the requirements for hazardous materials descriptions and proper shipping names.
In the NPRM, the proper shipping name for “UN0222, Ammonium nitrate,
A review of the change to the UN Model Regulations revealed that the italicized text assigned to the proper shipping name for UN0222 was removed to resolve a potential contradiction with the new special provision 370 assigned to UN0222. The qualifying italicized text associated with this entry applies to materials
The proper shipping name for “UN1942, Ammonium nitrate,
Two new proper shipping names “Asbestos, amphibole (amosite, tremolite, actinolite, anthophyllite, crocidolite)” and “Asbestos, chrysotile” are assigned to identification numbers UN2212 and UN2590, respectively. These new proper shipping names more appropriately describe the material than the present “UN2212, Blue asbestos (Crocidolite) or Brown asbestos (amosite, mysorite)” and “UN2590, White asbestos (chrysotile, actinolite, anthophyllite, tremolite).” In the scientific community, Asbestos is divided into two chemical group names, “Amphiboles” and “Chrysotile”. The amphibole group includes five different minerals (amosite, tremolite, actinolite, anthophyllite, crocidolite). The chrysotile group includes only the mineral chrysotile.
The proper shipping name for “UN3499, Capacitor,
A new proper shipping name “Safety devices,
A new proper shipping name of “Safety devices, pyrotechnic” is assigned to identification number UN0503. The current proper shipping names assigned to UN0503 are “Air bag inflators,
PHMSA received a comment from COSTHA noting that stocks of these materials are well into the millions, and therefore they requested that PHMSA identify a transition period during which the previous proper shipping names may continue to be used in association with the relevant UN number. COSTHA believes a 1-year transition (until January 1, 2016) would be sufficient to re-mark packages already in the supply chain. PHMSA notes that this final rule provides for a one year delayed compliance date from the date of publication. It is also important to note that § 172.101(l)(ii) provides for the ability to use preprinted shipping papers and package markings, until depleted or for a one year period, subsequent to the effective date of a rulemaking change, whichever is less.
The proper shipping name for “UN1082, Trifluorochloroethylene, stabilized” is amended by adding “Refrigerant gas R 1113” as an alternative proper shipping name for consistency with the dangerous goods lists of the various international standards and the HMT of the HMR. The adopted proper shipping name for UN1082 is “Trifluorochloroethylene, stabilized
Section 172.101(f) describes Column (5) of the HMT and the designation of the packing group(s) assigned to each proper shipping name.
For the entries “UN3316, Chemical kits” and “UN3316, First aid kits” the Packing Groups II and III designations are adopted. The assignment of packing groups to these entries are not a new requirement; however, including packing group assignments in the HMT will ensure that shippers are aware that the most stringent packing group must be assigned to any individual substance in the kit in accordance with § 173.161(b)(2).
PHMSA received one comment from DGAC noting that the Packing Group III designation for “UN3316, First aid kits” was not added to the HMT. In this final rule, we are adding the Packing Group III entry to the HMT accordingly.
The HMT entries for several articles are revised to remove packing group assignments. For articles, the packing group does not relate to the degree of hazard posed by the material but rather is assigned generically to the article.
Section 172.101(h) describes Column (7) of the HMT and § 172.102(c) the special provisions assigned to specific entries in the HMT. The particular modifications to the entries in the HMT are discussed below. See
In this final rule, special provision 134 is added to the HMT entry “UN3072, Life-saving appliances, not self-inflating
PHMSA received one comment from DGAC noting for the entry “UN2990, Life-Saving Appliances, Self Inflating,” that “Special Provision 338 is missing from Column 7 in the proposed HMT.” This was an inadvertent omission. Special provision 338 has been reestablished.
Several HMT entries are revised to include new special provision 367. Special provision 367 authorizes the use of the “Paint related material” entries for consignments of packages containing “Paint” and “Paint related material” in the same package. This special provision also authorizes the proper shipping name “Printing ink related material” for consignments of packages containing “Printing Ink” and “Printing ink related material” in the same package.
In this final rule, new special provision 367 is assigned to the following entries:
PHMSA received one comment from DGAC regarding the UN1210 PG II entry in the proposed HMT. DGAC noted that 367 inserted before 149 in Column (7) and is in non-sequential order. We agree and have amended the entry accordingly.
In this final rule, we are adding new special provision 368 to the HMT entry “UN2910, Radioactive material, excepted package-limited quantity of material.”
In this final rule, new special provision 369 is assigned to the new HMT entry “UN3507, Uranium hexafluoride, radioactive material, excepted package,
In this final rule, new special provision 370 is assigned to the HMT entry “UN0222, Ammonium nitrate.” This special provision addresses a situation where Ammonium Nitrate, with not more than 0.2% carbon, does not satisfy Test Series 2 and therefore cannot be accommodated under the entry for “UN1942, Ammonium nitrate.”
In this final rule, new special provision 371 is assigned to the HMT entry “UN3164, Articles, pressurized
In this final rule, special provision IB6 is replaced with IB8 and special provisions IP2, and IP4 are added for the HMT Packing Group III entry “UN3089, Metal powders, flammable, n.o.s.” IB8 is presently assigned to the Packing Group II entry, therefore, fiberboard, wooden and flexible IBCs are allowed for the Packing Group II materials, but are forbidden for the less dangerous Packing Group III substance. These revisions will correct the inconsistency.
In this final rule, new special provision A61 is assigned to the HMT entries “UN 3107, Organic peroxide type E, liquid” and “UN 3109, Organic peroxide type F, liquid”
Several HMT entries are revised to include new portable tank special provision TP47. Special provision TP47 indicates that the 2.5 year internal portable tank examination may be waived or substituted by other test methods or inspection procedures specified by the competent authority or its authorized body, provided that the portable tank is dedicated to the transport of the organometallic. However, this examination is required when the conditions of § 180.605(f) are met.
In this NPRM, new special provision TP47 is assigned to the following entries:
PHMSA received one comment from DGAC noting that for the entry “UN3375, Ammonium nitrate emulsion,” IB2 and TP32 are listed in Column (7) in the changes to the proposed HMR. DGAC notes that “these special provisions are not present in Column (7) in the 10-1-13 version of the HMR.” Although the addition of IB2 to Column (7) was not described in the amendments to Column (7) of the NPRM, this revision was intentional. PHMSA is aligning with international standards to add IBCs as an authorized packaging for UN3375. In the NPRM, portable tank special provision TP32 was inadvertently added to this HMT entry in error. While this portable tank special provision was assigned to UN3375 in the UN Model Regulations and the IMDG Code, the HMR do not authorize UN3375 in portable tanks and therefore a portable tank special provision is not appropriate. In this final rule, for the entry UN3375, Ammonium nitrate emulsion,” PHMSA is adding special provisions IB2, IP16, and removing TP32 as proposed in the NPRM. New special provision IP16 is described in the
PHMSA received one comment from DGAC noting that for the entry “UN3375, Ammonium nitrate emulsion,” 231 is listed in is listed in Column (8B) in the changes to the proposed HMT. DGAC notes that packaging authorization 214 is present in Column (8B) in the 10-1-13 version of 49 CFR. Although this revision was not described in the amendments to Column (8B) of the NPRM, the revision from 231 to 214 was intentional as discussed in the section-by-section review of § 173.231 (79 FR 50764).
PHMSA received one comment from DGAC noting that for the entry “UN 3375, Ammonium nitrate emulsion,” 231 is listed in Column (8C) in the changes to the proposed HMT. The UN Sub-Committee of Experts on the Transportation of Dangerous Goods added authorizations for certain IBCs in the UN Model regulations for UN 3375. This authorization necessitates the incorporation of a bulk packaging authorization for this HMT entry. In this final rule PHMSA is creating a new § 173.251 and assigning it to column (8C) for this entry to authorize the use of IBC's.
Section 172.101(j) describes Column (9) of the HMT and the quantity limitations for specific entries in the HMT. Furthermore, Columns (9A) and (9B) specify the maximum quantities that may be offered for transportation in one package by passenger-carrying aircraft or passenger-carrying rail car (Column (9A) or by cargo-only aircraft (Column (9B). The indication of “forbidden” means the material may not be offered for transportation or transported in the applicable mode of transport.
For the entry “UN3497, Krill meal” quantity limits of 15 kg and 50 kg for PG II, and 25 kg and 100 kg for PG III, are adopted for columns (9A) and (9B) respectively. Previously, there was no limit to the amount authorized to be shipped in one package. These new quantity limits are consistent with authorized quantity limits found in the ICAO TI.
At the 24th meeting the ICAO DGP, it was agreed to incorporate certain UN numbers contained in the UN Model Regulations, but not currently listed in the ICAO TI. For the entries “UN2216, Fish meal, stabilized or Fish scrap, stabilized,” and “UN1374 Fish meal, unstabilized or Fish scrap, unstabilized” the panel determined that they should be forbidden for transport on both cargo and passenger aircraft. In this final rule, PHMSA is aligning with the ICAO TI by revising columns (9A) and (9B) to “Forbidden.” PHMSA received one comment from Alaska Airlines in support of this revision.
DGAC commented that for the HMT entry “UN3221, Self-reactive liquid type B,” columns (9A) and (9B) in the current HMT contain a (2) footnote, and that in the NPRM, PHMSA proposed revising these limitations to indicate “Forbidden” without any preamble discussion. This entry was revised in a
Section 172.101(k) explains the purpose of column (10) of the HMT and
The IMO, in amendment 37-14 of the IMDG Code, split their stowage and segregation column (16) in the dangerous goods list into two columns and assigned codes to the existing stowage, handling, and segregation text. The new first column (16a) in the IMDG Code is titled stowage and handling, and the second column (16b) is titled segregation. PHMSA is maintaining the HMT's current column (10A) and (10B), while also harmonizing our vessel stowage codes in columns (10A) and (10B) as closely as possible with those in amendment 37-14 of the IMDG Code. There are several instances where PHMSA is maintaining additional codes (see UN numbers 0019, 0020, 0021, 0301, 0303, 1017, 1131, 1389, 1392, 1420, 1422, 1780, 1942, 1950, 2679, 2912, 3015, 3071, 3101-3106, 3108-3110, 3242, 3323, and 3497) that vary from IMDG Code stowage and segregation requirements. These additional stowage and segregation provisions vary by UN number, but are considered additional precautions deemed necessary to ensure the safe transport of these commodities during transportation by vessel.
During the preparation of the NPRM and final rule, PHMSA and the United States Coast Guard conducted an extensive review of all HMT entries to verify that domestic entries correspond as closely as possible with the provisions found in the IMDG Code. PHMSA is making numerous changes to the codes found in the HMT's column (10B) [Other provisions] as a result of this review. The majority of the changes are a result of work done at the IMO to eliminate duplicate and unnecessary provisions. Some of the proposed changes to column (10B) are adopted to harmonize existing differences in stowage, handling, and segregation provisions between the HMR and the IMDG Code. A table of changes, listed in alphabetical order, showing the proper shipping name, UN identification number, any stowage codes adopted for removal, and any stowage codes adopted for addition is provided below. If a column is blank, no changes were adopted. The meaning of the codes in column (10B) can be found either in § 176.84 or are listed in the § 176.84 Section-by-Section change portion of this final rule.
PHMSA received two comments concerning amendments to column (10B) of the HMT. IVODGA commented providing full support for the changes as proposed in the NPRM. DGAC provided multiple editorial comments related to the assignment of various vessel stowage codes primarily based on the codes indicated in the above table when compared to what was proposed in the NPRM. The DGAC comments are as follows:
Appendix B to § 172.101 lists Marine Pollutants regulated under the HMR. In this final rule, PHMSA is revising the List of Marine Pollutants by adding sixty-two new entries consistent with the IMDG Code. These changes include those substances that, by virtue of meeting the Group of Experts on the Scientific Aspects of Marine Environmental Protection (GESAMP) defining criteria for marine pollutants, were either assigned a “P” in the dangerous goods list or identified in the alphabetical index to amendment 37-14 of the IMDG Code. The entry “Chlorotoluenes (meta-;para-)” is removed based on its removal from the IMDG Code.
PHMSA received two comments from the ACC regarding our proposed addition of one specific material, dodecene, to the list of marine pollutants. In its first comment, the ACC requests a 30 day extension of the comment period to better understand “dodecene's place on other lists referenced in the proposed rule.” ACC notes that it would use the time to coordinate with industry to better understand the information contained in the dodecene Regulation on Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) dossiers. PHMSA is denying the ACC's request for a 30 day extension of the
Section 172.102 lists special provisions applicable to the transportation of specific hazardous materials. Special provisions contain packaging requirements, prohibitions, and exceptions applicable to particular quantities or forms of hazardous materials. PHMSA is adopting the following revisions to § 172.102, special provisions:
Special provision 28 states that the dihydrated sodium salt of dichloroisocyanuric acid is not subject to the requirements of this subchapter. In this final rule, PHMSA is revising special provision 28 to convey that the dihydrated sodium salt of dichloroisocyanuric acid does not meet the definition of a Division 5.1 (oxidizer) and is not subject to the requirements of the subchapter unless it meets the criteria for inclusion in another Class or Division, such as Class 9, environmentally hazardous substance. Some formulations of the dihydrated sodium salt of dichloroisocyanuric acid meet the criteria for classification as an environmentally hazardous substance.
Special provision 52 authorizes use of the HMT entry “UN2067, Ammonium nitrate based fertilizer” for substances that do not exhibit explosive properties of Class 1 when tested in accordance with Test Series 1 and 2 of the UN Manual of Tests and Criteria, Part I. In this final rule, PHMSA is revising special provision 52 by removing the requirement to test in accordance with Test Series 1 because Test Series 2 determines whether such properties are indeed those of Class 1, not Test Series 1.
This special provision describes the composition of the material for which the use of the HMT entry “UN3375, Ammonium nitrate emulsion
Special provision 160 is presently assigned to “UN3268, Air bag inflators,
PHMSA received comments from Key Safety Systems, TK Holdings Inc., and TRW Automotive requesting that special provision 160 be revised to note that if the air bag inflator unit and or pyromechanical device satisfactorily passes the series 6(c) test, it is not necessary to repeat the test on the air bag module. PHMSA is not convinced the requested change is necessary. The purpose of the exception from testing in this special provision is to state that air bag modules do not need to be tested if the air bag inflators were tested. Air bag inflators are any article used to inflate a module, which includes inflators that use compressed gas, gas generant tablets, or a hybrid design. Pyromechanical devices are generally piston type devices and would not be used to inflate modules. Therefore the addition of “pyromechanical devices” to the sentence in SP160 excepting air bag modules from being re-tested would not be appropriate.
Special provision 161 required that for domestic transportation the alternate shipping description “
Special provision 238 addresses the shipment of neutron radiation detectors. In this final rule, PHMSA is revising special provision 238 to align with the UN Model Regulations special provision 373 by expanding the transport conditions for neutron radiation detectors and radiation detection systems containing such detectors. Paragraph a. is restructured into: (a)(1), general transport requirements; (a)(2), requirements for radiation detectors transported as individual components; and (a)(3), requirements for completed neutron radiation detection systems containing detectors. Consistent with the UN Model Regulations, PHMSA is adopting the following revisions to the transport conditions: [1] In (a)(1), increase the total amount of gas authorized per detector from 12.8 grams to 13 grams; clarify that the minimum burst pressure is demonstrated by design type qualification testing; and add a new leaktightness standard; [2] in (a)(2), clarify that in addition to being packed in a strong outer package, that the completed package must be capable of withstanding a drop of 1.8 meters (6-foot) without leakage of gas contents; and increase the total amount of gas from all detectors per outer packaging from 51.2 grams to 52 grams; and [3], in (a)(3), add a new requirement that for completed neutron radiation detection systems, the detectors must be contained in a strong sealed outer casing; and adding a new requirement that the completed system must be capable of withstanding a 1.8 meter (6-foot) drop test without leakage unless a system's outer casing affords equivalent protection.
PHMSA received a comment from James Lynch asking how the 1 × 10
PHMSA received a comment from Bechtel Plant Machinery Inc. requesting a 90 day extension of the final rule comment period to further review the logistical and technical impact of these proposed regulation changes for the transportation of neutron radiation detectors. PHMSA is denying Bechtel Plant Machinery Inc.'s request for an extension of the comment period for this final rule. We are revising the HMR to maintain alignment with international standards by incorporating various amendments, including revision of the transport conditions for neutron radiation detectors in special provision 238. In addition, the revisions to special provision 238 do not invalidate existing special permits or de minimis interpretations issued by PHMSA. Further, for reasons mentioned elsewhere in this rulemaking, it is imperative that a harmonization rulemaking be published on or near January 1st, 2015 to facilitate unencumbered commerce. It is important to note that the transport provisions for these detectors in the ICAO TI, which this final rule harmonizes with, will become effective January 1st, 2015.
This special provision, assigned to “UN1040, Ethylene oxide
Consistent with the ICAO TI, in this final rule PHMSA is further clarifying that irrespective of both Columns (9A) and (9B) of the § 172.101 HMT listing the material as forbidden, ethylene oxide conforming to the conditions in the special provision is eligible for air transport. Specifically, we are supplementing the language in this special provision “irrespective of the restriction of § 173.4a(b)” with “and the indication of “forbidden” in columns (9A) and (9B) of the § 172.101 table.”
Special provision 362 specifies when a material can be considered a chemical under pressure. Specifically, the special provision states that classification of these materials is to be based on hazard characteristics of the components in the propellant, the liquid, or the solid forms. In this final rule, PHMSA is revising special provision 362 by adding a new paragraph (f) to clarify that chemicals under pressure containing components forbidden for transport on both passenger and cargo aircraft must not be transported by air. PHMSA received one comment from DGAC noting that as proposed special provision 362 has two paragraph d's. PHMSA has amended the final rule text to ensure proper paragraph sequencing.
A new special provision 367 is added to clarify that the proper shipping name “Paint related material” or “Printing ink related material” may be used for consignments of packages containing both “Paint” and “Paint related material” or “Printing Ink” and “Printing ink related material” in the same package and sharing the same identification number (UN 1210, UN 1263, UN 3066, UN 3469, or UN 3470). For example, “UN1263, Paint
In this final rule, PHMSA is adding new special provision 368 and assigning it to “UN2910, Radioactive material, excepted package-limited quantity of material” to clarify that in the case of non-fissile or fissile-excepted uranium hexafluoride, the material must be classified under UN3507 or UN2978.
The 18th Revised Edition of the UN Model Regulations has adopted a new proper shipping name of “UN3507, Uranium hexafluoride, radioactive material, excepted package,
In this final rule, PHMSA is adding new special provision 370 and assigning it to the revised HMT entry “UN0222, Ammonium Nitrate.” In the NPRM, PHMSA proposed revising the proper shipping name for UN0222 by removing the qualifying italicized text assigned to UN0222 and including it in this special provision. Based on a comment submitted by IME and discussed in the section-by-section review of amendments to Column (2) of the HMT, we are not moving the qualifying italicized text from the proper shipping name to the special provision in this final rule. In this final rule, we are maintaining paragraph b. of special provision 370 as proposed in the NPRM to clarify that ammonium nitrate with not more than 0.2% combustible substances, including any organic substance calculated as carbon, to the exclusion of any added substance, that gives a positive result when tested in accordance with Test Series 2 of the UN Manual of Tests and Criteria, Part I must be assigned to UN0222.
In this final rule, PHMSA is adding a new special provision 371 and assigning it to “UN3164, Articles, pressurized pneumatic
In this final rule, PHMSA is adding a new special provision 372 and assigning it to the new HMT entry “UN3508, Capacitor, asymmetric.” This special provision states that this entry applies to asymmetric capacitors with an energy storage capacity greater than 0.3 watt hours (Wh) and that asymmetric capacitors with an energy storage capacity of 0.3 Wh or less are not subject to the requirements of this subchapter. This special provision also provides that nickel-carbon asymmetric capacitors containing Class 8 alkaline electrolytes must be transported as UN 2795, Batteries, wet, filled with alkali, electric storage. PHMSA received one comment from COSTHA supporting the amendment as proposed noting that this provision now gives clear guidance on how manufacturers are to ship these articles.
Special provision A60 permits “UN2014, Hydrogen peroxide, aqueous solution,” to be transported in excepted quantities. The special provision authorizes packagings to include a vent to permit the slow escape of gas (
In this final rule, PHMSA is adding a new special provision A61 and assigning it to the HMT entries “UN 3107, Organic peroxide type E, liquid” and “UN 3109, Organic peroxide type F, liquid.” PHMSA is aligning with Packing Instruction 570 of the ICAO TI to allow for limited venting of oxygen in the case of specialized peroxyacetic acid packagings when transported by cargo aircraft, provided the packaging requirements of this special provision are met. It was reported to the ICAO DGP that peroxyacetic acid was commonly used as a sterilizer for health care purposes and that there is a need to transport the material by air for use in sterilizing medical equipment using custom packagings. The basis for the requirements that these specialized packagings must meet originated from exemptions to permit the transport of this substance in small containers approved by several national authorities. The inclusion of this new special provision will eliminate the need for these exemptions and facilitate international transport.
Section 172.102(c)(4) prescribes situations where Large Packagings are authorized. In this final rule, PHMSA is authorizing the use of large packagings for lithium batteries without assigning IB3 or IB8 to the corresponding entries in the § 172.101 Table by adding a reference to § 173.185 before the reference to § 173.225(e). See
In two final rules published in the
A new IP Code 16 is added and assigned to UN3375. Consistent with international regulations, this special provision would authorize require IBCs of type 31A and 31N if approved by the Associate Administrator.
In this final rule, PHMSA is adding a new special provision TP47 and assigning it to the organometallic substance HMT entries UN3393 through UN3399. The special provision waives the 2.5 year internal inspection for portable tanks used for the transport of liquid and solid organometallic substances provided that the portable tank remains in the dedicated service of transporting organometallic substances. However, all other required 2.5 year inspections and tests would still be performed, as well as the full 5 year periodic test and inspection, which would include an internal inspection.
Before an internal inspection can be performed, the tank must be cleaned and purged. In this process, it is difficult to ensure that water, impurities, or contaminants introduced during cleaning are fully removed before organometallic substances are again introduced into the tank, which could potentially result in a dangerous reaction or have an effect on the purity of the product. Since these organometallic substances are fully compatible with and are not corrosive to the materials of construction used in such tanks, the likelihood that an internal inspection will reveal any corrosion, pitting or other deterioration of the tank is unlikely. To increase safety and avoid the risk of a dangerous reaction or product contamination the 2.5 year internal inspection is waived, provided the portable tank remains in the dedicated service of transporting organometallic substances and the tank does exhibit damaged or corroded areas, leakage, or other conditions that indicate a deficiency in accordance with § 180.605(f). PHMSA received one comment from Dow Chemical in support of this special provision.
This section describes the text that must be contained within the shipper's certification on a shipping paper. PHMSA received a comment from Gregory Sutherland noting that PHMSA did not propose in the NPRM to align the text with the requirements of the UN Model Regulations and the IMDG Code in Section 172.204(a)(2) to allow the shipper's certification to be either below or above the required elements of a shipping paper. PHMSA agrees that harmonizing provisions for shipper's certification placement and language, by providing the allowance to place the certification either below or above other required elements, is necessary to facilitate international commerce. As a result, PHMSA is adding a note following § 172.204(a)(2) to allow substitution of the word “below” for the currently authorized “above” if appropriate.
In this final rule, PHMSA is revising the specifications for the limited quantity markings prescribed in § 172.315(a)(2) and (b)(2) to be consistent with the revised specifications in the UN Model Regulations. To promote uniformity and consistency with the UN Model Regulations we are allowing manufacturers and printers necessary time to produce markings that conform to the revised specifications, and to deplete supplies of existing markings. PHMSA is adding a transitional period to authorize a limited quantity marking that is in conformance with the requirements of the regulations in effect on December 31, 2014, to be used until December 31, 2016. PHMSA received one comment from DGAC noting that many packages, especially those containing consumer products, may be permanently marked with the limited quantity marking and remain in the distribution cycle for an extended period of time. DGAC recommended that a provision be added which authorizes limited quantity markings conforming to the current requirements and permanently affixed to a package to be authorized for the useful life of the package. PHMSA agrees that there may be packages or packagings marked for an indefinite period of time and is adding a new paragraph (a)(2)(ii) and (b)(2)(ii) to § 172.315 to read “For domestic transportation, a packaging marked prior to January 1, 2017 and in conformance with the requirements of this paragraph in effect on December 31, 2014, may continue in service until the end of its useful life.”
To promote the uniformity of the “Keep Away From Heat” handling mark throughout the international transportation community, the ICAO Technical Instructions have adopted revisions to clarify and standardize the specifications for this hazard communications element. In this final rule, PHMSA is revising the specifications in § 172.317(b) to be consistent with the revised specifications in the ICAO TI. Thus, we are adopting provisions to allow manufacturers and printers necessary time to produce markings that conform to the revised specifications, and to deplete supplies of existing markings. We are also adopting a transitional period to authorize a “Keep Away From Heat” handling mark that is in conformance with the requirements of the regulations in effect on December 31, 2014, to be used until December 31, 2016. For domestic transportation, we are authorizing a packaging marked with a “Keep Away From Heat” handling mark prior to January 1, 2017 and in conformance with the requirements of the regulations in effect on December 31, 2014, to continue in service until the end of its useful life.
In this final rule, PHMSA is clarifying in § 172.322(a)(2) and (b), that the marking requirements for marine pollutants are required unless otherwise provided for in the regulations.
In § 172.322(e), PHMSA is deleting the obsolete date of January 14, 2010 for the requirements for the marine pollutant mark.
To promote the uniformity of the marine pollutant mark throughout the international transportation community, the UN Model Regulations have adopted revisions to clarify and standardize the specifications for this hazard communications element. In this final rule, PHMSA is revising § 172.322(e) to be consistent with the revised specifications for this marking in the UN Model Regulations. We are also adopting a transitional period to authorize a marine pollutant mark that is in conformance with the requirements of the regulations in effect on December 31, 2014, to be used until December 31, 2016, so that manufacturers and printers will have the necessary time to deplete
Section 172.326 prescribes marking requirements for portable tanks. PHMSA received a comment from Edward Altemos noting that in the NPRM PHMSA did not propose to harmonize this section with recent changes adopted into Amendment 37-14 of the IMDG Code. Amendment 37-14 of the IMDG Code adopted a reduced size proper shipping name exception for portable tanks having a capacity of less than 3,000 L (792.52 gallons). Prior to this amendment proper shipping name markings on all portable tanks were required to be at least 65 mm (2.5 inches) high. Mr. Atlemos requests PHMSA harmonize with the IMDG Code on this issue. PHMSA agrees and is amending paragraph (a) accordingly.
To promote the uniformity of markings, in this final rule, PHMSA is revising and clarifying the specifications for the “petroleum sour crude oil” mark prescribed in § 172.327(a) to be consistent with the revised specifications for markings in the UN Model Regulations. Also, to allow manufacturers and printers necessary time to produce markings that conform to the revised specifications, and to allow for the depletion of supplies of existing markings, we are adopting a transitional period to authorize a “petroleum sour crude oil” mark that is in conformance with the requirements of the regulations in effect on December 31, 2014, to be used until December 31, 2016. For domestic transportation, we are authorizing a packaging marked with a “petroleum sour crude oil mark” prior to January 1, 2017 and in conformance with the requirements of the regulations in effect on December 31, 2014, to continue in service until the end of its useful life.
The UN Model Regulations have adopted revisions to clarify and standardize the specifications for labels to promote the uniformity of hazard communications labels throughout the international transportation community. In this final rule, PHMSA is revising § 172.407(c) to be consistent with UN Model Regulations. In addition, PHMSA is revising (d)(2)(iii) that provides a color alternative for the symbol on the ORGANIC PEROXIDE LABEL to be consistent with the UN Model Regulations. Also to be consistent with the UN Model Regulations, and to allow manufacturers and printers necessary time to produce labels that conform to the revised specifications, and to allow for the depletion of supplies of existing labels, we are adopting a transitional period to authorize a label that is in conformance with the requirements of the regulations in effect on December 31, 2014, to be used until December 31, 2016.
PHMSA received one comment from DGAC noting that many packages may be permanently labeled and remain in service for an extended period of time. DGAC recommended that a provision be added which authorizes labels conforming to the current requirements and permanently affixed to a package to be authorized for the life of the package. PHMSA agrees that there may be packages or packagings labeled for an indefinite period of time and in response is adding a new paragraph (c)(1)(iv) to § 172.407 to read “For domestic transportation, a packaging labeled prior to January 1, 2017 and in conformance with the requirements of this paragraph in effect on December 31, 2014, may continue in service until the end of its useful life.”
Finally, PHMSA is adding paragraph (d)(2)(iv) to permit, consistent with the UN Model Regulations, a FLAMMABLE GAS label to be displayed on cylinders and gas cartridges for liquefied petroleum gases, where the symbol may be shown in the background color of the receptacle if adequate contrast is provided.
The placarding requirements for freight containers and aircraft unit load devices are described in § 172.512. The reference in § 172.512(a)(3) to part 7; chapter 2, section 2.7 of the ICAO TI in this paragraph is inaccurate. This reference became inaccurate because part 7; chapter 2, section 2.7 of the ICAO TI now refers to replacement of labels, whereas section 2.8 refers to identification of unit load devices containing dangerous goods. PHMSA is revising this paragraph for the correct reference to cite part 7; chapter 2, section 2.8.
The UN Model Regulations have adopted revisions to clarify and standardize the specifications for placards. In this final rule, PHMSA is revising the specifications for placards prescribed in § 172.519(c) to be consistent with the UN Model Regulations. Additionally, to allow manufacturers and printers necessary time to produce placards that conform to the revised specifications, and to allow for the depletion of supplies of existing placards, we are providing a transitional period. This transitional period authorizes a placard that is in conformance with the requirements of the regulations in effect on December 31, 2014, to be used until December 31, 2016. Finally, PHMSA realizes that in domestic transportation, numerous placards of a semi-permanent nature are in service. PHMSA is allowing, that for domestic transportation, a placard manufactured prior to January 1, 2017, in conformance with the requirements of the regulations in effect on December 31, 2014, may continue in domestic service until the end of its useful life provided the color tolerances are maintained and are in accordance with the display requirements of the subchapter.
Section 173.2a outlines classification requirements for materials having more than one hazard. In this final rule, PHMSA is amending paragraph (a)(1) to note that shipments of “UN3507, Uranium hexafluoride, radioactive material, excepted package, less than 0.1 kg per package” are not required to apply the radioactive hazard as the primary hazard. This change is adopted to incorporate the transportation provisions for excepted packages of uranium hexafluoride adopted in the 18th Revised Edition of the UN Model Regulations, the IMDG Code and the ICAO TI.
The UN Model Regulations have adopted revisions to clarify and standardize the specifications for markings. In this final rule, PHMSA is revising the specifications for markings for salvage packagings prescribed in § 173.3(c)(3); salvage cylinders prescribed in § 173.3(d)(3); and prescribing requirements for the marking of the proposed large salvage packaging in § 173.3(f) to be consistent with the revised specifications for salvage packaging markings in the UN Model Regulations. Also, to be consistent with the UN Model Regulations, and to allow shippers necessary time to implement the new marking requirements, we are adopting a transitional period to authorize a
Also PHMSA is adding a new paragraph (f) to § 173.3 authorizing and prescribing the use of large salvage packaging for all modes of transportation other than air. PHMSA received one comment from RIPA providing general support for the amendments as proposed.
The UN Model Regulations have been revised to clarify and standardize the specifications for the marking of excepted quantities of packaged hazardous materials. In this final rule, PHMSA is revising § 173.4a(g)(2) to be consistent with the revised specifications for these markings in the UN Model Regulations. We are adding a transition period so that manufacturers and printers can produce markings that conform to the revised specifications, and deplete existing supplies. An excepted quantities marking that is in conformance with the requirements of the regulations in effect on December 31, 2014, can be used until December 31, 2016. For domestic transportation, we are authorizing a packaging marked with an excepted quantities marking prior to January 1, 2017 and in conformance with the requirements of the regulations in effect on December 31, 2014, to continue in service until the end of its useful life.
In this final rule, PHMSA is revising the specifications for the fumigant marking prescribed in § 173.9(e) to be consistent with the revised specifications for these markings in the UN Model Regulations. Also consistent with the UN Model Regulations, to allow manufacturers and printers necessary time to produce markings that conform to the revised specifications, and to allow for the depletion of supplies of existing markings, we are authorizing a transitional period to authorize a fumigant marking that is in conformance with the requirements of the regulations in effect on December 31, 2014, to be used until December 31, 2016.
In this final rule, PHMSA is adding a new § 173.11 that provides exceptions to the regulations for certain light bulbs containing hazardous materials based on their transport conditions, the quantity of hazardous materials contained in each light bulb or package, and the type of packaging. This new section is consistent with newly adopted provisions in the UN Model Regulations. In the NPRM, PHMSA proposed using the term “lamp” in this section for consistency with the language contained in the UN Model Regulations. However, a reference to “light bulbs” remained in § 173.307(a)(6). PHMSA received one comment from Alaska Airlines noting that this may be confusing for shippers and suggested defining the terms lamp and light bulb. We agree that using both of these terms may be confusing; however we do not believe there is a need for defining these two terms as they apply to the same commodity. Therefore, in this final rule, PHMSA is revising the language in § 173.11 and § 173.307 to include the term “lamp” in association with “light bulb.”
In this final rule, PHMSA is revising § 173.24 to authorize the use of supplementary packagings within an outer packaging (
To promote the uniformity of markings, the UN Model Regulations have been revised to clarify and standardize the specifications for the overpack marking. In this final rule, PHMSA is revising § 173.25(a)(4) to be consistent with the revised specifications for these markings in the UN Model Regulations. Also consistent with the UN Model Regulations, to allow manufacturers and printers necessary time to produce markings that conform to the revised specifications, and to allow for the depletion of supplies of existing markings, we are adopting a transitional period to authorize an overpack marking that is in conformance with the requirements of the regulations in effect on December 31, 2014, to be used until December 31, 2016. For domestic transportation, we are authorizing an overpack marked with an overpack marking prior to January 1, 2017 and in conformance with the requirements of the regulations in effect on December 31, 2014, to continue in service until the end of its useful life. PHMSA received one comment from RIPA providing general support for this amendment.
Consistent with the UN Model Regulations, in this final rule, PHMSA is revising § 173.62 relating to specific packaging requirements for explosives as follows:
In paragraph (b), in the Explosives Table, the entry for UN0222 is revised to expand the packaging authorizations to include Packing Instruction 117 in addition to the existing Packaging Instructions 112(b) and 112(c).
In paragraph (c), in the Table of Packing Methods, Packing Instruction 116 is revised to delete provision 5, which states that woven plastic bags (5H2 or 5H3) must be used only for UN 0082, 0241, 0331 and 0332. Packing Instruction 117 is revised to add provision 5 which states, “For UN0222, when other than metal or rigid plastics IBCs are used, they must be offered for transportation in a closed freight container or a closed transport vehicle.”; and provision 6 which states, “For UN0222, flexible IBCs must be sift-proof and water-resistant or must be fitted with a sift-proof and water-resistant liner.” Packing Instructions 131 and 137 are revised to expand the authorization for outer packagings to include solid plastic boxes (4H2).
Section 173.115 prescribes the definitions for Class 2 materials. In this final rule a new paragraph (m) is added to define the term “Adsorbed gas.” The term means a gas which when packaged for transport is adsorbed onto a solid porous material resulting in an internal receptacle pressure of less than 101.3 kPa at 20 °C and less than 300 kPa at 50 °C.
Currently the HMR do not prescribe requirements for the transport of adsorbed gases. In this final rule, PHMSA is adopting various transportation requirements for adsorbed gases. Therefore in this final rule we are adopting the above definition of an adsorbed gas based on the definition found in the 18th Revised Edition of the UN Model Regulations, the IMDG Code and the ICAO TI.
Section 173.121 prescribes the requirements for the selection of packing groups for Class 3 flammable liquids. Paragraph (b) of this section describes the criteria for inclusion of viscous Class 3 materials in Packing Group III. Paragraph (b)(1)(ii) currently states that the mixture cannot contain any substances with a primary or subsidiary risk of Division 6.1 or Class 8. In this final rule, PHMSA is revising paragraph (b)(1)(ii) to clarify that a mixture or any separated solvent cannot contain any substances with a primary or subsidiary risk of Division 6.1 or Class 8. This change is consistent with the current language in the 18th Revised Edition of the UN Model Regulations, the IMDG Code and the ICAO TI.
In this final rule, PHMSA is revising § 173.127(a) to authorize an alternative test for assigning packing groups to Division 5.1 oxidizing solids. The test is in addition to the currently authorized test using potassium bromate/cellulose mixture. The alternative test uses calcium peroxide as a reference substance which is neither carcinogenic nor as acutely toxic as potassium bromate. In addition, the alternative test replaces the highly subjective visual determination of the burning time with a gravimetric determination of the burning rate. This change is consistent with the test adopted into the UN Model Regulations.
Section 173.151 provides exceptions for Class 4 hazardous materials. In this final rule, PHMSA is revising paragraph (b) to replace a pre-existing paragraph (b)(2) relating to exceptions for charcoal briquettes (NA1361) that was inadvertently deleted in the final rule dated January 7, 2013 (HM-215K; 78 FR 1101).
Section 173.161 prescribes packaging requirements for chemical kits and first aid kits that contain small amounts of hazardous materials. Paragraph (b)(2) contains the requirement that “The packing group assigned to the chemical kit and first aid kit as a whole must be the most stringent packing group assigned to any individual substance in the kit . . .” This requirement creates problems for shippers and air transport acceptance personnel because it does not specify what must be shown for the packing group on the shipping paper, or what packaging standard must be applied to kits containing hazardous materials to which no packing group is assigned. In this final rule, PHMSA is revising paragraph (b)(2) to require that for kits containing only hazardous materials to which no packing group is assigned, a packing group need not be indicated on the shipping paper although such packagings shall meet the Packing Group II performance level. PHMSA received one comment from UPS providing full support for the amendments as proposed.
Section 173.164 prescribes requirements for the transportation of Mercury (metallic and articles containing mercury). In this final rule, PHMSA is eliminating the existing exception for lamps containing mercury in paragraph (a)(5) since this exception will be covered in the new § 173.11 relating to exceptions for shipment of light bulbs containing hazardous materials.
Section 173.166 prescribes requirements for the transportation of air bag inflators, air bag modules and seat-belt pretensioners, UN3268 and UN0503. Due to technological developments, new safety devices for vehicles are becoming available. The devices include pyromechanical devices that meet the definition of a hazardous material but are not accurately described by the proper shipping names Air bag inflators, Air bag modules, or Seat-belt pretensioners. The proper shipping name for these devices has been revised in the UN Model Regulations to “Safety devices,
The current § 173.166(b)(1)(iv) provides that under certain conditions a Class 9 (UN3268) air bag inflator, air bag module, or seat-belt pretensioner design is not required to be submitted to the Associate Administrator for approval or assigned an EX number. In the NPRM, PHMSA proposed not extending this exception to all Class 9 safety devices and maintaining this exception only for air bag inflators, air bag modules, and seat-belt pretensioners. All other types of safety devices, such as pyromechanical devices, that are candidates for Class 9 must be submitted to the Associate Administrator for approval. Takata, Autoliv, TRW Automotive, and COSTHA provided comments opposing PHMSA's proposal to not extend this exception to all “Safety, devices.” A summary of the commenters' positions follows:
• Employees who prepare shipping papers will have a difficult task to determine when an EX number is or is not required to be contained on the shipping paper, and training for this requirement by January 1, 2015 will be difficult to achieve.
• Automated software used to prepare shipping papers for hazardous materials will not be capable of differentiating between air bag inflators, air bag modules, seat-belt pretensioners and all other Class 9 (UN3268) safety devices. Software programs are written to either require an EX number or not require an EX number for UN3268 (Class 9) devices.
• Carriers are not capable of determining when a Class 9, UN3268 “Safety Device” does or does not require an EX number on the shipping papers.
• PHMSA approved explosives test labs will witness testing of Safety Devices, other than air bag inflators, air bag modules and seat-belt pretensioners, to determine proper classification. The devices will either pass criteria for classification as Class 9 (UN3268), Class 1.4G (UN0503) or they will fail to obtain classification as a Safety Device. There
• The new Safety Devices, other than air bag inflators, air bag modules and seat-belt pretensioners, have already been manufactured and shipped for several years, but with classifications such as Class 1.4S (UN0323) or “Not regulated as a Class 1 Explosive”. These devices typically contain significantly lower amounts of pyrotechnics, and therefore pose less risk to safety when shipping and handling. The commenters are not aware of any incidents or accidents involving these devices.
• Adding the requirement for certain Safety Devices to be submitted to PHMSA for approval and an EX number will add to PHMSA's approval workload. Current processing time for approvals is 180 to 200 days. This delay in bringing new products to market will hurt U.S. manufacturers and carriers because new products will be sourced to other nations.
As noted in the proposed rule, the three items currently excepted have a long history of safety in their design and manufacture. New devices do not yet have such an established safety history. PHMSA, in the interest of safety, is limiting use of the exception to articles and devices currently authorized under the exception. PHMSA is not opposed to reexamining the exception from Associate Administrator approval for all safety devices, once a sufficient number of these new devices have been evaluated and the data provides assurance that an appropriate level of safety is maintained. PHMSA is however excepting these new types of safety devices classified as Class 9 materials from the requirement to mark the EX number on shipping papers and packages by revising § 173.166(c)(2). This revision addresses the commenters concerns about the ability for carriers and downstream offerors to know when a safety device classified as a Class 9 material does or does not require an EX number to be indicated on documentation or packages.
Additionally, in this final rule, PHMSA is adding a new paragraph (d)(5) to § 173.166 to permit the continued transportation of an air bag inflator, air bag module, or seat-belt pretensioner that was classed and approved for transportation prior to January 1, 2015 under the terms of the existing approval, using the proper shipping name “Safety Devices” or “Safety Devices, Pyrotechnic” as appropriate.
PHMSA received a comment from COSTHA noting potential logistical problems ensuring that all packages, either currently in transportation or in storage awaiting further offering in transportation, are both marked and described with the new proper shipping names “Safety devices” or “Safety devices, pyrotechnic” as appropriate. COSTHA notes that while the majority of shippers of these devices are transitioning to the new authorized shipping names for documentation purposes, ensuring proper shipping name markings on packages are consistent with the new shipping names may prove difficult. COSTHA asks for a transitional period for packages containing “Air bag inflators”, “Air bag modules”, and “Seat-belt pretensioners” allowing them to be marked with previously authorized proper shipping names while shipping papers would indicate the new proper shipping names as proposed in the NPRM.
PHMSA agrees that this situation may occur, and in this final rule PHMSA is adding a new paragraph (d)(6) to § 173.166 to permit until January 1, 2016, the domestic transportation by highway, rail, and vessel of packages containing “Air bag inflators”, “Air bag modules”, or “Seat-belt pretensioners” that are marked or documented either with a previously authorized proper shipping name (Air bag inflators, Air bag modules, or Seat-belt pretensioners) for these articles; or with the appropriate new proper shipping name authorized under this rulemaking (Safety devices or Safety devices, pyrotechnic). This exception can be applied in part or in whole. Packages may be marked with a previously authorized proper shipping name (
Section 173.167 prescribes the requirements for consumer commodities intended for air transportation. In this final rule, PHMSA is revising the drop test requirements in (a)(4) by including the criteria for passing the test. A completed consumer commodity package will be considered to have passed the drop test if the outer packaging does not exhibit any damage liable to affect safety during transport and there is no leakage from the inner packaging(s).
This section addresses capacitors by prescribing the testing, marking, safety, and packaging requirements for electric double layer capacitors with energy storage capacity greater than 0.3 watt hours (Wh). In this final rule, PHMSA is revising § 173.176 to include provisions for asymmetric capacitors in accordance with the new HMT entry “UN3508, Capacitor, asymmetric
This section prescribes the non-bulk packaging requirements applicable to pyrophoric liquids. On January 7, 2013, PHMSA published final rule PHMSA-2012-0027 (HM-215L) [78 FR 987] to maintain alignment with international standards by incorporating various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements. In that final rule, PHMSA revised paragraphs (b) and (c) to add authorized packagings for these materials. Paragraphs (c)1-3 were inadvertently deleted due to an incorrect amendatory instruction and in this final rule, PHMSA is placing paragraphs (c)1-3 back into § 173.181 as they were prior to the publication of HM-215L.
In this final rule, PHMSA is adding paragraph (b)(6) and revising paragraph(f)(3) to authorize and prescribe the use of a large packaging for a single large lithium battery or a battery contained in equipment. This authorization does not include transportation by aircraft. The addition of this packaging type into this section is consistent with provisions for lithium batteries in the UN Model Regulations.
The ICAO DGP took a decision during the most recent biennium to remove the alternative written documentation option in Section IB of ICAO TI Packing Instructions 965 and 968 and instead require a standard transport document (shipping paper). Section IB is applicable to packages that exceed the number or quantity (mass) limits for smaller lithium batteries in Section II of Packing Instructions 965 and 968, thus excepting such packages from specification packaging requirements when containing no more than 2.5 kg of lithium metal cells or batteries or 10 kg of lithium ion cells or batteries per package. As this revision will appear in the 2015-2016 Edition of the ICAO TI, in this final rule PHMSA is amending paragraph (c)(4)(v) to require a shipping paper for these packages containing no more than 2.5 kg of lithium metal cells or batteries or 10 kg of lithium ion cells or batteries per package. PHMSA sought input as to the costs and benefits of harmonizing the provisions of the HMR with the provisions of the ICAO Technical Instructions by requiring shipping papers as opposed to alternative documentation. PHMSA also solicited comments on the costs and benefits of maintaining a domestic difference within the HMR to continue to allow the use of the alternative documentation in lieu of a shipping paper as required by the ICAO Technical Instructions. PHMSA received comments from UPS and Alaska Airlines concerning removal of the alternative document. UPS supported our proposed change to the documentation requirement for packages containing smaller lithium batteries transported in accordance with § 173.185(c)(4)(v). UPS also commented that the proposal to introduce a shipping paper requirement for shipments offered under § 173.185(c)(4)(v) could be interpreted to conflict with the statement in the preceding paragraph § 173.185(c) that such shipments are excepted from the requirements in subparts C through H of part 172. UPS suggests that § 173.185(c) should be clarified in this regard. We agree clarification is warranted. Alaska Airlines commented that they would like to see increased harmonization between the 49 CFR and ICAO TI with regard to the documentation required while stating there is no reason to deviate from the ICAO TI. We agree, and note that the amendments proposed do provide for such consistency.
Taking into account the comments from Alaska Airlines, PHMSA confirmed that the proposed documentation amendments do align with the requirements of the ICAO TI. However, in this final rule PHMSA is revising § 173.185(c)(4)(v) as suggested by UPS for clarity. This editorial amendment will clarify that packages offered in accordance with § 173.185(c)(4)(v) are subject to the shipping paper requirements of subpart C of Part 172.
At the April 2014 meeting, the ICAO Working Group on Lithium Batteries, forbade the shipment of lithium metal cells and batteries as cargo on passenger aircraft with the exception of lithium metal cells and batteries packed with or contained in equipment not exceeding 5 kg net weight. This prohibition of lithium metal batteries as cargo on passenger aircraft is consistent with current HMR requirements. As a consequence to this prohibition, Section II of Packing Instruction 968 in the ICAO TI was amended to require shipments of small lithium metal cells and batteries to display the “CARGO AIRCRAFT ONLY” label where previously only a lithium battery handling marking was required. Presently under the HMR, a package containing such lithium metal cells or batteries as provided in § 173.185(c)(1)(iii), is required to be marked “PRIMARY LITHIUM BATTERIES—FORBIDDEN FOR TRANSPORT ABOARD PASSENGER AIRCRAFT” or “LITHIUM METAL BATTERIES—FORBIDDEN FOR TRANSPORT ABOARD PASSENGER AIRCRAFT.” In this final rule, PHMSA is providing an alternative to the existing marking requirement in § 173.185(c)(1)(iii) with the option to display a “CARGO AIRCRAFT ONLY” label. This allowance to either utilize the current marking or the “CARGO AIRCRAFT ONLY” label provides shippers with the flexibility to utilize supplies of preprinted markings or packagings, while also allowing shippers to transition to the use of the “CARGO AIRCRAFT ONLY” if desired.
PHMSA received comments from UPS and COSTHA in support of the proposal. UPS also commented that the provision in this paragraph excepting lithium metal cells or batteries packed with or contained in equipment in quantities “less than 5 kg net weight” from the § 173.185(c)(1)(iii) marking requirement differs slightly in wording from the current ICAO TI and previous requirements of the HMR. In this final rule, PHMSA is revising § 173.185(c)(1)(iii) as proposed in the NPRM with an additional editorial revision to clarify that lithium metal cells or batteries packed with or contained in equipment in quantities “not exceeding” as opposed to “less than” 5 kg net weight are not subject to the marking or “CARGO AIRCRAFT ONLY” label requirement. This provides editorial consistency with the provisions of the ICAO TI.
In this final rule, PHMSA is revising the specifications for the Category B infectious substance marking in § 173.199(a)(5) to be consistent with the revised specifications for these markings in the UN Model Regulations. Also consistent with the UN Model Regulations, to allow manufacturers and printers necessary time to produce markings that conform to the revised specifications, and to allow for the depletion of supplies of existing markings, we are adopting a transitional period to authorize a Category B infectious substance marking that is in conformance with the requirements of the regulations in effect on December 31, 2014, to be used until December 31, 2016. For domestic transportation, we are authorizing a packaging marked with a Category B infectious substance marking prior to January 1, 2017 and in conformance with the requirements of the regulations in effect on December 31, 2014, to continue in service until the end of its useful life.
This section prescribes packaging requirements and other provisions for organic peroxides. In this final rule, PHMSA is revising the Organic Peroxide Portable Tank Table in paragraph (g). PHMSA is revising the entry in the second column of the table pertaining to the hazardous material “Peroxyacetic acid, distilled, stabilized, not more than 41%” to include a Note 1, that a “Corrosive” subsidiary risk placard is required.” The adoption of this requirement is consistent with the requirements in the UN Model Regulations.
Currently, the § 172.101 HMT Column (8B) packaging authorization for Ammonium nitrate emulsion, suspension, or gel, UN3375, directs the reader to § 173.214 which requires that packagings and methods of shipment must be approved by the Associate Administrator prior to the first shipment. In this final rule, PHMSA is adding a new § 173.231 titled “Ammonium nitrate emulsion, suspension, or gel” and assigning this section to UN3375 to authorize and prescribe the use of non-bulk packagings for this material. The requirements of the new section are
Currently, the § 172.101 HMT Column (8C) packaging authorization for Ammonium nitrate emulsion, suspension, or gel, UN3375, directs the reader to § 173.214 which requires that packagings and method of shipment must be approved by the Associate Administrator prior to the first shipment. In this final rule, PHMSA is adding a new § 173.251 titled “Bulk packaging for ammonium nitrate emulsion, suspension, or gel” and assigning this section to UN3375 to authorize and prescribe the use of IBC's for this material. The requirements of the new section are consistent with the requirements in the UN Model Regulations.
In this final rule, PHMSA is revising paragraph (c) relating to pressure receptacle valve requirements to include that a valve manufactured on or before December 31, 2008, conforming to the requirements in ISO 10297:1999 is authorized. This proposed revision is consistent with the requirements in the UN Model Regulations. The redesignation of several paragraphs in § 178.71 requires an amendment to paragraph (g) of § 173.301b. The current reference for marking requirements for cylinders manufactured in accordance with the requirements for underwater use direct the user to § 178.71(o)(17). This citation is incorrect prior to the publication of this rule and should have been (p)(18). With the redesignation of § 178.71(p) as paragraph (q), this reference is being changed to § 178.71(q)(18).
In this final rule, PHMSA is adopting the new UN Model Regulation requirements for the transportation of adsorbed gases in cylinders. This section specifies requirements for the filling of cylinders with non-liquefied (permanent) compressed gases. PHMSA is amending the title of this section and paragraph (a) to include and specify requirements for the transportation of adsorbed gases.
In this final rule, PHMSA is adding a new § 173.302c to adopt the new authorization in the UN Model Regulations for the transportation of adsorbed gases in UN pressure receptacles. The adoption of these requirements into this new section is consistent with the requirements in the UN Model Regulations.
Section 173.307 provides exceptions from the regulations for compressed gases. In this final rule, PHMSA is revising paragraph (a)(5) relating to manufactured articles or apparatuses to clarify that the exception for manufactured articles does not include light bulbs. The exceptions for light bulbs are contained in the new § 173.11 relating to exceptions for shipment of light bulbs containing hazardous materials. Also, we are revising paragraph (a)(6) relating to light bulbs to clarify that the exceptions do not apply to light bulbs as described in the new § 173.11 relating to exceptions for shipment of light bulbs containing hazardous materials.
Section 173.309 prescribes requirements for fire extinguishers. In this final rule, we are adding a new introductory paragraph describing fire extinguisher types authorized for transport in accordance with this section and covered by the HMT entry “UN1044, Fire extinguishers.” PHMSA received one comment from UPS providing general support for the proposed amendments as proposed.
Consistent with the UN Model regulations, in this final rule, PHMSA is revising two definitions in § 173.403 relating to the transportation of Class 7 (Radioactive Materials). “Exclusive Use” is revised to clarify that it also applies to the shipment of the load and that exclusive use only applies when compliance is required by the regulations. “Freight Container” is revised to eliminate the requirement that a “small freight container” has one outer dimension less than 1.5 m (4.9 feet).
Section 173.415 authorizes Type A packages for the transport of Class 7 (radioactive) materials. In this final rule, PHMSA is amending paragraph (d) to reflect the incorporation by reference (IBR) of the IAEA Regulations for the Safe Transport of Radioactive Material, SSR-6 2012 Edition. Please see the Section-by-Section Review under § 171.7 for a discussion of the incorporation by reference.
Section 173.416 authorizes Type B packages for the transport of Class 7 (radioactive) materials. In this final rule, PHMSA is amending paragraph (b) to reflect the incorporation by reference (IBR) of the IAEA Regulations for the Safe Transport of Radioactive Material, SSR-6 2012 Edition. Please see the Section-by-Section Review under § 171.7 for a discussion of the incorporation by reference.
Section 173.417 authorizes fissile materials packages for the transport of Class 7 (radioactive) materials. In this final rule, PHMSA is amending paragraphs (a)(1)(iii) and (b)(2) to reflect the incorporation by reference (IBR) of the IAEA Regulations for the Safe Transport of Radioactive Material, SSR-6 2012 Edition. Please see the Section-by-Section Review under § 171.7 for a discussion of the incorporation by reference.
Section 173.420 prescribes the transport conditions for uranium hexafluoride. In this final rule, PHMSA is amending this paragraph to note that fissile-excepted shipments less than 0.1 kg may be offered under UN3507. These requirements align with IAEA SSR-6 requirements, while maintaining general packaging requirements from §§ 173.24 and 173.24a.
Section 173.435 provides a table of A
Section 173.466 specifies additional tests for Type A packagings designed for liquids and gases. During the review of this section, we found that paragraphs (a)(1) and (a)(2) were inadvertently removed in a final rule published in the
Section 173.473 provides the requirements for foreign made packages for the transport of Class 7 (radioactive) materials. In this final rule, PHMSA is amending the introductory paragraph and paragraph (a)(1) to reflect the incorporation by reference (IBR) of the
Section 175.9 prescribes the applicability of the HMR to special aircraft and rotocraft operations. This section also prescribes the conditions under which certain operations may be performed in accordance with 14 CFR and 49 CFR (
Section 175.10 specifies the conditions for which passengers, crew members, or an operator may carry hazardous materials aboard an aircraft. Consistent with revisions to the ICAO TI, in this final rule, PHMSA is making several revisions to this section.
PHMSA is revising paragraph (a)(11), applicable to passenger provisions for self-inflating life jackets, to include different types of self-inflating personal safety devices in order to account for those carried by, but not limited to, motorcycle and horseback riders. In addition, PHMSA is clarifying that a passenger is limited to one self-inflating safety device, in addition to two spare cartridges, and is requiring that both the safety device and spares be packed in such a manner that they cannot be accidently activated.
PHMSA is adding a new subparagraph (a)(18)(iv) to clarify that articles containing lithium metal or lithium ion cells or batteries, with a primary function to provide power to another device, must be carried as spare batteries in accordance with the provisions of this paragraph. Examples of such articles are portable power banks, portable charging stations, portable battery chargers, portable rechargers, back-up battery power stations, battery power packs, and auxiliary power sources containing lithium batteries. During the review of this provision, we found that the preceding paragraph (a)(18)(iii) was inadvertently removed in a final rule published in the
PHMSA is revising paragraph (a)(24), applicable to small cartridges for other devices, by amending the phrase “small cylinders” to “small cartridges,” and restricting the carriage of small gas cartridges to only those without a subsidiary risk. The existing operator approval requirement was moved to make it more clearly align with the ICAO TI.
Section 175.25 prescribes the notification that operators must provide to passengers regarding restrictions on the types of hazardous material they may or may not carry aboard an aircraft on their person or in checked or carry-on baggage. Consistent with revisions to the ICAO TI, in this final rule, PHMSA is revising paragraph (b) as follows: (1) For all ticket purchases, clarify that the hazardous materials notification must be presented at the point of ticket purchase, or if this is not practical, made available to passengers in another manner prior to the check-in process and; (2) for such internet purchases, require that the final ticket purchase cannot be completed until the passenger or a person acting on the passenger's behalf has been presented with this information, in addition to the existing requirement to indicate that they understand the restrictions on hazardous materials in baggage. PHMSA is revising paragraph (c) as follows: (1) Replace the text “provided” with “presented” to make it clear that passengers must see information on the types of hazardous material forbidden to be transported before proceeding with check-in and; (2) require that the check-in process cannot be completed until the passenger or a person acting on the passenger's behalf has been presented with the hazardous materials information, in addition to the existing requirement to indicate that they understand the restrictions on hazardous materials in baggage. It was reported that some operators published the required information in areas on a Web site that were not always visible to the passenger, believing that this met the requirement of being “provided.”
In paragraphs (b) and (c) PHMSA is removing the present effective dates of January 1, 2015 and the word “phone” used as an example of a ticket purchase or check-in completed remotely. Furthermore, PHMSA is removing the words “regardless if the process is completed remotely (
In addition, the revision is consistent with a petition for rulemaking (P-1623) filed by COSTHA since it provides clarification for ticket purchases made via the telephone, permitting the hazardous materials notification to be made available in another manner to passengers prior to the check-in process.
PHMSA received comments from Jeffery Richmond, COSTHA, and the ASTA on the proposed amendments. Jeffery Richmond and ASTA both provide general support for the amendments. Mr. Richmond notes that the changes as proposed would bring § 175.25(b) into full compliance with the ICAO TI. COSTHA also provided support for the proposed amendments, but would like to note that there is a question of how the Advisory Circular (AC) will be drafted after implementation date of the final rule. COSTHA further asked if the FAA will continue to update the circular after the final rule comes into force or if this guidance information be eliminated. Lastly, COSTHA asked if PHMSA would continue to communicate with the FAA in the future on this issue.
The FAA chartered an Aviation Rulemaking Committee (ARC), which then developed recommendations for an AC on Passenger Notification of Hazardous Materials Regulations. PHMSA notes that the referenced ARC recommendations were submitted to the FAA on November 1, 2013, and a request for comments was issued by the FAA in the
Section 175.30 prescribes inspection procedures for operators. Paragraph
Paragraph (a)(5) states that no person may accept for transportation aboard an aircraft shipments of lithium batteries described with an alternative written document authorized in § 173.185(c)(4)(v) unless the aircraft operator ensures the hazardous material is described on alternative written documentation when authorized in accordance with § 173.185(c)(4)(v). The removal of the alternative written document from § 173.185(c)(4)(v) necessitates the removal of this paragraph.
PHMSA received comments from COSTHA and UPS addressing our proposed amendments to § 175.30. COSTHA supported the removal of (e)(1) noting that this requirement is not relevant and leads to confusion. COSTHA also supported the removal of (a)(5) as the allowance of an alternate document in the HMR would create significant confusion for air carrier acceptance agents. UPS supports the amendments as proposed in the interest of global consistency.
Section 175.33 establishes requirements for shipping papers and for the notification of the pilot-in-command when hazardous materials are transported by aircraft.
With the exception of package type, paragraph (a)(1)(i) currently requires any additional shipping paper description requirements provided in §§ 172.202, and 172.203 to be included on the notification of the pilot-in-command. Section 172.203(k) requires the use of technical names for “n.o.s.” and generic descriptions for proper shipping names identified by the letter “G” in column (1) of the § 172.101 Table. In this final rule, PHMSA is revising paragraph (a)(1)(i) to state that technical names are not required to be provided on the notification of pilot-in-command. This clarification aligns the HMR with changes adopted in the ICAO TI and supports the overall goal of harmonization. Harmonization of the notification of pilot-in-command requirements ensures consistency across all air operators thus reducing impediments in commerce and reducing costs associated with training to two different sets of standards. In addition, the technical name is not referenced in the Emergency Response Guidance for Aircraft Incidents Involving Dangerous Goods (Doc 9481) or the North American Emergency Response Guidebook (ERG). The ICAO panel determined that the technical names provided little benefit to safety, particularly during the initial stage of emergency response while the number of materials requiring a technical name is on the rise, thereby increasing the burden on operators to provide this information. In addition, the technical name is not referenced in the Emergency Response Guidance for Aircraft Incidents Involving Dangerous Goods (Doc 9481) or the North American Emergency Response Guidebook (ERG).
Paragraphs (a)(12) and (c)(5) both mention the alternative written document authorized in § 173.185(c)(4)(v). The removal of the alternative written document from § 173.185(c)(4)(v) necessitates the removal of these paragraphs. Any information required to be a part of the notification of the pilot-in-command previously under paragraph (a)(12) will be detailed on a shipping paper and be included on the notification of the pilot-in-command.
PHMSA received two comments concerning our proposed amendments to § 175.33. COSTHA and UPS support the removal of the technical name from the notification of pilot-in-command requirements.
Section 175.630 prescribes special requirements for Division 6.1 (Toxic) and 6.2 (Infectious) materials in the HMT. Consistent with revisions to the ICAO TI, in this final rule, PHMSA is removing paragraph (a) which prescribes segregation requirements for certain Division 6.1 or Division 6.2 materials in the same compartment of an aircraft with material marked as or known to be a foodstuff, feed, or any other edible material intended for consumption by humans or animals. At the time these segregation requirements were initially included in the ICAO TI and the HMR, the packing instructions were much less detailed than they are at present. The UN Model Regulations do not impose segregation requirements for Division 6.2 infectious substances. The segregation requirements for infectious substances under the ICAO TI and HMR only apply to UN2814 and UN2900 which already require robust triple packagings. For Division 6.1, the UN Recommendations allow the segregation requirements to be relaxed for substances in Packing Groups II and III, provided the competent authority is satisfied that the packing and segregation are adequate to prevent contamination. In addition, the inspection procedures prescribed in § 175.30 require a physical check to ensure that the packagings are free from damage. The revisions adopted in this final rule are consistent with a petition for rulemaking (P-1631) filed by UPS, Inc., who voiced strong support for such action.
PHMSA received comments from COSTHA, DGAC, and UPS concerning our proposed removal of the segregation requirement. Both COSTHA and UPS support this proposal. DGAC commented that authorizing materials identified as Division 6.1 or 6.2 to be loaded in the same compartment as materials known to be food or foodstuffs may have a disruptive and underappreciated effect on companies that must operate under Food Safety Management Systems. The possibility of mixed loads of food products and Class 6 materials will require a re-evaluation of Hazard Analysis and Critical Control Point (HACCP) plans for companies shipping food in the air mode. PHMSA has reviewed the removal of the segregation requirement with regard to the effect on HACCP plans and has determined that the removal of § 175.630(a) is suitable for incorporation as proposed. To ensure consumers do not get sick, an HACCP plan requires companies shipping food to identify critical control points and establish safety protocols. These critical control points include transportation and transportation related activities such as temperature control during transit, storage, loading, unloading and physical security. Our review has determined that HACCP plan requirements are not specific to any particular hazardous material class when properly packaged in accordance with the HMR or corresponding international standard.
Section 175.705 prescribes requirements for aircraft that have been contaminated with radioactive material and the procedures that must be
Section 176.80 details segregation requirements in addition to any segregation requirements set forth elsewhere in subchapter C. In this final rule, PHMSA is adopting a prohibition on stowing goods of Division 1.4, compatibility group S, in the same compartment, hold, or cargo transport unit with hazardous materials of Class 1 of compatibility groups A and L. Limited quantity shipments are currently excepted from segregation requirements for vessel transport by both the IMDG Code and the HMR. The IMO noted that when creating this exception, a long standing prohibition on stowing limited quantity goods of Division 1.4, compatibility group S, in the same compartment, hold, or cargo transport unit with hazardous materials of Class 1, compatibility groups A and L, was not carried over into amendment 36-12 of the IMDG Code. Amendment 37-14 of the IMDG Code reinstates these segregation provisions, and PHMSA is adopting an equivalent change.
Section 176.83 details segregation requirements for hazardous materials vessel transport. Paragraph (b) includes a table for users to determine segregation requirements between various Classes (Divisions) of hazardous materials. In this final rule, PHMSA is amending the segregation requirements for vessel transportation between hazardous materials of Class 4.3 (dangerous when wet) and Class 2.1 (flammable gas), and Class 3 (flammable liquid). Changes in the segregation table in paragraph (b) are to change the segregation requirements between goods of Class 4.3 and Class 2.1 from an “x” (segregation, if any, is shown in the § 172.101 table) to a “2” (separated from), and between goods of Class 4.3 and Class 3 from a “1” (away from) to a “2” (separated from). The meaning of these terms differs depending on the method of transport onboard a vessel (shipping break-bulk cargo versus segregation of cargo transport units on board container vessels). PHMSA assumes the majority of commodities transported by vessel that will be affected are offered in closed cargo transport units (CTU).
The segregation changes adopted in this final rule are based on amendments adopted by the IMO and are aimed at enhancing efforts to prevent the spread of fire in an emergency situation. Fire extinguishing methods available to vessel crews are often quite limited. Due to these limited fire extinguishing options, the only recommended option to control the consequences of a fire originating from these goods is to let the fire burn and to prevent the spread of fire to other cargo or equipment which is crucial for the safe operation of the ship. These changes are intended to address situations where a fire originates in a shipment of flammable liquids or gases and is likely to spread to goods which cannot be extinguished, or when a fire originates in goods which cannot be extinguished and threatens to spread to highly flammable goods. The new segregation distances will enhance efforts to control the emergency situation.
PHMSA received one comment from IVODGA fully supporting the amendments as proposed.
Section 176.84 prescribes the meanings and requirements for numbered or alpha-numeric stowage provisions for vessel shipments listed in column 10B of the § 172.101 Hazardous Materials Table. The provisions in § 176.84 are broken down into general stowage provisions whose meanings are defined in the “table of provisions” in paragraph (b), and the stowage provisions applicable to vessel shipments of Class 1 explosives, which are defined in the table to paragraph (c)(2).
In this final rule, PHMSA is amending the title of the section to note that the codes in column 10B address not only codes for stowage requirements, but also handling requirements that need to be observed during loading of the hazardous materials. PHMSA is also creating footnote 3 and assigning it to stowage provision 12 and 13. Footnote 3 is added to note that these provisions apply not only to stowage of the cargo transport unit, but also to the loading of hazardous materials into the cargo transport unit.
PHMSA is additionally creating new stowage provisions 147 and 148 consistent with changes adopted in Amendment 37-14 of the IMDG Code. Stowage provision 147 is adopted to read “Stow “separated from” flammable gases and flammable liquids.” Stowage provision 148 is adopted to read “In addition: from flammable gases and flammable liquids when stowed on deck of a containership a minimum distance of two container spaces athwartship shall be maintained, when stowed on ro-ro ships a distance of 6 m athwartship shall be maintained.”
Section 176.905 prescribes specific requirements for motor vehicles or mechanical equipment powered by internal combustion engines that are offered for transportation and transported by vessel. In this final rule, PHMSA is proposing to align our exceptions with those recently adopted by the IMO.
PHMSA is amending paragraphs (i)(1), (i)(2), (i)(4), and (i)(5) to require as a condition of exception from the subchapter that batteries installed in motor vehicles or mechanical equipment powered by internal combustion engines be protected from short circuit. PHMSA is also revising paragraph (i)(2), which provides conditions that must be met for vehicles or mechanical equipment with an internal combustion engine that uses liquid fuel with a flashpoint of 38 °C (100 °F) or higher. Currently up to 418 L (110 gallons) may remain in the equipment or vehicle, and if other noted conditions are met the vehicle is excepted from all other requirements of subchapter C. PHMSA is raising this fuel threshold to 450 L (119 gallons).
PHMSA is adding paragraph (i)(6) to add exceptions for fuel cell powered vehicles or mechanical equipment with an internal combustion engine powered by fuel cells. When the engine is protected from inadvertent operation by closing fuel supply lines or by other means, and the fuel supply reservoir has been drained and sealed, the vehicle or mechanical equipment is excepted from the requirements of subchapter C.
PHMSA received one comment from IVODGA fully supporting the proposed changes to § 176.905 and relevant exceptions as well as the proposed clarifications as presented. IVODGA noted that “by requiring the batteries to be protected from short circuiting, and to increase the amount of fuel to the maximum of 119 liters would effectively create a uniform standard and eliminate frustrated shipments where prior differences created different requirements.”
Consistent with the UN Model Regulations, in this final rule PHMSA is revising paragraph (a) to clarify that UN pressure receptacles and service equipment constructed according to the standards applicable at the date of
PHMSA is revising paragraphs (d)(2), (g), and (k) to reflect the adoption of the latest ISO standards for the design, construction, and testing of gas cylinders and their associated service equipment. These paragraphs also contain end dates when cylinders and service equipment are no longer authorized to be manufactured in accordance with the outdated ISO standard. PHMSA received one comment from Sally Mitchell questioning the accuracy of the statement in § 178.71(d)(2), “Until December 31, 2008, the manufacture of a valve conforming to the requirements in ISO 10297:1999 (IBR, see § 171.7 of this subchapter) is authorized.” This statement is accurate and consistent with the language contained in the UN Model Regulations to authorize valves that were manufactured prior to January 1, 2009 and conform with the requirements of ISO 10297:1999. Sally Mitchell also suggested revising § 178.71(g)(1), (g)(2) and (g)(3) to permit the continued manufacture of a cylinder conforming to the requirements of the applicable the 1999 publication of ISO 9809-1 and the 2000 publication of ISO 9809-2 and 9809-3 until the later of December 31, 2018 or 10 years from the initial DOT design approval to allow manufacturers to recover their type approval expenses over the 10 year life of the approval instead of just 4 years. PHMSA does not believe this change is necessary, as a design approval is independent of the regulations and is authorized for the valid life of the approval regardless of the limitations imposed by the regulations.
Consistent with the UN Model Regulations PHMSA is adding a new paragraph (n) and redesignating existing paragraphs (n) through (s). The new paragraph (n) adopts design and construction requirements of UN cylinders for the transportation of adsorbed gases, consistent with those adopted into the UN Model Regulations.
Consistent with the UN Model Regulations, PHMSA is revising the redesignated paragraph (o) to adopt the current ISO standards relating to material compatibility.
Paragraphs (r) and (t) are being revised to change references to paragraph (p) to the newly redesignated paragraph (q).
Finally, PHMSA is adding new paragraphs (u) and (v) to adopt the marking requirements for bundles of cylinders that have been adopted in the UN Model regulations.
Consistent with the UN Model Regulations, PHMSA is revising paragraph (d)(3) to reflect the adoption of the latest ISO standards for the design, construction, and testing of gas cylinders that are part of multiple-element gas containers (MEGCs). This paragraph also contains end dates when the cylinders that are part of MEGCs are no longer authorized to be manufactured in accordance with the outdated ISO standard.
The UN Model Regulations have adopted revisions to clarify and standardize the specifications for markings, including the marking of IBCs, and to promote the uniformity of markings throughout the international transportation community. In this final rule, PHMSA is revising the specifications for the markings prescribed in § 178.703(b)(7)(iii) to be consistent with the UN Model Regulations. Also consistent with the UN Model Regulations, a transitional period is being proposed to authorize markings in conformance with the requirements of this paragraph in effect on December 31, 2014, to continue to be applied to all IBCs manufactured, repaired or remanufactured between January 1, 2011 and December 31, 2016. For domestic transportation, we are authorizing an IBC marked prior to January 1, 2017 and in conformance with the requirements of the regulations in effect on December 31, 2014, to continue in service until the end of its useful life.
PHMSA received one comment from RIPA providing general support for the amended IBC stacking or not designed for stacking marking specifications. RIPA did however recommend PHMSA extend the requirement to mark IBCs with the stacking or not designed for stacking mark to include IBC's undergoing routine maintenance. Currently the HMR requires this marking to be applied to all IBCs manufactured, repaired, or remanufactured prior to January 1, 2011. The amendments proposed in the NPRM were consistent with those adopted by international standards. Expanding the marking requirement to IBCs undergoing routine maintenance was not the intent of this regulatory amendment and would be inconsistent with the requirements of the international standards.
In this final rule, PHMSA is revising paragraph (a) relating to the marking of large packagings to include markings for large salvage packagings. Following the large packaging design type identification code on a large packaging, a large salvage packaging conforming to the requirements of subpart P of part 178 is to be marked with the letter “T.” This change is consistent with the UN Model Regulations.
In addition, to promote the uniformity of markings throughout the international transportation community, the UN Model Regulations have adopted revisions to clarify and standardize the specifications for markings, including the marking of large packagings and large salvage packaging. In this final rule, PHMSA is revising the specifications for the markings prescribed in § 178.910(b). Also consistent with the UN Model Regulations, we are adopting a transitional period to authorize markings in conformance with the requirements of this paragraph in effect on December 31, 2014, to continue to be applied to all large packagings manufactured, repaired or remanufactured between January 1, 2015 and December 31, 2016. For domestic transportation, we are authorizing a large packaging marked prior to January 1, 2017 and in conformance with the requirements of the regulations in effect on December 31, 2014, to continue in service until the end of its useful life.
Section 180.207 prescribes the requirements for requalification of UN pressure receptacles. Table 1 in paragraph (c) of § 180.207 provides requalification intervals for UN pressure receptacles. In this final rule, PHMSA is adding an additional entry to the end of Table 1 to prescribe a requalification interval of 5 years for UN culinders used for adsorbed gases. This requalification period is consistent with the requalification period adopted in the UN Model Regulations for the use of these cylinders. Section 173.302c relating to authorization for the use of cylinders for adsorbed gases directs the reader to this section for the requalification period for these cylinders.
A new paragraph (d)(5) provides that each UN cylinder used for adsorbed gases must be inspected and tested in accordance with § 173.302c and ISO 11513:2011. Both § 173.302c and ISO 11513:2011 have been addressed in this final rule.
This final rule is published under the following statutory authorities:
1. 49 U.S.C. 5103(b) authorizes the Secretary of Transportation to prescribe regulations for the safe transportation, including security, of hazardous materials in intrastate, interstate, and foreign commerce. This final rule amends regulations to maintain alignment with international standards by incorporating various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations and vessel stowage requirements. To this end, the final rule amends the HMR to more fully align with the biennial updates of the UN Model Regulations, the IMDG Code and the ICAO TI.
Harmonization serves to facilitate international commerce and promotes the safety of people, property, and the environment by reducing the potential for confusion and misunderstanding that could result if shippers and transporters were required to comply with two or more conflicting sets of regulatory requirements. While the intent of this rulemaking is to align the HMR with international standards, we review and consider each amendment on its own merit based on its overall impact on transportation safety and the economic implications associated with its adoption into the HMR. Our goal is to harmonize without sacrificing the current HMR level of safety and without imposing undue burdens on the regulated community. Thus, as explained in the corresponding sections above, we are not harmonizing with certain specific provisions of the UN Model Regulations, the IMDG Code, and the ICAO TI. Moreover, we are maintaining a number of current exceptions for domestic transportation that should minimize the compliance burden on the regulated community. Additionally, the U.S. Coast Guard, U.S. Department of Energy, and U.S. Department of Interior were consulted in the development of this rule.
2. 49 U.S.C. 5120(b) authorizes the Secretary of Transportation to ensure that, to the extent practicable, regulations governing the transportation of hazardous materials in commerce are consistent with standards adopted by international authorities. This final rule is amending the HMR to maintain alignment with international standards by incorporating various amendments to facilitate the transport of hazardous material in international commerce. As discussed in detail above, PHMSA is incorporating changes into the HMR based on the 18th Revised Edition of the UN Model Regulations, Amendment 37-14 to the IMDG Code, and the 2015-2016 Edition of the ICAO TI, which becomes effective January 1, 2015. The large volume of hazardous materials transported in international commerce warrants the harmonization of domestic and international requirements to the greatest extent possible.
This final rule is not considered a significant regulatory action under section 3(f) of Executive Order 12866 (“Regulatory Planning and Review”) and, therefore, was not reviewed by the Office of Management and Budget. This final rule is not considered a significant rule under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034). Additionally, E.O. 13563 (“Improving Regulation and Regulatory Review”) supplements and reaffirms E.O. 12866, 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.
In an earlier regulatory evaluation,
For estimating benefits of this final rule, we follow a nearly identical approach with updated data and using assumptions where possible. 2012 Commodity Flow Survey data on hazardous materials are not yet available as of the date of this regulatory evaluation.
The 12.4 percent proportion of total shipment values classed as hazardous materials estimated in the earlier regulatory evaluation may have had a high-side bias due to the variety of different classes of products classified as hazardous. In actuality, the percentage of shipments properly classified as hazardous is likely lower, particularly for medicinal/dental/pharmaceuticals. Here, we assume a slightly lower proportion to arrive at an estimate of benefits of 10 percent.
We update our estimate of value of hazardous materials involved in international trade by using U.S. Trade in Goods seasonally adjusted, Census-based total gross imports and gross exports in the fuels and lubricants, chemicals, and medicinal/dental/pharmaceutical products industries for the fourth quarter of 2013, the most recent quarter available—
• Gross imports: $134 billion (rounded)
○ Fuels and lubricants: $94.744 billion
○ Chemicals: $18.637 billion
○ Medicinal/dental/pharmaceutical products: $20.613 billion
• Gross exports: $85.8 billion (rounded)
○ Fuels and lubricants: $44.301 billion
○ Chemicals: $30.089 billion
○ Medicinal/dental/pharmaceutical products: $11.416 billion
• Gross imports plus gross exports: $219.8 billion
Multiplying the quarterly estimate of $219.8 billion by 4 gives an annual estimate of gross imports plus gross exports in the three industries of $879.2 billion. Multiplying this figure by 10 percent (the estimated proportion of annual trade in these three industries that are hazardous products) by the average hazard communication cost per dollar of hazardous materials produced in the United States ($0.001) results in an estimate of benefits from adoption and incorporation of international standards of $87.9 million (rounded) annually.
If U.S. regulations are not harmonized with international standards, we estimate that it will cost U.S. companies an additional $87.9 million per year to comply with both the HMR and the
It is unknown how many individuals and firms involved in shipping hazmat will purchase copies of these international standards as a result of finalizing this rulemaking. We take a conservative approach to estimating such a figure by using the number of shippers, carriers, or other offerors or transporters of hazmat in commerce with a PHMSA registration expiring in 2014 as a proxy. Currently, PHMSA's registration database indicates 36,731 registrants as of May 20, 2014.
For conservative estimation purposes, if we that all registrants will purchase copies of all publications, this indicates an estimated cost of this amendment of $56.68 million (rounded, $1,543 cost of all publications * 36,731 registrants). In reality, all of the ISO standards incorporated will not be purchased by the majority of shippers and carriers, and will likely only impact a small subset of the regulated community. Further, it is likely that many companies will purchase multiple copies of the IMDG Code and ICAO TI, rather than only one copy. We do not believe we have sufficient data to estimate the precise number of registrants. However, we use one copy per registrant as a reasonably conservative estimate on costs of the proposed rulemaking.
However, further assuming that those who indicated that they offer or transport in commerce hazmat only via highway, two publications included in the $1,543 cost will not apply to such registrants (ICAO TI [for air] and IMDG Code [by vessel]). Therefore, costs for the 31,598 highway-only registrants would total $32.99 million ($1,543—$155 [ICAO TI]—$344 [IMDG Code] * 31,598 highway-only registrants). Conservatively (
This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This final rule preempts 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 government. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.
The Federal hazardous material transportation law, 49 U.S.C. 5101-5128, contains an express preemption provision (49 U.S.C. 5125(b)) that preempts State, local and Indian tribe requirements on certain covered subjects, as follows:
(1) The designation, description, and classification of hazardous material;
(2) The packing, repacking, handling, labeling, marking, and placarding of hazardous material;
(3) The preparation, execution, and use of shipping documents related to hazardous material 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 material; and
(5) The design, manufacture, fabrication, inspection, marking, maintenance, recondition, repair, or testing of a packaging or container represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce.
This final rule addresses covered subject items (1), (2), (3), (4) and (5) above and preempts State, local, and Indian tribe requirements not meeting the “substantively the same” standard. This final rule is necessary to incorporate changes adopted in international standards, effective January 1, 2015. If the changes in this final rule are not adopted in the HMR, U.S. companies, including numerous small entities competing in foreign markets, would be at an economic disadvantage. These companies would be forced to comply with a dual system of regulations. The changes in this final rulemaking are intended to avoid this result. Federal hazardous materials transportation law provides at 49 U.S.C. 5125(b)(2) that, if DOT issues a regulation concerning any of the covered subjects, DOT must determine and publish in the
This final rule was analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this final rule does not have tribal implications, does not impose substantial direct compliance costs, and is required by statute, the funding and consultation requirements of Executive Order 13175 do not apply.
The Regulatory Flexibility Act (5 U.S.C. 601
Many companies will realize economic benefits as a result of these amendments. Additionally, this final rule will relieve U.S. companies, including small entities competing in foreign markets, from the burden of complying with a dual system of regulations. Therefore, we certify that these amendments will not have a significant economic impact on a substantial number of small entities.
This final 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.
PHMSA currently has approved information collection under Office of Management and Budget (OMB) Control Number 2137-0034, “Hazardous Materials Shipping Papers and Emergency Response Information.” We anticipate that this final rule will result in an increase in the annual information collection burden due to an increase in the number of shipping papers prepared for packages containing batteries that exceeds the number or quantity (mass) limits in the table shown in § 173.185(c)(4), but containing no more than 2.5 kg of lithium metal cells or batteries or 10 kg of lithium ion cells or batteries per package. Shipments utilizing this allowance currently provide alternative documentation containing the name and address of the offeror and consignee, the UN number, an indication of compliance with this paragraph (c)(4) (or the applicable ICAO Packing Instruction), and the number of packages and the gross mass of each package.
This rulemaking identifies a revised information collection that PHMSA will submit to OMB for approval based on the requirements in this final rule. PHMSA has developed burden estimates to reflect changes in this final rule, and estimates the information collection and recordkeeping burden in this rule are as follows:
PHMSA will submit the revised information collection and recordkeeping requirements to OMB for approval.
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 can be used to cross-reference this action with the Unified Agenda.
This final 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, adjusted for inflation, to either State, local, or tribal governments, in the aggregate, or to the private sector in any one year, 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 analyze actions to determine whether the action will have a significant impact on 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).
This action is necessary to integrate into the HMR recent changes to the International Maritime Dangerous Goods Code (IMDG Code), the International Civil Aviation Organization's Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO TI), and the United Nations Recommendations on the Transport of Dangerous Goods—Model Regulations (UN Model Regulations) effective January 1, 2015. If the changes in this final rule are not adopted in the HMR by this effective date, U.S. companies, including numerous small entities competing in foreign markets, would be at an economic disadvantage. These companies would be forced to comply with a dual system of transport regulations that could result in shippers and carriers segmenting domestic and international operations to accommodate differing requirements. The changes to the HMR contained in this rulemaking are intended to avoid this result.
The intended effect of this action is to align the HMR with international hazardous material transport standards and requirements to the extent practicable in accordance with Federal Hazardous Materials transportation law (49 U.S.C. 5210). When considering the adoption of international hazardous material standards under the HMR, PHMSA reviews and evaluates each amendment on its own merit, on the basis of its overall impact on transportation safety, and the economic implications associated with its adoption into the HMR. Our goal is to harmonize without diminishing the level of safety currently provided by the HMR and without imposing undue burdens on the regulated public.
In this final rule, PHMSA is amending the HMR to maintain alignment with international standards by incorporating various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements. These revisions are necessary to harmonize and align the HMR with recent amendments adopted in the UN Model Regulations, IMDG Code, and the ICAO TI. The amendments in this final rule are intended to facilitate the safe and efficient transportation of hazardous materials in international commerce, provide clarity to encourage and increase regulatory compliance, and improve the efficacy of emergency
In developing this rule, we considered the following alternatives:
If PHMSA chose this alternative, it would not proceed with any rulemaking on this subject and the current regulatory standards would remain in effect.
This alternative is the current rule as it appears in this final rule, applying to the transportation of hazardous materials by various transport modes (highway, rail, vessel and aircraft). The amendments included in this alternative are more fully addressed in the preamble and regulatory text sections of this final rule. However, they generally include:
(1) Updates to references to various international hazardous materials transport standards;
(2) Amendments to the hazardous materials table to add, revise, or remove certain proper shipping names, packing groups, special provisions, packaging authorizations, bulk packaging requirements and vessel stowage requirements;
(3) Amendments to add and delete various substances to the list of marine pollutants in Appendix B to § 172.101;
(4) Changes throughout the Part 173 packaging requirements to authorize more flexibility when choosing packages for hazardous materials;
(5) An exception from the HMR for marine pollutants up to 5 liters (1.3 gallons) for liquids or 5 kg (11 pounds) for solids when these materials are packaged in accordance with the general packaging requirements of §§ 173.24 and 173.24a;
(6) Minimum sizes for the OVERPACK and SALVAGE markings; and;
(7) Revisions and additions to vessel stowage codes listed in column 10B of the HMT and segregation requirements in § 176.83 consistent with the IMDG Code.
If PHMSA had selected the No Action Alternative, current regulations would remain in place, and no new provisions would be added. However, efficiencies gained through harmonization in updates to transport standards, lists of regulated substances, definitions, packagings, stowage requirements/codes, flexibilities allowed, enhanced markings, and segregation requirements would not be realized. Foregone efficiencies in the No Action Alternative include freeing up limited resources to concentrate on vessel transport hazard communication (hazcom) issues of potentially much greater environmental impact.
Additionally, the Preferred Alternative encompasses enhanced and clarified regulatory requirements, which would result in increased compliance and fewer environmental and safety incidents. Not adopting the proposed environmental and safety requirements in the final rule under the No Action Alternative would result in a lost opportunity for reducing environmental and safety-related incidents.
Greenhouse gas emissions would remain the same under the No Action Alternative.
PHMSA selected the preferred alternative. Potential environmental impacts of each proposed amendment in the preferred alternative are discussed below:
1.
The HMR authorize shipments prepared in accordance with the ICAO TI and transported by motor vehicle either before or after being transported by aircraft. Similarly, the HMR authorize shipments prepared in accordance with the IMDG Code if all or part of the transportation is by vessel. The authorizations to use the ICAO TI and the IMDG code are subject to certain conditions and limitations outlined in part 171 subpart C. PHMSA believes that this adopted amendment, which will increase standardization and consistency of regulations, will result in greater protection of human health and the environment. Consistency between U.S. and international regulations enhances the safety and environmental protection of international hazardous materials transportation through better understanding of the regulations, an increased level of industry compliance, the smooth flow of hazardous materials from their points of origin to their points of destination, and consistent emergency response in the event of a hazardous materials incident.
Enhanced environmental protection will also be achieved through more targeted and effective training. This adopted amendment will eliminate inconsistent hazardous materials regulations, which hamper compliance training efforts. For ease of compliance with appropriate regulations, air and vessel carriers engaged in the transportation of hazardous materials generally elect to comply with the ICAO TI and IMDG Code as appropriate. By maintaining consistency between these international regulations and the HMR, shippers and carriers are able to train their hazmat employees in a single set of requirements for classification, packaging, hazard communication, handling, stowage, etc., thereby minimizing the possibility of improperly preparing and transporting a shipment of hazardous materials because of differences between domestic and international regulations.
Greenhouse gas emissions would remain the same under this amendment.
2.
PHMSA believes that this amendment, which will increase standardization and consistency of regulations, will result in greater protection of human health and the environment. Consistency between U.S. and international regulations enhances the safety and environmental protection of international hazardous materials transportation through better understanding of the regulations, an increased level of industry compliance, the smooth flow of hazardous materials from their points of origin to their points of destination, and consistent emergency response in the event of a hazardous materials incident. New and revised entries to the HMT reflect emerging technologies, and a need to better describe or differentiate between existing entries. These changes mirror changes in the Dangerous Goods list of The 18th Revised Edition of the UN Model Regulations, the 2015-2016 Edition of the ICAO TI and the 37-14 amendments to the IMDG Code. It is extremely important for the domestic HMR to mirror the UN Model Regulations, the ICAO TI, and the IMDG Code with respect to the entries in the
Enhanced environmental protection will also be achieved through more targeted and effective training. This amendment will eliminate inconsistent hazardous materials regulations, which hamper compliance training efforts. For ease of compliance with appropriate regulations, international carriers engaged in the transportation of hazardous materials by vessel generally elect to comply with the IMDG Code. By maintaining consistency between these international regulations and the HMR, shippers and carriers are able to train their hazmat employees in a single set of requirements for classification, packaging, hazard communication, handling, stowage, etc., thereby minimizing the possibility of improperly preparing and transporting a shipment of hazardous materials because of differences between domestic and international regulations.
The packing group assignment reflects a degree of danger associated with a particular material and identifies appropriate packaging. However, assignment of a packing group is not appropriate in all cases (
For adsorbed gases, PHMSA is adding into the HMR a definition, HMT entries, authorized packagings and safety requirements including but not limited to quantity limitations and filling limits. PHMSA believes that this amendment will result in greater protection of human health and the environment by facilitating the safe and efficient transport of gases adsorbed onto a porous media within cylinders. This technology allows the cylinder to be filled and transported with gas at sub-atmospheric pressure. Sub-atmospheric transport of gas minimizes potential leaks of gas during transportation, thus providing significant safety and environmental improvements over traditional high-pressure cylinders. This method of transporting gas is a proven safe method authorized through a PHMSA special permit for over ten years and recently adopted into the UN Model Regulations, the ICAO TI and the IMDG Code.
Greenhouse gas emissions would remain the same under this amendment.
3.
As for the above amendments, PHMSA believes that this amendment, which will increase standardization and consistency of regulations, will result in greater protection of human health and the environment. Consistency between U.S. and international regulations enhances the safety and environmental protection of international hazardous materials transportation through better understanding of the regulations, an increased level of industry compliance, the smooth flow of hazardous materials from their points of origin to their points of destination, and consistent emergency response in the event of a hazardous materials incident. The additions and deletions are based on the criteria contained in the IMDG code for substances classified as toxic to the aquatic environment. The HMR maintain a list as the basis for regulating substances toxic to the aquatic environment and allow use of the criteria in the IMDG Code if a listed material does not meet the criteria for a marine pollutant. PHMSA periodically updates its list based on changes to the IMDG code and evaluation of listed materials against the IMDG code criteria. Amending the marine pollutant list facilitates consistent communication of the presence of marine pollutants and safe and efficient transportation without imposing significant burden associated with characterizing mixtures as marine pollutants.
Also similar to the above amendments, enhanced environmental protection will also be achieved through more targeted and effective training. This amendment will eliminate inconsistent hazardous materials regulations, which hamper compliance training efforts. For ease of compliance with appropriate regulations, international carriers engaged in the transportation of hazardous materials by vessel generally elect to comply with the IMDG Code. By maintaining consistency between these international regulations and the HMR, shippers and carriers are able to train their hazmat employees in a single set of requirements for classification, packaging, hazard communication, handling, stowage, etc., thereby minimizing the possibility of improperly preparing and transporting a shipment of hazardous materials because of differences between domestic and international regulations.
Greenhouse gas emissions would remain the same under this amendment.
4.
These changes adopt manufacturing and performance standards for small gas pressure receptacles without a relief device, clarify the use of the HMT entry “fire extinguisher”, authorize the use of large salvage packagings and provide a list of authorized packagings for ammonium nitrate emulsions. As for the above amendments, PHMSA believes that these amendments, which increase standardization and consistency of regulations, will result in greater protection of human health and the environment. Consistency between US and international regulations enhances the safety and environmental protection of international hazardous materials transportation through better understanding of the regulations, an increased level of industry compliance, the smooth flow of hazardous materials from their points of origin to their points of destination, and consistent emergency response in the event of a hazardous materials incident. PHMSA is adopting changes throughout the Part 173 packaging requirements to authorize more flexibility when choosing packages for hazardous materials. This action is consistent with amendments adopted into the UN Model Regulations.
These amendments permit additional flexibility for authorized packages without compromising environmental protection or safety. Manufacturing and performance standards for small gas pressure receptacles ensure a safe packaging that is capable of retaining its contents without being overly prescriptive. The clarification for fire extinguishers increases the transparency of the regulations, which will in turn result in increased compliance, reduced incidents of undeclared or misdeclared hazardous material and enhanced environmental protection and safety. Increased flexibility also adds to environmental protection by increasing the ease of regulatory compliance.
Also similar to the above amendments, enhanced environmental
Greenhouse gas emissions would remain the same under this amendment.
5.
PHMSA believes that this amendment provides for a slight net increase in environmental protection and safety by reducing confusion and simplifying multi-modal hazardous material transportation requirements. Currently, packages containing less than 5 liters (1.3 gallons) for liquids or 5 kg (11 lbs.) of material containing marine pollutants are subject to additional requirements such as shipping papers, Class 9 labeling and UN packaging when offered for transport by air or vessel in accordance with the ICAO TI or the IMDG Code. However, these same materials would not be subject to the HMR when transported by motor vehicle, rail car or aircraft in the US. The presence of these labels in one mode of transport can cause confusion in the US supply chain.
This amendment exempts from the HMR small packages of hazardous material that are regulated because of the presence of one or more marine pollutants. Materials in these quantities pose a low risk in transportation. In addition, these low quantities of materials present even lower risks in transportation because they often contain low concentrations of marine pollutant constituents. Lastly, risks of incidents are very low. In the past 10 years, in tens of thousands of vessel shipments, PHMSA's data contains only one record of marine pollutant released on a vessel that caused environmental damage. In this incident, the material was packaged in a 55-gallon drum and would not be impacted by this amendment, since the package would still be required to display the marine pollutant mark and the shipping documents would still have to communicate the presence of a marine pollutant. By reducing the hazard communication (hazcom) burdens for lower risk commodities, industry, shippers, and transporters can focus hazcom resources on areas with potentially greater environmental and safety consequences.
This action is consistent with recent revisions to the IMDG Code. PHMSA believes that this amendment will increase standardization and consistency of regulations, may also result in greater protection of human health and the environment. Consistency between US and international regulations enhances the safety and environmental protection of international hazardous materials transportation through better understanding of the regulations, an increased level of industry compliance, the smooth flow of hazardous materials from their points of origin to their points of destination, and consistent emergency response in the event of a hazardous materials incident. Excepting these quantities of marine pollutants from the HMR will facilitate consistent communication of the presence of marine pollutants and facilitate safe and efficient transportation without imposing significant burden associated with characterizing mixtures as marine pollutants.
Also similar to the above amendments, enhanced environmental protection will also be achieved through more targeted and effective training. This amendment will eliminate inconsistent hazardous materials regulations, which hamper compliance training efforts. For ease of compliance with appropriate regulations, international carriers engaged in the transportation of hazardous materials by vessel generally elect to comply with the IMDG Code. By maintaining consistency between these international regulations and the HMR, shippers and carriers are able to train their hazmat employees in a single set of requirements for classification, packaging, hazard communication, handling, stowage, etc., thereby minimizing the possibility of improperly preparing and transporting a shipment of hazardous materials because of differences between domestic and international regulations.
Greenhouse gas emissions would remain the same under this amendment.
6.
PHMSA believes that this amendment, which will provide for enhanced hazard communication, will result in greater protection of human health and the environment. An overpack is an enclosure to provide protection or convenience of handling for one or more packages such as pallets and crates. A salvage package is used to contain a damaged, leaking or non-conforming package. The HMR require these packages to be marked OVERPACK or SALVAGE, as appropriate. This communicates the nature of these specialized packaging configurations to package handlers and emergency responders. However, because there is currently no minimum size requirement for these marks, this information is not always readily visible. This amendment would ensure that these hazard markings are visible, thus resulting in decreased incidents with impacts to the environment and safety.
Greenhouse gas emissions would remain the same under this amendment.
7.
As discussed for previous amendments herein, PHMSA believes that this amendment, which will increase standardization and consistency of regulations, will result in greater protection of human health and the environment. Consistency between US and international regulations enhances the safety and environmental protection of international hazardous materials transportation through better understanding of the regulations, an increased level of industry compliance, the smooth flow of hazardous materials from their points of origin to their points of destination, and consistent emergency response in the event of a hazardous materials incident. New and revised entries to the HMT reflect emerging technologies, and a need to better describe or differentiate between existing entries. These proposed changes mirror the IMDG Code. It is extremely important for the domestic HMR and HMT to mirror the IMDG
Enhanced environmental protection will also be achieved through more targeted and effective training. This amendment will eliminate inconsistent hazardous materials regulations, which hamper compliance training efforts. For ease of compliance with appropriate regulations, international carriers engaged in the transportation of hazardous materials by vessel generally elect to comply with the IMDG Code. By maintaining consistency between these international regulations and the HMR, shippers and carriers are able to train their hazmat employees in a single set of requirements for classification, packaging, hazard communication, handling, stowage, etc., thereby minimizing the possibility of improperly preparing and transporting a shipment of hazardous materials because of differences between domestic and international regulations.
PHMSA also believes that this group of amendments will increase environmental protection and safety through its increased segregation distance requirements and enhanced guidance, which will better prevent materials from contacting each other and/or water in transportation. Increased segregation distances prevent the mixing of incompatible material and the subsequent evolution of flammable or toxic gases, along with attendant fires and explosions. Together, stowage and segregation help manage the risks associated with the transport of hazardous materials by water. While the risk associated with the transport of these materials is relatively low, these measures would further reduce that risk and prevent the spread of a fire between flammable materials and materials that react dangerously with water.
Greenhouse gas emissions would remain the same under this amendment.
This final rule represents PHMSA's first action in the US for this program area. PHMSA has coordinated with the US Federal Aviation Administration and the US Coast Guard, in the development of this final rule. PHMSA has considered the views expressed in comments to the NPRM submitted by members of the public, state and local governments, and industry.
The provisions of this final rule build on current regulatory requirements to enhance the transportation safety and security of shipments of hazardous materials transported by highway, rail, aircraft and vessel, thereby reducing the risks of an accidental or intentional release of hazardous materials and consequent environmental damage. PHMSA believes the net environmental impact will be positive. PHMSA believes that there are no significant environmental impacts associated with this final rule.
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to
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 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. In fact, the rule is designed to facilitate international trade. Accordingly, this rulemaking is consistent with E.O. 13609 and PHMSA's obligations under the Trade Agreement Act, as amended.
Exports, Hazardous materials transportation, Hazardous waste, Imports, Incorporation by reference, Reporting and recordkeeping requirements.
Education, Hazardous materials transportation, Hazardous waste, Incorporation by reference, Labeling, Markings, Packaging and containers, Reporting and recordkeeping requirements.
Hazardous materials transportation, Incorporation by reference, Packaging and containers, Radioactive materials, Reporting and recordkeeping requirements, Uranium.
Air carriers, Hazardous materials transportation, Incorporation by reference, Radioactive materials, Reporting and recordkeeping requirements.
Maritime carriers, Hazardous materials transportation, Incorporation by reference, Radioactive materials, Reporting and recordkeeping requirements.
Hazardous materials transportation, Incorporation by reference, Motor vehicle safety, Packaging and containers, Reporting and recordkeeping requirements.
Hazardous materials transportation, Incorporation by reference, Motor carriers, Motor vehicle safety, Packaging and containers, Railroad safety, Reporting and recordkeeping requirements.
In consideration of the foregoing, PHMSA is amending 49 CFR Chapter I as follows:
49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 section 4 (28 U.S.C. 2461 note); Pub. L. 104-134, section 31001; 49 CFR 1.81 and 1.97.
(c)
(2) Single or combination packagings containing a net quantity per single or inner packaging of 5 L or less for liquids or having a net mass of 5 kg or less for solids, are not subject to any other requirements of this subchapter provided the packagings meet the general requirements in §§ 173.24 and 173.24a. This exception does not apply to marine pollutants that are a hazardous waste or a hazardous substance. In the case of marine pollutants also meeting the criteria for inclusion in another hazard class, all provisions of this subchapter relevant to any additional hazards continue to apply.
The revisions and additions are to read as follows:
(a)
(s) * * *
(1) IAEA Safety Standards for Protecting People and the Environment; Regulations for the Safe Transport of Radioactive Material, No. SSR-6, (IAEA Regulations), 2012 Edition, into §§ 171.22; 171.23; 171.26; 173.415; 173.416; 173.417; 173.435; 173.473.
(t) * * *
(1) Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions), 2015-2016 Edition, copyright 2014, into §§ 171.8; 171.22; 171.23; 171.24; 172.101; 172.202; 172.401; 172.512; 172.519; 172.602; 173.56; 173.320; 175.10, 175.33; 178.3.
(v) * * *
(2) International Maritime Dangerous Goods Code (IMDG Code), Incorporating Amendment 37-14 (English Edition), 2014 Edition, into §§ 171.22; 171.23; 171.25; 172.101; 172.202; 172.203 172.401; 172.502; 172.519; 172.602; 173.21; 173.56; 176.2; 176.5; 176.11; 176.27; 176.30; 176.83; 176.84; 176.140; 176.720; 178.3; 178.274.
(w) * * *
(1) ISO 535-1991(E) Paper and board—Determination of water absorptiveness—Cobb method, 1991, into §§ 178.516; 178.707; 178.708.
(2) ISO 1496-1: 1990 (E)—Series 1 freight containers—Specification and testing, Part 1: General cargo containers. Fifth Edition, (August 15, 1990), into § 173.411.
(3) ISO 1496-3(E)—Series 1 freight containers—Specification and testing—Part 3: Tank containers for liquids, gases and pressurized dry bulk, Fourth edition, March 1995, into §§ 178.74; 178.75; 178.274.
(4) ISO 1516:2002(E), Determination of flash/no flash—Closed cup equilibrium method, Third Edition, 2002-03-01, into § 173.120.
(5) ISO 1523:2002(E), Determination of flash point—Closed cup equilibrium method, Third Edition, 2002-03-01, into § 173.120.
(6) ISO 2431-1984(E) Standard Cup Method, 1984, into § 173.121.
(7) ISO 2592:2000(E), Determination of flash and fire points—Cleveland open cup method, Second Edition, 2000-09-15, into § 173.120.
(8) ISO 2719:2002(E), Determination of flash point—Pensky-Martens closed cup method, Third Edition, 2002-11-15, into § 173.120.
(9) ISO 2919:1999(E), Radiation Protection—Sealed radioactive sources—General requirements and classification, (ISO 2919), second edition, February 15, 1999, into § 173.469.
(10) ISO 3036-1975(E) Board—Determination of puncture resistance, 1975, into § 178.708.
(11) ISO 3405:2000(E), Petroleum products—Determination of distillation characteristics at atmospheric pressure, Third Edition, 2000-03-01, into § 173.121.
(12) ISO 3574-1986(E) Cold-reduced carbon steel sheet of commercial and drawing qualities, into § 178.503; Part 178, appendix C.
(13) ISO 3679:2004(E), Determination of flash point—Rapid equilibrium closed cup method, Third Edition, 2004-04-01, into § 173.120.
(14) ISO 3680:2004(E), Determination of flash/no flash—Rapid equilibrium closed cup method, Fourth Edition, 2004-04-01, into § 173.120.
(15) ISO 3807-2(E), Cylinders for acetylene—Basic requirements—Part 2: Cylinders with fusible plugs, First edition, March 2000, into §§ 173.303; 178.71.
(16) ISO 3924:1999(E), Petroleum products—Determination of boiling range distribution—Gas chromatography method, Second Edition, 1999-08-01, into § 173.121.
(17) ISO 4126-1:2004(E): Safety devices for protection against excessive pressure—Part 1: Safety valves, Second edition 2004-02-15, into § 178.274.
(18) ISO 4126-7:2004(E): Safety devices for protection against excessive pressure—Part 7: Common data, First Edition 2004-02-15 into § 178.274.
(19) ISO 4126-7:2004/Cor.1:2006(E): Safety devices for protection against excessive pressure—Part 7: Common data, Technical Corrigendum 1, 2006-11-01, into § 178.274.
(20) ISO 4626:1980(E), Volatile organic liquids—Determination of boiling range of organic solvents used as raw materials, First Edition, 1980-03-01, into § 173.121.
(21) ISO 4706:2008(E), Gas cylinders—Refillable welded steel cylinders—Test pressure 60 bar and below, First Edition, 2008-04-15, Corrected Version, 2008-07-01, into § 178.71.
(22) ISO 6406(E), Gas cylinders—Seamless steel gas cylinders—Periodic inspection and testing, Second edition, February 2005, into § 180.207.
(23) ISO 6892 Metallic materials—Tensile testing, July 15, 1984, First Edition, into § 178.274.
(24) ISO 7225(E), Gas cylinders—Precautionary labels, Second Edition, July 2005, into § 178.71.
(25) ISO 7866(E), Gas cylinders—Refillable seamless aluminum alloy gas cylinders—Design, construction and testing, First edition, June 1999, into § 178.71.
(26) ISO 8115 Cotton bales—Dimensions and density, 1986 Edition, into § 172.102.
(27) ISO 9809-1:1999(E): Gas cylinders—Refillable seamless steel gas cylinders—Design, construction and testing—Part 1: Quenched and tempered steel cylinders with tensile strength less than 1100 MPa., First edition, June 1999, into §§ 178.37; 178.71; 178.75.
(28) ISO 9809-1:2010(E): Gas cylinders—Refillable seamless steel gas cylinders—Design, construction and testing—Part 1: Quenched and tempered steel cylinders with tensile strength less than 1 100 MPa., Second edition, 2010-04-15, into §§ 178.37; 178.71; 178.75.
(29) ISO 9809-2:2000(E): Gas cylinders—Refillable seamless steel gas cylinders—Design, construction and testing—Part 2: Quenched and tempered steel cylinders with tensile strength greater than or equal to 1 100 MPa., First edition, June 2000, into §§ 178.71; 178.75.
(30) ISO 9809-2:2010(E): Gas cylinders—Refillable seamless steel gas cylinders—Design, construction and testing—Part 2: Quenched and tempered steel cylinders with tensile strength greater than or equal to 1100 MPa., Second edition, 2010-04-15, into §§ 178.71; 178.75.
(31) ISO 9809-3:2000(E): Gas cylinders—Refillable seamless steel gas cylinders—Design, construction and testing—Part 3: Normalized steel cylinders, First edition, December 2000, into §§ 178.71; 178.75.
(32) ISO 9809-3:2010(E): Gas cylinders—Refillable seamless steel gas cylinders—Design, construction and testing—Part 3: Normalized steel cylinders, Second edition, 2010-04-15, into §§ 178.71; 178.75.
(33) ISO 9978:1992(E)—Radiation protection—Sealed radioactive sources—Leakage test methods. First Edition, (February 15, 1992), into § 173.469.
(34) ISO 10156:2010(E): Gases and gas mixtures—Determination of fire potential and oxidizing ability for the selection of cylinder valve outlets, Third edition, 2010-04-01, into § 173.115.
(35) ISO 10156:2010/Cor.1:2010(E): Gases and gas mixtures—Determination of fire potential and oxidizing ability for the selection of cylinder valve outlets, Technical Corrigendum 1, 2010-09-01, into § 173.115.
(36) ISO 10297:1999(E), Gas cylinders—Refillable gas cylinder valves—Specification and type testing, First Edition, 1995-05-01, into §§ 173.301b; 178.71.
(37) ISO 10297:2006(E), Transportable gas cylinders—Cylinder valves—Specification and type testing, Second Edition, 2006-01-15, into §§ 173.301b; 178.71.
(38) ISO 10461:2005(E), Gas cylinders—Seamless aluminum-alloy gas cylinders—Periodic inspection and testing, Second Edition, 2005-02-15 and Amendment 1, 2006-07-15, into § 180.207.
(39) ISO 10462 (E), Gas cylinders—Transportable cylinders for dissolved acetylene—Periodic inspection and maintenance, Second edition, February 2005, into § 180.207.
(40) ISO 10692-2:2001(E), Gas cylinders—Gas cylinder valve connections for use in the micro-electronics industry—Part 2: Specification and type testing for valve to cylinder connections, First Edition, 2001-08-01, into §§ 173.40; 173.302c.
(41) ISO 11114-1:2012(E), Gas cylinders—Compatibility of cylinder and valve materials with gas contents—Part 1: Metallic materials, Second edition, 2012-03-15, into §§ 173.301b; 178.71.
(42) ISO 11114-2(E), Transportable gas cylinders—Compatibility of cylinder and valve materials with gas contents—Part 2: Non-metallic materials, First edition, December 2000, into §§ 173.301b; 178.71.
(43) ISO 11117:1998(E): Gas cylinders—Valve protection caps and valve guards for industrial and medical gas cylinders.—Design, construction and tests, First edition, 1998-08-01, into § 173.301b.
(44) ISO 11117:2008(E): Gas cylinders—Valve protection caps and valve guards—Design, construction and tests, Second edition, 2008-09-01, into § 173.301b.
(45) ISO 11117:2008/Cor.1:2009(E): Gas cylinders—Valve protection caps and valve guards—Design, construction and tests, Technical Corrigendum 1, 2009-05-01, into § 173.301b.
(46) ISO 11118(E), Gas cylinders—Non-refillable metallic gas cylinders—Specification and test methods, First edition, October 1999, into § 178.71.
(47) ISO 11119-1(E), Gas cylinders—Gas cylinders of composite construction—Specification and test methods—Part 1: Hoop-wrapped composite gas cylinders, First edition, May 2002, into § 178.71.
(48) ISO 11119-2(E), Gas cylinders—Gas cylinders of composite construction—Specification and test methods—Part 2: Fully wrapped fibre reinforced composite gas cylinders with load-sharing metal liners, First edition, May 2002, into § 178.71.
(49) ISO 11119-3(E), Gas cylinders of composite construction—Specification and test methods—Part 3: Fully wrapped fibre reinforced composite gas cylinders with non-load-sharing metallic or non-metallic liners, First edition, September 2002, into § 178.71.
(50) ISO 11120(E), Gas cylinders—Refillable seamless steel tubes of water capacity between 150 L and 3000 L—Design, construction and testing, First edition, March 1999, into §§ 178.71; 178.75.
(51) ISO 11513:2011(E), Gas cylinders—Refillable welded steel cylinders containing materials for sub-atmospheric gas packaging (excluding acetylene)—Design, construction, testing, use and periodic inspection, First edition, 2011-09-12, into §§ 173.302c; 178.71; 180.207.
(52) ISO 11621(E), Gas cylinders—Procedures for change of gas service, First edition, April 1997, into §§ 173.302, 173.336, 173.337.
(53) ISO 11623(E), Transportable gas cylinders—Periodic inspection and testing of composite gas cylinders, First edition, March 2002, into § 180.207.
(54) ISO 13340:2001(E) Transportable gas cylinders—Cylinder valves for non-refillable cylinders—Specification and prototype testing, First edition, 2004-04-01, into §§ 173.301b; 178.71.
(55) ISO 13736:2008(E), Determination of flash point—Abel closed-cup method, Second Edition, 2008-09-15, into § 173.120.
(56) ISO 16111:2008(E), Transportable gas storage devices—Hydrogen absorbed in reversible metal hydride, First Edition, 2008-11-15, into §§ 173.301b; 173.311; 178.71.
(57) ISO 18172-1:2007(E), Gas cylinders—Refillable welded stainless steel cylinders—Part 1: Test pressure 6 MPa and below, First Edition, 2007-03-01, into § 178.71.
(58) ISO 20703:2006(E), Gas cylinders—Refillable welded aluminum-alloy cylinders—Design, construction and testing, First Edition, 2006-05-01, into § 178.71.
(bb) * * *
(1) * * *
(ix) SOR/2011-239 November 9, 2011.
(x) SOR/2011-60 March 16, 2011.
(xi) SOR/2011-210 October 12, 2011.
(xii) SOR/2012-245 December 5, 2012.
(dd) * * *
(1) UN Recommendations on the Transport of Dangerous Goods, Model Regulations (UN Recommendations), 18th revised edition, Volumes I and II (2013), into §§ 171.8; 171.12; 172.202; 172.401; 172.407; 172.502; 173.22; 173.24; 173.24b; 173.40; 173.56; 173.192; 173.302b; 173.304b; 178.75; 178.274.
(2) UN Recommendations on the Transport of Dangerous Goods, Manual of Tests and Criteria, (Manual of Tests and Criteria), into §§ 171.24, 172.102; 173.21; 173.56; 173.57; 173.58; 173.60; 173.115; 173.124; 173.125; 173.127; 173.128; 173.137; 173.185; 173.220; 173.225, part 173, appendix H; 178.274:
(iii) Fifth revised edition, amendment 2 (2013).
(1) Is designed for mechanical handling; and
(2) Has a net mass greater than 400 kg (882 pounds) or a capacity of greater than 450 L (119 gallons), but has a volume of not more than 3 cubic meters (106 cubic feet).
(1) A maximum capacity of 450 L (119 gallons) or less as a receptacle for a liquid;
(2) A maximum net mass of 400 kg (882 pounds) or less and a maximum capacity of 450 L (119 gallons) or less as a receptacle for a solid;
(3) A water capacity of 454 kg (1000 pounds) or less as a receptacle for a gas as defined in § 173.115 of this subchapter; or
(4) Regardless of the definition of bulk packaging, a maximum net mass of 400 kg (882 pounds) or less for a bag or a box conforming to the applicable requirements for specification packagings, including the maximum net mass limitations, provided in subpart L of part 178 of this subchapter.
(b) * * *
(2)
(11) * * *
(iv) The country of origin for the shipment must have adopted the edition of SSR-6 of the IAEA Regulations referenced in § 171.7.
(ix) Packages containing fissile materials must conform to the requirements of § 173.453 to be otherwise excepted from the requirements of Subpart I of Part 173 for fissile materials.
(d) * * *
(1) * * *
(ii)
(b) * * *
(3) The outside of each package containing lithium metal cells or batteries (UN3090) transported in accordance with special provision 188 of the IMDG Code must be marked “PRIMARY LITHIUM BATTERIES—FORBIDDEN FOR TRANSPORT ABOARD PASSENGER AIRCRAFT” or “LITHIUM METAL BATTERIES—FORBIDDEN FOR TRANSPORT ABOARD PASSENGER AIRCRAFT”, or labeled with a CARGO AIRCRAFT ONLY label specified in § 172.448 of this subchapter. The provisions of this paragraph do not apply to packages that contain 5 kg (11 pounds) net weight or less of lithium metal cells or batteries that are packed with, or contained in, equipment.
49 U.S.C. 5101-5128, 44701; 49 CFR 1.81, 1.96 and 1.97.
(f)
(k)
The additions and revisions read as follows:
(c) * * *
(1) * * *
28 The dihydrated sodium salt of dichloroisocyanuric acid does not meet the criteria for inclusion in Division 5.1 (Oxidizer) and is not subject to the requirements of this subchapter unless meeting the criteria for inclusion in another class or division.
52 This entry may only be used for substances that are too insensitive for acceptance into Class 1 (explosive) when tested in accordance with Test Series 2 in the UN Manual of Tests and Criteria, Part I (incorporated by reference; see § 171.7 of this subchapter).
147 This entry applies to non-sensitized emulsions, suspensions, and gels consisting primarily of a mixture of ammonium nitrate and fuel, intended to produce a Type E blasting explosive only after further processing prior to use. The mixture for emulsions typically has the following composition: 60-85% ammonium nitrate; 5-30% water; 2-8% fuel; 0.5-4% emulsifier or thickening agent; 0-10% soluble flame suppressants; and trace additives. Other inorganic nitrate salts may replace part of the ammonium nitrate. The mixture for suspensions and gels typically has the following composition: 60-85% ammonium nitrate; 0-5% sodium or potassium perchlorate; 0-17% hexamine nitrate or monomethylamine nitrate; 5-30% water; 2-15% fuel; 0.5-4% thickening agent; 0-10% soluble flame suppressants; and trace additives. Other inorganic nitrate salts may replace part of the ammonium nitrate. These substances must satisfactorily pass Tests 8(a), (b) and (c) of Test Series 8 of the UN Manual of Tests and Criteria, Part I, Section 18 (IBR, see § 171.7 of this subchapter), and may not be classified and transported unless approved by the Associate Administrator.
160 This entry applies to safety devices for vehicles, vessels or aircraft,
238 Neutron radiation detectors: a. Neutron radiation detectors containing non-pressurized boron trifluoride gas in excess of 1 gram and radiation detection systems containing such neutron radiation detectors as components may be transported by highway, rail, vessel, or cargo aircraft in accordance with the following:
(1) Each radiation detector must meet the following conditions:
(i) The pressure in each neutron radiation detector must not exceed 105 kPa absolute at 20 °C;
(ii) The amount of gas must not exceed 13 grams per detector; and
(iii) Each neutron radiation detector must be of welded metal construction with brazed metal to ceramic feed through assemblies. These detectors must have a minimum burst pressure of 1800 kPa as demonstrated by design type qualification testing; and
(iv) Each detector must be tested to a 1 × 10
(2) Radiation detectors transported as individual components must be transported as follows:
(i) They must be packed in a sealed intermediate plastic liner with sufficient absorbent material to absorb the entire gas contents.
(ii) They must be packed in strong outer packagings and the completed package must be capable of withstanding a 1.8 meter (6-foot) drop without leakage of gas contents from detectors.
(iii) The total amount of gas from all detectors per outer packaging must not exceed 52 grams.
(3) Completed neutron radiation detection systems containing detectors meeting the conditions of paragraph (a)(1) of this special provision must be transported as follows:
(i) The detectors must be contained in a strong sealed outer casing;
(ii) The casing must contain include sufficient absorbent material to absorb the entire gas contents;
(iii) The completed system must be packed in strong outer packagings capable of withstanding a 1.8 meter (6-foot) drop test without leakage unless a system's outer casing affords equivalent protection.
b. Except for transportation by aircraft, neutron radiation detectors and radiation detection systems containing such detectors transported in accordance with paragraph (a) of this special provision are not subject to the labeling and placarding requirements of part 172 of this subchapter.
c. When transported by highway, rail, vessel, or as cargo on an aircraft, neutron radiation detectors containing not more than 1 gram of boron trifluoride, including those with solder glass joints are not subject to any other requirements of this subchapter provided they meet the requirements in paragraph (a)(1) of this special provision and are packed in accordance with paragraph (a)(2) of this special provision. Radiation detection systems containing such detectors are not subject to any other requirements of this subchapter provided they are packed in accordance with paragraph (a)(3) of this special provision.
342 Glass inner packagings (such as ampoules or capsules) intended only for use in sterilization devices, when containing less than 30 mL of ethylene oxide per inner packaging with not more than 300 mL per outer packaging, may be transported in accordance with § 173.4a of this subchapter, irrespective of the restriction of § 173.4a(b) and the indication of “forbidden” in columns (9A) and (9B) of the § 172.101 table provided that:
a. After filling, each glass inner packaging must be determined to be leak-tight by placing the glass inner packaging in a hot water bath at a temperature and for a period of time sufficient to ensure that an internal pressure equal to the vapor pressure of ethylene oxide at 55 °C is achieved. Any glass inner packaging showing evidence of leakage, distortion or other defect under this test must not be transported under the terms of this special provision;
b. In addition to the packaging required in § 173.4a, each glass inner packaging must be placed in a sealed plastic bag compatible with ethylene oxide and capable of containing the contents in the event of breakage or leakage of the glass inner packaging; and
c. Each glass inner packaging is protected by a means of preventing puncture of the plastic bag (
362 This entry applies to liquids, pastes or powders, pressurized with a propellant that meets the definition of a gas in § 173.115. A chemical under pressure packaged in an aerosol dispenser must be transported under UN1950. The chemical under pressure must be classed based on the hazard characteristics of the components in the propellant; the liquid; or the solid. The following provisions also apply:
a. If one of the components, which can be a pure substance or a mixture, is classed as flammable, the chemical under pressure must be classed as flammable in Division 2.1. Flammable components are flammable liquids and liquid mixtures, flammable solids and solid mixtures or flammable gases and gas mixtures meeting the following criteria:
(1) A flammable liquid is a liquid having a flashpoint of not more than 93 °C (200 °F);
(2) A flammable solid is a solid that meets the criteria in § 173.124 of this subchapter; or
(3) A flammable gas is a gas that meets the criteria in § 173.115 of this subchapter.
b. Gases of Division 2.3 and gases with a subsidiary risk of 5.1 must not be used as a propellant in a chemical under pressure.
c. Where the liquid or solid components are classed as Division 6.1, Packing Group II or III, or Class 8, Packing Group II or III, the chemical under pressure must be assigned a subsidiary risk of Division 6.1 or Class 8 and the appropriate identification number must be assigned. Components classed as Division 6.1, Packing Group I, or Class 8, Packing Group I, must not be offered for transportation and transported under this description.
d. A chemical under pressure with components meeting the properties of: Class 1 (explosives); Class 3 (liquid desensitized explosives); Division 4.1 (self-reactive substances and solid desensitized explosives); Division 4.2 (substances liable to spontaneous combustion); Division 4.3 (substances which, in contact with water, emit flammable gases or toxic gases); Division 5.1 (oxidizing substances); Division 5.2 (organic peroxides); Division 6.2 (Infectious substances); or, Class 7 (Radioactive material), must not be offered for transportation under this description.
e. A description to which special provision 170 or TP7 is assigned in Column 7 of the § 172.101 Hazardous Materials Table, and therefore requires air to be eliminated from the package vapor space by nitrogen or other means, must not be offered for transportation under this description.
f. Chemicals under pressure containing components forbidden for transport on both passenger and cargo aircraft in Columns (9A) and (9B) of the § 172.101 Hazardous Materials Table must not be transported by air.
367 For the purposes of documentation and package marking:
a. The proper shipping name “Paint related material” may be used for consignments of packages containing “Paint” and “Paint related material” in the same package;
b. The proper shipping name “Paint related material, corrosive, flammable” may be used for consignments of packages containing “Paint, corrosive, flammable” and “Paint related material, corrosive, flammable” in the same package;
c. The proper shipping name “Paint related material, flammable, corrosive” may be used for consignments of packages containing “Paint, flammable, corrosive” and “Paint related material, flammable, corrosive” in the same package; and
d. The proper shipping name “Printing ink related material” may be used for consignments of packages containing “Printing ink” and “Printing ink related material” in the same package.
368 In the case of non-fissile or fissile-excepted uranium hexafluoride, the material must be classified under UN3507 or UN2978.
369 In accordance with § 173.2a, this radioactive material in an excepted package possessing corrosive properties is classified in Class 8 with a radioactive material subsidiary risk. Uranium hexafluoride may be classified under this entry only if the conditions of §§ 173.420(a)(4) and (a)(6), 173.420(d), 173.421(a)(2) and (a)(4), and, for fissile-excepted material, the conditions of 173.453 are met. In addition to the provisions applicable to the transport of Class 8 substances, the provisions of §§ 173.421(a)(3), and 173.443(a) apply. In addition, packages shall be legibly and durably marked with an identification of the consignor, the consignee, or both. No Class 7 label is required to be displayed. The consignor shall be in possession of a copy of each applicable certificate when packages include fissile material excepted by competent authority approval. When a consignment is undeliverable, the consignment shall be placed in a safe location and the appropriate competent authority shall be informed as soon as possible and a request made for instructions on further action. If it is evident that a package of radioactive material, or conveyance carrying unpackaged radioactive material, is leaking, or if it is suspected that the package, or conveyance carrying unpackaged material, may have leaked, the requirements of § 173.443(e) apply.
370 This entry also applies to Ammonium nitrate with not more than 0.2% combustible substances, including any organic substance calculated as
371 a. This entry also applies to articles not conforming to the requirements of §§ 173.302, 173.304, or 173.306 of this subchapter, containing a small pressure receptacle with a release device. Such articles must comply with the following requirements:
(1) The water capacity of the pressure receptacle must not exceed 0.5 L and the working pressure must not exceed 25 bar at 15 °C (59 °F);
(2) The minimum burst pressure of the pressure receptacle must be at least four times the pressure of the gas at 15 °C (59 °F);
(3) Each article must be manufactured in such a way that unintentional firing or release is avoided under normal conditions of handling, packing, transport and use. This may be fulfilled by an additional locking device linked to the activator;
(4) Each article must be manufactured in such a way as to prevent hazardous projections of the pressure receptacle or parts of the pressure receptacle;
(5) Each pressure receptacle must be manufactured from material which will not fragment upon rupture;
(6) The design type of the article must be subjected to a fire test. For this test, the provisions of paragraphs 16.6.1.2 except letter g, 16.6.1.3.1 to 16.6.1.3.6, 16.6.1.3.7(b) and 16.6.1.3.8 of the UN Manual of Tests and Criteria must be applied. It must be demonstrated that the article relieves its pressure by means of a fire degradable seal or other pressure relief device, in such a way that the pressure receptacle will not fragment and that the article or fragments of the article do not rocket more than 10 meters; and
(7) The design type of the article must be subjected to the following test. A stimulating mechanism must be used to initiate one article in the middle of the packaging. There must be no hazardous effects outside the package such as disruption of the package, metal fragments or a receptacle which passes through the packaging.
b. The manufacturer must produce technical documentation of the design type, manufacture as well as the tests and their results. The manufacturer must apply procedures to ensure that articles produced in series are made of good quality, conform to the design type and are able to meet the requirements in (a). The manufacturer must provide such information to a representative of the Department upon request.
372 This entry applies to asymmetric capacitors with an energy storage capacity greater than 0.3 Wh. Capacitors with an energy storage capacity of 0.3 Wh or less are not subject to the requirements of this subchapter.
Energy storage capacity means the energy stored in a capacitor, as calculated according to the following equation,
(2) * * *
A60 Sterilization devices, when containing less than 30 mL per inner packaging with not more than 150 mL per outer packaging, may be transported in accordance with the provisions in § 173.4a, irrespective of § 173.4a(b), provided such packagings were first subjected to comparative fire testing. Comparative fire testing between a package as prepared for transport (including the substance to be transported) and an identical package filled with water must show that the maximum temperature measured inside the packages during testing does not differ by more than 200 °C (392 °F). Packagings may include a vent to permit the slow escape of gas (
A61 a. When used for purposes such as sterilization, inner packagings of peroxyacetic acid, stabilized, classified as UN 3107 Organic peroxide type E, liquid or UN 3109 Organic peroxide type F, liquid may be fitted with a vent consisting of hydrophobic membrane, provided:
(1) Each inner packaging contains not more than 70 mL;
(2) The inner packaging is designed so that the vent is not immersed in liquid in any orientation;
(3) Each inner packaging is enclosed in an intermediate rigid plastic packaging with a small opening to permit release of gas and contains a buffer that neutralizes the contents of the inner packaging in the event of leakage;
(4) Intermediate packagings are packed in a fiberboard box (4G) outer packaging;
(5) Each outer packaging contains not more than 1.4 L of liquid; and
(6) The rate of oxygen release from the outer packaging does not exceed 15 mL per hour.
b. Such packages must be transported on cargo aircraft only. The requirements of §§ 173.24(g)(1) and 173.27(c) do not apply.
(4)
(8) * * *
(ii) * * *
TP47 The 2.5 year internal examination may be waived or substituted by other test methods or inspection procedures specified by the competent authority or its authorized body, provided that the portable tank is dedicated to the transport of the organometallic substances to which this tank special provision is assigned. However this examination is required when the conditions of § 180.605(f) are met.
(a) * * *
(2) “I hereby declare that the contents of this consignment are fully and accurately described above by the proper shipping name, and are classified, packaged, marked and labeled/placarded, and are in all respects in proper condition for transport according to applicable international and national governmental regulations.”
In the certification the word “above” may be substituted for the word “below” as appropriate.
(a) * * *
(2) The square-on-point must be durable, legible and of a size relative to the packaging, readily visible, and must be applied on at least one side or one end of the outer packaging. The width of the border forming the square-on-point must be at least 2 mm and the minimum dimension of each side, as measured from the outside of the lines forming the border, must be 100 mm
(i)
(ii) For domestic transportation, a packaging marked prior to January 1, 2017 and in conformance with the requirements of this paragraph in effect on December 31, 2014, may continue in service until the end of its useful life.
(b) * * *
(2) The square-on-point must be durable, legible and of a size relative to the package as to be readily visible. The square-on-point must be applied on at least one side or one end of the outer packaging. The width of the border forming the square-on-point must be at least 2 mm and the minimum dimension of each side, as measured from the outside of the lines forming the border, must be 100 mm unless the package size requires a reduced size marking that must be no less than 50 mm on each side and the width of the border forming the square on point may be reduced to a minimum of 1 mm. Where dimensions are not specified, all features shall be in approximate proportion to those shown.
(i)
(ii) For domestic transportation, a packaging marked prior to January 1, 2017 and in conformance with the requirements of this paragraph in effect on December 31, 2014, may continue in service until the end of its useful life.
(b)
(1)
(2) For domestic transportation, a packaging marked prior to January 1, 2017 and in conformance with the requirements of this paragraph in effect on December 31, 2014, may continue in service until the end of its useful life.
(a) * * *
(2) Except as otherwise provided in this subchapter, the MARINE POLLUTANT mark shall be placed in association with the hazard warning labels required by subpart E of this part or, in the absence of any labels, in association with the marked proper shipping name.
(b) Except as otherwise provided in this subchapter, a bulk packaging that contains a marine pollutant must—
(e)
(2) The marking must be in the form of a square-on-point. The symbol and border must be black on a white or suitable contrasting background. The width of the border forming the square-on-point marking must be at least 2 mm. Each side of the mark must be—
(i) At least 100 mm (4 inches) as measured from the outside of the lines forming the border for marks applied to:
(A) Non-bulk packages, except in the case of packages which, because of their size, can only bear smaller marks. If the size of the package so requires, the dimensions/line thickness may be reduced, provided the marking remains clearly visible. Where dimensions are not specified, all features shall be in approximate proportion to those shown.
(B) Bulk packages with a capacity of less than 3,785 L (1,000 gallons); or
(ii) At least 250 mm (10 inches) for marks applied to all other bulk packages.
(3)
(4) For domestic transportation, a packaging marked prior to January 1, 2017 and in conformance with the requirements of this paragraph in effect on December 31, 2014, may continue in service until the end of its useful life.
(a)
(a) The marking must be durable, legible and of a size relative to the package as to be readily visible and similar to the illustration shown in this paragraph with the minimum dimension of each side of the marking at least 100 mm (3.9 inches) as measured from the outside of the lines forming the border. The width of the border forming the square-on-point marking must be at least 5 mm. The marking must be displayed at each location (
(1)
(2) For domestic transportation, a packaging marked prior to January 1, 2017 and in conformance with the requirements of this paragraph in effect on December 31, 2014, may continue in service until the end of its useful life.
(c)
(i) If the size of the package so requires, the dimensions of the label and its features may be reduced provided the symbol and other elements of the label remain clearly visible. The solid line forming the inner border must remain 5 mm from the outside edge of the label and the minimum width of the line must remain 2 mm.
(ii) Where dimensions are not specified, all features shall be in approximate proportion to those shown in §§ 172.411 through 172.448 of this subpart, as appropriate.
(iii)
(iv) For domestic transportation, a packaging labeled prior to January 1, 2017 and in conformance with the requirements of this paragraph in effect on December 31, 2014, may continue in service until the end of its useful life.
(d) * * *
(2) * * *
(iii) White may be used for the symbol for the ORGANIC PEROXIDE label.
(A) If white is used for the symbol for the ORGANIC PEROXIDE label then the solid line forming the inner border on the upper half of the label must also be white.
(B)
(C) For domestic transportation, a packaging labeled prior to January 1, 2017 and in conformance with the requirements of this paragraph in effect on December 31, 2014, may continue in service until the end of its useful life.
(iv) The FLAMMABLE GAS label displayed on cylinders and gas cartridges for liquefied petroleum gases may be shown in the background color of the receptacle if adequate contrast is provided.
(a) * * *
(3) Placarding is not required on a freight container or aircraft unit load device if it is only transported by air and is identified as containing a hazardous material in the manner provided in part 7, chapter 2, section 2.8, of the ICAO Technical Instructions (IBR, see § 171.7 of this subchapter).
(c)
(ii) For domestic transportation, a placard manufactured prior to January 1, 2017 in conformance with the requirements of this paragraph in effect on December 31, 2014, may continue in service until the end of its useful life provided the color tolerances are maintained and are in accordance with the display requirements of this subchapter.
49 U.S.C. 5101-5128, 44701; 49 CFR 1.81, 1.96 and 1.97.
(a) * * *
(1) Class 7 (radioactive materials, other than limited quantities; and shipments of UN 3507, Uranium hexafluoride, radioactive material, excepted package)
(c) * * *
(3) Each salvage packaging must be marked with the proper shipping name of the hazardous material inside the packaging and the name and address of the consignee. In addition, the packaging must be marked “SALVAGE”. The lettering of the marking must be at least 12 mm (0.5 inches) high.
(i)
(ii) For domestic transportation, a packaging marked prior to January 1, 2017 and in conformance with the requirements of this paragraph in effect on December 31, 2014, may continue in service until the end of its useful life.
(d) * * *
(3) * * *
(iv) The word “SALVAGE” in letters at least 12 mm (0.5 inches) high on opposite sides near the middle of the cylinder; stamping on the sidewall is not authorized.
(A)
(B) For domestic transportation, a packaging marked prior to January 1, 2017 and in conformance with the requirements of this paragraph in effect on December 31, 2014, may continue in service until the end of its useful life.
(f)
(1) Large salvage packagings must be tested and marked in accordance with part 178, subparts P and Q of this subchapter at the Packing Group II or higher performance standards for large packagings intended for the transport of solids or inner packagings, except as follows:
(i) The test substance used in performing the tests shall be water, and the large salvage packagings must be filled to not less than 98 percent of their maximum capacity; and
(ii) Large salvage packagings must have been successfully subjected to a leakproofness test of 30 kPa (4.4 psig).
(2) Each large salvage packaging shall be provided when necessary with sufficient cushioning and absorption material to prevent excessive shifting of the contents and to eliminate the presence of any free liquid at the time the packaging is closed. All cushioning and absorbent material used in the large salvage packaging must be compatible with the hazardous material.
(3) Each large salvage packaging must be marked with the proper shipping name of the hazardous material inside the packaging and the name and address of the consignee. In addition, the packaging must be marked “SALVAGE”. The lettering of the marking must be at least 12 mm (0.5 inches) high.
(4) Each large salvage packaging shall be labeled as prescribed for the respective material.
(5) The shipper shall prepare shipping papers in accordance with subpart C of part 172 of this subchapter.
(6) The overpack requirements of § 173.25 do not apply to large salvage packagings used in accordance with this paragraph.
(g) * * *
(2) The marking must be durable and clearly visible and in the form of a square. The hatching must be of the same color, black or red on white or a suitable contrasting background. The minimum dimensions must not be less than 100 mm (3.9 inches) by 100 mm (3.9 inches) as measured from the outside of the hatching forming the border. Where dimensions are not specified, all features shall be in approximate proportion to those shown.
(i)
(ii) For domestic transportation, a packaging marked prior to January 1, 2017 and in conformance with the requirements of this paragraph in effect on December 31, 2014, may continue in service until the end of its useful life.
(e)
(i)
(ii) [Reserved]
The following light bulbs (lamps) are not subject to any other requirements of this subchapter provided they do not contain Class 7 (radioactive) material:
(a) Light bulbs that are collected directly from individuals and households when transported to a collection or recycling facility.
(b) Light bulbs each containing not more than 1 g of hazardous materials and packaged so that there is not more than 30 g of hazardous materials per package. Each light bulb must be packed in inner packagings separated by
(c) Used, damaged, defective light bulbs each containing not more than 1 g of hazardous materials and packaged so that there is not more than 30 g of hazardous materials per package when transported from a collection or recycling facility. The light bulbs must be packed in strong outer packagings meeting the requirements of § 173.24(b) of this subpart and capable of passing a 1.2 m (4 feet) drop test.
(d) Light bulbs containing only gases of Division 2.2 provided they are packaged so that the projectile effects of any rupture of the bulb will be contained within the package.
(c)
(i) The packaging is prescribed or permitted for the hazardous material in a packaging section specified for that material in Column 8 of the § 172.101 table and conforms to applicable requirements in the special provisions of Column 7 of the § 172.101 table and, for specification packagings (but not including UN standard packagings manufactured outside the United States), the specification requirements in parts 178 and 179 of this subchapter; or
(ii) The packaging is permitted under, and conforms to, provisions contained in subparts B or C of part 171 of this subchapter or §§ 173.3, 173.4, 173.4a, 173.4b, 173.5, 173.5a, 173.6, 173.7, 173.8, 173.27, or § 176.11 of this subchapter.
(2) The use of supplementary packagings within an outer packaging (
(a) * * *
(4) The overpack is marked with the word “OVERPACK” when specification packagings are required, unless specification markings on the inside packages are visible. The lettering on the “OVERPACK” marking must be at least 12 mm (0.5 inches) high.
(i)
(ii) For domestic transportation, an overpack marked prior to January 1, 2017 and in conformance with the requirements of this paragraph in effect on December 31, 2014, may continue in service until the end of its useful life.
(b) * * *
(c) * * *
(m)
(b) * * *
(1) * * *
(ii) The mixture or any separated solvent does not contain any substances with a primary or a subsidiary risk of Division 6.1 or Class 8;
(a) * * *
(1) A solid material is classed as a Division 5.1 material if, when tested in accordance with the UN Manual of Tests and Criteria (IBR, see § 171.7 of this subchapter):
(i) If test O.1 is used (UN Manual of Tests and Criteria, sub-section 34.4.1), the mean burning time is less than or equal to the burning time of a 3:7 potassium bromate/cellulose mixture; or
(ii) If test O.3 is used (UN Manual of Tests and Criteria, sub-section 34.4.3), the mean burning rate is greater than or equal to the burning rate of a 1:2 calcium peroxide/cellulose mixture.
(b)
(i) Packing Group I, for any material which, in either concentration tested:
(A) If test O.1 is used (UN Manual of Tests and Criteria, sub-section 34.4.1), the mean burning time is less than the mean burning time of a 3:2 potassium bromate/cellulose mixture; or
(B) If test O.3 is used (UN Manual of Tests and Criteria, sub-section 34.4.3), the mean burning rate is greater than the mean burning rate of a 3:1 calcium peroxide/cellulose mixture.
(ii) Packing Group II, for any material which, in either concentration tested:
(A) If test O.1 is used (UN Manual of Tests and Criteria, sub-section 34.4.1), the mean burning time is less than the mean burning time of a 2:3 potassium bromate/cellulose mixture and the criteria for Packing Group I are not met; or
(B) If test O.3 is used (UN Manual of Tests and Criteria, sub-section 34.4.3), the mean burning rate is greater than the mean burning rate of a 1:1 calcium peroxide/cellulose mixture and the criteria for Packing Group I are not met.
(iii) Packing Group III for any material which, in either concentration tested:
(A) If test O.1 is used (UN Manual of Tests and Criteria, sub-section 34.4.1), the mean burning time is less than the mean burning time of a 3:7 potassium bromate/cellulose mixture and the criteria for Packing Groups I and II are not met; or
(B) If test O.3 is used (UN Manual of Tests and Criteria, sub-section 34.4.3), the mean burning rate is greater than the mean burning rate of a 1:2 calcium peroxide/cellulose mixture and the criteria for Packing Groups I and II are not met.
(iv) The materials is not classified as a Division 5.1 material if, in either concentration tested:
(A) If test O.1 is used (UN Manual of Tests and Criteria, sub-section 34.4.1), the sample tested does not ignite and exhibit burn, or exhibits a mean burning time of greater than or equal to the mean burning time of a 3:7 potassium bromate/cellulose mixture.
(B) If test O.3 is used (UN Manual of Tests and Criteria, sub-section 34.4.3), the sample tested does not ignite and exhibit burn, or exhibits a mean burning rate less than or equal to the mean burning rate of a 1:2 calcium peroxide/cellulose mixture.
(b)
(i) For flammable solids in Packing Group II, inner packagings not over 1.0 kg (2.2 pounds) net capacity each, packed in a strong outer packaging.
(ii) For flammable solids in Packing Group III, inner packagings not over 5.0 kg (11 pounds) net capacity each, packed in a strong outer packaging.
(2) For transportation by highway or rail, Charcoal briquettes (NA1361) may be packaged as a limited quantity in accordance with paragraph (b) of this section in packagings not exceeding 30 kg gross weight and are eligible for the exceptions provided in § 173.156.
(b) * * *
(2) The packing group assigned to the chemical kit and first aid kit as a whole must be the most stringent packing group assigned to any individual substance in the kit. The packing group must be shown on the shipping paper. Where the kit contains only hazardous materials to which no packing group is assigned, the packagings shall meet the Packing Group II performance level. Where the kit contains only hazardous materials to which no packing group is assigned, the packing group does not have to be indicated on the shipping paper.
(a) * * *
(5) [Reserved]
For the purpose of this section, safety devices are articles which contain pyrotechnic substances or hazardous materials of other classes and are used in vehicles, vessels or aircraft to enhance safety to persons. Examples are: air bag inflators, air bag modules, seat-belt pretensioners and pyromechanical devices. Pyromechanical devices are assembled components for tasks such as but not limited to separation, locking, release-and-drive or occupant restraint. The term includes “Safety devices, pyrotechnic.”
(a)
(b)
(i) Does not manufacture or market explosives or safety devices, is not owned in whole or in part, or is not financially dependent upon any entity that manufactures or markets explosives or safety devices;
(ii) Performs all examination and testing in accordance with the applicable requirements as specified in special provision 160 (see § 172.102 of this subchapter); and
(iii) Maintains records in accordance with paragraph (g) of this section.
(iv) By adhering to all the provisions specified in paragraph (b)(1) of this section, a Class 9 (UN3268) air bag inflator, air bag module or seat-belt pretensioner design is not required to be submitted to the Associate Administrator for approval or assigned an EX number. All other Class 9 (UN3268) safety device designs are required to be submitted to the Associate Administrator for approval and assigned an EX number;
(2) A safety device may be classed as Division 1.4G if the maximum parameters of each design type have been examined and successfully tested by a person or agency who is authorized by the Associate Administrator to perform such examination and testing of explosives under § 173.56(b)(1). As a Class 1 explosive, the manufacturer must submit to the Associate Administrator a report of the examination and assignment of a recommended shipping description, division, and compatibility group, and if the Associate Administrator finds the approval request meets the regulatory criteria, the explosive may be approved in writing and assigned an EX number; or
(3) The manufacturer has submitted an application, including a classification issued by the competent authority of a foreign government to the Associate Administrator, and received written notification from the Associate Administrator that the device has been approved for transportation and assigned an EX number.
(c)
(2) A safety device, when classed as a Class 9 (UN3268), is excepted from the EX number, or product code shipping paper requirements of paragraph (c) of this section.
(d)
(2) An air bag module containing an inflator that has been previously approved by the Associate Administrator for transportation is not required to be submitted for further examination or approval. For classifications granted after July 30, 2013, if the Class 9 designation for the inflator is contingent upon packaging or other special means specified by the authorized testing agency, the modules must be tested and certified separately to determine if they can be shipped as “UN3268, Safety Devices, 9, PG III”.
(3) An air bag module containing an inflator that has previously been approved by the Associate Administrator as a Division 2.2 material is not required to be submitted for further examination to be reclassed as a Class 9 material.
(4)
(5) An air bag inflator, air bag module, or seat-belt pretensioner that was classed and approved for transportation prior to January 1, 2015 may continue to be transported under the terms of the existing approval, using the appropriate proper shipping name “Safety Devices” or “Safety Devices, Pyrotechnic” based on the classification of the device as assigned by PHMSA or the authorized person or agency that examined and tested the design type.
(6) Until January 1, 2016, for domestic transportation by highway, rail, and vessel, packages containing air bag inflators, air bag modules, or seat-belt pretensioners may be;
(i) Marked with either the appropriate proper shipping name, or an appropriate proper shipping name authorized by § 172.101 in effect on December 31, 2014; and
(ii) Described on a shipping paper with either the appropriate proper shipping name, or an appropriate proper shipping name authorized by § 172.101 in effect on December 31, 2014.
(e)
(1) 1A2, 1B2, 1N2, 1D, 1G, or 1H2 drums.
(2) 3A2, 3B2, or 3H2 jerricans.
(3) 4A, 4B, 4N, 4C1, 4C2, 4D, 4F, 4G, 4H1, or 4H2 boxes.
(4)
(A) The gross weight of the containers or handling devices may not exceed 1000 kg (2205 pounds). Containers or handling devices must provide adequate support to allow stacking at least three units high with no resultant damage;
(B) If not completely enclosed by design, the container or handling device must be covered with plastic, fiberboard, metal, or other suitable material. The covering must be secured to the container by banding or other comparable methods; and
(C) Internal dunnage must be sufficient to prevent movement of the devices within the container.
(ii) Reusable containers manufactured from high-strength plastic, metal, or other suitable material, or other dedicated handling devices are authorized for shipment of safety devices only to, between, and from, intermediate handling locations, provided they meet the conditions specified in paragraphs (e)(4)(i)(A) through (C) of this section and:
(A) The packages may be opened and re-packed by an intermediate handler as long as no modifications or changes are made to the packagings; and
(B) Transportation must be made by private or contract carrier.
(5) Packagings which were previously authorized in an approval issued by the Associate Administrator may continue to be used, provided a copy of the approval is maintained while such packaging is being used.
(6)
(i) Specification and non-specification steel drums with a wall and lid thickness not less than 20 gauge. The lid must be securely affixed with a lever-locking or bolted-ring assembly. The lid of the drum must provide ventilation of the drum contents in a fire. The drum may be filled with any combination of safety devices to a capacity not greater than fifty (50) percent of the drum's total volume. In addition, inner packagings or cushioning may not be used to fill the void space; or
(ii) Outer packaging consisting of 4H2 solid plastic boxes or non-specification rugged reusable plastic outer packaging and inner static-resistant plastic bags or trays. If not completely enclosed by design, the container or handling device must be covered with plastic, fiberboard, metal or other suitable material. The covering must be secured to the container by banding or other comparable methods. The articles must be packed to prevent movement within the container during transportation.
(f)
(g)
(i) Name and address of the test facility;
(ii) Name and address of the applicant;
(iii) Manufacturer of the device. For a foreign manufacturer, the U.S. agent or importer must be identified;
(iv) A test report number, drawing of the device, and description of the safety device in sufficient detail to ensure that the test report is traceable (
(v) The tests conducted and the results; and
(vi) A certification that the safety device is classed as a Class 9 (UN3268).
(2) For at least fifteen (15) years after testing, a copy of each test report must be maintained by the authorizing testing agency. For as long as any safety device design is being manufactured, and for at least fifteen (15) years thereafter, a copy of each test report must be maintained by the manufacturer of the product.
(3) Test reports must be made available to a representative of the Department upon request.
(a) * * *
(4)
(a) Capacitors, including capacitors containing an electrolyte that does not meet the definition of any hazard class or division as defined in this part, must conform to the following requirements:
(1) Except for asymmetric capacitors, capacitors not installed in equipment must be transported in an uncharged state.
(2) Each capacitor or module must be protected against a potential short circuit hazard in transport as follows:
(i) Except for asymmetric capacitors, when a capacitor's energy storage capacity is less than or equal to 10 Wh or when the energy storage capacity of each capacitor in a module is less than or equal to 10 Wh, the capacitor or module must be protected against short circuit or be fitted with a metal strap connecting the terminals; or
(ii) Except for asymmetric capacitors, when the energy storage capacity of a capacitor or a capacitor in a module is more than 10 Wh, the capacitor or module must be fitted with a metal strap connecting the terminals.
(iii) When an asymmetric capacitor's energy storage capacity is greater than 0.3 Wh, or when the energy storage capacity of each capacitor in a module is greater than 0.3 Wh, the capacitor or module must be protected against short circuit.
(3) Capacitors containing an electrolyte that meets the definition of one or more hazard class or division as defined in this part, must be designed to withstand a 95 kPa (0.95 bar, 14 psi) pressure differential.
(4) Capacitors must be designed and constructed to safely relieve pressure that may build up in use, through a vent or a weak point in the capacitor casing. Any liquid that is released upon venting must be contained by the packaging or by the equipment in which a capacitor is installed.
(5) Except for asymmetric capacitors, capacitors manufactured after December 31, 2013, or asymmetric capacitors manufactured after December 31, 2015, must be marked with the energy storage capacity in Wh.
(b) Capacitors must be packed in strong outer packagings. For transport by air, capacitors must be securely cushioned within the outer packagings. Capacitors installed in equipment may be offered for transport unpackaged or on pallets, when the capacitors are afforded equivalent protection by the equipment in which they are contained.
(c) Capacitors containing an electrolyte not meeting the definition of any hazard class or division as defined in this part, including when configured in a module or when installed in equipment, are not subject to any other requirements of this subchapter.
(d) Except for asymmetric capacitors, capacitors containing an electrolyte that meets the definition of one or more hazard class or division as defined in this part, with an energy storage capacity of 10 Wh or less are not subject to any other requirements of this subchapter, when they are capable of withstanding a 1.2 m (3.9 feet) drop test unpackaged onto a rigid, non-resilient, flat and horizontal surface without loss of contents.
(e) Asymmetric capacitors containing an electrolyte that meets the definition of one or more hazard class or division as defined in this part, with an energy storage capacity of 20 Wh or less, including when configured in a module, are not subject to other provisions of this subchapter when the capacitors are capable of withstanding a 1.2 meter (3.9 feet) drop test unpackaged onto a rigid, non-resilient, flat and horizontal surface without loss of contents.
(f) Except for asymmetric capacitors, capacitors containing an electrolyte meeting the definition of one or more hazard class or division as defined in this part, that are not installed in equipment, and with an energy storage capacity of more than 10 Wh are subject to the requirements of this subchapter.
(g) Asymmetric capacitors containing an electrolyte meeting the definition of one or more hazard class or division as defined in this part, that are not installed in equipment, and with an energy storage capacity of more than 20 Wh are to the requirements of this subchapter.
(h) Capacitors installed in equipment and containing an electrolyte meeting the definition of one or more hazard class or division as defined in this part, are not subject to any other requirements of this subchapter, provided the equipment is packaged in a strong outer packaging and in such a manner as to prevent accidental functioning of the capacitors during transport. Large, robust equipment containing capacitors may be offered for transport unpackaged or on pallets when the capacitors are afforded equivalent protection by the equipment in which they are contained.
(c) Steel drums (1A1 or 1A2), aluminum drums (1B1 or 1B2), metal drums, other than steel or aluminum (1N1 or 1N2) or fiber drums (1G); steel jerricans (3A1 or 3A2) or aluminum jerricans (3B1 or 3B2); or steel boxes (4A), aluminum boxes (4B) or metal boxes, other than steel or aluminum (4N) not exceeding 220 L (58 gallons) capacity each with strong, tight inner metal cans not over 4.0 L (1 gallon) capacity each. The strong, tight metal cans must be closed by positive means, not friction.
(1) Inner packagings must have no opening exceeding 25 mm (1 inch) diameter and must be surrounded with noncombustible cushioning material.
(2) Net quantity of pyrophoric liquids may not exceed two-thirds of the rated capacity of the outer drum. For example, a 220 L (58 gallons) outer drum may contain no more than 147 L (39 gallons) of pyrophoric liquids.
(3) Each layer of inner containers must be separated by a metal plate separator in addition to cushioning material.
The revisions and additions read as follows:
(b) * * *
(6) Except for transportation by aircraft, the following rigid large packagings are authorized for a single battery, including for a battery contained in equipment, meeting provisions (b)(1) and (2) of this section and the requirements of part 178, subparts P and Q, of this subchapter at the Packing Group II level:
(i) Metal (50A, 50B, 50N);
(ii) Rigid plastic (50H);
(iii) Wooden (50C, 50D, 50F);
(iv) Rigid fiberboard (50G).
(c) Exceptions for smaller cells or batteries. Other than as specifically stated below, a package containing lithium cells or batteries, or lithium cells or batteries packed with, or contained in, equipment, that meets the conditions of this paragraph, is excepted from the requirements in subparts C through H of part 172 of this subchapter and the UN performance packaging requirements in paragraphs (b)(3)(ii) and (b)(4) of this section under the following conditions and limitations.
(1) * * *
(iii) Except when lithium metal cells or batteries are packed with or contained in equipment in quantities not exceeding 5 kg net weight, the outer package that contains lithium metal cells or batteries must be marked: “PRIMARY LITHIUM BATTERIES—FORBIDDEN FOR TRANSPORT ABOARD PASSENGER AIRCRAFT” or “LITHIUM METAL BATTERIES—FORBIDDEN FOR TRANSPORT ABOARD PASSENGER AIRCRAFT, or labeled with a CARGO AIRCRAFT ONLY” label specified in § 172.448 of this subchapter.
(4) * * *
(v) A package that exceeds the number or quantity (mass) limits in the table shown in (c)(4) is subject to all applicable requirements of this subchapter, except that a package containing no more than 2.5 kg lithium metal cells or batteries or 10 kg lithium ion cells or batteries is not subject to the UN performance packaging requirements in paragraphs (b)(3)(ii) of this section when the package displays both the lithium battery handling mark and the Class 9 label.
(f) * * *
(3) Each inner packaging must be individually placed in one of the following packagings meeting the applicable requirements of part 178, subparts L, M, P and Q of this subchapter at the Packing Group I level:
(i) Metal (4A, 4B, 4N), wooden (4C1, 4C2, 4D, 4F), or solid plastic (4H2) box;
(ii) Metal (1A2, 1B2, 1N2), plywood (1D), or plastic (1H2) drum; or
(iii) Except for transportation by aircraft, for a single large battery or for a single battery contained in equipment, the following rigid large packagings are authorized:
(A) Metal (50A, 50B, 50N);
(B) Rigid plastic (50H);
(C) Plywood (50D); and
(a) * * *
(5) The following square-on-point mark must be displayed on the outer packaging on a background of contrasting color. The width of the line forming the border must be at least 2 mm (0.08 inches) and the letters and numbers must be at least 6 mm (0.24 inches) high. The size of the mark must be such that no side of the diamond is less than 50 mm (1.97 inches) in length as measured from the outside of the lines forming the border. The proper shipping name “Biological substances, Category B” must be marked on the outer packaging adjacent to the diamond-shaped mark in letters that are at least 6 mm (0.24 inches) high.
(i)
(ii) For domestic transportation, a packaging marked prior to January 1, 2017 and in conformance with the requirements of this paragraph in effect on December 31, 2014, may continue in service until the end of its useful life.
(g) * * *
Note: 1. “Corrosive” subsidiary risk placard is required.
(a) Packagings for non-bulk shipments of Ammonium nitrate emulsions, suspensions and gels must conform to the general packaging requirements of subpart B of part 173, to the requirements of part 178 of this subchapter at the Packing Group I or II performance level, and the requirements of the special provisions of column 7 of the § 172.101 table.
(1) The following combination packagings are authorized:
Outer packagings:
Drums: 1B2, 1G, 1N2, 1H2 or 1D
Boxes: 4B, 4C1, 4C2, 4D, 4G or 4H2
Jerricans: 3B2 of 3H2
Glass, plastic or metal inner receptacles
(2) For combination packagings, the capacity of each inner packaging must not exceed 5 liters (1.3 gallons) and the maximum authorized net weight of each outer packaging must not exceed 125 kg (275 pounds).
(3) The following single packagings are authorized:
Drums: 1B1, 1B2, 1H1 or 1H2 with a maximum capacity of 250 liters (66 gallons).
Jerricans: 3B1, 3B2, 3H1 or 3H2 with a maximum capacity of 60 liters (15.9 gallons).
Plastic receptacle in aluminum, fiber, plastic or plywood drum: 6HB1, 6HG1, 6HH1 or 6HD1with the outer drum having a maximum capacity of 250 liters (66 gallons).
Plastic receptacle in aluminum wood, plywood, fiberboard, or solid plastic box: 6HB2, 6HC, 6HD2, 6HG2, or 6HH2 with the outer box having a maximum capacity of 60 liters (15.9 gallons).
Glass receptacle in aluminum, fiber, or plywood drum: 6PB1, 6PF1 or 6PD1 with the outer drum having a maximum capacity of 60 liters (15.9 gallons).
Glass receptacle in expanded plastic or solid plastic packaging: 6PH1 or 6PH2 with the outer packaging having a maximum capacity of 60 liters (15.9 gallons).
Glass receptacle in aluminum, wood, or fiberboard box, or wickerwork hamper: 6PB2, 6PC, 6PG2 or 6PD2 with the outer box or hamper having a maximum capacity of 60 liters (15.9 gallons).
(b) [Reserved]
When § 172.101 of this subchapter specifies that a hazardous material be packaged under this section, only the following bulk packagings are authorized, subject to the requirements of subparts A and B of part 173 of this subchapter and the special provisions specified in column 7 of the § 172.101 table.
(a)
(1) The IBC type is authorized according to the IBC packaging code for the specific hazardous material in Column (7) of the § 172.101 Table;
(2) The IBC conforms to the requirements in subpart O of part 178 of this subchapter at the Packing Group performance level in Column (5) of the § 172.101 Table for the material being transported.
(b) [Reserved]
(c)
(2) * * *
(ii) By equipping the UN pressure receptacle with a valve cap conforming to the requirements in ISO 11117:2008 and Technical Corrigendum 1 (IBR, see § 171.7 of this subchapter). Until December 31, 2014, the manufacture of a valve cap conforming to the requirements in ISO 11117:1998 (IBR, see § 171.7 of this subchapter) is authorized. The cap must have vent-holes of sufficient cross-sectional area to evacuate the gas if leakage occurs at the valve;
(iii) By protecting the valves by shrouds or guards conforming to the requirements in ISO 11117:2008 and Technical Corrigendum 1 (IBR;
(a)
(2)
(a) A cylinder filled with an adsorbed gas must be offered for transportation in UN pressure receptacles subject to the requirements in this section and § 173.302, as well as, §§ 173.301 and 173.301b.
(b) The pressure of each filled cylinder must be less than 101.3 kPa at 20 °C (68 °F) and must not exceed 300 kPa at 50 °C (122 °F).
(c) The minimum test pressure of the cylinder must be 21 bar.
(d) The minimum burst pressure of the cylinder must be 94.5 bar.
(e) The internal pressure at 65 °C (149 °F) of the filled cylinder must not exceed the test pressure of the cylinder.
(f) The adsorbent material must be compatible with the cylinder and must not form harmful or dangerous compounds with the gas to be adsorbed. The gas in combination with the adsorbent material must not affect or weaken the cylinder or cause a dangerous reaction (
(g) The quality of the adsorbent material must be verified at the time of each fill to assure the pressure and chemical stability requirements of this section are met each time an adsorbed gas package is offered for transport.
(h) The adsorbent material must not meet the definition of any other hazard class.
(i) Cylinders and closures containing toxic gases with an LC50 less than or equal to 200 ml/m3 (ppm) (see the following Adsorbed Gases Table) must meet the following requirements:
(1) Valve outlets must be fitted with pressure retaining gas-tight plugs or caps having threads matching those of the valve outlets.
(2) Each valve must either be of the packless type with non-perforated diaphragm, or be of a type which
(3) Each cylinder and closure must be tested for leakage after filling.
(4) Each valve must be capable of withstanding the test pressure of the cylinder and be directly connected to the cylinder by either a taper-thread or other means which meets the requirements of ISO 10692-2 (IBR, see § 171.7 of this subchapter); and
(5) Cylinders and valves must not be fitted with a pressure relief device.
(j) Valve outlets for cylinders containing pyrophoric gases must be fitted with gas-tight plugs or caps having threads matching those of the valve outlets.
(k) The filling procedure must be in accordance with Annex A of ISO 11513 (IBR, see § 171.7 of this subchapter).
(l) The maximum period for periodic requalification must be in accordance with § 180.207(c) of this subchapter.
(a) * * *
(5) Manufactured articles or apparatuses, other than light bulbs each containing not more than 100 mg (0.0035 ounce) of inert gas and packaged so that the quantity of inert gas per package does not exceed 1 g (0.35 ounce).
(6) Light bulbs (lamps) conforming to the requirements of § 173.11.
This section applies to portable fire extinguishers for manual handling and operation, fire extinguishers for installation in aircraft, and large fire extinguishers.
(e) Large fire extinguishers may be transported while unpackaged under the following conditions:
(1) The requirements of § 173.24(b) are met;
(2) The valves are protected in accordance with § 173.301(c)(2)(i), (ii), (iii) or (v); and
(3) Other equipment mounted on the fire extinguisher is protected to prevent accidental activation.
* * *
(d) Uranium hexafluoride not exceeding the limits specified in the limited quantity package limits column of table 4 in § 173.425 may be classified as UN 3507, Uranium hexafluoride, radioactive material, excepted package, less than 0.1 kg (0.22 pounds) per package, non-fissile or fissile-excepted, provided that:
(1) The mass of uranium hexafluoride in the package is less than 0.1 kg (0.22 pounds); and
(2) The conditions of §§ 173.24, 173.24a, 173.421(a)(1) and (a)(4) are met.
(d) Any foreign-made packaging that meets the standards in the ” IAEA Regulations for the Safe Transport of Radioactive Material, SSR-6” (IBR, see § 171.7 of this subchapter) and bears the marking “Type A”. Such packagings may be used for domestic and export shipments of Class 7 (radioactive) materials provided the offeror obtains the applicable documentation of tests and engineering evaluations and maintains the documentation on file in accordance with paragraph (a) of this section. These packagings must conform with requirements of the country of origin (as indicated by the packaging marking) and the IAEA regulations applicable to Type A packagings.
(b) Any Type B(U) or B(M) packaging that meets the applicable requirements in “IAEA Regulations for the Safe Transport of Radioactive Material, SSR-6” (IBR, see § 171.7 of this subchapter) and for which the foreign Competent Authority Certificate has been revalidated by DOT pursuant to § 173.473. These packagings are authorized only for export and import shipments.
(a) * * *
(1) * * *
(iii) Any Type AF, Type B(U)F, or Type B(M)F packaging that meets the applicable requirements for fissile material packages in Section VI of the International Atomic Energy Agency “Regulations for the Safe Transport of Radioactive Material, SSR-6 (IBR, see § 171.7 of this subchapter),” and for which the foreign Competent Authority certificate has been revalidated by the U.S. Competent Authority, in accordance with § 173.473. These packages are authorized only for export and import shipments.
(b) * * *
(2) Type B(U) or Type B(M) packaging that also meets the applicable requirements for fissile material packaging in Section VI of the International Atomic Energy Agency “Regulations for the Safe Transport of Radioactive Material, SSR-6,” and for which the foreign Competent Authority certificate has been revalidated by the U.S. Competent Authority in accordance with § 173.473. These packagings are authorized only for import and export shipments; or
(a) In addition to the tests prescribed in § 173.465, Type A packagings designed for liquids and gases must be capable of withstanding the following tests in this section. The tests are successful if the requirements of § 173.412(k) are met.
(1)
(2)
In addition to other applicable requirements of this subchapter, each offeror of a foreign-made Type B(U), Type B(M), Type C, Type CF, Type H(U), Type H(M), or fissile material package for which a Competent Authority Certificate is required by IAEA's “Regulations for the Safe Transport of Radioactive Material, SSR-6, ” (IBR, see § 171.7 of this subchapter) shall also comply with the following requirements:
(a) * * *
(1) Have the foreign competent authority certificate revalidated by the U.S. Competent Authority, unless this has been done previously. Each request for revalidation must be in triplicate, contain all the information required by Section VIII of the IAEA regulations in “IAEA Regulations for the Safe Transport of Radioactive Material, SSR-6” (IBR, see § 171.7 of this subchapter), and include a copy in English of the foreign competent authority certificate. The request and accompanying documentation must be sent to the Associate Administrator for Hazardous Materials Safety (PHH-23), Department of Transportation, East Building, 1200 New Jersey Avenue SE., Washington, DC 20590-0001. Alternatively, the request with any attached supporting documentation submitted in an appropriate format may be sent by facsimile (fax) to (202) 366-3753 or (202) 366-3650, or by electronic mail to
49 U.S.C. 5101-5128, 44701; 49 CFR 1.81 and 1.97.
(b) * * *
(6) Hazardous materials that are loaded and carried on or in cargo only aircraft, and that are to be dispensed or expended during flight for weather control, environmental restoration or protection, forest preservation and protection, firefighting and prevention, flood control, avalanche control, landslide clearance, or ice jam control purposes, when the following requirements are met:
(v) When Division 1.1, 1.2, and 1.3 materials (except detonators and detonator assemblies) and detonators or detonator assemblies are carried for avalanche control, landslide clearance, or ice jam control flights, the explosives must be handled by, and at all times be under the control of, a qualified blaster. When required by a State or local authority, the blaster must be licensed and the State or local authority must be identified in writing to the FAA Principal Operations Inspector assigned to the operator.
a. Paragraphs (a)(11) and (24) are revised;
b. Paragraphs (a)(18)(iii) and (iv) are added.
The revisions and additions read as follows:
(a) * * *
(11) A single self-inflating personal safety device such as a life jacket or vest fitted with no more than two small gas cartridges (containing no hazardous material other than a Div. 2.2 gas) for inflation purposes plus no more than two spare cartridges. The personal safety device and spare cartridges may be carried in carry-on or checked baggage, with the approval of the aircraft operator, and must be packed in such a manner that it cannot be accidently activated.
(18) * * *
(iii) For a non-spillable battery, the battery and equipment must conform to § 173.159a(d). Each battery must not exceed a voltage greater than 12 volts and a watt-hour rating of not more than 100 Wh. No more than two individually protected spare batteries may be carried. Such equipment and spare batteries must be carried in checked or carry-on baggage.
(iv) Articles containing lithium metal or lithium ion cells or batteries the primary purpose of which is to provide power to another device must be carried as spare batteries in accordance with the provisions of this paragraph.
(24) Small cartridges fitted into devices with no more than four small cartridges of carbon dioxide or other suitable gas in Division 2.2, without subsidiary risk with the approval of the operator. The water capacity of each cartridge must not exceed 50 mL (equivalent to a 28 g cartridge).
(a) * * *
(b)
(c)
The revision reads as follows:
(a) * * *
(1) * * *
(i) Section 172.101 of this subchapter. Except for the requirement to indicate the type of package or technical name, any additional description requirements provided in §§ 172.202, and 172.203 of this subchapter must also be shown on the notification.
(c) An aircraft in which Class 7 (radioactive) material has been released must be taken out of service and may not be returned to service or routinely occupied until the aircraft is checked for radioactive substances and it is determined that any radioactive substances present do not meet the definition of radioactive material, as defined in § 173.403 of this subchapter, and it is determined in accordance with § 173.443 of this subchapter that the dose rate at every accessible surface must not exceed 0.005 mSv per hour (0.5 mrem per hour) and there is no significant removable surface contamination.
49 U.S.C. 5101-5128; 49 CFR 1.81 and 1.97.
(b) Hazardous materials in limited quantities when loaded in transport vehicles and freight containers, are excepted from the segregation requirements of this subpart and any additional segregation specified in this subchapter for transportation by vessel; except that articles of division 1.4, compatibility group S, shall not be stowed in the same compartment or hold, or cargo transport unit with hazardous materials of Class 1 of compatibility groups A and L.
(i) * * *
(1) The vehicle or mechanical equipment has an internal combustion engine using liquid fuel that has a flashpoint less than 38 °C (100 °F), the fuel tank is empty, installed batteries are protected from short circuit, and the engine is run until it stalls for lack of fuel;
(2) The vehicle or mechanical equipment has an internal combustion engine using liquid fuel that has a flashpoint of 38 °C (100 °F) or higher, the fuel tank contains 450 L (119 gallons) of fuel or less, installed batteries are protected from short circuit, and there are no fuel leaks in any portion of the fuel system;
(3) The vehicle or mechanical equipment is stowed in a hold or compartment designated by the administration of the country in which the vessel is registered as specially designed and approved for vehicles and mechanical equipment and there are no signs of leakage from the battery, engine, fuel cell, compressed gas cylinder or accumulator, or fuel tank, as appropriate. For vehicles with batteries connected and fuel tanks containing gasoline transported by U.S. vessels,
(4) The vehicle or mechanical equipment is electrically powered solely by wet electric storage batteries (including non-spillable batteries) or sodium batteries and the installed batteries are protected from short circuit;
(5) The vehicle or mechanical equipment is equipped with liquefied petroleum gas or other compressed gas fuel tanks, the tanks are completely emptied of liquefied or compressed gas and the positive pressure in the tank
(6) The vehicle or mechanical equipment is powered by a fuel cell engine, the engine is protected from inadvertent operation by closing fuel supply lines or by other means, and the fuel supply reservoir has been drained and sealed.
49 U.S.C. 5101-5128; 49 CFR 1.81 and 1.97.
(a)
(d) * * *
(2) Service equipment must be configured or designed to prevent damage that could result in the release of the pressure receptacle contents during normal conditions of handling and transport. Manifold piping leading to shut-off valves must be sufficiently flexible to protect the valves and the piping from shearing or releasing the pressure receptacle contents. The filling and discharge valves and any protective caps must be secured against unintended opening. The valves must conform to ISO 10297:2006 (IBR,
(g) * * *
(1) ISO 9809-1:2010 Gas cylinders—Refillable seamless steel gas cylinders—Design, construction and testing—Part 1: Quenched and tempered steel cylinders with tensile strength less than 1100 MPa. (IBR, see § 171.7 of this subchapter). Until December 31, 2018, the manufacture of a cylinder conforming to the requirements in ISO 9809-1:1999 (IBR, see § 171.7 of this subchapter) is authorized.
(2) ISO 9809-2: Gas cylinders—Refillable seamless steel gas cylinders—Design, construction and testing—Part 2: Quenched and tempered steel cylinders with tensile strength greater than or equal to 1100 MPa. (IBR, see § 171.7 of this subchapter). Until December 31, 2018, the manufacture of a cylinder conforming to the requirements in ISO 9809-2:2000 (IBR, see § 171.7 of this subchapter) is authorized.
(3) ISO 9809-3: Gas cylinders—Refillable seamless steel gas cylinders—Design, construction and testing—Part 3: Normalized steel cylinders. (IBR,
(k) * * *
(1) * * *
(i) ISO 9809-1:2010 Gas cylinders—Refillable seamless steel gas cylinders—Design, construction and testing—Part 1: Quenched and tempered steel cylinders with tensile strength less than 1100 MPa. Until December 31, 2018, the manufacture of a cylinder conforming to the requirements in ISO 9809-1:1999 (IBR, see § 171.7 of this subchapter) is authorized.
(ii) ISO 9809-3: Gas cylinders—Refillable seamless steel gas cylinders—Design, construction and testing—Part 3: Normalized steel cylinders. Until December 31, 2018, the manufacture of a cylinder conforming to the requirements in ISO 9809-3:2000 (IBR, see § 171.7 of this subchapter) is authorized.
(n)
(o)
(1) ISO 11114-1:2012: Gas cylinders—Compatibility of cylinder and valve materials with gas contents—Part 1: Metallic materials. (IBR,
(2) ISO 11114-2: Transportable gas cylinders—Compatibility of cylinder and valve materials with gas contents—Part 2: Non-metallic materials. (IBR,
(r)
(1) The top grouping contains manufacturing marks and must appear consecutively in the sequence given in paragraphs (q)(13) through (19) of this section.
(2) The middle grouping contains operational marks described in paragraphs (q)(6) through (11) of this section.
(3) The bottom grouping contains certification marks and must appear consecutively in the sequence given in paragraphs (q)(1) through (5) of this section.
(t)
(1) The marking requirements and sequence listed in paragraphs (q)(1) through (19) of this section are required, except the markings in paragraphs (q)(8), (9), (12) and (18) are not applicable. The required serial number marking in paragraph (q)(14) may be replaced by the batch number.
(2) Each receptacle must be marked with the words “DO NOT REFILL” in letters of at least 5 mm in height.
(3) A non-refillable pressure receptacle, because of its size, may substitute the marking required by this paragraph with a label. Reduction in marking size is authorized only as prescribed in ISO 7225, Gas cylinders—Precautionary labels. (IBR,
(4) Each non-refillable pressure receptacle must also be legibly marked by stenciling the following statement: “Federal law forbids transportation if refilled-penalty up to $500,000 fine and 5 years in imprisonment (49 U.S.C. 5124).”
(u)
(2) Refillable UN bundles of cylinders must be marked clearly and legibly with certification, operational, and manufacturing marks. These marks must be permanently affixed (
(i) The UN packaging symbol;
(ii) The ISO standard, for example ISO 9809-1, used for design, construction and testing. Acetylene cylinders must be marked to indicate the porous mass and the steel shell, for example: “ISO 3807-2/ISO 9809-1”;
(iii) The mark of the country where the approval is granted. The letters “USA” must be marked on UN pressure receptacles approved by the United States. The manufacturer must obtain an approval number from the Associate Administrator. The manufacturer approval number must follow the country of approval mark, separated by a slash (for example, USA/MXXXX). Pressure receptacles approved by more than one national authority may contain the mark of each country of approval, separated by a comma;
(iv) The identity mark or stamp of the IIA;
(v) The date of the initial inspection, the year in four digits followed by the two digit month separated by a slash, for example “2006/04”;
(vi) The test pressure in bar, preceded by the letters “PH” and followed by the letters “BAR”;
(vii) For pressure receptacles intended for the transport of compressed gases and UN 1001 acetylene, dissolved, the working pressure in bar, proceeded by the letters “PW”;
(viii) For liquefied gases, the water capacity in liters expressed to three significant digits rounded down to the last digit, followed by the letter “L”. If the value of the minimum or nominal water capacity is an integer, the digits after the decimal point may be omitted;
(ix) The total mass of the frame of the bundle and all permanently attached parts (cylinders, manifolds, fittings and valves). Bundles intended for the carriage of UN 1001 acetylene, dissolved must bear the tare mass as specified in clause N.4.2 of ISO 10961:2010;
(x) The country of manufacture. The letters “USA” must be marked on cylinders manufactured in the United States;
(xi) The serial number assigned by the manufacturer; and
(xii) For steel pressure receptacles, the letter “H” showing compatibility of the steel, as specified in 1SO 11114-1.
(v)
(1) The top grouping contains manufacturing marks and must appear consecutively in the sequence given in paragraphs (u)(2)(x) through (u)(2)(xii) of this section as applicable.
(2) The middle grouping contains operational marks described in paragraphs (u)(2)(vi) through (u)(2)(ix) of this section as applicable. When the operational mark specified in paragraph (u)(2)(vii) is required, it must immediately precede the operational mark specified in paragraph (u)(2)(vi).
(3) The bottom grouping contains certification marks and must appear consecutively in the sequence given in paragraphs (u)(2)(i) through (u)(2)(v) of this section as applicable.
(d) * * *
(3) * * *
(i) ISO 9809-1: Gas cylinders—Refillable seamless steel gas cylinders—Design, construction and testing—Part 1: Quenched and tempered steel cylinders with tensile strength less than 1100 MPa. (IBR, see § 171.7 of this subchapter). Until December 31, 2018, the manufacture of a cylinder conforming to the requirements in ISO 9809-1:1999 (IBR, see § 171.7 of this subchapter) is authorized;
(ii) ISO 9809-2: Gas cylinders—Refillable seamless steel gas cylinders—Design, construction and testing—Part 2: Quenched and tempered steel cylinders with tensile strength greater than or equal to 1100 MPa. (IBR, see § 171.7 of this subchapter). Until December 31, 2018, the manufacture of a cylinder conforming to the requirements in ISO 9809-2:2000 (IBR, see § 171.7 of this subchapter) is authorized;
(iii) ISO 9809-3: Gas cylinders—Refillable seamless steel gas cylinders—Design, construction and testing—Part 3: Normalized steel cylinders. (IBR, see § 171.7 of this subchapter). Until December 31, 2018, the manufacture of a cylinder conforming to the requirements in ISO 9809-3:2000 (IBR, see § 171.7 of this subchapter) is authorized; or
(b) * * *
(7) * * *
(iii) The symbol must be a square with each side being not less than 100 mm (3.9 inches) by 100 mm (3.9 inches) as measured from the corner printer marks shown on the figures in paragraph (b)(7)(i) of this section. Where dimensions are not specified, all features must be in approximate proportion to those shown.
(A)
(B) For domestic transportation, an IBC marked prior to January 1, 2017 and in conformance with the requirements of this paragraph in effect on December 31, 2014, may continue in service until the end of its useful life.
(a) * * *
(1) * * *
(ii)
(2) * * *
(iv) For a steel Large Salvage Packaging suitable for stacking; stacking load: 2,500 kg; maximum gross mass: 1,000 kg.
(b) All Large Packagings manufactured, repaired or remanufactured after January 1, 2015 must be marked with the symbol applicable to a Large Packaging designed for stacking or not designed for stacking, as appropriate. The symbol must be a square with each side being not less than 100 mm (3.9 inches) by 100 mm (3.9 inches) as measured from the corner printer marks shown on the following figures. Where dimensions are not specified, all features must be in approximate proportion to those shown.
(1)
(2) For domestic transportation, a Large Packaging marked prior to January 1, 2017 and in conformance with the requirements of this paragraph in effect on December 31, 2014, may continue in service until the end of its useful life.
49 U.S.C. 5101-5128; 49 CFR 1.81 and 1.97.
(c) * * *
(d) * * *
(5) UN cylinders for adsorbed gases: Each UN cylinder for adsorbed gases must be inspected and tested in accordance with § 173.302c and ISO 11513:2011 (IBR, see § 171.7 of this subchapter).
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of proposed rulemaking (NOPR) and announcement of public meeting.
The Energy Policy and Conservation Act of 1975 (EPCA), as amended, prescribes energy conservation standards for various consumer products and certain commercial and industrial equipment, including several classes of commercial heating, air-conditioning, and water-heating equipment. EPCA also requires that each time the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) Standard 90.1 is amended with respect to the standard levels or design requirements applicable to that equipment, the U.S. Department of Energy (DOE) must adopt amended uniform national standards for this equipment equivalent to those in ASHRAE Standard 90.1, unless DOE determines that there is clear and convincing evidence showing that more-stringent, amended standards would be technologically feasible and economically justified, and would save a significant additional amount of energy. ASHRAE most recently amended Standard 90.1 on October 9, 2013. Based upon its analysis of the energy savings potential of amended energy conservation standards and the lack of clear and convincing evidence to support more-stringent standards, DOE is proposing to adopt the amended standards in ASHRAE Standard 90.1 for: Small three-phase commercial air-cooled air conditioners (single package only) and heat pumps (single package and split system) less than 65,000 Btu/h; water-source heat pumps; and commercial oil-fired storage water heaters. DOE is also making a proposed determination that the standards for small three-phase commercial air-cooled air conditioners (split system) do not need to be amended. Finally, DOE is proposing updates to the current Federal test procedures to incorporate by reference the most current version of the American National Standards Institute (ANSI) Z21.47,
The public meeting will be held at the U.S. Department of Energy, Forrestal Building, Room 8E-089, 1000 Independence Avenue SW., Washington, DC 20585. To attend, please notify Ms. Brenda Edwards at (202) 586-2945. Please note that foreign nationals visiting DOE Headquarters are subject to advance security screening procedures. Any foreign national wishing to participate in the meeting should advise DOE as soon as possible by contacting Ms. Edwards at the phone number above to initiate the necessary procedures. Please also note that any person wishing to bring a laptop or tablet into the Forrestal Building will be required to obtain a property pass. Visitors should avoid bringing laptops, or allow an extra 45 minutes. Persons may also attend the public meeting via webinar. For more information, refer to section X, “Public Participation,” near the end of this document.
Due to the REAL ID Act implemented by the Department of Homeland Security (DHS), there have been recent changes regarding identification (ID) requirements for individuals wishing to enter Federal buildings from specific States and U.S. territories. As a result, driver's licenses from the following States or territory will not be accepted for building entry, and instead, one of the alternate forms of ID listed below will be required.
DHS has determined that regular driver's licenses (and ID cards) from the following jurisdictions are not acceptable for entry into DOE facilities: Alaska, American Samoa, Arizona, Louisiana, Maine, Massachusetts, Minnesota, New York, Oklahoma, and Washington.
Acceptable alternate forms of Photo-ID include: U.S. Passport or Passport Card; an Enhanced Driver's License or Enhanced ID-Card issued by the States of Minnesota, New York or Washington (Enhanced licenses issued by these States are clearly marked Enhanced or Enhanced Driver's License); a military ID or other Federal government-issued Photo-ID card.
1.
2.
3.
4.
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to Office of Energy Efficiency and Renewable Energy through the methods listed above and by email to
No telefacsimilies (faxes) will be accepted. For detailed instructions on submitting comments and additional
A link to the docket Web page can be found at:
For further information on how to submit a comment, review other public comments and the docket, or participate in the public meeting, contact Ms. Brenda Edwards at (202) 586-2945 or by email:
Ms. Ashley Armstrong, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-6590. Email:
Mr. Eric Stas, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-9507. Email:
For information on how to submit or review public comments, contact Ms. Brenda Edwards at (202) 586-2945 or by email:
DOE proposes to incorporate by reference the following industry standards into 10 CFR 431.76:
• ANSI Z21.47-2012, “
Copies of ANSI Z21.47-2012 can be obtained from
• ASHRAE Standard 103-2007, sections 7.2.2.4, 7.8, 9.2, and 11.3.7, “Method of Testing for Annual Fuel Utilization Efficiency of Residential Central Furnaces and Boilers,” ANSI approved on March 25, 2008.
Copies of ASHRAE Standard 103-2007 can be obtained from
Title III, Part C
Accordingly, this NOPR sets forth DOE's determination of scope for consideration of amended energy conservation standards with respect to certain heating, ventilating, air-conditioning, and water-heating equipment addressed in ASHRAE Standard 90.1-2013. Such inquiry is necessary to ascertain whether the revised ASHRAE efficiency levels have become more stringent, thereby ensuring that any new amended national standard would not result in prohibited “backsliding.” For those equipment classes for which ASHRAE set more-stringent efficiency levels
DOE has tentatively concluded that for three classes of small three-phase air-cooled air conditioners and heat pumps less than 65,000 Btu/h, three classes of water-source heat pumps, and one class of commercial oil-fired storage water heaters: (1) The revised efficiency levels in ASHRAE 90.1-2013
It is noted that DOE's regulations currently have a single equipment class for small, three-phase commercial air-cooled air conditioners less than 65,000 Btu/h, which covers both split-system and single-package models. Although ASHRAE Standard 90.1-2013 did not amend standard levels for the split-system models within that equipment class, it did so for the single-package models. Given this split, DOE is proposing to once again separate these two types of equipment into separate equipment classes. In the NOPR, DOE is proposing to evaluate amended standards for split-system models under the six-year-lookback provision at 42 U.S.C. 6313(a)(6)(C). Following this evaluation, DOE has tentatively concluded that there is not clear and convincing evidence that would justify adoption of more-stringent efficiency levels for small three-phase split-system air-cooled air conditioners less than 65,000 Btu/h, where the efficiency level in ASHRAE 90.1-2013 is the same as the current Federal energy conservation standards.
Thus, in accordance with the criteria discussed elsewhere in this document, DOE is proposing amended energy conservation standards for three classes of small three-phase air-cooled air conditioners and heat pumps less than 65,000 Btu/h, three classes of water-source heat pumps, and one class of commercial oil-fired storage water heaters by adopting the efficiency levels specified by ASHRAE Standard 90.1-2013, as shown in Table I.1. The proposed standards, if adopted, would apply to all equipment listed in Table I.1 and manufactured in, or imported into, the United States on or after the date two years after the effective date specified in ASHRAE Standard 90.1-2013 (
In addition, when the generally accepted industry test procedures referenced in ASHRAE Standard 90.1 are updated, EPCA requires DOE to amend the DOE test procedures for the relevant type(s) of ASHRAE equipment (which manufacturers are required to use in order to certify compliance with energy conservation standards mandated under EPCA) to be consistent with the amended industry test procedure. (42 U.S.C. 6314(a)(4)(B)) DOE typically incorporates such industry test standards by reference, unless it determines they would not meet the requirements of 42 U.S.C. 6314(a)(2) and (3). Specifically, the amendments in this NOPR would update the citations and incorporations by reference in DOE's regulations to the most recent version of American National Standards Institute (ANSI) Z21.47,
Additionally, EISA 2007 amended EPCA to require that at least once every 7 years, DOE must conduct an evaluation of the test procedures for all covered equipment and either amend test procedures (if the Secretary determines that amended test procedures would more accurately or fully comply with the requirements of 42 U.S.C. 6314(a)(2)-(3)) or publish notice in the
The following section briefly discusses the statutory authority underlying this proposal, as well as some of the relevant historical background related to the establishment of standards for small three-phase air-cooled air conditioners and heat pumps less than 65,000 Btu/h, water-source heat pumps, and commercial oil-fired storage water heaters.
Title III, Part C
EPCA contains mandatory energy conservation standards for commercial heating, air-conditioning, and water-heating equipment. (42 U.S.C. 6313(a)) Specifically, the statute sets standards for small, large, and very large commercial package air-conditioning and heating equipment, packaged terminal air conditioners (PTACs), packaged terminal heat pumps (PTHPs), warm-air furnaces, packaged boilers, storage water heaters, instantaneous water heaters, and unfired hot water storage tanks.
In acknowledgement of technological changes that yield energy efficiency benefits, the U.S. Congress further directed DOE through EPCA to consider amending the existing Federal energy conservation standard for each type of equipment listed, each time ASHRAE Standard 90.1 is amended with respect to such equipment. (42 U.S.C. 6313(a)(6)(A)) For each type of equipment, EPCA directs that if ASHRAE Standard 90.1 is amended,
AEMTCA also modified EPCA to specify that any amendment to the design requirements with respect to the ASHRAE equipment would trigger DOE review of the potential energy savings under U.S.C. 6313(a)(6)(A)(i). Additionally, AEMTCA amended EPCA to require that if DOE proposes an amended standard for ASHRAE equipment at levels more stringent than those in ASHRAE Standard 90.1, DOE, in deciding whether a standard is economically justified, must determine, after receiving comments on the proposed standard, whether the benefits of the standard exceed its burdens by considering, to the maximum extent practicable, the following seven factors:
(1) The economic impact of the standard on manufacturers and consumers of the products subject to the standard;
(2) The savings in operating costs throughout the estimated average life of the product in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses of the products likely to result from the standard;
(3) The total projected amount of energy savings likely to result directly from the standard;
(4) Any lessening of the utility or the performance of the products likely to result from the standard;
(5) The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the standard;
(6) The need for national energy conservation; and
(7) Other factors the Secretary considers relevant.
(42 U.S.C. 6313(a)(6)(B)(ii))
EPCA also requires that if a test procedure referenced in ASHRAE Standard 90.1 is updated, DOE must update its test procedure to be consistent with the amended test procedure in ASHRAE Standard 90.1, unless DOE determines that the amended test procedure is not reasonably designed to produce test results that reflect the energy efficiency, energy use, or estimated operating costs of the ASHRAE equipment during a representative average use cycle. In addition, DOE must determine that the amended test procedure is not unduly burdensome to conduct. (42 U.S.C. 6314(a)(2) and(4))
Additionally, EISA 2007 amended EPCA to require that at least once every 7 years, DOE must conduct an
On October 9, 2013 ASHRAE officially released and made public ASHRAE Standard 90.1-2013. This action triggered DOE's obligations under 42 U.S.C. 6313(a)(6), as outlined previously.
EPCA, as codified, also contains what is known as an “anti-backsliding” provision, which prevents the Secretary from prescribing any amended standard that either increases the maximum allowable energy use or decreases the minimum required energy efficiency of a covered product. (42 U.S.C. 6313(a)(6)(B)(iii)(I)) Also, the Secretary may not prescribe an amended or new standard if interested persons have established by a preponderance of the evidence that such standard would likely result in the unavailability in the United States of any covered product type (or class) of performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as those generally available in the United States at the time of the Secretary's finding. (42 U.S.C. 6313(a)(6)(B)(iii)(II)(aa))
Further, EPCA, as codified, establishes a rebuttable presumption that a standard is economically justified if the Secretary finds that the additional cost to the consumer of purchasing a product complying with an energy conservation standard level will be less than three times the value of the energy (and, as applicable, water) savings during the first year that the consumer will receive as a result of the standard, as calculated under the applicable test procedure.
Additionally, when a type or class of covered equipment such as ASHRAE equipment, has two or more subcategories, DOE often specifies more than one standard level. DOE generally will adopt a different standard level than that which applies generally to such type or class of products for any group of covered products that have the same function or intended use if DOE determines that products within such group: (A) Consume a different kind of energy from that consumed by other covered products within such type (or class); or (B) have a capacity or other performance-related feature which other products within such type (or class) do not have and which justifies a higher or lower standard. In determining whether a performance-related feature justifies a different standard for a group of products, DOE generally considers such factors as the utility to the consumer of the feature and other factors DOE deems appropriate. In a rule prescribing such a standard, DOE includes an explanation of the basis on which such higher or lower level was established. DOE plans to follow a similar process in the context of this rulemaking.
As noted previously, ASHRAE released a new version of ASHRAE Standard 90.1 on October 9, 2013. The ASHRAE standard addresses efficiency levels for many types of commercial heating, ventilating, air-conditioning (HVAC), and water-heating equipment covered by EPCA. ASHRAE Standard 90.1-2013 revised its efficiency levels for certain commercial equipment, but for the remaining equipment, ASHRAE left in place the preexisting levels (
Table II.1 presents the equipment classes (and corresponding efficiency levels) for which efficiency levels in ASHRAE Standard 90.1-2013 (for metrics included in Federal energy conservation standards) differed from those in the previous version of ASHRAE Standard 90.1 (
DOE notes that ASHRAE 90.1-2013 also increased integrated energy efficiency ratio (IEER) levels for additional equipment not listed in Table II.1, including small, large, and very large air-cooled and water-cooled air conditioners and heat pumps. However, because current Federal energy conservation standards for this equipment do not use IEER as a rating metric, DOE is not triggered to review this equipment. In September 2014, DOE published a notice of proposed rulemaking (NOPR) for commercial air-cooled equipment. 79 FR 58948 (Sept. 30, 2014). In the NOPR, DOE proposed amended standards for small, large, and very large air-cooled commercial air conditioners and heat pumps based on IEER as the energy efficiency descriptor. Should DOE finalize new standards using IEER as the metric, future increases in IEER levels in ASHRAE Standard 90.1 as compared to the Federal energy conservation standards would trigger DOE to review its efficiency levels for that equipment.
On April 11, 2014, DOE published a notice of data availability (April 2014 NODA) in the
In addition, DOE presented a discussion in the April 2014 NODA of the changes found in ASHRAE Standard 90.1-2013.
As a result of the preliminary determination of scope set forth in the April 2014 NODA, DOE found that there were equipment types for which ASHRAE increased the efficiency levels (thereby triggering further analysis) including: (1) Three classes of small three-phase air-cooled air conditioners and heat pumps less than 65,000 Btu/h; (2) three classes of small water-source heat pumps; (3) six classes of single package vertical units; (4) three classes of packaged terminal air conditioners; and (5) commercial oil-fired storage water heaters. 79 FR 20114, 20119-23 (April 11, 2014). DOE presented its methodology, data, and results for the preliminary energy savings analysis developed for these equipment classes in the April 2014 NODA for public comment. 79 FR 20114, 20125-38 (April 11, 2014).
In response to its request for comment on the April 2014 NODA, DOE received 11 comments from manufacturers, trade associations, utilities, and energy efficiency advocates. Commenters included: First Co.; Lennox International Inc.; National Comfort Products (NCP); Earthjustice; Goodman Global, Inc.; California Investor-Owned Utilities (CA IOUs); GE Appliances; a group including Appliance Standards Awareness Project (ASAP), the American Council for an Energy-Efficient Economy (ACEEE), the Natural Resources Defense Council (NRDC), and the Northwest Energy Efficiency Alliance (jointly referred to as the Advocates); Daikin Applied; Edison Electric Institute (EEI); and the Air-conditioning, Heating, and Refrigeration Institute (AHRI). As discussed previously, these comments are available in the docket for this rulemaking and may be reviewed as described in the
DOE received numerous comments regarding whether it should, in general, adopt levels contained in ASHRAE standard 90.1-2013 as the Federal energy conservation standard, rather than more-stringent levels. Several commenters stated that DOE should follow ASHRAE's lead (
On the other hand, the Advocates and CA IOUs commented that significant, non-trivial energy savings would be achievable by adopting higher efficiency levels than those in ASHRAE 90.1-2013 for the equipment classes analyzed in the NODA, at least when considered in aggregate. (Advocates, No. 21 at p. 1; CA IOUs, No. 19 at pp. 2-3) The commenters provided justifications for adopting higher efficiency levels for specific equipment classes; these details are discussed in the relevant sections of this NOPR.
In response to the submitted comments, DOE notes that it makes decisions about whether to adopt levels in ASHRAE 90.1-2013 or higher efficiency levels based on application of the statutory criteria to potential standard levels for individual equipment types (per its mandate under EPCA), rather than upon some general assessment of perceived benefits of a shorter process by adopting the ASHRAE levels or any other reason. Specifically, EPCA directs that if ASHRAE Standard 90.1 is amended, DOE must adopt amended energy conservation standards at the new efficiency level in ASHRAE Standard 90.1, unless clear and convincing evidence supports a determination that adoption of a more-stringent level as a national standard would produce significant additional energy savings and be technologically feasible and economically justified. (42 U.S.C. 6313(a)(6)(A)(ii)) In order to determine if more-stringent efficiency levels would meet EPCA's criteria, DOE must review the efficiency levels in ASHRAE Standard 90.1-2013 and more-stringent efficiency levels for their energy savings and economic potentials irrespective of whether the efficiency levels were part of a consensus standards process. The specific rationale for DOE's decisions for each equipment type can be found in the relevant sections of this document.
AHRI also lodged several complaints regarding the analyses described in the April 2014 NODA. AHRI stated that DOE's analysis ignored the energy savings from changes ASHRAE implemented even before Standard 90.1-2013 was published. For example, AHRI argued that ASHRAE's water-source heat pump level was developed in 2011, adopted in 2012, and took effect immediately. (AHRI, No. 24 at p. 2) Thus, the products have been providing energy savings for at least 2 years. (
In response, DOE only takes into account energy savings that result from adoption of a Federal standard, not from adoption of an industry standard such as ASHRAE Standard 90.1. However, DOE did take the savings gap into account in the April 2014 NODA by using an analysis period of 30 years beginning with 2015 or 2017 for the ASHRAE level, and a shorter analysis period beginning in 2020 but with the same end date for efficiency levels higher than ASHRAE. As part of any rulemaking triggered by ASHRAE, DOE follows EPCA's mandate by only addressing energy savings in the NODA and analyzing technological feasibility and economic justification in the NOPR where the potential for energy savings appears to be significant. DOE further notes that it can only take credit for savings from mandatory Federal standards and, therefore, cannot take credit for early adoption of ASHRAE Standard 90.1 levels prior to the compliance date of the corresponding DOE standard when evaluating any decision to amend DOE standards. DOE commends ASHRAE's action to amend Standard 90.1, as well as any early adoption of these levels by manufacturers to improve commercial equipment efficiency and to reduce national energy use. DOE strives to consider such early adoption in its analysis to the extent that further energy savings associated with DOE's adoption of either the ASHRAE 90.1 standard level or a more-stringent standard level would be negated or reduced. In other words, DOE seeks to determine any shifts in the baseline prior to adoption of amended DOE standards, thereby allowing for a more accurate assessment of energy savings. See section V.F.3 for more information regarding efficiency distributions of equipment shipments that allow proper consideration of the energy savings generated specifically by DOE's potential actions.
As discussed previously, before beginning an analysis of the potential economic impacts and energy savings that would result from adopting the efficiency levels specified by ASHRAE Standard 90.1-2013 or more-stringent efficiency levels, DOE first sought to determine whether or not the ASHRAE Standard 90.1-2013 efficiency levels actually represented an increase in efficiency above the current Federal standard levels. This section discusses each equipment class for which the ASHRAE Standard 90.1-2013 efficiency level differs from the current Federal standard level, along with DOE's preliminary conclusion as to the action DOE is taking with respect to that equipment. (Once again, DOE notes that ASHRAE Standard 90.1-2013 did not change any of the design requirements for the commercial HVAC and water-heating equipment covered by EPCA, so DOE is not conducting further analysis in the sections below on that basis.)
EPCA, as amended, defines “commercial package air conditioning and heating equipment” as air-cooled, evaporatively-cooled, water-cooled, or water-source (not including ground water-source) electrically operated, unitary central air conditioners and central air conditioning heat pumps for commercial use. (42 U.S.C. 6311(8)(A); 10 CFR 431.92) EPCA also defines “small,” “large,” and “very large” commercial package air conditioning and heating equipment based on the equipment's rated cooling capacity. (42 6311(8)(B)-(D); 10 CFR 431.92) “Small commercial package air conditioning and heating equipment” means equipment rated less than 135,000 Btu per hour (cooling capacity). (42 U.S.C. 6311(8)(B); 10 CFR 431.92) “Large commercial package air conditioning and heating equipment” means equipment rated at or above 135,000 Btu per hour and less than 240,000 Btu per hour (cooling capacity). (42 U.S.C. 6311(8)(C); 10 CFR 431.92) “Very large commercial package air conditioning and heating equipment” means equipment rated at or above 240,000 Btu per hour and less than 760,000 Btu per hour (cooling capacity). (42 U.S.C. 6311(8)(D); 10 CFR 431.92)
The current Federal energy conservation standards for the three
Because ASHRAE increased the standard for only single package air conditioners, and increased the HSPF level to a more stringent level for split system heat pumps than for single package heat pumps, in the April 2014 NODA, DOE proposed to consider separate equipment classes for single package and split system equipment in the overall equipment classes of small commercial package air conditioners and heat pumps (air-cooled, three-phase) less than 65,000 Btu/h, as existed prior to codification of EISA 2007, and requested comment on this issue.
In response, AHRI, Goodman Global, and Lennox International agreed that DOE should re-create separate classes for split system and single package equipment with input ratings less than 65,000 Btu/h. (AHRI, No. 24 at p. 2; Goodman Global, Inc., No. 18 at p. 2; Lennox International Inc., No. 15 at p. 5) The CA IOUs instead preferred having only two equipment classes, one for air conditioners, and one for heat pumps, with identical levels across single package and split system equipment. (CA IOUs, No. 19 at p. 4) In order to facilitate following the statutory requirements of the ASHRAE trigger, in this NOPR, DOE continues to propose the re-creation of separate equipment classes.
With regard to split system three-phase air conditioners, Earthjustice stated that standards must be reviewed, if not under the ASHRAE trigger, then under the six-year look back, as the clock will expire next year. (Earthjustice, No. 17 at pp. 1-2) Specifically, Earthjustice opined that ASHRAE has amended the Standard 90.1 levels for air‐cooled, three‐phase air‐conditioners less than 65,000 Btu/h by increasing the required SEER levels for single package air conditioners and all heat pump units. The fact that ASHRAE did not also increase the Standard 90.1‐required SEER level for split system air conditioners in this equipment class does not insulate split system units from DOE's obligation to consider amended standards. The “more stringent” standard that EPCA obliges DOE to consider for this equipment class may be one that, for example, applies a SEER 14 level (or a higher SEER level) to all air‐cooled 3‐phase air-conditioners less than 65,000 Btu/h (see 42 U.S.C. 6313(a)(6)(A)(ii)(II)). (Earthjustice, No. 17 at p. 1) In addition, more than six years have elapsed since EISA 2007 amended the standards for the split system air conditioners at issue, and even if the 6‐year clock began to run only when DOE incorporated the EISA 2007 levels into the Code of Federal Regulations, the time limit for DOE's review will expire next year.
In response, DOE initially notes that EPCA's trigger regarding ASHRAE equipment is tied to the equipment that ASHRAE acts to amend. (42 U.S.C. 6313(a)(6)(A)) In this case, DOE was triggered for 3-phase air-cooled single-package air conditioners less than 65,000 Btu/h, but not the split-system variant, even though both types of units were included in a more comprehensive DOE equipment class. As noted previously, DOE is acting to prevent confusion by proposing to re-create separate product classes for the two types of systems. However, DOE has decided to now consider amended standards for 3-phase air-cooled split-system air conditioners less than 65,000 Btu/h under its 6-year look back authority. (42 U.S.C. 6313(a)(6)(C)(i)) It is worth noting that DOE did not consider ASHRAE's single-package air conditioner level of 14 SEER as the default adoption value for split-system air conditioners. Instead, DOE is treating those as a separate equipment class and has reviewed the adoption of 14 SEER for split-system air conditioners as a level more stringent than ASHRAE that must result in significant additional conservation of energy and be technologically feasible and economically justified.
In the April 2014 NODA, DOE conducted an analysis of the potential energy savings due to amended standards for single-package air conditioners and single-package and split-system heat pumps (air-cooled, three-phase, less than 65,000 Btu/h). At that time, DOE did not conduct an analysis of the potential energy savings for split-system air conditioners, but it added it to the analysis performed for this NOPR.
In response to the April 2014 NODA, Goodman Global supported the ASHRAE levels for small air-cooled air conditioners and heat pumps so that single-phase and three-phase products would have the same minimum efficiencies, which is a reduced burden. (Goodman Global, Inc., No. 17 at p. 4) Goodman Global added that it does not believe higher values than ASHRAE Standard 90.1-2013 could be justified from a simple payback perspective. (
Upon reviewing the results of the potential energy savings analysis in the April 2014 NODA, DOE agrees with the Advocates and the CA IOUs that additional significant energy savings are possible and has conducted additional economic analysis on this equipment. However, after analysis, DOE has tentatively determined that efficiency levels higher than those in ASHRAE Standard 90.1-2013 are not economically justified for any of the four equipment classes and is proposing in this NOPR to adopt the energy efficiency levels contained in ASHRAE Standard 90.1-2013 for small air-cooled commercial package air conditioning and heating equipment less than 65,000 Btu/h (see section VIII.D.1). For split system air conditioners, DOE is not updating standards, as the ASHRAE levels are equal to the current Federal minimum.
For small commercial three-phase equipment less than 65,000 Btu/h, the CA IOUs stated that DOE should consider including the energy efficiency ratio (EER) metric, along with SEER, to align more closely with industry standards. (CA IOUs, No. 0019 at p. 3-4) The commenter noted that original equipment manufacturers would use both metrics when rating a unit. The CA IOUs also commented that the SEER metric is based on residential use patterns and, by itself, may not be appropriate to characterize energy use in nonresidential buildings. According to the commenter, full-load EER better approximates performance during peak loading conditions. (
In response, DOE does not have authority to adopt multiple metrics for a single equipment class. Pursuant to 42U.S.C. 6313(a)(6), the Secretary has authority to amend the energy conservation standards for specified equipment, but under 42 U.S.C. 6311(18), the statute's definition of the term “energy conservation standard” is limited to: (A) A performance standard that prescribes a minimum level of energy efficiency or a maximum quantity of energy use for a product; or (B) a design requirement for a product. The language of EPCA authorizes DOE to establish a single performance standard or a single design standard, but not multiple performance standards.
The current Federal energy conservation standards for the three classes of commercial water-source heat pumps for which ASHRAE Standard 90.1-2013 amended efficiency levels are shown in Table II.1 and can be found in DOE's regulations at 10 CFR 431.97. The Federal energy conservation standards for water-source equipment are differentiated based on the model's cooling capacity. ASHRAE Standard 90.1-2013 increased the energy efficiency levels for all three equipment classes to efficiency levels that surpass the current Federal energy conservation standard levels. Therefore, DOE conducted an analysis of the potential energy savings due to amended standards for this equipment in the April 2014 NODA.
In response to the April 2014 NODA, the Advocates requested that DOE conduct further analysis to consider higher efficiency levels than those in ASHRAE Standard 90.1-2013 efficiency levels for water-source heat pumps, because efficiency levels as high as 21 EER are available on the market and higher efficiency levels could achieve additional national energy savings of as much as 1 quad. (The Advocates, No. 21 at p. 1) Upon reviewing the results of the potential energy savings analysis in the April 2014 NODA, DOE agrees with the Advocates that additional energy savings are possible and has conducted further analysis on this equipment. However, after the analysis, DOE has tentatively determined that there is not clear and convincing evidence that efficiency levels higher than those in ASHRAE 90.1-2013 are economically justified for any of the three water-source heat pump classes and is proposing in this NOPR to adopt the energy efficiency levels contained in ASHRAE Standard 90.1-2013 for water-source heat pumps (see section VIII.D.2).
ASHRAE Standard 90.1-2013 also changed the name of this equipment class from “water source” to “water to air, water-loop” and changed the heating-mode descriptor for this equipment from COP to COP
In the April 2014 NODA, DOE noted that EPCA does not define “water-source heat pump” other than to exclude ground-water-source units from the definition of “commercial package air conditioning and heating equipment” at 42 U.S.C. 6311(8)(A). 79 FR 20114, 20120 (April 11, 2014). However, DOE noted that there are several related types of water-source and ground-water-source heat pumps, as shown in Table IV.1. ASHRAE Standard 90.1-2013 included new nomenclature for all such types of heat pumps. DOE further noted that the vast majority of water-source (water-to-air, water-loop) heat pump models are also rated for performance in ground-loop or ground-water heat pump applications. It is DOE's understanding that design differences of the models used in the different applications are minimal, including potential use of material with better corrosion resistance in the water coil (for open-loop systems only) and/or added insulation for ground-water or ground-loop systems. Efficiency ratings are different across these three application types primarily because of the different test conditions. (Ground and ground-water-source systems are tested with cooler entering water.) Because of the similarity in models across applications, DOE believes that increased efficiency standards for water-loop applications may affect heat pumps for ground-source and ground-water applications, although they are excluded from coverage.
In the April 2014 NODA, DOE considered adding a definition for “water-source heat pump” to the Code of Federal Regulations (CFR) that would include both single-phase and three-phase units of all capacities (up to 760,000 Btu/h) and would be applicable to water-to-air heat pumps. Specifically, DOE considered adapting the definition from that in the ASHRAE handbook:
Regarding the proposed definition, Goodman Global agreed that it is beneficial to all stakeholders to define as clearly as possible the products being regulated. (Goodman Global, Inc., No. 17 at p. 2) On the other hand, AHRI stated that a definition for “water-source heat pump” was outside the scope of activity of this document, because ASHRAE Standard 90.1 does not contain any definition of a water-source heat pump. (AHRI, No. 24 at p. 3) AHRI also argued that the lack of definition has not hampered implementation of Federal minimum efficiency for such equipment and that DOE has not established any significant need or provided any compelling reasons that require the addition of this definition. (
AHRI and Daikin Applied expressed concern with the definition covering capacities up to 760,000 Btu/h, noting that neither ASHRAE Standard 90.1 nor DOE have standards for models above 135,000 Btu/h. (AHRI, No. 24 at p. 3; Daikin Applied, No. 22 at p. 1) Daikin Applied further commented that the size of the market above 135,000 Btu/h is approximately 2-3 percent of the total, that the AHRI certification program stops at 166,000 Btu/h, and that practically speaking, the largest models on the market are 250,000 Btu/h. (
Accordingly, DOE proposes to adopt the following definition, adapted from the ASHRAE Handbook and the definition proposed in the April 2014 NODA, and specifically referencing the new nomenclature included in ASHRAE 90.1-2013: “
Furthermore, DOE is proposing to revise the nomenclature for its water-source heat pump equipment classes to match the revised nomenclature in ASHRAE 90.1-2013: water-to-air, water-loop. Specifically, DOE proposes to revise Table 1 to 10 CFR 431.96 and Tables 1 and 2 to 10 CFR 431.97 to refer to “water-source (water-to-air, water-loop)” heat pumps rather than simply “water-source” heat pumps. Throughout this document, any reference to water-source heat pump equipment classes should be considered as referring to water-to-air, water-loop heat pumps.
In preparing this rulemaking, DOE noticed that the 2013 CFR
EPCA defines a “packaged terminal air conditioner” as “a wall sleeve and a separate unencased combination of heating and cooling assemblies specified by the builder and intended for mounting through the wall. It includes a prime source of refrigeration, separable outdoor louvers, forced ventilation, and heating availability by
The current Federal energy conservation standards for the three classes of PTACs for which ASHRAE Standard 90.1-2013 amended efficiency levels are shown in Table II.1 and are found in DOE's regulations at 10 CFR 431.97. The Federal energy conservation standards for PTACs are differentiated based on the cooling capacity and physical dimensions (standard versus nonstandard size). ASHRAE Standard 90.1-2013 increased the energy efficiency levels for all three standard-size PTAC equipment classes to efficiency levels that meet those for PTHPs and surpass the current Federal energy conservation standard levels for PTACs. Therefore, DOE conducted an analysis of the potential energy savings due to amended standards for standard-size PTACs in the April 2014 NODA. 79 FR 20114, 20120-21 (April 11, 2014).
Prior to the ASHRAE trigger, in February 2013, DOE published a notice of public meeting and availability of the Framework Document regarding energy conservation standards for packaged terminal air conditioners and heat pumps standards. 78 FR 12252 (Feb. 22, 2013). This Framework Document was published as a first step toward meeting the six-year look back requirement specified in EISA 2007. (42 U.S.C. 6313(a)(6)(C)(i)) As part of the six-year look back, in September 2014, DOE issued a NOPR for PTAC and PTHP equipment that included equipment classes for which ASHRAE Standard 90.1-2013 increased efficiency levels (
EPCA does not separate three-phase small-duct high-velocity (SDHV) or through-the-wall (TTW) heat pumps from other types of small commercial package air-conditioning and heating equipment in its definitions. (42 U.S.C. 6311(8)) Therefore, EPCA's definition of “small commercial package air conditioning and heating equipment” would include three-phase SDHV and TTW heat pumps. In contrast, single-phase SDHV and space-constrained equipment (including TTW), which are not the subject of this document, have separate product classes under DOE's residential central air conditioner and heat pump standards (see 10 CFR 430.32(c)).
ASHRAE Standard 90.1-2013 appeared to change some of the efficiency levels for three-phase SDHV and TTW equipment. Specifically, ASHRAE Standard 90.1-2010 had increased the cooling efficiency requirements for TTW heat pumps to 13.0 SEER in comparison to the efficiency levels of 12.0 SEER in ASHRAE Standard 90.1-2007. However, in March 2011, ASHRAE issued Proposed Addendum h for public review that would correct the minimum SEER for this equipment to 12.0 SEER, and this addendum was approved and incorporated into ASHRAE Standard 90.1-2013. Therefore, this change in ASHRAE Standard 90.1-2013 was correcting an editorial error in ASHRAE Standard 90.1-2010.
For SDHV air conditioners and heat pumps, ASHRAE Standard 90.1-2013 increases the cooling efficiency requirement from 10.0 SEER to 11.0 SEER. It also includes a heating efficiency requirement for SDHV heat pumps of 6.8 HSPF, which was present in ASHRAE 90.1-2007 but not ASHRAE 90.1-2010 (which DOE also thought to be an editorial error). These changes were made through Addendum bj to ASHRAE 90.1-2010, which noted that the previously adopted Addendum j to ASHRAE Standard 90.1-2010 had deleted the SDHV equipment class entirely because all SDHV models sold were single-phase residential products, but that Addendum bj was re-establishing the equipment class because manufacturers had expressed an intention to introduce three-phase equipment to the market. In addition, Addendum bj noted that it contained minimum efficiency levels identical to those established by DOE for single-phase residential SDHV products.
The DOE standards for both commercial (three-phase) TTW and SDHV air conditioners, which are 13.0 SEER, and for heat pumps, which are 13.0 SEER and 7.7 HSPF, were established for the overall equipment category of small commercial package air-conditioning and heating equipment by EISA 2007, which amended EPCA. (42 U.S.C. 6313(a)(7)(D)) Because the ASHRAE Standard 90.1-2013 efficiency levels for three-phase TTW and SDHV equipment are less than the applicable Federal standards, DOE has tentatively concluded that it is not required to take action on this equipment at this time (see 42 U.S.C. 6313(a)(6)(A)(i) and (B)(iii)(I)). DOE did not receive comment on this issue and reaffirms this position.
EPCA, as amended, defines “single package vertical air conditioner” as air-cooled commercial package air conditioning and heating equipment that:
(1) Is factory-assembled as a single package that:
(i) Has major components that are arranged vertically;
(ii) is an encased combination of cooling and optional heating components; and
(iii) is intended for exterior mounting on, adjacent interior to, or through an outside wall;
(2) is powered by a single- or 3-phase current;
(3) may contain one or more separate indoor grilles, outdoor louvers, various ventilation options, indoor free air discharges, ductwork, wall plenum, or sleeves; and
(4) has heating components that may include electrical resistance, steam, hot water, or gas, but may not include reverse cycle refrigeration as a heating means.
(42 U.S.C. 6311(22) ; 10 CFR 431.92)
EPCA, as amended, defines “single package vertical heat pump” as a single-package vertical air conditioner that
(1) uses reverse cycle refrigeration as its primary heat source; and
(2) may include secondary supplemental heating by means of electrical resistance, steam, hot water, or gas.
(42 U.S.C. 6311(23); 10 CFR 431.92)
The current Federal energy conservation standards for the six classes of single-package vertical units (SPVUs) for which ASHRAE Standard 90.1-2013 amended efficiency levels are shown in Table II.1 and can be found in DOE's regulations at 10 CFR 431.97. The equipment classes for SPVACs and SPVHPs, as well as their attendant Federal energy conservation standards, are differentiated based on cooling capacity. ASHRAE Standard 90.1-2013 increased the energy efficiency levels for all six equipment classes to efficiency levels that surpass the current Federal energy conservation standard levels. Therefore, DOE conducted an analysis of the potential energy savings
In response to the April 2014 NODA, Lennox urged DOE to adopt the ASHRAE Standard 90.1-2013 efficiency levels for SPVUs. (Lennox International Inc., No. 0015 at p. 2) On the other hand, the Advocates encouraged DOE to initiate a rulemaking for SPVUs to consider higher efficiency levels than those in ASHRAE Standard 90.1-2013 because of potential national energy savings up to 0.48 quads. (Advocates, No. 21 at p. 3) DOE notes that prior to the release of ASHRAE Standard 90.1-2013, DOE had already been conducting a rulemaking on SPVUs as a result of a one-time review requirement added by EISA 2007. See 76 FR 25622, 25633 (May 5, 2011). DOE will continue to conduct its SPVU analysis as part of a separate rulemaking that will also meet the requirements of the ASHRAE trigger, and accordingly, DOE has not included any further analysis or results regarding SPVUs in this NOPR. In the April 11, 2014 NODA, DOE also discussed its consideration of a space-constrained SPVU equipment class (79 FR 20114, 20121-23); DOE's consideration of that issue will also occur in the separate SPVU rulemaking.
EPCA defines “storage water heater” as a water heater that heats and stores water within the appliance at a thermostatically controlled temperature for delivery on demand. This term does not include units with an input rating of 4,000 Btu/h or more per gallon of stored water. (42 U.S.C. 6311(12)(A)) DOE further clarified this definition in its regulations by adding that it is industrial equipment. 10 CFR 431.102. EPCA defines “instantaneous water heater” as a water heater that has an input rating of at least 4,000 Btu/h per gallon of stored water. (42 U.S.C. 6311(12)(B)) DOE further clarified this definition in its regulations by adding that it is industrial equipment, including products meeting this description that are designed to heat water to temperatures of 180°F or higher. 10 CFR 431.102.
The current Federal energy conservation standards for the five classes of storage and instantaneous water heaters for which ASHRAE Standard 90.1-2013 amended efficiency levels are shown in Table II.1 and set forth in DOE's regulations at 10 CFR 431.110. The equipment classes for commercial storage and instantaneous water heaters, and attendant Federal energy conservation standards, are differentiated based on fuel type and size category. ASHRAE Standard 90.1-2013 appeared to change the standby loss levels for four equipment classes (gas-fired storage water heaters, oil-fired storage water heaters, gas-fired instantaneous water heaters, and oil-fired instantaneous water heaters) to efficiency levels that surpass the current Federal energy conservation standard levels. However, as discussed in the April 11, 2014 NODA, upon review of the changes, DOE believes that all changes to standby loss levels for these equipment classes were editorial errors because they are identical to SI (International System of Units; metric system) formulas rather than I-P (Inch-Pound; English system) formulas. 79 FR 20114, 20123. Therefore, DOE did not conduct an analysis of the potential energy savings for this equipment. DOE received no comment on this issue.
As discussed in the April 11, 2014 NODA, ASHRAE Standard 90.1-2013 also changed the standby loss level for electric storage water heaters, in this case in a purposeful manner to align with the current Federal energy conservation standard level.
ASHRAE Standard 90.1-2013 also increased the thermal efficiency levels for oil-fired storage water heaters to efficiency levels that surpass the current Federal energy conservation standards. Therefore, DOE conducted an analysis of the potential energy savings due to amended thermal efficiency standards for oil-fired storage water heaters in the April 2014 NODA.
DOE did not receive any comments from stakeholders specific to the efficiency level DOE should adopt for oil-fired storage water heaters. Based on the results of the April 2014 NODA, DOE has determined that there are minimal energy savings available from this equipment and has not conducted further analyses on these products. Therefore, DOE is proposing in this NOPR to adopt the energy efficiency levels contained in ASHRAE Standard 90.1-2013 for commercial oil-fired storage water heaters (see section VIII.D.3).
In response to the April 2014 NODA, DOE received comment from the Advocates that the standards for all commercial water heaters, not just oil-fired storage water heaters, are due for a six-year look back. (Advocates, No. 21 at p. 3) Although DOE acknowledges its statutory obligation to review the standards for commercial water heaters, in order to best allocate available resources, DOE is limiting the scope of this current rulemaking to ASHRAE-triggered equipment. However, in October 2014, the agency issued a request for information (RFI) regarding commercial water heaters to initiate a separate six-year look back rulemaking for all categories of commercial water heating equipment. 79 FR 62899 (Oct. 21, 2014).
EPCA requires the Secretary to amend the DOE test procedures for covered ASHRAE equipment to the latest version of those generally accepted industry testing procedures or the rating procedures developed or recognized by AHRI or by ASHRAE, as referenced by ASHRAE/IES Standard 90.1, unless the Secretary determines by rule published in the
In the April 2014 NODA, DOE preliminarily reviewed each of the test procedures that were updated in ASHRAE Standard 90.1-2013 and discussed the changes to those industry test procedures. 79 FR 20114, 20123-25 (April 11, 2014). DOE found that for AHRI 210/240, AHRI 340/360, AHRI 1230, and ANSI Z1.10.3, DOE had already incorporated by reference the most recent version
DOE is also required to review the test procedures for covered ASHRAE equipment at least once every seven years. (42 U.S.C. 6314(a)(1)(A)) In addition to the updates to the referenced standards discussed previously, DOE is proposing to update the citations and incorporations by reference in DOE's regulations for commercial warm-air furnaces to the most recent version of ASHRAE 103,
DOE is aware that some commercial furnaces are designed for make-up air heating (
DOE is seeking comments on any relevant issues that would affect the test procedure for commercial warm air furnaces. Interested parties are welcome to comment on any aspect of the DOE commercial warm air furnaces test procedure as part of this comprehensive 7-year-review. This is identified as issue 2 in section X.E, “Issues on Which DOE Seeks Comment.”
This section addresses the analyses DOE has performed for this rulemaking with respect to small commercial air-cooled air conditioners and heat pumps less than 65,000 Btu/h. A separate subsection addresses each analysis. In overview, DOE used a spreadsheet to calculate the life-cycle cost (LCC) and payback periods (PBPs) of potential energy conservation standards. DOE used another spreadsheet to provide shipments projections and then calculate national energy savings and net present value impacts of potential amended energy conservation standards.
To begin its review of the ASHRAE Standard 90.1-2013 efficiency levels, DOE developed information that provides an overall picture of the market for the equipment concerned, including the purpose of the equipment, the industry structure, and market characteristics. This activity included both quantitative and qualitative assessments based primarily on publicly-available information. The subjects addressed in the market assessment for this rulemaking include equipment classes, manufacturers, quantities, and types of equipment sold and offered for sale. The key findings of DOE's market assessment are summarized in the following sections. For additional detail, see chapter 2 of the NOPR technical support document (TSD).
As discussed previously, the Federal energy conservation standards for air-cooled air conditioners and heat pumps are differentiated based on the cooling capacity (
In order to obtain the information needed for the market assessment for this rulemaking, DOE consulted a variety of sources, including manufacturer literature, manufacturer Web sites, and the AHRI certified directory.
DOE researched various trade groups representing manufacturers, distributors, and installers of the various types of equipment being analyzed in this rulemaking. AHRI is one of the largest trade associations for manufacturers of space-heating, cooling, and water-heating equipment, representing more than 90 percent of the residential and commercial air-conditioning, space-heating, water-heating, and commercial refrigeration equipment manufactured in the United States.
The Heating, Air-conditioning and Refrigeration Distributors International (HARDI) is a trade association that represents over 450 wholesale heating, ventilating, air-conditioning, and refrigeration (HVACR) companies, plus over 300 manufacturing associates and nearly 140 manufacturing representatives. HARDI estimates that 80 percent of the revenue of HVACR systems goes through its members.
The Air Conditioning Contractors of America (ACCA) is another trade association whose members include over 4,000 contractors and 60,000 professionals in the indoor environment and energy service community. According to their Web site, ACCA provides contractors with technical, legal, and market resources, helping to promote good practices and to keep buildings safe, clean, and affordable.
DOE reviewed data for air-cooled commercial air conditioners and heat pumps currently on the market by examining the AHRI Directory of Certified Product Performance. DOE identified 23 parent companies (comprising 61 manufacturers) of small three-phase air-cooled air conditioners and heat pumps, which are listed in chapter 2 of the NOPR TSD. Of these manufacturers, five were identified as small businesses based upon number of employees and the employee thresholds set by the Small Business Administration. More details on this analysis can be found below in section IX.B.
DOE reviewed the AHRI database to characterize the efficiency and performance of small commercial air-cooled air conditioners and heat pumps less than 65,000 Btu/h models currently on the market. The full results of this market characterization are found in chapter 2 of the NOPR TSD. For split-system air conditioners, the average SEER value was 13.9, and 120 models (0.1 percent of the total models) have SEER ratings below the ASHRAE Standard 90.1-2013 level of 13.0 SEER. For single-package air conditioners, the average SEER value was 14.3, and 1,450 models (45 percent of the total models) have SEER ratings below the ASHRAE Standard 90.1-2013 level of 14.0 SEER.
For single-package heat pumps, the average SEER value is 14.0. Of the models identified by DOE, 653 models (54 percent of the total models) have SEER ratings below the ASHRAE Standard 90.1-2013 level of 14.0 SEER. The average HSPF value for this equipment class is 7.9. Of the models identified by DOE, 632 models (52 percent of the total models) have HSPF ratings below the ASHRAE Standard 90.1-2013 levels of 8.0. For split-system heat pumps, the average SEER value for this equipment class is 13.7. Of the models identified by DOE, 30,009 models (64 percent of the total models) have SEER ratings below the ASHRAE Standard 90.1-2013 level of 14.0. The average HSPF for this equipment class is 7.9. Of the models identified by DOE, 36,902 models (79 percent of the total models) have HSPF ratings below the ASHRAE Standard 90.1-2013 level of 8.2. For more information on market performance data, see chapter 2 of the NOPR TSD.
The engineering analysis establishes the relationship between an increase in energy efficiency and the increase in cost (manufacturer selling price (MSP)) of a piece of equipment DOE is evaluating for potential amended energy conservation standards. This relationship serves as the basis for cost-benefit calculations for individual
DOE typically structures its engineering analysis around one of three methodologies: (1) The design-option approach, which calculates the incremental costs of adding specific design options to a baseline model; (2) the efficiency-level approach, which calculates the relative costs of achieving increases in energy efficiency levels without regard to the particular design options used to achieve such increases; and/or (3) the reverse-engineering or cost-assessment approach, which involves a “bottom-up” manufacturing cost assessment based on a detailed bill of materials derived from teardowns of the equipment being analyzed. A supplementary method called a catalog teardown uses published manufacturer catalogs and supplementary component data to estimate the major physical differences between a piece of equipment that has been physically disassembled and another piece of similar equipment for which catalog data are available to determine the cost of the latter equipment. Deciding which methodology to use for the engineering analysis depends on the equipment, the design options under study, and any historical data upon which DOE may draw.
For this analysis, DOE used a combination of the efficiency-level and the cost-assessment approach. DOE used the efficiency-level approach to identify incremental improvements in efficiency for each equipment class and the cost-assessment approach to develop a cost for each efficiency level. The efficiency levels that DOE considered in the engineering analysis were representative of three-phase central air conditioners and heat pumps currently produced by manufacturers at the time the engineering analysis was developed. DOE relied on data reported in the AHRI Directory of Certified Product Performance to select representative efficiency levels.
DOE generated a bill of materials (BOM) for each representative product that it disassembled. DOE did this for multiple manufacturers' products that span a range of efficiency levels for the equipment classes that are analyzed in this rulemaking. The BOMs describe the manufacture of the equipment in detail, listing all parts and including all manufacturing steps required to make each part and to assemble the unit. DOE also conducted catalog teardowns to supplement the information obtained directly from physical teardowns. Subsequently, DOE developed a cost model that calculates manufacturer production cost (MPC) for each unit, based on the detailed BOM data. Chapter 3 of the NOPR TSD describes DOE's cost model in greater detail. The calculated costs are plotted as a function of the equipment efficiency levels (based on rated efficiency) to create cost-efficiency curves. DOE notes that the cost at some efficiency levels was interpolated or extrapolated based on the available physical and catalog teardown data.
DOE developed cost-efficiency curves for a representative capacity of three tons, which it decided well represents the range of capacities on the market for commercial three-phase products. Because other capacity levels had similar designs and efficiency levels, cost-efficiency curves were not developed for any other capacities. Instead, DOE was able to utilize the cost-efficiency curve for the representative capacity and apply it to all three-phase products.
DOE based the cost-efficiency relationship for three-phase central air conditioners and heat pumps on reverse engineering conducted for the June 2011 direct final rule (DFR) for single-phase central air conditioners and heat pumps. 76 FR 37408. DOE researched manufacturer literature and noticed that most model numbers between single-phase products and three-phase equipment are interchangeable, with only a single-digit difference in the model number for the supply voltage. Although three-phase equipment contains three-phase compressors instead of single-phase compressors, DOE did not notice any inconsistency in energy efficiency ratings between single-phase products and three-phase equipment. To supplement the 2011 DFR data (29 physical teardowns and 12 catalog teardowns), DOE completed one physical teardown and seven catalog teardowns of three-phase equipment. This approach allowed DOE to provide an estimate of equipment prices at different efficiencies and spanned a range of technologies currently on the market that are used to achieve the increased efficiency levels.
DOE selected baseline efficiency levels as reference points for each equipment class, against which it measured changes resulting from potential amended energy conservation standards. DOE defined the baseline efficiency levels as reference points to compare the technology, energy savings, and cost of equipment with higher energy efficiency levels. Typically, units at the baseline efficiency level just meet Federal energy conservation standards and provide basic consumer utility. However, EPCA requires that DOE must adopt either the ASHRAE Standard 90.1-2013 levels or more-stringent levels. Therefore, because the ASHRAE Standard 90.1-2013 levels were the lowest levels that DOE could adopt, DOE used those levels as the reference points against which more-stringent levels were evaluated.
Table V.2 shows the current baseline and ASHRAE efficiency levels for each equipment class of small commercial air-cooled air conditioners and heat pumps <65,000 Btu/h.
DOE analyzed several efficiency levels and obtained incremental cost data for the four equipment classes under consideration. Table V.3 presents the efficiency levels examined for each equipment class. As part of the engineering analyses, DOE considered up to six efficiency levels beyond the baseline for each equipment class. DOE derived the maximum technologically feasible (“max-tech”) level from the market maximum in the AHRI Certified Directory,
The efficiency levels for each considered equipment class are presented in Table V.3. For additional details on the efficiency levels selected for analysis, see chapter 3 of the NOPR TSD.
The results of the engineering analysis are cost-efficiency curves based on results from the cost models for analyzed units. DOE's calculated MPCs for small commercial air conditioners and heat pumps less than 65,000 Btu/h are shown in Table V.4 through Table V.7, and further details on the calculation of these curves can be found in chapter 3 of the NOPR TSD. DOE used the cost-efficiency curves from the engineering analysis as an input for the life-cycle cost and payback period analyses.
DOE applies a non-production cost multiplier (the manufacturer markup) to the full MPC to account for corporate non-production costs and profit. The resulting manufacturer selling price (MSP) is the price at which the manufacturer can recover all production and non-production costs and earn a profit. To meet new or amended energy conservation standards, manufacturers often introduce design changes to their equipment lines that result in increased manufacturer production costs. Depending on the competitive environment for these particular types of equipment, some or all of the increased production costs may be passed from manufacturers to retailers and eventually to commercial consumers in the form of higher purchase prices. As production costs increase, manufacturers typically incur additional overhead. The MSP should be high enough to recover the full cost of the equipment (
For small commercial air-cooled air-conditioners and heat pumps, DOE used a manufacturer markup of 1.3, as developed for the 2011 direct final rule for single-phase central air conditioners and heat pumps. 76 FR 37408 (June 27, 2011). This markup was calculated using U.S. Security and Exchange Commission (SEC) 10-K reports for publicly-owned heating and cooling companies, as well as feedback from manufacturer interviews. See chapter 3 of the NOPR TSD for more details about the methodology DOE used to determine the manufacturing markup.
Manufacturers of commercial HVAC products typically pay for freight (shipping) to the first step in the distribution chain. Freight is not a manufacturing cost, but because it is a substantial cost incurred by the manufacturer, DOE accounts for shipping costs separately from other non-production costs that comprise the manufacturer markup. DOE calculated the MSP for small commercial air-cooled air-conditioners and heat pumps by multiplying the MPC at each efficiency level (determined from the cost model) by the manufacturer markup and adding shipping costs for equipment at the given efficiency level. More specifically, DOE calculated shipping costs at each efficiency level based on a typical 53-foot straight-frame trailer with a storage volume of 4,240 cubic feet. DOE examined the sizes of small commercial air-cooled air-conditioners and heat pumps and determined the number of units that would fit in each trailer, based on assumptions about the arrangement of units in the trailer. See chapter 3 of the NOPR TSD for more details about the methodology DOE used to determine the shipping costs.
The markups analysis develops appropriate markups in the distribution chain to convert the estimates of manufacturer selling price derived in the engineering analysis to commercial consumer prices. (“Commercial consumer” refers to purchasers of the equipment being regulated.) DOE calculates overall baseline and incremental markups based on the equipment markups at each step in the distribution chain. The incremental markup relates the change in the manufacturer sales price of higher-efficiency models (the incremental cost increase) to the change in the commercial consumer price.
In the 2014 NOPR for Central Unitary Air Conditioners (CUAC), which includes equipment similar to but larger than that in this NOPR, DOE determined that there are three types of distribution channels to describe how the equipment passes from the manufacturer to the commercial consumer. 79 FR 58948, 58975 (Sept. 30, 2014). In the new construction market, the manufacturer sells the equipment to a wholesaler. The wholesaler sells the equipment to a mechanical contractor, who sells it to a general contractor, who in turn sells the equipment to the commercial consumer or end user as part of the building. In the replacement market, the
In this NOPR, DOE used two of the three distribution channels described above to determine the markups. Given the small cooling capacities of air conditioners and heat pumps less than 65,000 Btu/h, DOE did not use the national accounts distribution chain in the markups analysis. National accounts are composed of large commercial consumers of HVAC equipment that negotiate equipment prices directly with the manufacturers, such as national retail chains. The end market consumers of three-ton central air conditioners and heat pumps are small offices and small retailers and do not fit the profile of large national chains.
In the 2014 CUAC NOPR, based on information that equipment manufacturers provided, commercial consumers were estimated to purchase 50 percent of the covered equipment through small mechanical contractors, 32.5 percent through large mechanical contractors, and the remaining 17.5 percent through national accounts. 79 FR 58948, 58976 (Sept. 30, 2014). For this NOPR, DOE removed the national accounts distribution channel and recalculated the size of the small and large mechanical contractor distribution channels assuming they make up the entire market. Therefore, the small mechanical distribution chain accounts for 61 percent of equipment purchases (
For this NOPR, DOE used the markups from the 2014 CUAC NOPR, for which DOE utilized updated versions of: (1) The Heating, Air Conditioning & Refrigeration Distributors International
Chapter 5 of the NOPR TSD provides further detail on the estimation of markups.
The energy use analysis provides estimates of the annual energy consumption of small air-cooled air conditioners and heat pumps with cooling capacities less than 65,000 Btu/h at the considered efficiency levels. DOE uses these values in the LCC and PBP analyses and in the NIA.
The cooling unit energy consumption (UEC) by equipment type and efficiency level came from the national impact analysis associated with the 2011 direct final rule (DFR) for residential central air conditioners and heat pumps. (EERE-2011-BT-STD-0011-0011). Specifically, DOE used the UECs for single-phase equipment installed in commercial buildings. The UECs for split system and single package equipment were similar in the 2011 analysis for lower efficiency levels, but at higher efficiency levels, the only UECs available were for split-system equipment. DOE assumed that the similarities at lower levels could be expected to hold at higher efficiency levels; therefore, DOE is using the UECs for split equipment for all equipment classes in this NOPR, including split system and single package. In the April 11, 2014 NODA, DOE requested comment on the use of UECs from an analysis of single-phase products in commercial applications. 79 FR 20114, 20137. In response. Goodman, Lennox, and AHRI commented that single-phase and three-phase products should not differ substantially in energy consumption. (Goodman Global, Inc., No. 18 at p. 2; Lennox International, Inc., No. 15 at p. 6; AHRI, No. 24 at p. 5) Goodman added that for products less than 65,000 Btu/h, industry practice involves creating a single-phase product and then changing the compressor from single-phase to three-phase while leaving the motors for the condenser fan and evaporator blower at single-phase. (Goodman Global, Inc., No. 18 at p. 2) DOE agrees with the commenters and has maintained this approach.
In order to assess variability in the cooling UEC by region and building type, DOE used a Pacific Northwest National Laboratory report
In the April 11, 2014 NODA, DOE stated that it also considered analyzing heating UECs for heat pumps. 79 FR 20114, 20126. However, in reviewing the 2011 analysis, DOE found that the heating UECs did not scale proportionally with HSPF for commercial installations.
In response, AHRI commented that Pacific Northwest National Laboratory (PNNL) analyzes the benefits of increased efficiency requirements in ASHRAE 90.1-2013, and it increased the heating seasonal performance factor (HSPF) for 3-phase heat pumps less than 65,000 Btu/h. Therefore, PNNL may have information on the energy savings related to ASHRAE's standard. (AHRI, No. 24 at p. 6) Goodman suggests it is logical for there to be a reasonable relationship between the HSPF rating and UEC. (Goodman Global, Inc., No. 18 at p. 2) On the other hand, Lennox pointed out that HSPF is an efficiency metric designed to reflect the performance of a heat pump operating against a residential load profile in which the building balance point is at 65°F. Most commercial buildings have enough internal heat gain that their heating balance points can be at 30°F or below.
DOE notes that ASHRAE increased the HSPF and SEER levels for this equipment to levels that matched DOE's residential requirements, for
The purpose of the LCC and PBP analysis is to analyze the effects of potential amended energy conservation standards on commercial consumers of small commercial air-cooled air conditioners and heat pumps less than 65,000 btu/h by determining how a potential amended standard affects their operating expenses (usually decreased) and their total installed costs (usually increased).
The LCC is the total consumer expense over the life of the equipment, consisting of equipment and installation costs plus operating costs (
For any given efficiency level, DOE measures the PBP and the change in LCC relative to an estimate of the base-case efficiency level. For split-system air conditioners, for which ASHRAE did not increase efficiency levels, the base-case estimate reflects the market in the absence of amended energy conservation standards, including the market for equipment that exceeds the current energy conservation standards. For single-package air conditioners, split-system heat pumps, and single-package heat pumps, the base-case estimate reflects the market in the case where the ASHRAE 90.1-2013 level becomes the Federal minimum, and the LCC calculates the LCC savings likely to result from higher efficiency levels compared with the ASHRAE base-case.
DOE conducted an LCC and PBP analysis for small commercial air-cooled air conditioners and heat pumps less than 65,000 btu/h using a computer spreadsheet model. When combined with Crystal Ball (a commercially-available software program), the LCC and PBP model generates a Monte Carlo simulation to perform the analyses by incorporating uncertainty and variability considerations in certain of the key parameters as discussed below. Inputs to the LCC and PBP analysis are categorized as: (1) Inputs for establishing the total installed cost and (2) inputs for calculating the operating expense. The following sections contain brief discussions of comments on the inputs and key assumptions of DOE's LCC and PBP analysis and explain how DOE took these comments into consideration. They are also described in detail in chapter 6 of the NOPR TSD.
In the LCC and PBP analysis, the equipment costs faced by purchasers of small air-cooled air conditioning and heat pump equipment are derived from the MSPs estimated in the engineering analysis, the overall markups estimated in the markups analysis, and sales tax.
To develop an equipment price trend for the NOPR, DOE derived an inflation-adjusted index of the producer price index (PPI) for “unitary air-conditioners, except air source heat pumps” from 1978 to 2013, which is the PPI series most relevant to small air-cooled air-conditioning equipment. The PPI index for heat pumps covered too short a time period to provide a useful picture of pricing trends, so the air-conditioner time series was used for both air conditioners and heat pumps. DOE expects this to be a reasonably accurate assessment for heat pumps because heat pumps are produced by the same manufacturers as air-conditioners and contain most of the same components. Although the overall PPI index shows a long-term declining trend, data for the last decade have shown a flat-to-slightly-rising trend. Given the uncertainty as to which of the trends will prevail in coming years, DOE chose to apply a constant price trend (at 2013 levels) for the NOPR. See chapter 6 of the NOPR TSD for more information on the price trends.
DOE derived national average installation costs for small air-cooled air conditioning and heat pump equipment from data provided in RS Means 2013.
Based on these data, DOE tentatively concluded that data for 3-ton rooftop air conditioners would be sufficiently representative of the installation costs for air conditioners less than 65,000 btu/h. For heat pumps, DOE used the installation costs for 3-ton air-source heat pumps.
DOE also varied installation cost as a function of equipment weight. Because weight tends to increase with equipment efficiency, installation cost increased with equipment efficiency. The weight of the equipment in each class and efficiency level was determined through the engineering analysis.
The calculation of annual per-unit energy consumption by each class of the subject small air-cooled air conditioning and heating equipment at each considered efficiency level is based on the energy use analysis as described above in section V.D and in chapter 4 of the NOPR TSD.
DOE used average and marginal electricity prices by Census Division based on tariffs from a representative sample of electric utilities. This approach calculates energy expenses based on actual commercial building average and marginal electricity prices that customers are paying.
The average electricity price multiplied by the baseline electricity consumption for each equipment class defines the baseline LCC. For each efficiency level, the operating cost savings are calculated by multiplying the electricity consumption savings (relative to the baseline) by the marginal consumption price.
For this NOPR, the tariff-based prices were updated to 2013 using the commercial electricity price index published in the
For further discussion of electricity prices, see chapter 6 of the NOPR TSD.
Maintenance costs are costs to the commercial consumer of ensuring continued operation of the equipment (
Repair costs are costs to the commercial consumer associated with repairing or replacing components that have failed. DOE utilized RS Means
Equipment lifetime is the age at which the subject small air-cooled air conditioners and heat pumps less than 65,000 Btu/h are retired from service. DOE based equipment lifetime on a retirement function in the form of a Weibull probability distribution. DOE used the inputs from the 2011 DFR technical support document for central air conditioners and heat pumps, which represented a mean lifetime of 19.01 years for air conditioners and 16.24 years for heat pumps, and used the same values for units in both residential and commercial applications. (EERE-2011-BT-STD-0011-0012) Given the similarity of such equipment types, DOE believes the lifetime for single-phase equipment may be a reasonable approximation of the lifetime for similar three-phase equipment.
The discount rate is the rate at which future expenditures are discounted to estimate their present value. The cost of capital commonly is used to estimate the present value of cash flows to be derived from a typical company project or investment. Most companies use both debt and equity capital to fund investments, so the cost of capital is the weighted-average cost to the firm of equity and debt financing. DOE uses the capital asset pricing model (CAPM) to calculate the equity capital component, and financial data sources to calculate the cost of debt financing.
DOE derived the discount rates by estimating the weighted-average cost of capital (WACC) of companies that purchase air-cooled air-conditioning equipment. More details regarding DOE's estimates of commercial consumer discount rates are provided in chapter 6 of the NOPR TSD.
For the LCC analysis, DOE analyzes the considered efficiency levels relative to a base case (
DOE calculated the LCC and PBP for all commercial consumers as if each were to purchase new equipment in the year that compliance with amended standards is required. Generally, covered equipment to which a new or amended energy conservation standard applies must comply with the standard if such equipment is manufactured or imported on or after a specified date. In this NOPR, DOE is evaluating whether more-stringent efficiency levels than those in ASHRAE Standard 90.1-2013 would be technologically feasible, economically justified, and result in a significant additional amount of energy savings. If DOE were to propose a rule prescribing energy conservation standards at the efficiency levels contained in ASHRAE Standard 90.1-2013 for the three triggered equipment
If DOE were to propose a rule prescribing energy conservation standards more stringent than the efficiency levels contained in ASHRAE Standard 90.1-2013, EPCA states that compliance with any such standards is required for products manufactured on or after a date which is four years after the date the final rule is published in the
For split system air-cooled air conditioners, which DOE evaluated under the 6 year look back, DOE applied a different compliance date. Specifically, EPCA states that amended standards prescribed under this subsection shall apply to products manufactured after a date that is the later of: (I) the date that is 3 years after publication of the final rule establishing a new standard; or (II) the date that is 6 years after the effective date of the current standard for a covered product. (42 U.S.C. 6313(a)(6)(C)(iv)) Because DOE must publish a final rule by April 9, 2016, in the case that it adopts standards higher than those in ASHRAE Standard 90.1 for the other three equipment classes, DOE projected that the date under clause (I) would be April 2019, which is later than the date under clause (II). For purposes of its analysis, DOE used 2019 as the first year of compliance with amended standards.
Economic justification is not required for DOE to adopt the efficiency levels in ASHRAE 90.1-2013, as DOE is statutorily required to, at a minimum, adopt those levels. Therefore, DOE did not perform an LCC analysis on the ASHRAE Standard 90.1-2013 levels, and for purposes of the LCC analysis, DOE used 2020 as the first year of compliance with amended standards.
The payback period is the amount of time it takes the commercial consumer to recover the additional installed cost of more-efficient equipment, compared to baseline equipment, through energy cost savings. Payback periods are expressed in years. Payback periods that exceed the life of the equipment mean that the increased total installed cost is not recovered in reduced operating expenses.
Similar to the LCC, the inputs to the PBP calculation are the total installed cost of the equipment to the commercial consumer for each efficiency level and the average annual operating expenditures for each efficiency level for each building type and Census Division, weighted by the probability of shipment to each market. The PBP calculation uses the same inputs as the LCC analysis, except that discount rates are not needed. Because the simple PBP does not take into account changes in operating expenses over time or the time value of money, DOE considered only the first year's operating expenses to calculate the PBP, unlike the LCC, which is calculated over the lifetime of the equipment. Chapter 6 of the NOPR TSD provides additional detail about the PBP.
The national impact analysis (NIA) evaluates the effects of a considered energy conservation standard from a national perspective rather than from the consumer perspective represented by the LCC. This analysis assesses the net present value (NPV) (future amounts discounted to the present) and the national energy savings (NES) of total commercial consumer costs and savings, which are expected to result from amended standards at specific efficiency levels. For each efficiency level analyzed, DOE calculated the NPV and NES for adopting more-stringent standards than the efficiency levels specified in ASHRAE Standard 90.1-2013.
The NES refers to cumulative energy savings from 2017 through 2046 for the three equipment classes triggered by ASHRAE; however when evaluating more-stringent standards, energy savings do not begin accruing until the later compliance date of 2020. DOE calculated new energy savings in each year relative to a base case, defined as DOE adoption of the efficiency levels specified by ASHRAE Standard 90.1-2013. DOE also calculated energy savings from adopting efficiency levels specified by ASHRAE Standard 90.1-2013 compared to the EPCA base case (
For split-system air conditioners, the NES refers to cumulative energy savings from 2019 through 2048 for all standards cases. DOE calculated new energy savings in each year relative to a base case, defined as the current Federal standards, which are equivalent to the efficiency levels specified by ASHRAE Standard 90.1-2013.
The NPV refers to cumulative monetary savings. DOE calculated net monetary savings in each year relative to the base case (ASHRAE Standard 90.1-2013) as the difference between total operating cost savings and increases in total installed cost. Cumulative savings are the sum of the annual NPV over the specified period. DOE accounted for operating cost savings until past 2100, when the equipment installed in the 30th year after the compliance date of the amended standards should be retired.
The NES and NPV are a function of the total number of units in use and their efficiencies. Both the NES and NPV depend on annual shipments and equipment lifetime. Both calculations start by using the shipments estimate
With regard to estimating the NES, because more-efficient air conditioners and heat pumps are expected to gradually replace less-efficient ones, the energy per unit of capacity used by the air conditioners and heat pumps in service gradually decreases in the standards case relative to the base case. DOE calculated the NES by subtracting energy use under a standards-case scenario from energy use in a base-case scenario.
Unit energy savings for each equipment class are taken from the LCC spreadsheet for each efficiency level and weighted based on market efficiency distributions. To estimate the total energy savings for each efficiency level, DOE first calculated the national site energy consumption (
DOE considered whether a rebound effect is applicable in its NES analysis. A rebound effect occurs when an increase in equipment efficiency leads to an increased demand for its service. The NEMS model assumes a certain elasticity factor to account for an increased demand for service due to the increase in cooling (or heating) efficiency.
DOE does not expect either of these instances to occur because the annual energy use for this equipment is very low; therefore, the energy cost savings from more-efficient equipment would likely not be high enough to induce a commercial consumer to increase the use of the equipment, either in a previously-cooled space or another previously-uncooled space. Therefore, DOE did not assume a rebound effect in the present NOPR analysis. DOE seeks input from interested parties on whether there will be a rebound effect for improvements in the efficiency of small commercial air conditioners and heat pumps. If interested parties believe a rebound effect would occur, DOE is interested in receiving data quantifying the effects, as well as input regarding how should DOE quantify this in its analysis. This is identified as Issue 3 under “Issues on Which DOE Seeks Comment” in section X.E of this NOPR.
To estimate NPV, DOE calculated the net impact as the difference between net operating cost savings (including electricity cost savings and increased repair costs) and increases in total installed costs (including customer prices). DOE calculated the NPV of each considered standard level over the life of the equipment using the following three steps. First, DOE determined the difference between the equipment costs under the standard-level case and the base case in order to obtain the net equipment cost increase resulting from the higher standard level. As noted in section V.E.1, DOE used a constant price assumption as the default price forecast. Second, DOE determined the difference between the base-case operating costs and the standard-level operating costs in order to obtain the net operating cost savings from each higher efficiency level. Third, DOE determined the difference between the net operating cost savings and the net equipment cost increase in order to obtain the net savings (or expense) for each year. DOE then discounted the annual net savings (or expenses) to 2014 for air conditioners and heat pumps bought on or after 2017 (or 2019) and summed the discounted values to provide the NPV of an efficiency level. An NPV greater than zero shows net savings (
To make the analysis more transparent to all interested parties, DOE used a commercially-available spreadsheet tool to calculate the energy savings and the national economic costs and savings from potential amended standards. Interested parties can review DOE's analyses by changing various input quantities within the spreadsheet.
Unlike the LCC analysis, the NES spreadsheet does not use distributions for inputs or outputs, but relies on national average first costs and energy costs developed from the LCC spreadsheet. DOE used the NES spreadsheet to perform calculations of energy savings and NPV using the annual energy consumption and total installed cost data from the LCC analysis. DOE projected the energy savings, energy cost savings, equipment costs, and NPV of benefits for equipment sold in each small commercial air-cooled air conditioner and heat pump class from 2017 through 2046 (or 2019 through 2048). For the three equipment classes triggered by ASHRAE, for efficiency levels more stringent than those in ASHRAE 90.1-2013, energy savings and costs do not begin accruing until 2020, the estimated first year of compliance. The projections provided annual and cumulative values for all four output parameters described previously.
Equipment shipments are an important element in the estimate of the future impact of a potential energy conservation standard. DOE developed shipment projections for small commercial air-cooled air conditioners and heat pumps less than 65,000 Btu/h and, in turn, calculated equipment stock over the course of the analysis period by assuming a Weibull distribution with an average 19-year equipment life for air conditioners and a 16-year life for heat pumps. (See section V.E.7 for more information on lifetime.) DOE used the shipments projection and the equipment
In the April 11, 2014 NODA, DOE relied on 1999 shipment estimates along with trends from the U.S. Census to estimate shipments for this equipment. 79 FR 20114, 20130. Table V.8 shows the 1999 shipments estimates from the 2000 Screening Analysis for EPACT-Covered Commercial HVAC and Water-Heating Equipment (EERE-2006-STD-0098-0015). While the U.S. Census provides shipments data for air-cooled equipment less than 65,000 Btu/h, it does not disaggregate the shipments into single-phase and three-phase. Therefore, DOE used the Census data from 1999 to 2010
DOE received several comments on the NODA in response to these shipments estimates. Goodman found it illogical for DOE to base the initial value of shipments on data that was estimated a decade and a half ago. (Goodman Global, Inc., No. 18 at p. 3) The initial values, Goodman stated, should come from aggregated data provided by an industry trade association such as AHRI. (
In response to these comments, DOE reviewed its shipments analysis. AHRI did not provide any more recent data, so DOE continued to rely on the 1999 estimates for the initial value. However, DOE did revise its shipment projections for the years beyond 2010. Because the Census data end in 2010, DOE cannot use that data to determine whether shipments continue to decline past 2010. Therefore, DOE reviewed AHRI's monthly shipments data for the broader category of central air conditioners and heat pumps to determine more recent trends.
Table V.9 shows the projected shipments for the different equipment classes of small commercial air-cooled air conditioners and heat pumps less than 65,000 Btu/h for selected years from 2017 to 2046, as well as the cumulative shipments. As equipment purchase price and repair costs increase with efficiency, DOE recognizes that higher first costs and repair costs can result in a drop in shipments. However, DOE had no basis for estimating the elasticity of shipments for small commercial air-cooled air conditioners and heat pumps less than 65,000 Btu/h as a function of first costs, repair costs, or operating costs. In addition, because air-cooled air conditioners are likely the lowest-cost option for air conditioning small office and retail applications, DOE has tentatively concluded that it is unlikely that shipments would change as a result of higher first costs and repair costs. Therefore, DOE presumed that the shipments projection would not change with higher standard levels. DOE seeks input on this assumption. This is identified as Issue 4 under “Issues on Which DOE Seeks Comment” in section X.E of this NOPR. Chapter 7 of the NOPR TSD provides additional details on the shipments forecasts.
In the April 11, 2014 NODA, DOE presented base-case efficiency distributions based on model availability in the AHRI certified directory. 79 FR 20114, 20132. DOE bundled the efficiency levels into “efficiency ranges” and determined the percentage of models within each range. DOE applied the percentages of models within each efficiency range to the total unit shipments for a given equipment class to estimate the distribution of shipments within the base case. In response, AHRI commented that DOE's use of a market-weighted unit energy consumption (UEC) based on the distribution of efficiencies of available models was flawed. (AHRI, No. 24 at p. 7) AHRI stated that the majority of shipments involve models at or near the minimum efficiency standard level, with volume of shipments decreasing as efficiency increases. Although there may be no information on the exact percentages, AHRI considered this to be the general pattern. (
For this NOPR, DOE has estimated a base-case efficiency trend of an increase of approximately 1 SEER every 35 years, based on the EER trend from 2012 to 2035 found in the Commercial Unitary Air Conditioner Advance Notice of Proposed Rulemaking (ANOPR).
As in the April 11, 2014 NODA, for each efficiency level analyzed, DOE used a “roll-up” scenario to establish the market shares by efficiency level for the year that compliance would be required with amended standards (
The stock of small commercial air-cooled air conditioner and heat pump equipment less than 65,000 Btu/h is the total number of units in each equipment class purchased or shipped from previous years that have survived until a given point. The NES spreadsheet,
The national annual energy consumption is the product of the annual unit energy consumption and the number of units of each vintage in the stock, summed over all vintages. This approach accounts for differences in unit energy consumption from year to year. In determining national annual energy consumption, DOE estimated energy consumption and savings based on site energy and converted the electricity consumption and savings to primary energy using annual conversion factors derived from the
In response to the recommendations of a committee on “Point-of-Use and Full-Fuel-Cycle Measurement Approaches to Energy Efficiency Standards” appointed by the National Academy of Sciences, DOE announced its intention to use FFC measures of energy use and greenhouse gas and other emissions in the national impact analyses and emissions analyses included in future energy conservation standards rulemakings. 76 FR 51281 (Aug. 18, 2011). After evaluating the approaches discussed in the August 18, 2011 notice, DOE published a statement of amended policy in the
In accordance with the OMB's guidelines on regulatory analysis, DOE calculated NPV using both a 7-percent and a 3-percent real discount rate. The 7-percent rate is an estimate of the average before-tax rate of return on private capital in the U.S. economy. DOE used this discount rate to approximate the opportunity cost of capital in the private sector, because recent OMB analysis has found the average rate of return on capital to be near this rate. DOE used the 3-percent rate to capture the potential effects of standards on private consumption (
Table V.11 summarizes the inputs to the NES spreadsheet model along with a brief description of the data sources. The results of DOE's NES and NPV analysis are summarized in section VIII.B.1.b and described in detail in chapter 8 of the NOPR TSD.
This section addresses the analyses DOE has performed for this rulemaking with respect to water-source heat pumps. A separate subsection addresses each analysis. In overview, DOE used a spreadsheet to calculate the LCC and PBPs of potential energy conservation standards. DOE used another spreadsheet to provide shipments projections and then calculate national energy savings and net present value impacts of potential amended energy conservation standards.
To begin its review of the ASHRAE Standard 90.1-2013 efficiency levels, DOE developed information that provides an overall picture of the market for the equipment concerned, including the purpose of the equipment, the industry structure, and market characteristics. This activity included both quantitative and qualitative assessments based primarily on publicly-available information. The subjects addressed in the market assessment for this rulemaking include equipment classes, manufacturers, quantities, and types of equipment sold and offered for sale. The key findings of DOE's market assessment are summarized subsequently. For additional detail, see chapter 2 of the NOPR TSD.
EPCA and ASHRAE Standard 90.1-2013 both divide water-source heat pumps into three categories based on the following cooling capacity ranges: (1) <17,000 Btu/h; (2) ≥17,000 and <65,000 Btu/h; and (3) ≥65,000 and <135,000 Btu/h. As noted previously, ASHRAE 90.1-2013 revised the nomenclature for these equipment classes to refer to “water-to-air, water-loop.” In this document, DOE is proposing to revise the nomenclature for these equipment classes (but not the broader category) to match that used by ASHRAE.
In order to obtain the information needed for the market assessment for this rulemaking, DOE consulted a variety of sources, including manufacturer literature, manufacturer Web sites, and the AHRI certified directory.
DOE identified the same trade groups relevant to water-source heat pumps as to those listed in section V.A.2.a for small air-cooled air conditioners and heat pumps, namely AHRI, HARDI, and ACCA. DOE used data available from AHRI in its analysis, as described in the next section.
DOE reviewed data for water-source (water-to-air, water-loop) heat pumps currently on the market by examining the AHRI Directory of Certified Product Performance. DOE identified 18 parent companies (comprising 21 manufacturers) of water-source (water-to-air, water-loop) heat pumps, which are listed in chapter 2 of the NOPR TSD. Of these manufacturers, seven were identified as small businesses based upon number of employees and the employee thresholds set by the Small Business Administration. More details on this analysis can be found below in section IX.B.
DOE reviewed the AHRI database to characterize the efficiency and performance of water-source (water-to-air, water-loop) heat pump models currently on the market. The full results of this market characterization are found in chapter 2 of the NOPR TSD. For water-source heat pumps less than 17,000 Btu/h, the average EER was 13.8, and the average coefficient of performance (COP) was 4.7. Of the models identified by DOE, 34 (six percent of the total models) have EERs rated below the ASHRAE Standard 90.1-2013 levels, and 30 (five percent of the total models) have COPs rated below the ASHRAE Standard 90.1-2013 levels. For water-source heat pumps greater than or equal to 17,000 Btu/h and less than 65,000 Btu/h, the average EER was 15.2, and the average COP was 4.9. Of the models identified by DOE, 72 (two percent of the total models) have EERs rated below the ASHRAE Standard 90.1-2013 levels, and 133 (four percent of the total models) have COPs rated below the ASHRAE Standard 90.1-2013 levels. For water-source heat pumps greater than or equal to 65,000 Btu/h and less than 135,000 Btu/h, the average EER was 14.7, and the average COP was 4.8. Of the models identified by DOE, five (one percent of the total models) have EERs rated below the ASHRAE Standard 90.1-2013 levels, and two (0.5 percent of the total models) have COPs rated below the ASHRAE Standard 90.1-2013 levels.
The engineering analysis establishes the relationship between an increase in energy efficiency and the increase in cost (manufacturer selling price (MSP)) of a piece of equipment DOE is evaluating for potential amended energy conservation standards. This relationship serves as the basis for cost-benefit calculations for individual consumers, manufacturers, and the Nation. The engineering analysis identifies representative baseline equipment, which is the starting point for analyzing possible energy efficiency improvements. For covered ASHRAE equipment, DOE sets the baseline for analysis at the ASHRAE Standard 90.1 efficiency level, because by statute, DOE cannot adopt any level below the revised ASHRAE level. The engineering analysis then identifies higher efficiency levels and the incremental increase in product cost associated with achieving the higher efficiency levels. After identifying the baseline models and cost of achieving increased efficiency, DOE estimates the additional costs to the commercial consumer through an analysis of contractor costs and markups, and uses that information in the downstream analyses to examine the costs and benefits associated with increased equipment efficiency.
DOE typically structures its engineering analysis around one of three methodologies: (1) The design-option approach, which calculates the incremental costs of adding specific design options to a baseline model; (2) the efficiency-level approach, which calculates the relative costs of achieving increases in energy efficiency levels without regard to the particular design options used to achieve such increases; and/or (3) the reverse-engineering or cost-assessment approach, which involves a “bottom-up” manufacturing cost assessment based on a detailed bill of materials derived from teardowns of the equipment being analyzed. A supplementary method called a catalog teardown uses published manufacturer catalogs and supplementary component data to estimate the major physical differences between a piece of equipment that has been physically disassembled and another piece of similar equipment for which catalog data are available to determine the cost of the latter equipment. Deciding which methodology to use for the engineering analysis depends on the equipment, the design options under study, and any historical data upon which DOE may draw.
For this analysis, DOE used a combination of the efficiency-level approach and the cost-assessment approach. DOE used the efficiency-level approach to identify incremental improvements in efficiency for each equipment class and the cost-assessment approach to develop a cost for each efficiency level. The efficiency levels that DOE considered in the engineering analysis were representative of commercial water-source heat pumps currently produced by manufacturers at the time the engineering analysis was developed. DOE relied on data reported in the AHRI Directory of Certified Product Performance to select representative efficiency levels. This directory reported EER, COP, heating and cooling capacities, and other data for all three application types (water-loop, ground-water, ground-loop) for all AHRI-certified units. After identifying representative efficiency levels, DOE used a catalog teardown or “virtual teardown” approach to estimate equipment costs at each level. DOE obtained general descriptions of key water-source heat pump components in product literature and used data collected for dozens of HVAC products to characterize the components' design details. This approach was used instead of the physical teardown approach due to time constraints.
Although there are benefits to using a catalog teardown approach, DOE notes that there are drawbacks as well. Most significantly, there are differences between water-source heat pumps and the commercial heating and cooling equipment that were physically torn down. DOE was only able to account for these difference based upon data supplied from manufacturer catalogs or component data. Therefore, there may be additional minor details or parts of the units that were not accounted for. However, DOE has tentatively concluded that this approach provides a reasonable approximation of the cost increases associated with efficiency increases by including all major parts and components. In the end, the approach allowed DOE to provide estimates of equipment prices for the range of efficiencies currently available on the market.
After selecting efficiency levels for each capacity class, as described in the sections that follow, DOE selected products for the catalog teardown analysis that corresponded to the representative efficiencies and cooling capacities. The engineering analysis included data for over 60 water-source heat pumps. DOE calculated the MPC for products spanning the full range of efficiencies from the baseline to the max-tech level for each analyzed equipment class. In some cases, catalog data providing sufficient information for cost analysis were not available at each efficiency level under consideration. Hence, DOE calculated the costs for some of the efficiency levels based on the cost/efficiency trends observed for other efficiency levels for which such catalog data were available. The engineering analysis is described in more detail in chapter 3 of the NOPR TSD.
DOE selected baseline efficiency levels as reference points for each equipment class, against which it measured changes resulting from potential amended energy conservation standards. DOE defined the baseline efficiency levels as reference points to compare the technology, energy savings, and cost of equipment with higher energy efficiency levels. Typically, units at the baseline efficiency level just meet Federal energy conservation standards and provide basic consumer utility. However, EPCA requires that DOE must adopt either the ASHRAE Standard 90.1-2013 levels or more-stringent levels. Therefore, because the ASHRAE Standard 90.1-2013 levels were the lowest levels that DOE could adopt, DOE used those levels as the reference points against which more-stringent levels were evaluated. Table VI.1 shows the current baseline and ASHRAE efficiency levels for each water-source heat pump equipment class. In Table VI.2 below, the ASHRAE levels are designated “0” and more-stringent levels are designated 1, 2, and so on.
DOE developed and considered potential increased energy efficiency levels for each equipment class. These more-stringent efficiency levels are representative of efficiency levels along the technology paths that manufacturers of residential heating products commonly use to maintain cost-effective designs while increasing energy efficiency. DOE developed more-stringent energy efficiency levels for each of the equipment classes, based on a review of AHRI's Directory of Certified Product Performance, manufacturer catalogs, and other publicly-available literature. The efficiency levels selected for analysis for each water-source heat pump equipment class are shown in Table VI.2. Chapter 3 of the NOPR TSD shows additional details on the efficiency levels selected for analysis.
The results of the engineering analysis are cost-efficiency curves based on results from the cost models for analyzed units. DOE's calculated MPCs for the three analyzed classes of water-source heat pumps are shown in Table VI.3. DOE used the cost-efficiency curves from the engineering analysis as an input for the life-cycle cost and PBP analysis. Further details regarding MPCs for water-source heat pumps may be found in chapter 3 of the NOPR TSD.
As discussed in detail in section V.B.4.a, DOE applies a non-production cost multiplier (the manufacturer markup) to the full MPC to account for corporate non-production costs and profit. The resulting manufacturer selling price (MSP) is the price at which the manufacturer can recover all production and nonproduction costs and earn a profit. Because water-source heat pumps and commercial air-cooled equipment are sold by similar heating and cooling product manufacturers, DOE used the same manufacturer markup of 1.3 that was developed for small commercial air-cooled air-conditioners and heat pumps, as described in chapter 3 of the NOPR TSD.
Manufacturers of commercial HVAC equipment typically pay for freight (shipping) to the first step in the distribution chain. Freight is not a manufacturing cost, but because it is a substantial cost incurred by the manufacturer, DOE accounts for shipping costs separately from other non-production costs that comprise the manufacturer markup. DOE calculated the MSP for water-source heat pumps by multiplying the MPC at each efficiency level (determined from the cost model) by the manufacturer markup and adding shipping costs. Shipping costs for water-source heat pumps were calculated similarly to those for small commercial air-cooled air-conditioners and heat pumps described in section V.B.4.b. See chapter 3 of the NOPR TSD for more details about DOE's shipping cost assumptions and the shipping costs per unit for each water-source heat pump product class.
The markups analysis develops appropriate markups in the distribution chain to convert the estimates of manufacturer selling price derived in the engineering analysis to commercial consumer prices. (“Commercial consumer” refers to purchasers of the equipment being regulated.) DOE calculates overall baseline and incremental markups based on the equipment markups at each step in the distribution chain. The incremental markup relates the change in the manufacturer sales price of higher-efficiency models (the incremental cost increase) to the change in the commercial consumer price.
For water-source heat pumps, DOE used the same markups that were developed for small commercial air-cooled air-conditioners and heat pumps, as discussed in section V.C. DOE understands that the equipment move through the same distribution channels and that, therefore, using the same markups is reasonable. In addition, DOE's development of markups within those channels is at the broader equipment category level, in this case heating, ventilation, and air-conditioning equipment. As with small commercial air-cooled equipment, DOE did not use national accounts in its markups analysis for water-source heat pumps, because DOE does not believe that the commercial consumers of water-source heat pump equipment less than 135,000 Btu/h would typically be national retail chains that negotiate directly with manufacturers. DOE seeks comment on whether the use of national accounts would be appropriate in this analysis. This is identified as Issue 6 under “Issues on Which DOE Seeks Comment” in section X.E of this NOPR.
Chapter 6 of the NOPR TSD provides further detail on the estimation of markups.
The energy use analysis provides estimates of the annual energy consumption of water-source heat pumps at the considered efficiency levels. DOE uses these values in the LCC and PBP analyses and in the NIA.
The cooling unit energy consumption (UEC) by equipment type and efficiency level used in the April 11, 2014 NODA came from Appendix D of the 2000 Screening Analysis for EPACT-Covered Commercial HVAC and Water-Heating Equipment. (EERE-2006-STD-0098-0015) 79 FR 20114, 20126-27. Where identical efficiency levels were available, DOE used the UEC directly from the screening analysis. For additional efficiency levels, DOE scaled the UECs based on the ratio of EER, as was done in the original analysis. In response to the NODA, AHRI commented that DOE should use up-to-date data to estimate the cooling UEC of water-source heat pumps, because significant improvements have been made in envelope construction in the 14 years since the screening analysis was performed. (AHRI, No. 24 at p. 6) In reviewing this comment, DOE found that the NEMS commercial demand module accounts for improvements in building shell characteristics and changes in internal load by adjusting the cooling energy use with a factor that is a function of region and building activity. Consequently, for this NOPR, DOE used these factors to adjust the cooling energy use from the 2000 Screening Analysis.
In the April 11, 2014 NODA, DOE did not analyze heating UECs for water-source heat pumps because of lack of data availability. 79 FR 20114, 20126. DOE requested input and data related to this topic but did not receive any. For this NOPR, to characterize the heating-side performance, DOE analyzed CBECS 2003 data to develop a national-average annual energy use per square foot for buildings that use heat pumps. DOE assumed that the average COP of the commercial unitary heat pump (CUHP) was 2.9.
Because equipment energy use is a function of efficiency, DOE assumed that the annual heating energy consumption of a unit scales proportionally with its heating COP efficiency level. Finally, to determine the COPs of units with given EERs, DOE correlated COP to EER based on the AHRI Certified Equipment Database.
In order to create variability in the cooling and heating UECs by region and building type, DOE used a Pacific Northwest National Laboratory report
The purpose of the LCC and PBP analysis is to analyze the effects of potential amended energy conservation standards on commercial consumers of water-source heat pumps by determining how a potential amended standard affects their operating expenses (usually decreased) and their total installed costs (usually increased).
The LCC is the total consumer expense over the life of the equipment, consisting of equipment and installation costs plus operating costs (
For any given efficiency level, DOE measures the PBP and the change in LCC relative to an estimate of the base-case efficiency level. For water-source heat pumps, the base-case estimate reflects the market in the case where the ASHRAE level becomes the Federal minimum, and the LCC calculates the LCC savings likely to result from higher efficiency levels compared with the ASHRAE base case.
DOE conducted an LCC and PBP analysis for water-source heat pumps using a computer spreadsheet model. When combined with Crystal Ball (a commercially-available software program), the LCC and PBP model generates a Monte Carlo simulation to perform the analyses by incorporating uncertainty and variability considerations in certain of the key parameters as discussed below. Inputs to the LCC and PBP analysis are categorized as: (1) Inputs for establishing the total installed cost and (2) inputs for calculating the operating expense. The following sections contain brief discussions of comments on the inputs and key assumptions of DOE's LCC and PBP analysis and explain how DOE took these comments into consideration. They are also described in detail in chapter 6 of the NOPR TSD.
In the LCC and PBP analysis, the equipment costs faced by purchasers of water-source heat pumps are derived from the MSPs estimated in the engineering analysis, the overall markups estimated in the markups analysis, and sales tax.
To develop an equipment price trend for the NOPR, DOE derived an inflation-adjusted index of the PPI for “all other miscellaneous refrigeration and air-conditioning equipment” from 1990-2013, which is the PPI series most relevant to water-source heat pumps. Although the inflation-adjusted index shows a declining trend from 1990 to 2004, data since 2008 have shown a flat-to-slightly rising trend. Given the uncertainty as to which of the trends will prevail in coming years, DOE chose to apply a constant price trend (at 2013 levels) for each efficiency level in each equipment class for the NOPR. See chapter 6 of the NOPR TSD for more information on the price trends.
DOE derived installation costs for water-source heat pump equipment from current RS Means data (2013).
Based on these data, DOE tentatively concluded that data for 1-ton, 3-ton, and 7.5-ton water-source heat pumps would be sufficiently representative of the installation costs for of water-source heat pumps with capacities of less than 17,000 btu/h, greater than or equal to 17,000 and less than 65,000 btu/h, and greater than or equal to 65,000 and less than 135,000 btu/h, respectively.
DOE also varied installation cost as a function of equipment weight. Because weight tends to increase with equipment efficiency, installation cost increased with equipment efficiency. The weight of the equipment in each class and efficiency level was determined through the engineering analysis.
The calculation of annual per-unit energy consumption by each class of the subject water-source heat pumps at each considered efficiency level based on the energy use analysis is described above in section VI.D and in chapter 4 of the NOPR TSD.
DOE used the same average and marginal electricity prices and electricity price trends as discussed in the methodology for small commercial air-cooled air conditioners and heat pumps (see section V.E.4). These data were developed for the broader commercial air-conditioning category and, thus, are also relevant to water-source heat pumps.
Maintenance costs are costs to the commercial consumer of ensuring continued operation of the equipment (
Repair costs are costs to the commercial consumer associated with repairing or replacing components that have failed. As with maintenance costs, RS Means does not provide repair costs for water-source heat pumps. Therefore, DOE assumed the repair costs for water-source heat pumps would be similar to air-source units and utilized RS Means
Equipment lifetime is the age at which the subject water-source heat pump are retired from service. In the April 11, 2014 NODA, DOE used a mean lifetime of 19 years from the 2000 screening analysis for EPACT-Covered Commercial HVAC and Water-Heating Equipment (EERE-2006-STD-0098-0015). 79 FR 20114, 20133. For this NOPR, DOE based equipment lifetime on a retirement function in the form of a Weibull probability distribution. Because a function specific to water-source heat pumps was not available, DOE used that for air-cooled air conditioners presented in the 2011 DFR (EERE-2011-BT-STD-0011-0012), as it is for similar equipment and represented the desired mean lifetime of 19 years. DOE requests data and information that would help it develop a retirement function specific to water-source heat pumps. This is identified as Issue 11 under “Issues on Which DOE Seeks Comment” in section X.E of this NOPR.
The discount rate is the rate at which future expenditures are discounted to estimate their present value. The cost of capital commonly is used to estimate the present value of cash flows to be derived from a typical company project or investment. Most companies use both debt and equity capital to fund investments, so the cost of capital is the weighted-average cost of capital (WACC) to the firm of equity and debt financing. DOE uses the capital asset pricing model (CAPM) to calculate the equity capital component, and financial data sources to calculate the cost of debt financing.
DOE derived the discount rates by estimating the cost of capital of companies that purchase water-source heat pump equipment. More details regarding DOE's estimates of commercial consumer discount rates are provided in chapter 6 of the NOPR TSD.
For the LCC analysis, DOE analyzes the considered efficiency levels relative to a base case (
DOE calculated the LCC and PBP for all commercial consumers as if each were to purchase new equipment in the year that compliance with amended standards is required. Generally, covered equipment to which a new or amended energy conservation standard applies must comply with the standard if such equipment is manufactured or imported on or after a specified date. In this NOPR, DOE is evaluating whether more-stringent efficiency levels than those in ASHRAE Standard 90.1-2013 would be technologically feasible, economically justified, and result in a significant additional amount of energy savings. If DOE were to propose a rule prescribing energy conservation standards at the efficiency levels contained in ASHRAE Standard 90.1-2013, EPCA states that compliance with any such standards shall be required on or after a date which is two or three years (depending on equipment size) after the compliance date of the applicable minimum energy efficiency requirement in the amended ASHRAE/IES standard. (42 U.S.C. 6313(a)(6)(D)) Given the equipment size at issue here, DOE has applied the two-year implementation period to determine the compliance date of any energy conservation standard equal to the efficiency levels specified by ASHRAE Standard 90.1-2013 proposed by this rulemaking. Thus, if DOE decides to adopt the efficiency levels in ASHRAE Standard 90.1-2013, the compliance date of the rulemaking would be dependent upon the date specified in ASHRAE Standard 90.1-2013 or its publication date, if none is specified. In this case, the rule would apply to water-source heat pumps manufactured on or after October 9, 2015, which is two years after the publication date of ASHRAE Standard 90.1-2013.
If DOE were to propose a rule prescribing energy conservation standards more stringent than the efficiency levels contained in ASHRAE Standard 90.1-2013, EPCA states that compliance with any such standards is required for equipment manufactured on or after a date which is four years after the date the final rule is published in the
Economic justification is not required for DOE to adopt the efficiency levels in ASHRAE 90.1-2013, as DOE is statutorily required to, at a minimum, adopt those levels. Therefore, DOE did not perform an LCC analysis on the ASHRAE Standard 90.1-2013 levels, and, for purposes of the LCC analysis, DOE used 2020 as the first year of compliance with amended standards.
The payback period is the amount of time it takes the commercial consumer to recover the additional installed cost of more-efficient equipment, compared to baseline equipment, through energy cost savings. Payback periods are expressed in years. Payback periods that exceed the life of the equipment mean that the increased total installed cost is not recovered in reduced operating expenses.
Similar to the LCC, the inputs to the PBP calculation are the total installed cost of the equipment to the commercial consumer for each efficiency level and the average annual operating expenditures for each efficiency level for each building type and Census Division, weighted by the probability of shipment to each market. The PBP calculation uses the same inputs as the LCC analysis, except that discount rates are not needed. Because the simple PBP does not take into account changes in operating expenses over time or the time value of money, DOE considered only the first year's operating expenses to calculate the PBP, unlike the LCC, which is calculated over the lifetime of the equipment. Chapter 6 of the NOPR TSD provides additional detail about the PBP.
The NIA evaluates the effects of a considered energy conservation standard from a national perspective rather than from the consumer perspective represented by the LCC. This analysis assesses the NPV (future amounts discounted to the present) and the NES of total commercial consumer costs and savings, which are expected to result from amended standards at specific efficiency levels. For each efficiency level analyzed, DOE calculated the NPV and NES for adopting more-stringent standards than the efficiency levels specified in ASHRAE Standard 90.1-2013.
The NES refers to cumulative energy savings from 2016 through 2045;
The NPV refers to cumulative monetary savings. DOE calculated net monetary savings in each year relative to the base case (ASHRAE Standard 90.1-2013) as the difference between total operating cost savings and increases in total installed cost. Cumulative savings are the sum of the annual NPV over the specified period. DOE accounted for operating cost savings until past 2100, when the equipment installed in the thirtieth year after the compliance date of the amended standards should be retired.
The NES and NPV are a function of the total number of units and their efficiencies. Both the NES and NPV depend on annual shipments and equipment lifetime. Both calculations start by using the shipments estimate and the quantity of units in service derived from the shipments model. DOE used the same approach to determine NES and NPV for water-source heat pumps which was used for small commercial air-cooled air-conditioning and heating equipment, as described in section V.F.1. In this case, the analysis period runs from 2016 through 2045.
DOE considered whether a rebound effect is applicable in its NES analysis, a concept explained in detail in section V.F.1. DOE does not expect commercial consumers with water-source heat pump equipment to increase their use of the equipment, either in a previously cooled space or another previously uncooled space. Water-source heat pumps are part of engineered water-loop systems designed for specific applications. It is highly unlikely that the operation or installation of these systems would be changed simply as a result of energy cost savings. Therefore, DOE did not assume a rebound effect in the present NOPR analysis. DOE seeks input from interested parties on whether there will be a rebound effect for improvements in the efficiency of water-source heat pumps. If interested parties believe a rebound effect would occur, DOE is interested in receiving data quantifying the effects, as well as input regarding how DOE should quantify this in its analysis. This is identified as Issue 3 under “Issues on Which DOE Seeks Comment” in section X.E of this NOPR.
Equipment shipments are an important element in the estimate of the future impact of a potential energy conservation standard. DOE developed shipment projections for water-source heat pumps and, in turn, calculated equipment stock over the course of the analysis period by assuming a Weibull distribution with an average 19-year equipment life. (See section V.E.7 for more information on equipment lifetime.) DOE used the shipments projection and the equipment stock to determine the NES. The shipments portion of the spreadsheet model projects water-source heat pump shipments through 2045.
In the April 11, 2014 NODA, DOE based its shipments analysis for water-source heat pumps on data from the U.S. Census. 79 FR 20114, 20130. The U.S. Census published historical (1980, 1983-1994, 1997-2006, and 2008-2010) water-source heat pump shipment data.
In the April 11, 2014 NODA, DOE noted that an EIA report on geothermal heat pump manufacturers
In the April 11, 2014 NODA, DOE requested comment on the market for water-source heat pumps, especially what magnitude of annual shipments is most accurate and how shipments are expected to change over time. DOE also sought comment on the share of the market for ground-source and ground-water-source heat pump applications that use models also rated for water-loop application.
As equipment purchase price and repair costs increase with efficiency, DOE recognizes that higher first costs and repair costs can result in a drop in shipments. However, DOE had no basis for estimating the elasticity of shipments for water-source heat pumps as a function of first costs, repair costs, or operating costs. In addition, because water-source heat pumps are often installed for their higher efficiency as compared to air-cooled equipment, DOE has tentatively concluded that it is unlikely that shipments would change as a result of higher first costs and repair costs. Therefore, DOE presumed that the shipments projection would not change with higher standard levels. DOE seeks input on this assumption. This is identified as Issue 4 under “Issues on Which DOE Seeks Comment” in section X.E of this NOPR. Chapter 7 of the NOPR TSD provides additional details on the shipments forecasts.
In the April 11, 2014 NODA, DOE presented base-case efficiency distributions based on model
For this NOPR, DOE has estimated a base-case efficiency trend of an increase of approximately 1 EER every 35 years, based on the trend from 2012 to 2035 found in the Commercial Unitary Air Conditioner Advance Notice of Proposed Rulemaking (ANOPR).
As in the April 11, 2014 NODA, for each efficiency level analyzed, DOE used a “roll-up” scenario to establish the market shares by efficiency level for the first full year that compliance would be required with amended standards (
The stock of water-source heat pump equipment is the total number of units in each equipment class purchased or shipped from previous years that have survived until a given point in time. The NES spreadsheet,
The national annual energy consumption is the product of the annual unit energy consumption and the number of units of each vintage in the stock, summed over all vintages. This approach accounts for differences in unit energy consumption from year to year. In determining national annual energy consumption, DOE estimated energy consumption and savings based on site energy and converted the electricity consumption and savings to primary energy using annual conversion factors derived from the
In response to the recommendations of a committee on “Point-of-Use and Full-Fuel-Cycle Measurement Approaches to Energy Efficiency Standards” appointed by the National Academy of Sciences, DOE announced its intention to use FFC measures of energy use and greenhouse gas and other emissions in the national impact analyses and emissions analyses included in future energy conservation standards rulemakings. 76 FR 51281 (Aug. 18, 2011). After evaluating the approaches discussed in the August 18, 2011 notice, DOE published a statement of amended policy in the
Table VI.8 summarizes the inputs to the NES spreadsheet model along with a brief description of the data sources. The results of DOE's NES and NPV analysis are summarized in section VIII.B.2.b and described in detail in chapter 7 of the NOPR TSD.
In the emissions analysis, DOE estimates the reduction in power sector emissions of carbon dioxide (CO
DOE primarily conducted the emissions analysis using emissions factors for CO
EIA prepares the
SO
The attainment of emissions caps is typically flexible among EGUs and is enforced through the use of emissions allowances and tradable permits. Beginning in 2016, however, SO
CAIR established a cap on NO
The MATS limit mercury emissions from power plants, but they do not include emissions caps. DOE estimated mercury emissions using emissions factors based on
As part of the development of this proposed rule, DOE considered the estimated monetary benefits from the reduced emissions of CO
For this NOPR, DOE relied on a set of values for the social cost of carbon (SCC) that was developed by a Federal interagency process. The basis for these values is summarized in the next section, and a more detailed description of the methodologies used is provided as an appendix to chapter 14 of the NOPR TSD.
The SCC is an estimate of the monetized damages associated with an incremental increase in carbon emissions in a given year. It is intended to include (but is not limited to) changes in net agricultural productivity, human health, property damages from increased flood risk, and the value of ecosystem services. Estimates of the SCC are provided in dollars per metric ton of CO
Under section 1(b) of Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993), agencies must, to the extent permitted by law, “assess both the costs and the benefits of the intended regulation and, recognizing that some costs and benefits are difficult to quantify, propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs.” The purpose of the SCC estimates presented here is to allow agencies to incorporate the monetized social benefits of reducing CO
As part of the interagency process that developed these SCC estimates, technical experts from numerous agencies met on a regular basis to consider public comments, explore the technical literature in relevant fields, and discuss key model inputs and assumptions. The main objective of this process was to develop a range of SCC values using a defensible set of input assumptions grounded in the existing scientific and economic literatures. In this way, key uncertainties and model differences transparently and consistently inform the range of SCC estimates used in the rulemaking process.
When attempting to assess the incremental economic impacts of CO
Despite the limits of both quantification and monetization, SCC estimates can be useful in estimating the social benefits of reducing CO
It is important to emphasize that the interagency process is committed to updating these estimates as the science and economic understanding of climate change and its impacts on society improves over time. In the meantime, the interagency group will continue to explore the issues raised by this analysis and consider public comments as part of the ongoing interagency process.
In 2009, an interagency process was initiated to offer a preliminary assessment of how best to quantify the benefits from reducing carbon dioxide emissions. To ensure consistency in how benefits are evaluated across Federal agencies, the Administration sought to develop a transparent and defensible method, specifically designed for the rulemaking process, to quantify avoided climate change damages from reduced CO
After the release of the interim values, the interagency group reconvened on a regular basis to generate improved SCC estimates. Specifically, the group considered public comments and further explored the technical literature in relevant fields. The interagency group relied on three integrated assessment models commonly used to estimate the SCC: the FUND, DICE, and PAGE models. These models are frequently cited in the peer-reviewed literature and were used in the last assessment of the Intergovernmental Panel on Climate Change (IPCC). Each model was given equal weight in the SCC values that were developed.
Each model takes a slightly different approach to model how changes in emissions result in changes in economic damages. A key objective of the interagency process was to enable a consistent exploration of the three models, while respecting the different approaches to quantifying damages taken by the key modelers in the field. An extensive review of the literature was conducted to select three sets of input parameters for these models: Climate sensitivity, socio-economic and emissions trajectories, and discount rates. A probability distribution for climate sensitivity was specified as an input into all three models. In addition, the interagency group used a range of scenarios for the socio-economic parameters and a range of values for the discount rate. All other model features were left unchanged, relying on the model developers' best estimates and judgments.
In 2010, the interagency group selected four sets of SCC values for use in regulatory analyses. Three sets of values are based on the average SCC from the three integrated assessment models, at discount rates of 2.5, 3, and 5 percent. The fourth set, which represents the 95th percentile SCC estimate across all three models at a 3-percent discount rate, was included to represent higher-than-expected impacts from climate change further out in the tails of the SCC distribution. The values grow in real terms over time. Additionally, the interagency group determined that a range of values from 7 percent to 23 percent should be used to adjust the global SCC to calculate domestic effects,
The SCC values used for this document were generated using the most recent versions of the three integrated assessment models that have been published in the peer-reviewed literature.
Table VII.2 shows the updated sets of SCC estimates from the 2013 interagency update in 5-year increments from 2010 to 2050. The full set of annual SCC estimates between 2010 and 2050 is reported in appendix 10-B of the NOPR TSD. The central value that emerges is the average SCC across models at the 3-percent discount rate. However, for purposes of capturing the uncertainties involved in regulatory impact analysis, the interagency group emphasizes the importance of including all four sets of SCC values.
It is important to recognize that a number of key uncertainties remain, and that current SCC estimates should be treated as provisional and revisable because they will evolve with improved scientific and economic understanding. The interagency group also recognizes that the existing models are imperfect and incomplete. The 2009 National Research Council report mentioned previously points out that there is tension between the goal of producing quantified estimates of the economic damages from an incremental ton of carbon and the limits of existing efforts to model these effects. There are a number of analytical challenges that are being addressed by the research community, including research programs housed in many of the Federal agencies participating in the interagency process to estimate the SCC. The interagency group intends to periodically review and reconsider those estimates to reflect increasing knowledge of the science and economics of climate impacts, as well as improvements in modeling.
In summary, in considering the potential global benefits resulting from reduced CO
DOE multiplied the CO
As noted previously, DOE has taken into account how considered energy conservation standards would reduce site NO
DOE is evaluating appropriate monetization of avoided SO
The methodology for small commercial air-cooled air conditioners and heat pumps less than 65,000 Btu/h was presented in section V of this NOPR. Table VIII.1 presents the market baseline efficiency level and the higher efficiency levels analyzed for each equipment class of small commercial air-cooled air conditioners and heat pumps less than 65,000 Btu/h subject to this proposed rule. The EPCA baseline efficiency levels correspond to the lowest efficiency levels currently available on the market. The efficiency levels above the baseline represent efficiency levels specified by ASHRAE Standard 90.1-2013 and efficiency levels more stringent than those specified in ASHRAE Standard 90.1-2013 where equipment is currently available on the market. Note that for the energy savings and economic analysis, efficiency levels above those specified in ASHRAE Standard 90.1-2013 are compared to ASHRAE Standard 90.1-2013 as the baseline rather than the EPCA baseline (
Table VIII.2 presents the baseline efficiency level and the more-stringent efficiency levels analyzed for each equipment class of water-source heat pumps subject to this proposed rule. The baseline efficiency levels correspond to the lowest efficiency levels currently available on the market. The efficiency levels above the baseline represent efficiency levels specified in ASHRAE Standard 90.1-2013 and more-stringent efficiency levels where equipment is currently available on the market.
The methodology for oil-fired storage water heating equipment was presented in the April 2014 NODA. 79 FR 20114, 20129-33 (April 11, 2014). Table VIII.3 presents the baseline efficiency level and the more-stringent efficiency levels analyzed for the class of oil-fired storage water heaters subject to this proposed rule. The baseline efficiency levels correspond to the lowest efficiency levels currently available on the market. The efficiency levels above the baseline represent efficiency levels specified in ASHRAE Standard 90.1-2013 and more-stringent efficiency levels where equipment is currently available on the market.
To evaluate the net economic impact of potential amended energy conservation standards on commercial consumers of small commercial air-cooled air conditioners and heat pumps, DOE conducted LCC and PBP analyses for each efficiency level. In general, higher-efficiency equipment would affect commercial consumers in two ways: (1) Purchase price would increase, and (2) annual operating costs would decrease. Inputs used for calculating the LCC and PBP include total installed costs (
The output of the LCC model is a mean LCC savings (or cost
DOE also performed a PBP analysis as part of the LCC analysis. The PBP is the number of years it would take for the commercial consumer to recover the increased costs of higher-efficiency equipment as a result of energy savings based on the operating cost savings. The PBP is an economic benefit-cost measure that uses benefits and costs without discounting. Chapter 6 of the NOPR TSD provides detailed information on the LCC and PBP analyses.
DOE's LCC and PBP analyses provided five key outputs for each efficiency level above the baseline (
Chapter 6 of the NOPR TSD provides detailed information on the LCC and PBP analyses.
Table VIII.4 through Table VIII.11 show the LCC and PBP results for all efficiency levels considered for each class of small commercial air-cooled air conditioner and heat pump in this NOPR. In the first of each pair of tables, the simple payback is measured relative to the baseline equipment (
To estimate the lifetime energy savings for equipment shipped through 2046 (or 2048) due to amended energy conservation standards, DOE compared the energy consumption of small commercial air-cooled air conditioners and heat pumps less than 65,000 Btu/h under the ASHRAE Standard 90.1-2013 efficiency levels (or current Federal levels for split-system air conditioners) to energy consumption of the same small commercial air-cooled air conditioners and heat pumps under more-stringent efficiency standards. For the three equipment classes triggered by ASHRAE, DOE also compared the energy consumption of those small commercial air-cooled air conditioners and heat pumps under the ASHRAE Standard 90.1-2013 efficiency levels to energy consumption of small commercial air-cooled air conditioners and heat pumps under the current EPCA base case (
The NPV analysis is a measure of the cumulative commercial consumer benefit or cost of standards to the Nation. In accordance with OMB's guidelines on regulatory analysis (OMB Circular A-4, section E (Sept. 17, 2003)), DOE calculated NPV using both a 7-percent and a 3-percent real discount rate. Table VIII.16 and Table VIII.17 provide an overview of the NPV results. (See chapter 8 of the NOPR TSD for further detail.)
Table VIII.18 through Table VIII.23 show the LCC and PBP results for all efficiency levels considered for each class of water-source heat pump in this NOPR. In the first of each pair of tables, the simple payback is measured relative to the baseline equipment (
To estimate the lifetime energy savings for equipment shipped through 2045 due to amended energy conservation standards, DOE compared the energy consumption of commercial water-source heat pumps under the ASHRAE Standard 90.1-2013 efficiency levels to energy consumption of the same water-source heat pumps under more-stringent efficiency standards. DOE also compared the energy consumption of those commercial water-source heat pumps under the ASHRAE Standard 90.1-2013 efficiency levels to energy consumption of commercial water-source heat pumps under the current EPCA base case (
Table VIII.27 and Table VIII.28 provide an overview of the NPV results. (See chapter 8 of the NOPR TSD for further detail.)
DOE estimated the potential primary energy savings in quads (
As mentioned in section IV.B, DOE did not conduct an economic analysis for this oil-fired storage water heater equipment category because of the minimal energy savings.
An improvement in the energy efficiency of the equipment subject to this rule, where economically justified, is likely to improve the security of the nation's energy system by reducing overall demand for energy, to strengthen the economy, and to reduce the environmental impacts or costs of energy production. Reduced electricity demand may also improve the reliability of the electricity system, particularly during peak-load periods. Reductions in national electric generating capacity estimated for each efficiency level considered in this rulemaking, throughout the same analysis period as the NIA, are reported in chapter 11 of the NOPR TSD.
Energy savings from amended standards for the small air-cooled air conditioners and heat pumps less than 65,000 Btu/h, water-source heat pumps, and oil-fired storage water heaters covered in this NOPR could also produce environmental benefits in the form of reduced emissions of air pollutants and greenhouse gases.
Table VIII.30 and Table VIII.31 provide DOE's estimate of cumulative emissions reductions projected to result from the efficiency levels analyzed in this rulemaking.
As part of the analysis for this NOPR, DOE estimated monetary benefits likely to result from the reduced emissions of CO
Table VIII.32 and Table VIII.33 present the global value of CO
DOE is well aware that scientific and economic knowledge about the contribution of CO
DOE also estimated a range for the cumulative monetary value of the economic benefits associated with NO
Table VIII.34 and Table VIII.35 present the present value of cumulative NO
As noted previously, EPCA specifies that, for any commercial and industrial equipment addressed under 42 U.S.C. 6313(a)(6)(A)(i), DOE may prescribe an energy conservation standard more stringent than the level for such equipment in ASHRAE Standard 90.1, as amended, only if “clear and convincing evidence” shows that a more-stringent standard would result in significant additional conservation of energy and is technologically feasible and economically justified. (42 U.S.C. 6313(a)(6)(A)(ii)(II)) This requirement also applies to split-system air conditioners evaluated under the 6-year look back. (42 U.S.C. 6313)(a)(6)(C)(i)(II))
In evaluating more-stringent efficiency levels than those specified by ASHRAE Standard 90.1-2013 for small air-cooled air conditioners and heat pumps less than 65,000 Btu/h, DOE reviewed the results in terms of their technological feasibility, significance of energy savings, and economic justification.
DOE has tentatively concluded that all of the SEER and HSPF levels considered by DOE are technologically feasible, as units with equivalent efficiency appeared to be available in the current market at all levels examined.
DOE examined the potential energy savings that would result from the efficiency levels specified in ASHRAE Standard 90.1-2013 and compared these to the potential energy savings that would result from efficiency levels more stringent than those in ASHRAE Standard 90.1-2013. DOE estimates that 0.05 quads of energy would be saved if DOE adopts the efficiency levels set in ASHRAE Standard 90.1-2013 for each small air-cooled air conditioner and heat pump class specified in that standard. If DOE were to adopt efficiency levels more stringent than those specified by ASHRAE Standard 90.1-2013, the potential additional energy savings range from 0.02 quads to 0.45 quads. Associated with proposing more-stringent efficiency levels for the three triggered equipment classes is a three-year delay in implementation compared to the adoption of energy conservation standards at the levels specified in ASHRAE Standard 90.1-2013 (see section V.E.10). This delay in
In considering whether potential standards are economically justified, DOE also examined the LCC savings and national NPV that would result from adopting efficiency levels more stringent than those set forth in ASHRAE Standard 90.1-2013. The analytical results show negative average LCC savings and negative national NPV at both 7-percent and 3-percent discount rate for all efficiency levels in all four equipment classes. These results indicate that adoption of efficiency levels more stringent than those in ASHRAE Standard 90.1-2013 as Federal energy conservation standards would likely lead to negative economic outcomes for the Nation. Consequently, this criterion for adoption of more-stringent standard levels does not appear to have been met.
As such, DOE does not have “clear and convincing evidence” that any significant additional conservation of energy that would result from adoption of more-stringent efficiency levels than those specified in ASHRAE Standard 90.1-2013 would be economically justified. Therefore, DOE is proposing to adopt the energy efficiency levels for these products as set forth in ASHRAE Standard 90.1-2013. For split-system air conditioners, for which the efficiency level was not updated in Standard 90.1-2013, DOE is making a determination that standards for the product do not need to be amended for the reasons stated above. Table VIII.36 presents the proposed amended energy conservation standards and compliance dates for small air-cooled air conditioners and heat pumps less than 65,000 Btu/h.
In evaluating more-stringent efficiency levels for water-source heat pumps than those specified by ASHRAE Standard 90.1-2013, DOE reviewed the results in terms of their technological feasibility, significance of energy savings, and economic justification.
DOE has tentatively concluded that all of the EER and COP levels considered by DOE are technologically feasible, as units with equivalent efficiency appeared to be available in the current market at all levels examined.
DOE examined the potential energy savings that would result from the efficiency levels specified in ASHRAE Standard 90.1-2013 and compared these to the potential energy savings that would result from efficiency levels more stringent than those in ASHRAE Standard 90.1-2013. DOE does not estimate any energy savings from adopting the levels set in ASHRAE Standard 90.1-2013, as very few models exist on the market below that level, and by 2020, DOE expects those models to be off the market. If DOE were to adopt efficiency levels more stringent than those specified by ASHRAE Standard 90.1-2013, the potential additional energy savings range from 0.03 quads to 1.0 quads. Associated with proposing more-stringent efficiency levels is a four-and-a-half-year delay in implementation compared to the adoption of energy conservation standards at the levels specified in ASHRAE Standard 90.1-2013 (see section VI.E.10). This delay in implementation of amended energy conservation standards would result in a small amount of energy savings being lost in the first years (2016 through 2020) compared to the savings from adopting the levels in ASHRAE Standard 90.1-2013; however, this loss may be compensated for by increased savings in later years. Taken in isolation, the energy savings associated with more-stringent standards might be considered significant enough to warrant adoption of such standards. However, as noted above, energy savings are not the only factor which DOE must consider.
In considering whether potential standards are economically justified, DOE also examined the NPV that would result from adopting efficiency levels more stringent than those set forth in ASHRAE Standard 90.1-2013. With a 7-percent discount rate, EL 1 results in positive NPV, and ELs 2 through 5 result in negative NPV. With a 3-percent discount rate, ELs 1 and 2 create positive NPV, while ELs 3 through 5 result in negative NPVs. These results indicate that adoption of efficiency levels more stringent than those in ASHRAE Standard 90.1-2013 as Federal energy conservation standards might lead to negative economic outcomes for the Nation, except at EL1, which offers very little energy savings.
Furthermore, although DOE based it analyses on the best available data when examining the potential energy savings and the economic justification of efficiency levels more stringent than those specified in ASHRAE Standard 90.1-2013, DOE believes there are several limitations regarding that data which should be considered before proposing amended energy conservation standards for water-source heat pumps.
First, DOE reexamined the uncertainty in its analysis of water-source heat pumps. As noted in section VI.D, DOE relied on cooling energy use estimates from a 2000 study. While DOE applied a scaling factor to attempt to account for changes in buildings since
Second, in developing its analysis, DOE made refinements to various inputs, such as heating UEC and repair cost. DOE observed that the NPV results were highly sensitive to small changes in these inputs, with NPV for EL 2, for example, changing from positive to negative and back over several iterations. This model sensitivity, combined with high uncertainty in various inputs, makes it difficult for DOE to determine that the results provide clear and convincing evidence that higher standards would be economically justified.
Third, DOE relied on shipments estimates from the U.S. Census. As noted in section VI.F.2, these estimates are considerably higher than those found in an EIA report. Furthermore, DOE disaggregated the shipments into equipment class using data from over a decade ago. Although DOE requested comment in the April 2014 NODA, DOE has not received any information or data regarding the shipments of this equipment. Any inaccuracy in the shipment projection in total or by equipment class contributes to the uncertainty of the energy savings results and, thus, makes it difficult for DOE to determine that any additional energy savings are significant.
Fourth, due to the limited data on the existing distribution of shipments by efficiency level or historical efficiency trends, DOE was not able to assess possible future changes in either the available efficiencies of equipment in the water-source heat pump market or the sales distribution of shipments by efficiency level in the absence of setting more-stringent standards. Instead, DOE applied an efficiency trend from a commercial air conditioner rulemaking published 10 years ago. DOE recognizes that manufacturers may continue to make future improvements in water-source heat pump efficiencies even in the absence of mandated energy conservation standards. In particular, water-source heat pumps tend to be a fairly efficient product, and the distribution of model availability indicates that many commercial consumers are already purchasing equipment well above the baseline. Consequently, it is likely that the true improvements in efficiency in the absence of a standard may be higher than estimated. This possibility increases the uncertainty of the energy savings estimates. To the extent that manufacturers improve equipment efficiency and commercial consumers choose to purchase improved products in the absence of standards, the energy savings estimates would likely be reduced.
In light of the above, DOE would again restate the statutory test for adopting energy conservation standards more stringent than the levels in ASHRAE Standard 90.1. DOE must have “clear and convincing” evidence in order to propose efficiency levels more stringent than those specified in ASHRAE Standard 90.1-2013, and for the reasons explained in this document, the totality of information does not meet the level necessary to support these more-stringent efficiency levels for water-source heat pumps. Consequently, DOE has tentatively decided to propose the efficiency levels in ASHRAE Standard 90.1-2013 as amended energy conservation standards for all three water-source heat pump equipment classes. Accordingly, Table VIII.37 presents the proposed amended energy conservation standards and compliance dates for water-source heat pumps.
DOE seeks comments from interested parties on its proposed amended energy conservation standards for water-source heat pumps, as well as the other efficiency levels considered. This is identified as Issue 12 under “Issues on Which DOE Seeks Comment” in section X.E of this NOPR. Although DOE currently believes that it would be appropriate to adopt the efficiency levels in ASHRAE Standard 90.1-2013 for water-source heat pumps, DOE may consider the possibility of setting standards at more-stringent efficiency levels if public comments and additional data supply clear and convincing evidence in support of such an approach.
EPCA specifies that, for any commercial and industrial equipment addressed under 42 U.S.C. 6313(a)(6)(A)(i), DOE may prescribe an energy conservation standard more stringent than the level for such equipment in ASHRAE Standard 90.1, as amended, only if “clear and convincing evidence” shows that a more-stringent standard would result in significant additional conservation of energy and is technologically feasible and economically justified. (42 U.S.C. 6313(a)(6)(A)(ii)(II))
In evaluating more-stringent efficiency levels for oil-fired storage water-heating equipment than those specified by ASHRAE Standard 90.1-2013, DOE reviewed the results in terms of the significance of their additional energy savings. DOE believes that the energy savings from increasing national energy conservation standards for oil-fired storage water heaters above the levels specified by ASHRAE Standard 90.1-2013 would be minimal. As such, DOE does not have “clear and convincing evidence” that significant additional conservation of energy would
Section 1(b)(1) of Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993), requires each agency to identify the problem that it intends to address, including, where applicable, the failures of private markets or public institutions that warrant new agency action, as well as to assess the significance of that problem. The problems that the proposed standards set forth in this NOPR address are as follows:
(1) Insufficient information and the high costs of gathering and analyzing relevant information leads some customers to miss opportunities to make cost-effective investments in energy efficiency.
(2) In some cases the benefits of more efficient equipment are not realized due to misaligned incentives between purchasers and users. An example of such a case is when the equipment purchase decision is made by a building contractor or building owner who does not pay the energy costs.
(3) There are external benefits resulting from improved energy efficiency of small air-cooled air conditioners and heat pumps less than 65,000 Btu/h, water-source heat pumps, and oil-fired storage water heaters that are not captured by the users of such equipment. These benefits include externalities related to public health, environmental protection, and national energy security that are not reflected in energy prices, such as reduced emissions of air pollutants and greenhouse gases that impact human health and global warming. DOE attempts to quantify some of the external benefits through use of social cost of carbon values.
In addition, DOE has determined that the proposed regulatory action is not an “economically significant regulatory action” under section 3(f)(1) of Executive Order 12866. Accordingly, DOE has not prepared a regulatory impact analysis (RIA) for this rule, and the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) has not reviewed this rule.
DOE has also reviewed this regulation pursuant to Executive Order 13563, issued on January 18, 2011 (76 FR 3281 (Jan. 21, 2011)). Executive Order 13563 is supplemental to and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, agencies are required by Executive Order 13563 to: (1) Propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public.
DOE emphasizes as well that Executive Order 13563 requires agencies to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. In its guidance, the Office of Information and Regulatory Affairs has emphasized that such techniques may include identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes. For the reasons stated in the preamble, DOE believes that this NOPR is consistent with these principles, including the requirement that, to the extent permitted by law, benefits justify costs and that net benefits are maximized.
The Regulatory Flexibility Act (5 U.S.C. 601
For manufacturers of small air-cooled air conditioners and heat pumps less than 65,000 Btu/h, water-source heat pumps, and oil-fired storage water heaters, the Small Business Administration (SBA) has set a size threshold, which defines those entities classified as “small businesses” for the purposes of the statute. DOE used the SBA's small business size standards to determine whether any small entities would be subject to the requirements of the rule. 65 FR 30836, 30848 (May 15, 2000), as amended at 65 FR 53533, 53544 (Sept. 5, 2000) and 77 FR 49991, 50000 (August 20, 2012), as codified at 13 CFR part 121. The size standards are listed by North American Industry Classification System (NAICS) code and industry description and are available at
DOE examined each of the manufacturers it found during its market assessment and used publicly-available information to determine if any manufacturers identified qualify as a small business under the SBA guidelines discussed previously. (For a list of all manufacturers of ASHRAE equipment covered by this rule, see chapter 2 of the NOPR TSD.) DOE's research involved individual company Web sites and marketing research tools (
Based on reviews of product listing data in the AHRI Directory for commercial equipment, DOE estimates that small manufacturers account for less than 1 percent of the market for covered three-phase central air conditioner equipment and less than 5 percent of the market for covered water-source heat pump equipment. In the oil-fired storage water heat market, DOE understands that one of the small manufacturers is a significant player in the market. That manufacturer accounts for 34 percent of product listings. DOE believes that the remaining oil-fired storage water heater manufacturers account for less than 5 percent of the market.
DOE has reviewed this proposed rule under the provisions of the Regulatory Flexibility Act and the policies and procedures published on February 19, 2003. 68 FR 7990. As part of this rulemaking, DOE examined the potential impacts of amended standard levels on manufacturers, as well as the potential implications of the proposed revisions to the commercial warm air furnace test procedures on compliance burdens.
DOE examined the impact of raising the standards to the proposed levels by examining the distribution of efficiencies of commercially-available models in the AHRI Directory. For water-source heat pumps and oil-fired storage water heaters, DOE found that all manufacturers in the directory, including the small manufacturers, already offer equipment at and above the efficiency levels being proposed. While these small manufacturers would have to discontinue a fraction of their models in order to comply with the standards proposed in this rulemaking, DOE does not believe that there would be a significant burden placed on industry, as the market would shift to the new baseline levels when compliance with the new standards is required.
For small commercial air-cooled air conditioners and heat pumps, DOE found one small manufacturer of single-package units in the directory with no models that could meet the proposed ASHRAE levels.
To estimate the impacts of the proposed standard, DOE researched prior energy conservation standard analyses of the covered equipment, as well as any analyses of comparable single-phase products. The 2011 direct final rule for residential furnaces, central air conditioners, and heat pumps included analysis for a 14 SEER efficiency level for split-system as well as single-package air conditioners and heat pumps. 76 FR 37408 (June 27, 2011). The 2011 analysis indicated that manufacturers would need to include additional heat exchanger surface area and to include modulating components to reach the 14 SEER level from a 13 SEER baseline. The 2011 analyses further concluded that these improvements could be made without significant investments in equipment and production assets. The proposed levels for oil-fired storage water heaters or water-source heat pumps have not been analyzed as a part of any prior energy conservation standard rulemakings.
However, DOE understands that the ASHRAE standards were developed through an industry consensus process, which included consideration of manufacturer input, including the impacts to small manufacturers, when increasing the efficiency of equipment. Because EPCA requires DOE to adopt the ASHRAE levels or to propose higher standards, DOE is limited in terms of the steps it can take to mitigate impacts to small businesses, but DOE reasons that such mitigation has already occurred since small manufacturers had input into the development of the industry consensus standard that DOE is statutorily required to adopt. DOE requests public comment on the number of small manufacturers producing covered three-phase central air conditioners, water-source heat pumps, and oil-fired storage water-heating equipment. Additionally, DOE requests data on the market shares of small manufactures covered in this rulemaking and the potential impacts of this rule on those manufacturers.
As for the specific changes being proposed for the commercial warm air furnace test procedure, the test procedures (ANSI Z21.47-2012 and ASHRAE 103-2007) that DOE is proposing to incorporate by reference do not include any updates to the methodology in those sections utilized in the DOE test procedure. Thus, DOE has tentatively concluded that this test procedure rulemaking would keep the DOE test procedure current with the latest version of the applicable industry testing standards, but it will not change the methodology used to generate ratings of commercial warm air furnaces. Consequently, the proposed test procedure amendments would not be expected to have a substantive impact on manufacturers, either large or small.
For the reasons stated previously, DOE did not prepare an initial regulatory flexibility analysis for the proposed rule. DOE will transmit its certification and a supporting statement of factual basis to the Chief Counsel for Advocacy of the SBA for review pursuant to 5 U.S.C. 605(b).
Manufacturers of the ASHRAE equipment subject to this NOPR must certify to DOE that their equipment complies with any applicable energy conservation standards. In certifying compliance, manufacturers must test their equipment according to the applicable DOE test procedures for the relevant ASHRAE equipment, including any amendments adopted for those test procedures on the date that compliance is required. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and commercial equipment, including the ASHRAE equipment in this NOPR. 76
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
Pursuant to the National Environmental Policy Act (NEPA) of 1969, DOE has determined that the proposed rule fits within the category of actions included in Categorical Exclusion (CX) B5.1 and otherwise meets the requirements for application of a CX. See 10 CFR part 1021, App. B, B5.1(b); 1021.410(b) and Appendix B, B(1)-(5). The proposed rule fits within the category of actions because it is a rulemaking that establishes energy conservation standards for consumer products or industrial equipment, and for which none of the exceptions identified in CX B5.1(b) apply. Therefore, DOE has made a CX determination for this rulemaking, and DOE does not need to prepare an Environmental Assessment or Environmental Impact Statement for this proposed rule. DOE's CX determination for this proposed rule is available at
Executive Order 13132, “Federalism,” imposes certain requirements on Federal agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. 64 FR 43255 (August 10, 1999). The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE has examined this proposed rule and has tentatively determined that it 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. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the equipment types that are the subject of this proposed rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297) Therefore, no further action is required by Executive Order 13132.
With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. 61 FR 4729 (Feb. 7, 1996). Regarding the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this proposed rule meets the relevant standards of Executive Order 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a proposed regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect them. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820. DOE's policy statement is also available at
This proposed rule contains neither an intergovernmental mandate nor a mandate 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 in any year. Accordingly, no assessment or analysis is required under the UMRA.
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
Pursuant to Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 18, 1988),
Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for Federal agencies to review most disseminations of information to the public under information quality guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed this NOPR under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OIRA at OMB, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.
DOE has tentatively concluded that this regulatory action, which sets forth proposed energy conservation standards for certain types of ASHRAE equipment, is not a significant energy action because the proposed standards are not a significant regulatory action under Executive Order 12866 and are not likely to have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as such by the Administrator at OIRA. Accordingly, DOE has not prepared a Statement of Energy Effects on the proposed rule.
On December 16, 2004, OMB, in consultation with the Office of Science and Technology Policy (OSTP), issued its Final Information Quality Bulletin for Peer Review (the Bulletin). 70 FR 2664 (Jan. 14, 2005). The Bulletin establishes that certain scientific information shall be peer reviewed by qualified specialists before it is disseminated by the Federal Government, including influential scientific information related to agency regulatory actions. The purpose of the bulletin is to enhance the quality and credibility of the Government's scientific information. Under the Bulletin, the energy conservation standards rulemaking analyses are “influential scientific information,” which the Bulletin defines as “scientific information the agency reasonably can determine will have, or does have, a clear and substantial impact on important public policies or private sector decisions.”
In response to OMB's Bulletin, DOE conducted formal in-progress peer reviews of the energy conservation standards development process and analyses and has prepared a Peer Review Report pertaining to the energy conservation standards rulemaking analyses. Generation of this report involved a rigorous, formal, and documented evaluation using objective criteria and qualified and independent reviewers to make a judgment as to the technical/scientific/business merit, the actual or anticipated results, and the productivity and management effectiveness of programs and/or projects. The “Energy Conservation Standards Rulemaking Peer Review Report” dated February 2007 has been disseminated and is available at the following Web site:
The time, date, and location of the public meeting are listed in the
In addition, you can attend the public meeting via webinar. Webinar registration information, participant instructions, and information about the capabilities available to webinar participants will be published on DOE's Web site at:
Any person who has plans to present a prepared general statement may request that copies of his or her statement be made available at the public meeting. Such persons may submit requests, along with an advance electronic copy of their statement in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format, to the appropriate address shown in the
DOE will designate a DOE official to preside at the public meeting and may also use a professional facilitator to aid discussion. The meeting will not be a judicial or evidentiary-type public hearing, but DOE will conduct it in accordance with section 336 of EPCA (42 U.S.C. 6306). A court reporter will be present to record the proceedings and prepare a transcript. DOE reserves the right to schedule the order of presentations and to establish the procedures governing the conduct of the public meeting. There shall not be discussion of proprietary information, costs or prices, market share, or other commercial matters regulated by U.S. anti-trust laws. After the public meeting, interested parties may submit further comments on the proceedings, as well as on any aspect of the rulemaking, until the end of the comment period.
The public meeting will be conducted in an informal, conference style. DOE will present summaries of comments received before the public meeting, allow time for prepared general statements by participants, and encourage all interested parties to share their views on issues affecting this rulemaking. Each participant will be allowed to make a general statement (within time limits determined by DOE),
At the end of all prepared statements on a topic, DOE will permit participants to clarify their statements briefly and comment on statements made by others. Participants should be prepared to answer questions by DOE and by other participants concerning these issues. DOE representatives may also ask questions of participants concerning other matters relevant to this rulemaking. The official conducting the public meeting will accept additional comments or questions from those attending, as time permits. The presiding official will announce any further procedural rules or modification of the above procedures that may be needed for the proper conduct of the public meeting.
A transcript of the public meeting will be included in the docket, which can be viewed as described in the
DOE will accept comments, data, and information regarding this proposed rule before or after the public meeting, but no later than the date provided in the
However, your contact information will be publicly viewable if you include it in the comment itself or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Otherwise, persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.
Do not submit to
DOE processes submissions made through
Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via mail or hand delivery/courier, please provide all items on a CD, if feasible, in which case it is not necessary to submit printed copies. No telefacsimiles (faxes) will be accepted.
Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, that are written in English, and that are free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.
Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person which would result from public disclosure; (6) when such information might lose its confidential character due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest.
It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).
Although DOE welcomes comments on any aspect of this proposal, DOE is particularly interested in receiving comments and views of interested parties concerning the following issues:
1. DOE's proposed definition of “water-source heat pump.”
2. Any relevant issues that would affect the test procedures for commercial warm-air furnaces. Interested parties are welcome to comment on any aspect of these test procedures as part of this comprehensive 7-year-review.
3. Is there a rebound effect in small air-cooled three-phase air conditioner and heat pump equipment less than 65,000 Btu/h or water-source heat pump energy use as a result of improvements in the efficiency of such units?
4. Would shipments of small air-cooled three-phase air conditioners and heat pump equipment less than 65,000 Btu/h or water-source heat pump equipment change at more-stringent standard levels?
5. The use of the projected base-case efficiency trend of an increase of 1 SEER or EER every 35 years for small air-cooled three-phase air conditioner and heat pump equipment less than 65,000 Btu/h and water-source heat pump equipment.
6. Should the mark-ups analysis for water-source heat pumps include national accounts?
7. DOE's methodology for developing heating UECs for water-source heat pumps. DOE also seeks relevant data on this issue.
8. The appropriate building types for the water-source heat pump energy use analysis, which currently include office, education, lodging, multi-family, and healthcare.
9. How maintenance costs for water-source heat pumps might be expected to differ from that for air-source heat pumps.
10. How repair costs for water-source heat pumps might be expected to differ from that for air-source heat pumps.
11. What is the appropriate retirement function for water-source heat pumps?
12. The proposed standard levels for water-source heat pumps, as well as the other efficiency levels considered.
The Secretary of Energy has approved publication of this notice of proposed rulemaking.
Administrative practice and procedure, Confidential business information, Energy conservation, Incorporation by reference, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, DOE proposes to amend part 431 of Chapter II, Subchapter D, of Title 10 of the Code of Federal Regulations as set forth below:
42 U.S.C. 6291-6317.
(b)
(1) ANSI Z21.47-2012, (“ANSI Z21.47-2012”), “
(2) [Reserved]
(c)
(1) ASHRAE Standard 103-2007, sections 7.2.2.4, 7.8, 9.2, and 11.3.7, “Method of Testing for Annual Fuel Utilization Efficiency of Residential Central Furnaces and Boilers,” ANSI approved on March 25, 2008, IBR approved for § 431.76.
(2) [Reserved]
(a)
(b)
(c)
(2)
(d)
(2)
(e)
(2)
(f)
(2)
The revisions read as follows:
(b) Each commercial air conditioner or heat pump (not including single package vertical air conditioners and single package vertical heat pumps, packaged terminal air conditioners and packaged terminal heat pumps, computer room air conditioners, and variable refrigerant flow systems) manufactured on or after the compliance date listed in the corresponding table must meet the applicable minimum energy efficiency standard level(s) set forth in Tables 1, 2, 3, and 4 of this section.
(c) Each packaged terminal air conditioner (PTAC) and packaged terminal heat pump (PTHP) manufactured on or after January 1, 1994, and before October 8, 2012 (for standard size PTACs and PTHPs) and before October 7, 2010 (for non-standard size PTACs and PTHPs) must meet the applicable minimum energy efficiency standard level(s) set forth in Table 5 of this section. Each PTAC and PTHP manufactured on or after October 8, 2012 (for standard size PTACs and PTHPs) and on or after October 7, 2010 (for non-standard size PTACs and PTHPs) must meet the applicable minimum energy efficiency standard level(s) set forth in Table 6 of this section.
Each commercial storage water heater, instantaneous water heater, unfired hot water storage tank and hot water supply boiler
Federal Communications Commission.
Final rule.
In this document, the Federal Communications Commission (Commission) adopts rules to update and tailor the manner in which it evaluates the impact of proposed deployments of wireless infrastructure on the environment and historic properties. The Commission also adopts rules to clarify and implement statutory requirements applicable to State and local governments in their review of wireless infrastructure siting applications, and it adopts an exemption from its environmental public notification process for towers that are in place for only short periods of time. Taken together, these steps will reduce the cost and delays associated with facility siting and construction, and thereby facilitate the delivery of more wireless capacity in more locations to consumers throughout the United States.
Effective February 9, 2015, except for § 1.40001, which shall be effective April 8, 2015; however, §§ 1.40001(c)(3)(i), 1.40001(c)(3)(iii), 1.140001(c)(4), and 17.4(c)(1)(vii), which have new information collection requirements, will not be effective until approved by the Office of Management and Budget (OMB). The Commission will publish a document in the
Peter Trachtenberg, Spectrum and Competition Policy Division, Wireless Telecommunications Bureau, (202) 418-7369, email
This is a summary of the Commission's Report and Order (R&O), WT Docket Nos. 13-238, 13-32; WC Docket No. 11-59; FCC 14-153, adopted October 17, 2014 and released October 21, 2014. The full text of this document is available for inspection and copying during business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. Also, it may be purchased from the Commission's duplicating contractor at Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554; the contractor's Web site,
1. The Commission first adopts measures to update its review processes under the National Environmental Policy Act of 1969 (NEPA) and section 106 of the National Historic Preservation Act of 1966 (NHPA or section 106), with a particular emphasis on accommodating new wireless technologies that use smaller antennas and compact radio equipment to provide mobile voice and broadband service. These technologies, including distributed antenna systems (DAS), small cells, and others, can be deployed on a variety of non-traditional structures such as utility poles, as well as on rooftops and inside buildings, to enhance capacity or fill in coverage gaps. Updating the Commission's environmental and historic preservation rules will enable these innovations to flourish, delivering more broadband service to more communities, while reducing the need for potentially intrusive new construction and safeguarding the values the rules are designed to protect.
2. The Commission's environmental and historic preservation rules have traditionally been directed toward the deployment of macrocells on towers and other tall structures. Since 1974, these rules have excluded collocations of antennas from most of the requirements under the Commission's NEPA review process, recognizing the benefits to the environment and historic properties from the use of existing support structures over the construction of new structures. These exclusions have limitations. The collocation exclusion under NEPA, which was first established in 1974, on its face encompasses only deployments on existing towers and buildings, as these were the only support structures widely used 40 years ago, and does not encompass collocations on existing utility poles, for example. The collocation exclusions in the Commission's process for historic preservation review under section 106 do not consider the scale of small wireless facility deployments.
3. Thus, while small wireless technologies are increasingly deployed to meet the growing demand for high mobile data speeds and ubiquitous coverage, the Commission's rules and processes under NEPA and section 106, even as modified over time, have not reflected those technical advances. Accordingly, the Commission concludes that it will serve the public interest to update its environmental and historic preservation rules in large measure to account for innovative small facilities, and the Commission takes substantial steps to advance the goal of widespread wireless deployment, including clarifying and amending its categorical exclusions. The Commission concludes that these categorical exclusions, as codified in Section 1.1306(c) and Note 1 of its rules, do not have the potential for individually or cumulatively significant environmental impacts. The Commission finds that these clarifications and amendments will serve both the industry and the conservation values its review process was intended to protect. These steps will eliminate many unnecessary review processes and the sometimes cumbersome compliance measures that accompany them, relieving the industry of review process requirements in cases where they are not needed. These steps will advance the goal of spurring efficient wireless broadband deployment while also ensuring that the Commission continues to protect environmental and historic preservation values.
4. Section 1.1306 (Note 1) clarifies that the requirement to file an Environmental Assessment (EA) under section 1.1307(a) generally does not apply to “the mounting of antenna(s) on an existing building or antenna tower” or to the installation of wire or cable in an existing underground or aerial corridor, even if an environmentally sensitive circumstance identified in section 1.1307(a) is present. Note 1 reflects a preference first articulated by the Commission in 1974, and codified into Note 1 in 1986, that “[t]he use of existing buildings, towers or corridors is an environmentally desirable alternative to the construction of new facilities and is encouraged.”
5. The Commission first clarifies that the term “antenna” as used in Note 1 encompasses all on-site equipment associated with the antenna, including transceivers, cables, wiring, converters, power supplies, equipment cabinets and shelters, and other comparable equipment. The Commission concludes that this is the only logically consistent interpretation of the term, as associated equipment is a standard part of such collocations, and the antennas subject to NEPA review cannot operate without it. Thus, interpreting the term “antenna” as omitting associated equipment would eviscerate the categorical exclusion by requiring routine NEPA review for nearly every collocation. Such an interpretation would frustrate the categorical exclusion's purpose. The Commission also notes that its interpretation of “antenna” in this context is consistent with how the Commission has defined the term “antenna” in the comparable context of its process for reviewing effects of proposed deployments on historic properties. Specifically, the Commission's section 106 historic preservation review is governed by two programmatic agreements, and in both, the term “antenna” encompasses all associated equipment.
6. Further, if associated equipment presented significant concerns, the Commission would expect that otherwise excluded collocations that included such equipment would, at some point over the past 40 years, have been subject to environmental objections or petitions to deny. The Commission is unaware of any such objections or petitions directed at backup generators or any other associated equipment, or of any past EAs that found any significant environmental effect from such equipment. The Commission finds some commenters' generalized assertions of a risk of environmental effects to be unpersuasive, and the Commission reaffirms that the collocations covered by Note 1, including the collocation of associated equipment addressed by its clarification, will not individually or cumulatively have a significant effect on the human environment. While Alexandria
7. The Commission finds unpersuasive Tempe's argument that the NEPA categorical exclusion for collocation should not encompass backup generators in particular. Tempe argues that generators cause “fumes, noise, and the potential for exposure to hazardous substances if there is a leak or a spill” and “should not be allowed to be installed without the appropriate oversight.” The Wireless Telecommunications Bureau addressed all of these potential impacts in its Final Programmatic Environmental Assessment for the Antenna Structure Registration Program (PEA), and did not find any to be significant. Tempe's own comments, moreover, confirm that backup generators are already subject to extensive local, State, and Federal regulation, suggesting that further oversight from the Commission would not meaningfully augment existing environmental safeguards. In assessing environmental effect, an agency may factor in an assumption that the action is performed in compliance with other applicable regulatory requirements in the absence of a basis in the record beyond mere speculation that the action threatens violations of such requirements. Tempe's comments support the Commission's conclusion that such regulations applicable to backup generators address Tempe's concerns. The Commission finds that cell sites with such generators will rarely if ever be grouped in sufficient proximity to present a risk of cumulative effects.
8. The Commission finds no reason to interpret “antenna” in the Note 1 NEPA collocation categorical exclusion to omit backup generators or other kinds of backup power equipment. The Commission finds that the term “antenna” as used in the categorical exclusion should be interpreted to encompass the on-site equipment associated with the antenna, including backup power sources. Further, the need for such power sources at tower sites is largely undisputed, as backup power is critical for continued service in the event of natural disasters or other power disruptions—times when the need and demand for such service is often at its greatest. The Commission amends Note 1 to clarify that the categorical exclusion encompasses equipment associated with the antenna, including the critical component of backup power.
9. Finally, the Commission notes that sections 1.1306(b)(1)-(3) and 1.1307(c) and (d) of its rules provide for situations where environmental concerns are presented and, as called for by the requirement that categorical exclusions include consideration of extraordinary circumstances, closer scrutiny and potential additional environmental review are appropriate. The Commission concludes that individual cases presenting extraordinary circumstances in which collocated generators or other associated equipment may have a significant effect on the environment, including cases in which closely spaced generators may have a significant cumulative effect or where the deployment of such generators would violate local codes in a manner that raises environmental concerns, will be adequately addressed through these provisions.
10. The Commission clarifies that the existing NEPA categorical exclusion for mounting antennas “on” existing buildings applies to installations in the interior of existing buildings. An antenna mounted on a surface inside a building is as much “on” the building as an antenna mounted on a surface on the exterior, and the Commission finds nothing in the language of the categorical exclusion, in the adopting order, or in the current record supporting a distinction between collocations on the exterior or in the interior that would limit the scope of the categorical exclusion to exterior collocations. To the contrary, it is even more likely that indoor installations will have no significant environmental effects in the environmentally sensitive areas in which proposed deployments would generally trigger the need to prepare an EA, such as wilderness areas, wildlife preserves, and flood plains. The existing Note 1 collocation categorical exclusion reflects a finding that collocations do not individually or cumulatively have a significant effect on
11. The Commission adopts its proposal to extend the categorical exclusion for collocations on towers and buildings to collocations on other existing man-made structures. The Commission concludes that deployments covered by this extension will not individually or cumulatively have a significant impact on the human environment. The Commission updates the categorical exclusion adopted as part of Note 1 in 1986 to reflect the modern development of wireless technologies that can be collocated on a much broader range of existing structures. This measure will facilitate collocations and speed deployment of wireless broadband to consumers without significantly affecting the environment.
12. In finding that it is appropriate to broaden the categorical exclusion contained in section 1.1306 Note 1 to apply to other structures, the Commission relies in part on its prior findings regarding the environmental effects of collocations. In implementing NEPA requirements in 1974, for example, the Commission found that mounting an antenna on an existing building or tower “has no significant aesthetic effect and is environmentally preferable to the construction of a new tower, provided there is compliance with radiation safety standards.” In revising its NEPA rules in 1986, the Commission found that antennas mounted on towers and buildings are among those deployments that will normally have no significant impact on the environment. The Commission notes in particular that collocations will typically add only marginal if any extra height to a structure, and that in 2011, in a proceeding addressing the Commission's NEPA requirements with respect to migratory birds, the Commission reaffirmed that collocations on towers and buildings are unlikely to have environmental effects and thus such collocations are categorically excluded from review for impact on birds. Further, given that towers and buildings are typically much taller than other man-made structures on which antennas will be collocated, the Commission expects that there will be even less potential for significant effects on birds from collocations on such other structures.
13. In the
14. The Commission also notes that the exclusion from section 106 review in the Collocation Agreement is not limited to collocations on towers and buildings but also specifically includes collocations on other existing non-tower structures. Further, the U.S. Fish and Wildlife Service has found collocations on existing non-tower structures to be environmentally desirable with regard to impacts on birds, noting that they will in virtually every circumstance have less impact than would construction of a new tower.
15. Considering that collocating on these structures is necessary for broadband deployment, and in light of the environmental benefits of
16. The Commission adopts a categorical exclusion for certain wireless facilities deployed in above-ground utility and communications rights-of-way. The Commission finds that such deployments will not individually or cumulatively have a significant effect on the environment. Given that DAS and small-cell nodes are often deployed in communications and utilities rights-of-way, the Commission concludes that the categorical exclusion will significantly advance the deployment of such facilities in a manner that safeguards environmental values.
17. Specifically, this categorical exclusion, which the Commission incorporates into its rules as section 1.1306(c), covers construction of wireless facilities, including deployments on new or replacement poles, only if: (1) The facility will be located in a right-of-way that is designated by a Federal, State, local, or Tribal government for communications towers, above-ground utility transmission or distribution lines, or any associated structures and equipment; (2) the right-of-way is in active use for such designated purposes; and (3) the facility will not constitute a substantial increase in size over existing support structures that are located in the right-of-way within the vicinity of the proposed construction.
18. Although the Commission sought comment, in the
19. For purposes of this categorical exclusion, the Commission defines a substantial increase in size in similar fashion to how it is defined in the Collocation Agreement. Thus, a deployment would result in a substantial increase in size if it would: (1) Exceed the height of existing support structures that are located in the right-of-way within the vicinity of the proposed construction by more than 10% or twenty feet, whichever is greater; (2) involve the installation of more than four new equipment cabinets or more than one new equipment shelter; (3) add an appurtenance to the body of the structure that would protrude from the edge of the structure more than twenty feet, or more than the width of the structure at the level of the appurtenance, whichever is greater (except that the deployment may exceed this size limit if necessary to shelter the antenna from inclement weather or to connect the antenna to the tower via cable); or (4) involve excavation outside the current site, defined as the area that is within the boundaries of the leased or owned property surrounding the deployment or that is in proximity to the structure and within the boundaries of the utility easement on which the facility is to be deployed, whichever is more restrictive.
20. The Commission notes that it has found a similar test appropriate in other contexts, including under its environmental rules. In particular, the first three criteria that the Commission specifies above to define the scope of the NEPA rights-of-way categorical exclusion also define the scope of the rights-of-way exclusion from historic preservation review under the NPA. Similarly, for purposes of Antenna Structure Registration, the Commission does not require environmental notice for a proposed tower replacement if, among other criteria, the deployment will not cause a substantial increase in size under the first three criteria of the Collocation Agreement, and there will be no construction or excavation more than 30 feet beyond the existing antenna structure property. Further, given that the industry now has almost a decade of experience applying this substantial increase test to construction in the rights-of-way under the NPA exclusion, and in light of the efficiencies to be gained from using a similar test here, the Commission finds the Collocation Agreement test, as modified here, to be appropriate in this context.
21. The Commission concludes that facilities subject to this categorical exclusion will not have a significant effect on the environment either individually or cumulatively, and that the categorical exclusion is appropriate. In the
22. The Commission also finds support for these conclusions in the categorical exclusions adopted by other agencies, including FirstNet. In establishing its own categorical exclusions, FirstNet noted as part of its Administrative Record that its anticipated activities in constructing a nationwide public safety broadband network would primarily include “the installation of cables, cell towers, antenna collocations, buildings, and
23. The Commission finds that FirstNet's anticipated activities encompass the construction of wireless facilities and support structures in the rights-of-way, and are therefore comparable to the wireless facility deployments the Commission addresses here. Further, the Commission notes that the categorical exclusions adopted by FirstNet are broader in scope than the categorical exclusion the Commission adopts for facilities deployed within existing rights-of-way. The Commission further notes that several other agencies have found it appropriate to categorically exclude other activities in existing rights-of-way unrelated to telecommunications.
24. The Commission finds that the categorical exclusion addresses some concerns raised by municipalities, and the Commission finds that other concerns they raise are not relevant to the environmental review process. First, the Commission notes that the categorical exclusion it adopts addresses Coconut Creek's objection to above-ground deployments in areas with no above-ground infrastructure because the Commission limits it to rights-of-way in active use for above-ground utility structures or communications towers. Second, concerns about hazards to vehicular or pedestrian traffic are logically inapplicable. As the Commission noted in connection with deployments on structures other than communications towers and buildings, such concerns do not currently warrant the submission of an EA. Rather, EAs are routinely required for deployments in communications or utility rights-of-way only if they meet one of the criteria specified in section 1.1307(a) or (b). Deployments in the communications or utility rights-of-way have never been identified in the Commission's rules as an environmentally sensitive category; indeed, the use of such rights-of-way for antenna deployments is environmentally desirable as compared to deployments in other areas. Finally, the Commission finds it unnecessary to adopt Tempe's proposed limitation, whether it is properly understood as a proposal to categorically exclude only one non-substantial increase at a particular site or in the same general vicinity, as such limitation has proven unnecessary in the context of historic preservation review. Having concluded that wireless facility deployments in communications or utility rights-of-way have no potentially significant environmental effects individually or cumulatively, the Commission finds no basis to limit the number of times such a categorical exclusion is used either at a particular site or in the same general vicinity. Indeed, the categorical exclusion encourages an environmentally responsible approach to deployment given that, as Note 1 and section 1.1306(c) make clear, the use of existing corridors “is an environmentally desirable alternative to the construction of new facilities.” And, apart from environmental considerations, it would be contrary to the public interest to unnecessarily limit the application of this categorical exclusion.
25. To the extent that commenters propose extending the Note 1 aerial and underground corridor categorical exclusion to include components of telecommunications systems other than wires and cables, the Commission declines to do so. The Commission finds that the new section 1.1306(c) categorical exclusion the Commission adopts for deployments in communications or utilities rights-of-way will provide substantial and appropriate relief, and that the record in this proceeding does not justify a further expansion of the Note 1 categorical exclusion. Further, the existing Note 1 categorical exclusion for wires and cables in underground and aerial corridors is broader than the categorical exclusion for installations on existing buildings or antenna towers because it is not limited by section 1.1307(a)(4) (section 106 review) or 1.1307(b) (RF emissions), while collocations on existing buildings or towers are subject to these provisions. The Commission notes that even parties advocating an extension of the categorical exclusion for installation of wire and cable to additional telecommunications components concede that the extension should not apply to review of RF emissions exposure, as the existing categorical exclusion does. This distinction underscores that the existing categorical exclusion of cables and wires in aerial and underground corridors is based on an analysis that does not directly apply to other communications facilities.
26. Section 1.1307(a)(4) of the Commission's rules directs licensees and applicants, when determining whether a proposed action may affect historic properties, to follow the procedures in the rules of the Advisory Council on Historic Preservation (ACHP) as modified by the Collocation Agreement and the NPA, two programmatic agreements that took effect in 2001 and 2005, respectively. The Collocation Agreement excludes collocations on buildings or other non-tower structures outside of historic districts from routine section 106 review unless: (1) The structure is inside the boundary of a historic district, or it is within 250 feet of the boundary of a historic district and the antenna is visible from ground level within the historic district; (2) the structure is a designated National Historic Landmark or is listed in or eligible for listing in the National Register of Historic Places (National Register); (3) the structure is over 45 years old; or (4) the proposed collocation is the subject of a pending complaint alleging adverse effect on historic properties.
27. In addition to seeking comment on whether the Commission should add an exclusion from section 106 review for DAS and small cells generally, the
28. As an initial matter, the Commission finds no basis to hold categorically that small wireless facilities such as DAS and small cells are not Commission undertakings. While PCIA argues that small facilities could be distinguished, it does not identify any characteristic of such deployments that logically removes them from the analysis applicable to other facilities. Having determined that DAS and small cell deployments constitute Federal undertakings subject to section 106, the Commission considers its authority based on section 800.3(a)(1) of ACHP's rules to exclude such small facility deployments from section 106 review. It is clear under the terms of section 800.3(a)(1) that a Federal agency may determine that an undertaking is a type of activity that does not have the potential to cause effects to historic properties, assuming historic properties were present, in which case, “the agency has no further obligations under section 106 or this part [36 part 800, subpart B].”
29. The commenters that propose a general exclusion for DAS and small cell deployments assert that under any circumstances, such deployments have the potential for at most minimal effects, but they do not provide evidence to support such a broad conclusion. Moreover, several commenters, including several SHPOs, express concerns that such deployments do have the potential for effects in some cases. The Commission cannot find on this record that DAS and small-cell facilities qualify for a general exclusion, and the Commission therefore concludes, after consideration of the record, that any broad exclusion of such facilities must be implemented at this time through the development of a “program alternative” as defined under ACHP's rules. The Commission is committed to making deployment processes as efficient as possible without undermining the values that section 106 protects. The Commission staff are working on a program alternative that, through consultation with stakeholders, will ensure thorough consideration of all applicable interests, and will culminate in a system that eliminates additional bureaucratic processes for small facilities to the greatest extent possible consistent with the purpose and requirements of section 106.
30. The Commission further concludes that it is in the public interest to immediately adopt targeted exclusions from its section 106 review process that will apply to small facilities (and in some instances larger antennas) in many circumstances and thereby substantially advance the goal of facilities deployment. The Commission may exclude activities from section 106 review upon determining that they have no potential to cause effects to historic properties, assuming such properties are present. As discussed in detail below, the Commission finds two targeted circumstances that meet this test, one applicable to utility structures and the other to buildings and any other non-tower structures. Pursuant to these findings the Commission establishes two exclusions.
31. First, the Commission excludes collocations on existing utility structures, including utility poles and electric transmission towers, to the extent they are not already excluded in the Collocation Agreement, if: (1) The collocated antenna and associated equipment, when measured together with any other wireless deployment on the same structure, meet specified size limitations; and (2) the collocation will involve no new ground disturbance. Second, the Commission excludes collocations on a building or other non-tower structure, to the extent they are not already excluded in the Collocation Agreement, if: (1) There is an existing antenna on the building or other structure; (2) certain requirements of proximity to the existing antenna are met, depending on the visibility and size of the new deployment; (3) the new antenna will comply with all zoning conditions and historic preservation conditions on existing antennas that directly mitigate or prevent effects, such as camouflage or concealment requirements; and (4) the deployment will involve no new ground disturbance. With respect to both of these categories—utility structures and other non-tower structures—the Commission extends the exclusion only to deployments that are not (1) inside the boundary of a historic district, or within 250 feet of the boundary of a historic district; (2) located on a structure that is a designated National Historic Landmark or is listed in or eligible for listing in the National Register; or (3) the subject of a pending complaint alleging adverse effect on historic properties. In other words, these exclusions address collocations on utility structures and other non-tower structures where historic preservation review would otherwise be required under existing rules only because the structures are more than 45 years old. The Commission's action here is consistent with its determination in the NPA to apply a categorical exclusion based upon a structure's proximity to a property listed in or eligible to be listed in the National Register rather than whether a structure is over 45 years old regardless of eligibility. Consistent with section 800.3(a)(1), the Commission finds collocations meeting the conditions stated above have no potential to affect historic properties even if such properties are present. The Commission nevertheless finds it appropriate to limit the adopted exclusions. Given the sensitivities articulated in the record, particularly those from the National Conference of State Historic Preservation Officers (NCSHPO) and other individual commenting SHPOs, regarding deployments in historic districts or on historic properties, the Commission concludes that any broader exclusions require additional consultation and consideration, and are more appropriately addressed and developed through the program alternative process that Commission staff have already begun.
32. Pursuant to section 800.3(a)(1) of ACHP's rules, the Commission finds that antennas mounted on existing utility structures have no potential for effects on historic properties, assuming such properties are present, where the deployment meets the following conditions: (1) The antenna and any associated equipment, when measured together with any other wireless deployments on the same structure, meets specified size limitations; and (2) the deployment will involve no new ground disturbance. Notwithstanding this finding of no potential for effects even assuming historic properties are present, the Commission limits this exclusion (as described above) in light of the particular sensitivities related to historic properties and districts. Accordingly, this exclusion does not apply to deployments that are (1) inside the boundary of a historic district, or within 250 feet of the boundary of a historic district; (2) located on a structure that is a designated National Historic Landmark or is listed in or eligible for listing in the National Register; or (3) the subject of a pending complaint alleging adverse effect on historic properties. In other words, this new targeted exclusion addresses collocations on utility structures where historic preservation review would otherwise be required under existing rules only because the structures are more than 45 years old.
33. For purposes of this exclusion, the Commission defines utility structures as utility poles or electric transmission towers in active use by a “utility” as defined in section 224 of the Communications Act, but not including light poles, lamp posts, and other structures whose primary purpose is to provide public lighting. Utility structures are, by their nature, designed to hold a variety of electrical, communications, or other equipment, and they already hold such equipment. Their inherent characteristic thus incorporates the support of attachments, and their uses have continued to evolve with changes in technology since they were first used in the mid-19th century for distribution of telegraph services. Indeed, the Commission notes that other, often larger facilities are added to utility structures without review. For example, deployments of equipment supporting unlicensed wireless operations like Wi-Fi access occur without the Commission's section 106 review in any case, as do installations of non-communication facilities such as municipal traffic management equipment or power equipment such as electric distribution transformers. The addition of DAS or small cell facilities to these structures is therefore fully consistent with their existing use.
34. While the potential for effects from any deployments on utility structures is remote at most, the Commission concludes that the additional conditions described above support a finding that there is no such potential at all, assuming the presence of historic properties. First, the Commission limits the size of equipment covered by this exclusion. In doing so, the Commission draws on a PCIA proposal, which includes separate specific volumetric limits for antennas and for enclosures of associated equipment, but the Commission modifies the definition in certain respects to meet the standard in ACHP's rules that the undertaking must have no potential for effects. Specifically, the Commission provides that the deployment may include covered antenna enclosures no more than three cubic feet in volume per enclosure, or exposed antennas that fit within an imaginary enclosure of no more than three cubic feet in volume per imaginary enclosure, up to an aggregate maximum of six cubic feet. The Commission further provides that all equipment enclosures (or imaginary enclosures) associated with the collocation on any single structure, including all associated equipment but not including separate antennas or enclosures for antennas, must be limited cumulatively to seventeen cubic feet in volume. Further, collocations under this rule will be limited to collocations that cause no new ground disturbance.
35. Because the Commission finds that multiple collocations on a utility structure could have a cumulative impact, the Commission further applies the size limits defined above on a cumulative basis taking into account all pre-existing collocations. Specifically, if there is a pre-existing wireless deployment on the structure, and any of this pre-existing equipment would remain after the collocation, then the volume limits apply to the cumulative volume of such pre-existing equipment and the new collocated equipment. Thus, for the new equipment to come under this exclusion, the sum of the volume of all pre-existing associated equipment that remains after the collocation and the new equipment must be no greater than seventeen cubic feet, and the sum of the volume of all collocated antennas, including pre-existing antennas that remain after the collocation, must be no greater than six cubic feet. The Commission further provides that the cumulative limit of seventeen cubic feet for wireless equipment applies to all equipment on the ground associated with an antenna on the structure as well as associated equipment physically on the structure. Thus, application of the limit is the same regardless of whether equipment associated with a particular deployment is deployed on the ground next to a structure or on the structure itself. While some commenters oppose an exclusion based solely on PCIA's volumetric definition, the Commission finds that the Commission's exclusion addresses their concerns. For example, Tempe and the CA Local Governments express concern that PCIA's definition would allow an unlimited number of ground-mounted cabinets. The Commission's approach provides that associated ground equipment must also come within the volumetric limit for equipment enclosures, however, and therefore does not allow for unlimited ground-based equipment. Further, because the Commission applies the size limit on a cumulative basis, the Commission's exclusion directly addresses concerns that the PCIA definition would allow multiple collocations that cumulatively exceed the volumetric limits. Consistent with a proposal by PCIA, the Commission finds that certain equipment should be omitted from the calculation of the equipment volume, including: (1) Vertical cable runs for the connection of power and other services, the volume of which may be impractical to calculate and which should in any case have no effect on historic properties, consistent with the established exclusion of cable in pre-existing aerial or underground corridors; (2) ancillary equipment installed by other entities that is outside of the applicant's ownership or control, such as a power meter installed by the electric utility in connection with the wireless deployment, and (3) comparable equipment from pre-existing wireless deployments on the structure.
36. To meet the standard under section 800.3(a)(1), the Commission further imposes a requirement of no new ground disturbance, consistent for the most part with the NPA standard. Under the NPA standard, no new ground disturbance occurs so long as the depth of previous disturbance exceeds the proposed construction depth (excluding footings and other anchoring mechanisms) by at least two feet. The Commission finds that footings and anchorings should be included in this context to ensure no potential for effects. Therefore, the Commission's finding is limited to cases where there is no ground disturbance or the depth and width of previous disturbance exceeds the proposed construction depth and width, including the depth and width of any proposed footings or other anchoring mechanisms, by at least two feet. Some Tribal Nations have indicated that exclusions of small facilities from section 106 review might be reasonable if there is no excavation but that any ground disturbance would be cause for concern. The Commission finds that the restrictions it places on both of the Commission's new section 106 exclusions are sufficient to address this concern and ensure that there is no potential for effects on historic properties of Tribal religious or cultural significance. These restrictions include a strict requirement for both exclusions of no new ground disturbance and restrictions on the size and placement of equipment. Furthermore, both exclusions are limited to collocations (and therefore do not include new or replacement support structures).
37. Adoption of this exclusion will provide significant efficiencies in the section 106 process for DAS and small-cell deployments. Many DAS and small-cell installations involve collocations on utility structures. PCIA also estimates that excluding collocations on these wooden poles would increase the estimated number of excluded collocation structures by a factor of 10—which would dramatically advance wireless infrastructure deployment
38. Verizon proposes an exclusion for collocations on any building or other structure over 45 years old if: (1) The antenna will be added in the same location as other antennas previously deployed; (2) the height of the new antenna will not exceed the height of the existing antennas by more than three feet, or the new antenna will not be visible from the ground regardless of the height increase; and (3) the new antenna will comply with any requirements placed on the existing antennas by the State or local zoning authority or as a result of any previous historic preservation review process.
39. Section 800.3(a)(1) of ACHP rules authorizes an exclusion only where the undertaking does not have the potential to cause effects on historic properties, assuming such historic properties are present. While the Commission concludes that this standard allows for an exclusion applicable to many collocations on buildings and other structures that already house collocations, the Commission finds insufficient support in the record to adopt Verizon's proposed exclusion in its entirety. While Verizon states that adding an antenna to a building within the scope of its proposal would not have an effect that differs from those caused by existing antennas, the Commission must also consider the cumulative effects of additional deployments on the integrity of a historic property to the extent that they add incompatible visual elements. Further, while Verizon relies heavily on the requirement that any new deployment must meet the same conditions as the existing deployment, the Commission cannot assume that conditions placed on a previous deployment are always sufficient to prevent any effects, particularly in the event of multiple additional deployments. Indeed, it is often the case that mitigating conditions are designed to offset effects rather than eliminate or reduce them entirely. The Commission concludes that with certain modifications to Verizon's proposal, deployments covered by the test would have no potential for effects.
40. Specifically, the Commission finds that collocations on buildings or other non-tower structures over 45 years old will have no potential for effects on historic properties if: (1) There is an existing antenna on the building or structure; (2) one of the following criteria is met: (a) The new antenna will not be visible from any adjacent streets or surrounding public spaces and will be added in the same vicinity as a pre-existing antenna; (b) the new antenna will be visible from adjacent streets or surrounding public spaces, provided that (i) it will replace a pre-existing antenna, (ii) the new antenna will be located in the same vicinity as the pre-existing antenna, (iii) the new antenna will be visible only from adjacent streets and surrounding public spaces that also afford views of the pre-existing antenna, (iv) the new antenna will not be more than three feet larger in height or width (including all protuberances) than the pre-existing antenna, and (v) no new equipment cabinets will be visible from the adjacent streets or surrounding public spaces; or (c) the new antenna will be visible from adjacent streets or surrounding public spaces, provided that (i) it will be located in the same vicinity as a pre-existing antenna, (ii) the new antenna will be visible only from adjacent streets and surrounding public spaces that also afford views of the pre-existing antenna, (iii) the pre-existing antenna was not deployed pursuant to the exclusion based on this finding, (iv) the new antenna will not be more than three feet larger in height or width (including all protuberances) than the pre-existing antenna, and (v) no new equipment cabinets will be visible from the adjacent streets or surrounding public spaces; (3) the new antenna will comply with all zoning conditions and historic preservation conditions applicable to existing antennas in the same vicinity that directly mitigate or prevent effects, such as camouflage or concealment requirements; and (4) the deployment of the new antenna will involve no new ground disturbance. Notwithstanding its finding of no potential for effects even assuming historic properties are present, the Commission limits this exclusion in light of many parties' particular sensitivities related to historic properties and districts. As with the exclusion for collocations on utility poles, this exclusion does not apply to deployments that are (1) inside the boundary of a historic district, or within 250 feet of the boundary of a historic district; (2) located on a structure that is a designated National Historic Landmark or is listed in or eligible for listing in the National Register; or (3) the subject of a pending complaint alleging adverse effect on historic properties. In other words, this new targeted exclusion addresses collocations on non-tower structures where historic preservation review would otherwise be required under existing rules only because the structures are more than 45 years old.
41. Consistent with the Verizon proposal, the Commission requires that there must already be an antenna on the building or other structure and that the new antenna be in the same vicinity as the pre-existing antenna. For this purpose, a non-visible new antenna is in the “same vicinity” as a pre-existing antenna if it will be collocated on the same rooftop, façade or other surface, and a visible new antenna is in the “same vicinity” as a pre-existing antenna if it is on the same rooftop, façade, or other surface and the centerpoint of the new antenna is within 10 feet of the centerpoint of the pre-existing antenna. Combined with the other criteria discussed below, this requirement is designed to assure that a new antenna will not have any incremental effect on historic properties, assuming they exist, as there will be no additional incompatible elements.
42. In addition to Verizon's proposed requirement that the deployment be in the same vicinity as an existing antenna, the Commission also adopts a condition of no-visibility from adjoining streets or any surrounding public spaces, with two narrow exceptions. For the general case, the Commission's no-effects finding will apply only to a new antenna that is not visible from any adjacent streets or surrounding public spaces and is added in the same vicinity as a pre-existing antenna. In adopting this standard, the Commission is informed by the record and also in part by General Services Administration (GSA) Preservation Note 41, entitled “Administrative Guide for Submitting Antenna Projects for External Review.” Preservation Note 41 recommends that an agency may recommend a finding of no effect where the antenna will not be visible from the surrounding public space or streets and the antenna will not harm original historic materials or their replacements-in-kind. The Commission notes that, in addition to the measures ensuring that there are no incremental visual effects from covered facilities, the Commission's finding of no effects in this case is also implicitly based on a requirement, as the GSA Note recommends, that the deployment will not harm original historic materials. Even assuming a building is historic, however, as required by section 800.3(a)(1), this “no harm” criterion would be satisfied by ensuring that any anchoring on the building was not performed on the historic materials of the property or their replacements-in-kind. It is therefore unnecessary to expressly impose a “no harm” condition
43. The Commission makes a narrow exception to the no-visibility requirement where the new antenna would replace an existing antenna in the same vicinity and where the addition of the new antenna would not constitute a substantial increase in size over the replaced antenna. In this situation, no additional incompatible visual element is being added, as one antenna is a substitution for the other. The Commission permits an insubstantial increase in size in this situation. For purposes of this criterion, the replacement facility would represent a substantial increase in size if it is more than three feet larger in height or width (including all protuberances) than the existing facility, or if it involves any new equipment cabinets that are visible from the street or adjacent public spaces. The Commission declines to adopt the NPA definition of “substantial increase,” which allows greater increases in height or width in some cases, because it applies to towers, not to antenna deployments, and it is therefore overbroad with respect to the replacement of an existing antenna. The Commission further notes that no one has objected to Verizon's proposed limit on increases of three feet in this context. Also, since the Commission is required to ensure no potential for effects on historic properties assuming such properties are present, the Commission finds it appropriate to adopt a more stringent test than in the context of a program alternative. For these reasons, any increase in the number of equipment cabinets that are visible from the street or adjacent public spaces in connection with a replacement antenna constitutes a substantial increase in size. In combination with the requirements that the new antenna be within 10 feet of the replaced antenna and that the pre-existing antenna be visible from any ground perspective that would afford a view of the new antenna these requirements ensure that the replacement deployment will not have an additional visual effect.
44. Under its second partial exception to the no-visibility requirement, the new antenna may be in addition to, rather than a replacement of, a pre-existing antenna, but must meet the other requirements applicable to replacement antennas. The Commission requires that the pre-existing antenna itself not have been deployed pursuant to this exception. While this exception will allow an additional visual element to be added, the element is again limited to a comparably-sized antenna in the same viewshed (and again does not include any new visible associated equipment). Further, because the pre-existing antenna may not itself have been deployed pursuant to this no-effects finding, deployments cannot be daisy-chained across the structure, which might present a potential for cumulative effects.
45. Consistent with the Verizon proposal, the Commission requires that the new antenna comply with all zoning and historic preservation conditions applicable to existing antennas in the same vicinity that directly mitigate or prevent effects, such as camouflage, concealment, or painting requirements. The Commission does not extend that requirement to conditions that have no direct relationship to the facility's effect or how the facility is deployed, such as a condition that requires the facility owner to pay for historic site information signs or other conditions intended to offset harms rather than prevent them. Its goal is to assure that any new deployments have no effects on historic properties. Payments or other forms of mitigation applied to antennas previously deployed on the building or structure that were intended to compensate for any adverse effect on historic properties caused by those antennas but were not intended to prevent that effect from occurring do not advance its goal of assuring no effects from such collocations. The Commission does not require that the new antenna comply with such conditions.
46. As with the exclusion the Commission adopts for collocations on utility structures, the Commission imposes a strict requirement of no new ground disturbance. Thus, the exclusion will permit ground disturbance only where the depth and width of previous disturbance exceeds the proposed construction depth and width (including footings and other anchoring mechanisms) by at least two feet.
47. The Collocation Agreement provides that “[a]n antenna may be mounted on a building” without section 106 review except under certain circumstances,
48. If pre-construction notice of a tower to the FAA is required, the Commission's rules also require the tower owner to register the antenna structure in the Commission's Antenna Structure Registration (ASR) system, prior to construction or alteration. To fulfill responsibilities under NEPA, the Commission requires owners of proposed towers, including temporary towers that must be registered in the ASR system to provide local and national notice prior to submitting a completed ASR application. Typically, the ASR notice process takes approximately 40 days.
49. On May 15, 2013, in the
50. The Commission now adopts a permanent exemption from its ASR environmental notification requirements for temporary towers that (1) will be in place for no more than 60 days; (2) require notice of construction to the FAA; (3) do not require marking or lighting under FAA regulations; (4) will be less than 200 feet in height; and (5) will either involve no excavation or
51. As the Commission observed in the
52. At the same time, the benefits of environmental notice are limited in the case of temporary towers meeting these criteria. The purpose of environmental notice is to facilitate public discourse regarding towers that may have a significant environmental impact. The Commission finds that towers meeting the specified criteria are highly unlikely to have significant environmental effects due to their short duration, limited height, absence of marking or lighting, and minimal to no excavation. As the Commission explained in the
53. The Commission also adopts the proposal to require no post-construction environmental notice for temporary towers that qualify for the exemption. Ordinarily, when pre-construction notice is waived due to an emergency situation, the Commission requires environmental notification shortly after construction because such a deployment may be for a lengthy or indefinite period of time. The Commission finds that requiring post-construction notification for towers intended to be in place for the limited duration covered by the exemption is not in the public interest as the exempted period is likely to be over or nearly over by the time the notice period ends. Additionally, the Commission notes again that it has rarely seen temporary antenna structures generate public comment regarding potentially significant environmental effects. The Commission further notes that of the many commenters supporting an exemption, none opposed its proposal to exempt qualifying temporary towers from post-construction environmental notification.
54. The Commission finds that the objections to the proposed exemption raised by Lee County, Tempe, and Orange County are misplaced. They express concerns that a temporary towers exemption would eliminate local review (including local environmental review) and antenna structure registration requirements. The exemption the Commission adopts does neither of these things. First, the temporary towers measure does not exempt any deployment from any otherwise applicable requirement under the Commission's rules to provide notice to the FAA, to obtain an FAA “no-hazard” determination, or to complete antenna structure registration. In raising its concern, Orange County notes that it “operates . . . a large regional airport that has recently expanded through construction of a third terminal.” The Commission finds the exemption poses no threat to air safety. As noted, deployments remains subject to all applicable requirements to notify the FAA and register the structure in the ASR system. If the Commission or the FAA requires either painting or lighting,
55. The Commission concludes that making the exemption available for towers less than 200 feet above ground level is appropriate and adequate to ensure that the exemption serves the public interest both by minimizing potential significant environmental effects and by enabling wireless providers to more effectively respond to large or unforeseen spikes in demand for service. CTIA indicates that carriers deploy temporary towers more than 150 feet tall to replace damaged towers of similar height, and that having to use shorter towers to stand in for damaged towers may reduce coverage and thereby limit the availability of service during emergencies. The Commission agrees with CTIA that reducing the maximum tower height could undermine the intended purpose of the exemption. Further, the proposed limit of less than 200 feet will allow appropriate flexibility for taller temporary models, as they become available.
56. The Commission concludes that 60 days is an appropriate time limit for the deployment of towers under this exemption. This time limit has substantial support in the record, and the Commission finds that 60 days strikes the proper balance between making this exemption a useful and effective tool for facilitating urgently needed short term communications deployments and facilitating public involvement in Commission decisions that may affect the environment. The brief duration of the covered deployments renders post-construction notification unnecessary in the public interest because the deployment will be removed by the time a post-construction notice period is complete or shortly thereafter. As the intended deployment period grows, however, the applicability of that reasoning erodes. For emergency deployments that may last up to six months or even longer, post-
57. The Commission declines to define consequences or to adopt special enforcement mechanisms for misuse of the exemption, as proposed by some commenters. The Commission agrees with Springfield, however, that the Commission should adopt a measure to prevent the use of consecutive deployments under the exemption to effectively exceed the time limit. The Commission therefore requires that at least 30 days must pass following the removal of one exempted temporary tower before the same applicant may rely on the exemption for another temporary tower covering substantially the same service area. While AT&T argues that the Commission should not adopt measures to prevent “speculative abuses,” the Commission concludes that this narrow limitation on the consecutive use of the exemption will help to ensure that it applies only to deployments of brief duration, as intended. Further, the Commission is not persuaded by CTIA's argument that such a restriction would interfere with a carrier's flexibility to respond to unforeseen events. The restriction places no limit on the number of exempt towers that can be deployed at any one time to cover a larger combined service area. The Commission also notes that its rule provides for extensions of the 60-day period in appropriate cases, which should further ensure that applicants have sufficient flexibility to respond to unforeseen events.
58. The Commission further clarifies that under appropriate conditions, such as natural disasters or national emergencies, the relevant bureau may grant waivers of this limitation applicable to defined geographic regions and periods. In addition, a party subject to this limitation at a particular site may still request a site-specific waiver of the notice requirements for a subsequent temporary deployment at that site.
59. To implement the new temporary towers exemption, Commission staff will modify FCC Form 854. The Commission notes that the modification of the form is subject to approval by the Office of Management and Budget (OMB). To ensure clarity, the Commission provides that the exemption will take effect only when the Wireless Telecommunications Bureau issues a Public Notice announcing OMB's approval. The Commission further provides that, until the new exemption is effective, the interim waiver of notification requirements for temporary towers remains available.
60. Congress adopted section 6409 in 2012 as a provision of Title VI of the Middle Class Tax Relief and Job Creation Act of 2012, which is more commonly known as the Spectrum Act. Section 6409(a), entitled “Facility Modifications,” has three provisions. Subsection (a)(1) provides that “[n]otwithstanding section 704 of the Telecommunications Act of 1996 [codified as 47 U.S.C. 332(c)(7)] or any other provision of law, a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.” Subsection (a)(2) defines the term “eligible facilities request” as any request for modification of an existing wireless tower or base station that involves (a) collocation of new transmission equipment; (b) removal of transmission equipment; or (c) replacement of transmission equipment. Subsection (a)(3) provides that “[n]othing in paragraph (a) shall be construed to relieve the Commission from the requirements of the National Historic Preservation Act or the National Environmental Policy Act of 1969.” Aside from the definition of “eligible facilities request,” section 6409(a) does not define any of its terms. Similarly, neither the definitional section of the Spectrum Act nor that of the Communications Act contains definitions of the section 6409(a) terms. In the
61. After reviewing the voluminous record in this proceeding, the Commission decides to adopt rules clarifying the requirements of section 6409(a), and implementing and enforcing these requirements, in order to prevent delay and confusion in such implementation. As the Commission noted in the
62. The record demonstrates very substantial differences in the views advanced by local government and wireless industry commenters on a wide range of interpretive issues under the provision. While many localities recommend that the Commission defer to best practices to be developed on a collaborative basis, the Commission finds that there has been little progress in that effort since enactment of section 6409(a) well over two years ago. While the Commission generally encourages the development of voluntary best practices, the Commission is also concerned that voluntary best practices, on their own, may not effectively resolve many of the interpretive disputes or ensure uniform application of the law in this instance. In light of these disputes, the Commission takes this opportunity to provide additional certainty to parties.
63.
64. The Commission first addresses the scope of wireless services to which the provision applies through the definitions of both “transmission equipment” and “wireless tower or base station.” After considering the arguments in the record, the Commission concludes that section 6409(a) applies both to towers and base stations and to transmission equipment used in connection with any Commission-authorized wireless communications service. The Commission finds strong support in the record for this interpretation. With respect to towers and base stations, the Commission concludes that this interpretation is warranted given Congress's selection of the broader term “wireless” in section 6409(a) rather than the narrow term “personal wireless service” it previously used in section 332(c)(7), as well as Congress's express intent that the provisions of the Spectrum Act “advance wireless broadband service,” promoting “billions of dollars in private investment,” and further the deployment of FirstNet. The Commission finds that interpreting “wireless” in the narrow manner that some municipal commenters suggest would substantially undermine the goal of advancing the deployment of broadband facilities and services, and that interpreting section 6409(a) to facilitate collocation opportunities on a broad range of suitable structures will far better contribute to meeting these goals, and is particularly important to further the deployment of FirstNet. The Spectrum Act directs the FirstNet authority, in carrying out its duty to deploy and operate a nationwide public safety broadband network, to “enter into agreements to utilize, to the maximum extent economically desirable, existing . . . commercial or other communications infrastructure; and . . . Federal, State, tribal, or local infrastructure.” For all of these reasons, the Commission finds it appropriate to interpret section 6409(a) as applying to collocations on infrastructure that supports equipment used for all Commission-licensed or authorized wireless transmissions.
65. The Commission is not persuaded that Congress's use of the term “base station” implies that the provision applies only to mobile service. As noted in the
66. The Commission is also not persuaded that it should exclude “broadcast” from the scope of section 6409(a), both with respect to “wireless” towers and base stations and with respect to transmission equipment. The Commission acknowledges that the term “wireless providers” appears in other sections of the Spectrum Act that do not encompass broadcast services. The Commission does not agree, however, that use of the word “wireless” in section 6409's reference to a “tower or base station” can be understood without reference to context. The Commission interprets the term “wireless” as used in section 6409(a) in light of the purpose of this provision in particular and the larger purposes of the Spectrum Act as a whole. The Commission finds that Congress intended the provision to facilitate collocation in order to advance the deployment of commercial and public safety broadband services, including the deployment of the FirstNet network. The Commission agrees with NAB that including broadcast towers significantly advances this purpose by “supporting the approximately 25,000 broadcast towers as collocation platforms.” The Commission notes that a variety of industry and municipal commenters likewise support the inclusion of broadcast towers for similar reasons. Finally, the Commission observes that this approach is consistent with the Collocation Agreement and the NPA, both of which define “tower” to include broadcast towers. These agreements address “wireless” communications facilities and collocation for any “communications” purposes. They extend to any “tower” built for the sole or primary purpose of supporting any “FCC-licensed” facilities. The Commission finds these references particularly persuasive in ascertaining congressional intent, since section 6409(a) expressly references the Commission's continuing obligations to comply with NEPA and NHPA, which form the basis for these agreements.
67. The Commission further concludes that a broad interpretation of “transmission equipment” is similarly appropriate in light of the purposes of section 6409(a) in particular and the Spectrum Act more generally. The statute's Conference Report expresses Congress's intention to advance wireless broadband service generally, and as PCIA states, a broad definition of this term will ensure coverage for all wireless broadband services, including future services not yet contemplated. Defining “transmission equipment” broadly will facilitate the deployment of wireless broadband networks and will “minimize the need to continually redefine the term as technology and applications evolve.” The Commission also notes that a broad definition reflects Congress's definition of a comparable term in the context of directly related provisions in the same statute; in section 6408, the immediately preceding provision addressing uses of adjacent spectrum, Congress defined the term “transmission system” broadly to include “any telecommunications, broadcast, satellite, commercial mobile service, or other communications system that employs radio spectrum.”
68. The Commission disagrees with commenters who contend that including broadcast equipment within covered transmission equipment does not advance the goals of the Spectrum Act. While broadcast equipment does not itself transmit wireless broadband signals, its efficient collocation pursuant to section 6409(a) will expedite and minimize the costs of the relocation of broadcast television licensees that are reassigned to new channels in order to clear the spectrum that will be offered for broadband services through the incentive auction, as mandated by the Spectrum Act. The Commission concludes that inclusion of broadcast service equipment in the scope of transmission equipment covered by the provision furthers the goals of the legislation and will contribute in particular to the success of the post-incentive auction transition of television broadcast stations to their new channels. The Commission notes that the language of section 6409(a) is broader than that used in section
69. The Commission further rejects arguments that Congress intended these terms to be restricted to equipment used in connection with personal wireless services and public safety services. The Communications Act and the Spectrum Act already define those narrower terms, and Congress chose not to employ them in section 6409(a), determining instead to use the broader term, “wireless.” The legislative history supports the conclusion that Congress intended to employ broader language. In the Conference Report, Congress emphasized that a primary goal of the Spectrum Act was to “advance wireless broadband service,” which would “promot[e] billions of dollars in private investment, and creat[e] tens of thousands of jobs.” In light of its clear intent to advance wireless broadband deployment through enactment of section 6409(a), the Commission finds it implausible that Congress meant to exclude facilities used for such services.
70. The Commission adopts the proposal in the
71. The Commission is further persuaded by wireless industry commenters that power supplies, including backup power, are a critical component of wireless broadband deployment and that they are necessary to ensure network resiliency. Indeed, including backup power equipment within the scope of “transmission equipment” under section 6409(a) is consistent with Congress's directive to the FirstNet Authority to “ensure the . . . resiliency of the network.” Tempe's assertion that backup power is not technically “necessary” because transmission equipment can operate without it is unpersuasive. Backup power is certainly necessary to operations during those periods when primary power is intermittent or unavailable. The Commission also concludes that “transmission equipment” should be interpreted consistent with the term “antenna” in the NPA and, given that the NPA term encompasses “power sources” without limitation, the Commission finds that “transmission equipment” includes backup power sources. Finally, while the Commission recognizes the concerns raised by local government commenters regarding the potential hazards of backup power generators, the Commission finds that these concerns are fully addressed in the standards applicable to collocation applications discussed below.
72. The Commission defines “transmission equipment” under section 6409(a) as any equipment that facilitates transmission for any Commission-licensed or authorized wireless communication service, including, but not limited to, radio transceivers, antennas and other relevant equipment associated with and necessary to their operation, including coaxial or fiber-optic cable, and regular and backup power supply. This definition includes equipment used in any technological configuration associated with any Commission-authorized wireless transmission, licensed or unlicensed, terrestrial or satellite, including commercial mobile, private mobile, broadcast, and public safety services, as well as fixed wireless services such as microwave backhaul or fixed broadband.
73. The Commission adopts the definitions of “tower” and “base station” proposed in the
74. As proposed in the
75. The Commission further finds, consistent with the Commission's proposal, that the term “existing . . . base station” includes a structure that, at the time of the application, supports or houses an antenna, transceiver, or other associated equipment that constitutes part of a “base station” as defined above, even if the structure was not built for the sole or primary purpose of providing such support. As the Commission noted in the
76. The Commission finds that the alternative definitions proposed by many municipalities are unpersuasive. First, the Commission rejects arguments that a “base station” includes only the transmission system equipment, not the structure that supports it. This reading conflicts with the full text of the provision, which plainly contemplates collocations on a base station as well as a tower. Section 6409(a) defines an “eligible facilities request” as a request to modify an existing wireless tower or
77. The Commission is also not persuaded by arguments that “base station” refers only to the equipment compound associated with a tower and the equipment located upon it. First, no commenters presented evidence that “base station” is more commonly understood to mean an equipment compound as opposed to the broader definition of all equipment associated with transmission and reception and its supporting structures. Furthermore, the Collocation Agreement's definition of “tower,” which the Commission adopts in the R&O, treats equipment compounds as part of the associated towers for purposes of collocations; if towers include their equipment compounds, then defining base stations as equipment compounds alone would render the term superfluous. The Commission also notes that none of the State statutes and regulations implementing section 6409(a) has limited its scope to equipment and structures associated with towers. In addition, the Commission agrees with commenters who argue that limiting the definition of “base station” (and thus the scope of section 6409(a)) to structures and equipment associated with towers would compromise the core policy goal of bringing greater efficiency to the process for collocations. Other structures are increasingly important to the deployment of wireless communications infrastructure; omitting them from the scope of section 6409(a) would mean the statute's efficiencies would not extend to many if not most wireless collocations, and would counterproductively exclude virtually all of the small cell collocations that have the least impact on local land use.
78. Some commenters arguing that section 6409(a) covers no structures other than those associated with towers point to the Conference Report, which, in describing the equivalent provision in the House bill, states that the provision “would require approval of requests for modification of cell towers.” The Commission does not find this ambiguous statement sufficient to overcome the language of the statute as enacted, which refers to “modification of an existing wireless tower
79. The Commission thus adopts the proposed definition of “base station” to include a structure that currently supports or houses an antenna, transceiver, or other associated equipment that constitutes part of a base station at the time the application is filed. The Commission also finds that “base station” encompasses the relevant equipment in any technological configuration, including DAS and small cells. The Commission disagrees with municipalities that argue that “base station” should not include DAS or small cells. As the record supports, there is no statutory language limiting the term “base station” in this manner. The definition is sufficiently flexible to encompass, as appropriate to section 6409(a)'s intent and purpose, future as well as current base station technologies and technological configurations, using either licensed or unlicensed spectrum.
80. While the Commission does not accept municipal arguments to limit section 6409(a) to equipment or structures associated with towers, the Commission rejects industry arguments that section 6409(a) should apply more broadly to include certain structures that neither were built for the purpose of housing wireless equipment nor have base station equipment deployed upon them. The Commission finds no persuasive basis to interpret the statutory provision so broadly. The Commission agrees with Alexandria et al. that the scope of section 6409(a) is different from that of the Collocation Agreement, as the statutory provision clearly applies only to collocations on an existing “wireless tower or base station” rather than any existing “tower or structure.” Further, interpreting “tower” to include structures “similar to a tower” would be contrary to the very Collocation Agreement to which these commenters point, which defines “tower” in the narrower fashion that the Commission adopts. The Commission also agrees with municipalities as a policy matter that local governments should retain authority to make the initial determination (subject to the constraints of section 332(c)(7)) of which non-tower structures are appropriate for supporting wireless transmission equipment; its interpretations of “tower” and “base station” preserve that authority.
81. Finally, the Commission agrees with Fairfax that the term “existing” requires that wireless towers or base stations have been reviewed and approved under the applicable local zoning or siting process or that the deployment of existing transmission equipment on the structure received another form of affirmative State or local regulatory approval (
82. On balance, the Commission finds that the foregoing definitions are consistent with congressional intent to foster collocation on various types of structures, while addressing municipalities' valid interest in preserving their authority to determine which structures are suitable for wireless deployment, and under what conditions.
83. The Commission concludes again that it is appropriate to look to the Collocation Agreement for guidance on the meaning of analogous terms, particularly in light of section 6409(a)(3)'s specific recognition of the Commission's obligations under NHPA and NEPA. As proposed in the
84. The Commission disagrees with municipal commenters who argue that collocations are limited to mounting equipment on structures that already have transmission equipment on them. That limitation is not consistent with the Collocation Agreement's definition of “collocation,” and would not serve any reasonable purpose as applied to towers built for the purpose of supporting transmission equipment. Nevertheless, the Commission observes that the Commission's approach leads to the same result in the case of “base stations;” since its definition of that term includes only structures that already support or house base station equipment, section 6409(a) will not apply to the first deployment of transmission equipment on such structures. Thus, the Commission disagrees with CA Local Governments that adopting the Commission's proposed definition of collocation would require local governments to approve deployments on anything that could house or support a component of a base station. Rather, section 6409(a) will apply only where a State or local government has approved the construction of a structure with the sole or primary purpose of supporting covered transmission equipment (
85. The Commission finds that the term “eligible facilities request” encompasses hardening through structural enhancement where such hardening is necessary for a covered collocation, replacement, or removal of transmission equipment, but does not include replacement of the underlying structure. The Commission notes that the term “eligible facilities request” encompasses any “modification of an existing wireless tower or base station that involves” collocation, removal, or replacement of transmission equipment. Given that structural enhancement of the support structure is a modification of the relevant tower or base station, the Commission notes that permitting structural enhancement as a part of a covered request may be particularly important to ensure that the relevant infrastructure will be available for use by FirstNet because of its obligation to “ensure the safety, security, and resiliency of the [public safety broadband] network. . . .” In addition to hardening for Public Safety, commercial providers may seek structural enhancement for many reasons, for example, to increase load capacity or to repair defects due to corrosion or other damage. The Commission finds that such modification is part of an eligible facilities request so long as the modification of the underlying support structure is performed in connection with and is necessary to support a collocation, removal, or replacement of transmission equipment. The Commission further clarifies that, to be covered under section 6409(a), any such structural enhancement must not constitute a substantial change as defined below.
86. The Commission agrees with Alexandria et al., that “replacement,” as used in section 6409(a)(2)(C), relates only to the replacement of “transmission equipment,” and that such equipment does not include the structure on which the equipment is located. Even under the condition that it would not substantially change the physical dimensions of the structure, replacement of an entire structure may affect or implicate local land use values differently than the addition, removal, or replacement of transmission equipment, and the Commission finds no textual support for the conclusion that Congress intended to extend mandatory approval to new structures. Thus, the Commission declines to interpret “eligible facilities requests” to include replacement of the underlying structure.
87. After careful review of the record, the Commission adopts an objective standard for determining when a proposed modification will “substantially change the physical dimensions” of an existing tower or base station. The Commission provides that a modification substantially changes the physical dimensions of a tower or base station if it meets any of the following criteria: (1) for towers
88. The Commission initially concludes that it should adopt a test that is defined by specific, objective factors rather than the contextual and entirely subjective standard advocated by the Intergovernmental Advisory Committee (IAC) and municipalities. Congress took care to refer, in excluding certain modifications from mandatory approval requirements, to those that would substantially change the tower or base station's “physical dimensions.” The Commission also finds that Congress intended approval of covered requests to occur in a timely fashion. While the Commission acknowledges that the IAC approach would provide municipalities with maximum flexibility to consider potential effects, the Commission is concerned that it would invite lengthy review processes that conflict with Congress's intent. Indeed, some municipal commenters anticipate their review of covered requests under a subjective case-by-case approach could take even longer than their review of collocations absent section 6409(a). The Commission also anticipates that disputes arising from a subjective approach would tend to require longer and more costly litigation to resolve given the more fact-intensive nature of the IAC's open-ended and context-specific approach. The Commission finds that an objective definition, by contrast, will provide an appropriate balance between municipal flexibility and the rapid deployment of covered facilities. The Commission finds further support for this approach in State statutes that have implemented section 6409(a), all of which establish objective standards.
89. The Commission further finds that the objective test for “substantial increase in size” under the Collocation Agreement should inform its consideration of the factors to consider when assessing a “substantial change in physical dimensions.” This reflects its general determination that definitions in the Collocation Agreement and NPA should inform its interpretation of similar terms in section 6409(a). Further, as noted in the
90. First, the Commission declines to adopt the Collocation Agreement's exceptions that allow modifications to exceed the usual height and width limits when necessary to avoid interference or shelter the antennas from inclement weather. The Commission agrees with CA Local Governments that these issues pose technically complex and fact-intensive questions that many local governments cannot resolve without the aid of technical experts; modifications that would not fit within the Collocation Agreement's height and width exceptions are thus not suitable for expedited review under section 6409(a).
91. Second, the Commission concludes that the limit on height and width increases should depend on the type and location of the underlying structure. Under the Collocation Agreement's “substantial increase in size” test, which applies only to towers, a collocation constitutes a substantial increase in size if it would increase a tower's height by 10% or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater. In addition, the Collocation Agreement authorizes collocations that would protrude by twenty feet, or by the width of the tower structure at the level of the appurtenance, whichever is greater. The Commission finds that the Collocation Agreement's height and width criteria are generally suitable for towers, as was contemplated by the Agreement.
92. These tests were not designed with non-tower structures in mind, and the Commission finds that they may often fail to identify substantial changes to non-tower structures such as
93. The Commission also provides, as suggested by Verizon and PCIA, that a proposed modification of a non-tower structure constitutes a “substantial change” under section 6409(a) if it would protrude from the edge of the structure more than six feet. The Commission finds that allowing for width increases up to six feet will promote the deployment of small facility deployments by accommodating installation of the mounting brackets/arms often used to deploy such facilities on non-tower structures, and that it is consistent with small facility deployments that municipalities have approved on such structures. The Commission further notes that it is significantly less than the limits in width established by most State collocation statutes adopted since the Spectrum Act. The Commission finds that six feet is the appropriate objective standard for substantial changes in width for non-tower structures, rather than the alternative proposals in the record.
94. The Commission declines to apply the same substantial change criteria to utility structures as apply to towers. While Verizon argues in an
95. The Commission agrees with commenters that its substantial change criteria for changes in height should be applied as limits on cumulative changes; otherwise, a series of permissible small changes could result in an overall change that significantly exceeds the adopted standards. Specifically, the Commission finds that whether a modification constitutes a substantial change must be determined by measuring the change in height from the dimensions of the “tower or base station” as originally approved or as of the most recent modification that received local zoning or similar regulatory approval prior to the passage of the Spectrum Act, whichever is greater.
96. The Commission declines to provide that changes in height should always be measured from the original tower or base station dimensions, as suggested by some municipalities. As with the original tower or base station, discretionary approval of subsequent modifications reflects a regulatory determination of the extent to which wireless facilities are appropriate, and under what conditions. At the same time, the Commission declines to adopt industry commenters' proposal always to measure changes from the last approved change or the effective date of the rules. Measuring from the last approved change in all cases would provide no cumulative limit at all. In particular, since the Spectrum Act became law, approval of covered requests has been mandatory and approved changes after that time may not establish an appropriate baseline because they may not reflect a siting authority's judgment that the modified structure is consistent with local land use values. Because it is impractical to require parties, in measuring cumulative impact, to determine whether each pre-existing modification was or was not required by the Spectrum Act, the Commission provides that modifications of an existing tower or base station that occur after the passage of the Spectrum Act will not change the baseline for purposes of measuring substantial change. Consistent with the determination that a tower or base station is not covered by section 6409(a) unless it received such approval, this approach will in all cases limit modifications that are subject to mandatory approval to the same modest increments over what the relevant governing authority has previously deemed compatible with local land use values. The Commission further finds that, for structures where collocations are separated horizontally rather than vertically (such as building rooftops), substantial change is more appropriately measured from the height of the original structure, rather than the height of a previously approved antenna. Thus, for example, the deployment of a 10-foot antenna on a rooftop would not mean that a nearby deployment of a 20-foot antenna would be considered insubstantial.
97. Again drawing on the Collocation Agreement's test, the Commission further provides that a modification is a substantial change if it entails any excavation or deployment outside the current site of the tower or base station. As in the Collocation Agreement, the Commission defines the “site” for
98. The Commission also rejects the PCIA and Sprint proposal to expand the Collocation Agreement's fourth prong, as modified by the 2004 NPA, to allow applicants to excavate outside the leased or licensed premises. Under the NPA, certain undertakings are excluded from the section 106 review, including “construction of a replacement for an existing communications tower and any associated excavation that . . . does not expand the boundaries of the leased or owned property surrounding the tower by more than 30 feet in any direction or involve excavation outside these expanded boundaries or outside any existing access or utility easement related to the site.” The NPA exclusion from section 106 review applies to replacement of “an existing communications tower.” In contrast, “replacement,” as used in section 6409(a)(2)(C), relates only to the replacement of “transmission equipment,” not the replacement of the supporting structures. Thus, the activities covered under section 6409(a) are more nearly analogous to those covered under the Collocation Agreement than under the replacement towers exclusion in the NPA. The Commission agrees with localities comments that any eligible facilities requests that involve excavation outside the premises should be considered a substantial change, as under the fourth prong of the Collocation Agreement's test.
99. Based on its review of the record and various state statutes, the Commission further finds that a modification constitutes a substantial change in physical dimensions under section 6409(a) if the change (1) would defeat the existing concealment elements of the tower or base station, or (2) does not comply with pre-existing conditions associated with the prior approval of construction or modification of the tower or base station. The first of these criteria is widely supported by both wireless industry and municipal commenters, who generally agree that a modification that undermines the concealment elements of a stealth wireless facility, such as painting to match the supporting façade or artificial tree branches, should be considered substantial under section 6409(a). The Commission agrees with commenters that in the context of a modification request related to concealed or “stealth”-designed facilities—
100. The Commission agrees with PCIA that legal, non-conforming structures should be available for modification under section 6409(a), as long as the modification itself does not “substantially change” the physical dimensions of the supporting structure as defined here. The Commission rejects municipal arguments that any modification of an existing wireless tower or base station that has “legal, non-conforming” status should be considered a “substantial change” to its “physical dimensions.” As PCIA argues, the approach urged by municipalities could thwart the purpose of section 6409(a) altogether, as simple changes to local zoning codes could immediately turn existing structures into legal, non-conforming uses unavailable for collocation under the statute. Considering Congress's intent to promote wireless facilities deployment by encouraging collocation on existing structures, and considering the requirement in section 6409(a) that States and municipalities approve covered requests “[n]otwithstanding . . . any other provision of law,” the Commission finds the municipal commenters' proposal to be unsupportably restrictive.
101. The record also reflects general consensus that wireless facilities modification under section 6409(a) should remain subject to building codes and other non-discretionary structural and safety codes. As municipal commenters indicate, many local jurisdictions have promulgated code provisions that encourage and promote collocations and replacements through a streamlined approval process, while ensuring that any new facilities comply with building and safety codes and applicable Federal and State regulations. Consistent with that approach on the local level, the Commission finds that Congress did not intend to exempt covered modifications from compliance with generally applicable laws related to public health and safety. The Commission concludes that States and localities may require a covered request to comply with generally applicable building, structural, electrical, and safety codes or with other laws codifying objective standards reasonably related to health and safety, and that they may condition approval on such compliance. In particular, the Commission clarifies that section 6409(a) does not preclude States and localities from continuing to require compliance with generally applicable health and safety requirements on the placement and operation of backup power sources, including noise control ordinances if any. The Commission further clarifies that eligible facility requests covered by section 6409(a) must still comply with any relevant Federal requirement, including any applicable Commission, FAA, NEPA, or section 106 requirements. The Commission finds that this interpretation is supported in the record, addresses a concern raised by several municipal commenters and the IAC, and is consistent with the express direction in section 6409(a) that the provision is not intended to relieve the Commission from the requirements of NEPA and NHPA.
102. In sum, the Commission finds that the definitions, criteria, and related clarifications it adopts for purposes of section 6409(a) will provide clarity and certainty, reducing delays and litigation, and thereby facilitate the rapid deployment of wireless infrastructure and promote advanced wireless broadband services. At the same time, the Commission concludes that its approach also addresses concerns
103. As an initial matter, the Commission finds that State or local governments may require parties asserting that proposed facilities modifications are covered under section 6409(a) to file applications, and that these governments may review the applications to determine whether they constitute covered requests. As the Bureau observed in the
104. The Commission further concludes that section 6409(a) warrants the imposition of certain requirements with regard to application processing, including a specific timeframe for State or local government review and a limitation on the documentation States and localities may require. While section 6409(a), unlike section 332(c)(7), does not expressly provide for a time limit or other procedural restrictions, the Commission concludes that certain limitations are implicit in the statutory requirement that a State or local government “may not deny, and shall approve” covered requests for wireless facility siting. In particular, the Commission concludes that the provision requires not merely approval of covered applications, but approval within a reasonable period of time commensurate with the limited nature of the review, whether or not a particular application is for “personal wireless service” facilities covered by section 332(c)(7). With no such limitation, a State or local government could evade its statutory obligation to approve covered applications by simply failing to act on them, or it could impose lengthy and onerous processes not justified by the limited scope of review contemplated by the provision. Such unreasonable delays not only would be inconsistent with the mandate to approve but also would undermine the important benefits that the provision is intended to provide to the economy, competitive wireless broadband deployment, and public safety. The Commission requires that States and localities grant covered requests within a specific time limit and pursuant to other procedures outlined below.
105. The Commission finds substantial support in the record for adopting such requirements. It is clear from the record that there is significant dispute as to whether any time limit applies at all under section 6409(a) and, if so, what that limit is. The Commission also notes that there is already some evidence in the record, albeit anecdotal, of significant delays in the processing of covered requests under this new provision, which may be partly a consequence of the current uncertainty regarding the applicability of any time limit. Because the statutory language does not provide guidance on these requirements, the Commission is concerned that, without clarification, future disputes over the process could significantly delay the benefits associated with the statute's implementation. Moreover, the Commission finds it important that all stakeholders have a clear understanding of when an applicant may seek relief from a State or municipal failure to act under section 6409(a). The Commission finds further support for establishing these process requirements in analogous State statutes, nearly all of which include a timeframe for review.
106. Contrary to the suggestion of municipalities, the Commission disagrees that the Tenth Amendment prevents the Commission from exercising its authority under the Spectrum Act to implement and enforce the limitations imposed thereunder on State and local land use authority. These limitations do not require State or local authorities to review wireless facilities siting applications, but rather preempt them from choosing to exercise such authority under their laws other than in accordance with Federal law—
107. First, the Commission provides that in connection with requests asserted to be covered by section 6409(a), State and local governments may only require applicants to provide documentation that is reasonably related to determining whether the request meets the requirements of the provision. The Commission finds that this restriction is appropriate in light of the limited scope of review applicable to such requests and that it will facilitate timely approval of covered requests. At the same time, under this standard, State or local governments have considerable flexibility in determining precisely what information or documentation to require. The Commission agrees with PCIA that States and localities may not require documentation proving the need for the proposed modification or presenting the business case for it. The Commission anticipates that over time, experience and the development of best practices will lead to broad standardization in the kinds of information required. As discussed above, even as to applications covered by section 6409(a), State and local governments may continue to enforce and condition approval on compliance with non-discretionary codes reasonably related to health and safety, including building and structural codes. The Commission finds that municipalities should have flexibility to decide when to require applicants to provide documentation of such compliance, as a single documentation submission may be more efficient than a series of submissions, and municipalities may also choose to integrate such compliance review into the zoning process. Accordingly, the Commission clarifies that this documentation restriction does not prohibit States and local governments from requiring documentation needed to demonstrate compliance with any such applicable codes.
108. In addition to defining acceptable documentation requirements, the Commission establishes a specific and absolute timeframe for State and local processing of eligible facilities requests under section 6409(a). The Commission finds that a 60-day period for review, including review to determine whether an application is complete, is appropriate. In addressing this issue, it is appropriate to consider not only the record support for a time limit on review but also State statutes that facilitate collocation applications. Many of these statutes impose review time limits, thus providing valuable insight into States' views on the appropriate amount of time. Missouri, New Hampshire, and Wisconsin, for example, have determined that 45 days is the maximum amount of time available to a municipality to review applications, while Georgia, North
109. The Commission finds that a period shorter than the 90-day period applicable to review of collocations under section 332(c)(7) of the Communications Act is warranted to reflect the more restricted scope of review applicable to applications under section 6409(a). The Commission further finds that a 60-day period of review, rather than the 45-day period proposed by many industry commenters, is appropriate to provide municipalities with sufficient time to review applications for compliance with section 6409(a), because the timeframe sets an absolute limit that—in the event of a failure to act—results in a deemed grant. Thus, whereas a municipality may rebut a claim of failure to act under section 332(c)(7) if it can demonstrate that a longer review period was reasonable, that is not the case under section 6409(a). Rather, if an application covered by section 6409(a) has not been approved by a State or local government within 60 days from the date of filing, accounting for any tolling, as described below, the reviewing authority will have violated section 6409(a)'s mandate to approve and not deny the request, and the request will be deemed granted.
110. The Commission further provides that the foregoing section 6409(a) timeframe may be tolled by mutual agreement or in cases where the reviewing State or municipality informs the applicant in a timely manner that the application is incomplete. As with tolling for completeness under section 332(c)(7) (as discussed in the R&O), an initial determination of incompleteness tolls the running of the period only if the State or local government provides notice to the applicant in writing within 30 days of the application's submission. The Commission also requires that any determination of incompleteness must clearly and specifically delineate the missing information in writing, similar to determinations of incompleteness under section 332(c)(7). Further, consistent with the documentation restriction established above, the State or municipality may only specify as missing information and supporting documents that are reasonably related to determining whether the request meets the requirements of section 6409(a).
111. The timeframe for review will begin running again when the applicant makes a supplemental submission, but may be tolled again if the State or local government provides written notice to the applicant within 10 days that the application remains incomplete and specifically delineates which of the deficiencies specified in the original notice of incompleteness have not been addressed. The timeframe for review will be tolled in this circumstance until the applicant supplies the relevant authority with the information delineated. Consistent with determinations of incompleteness under section 332(c)(7) as described below, any second or subsequent determination that an application is incomplete may be based only on the applicant's failure to provide the documentation or information the State or municipality required in its initial request for additional information. Further, if the 10-day period passes without any further notices of incompleteness from the State or locality, the period for review of the application may not thereafter be tolled for incompleteness.
112. The Commission further finds that the timeframe for review under section 6409(a) continues to run regardless of any local moratorium. This is once again consistent with its approach under section 332(c)(7), and is further warranted in light of section 6409(a)'s direction that covered requests shall be approved “[n]otwithstanding . . . any other provision of law.”
113. Some additional clarification of time periods and deadlines will assist in cases where both section 6409(a) and section 332(c)(7) apply. In particular, the Commission notes that States and municipalities reviewing an application under section 6409(a) will be limited to a restricted application record tailored to the requirements of that provision. As a result, the application may be complete for purposes of section 6409(a) review but may not include all of the information the State or municipality requires to assess applications not subject to section 6409(a). In such cases, if the reviewing State or municipality finds that section 6409(a) does not apply (because, for example, it proposes a substantial change), the Commission provides that the presumptively reasonable timeframe under section 332(c)(7) will start to run from the issuance of the State's or municipality's decision that section 6409(a) does not apply. To the extent the State or municipality needs additional information at that point to assess the application under section 332(c)(7), it may seek additional information subject to the same limitations applicable to other section 332(c)(7) reviews. The Commission recognizes that, in such cases, there might be greater delay in the process than if the State or municipality had been permitted to request the broader documentation in the first place. The Commission finds that applicants are in a position to judge whether to seek approval under section 6409(a), and the Commission expects they will have strong incentives to do so in a reasonable manner to avoid unnecessary delays. Finally, as the Commission proposed in the
114. Beyond the guidance provided in the R&O, the Commission declines to adopt the other proposals put forth by commenters regarding procedures for the review of applications under section 6409(a) or the collection of fees. The Commission concludes that its clarification and implementation of this statutory provision strikes the appropriate balance of ensuring the timely processing of these applications and preserving flexibility for State and local governments to exercise their rights and responsibilities. Given the limited record of problems implementing the provision, further action to specify procedures would be premature.
115. After a careful assessment of the statutory provision and a review of the record, the Commission establishes a deemed granted remedy for cases in which the applicable State or municipal reviewing authority fails to issue a decision within 60 days (subject to any tolling, as described above) on an application submitted pursuant to section 6409(a). The Commission further concludes that a deemed grant does not become effective until the applicant notifies the reviewing jurisdiction in writing, after the time period for review by the State or municipal reviewing authority as prescribed in the Commission's rules has expired, that the application has been deemed granted.
116. The Commission's reading of section 6409(a) supports this approach.
117. Many municipalities oppose the adoption of a deemed granted remedy primarily on the ground that it arguably represents an intrusion into local decision-making authority. The Commission fully acknowledges and values the important role that local reviewing authorities play in the siting process, and, as the Commission stated in the
118. Second, the Commission is establishing a clear process for tolling the 60-day period when an applicant fails to submit a complete application, thus ensuring that the absence of necessary information does not prevent a State or local authority from completing its review before the time period expires.
119. Third, even in the event of a deemed grant, the section 106 historic preservation review process—including coordination with State and Tribal historic preservation officers—will remain in place with respect to any proposed deployments in historic districts or on historic buildings (or districts and buildings eligible for such status).
120. Fourth, a State or local authority may challenge an applicant's written assertion of a deemed grant in any court of competent jurisdiction when it believes the underlying application did not meet the criteria in section 6409(a) for mandatory approval, would not comply with applicable building codes or other non-discretionary structural and safety codes, or for other reasons is not appropriately “deemed granted.”
121. Finally, and perhaps most importantly, the deemed granted approach does not deprive States and localities of the opportunity to determine whether an application is covered; rather, it provides a remedy for a failure to act within the fixed but substantial time period within which they must determine, on a non-discretionary and objective basis, whether an application fits within the parameters of section 6409(a).
122. The Commission emphasizes as well that it expects deemed grants to be the exception rather than the rule. To the extent there have been any problems or delays due to ambiguity in the provision, the Commission anticipates that the framework it has established, including the specification of substantive and procedural rights and applicable remedies, will address many of these problems. The Commission anticipates as well that the prospect of a deemed grant will create significant incentives for States and municipalities to act in a timely fashion.
123. With respect to the appropriate forum for redress or for resolving disputes, including disputes over the application of the deemed grant rule, the Commission finds that the most appropriate course for a party aggrieved by operation of section 6409(a) is to seek relief from a court of competent jurisdiction. Although the Commission finds that it has authority to resolve such disputes under its authority to implement and enforce that provision, the Commission also finds that requiring that these disputes be resolved in court, and not by the Commission, will better accommodate the role of the States and local authorities and serve the public interest for the reasons the municipal commenters identify and as discussed in the R&O.
124. A number of factors persuade the Commission to require parties to adjudicate claims under section 6409(a) in court rather than before the Commission. First, Commission adjudication would impose significant burdens on localities, many of which are small entities with no representation in Washington, DC and no experience before the Commission. The possible need for testimony to resolve disputed factual issues, which may occur in these cases, would magnify the burden. The Commission is also concerned that it may simply lack the resources to adjudicate these matters in a timely fashion if the Commission enables parties to seek its review of local zoning disputes arising in as many as 38,000 jurisdictions, thus thwarting Congress's goal of speeding up the process. The Commission also agrees with municipalities that it does not have any particular expertise in resolving local zoning disputes, whereas courts have been adjudicating claims of failure to act on wireless facility siting applications since the adoption of section 332(c)(7).
125. The Commission requires parties to bring claims related to section 6409(a) in a court of competent jurisdiction. Such claims would appear likely to fall into one of three categories. First, if the State or local authority has denied the application, an applicant might seek to challenge that denial. Second, if an
126. As proposed in the
127. The Commission declines at this time to further elaborate as to how this principle should apply to any particular circumstance in connection with section 6409(a). The Commission agrees with Alexandria et al. that the record does not demonstrate a present need to define what actions are and are not proprietary, and the Commission concludes in any case that such a task is best undertaken, to the extent necessary, in the context of a specific municipal action and associated record.
128. Based on its review of the record, the Commission is persuaded that a transition period is necessary and appropriate. The Commission agrees with certain municipal commenters that affected State and local governments may need time to make modifications to their laws and procedures to conform to and comply with the rules the Commission adopts in the R&O implementing and enforcing section 6409(a), and that a transition period is warranted to give them time to do so. The Commission concludes as proposed by the IAC and other parties that the rules adopted to implement section 6409(a) will take effect 90 days after
129. In 2009, the Commission adopted a Declaratory Ruling in response to a petition requesting clarification on two points: what constitutes a “reasonable period of time” after which an aggrieved applicant may file suit asserting a failure to act under section 332(c)(7), and whether a zoning authority may restrict competitive entry by multiple providers in a given area under section 332(c)(7)(B)(i)(II). In the
130. In the
131. The Commission finds that it should clarify under what conditions the presumptively reasonable timeframes may be tolled on grounds that an application is incomplete. As an initial matter, the Commission notes that under the
132. Further, consistent with proposals submitted by Crown Castle and PCIA, the Commission clarifies that, following a submission in response to a determination of incompleteness, any subsequent determination that an application remains incomplete must be based solely on the applicant's failure to supply information that was requested within the first 30 days. The shot clock will begin running again after the applicant makes a supplemental submission. The State or local government will have 10 days to notify the applicant that the supplemental submission did not provide the information identified in the original notice delineating missing information. In other words, a subsequent
133. The Commission further provides that, in order to toll the timeframe for review on grounds of incompleteness, a municipality's request for additional information must specify the code provision, ordinance, application instruction, or otherwise publically-stated procedures that require the information to be submitted. This requirement will avoid delays due to uncertainty or disputes over what documents or information are required for a complete application. Further, while some municipal commenters argue that “[n]ot all jurisdictions codify detailed application submittal requirements because doing so would require a code amendment for even the slightest change,” the Commission's approach does not restrict them to reliance on codified documentation requirements.
134. Beyond these procedural requirements, the Commission declines to enumerate what constitutes a “complete” application. The Commission finds that State and local governments are best suited to decide what information they need to process an application. Differences between jurisdictions make it impractical for the Commission to specify what information should be included in an application.
135. The Commission finds that these clarifications will provide greater certainty regarding the period during which the clock is tolled for incompleteness. This in turn provides clarity regarding the time at which the clock expires, at which point an applicant may bring suit based on a “failure to act.” Further, the Commission expects that these clarifications will result in shared expectations among parties, thus limiting potential miscommunication and reducing the potential or need for serial requests for more information. These clarifications will facilitate faster application processing, reduce unreasonable delay, and accelerate wireless infrastructure deployment.
136. The Commission clarifies that the shot clock runs regardless of any moratorium. This is consistent with a plain reading of the
137. Some commenters contend that this approach would, in effect, improperly require municipal staff to simultaneously review and update their regulations to adapt to new technologies while also reviewing applications. The Commission recognizes that new technologies may in some cases warrant changes in procedures and codes, but finds no reason to conclude that the need for any such change should freeze all applications. The Commission is confident that industry and local governments can work together to resolve applications that may require more staff resources due to complexity, pending changes to the relevant siting regulations, or other special circumstances. Moreover, in those instances in which a moratorium may reasonably prevent a State or municipality from processing an application within the applicable timeframe, the State or municipality will, if the applicant seeks review, have an opportunity to justify the delay in court. The Commission clarifies that the shot clock continues to run regardless of any moratorium.
138. The Commission declines at this time to determine that a moratorium that lasts longer than six months constitutes a
139. The Commission clarifies that to the extent DAS or small-cell facilities, including third-party facilities such as neutral host DAS deployments, are or will be used for the provision of personal wireless services, their siting applications are subject to the same presumptively reasonable timeframes that apply to applications related to other personal wireless service facilities. The Commission notes that courts have addressed the issue and, consistent with its conclusion, have found that the timeframes apply to DAS and small-cell deployments.
140. Some commenters argue that the shot clocks should not apply because some providers describe DAS and small-cell deployments as wireline, not wireless, facilities. Determining whether facilities are “personal wireless service facilities” subject to section 332(c)(7) does not rest on a provider's characterization in another context; rather, the analysis turns simply on whether they are facilities used to provide personal wireless services. Based on its review of the record, the Commission finds no evidence sufficient to compel the conclusion that the characteristics of DAS and small-cell deployments somehow exclude them from section 332(c)(7) and the
141. Some commenters suggest revising the Commission's proposal on the grounds that the unique qualities of DAS and small-cell systems require longer timeframes for municipal review. The Commission declines to adjust the timelines as these commenters suggest. The Commission notes that the timeframes are presumptive, and the Commission expects applicants and State or local governments to agree to extensions in appropriate cases. Moreover, courts will be positioned to assess the facts of individual cases—including whether the applicable time period “t[ook] into account the nature and scope of [the] request”—in instances where the shot clock expires and the applicant seeks review. The Commission also notes that DAS and small-cell deployments that involve installation of new poles will trigger the 150-day time period for new construction that many municipal commenters view as reasonable for DAS and small-cell applications. The Commission finds it unnecessary to modify the presumptive timeframes as they apply to DAS applications.
142. After reviewing the record, the Commission declines to make any changes or clarifications to the existing standard established in the
143. Considering that these provisions cover different (though overlapping) pools of applications, it is appropriate to apply them differently. Further, the Commission finds no compelling evidence in the record that using the same test for both provisions would provide significant administrative efficiencies or limit confusion, as some have argued. The Commission preserves distinct standards under the two provisions.
144. The Commission finds insufficient evidence in the record to make a determination that municipal property preferences are
145. After reviewing the record, the Commission declines to adopt an additional remedy for State or local government failures to act within the presumptively reasonable time limits. The Commission also notes that a party pursuing a “failure to act” claim may ask the reviewing court for an injunction granting the application. Moreover, in the case of a failure to act within the reasonable timeframes set forth in the Commission's rules, and absent some compelling need for additional time to review the application, the Commission believes that it would also be appropriate for the courts to treat such circumstances as significant factors weighing in favor of such relief.
146. As required by section 603 of the Regulatory Flexibility Act (RFA), the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) of the expected impact on small entities of the requirements adopted in the R&O. To the extent that any statement contained in the FRFA is perceived as creating ambiguity with respect to the Commission's rules, or statements made in the R&O, the rules and R&O statements shall be controlling.
147. In the R&O, the Commission takes important steps to promote the deployment of wireless infrastructure, recognizing that it is the physical foundation that supports all wireless communications. The R&O adopts and clarifies rules in four specific areas in an effort to reduce regulatory obstacles and bring efficiency to wireless facility siting and construction. The Commission does this by eliminating unnecessary reviews, thus reducing the burden on State and local jurisdictions and also on industry, including small businesses. In particular, the Commission updates and tailors the manner in which the Commission evaluates the impact of proposed deployments on the environment and historic properties. The Commission also adopts rules to clarify and implement statutory requirements related to State and local government review of infrastructure siting applications, and the Commission adopts an exemption from its environmental public notification process for towers that are in place for only short periods of time. Taken together, these steps will further facilitate the delivery of more wireless capacity in more locations to consumers throughout the United States. Its actions will expedite the deployment of equipment that does not harm the environment or historic properties, as well as recognize the limits on Federal, State, Tribal, and municipal resources available to review those cases that may adversely affect the environment or historic properties.
148. First, the Commission adopts measures to refine its environmental and historic preservation review processes under NEPA and NHPA to account for new wireless technologies, including physically small facilities like those used in DAS networks and small-cell systems that are a fraction of the size of macrocell installations. Among these, the Commission expands an existing categorical exclusion from NEPA review so that it applies not only to collocations on buildings and towers, but also to collocations on other structures like utility poles. The Commission also adopts a new categorical exclusion from NEPA review for some kinds of deployments in utilities or communications rights-of-way. With respect to NHPA, the Commission creates new exclusions from section 106 review to address certain collocations that are currently subject to review only because of the age of the supporting structure. The Commission takes these steps to assure that, as the Commission continues to meet its responsibilities under NEPA and NHPA, the Commission also fulfills its obligation under the Communications Act to ensure that rapid, efficient, and affordable radio communications services are available to all Americans.
149. Second, regarding temporary towers, the Commission adopts a narrow exemption from the Commission's requirement that owners of proposed towers requiring ASR provide 30 days of national and local notice to give members of the public an opportunity to comment on the proposed tower's potential environmental effects. The exemption from notification requirements applies only to proposed temporary towers meeting defined criteria, including limits on the size and duration of the installation, that greatly reduce the likelihood of any significant environmental effects. Allowing licensees to deploy temporary towers meeting these criteria without first having to complete the Commission's environmental notification process will enable them to more effectively respond to emergencies, natural disasters, and other planned and unplanned short-term spikes in demand without undermining the purposes of the notification process. This exemption will “remove an administrative obstacle to the availability of broadband and other wireless services during major events and unanticipated periods of localized high demand” where expanded or substitute service is needed quickly.
150. Third, the Commission adopts rules to implement and enforce section 6409(a) of the Spectrum Act. Section 6409(a) provides, in part, that “a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.” By requiring timely approval of eligible requests, Congress intended to advance wireless broadband service for both public safety and commercial users. Section 6409(a) includes a number of undefined terms that bear directly on how the provision applies to infrastructure deployments, and the record confirms that there are substantial disputes on a wide range of interpretive issues under the provision. The Commission adopts rules that clarify many of these terms and enforce their requirements, thus advancing Congress's goal of facilitating rapid deployment. These rules will serve the public interest by providing guidance to all stakeholders on their rights and responsibilities under the provision, reducing delays in the review process for wireless infrastructure modifications, and facilitating the rapid deployment of wireless infrastructure and promoting advanced wireless broadband services.
151. Finally, the Commission clarifies issues related to section 332(c)(7) of the Communications Act and the Commission's
152. Taken together, the actions the Commission takes in the R&O will enable more rapid deployment of vital wireless facilities, delivering broadband and wireless innovations to consumers across the country. At the same time, they will safeguard the environment, preserve historic properties, protect the interest of Tribal Nations in their ancestral lands and cultural legacies, and address municipalities' concerns over impacts to aesthetics and other local values.
153. No commenters directly responded to the IRFA. Some commenters raised issues of particular relevance to small entities, and the Commission addresses those issues in the FRFA.
154. Pursuant to the Small Business Jobs Act of 2010, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rules as a result of those comments. The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.
155. The RFA directs the Commission to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small government 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 SBA.
156. The R&O adopts rule changes regarding local and Federal regulation of the siting and deployment of communications towers and other wireless facilities. Due to the number and diversity of owners of such infrastructure and other responsible parties, including small entities that are Commission licensees as well as non-licensees, the Commission classifies and quantify them in the remainder of this section.
157. Small Businesses, Small Organizations, and Small Governmental Jurisdictions. The Commission's action may, over time, affect a variety of small entities. To assist in assessing the R&O's effect on these entities, the Commission describes three comprehensive categories—small businesses, small organizations, and small governmental jurisdictions—that encompass entities that could be directly affected by the rules the Commission adopts. As of 2010, there were 27.9 million small businesses in the United States, according to the SBA. 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, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2007 indicate that there were 89,527 governmental jurisdictions in the United States. The Commission estimates that, of this total, as many as 88,761 entities may qualify as “small governmental jurisdictions.” Thus, the Commission estimates that most governmental jurisdictions are small.
158. Wireless Telecommunications Carriers (except satellite). The Census Bureau defines this category as follows: “This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular phone services, paging services, wireless Internet access, and wireless video services.” The appropriate size standard under SBA rules is for the category Wireless Telecommunications Carriers (except Satellite). In this category, a business is small if it has 1,500 or fewer employees. For this category, census data for 2007 show that there were 1,383 firms that operated for the entire year. Of this total, 1,368 firms had employment of 999 or fewer employees and 15 had employment of 1000 employees or more. According to Commission data, 413 carriers reported that they were engaged in the provision of wireless telephony, including cellular service, PCS, and Specialized Mobile Radio (SMR) telephony services. Of these, an estimated 261 have 1,500 or fewer employees and 152 have more than 1,500 employees. Consequently, the Commission estimates that approximately half or more of these firms can be considered small. Thus, using available data, the Commission estimates that the majority of wireless firms can be considered small.
159. Personal Radio Services. Personal radio services provide short-range, low-power radio for personal communications, radio signaling, and business communications not provided
160. Public Safety Radio Services. Public safety radio services include police, fire, local government, forestry conservation, highway maintenance, and emergency medical services. There are a total of approximately 127,540 licensees within these services. Governmental entities as well as private businesses comprise the licensees for these services. All governmental entities in jurisdictions with populations of less than 50,000 fall within the definition of a small entity.
161. Private Land Mobile Radio. Private Land Mobile Radio (PLMR) systems serve an essential role in a range of industrial, business, land transportation, and public safety activities. These radios are used by companies of all sizes operating in all U.S. business categories that operate and maintain switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular phone services, paging services, wireless Internet access, and wireless video services. The SBA has not developed a definition of small entity specifically applicable to PLMR licensees due to the vast array of PLMR users. The Commission believes that the most appropriate classification for PLMR is Wireless Communications Carriers (except satellite). The size standard for that category is that a business is small if it has 1,500 or fewer employees. For this category, census data for 2007 show that there were 11,163 establishments that operated for the entire year. Of this total, 10,791 establishments had employment of 999 or fewer employees and 372 had employment of 1000 employees or more. Thus under this category and the associated small business size standard, the Commission estimates that the majority of PLMR licensees are small entities that may be affected by its action.
162. Similarly, according to Commission data, 413 carriers reported that they were engaged in the provision of wireless telephony, including cellular service, PCS, and SMR telephony services. Of these, an estimated 261 have 1,500 or fewer employees and 152 have more than 1,500 employees. Consequently, the Commission estimates that approximately half or more of these firms can be considered small. Thus, using available data, the Commission estimates that the majority of wireless firms can be considered small.
163. The Commission's 1994 Annual Report on PLMRs indicates that at the end of fiscal year 1994 there were 1,087,267 licensees operating 12,481,989 transmitters in the PLMR bands below 512 MHz. Because any entity engaged in a commercial activity is eligible to hold a PLMR license, the rules the Commission adopts could potentially impact every small business in the United States.
164. Multiple Address Systems. Entities using Multiple Address Systems (MAS) spectrum, in general, fall into two categories: (1) Those using the spectrum for profit-based uses, and (2) those using the spectrum for private internal uses. With respect to the first category, the Commission defines “small entity” for MAS licensees as an entity that has average annual gross revenues of less than $15 million over the three previous calendar years. “Very small business” is defined as an entity that, together with its affiliates, has average annual gross revenues of not more than $3 million over the preceding three calendar years. The SBA has approved these definitions. The majority of MAS operators are licensed in bands where the Commission has implemented a geographic area licensing approach that requires the use of competitive bidding procedures to resolve mutually exclusive applications. The Commission's licensing database indicates that, as of April 16, 2010, there were a total of 11,653 site-based MAS station authorizations. Of these, 58 authorizations were associated with common carrier service. In addition, the Commission's licensing database indicates that, as of April 16, 2010, there were a total of 3,330 Economic Area market area MAS authorizations. The Commission's licensing database indicates that, as of April 16, 2010, of the 11,653 total MAS station authorizations, 10,773 authorizations were for private radio service. In addition, an auction for 5,104 MAS licenses in 176 EAs was conducted in 2001. Seven winning bidders claimed status as small or very small businesses and won 611 licenses. In 2005, the Commission completed an auction (Auction 59) of 4,226 MAS licenses in the Fixed Microwave Services from the 928/959 and 932/941 MHz bands. Twenty-six winning bidders won a total of 2,323 licenses. Of the 26 winning bidders in this auction, five claimed small business status and won 1,891 licenses.
165. With respect to the second category, which consists of entities that use, or seek to use, MAS spectrum to accommodate their own internal communications needs, MAS serves an essential role in a range of industrial, safety, business, and land transportation activities. MAS radios are used by companies of all sizes, operating in virtually all U.S. business categories, and by all types of public safety entities. For the majority of private internal users, the definition developed by the SBA would be more appropriate than the Commission's definition. The applicable definition of small entity in this instance appears to be the “Wireless Telecommunications Carriers (except satellite)” definition under the SBA rules. Under that SBA category, a business is small if it has 1,500 or fewer employees. For this category, census data for 2007 show that there were 11,163 establishments that operated for the entire year. Of this total, 10,791 establishments had employment of 99 or fewer employees and 372 had employment of 100 employees or more. Thus under this category and the associated small business size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities that may be affected by its action.
166. Broadband Radio Service and Educational Broadband Service. Broadband Radio Service systems—previously referred to as Multipoint
167. In addition, the SBA's placement of Cable Television Distribution Services in the category of Wired Telecommunications Carriers is applicable to cable-based educational broadcasting services. Since 2007, Wired Telecommunications Carriers have been defined as follows: “This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies.” Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services; wired (cable) audio and video programming distribution; and wired broadband Internet services. Establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry. The SBA has determined that a business in this category is a small business if it has 1,500 or fewer employees. Census data for 2007 shows that there were 3,188 firms in this category that operated for the duration of that year. Of those, 3,144 had fewer than 1000 employees, and 44 firms had more than 1000 employees. Thus under this category and the associated small business size standard, the majority of such firms can be considered small. In addition to Census data, the Commission's Universal Licensing System indicates that as of July 2013, there are 2,236 active EBS licenses. The Commission estimates that of these 2,236 licenses, the majority are held by non-profit educational institutions and school districts, which are by statute defined as small businesses.
168. Location and Monitoring Service (LMS). LMS systems use non-voice radio techniques to determine the location and status of mobile radio units. For purposes of auctioning LMS licenses, the Commission has defined a “small business” as an entity that, together with controlling interests and affiliates, has average annual gross revenues for the preceding three years not to exceed $15 million. A “very small business” is defined as an entity that, together with controlling interests and affiliates, has average annual gross revenues for the preceding three years not to exceed $3 million. These definitions have been approved by the SBA. An auction for LMS licenses commenced on February 23, 1999 and closed on March 5, 1999. Of the 528 licenses auctioned, 289 licenses were sold to four small businesses.
169. Television Broadcasting. This Economic Census category “comprises establishments primarily engaged in broadcasting images together with sound. These establishments operate television broadcasting studios and facilities for the programming and transmission of programs to the public.” The SBA has created the following small business size standard for such businesses: Those having $38.5 million or less in annual receipts. The 2007 U.S. Census indicates that 2,076 television stations operated in that year. Of that number, 1,515 had annual receipts of $10,000,000 dollars or less, and 561 had annual receipts of more than $10,000,000. Since the Census has no additional classifications on the basis of which to identify the number of stations whose receipts exceeded $38.5 million in that year, the Commission concludes that the majority of television stations were small under the applicable SBA size standard.
170. Apart from the U.S. Census, the Commission has estimated the number of licensed commercial television stations to be 1,387. In addition, according to Commission staff review of the BIA Advisory Services, LLC's
171. The Commission notes, that in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations must be included. Its estimate likely overstates the number of small entities that might be affected by its action because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. The Commission is unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. The estimate of small businesses to which rules may apply does not exclude any television station
172. In addition, the Commission has estimated the number of licensed noncommercial educational (NCE) television stations to be 395. These stations are non-profit, and considered to be small entities.
173. There are also 2,414 LPTV stations, including Class A stations, and 4,046 TV translator stations. Given the nature of these services, the Commission will presume that all of these entities qualify as small entities under the above SBA small business size standard.
174. Radio Broadcasting. The SBA defines a radio broadcast station as a small business if it has no more than $35.5 million in annual receipts. Business concerns included in this category are those “primarily engaged in broadcasting aural programs by radio to the public.” According to review of the BIA Publications, Inc. Master Access Radio Analyzer Database as of November 26, 2013, about 11,331 (or about 99.9 percent) of 11,341 commercial radio stations have revenues of $38.5 million or less and thus qualify as small entities under the SBA definition. The Commission notes that in assessing whether a business concern qualifies as small under the above definition, revenues from business (control) affiliations must be included. This estimate likely overstates the number of small entities that might be affected, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies.
175. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. The Commission is unable at this time to define or quantify the criteria that would establish whether a specific radio station is dominant in its field of operation. The estimate of small businesses to which rules may apply does not exclude any radio station from the definition of a small business on this basis and may be over-inclusive to that extent. Also, as noted, an additional element of the definition of “small business” is that the entity must be independently owned and operated. The Commission notes that it can be difficult to assess this criterion in the context of media entities and the estimates of small businesses to which they apply may be over-inclusive to this extent.
176. FM translator stations and low power FM stations. The rules and clarifications the Commission adopts could affect licensees of FM translator and booster stations and low power FM (LPFM) stations, as well as potential licensees in these radio services. The same SBA definition that applies to radio broadcast licensees would apply to these stations. The SBA defines a radio broadcast station as a small business if such station has no more than $38.5 million in annual receipts. Currently, there are approximately 6,155 licensed FM translator and booster stations and 864 licensed LPFM stations. Given the nature of these services, the Commission will presume that all of these licensees qualify as small entities under the SBA definition.
177. Multichannel Video Distribution and Data Service (MVDDS). MVDDS is a terrestrial fixed microwave service operating in the 12.2-12.7 GHz band. The Commission adopted criteria for defining three groups of small businesses for purposes of determining their eligibility for special provisions such as bidding credits. It defined a very small business as an entity with average annual gross revenues not exceeding $3 million for the preceding three years; a small business as an entity with average annual gross revenues not exceeding $15 million for the preceding three years; and an entrepreneur as an entity with average annual gross revenues not exceeding $40 million for the preceding three years. These definitions were approved by the SBA. On January 27, 2004, the Commission completed an auction of 214 MVDDS licenses (Auction No. 53). In this auction, ten winning bidders won a total of 192 MVDDS licenses. Eight of the ten winning bidders claimed small business status and won 144 of the licenses. The Commission also held an auction of MVDDS licenses on December 7, 2005 (Auction 63). Of the three winning bidders who won 22 licenses, two winning bidders, winning 21 of the licenses, claimed small business status.
178. Satellite Telecommunications. Two economic census categories address the satellite industry. Both establish a small business size standard of $32.54 million or less in annual receipts.
179. The first category, “Satellite Telecommunications,” “comprises establishments primarily engaged in providing telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.” Census Bureau data for 2007 show that 607 Satellite Telecommunications establishments operated for that entire year. Of this total, 533 had annual receipts of under $10 million, and 74 establishments had receipts of $10 million or more. Consequently, the Commission estimates that the majority of Satellite Telecommunications firms are small entities that might be affected by its action.
180. The second category, “All Other Telecommunications,” comprises “establishments primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Establishments providing Internet services or voice over Internet protocol (VoIP) services via client-supplied telecommunications connections are also included in this industry.” For this category, Census data for 2007 shows that there were a total of 2,639 establishments that operated for the entire year. Of those, 2,333 operated with annual receipts of less than $10 million and 306 with annual receipts of $10 million or more. Consequently, the Commission estimates that a majority of All Other Telecommunications establishments are small entities that might be affected by its action.
181. Non-Licensee Tower Owners. Although at one time most communications towers were owned by the licensee using the tower to provide communications service, many towers are now owned by third-party businesses that do not provide communications services themselves but lease space on their towers to other companies that provide communications services. The Commission's rules require that any entity, including a non-licensee, proposing to construct a tower over 200 feet in height or within the glide slope of an airport must register the tower with the Commission on FCC Form 854. Thus, non-licensee tower owners may be subject to the environmental notification requirements associated with ASR registration, and may benefit from the exemption for certain temporary antenna structures that the Commission adopts in the R&O. In addition, non-licensee tower owners may be affected by its interpretations of section 6409(a) of the Spectrum Act or by its revisions to its interpretation of section 332(c)(7) of the Communications Act.
182. As of September 5, 2014, the ASR database includes approximately 116,643 registration records reflecting a ”Constructed” status and 13,972 registration records reflecting a “Granted, Not Constructed” status. These figures include both towers registered to licensees and towers registered to non-licensee tower owners. The Commission does not keep information from which it can easily determine how many of these towers are registered to non-licensees or how many non-licensees have registered towers. Regarding towers that do not require ASR registration, the Commission does not collect information as to the number of such towers in use and cannot estimate the number of tower owners that would be subject to the rules the Commission adopts. Moreover, the SBA has not developed a size standard for small businesses in the category “Tower Owners.” The Commission is unable to determine the number of non-licensee tower owners that are small entities. The Commission believes that when all entities owning 10 or fewer towers and leasing space for collocation are included, non-licensee tower owners number in the thousands, and that nearly all of these qualify as small businesses under the SBA's definition for “All Other Telecommunications.” In addition, there may be other non-licensee owners of other wireless infrastructure, including DAS and small cells that might be affected by the regulatory measures the Commission adopts. The Commission does not have any basis for estimating the number of such non-licensee owners that are small entities.
183. The R&O adopts a narrow exemption from the Commission's requirement that owners of proposed towers requiring ASR registration provide 30 days of national and local notice to give members of the public an opportunity to comment on the proposed tower's potential environmental effects. The exemption from the notice requirements applies only to applicants seeking to register temporary antenna structures meeting certain criteria that greatly reduce the likelihood of any significant environmental effects. Specifically, proposed towers exempted from the Commission's local and national environmental notification requirement are those that (i) will be in use for 60 days or less, (ii) require notice of construction to the Federal Aviation Administration (FAA), (iii) do not require marking or lighting pursuant to FAA regulations, (iv) will be less than 200 feet in height, and (v) will involve minimal or no excavation.
184. The Commission's rules require that any entity, including a non-licensee, proposing to construct a tower over 200 feet in height or within the glide slope of an airport must register the tower with the Commission on FCC Form 854. An applicant seeking to claim the temporary towers exemption from the environmental notification process must indicate on its FCC Form 854 that it is claiming the exemption for a new, proposed temporary tower and demonstrate that the proposed tower satisfies the applicable criteria. While small entities must comply with these requirements in order to take advantage of the exemption, on balance, the relief from compliance with local and national environmental notification requirements provided by the exemption greatly reduces burdens and economic impacts on small entities.
185. The applicant may seek an extension of the exemption from the Commission's local and national environmental notification requirement of up to sixty days through another filing of Form 854, if the applicant can demonstrate that the extension of the exemption period is warranted due to changed circumstances or information that emerged after the exempted tower was deployed. The exemption adopted in the R&O is intended specifically for proposed towers that are intended and expected to be deployed for no more than 60 days, and the option to apply for an extension is intended only for cases of unforeseen or changed circumstances or information. Small entities, like all applicants, are expected to seek extensions of the exemption period only rarely and any burdens or economic impacts incurred by applying for such extensions should be minimal.
186. The RFA requires an agency to describe any significant alternatives that it has considered in developing its 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 and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.” The FRFA incorporates by reference all discussion in the R&O that considers the impact on small entities of the rules adopted by the Commission. In addition, the Commission's consideration of those issues as to which the impact on small entities was specifically discussed in the record is summarized below.
187. The actions taken in the R&O encourage and promote the deployment of advanced wireless broadband and other services by tailoring the regulatory review of new wireless network infrastructure consistent with the law and the public interest. The Commission anticipates that the steps taken in the R&O will not impose any significant economic impacts on small entities, and will in fact help reduce burdens on small entities by reducing the cost and delay associated with the deployment of such infrastructure.
188. In the R&O, the Commission takes action in four major areas relating to the regulation of wireless facility siting and construction. In each area, the rules the Commission adopts and clarifications the Commission makes will not increase burdens or costs on small entities. To the contrary, its actions will reduce costs and burdens associated with deploying wireless infrastructure.
189. First, the Commission adopts measures with regard to its NEPA process for review of environmental effects regarding wireless broadband deployment that should reduce existing regulatory costs for small entities that construct or deploy wireless infrastructure, and will not impose any additional costs on such entities. Specifically, the Commission clarifies that the existing NEPA categorical exclusion for antenna collocations on buildings and towers includes equipment associated with the antennas (such as wiring, cabling, cabinets, or backup-power), and that it also covers collocations in a building's interior. The Commission also expands the NEPA collocation categorical exclusion to cover collocations on structures other than buildings and towers, and adopts a new NEPA categorical exclusion for deployments, including deployments of new poles, in utility or communications rights-of-way that are in active use for such purposes, where the deployment does not constitute a substantial increase in size over the existing utility or communications uses. The Commission also adopts measures concerning its section 106 process for review of impact on historic properties. First, the Commission adopts certain
190. Second, the Commission adopts an exemption from the Commission's requirement that ASR applicants must provide local and national environmental notification prior to submitting a completed ASR application for certain temporary antenna structures meeting criteria that makes them unlikely to have significant environmental effects. Specifically, the Commission exempts antenna structures that (1) will be in place for 60 days or less; (2) require notice of construction to the FAA; (3) do not require marking or lighting under FAA regulations; (4) will be less than 200 feet above ground level; and (5) will involve minimal or no ground excavation. This exemption will reduce the burden on wireless broadband providers and other wireless service providers, including small entities.
191. Third, the Commission adopts several rules to clarify and implement the requirements of section 6409(a) of the Spectrum Act. In interpreting the statutory terms of this provision, such as “wireless tower or base station,” “transmission equipment,” and “substantially change the physical dimensions,” the Commission generally does not distinguish between large and small entities, as the statute provides no indication that such distinctions were intended, and such distinctions have been proposed. Further, these clarifications will help limit potential ambiguities within the rule and thus reduce the burden associated with complying with this statutory provision, including the burden on small entities. Generally, the Commission clarifies that section 6409(a) applies only to State and local governments acting in their regulatory role and does not apply to such entities acting in their proprietary capacities.
192. With regard to the process for reviewing an application under section 6409(a), the Commission provides that a State or local government may only require applicants to provide documentation that is reasonably related to determining whether the eligible facility request meets the requirements of section 6409(a) and that, within 60 days from the date of filing (accounting for tolling), a State or local government shall approve an application covered by section 6409(a). Where a State or local government fails to act on an application covered under section 6409(a) within the requisite time period, the application is deemed granted. Parties may bring claims under section 6409(a) to a court of competent jurisdiction. The Commission declines to entertain such disputes in a Commission adjudication, which would impose significant burdens on localities, many of which are small entities with no representation in Washington, DC or experience before the Commission. Limiting relief to court adjudication lessens the burden on applicants in general, and small entities specifically.
193. Lastly, the Commission adopts clarifications of its 2009 Declaratory Ruling, which established the time periods after which a State or local government has presumptively failed to act on a facilities siting application “within a reasonable period of time” under section 332(c)(7) of the Act. Specifically, the Commission clarifies that the timeframe begins to run when an application is first submitted, not when it is deemed complete by the reviewing government. Further, a determination of incompleteness tolls the shot clock only if the State or local government provides notice to the applicant in writing within 30 days of the application's submission, specifically delineating all missing information. Following a submission in response to a determination of incompleteness, any subsequent determination that an application remains incomplete must be based solely on the applicant's failure to supply missing information that was identified within the first 30 days. These clarifications will provide greater certainty in the application process and reduce the potential or need for serial requests for more information. These clarifications will facilitate faster application processing, reduce unreasonable delay, and reduce the burden on regulated entities, including small businesses.
194. The Commission also clarifies that to the extent DAS or small-cell facilities, including third-party facilities such as neutral host DAS deployments, are or will be used for the provision of personal wireless services, their siting applications are subject to the same presumptively reasonable timeframes that apply to applications related to other personal wireless service facilities under section 332(c)(7). The Commission clarifies further that the presumptively reasonable timeframes run regardless of any applicable moratoria, and that municipal property preferences are not per se unreasonably discriminatory or otherwise unlawful under section 332(c)(7). Finally, the Commission concludes that the explicit remedies under section 332(c)(7) preclude adoption of a deemed granted remedy for failures to act. These clarifications reduce confusion and delay within the siting process which in turn reduces the burden on industry and State and local jurisdictions alike, which may include small entities.
195. None.
196. The Commission will send a copy of the R&O, including the FRFA, in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act.
197. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, will send a copy of the R&O, including the FRFA, to the Chief Counsel for Advocacy of the SBA.
198. The R&O contains revised information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies will be invited to comment on the modified information collection requirements contained in this proceeding in a separate
199. The Commission will send a copy of the R&O in a report to be sent to Congress and the Government Accountability Office pursuant to the
200.
201.
202.
Administrative practice and procedure, Communications common carriers, Environmental impact statements, Federal buildings and facilities, Radio, Reporting and recordkeeping requirements, Satellites, Telecommunications.
Aviation safety, Communications equipment, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 1 and part 17 as follows:
15 U.S.C. 79,
(c)(1) Unless § 1.1307(a)(4) is applicable, the provisions of § 1.1307(a) requiring the preparation of EAs do not encompass the construction of wireless facilities, including deployments on new or replacement poles, if:
(i) The facilities will be located in a right-of-way that is designated by a Federal, State, local, or Tribal government for communications towers, above-ground utility transmission or distribution lines, or any associated structures and equipment;
(ii) The right-of-way is in active use for such designated purposes; and
(iii) The facilities would not
(A) Increase the height of the tower or non-tower structure by more than 10% or twenty feet, whichever is greater, over existing support structures that are located in the right-of-way within the vicinity of the proposed construction;
(B) Involve the installation of more than four new equipment cabinets or more than one new equipment shelter;
(C) Add an appurtenance to the body of the structure that would protrude from the edge of the structure more than twenty feet, or more than the width of the structure at the level of the appurtenance, whichever is greater (except that the deployment may exceed this size limit if necessary to shelter the antenna from inclement weather or to connect the antenna to the tower via cable); or
(D) Involve excavation outside the current site, defined as the area that is within the boundaries of the leased or owned property surrounding the deployment or that is in proximity to the structure and within the boundaries of the utility easement on which the facility is to be deployed, whichever is more restrictive.
(2) Such wireless facilities are subject to § 1.1307(b) and require EAs if their construction would result in human exposure to radiofrequency radiation in excess of the applicable health and safety guidelines cited in § 1.1307(b).
The provisions of § 1.1307(a) requiring the preparation of EAs do not encompass the mounting of antenna(s) and associated equipment (such as wiring, cabling, cabinets, or backup-power), on or in an existing building, or on an antenna tower or other man-made structure, unless § 1.1307(a)(4) is applicable. * * *
(a) * * *
(4) * * *
(ii) The requirements in paragraph (a)(4)(i) of this section do not apply to:
(A) The mounting of antennas (including associated equipment such as wiring, cabling, cabinets, or backup-power) on existing utility structures (including utility poles and electric transmission towers in active use by a “utility” as defined in Section 224 of the Communications Act, 47 U.S.C. 224, but not including light poles, lamp posts, and other structures whose primary purpose is to provide public lighting) where the deployment meets the following conditions:
(
(
(i) Vertical cable runs for the connection of power and other services;
(
(
(
(
(B) The mounting of antennas (including associated equipment such as wiring, cabling, cabinets, or backup-power) on buildings or other non-tower structures where the deployment meets the following conditions:
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
A non-visible new antenna is in the “same vicinity” as a pre-existing antenna if it will be collocated on the same rooftop, façade or other surface. A visible new antenna is in the “same vicinity” as a pre-existing antenna if it is on the same rooftop, façade, or other surface and the centerpoint of the new antenna is within ten feet of the centerpoint of the pre-existing antenna. A deployment causes no new ground disturbance when the depth and width of previous disturbance exceeds the proposed construction depth and width by at least two feet.
(a)
(b)
(1)
(i) The term includes, but is not limited to, equipment associated with wireless communications services such as private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.
(ii) The term includes, but is not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including Distributed Antenna Systems and small-cell networks).
(iii) The term includes any structure other than a tower that, at the time the relevant application is filed with the State or local government under this section, supports or houses equipment described in paragraphs (b)(1)(i) through (ii) of this section that has been reviewed and approved under the applicable zoning or siting process, or under another State or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing such support.
(iv) The term does not include any structure that, at the time the relevant application is filed with the State or local government under this section, does not support or house equipment described in paragraphs (b)(1)(i)-(ii) of this section.
(2)
(3)
(i) Collocation of new transmission equipment;
(ii) Removal of transmission equipment; or
(iii) Replacement of transmission equipment.
(4)
(5)
(6)
(7)
(i) For towers other than towers in the public rights-of-way, it increases the height of the tower by more than 10% or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater; for other eligible support structures, it increases the height of the structure by more than 10% or more than ten feet, whichever is greater;
(A) Changes in height should be measured from the original support structure in cases where deployments are or will be separated horizontally, such as on buildings' rooftops; in other circumstances, changes in height should be measured from the dimensions of the tower or base station, inclusive of originally approved appurtenances and any modifications that were approved prior to the passage of the Spectrum Act.
(ii) For towers other than towers in the public rights-of-way, it involves adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than twenty feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater; for other eligible support structures, it involves adding an appurtenance to the body of the structure that would protrude from the edge of the structure by more than six feet;
(iii) For any eligible support structure, it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets; or, for towers in the public rights-of-way and base stations, it involves installation of any new equipment cabinets on the ground if there are no pre-existing ground cabinets associated with the structure, or else involves installation of ground cabinets that are more than 10% larger in height or overall volume than any other ground cabinets associated with the structure;
(iv) It entails any excavation or deployment outside the current site;
(v) It would defeat the concealment elements of the eligible support structure; or
(vi) It does not comply with conditions associated with the siting approval of the construction or modification of the eligible support structure or base station equipment, provided however that this limitation does not apply to any modification that is non-compliant only in a manner that would not exceed the thresholds identified in § 1.40001(b)(7)(i) through (iv).
(8)
(9)
(c)
(1)
(2)
(3)
(i) To toll the timeframe for incompleteness, the reviewing State or local government must provide written notice to the applicant within 30 days of receipt of the application, clearly and specifically delineating all missing documents or information. Such delineated information is limited to documents or information meeting the standard under paragraph (c)(1) of this section.
(ii) The timeframe for review begins running again when the applicant makes a supplemental submission in response to the State or local government's notice of incompleteness.
(iii) Following a supplemental submission, the State or local government will have 10 days to notify the applicant that the supplemental submission did not provide the information identified in the original notice delineating missing information. The timeframe is tolled in the case of second or subsequent notices pursuant to the procedures identified in this paragraph (c)(3). Second or subsequent notices of incompleteness may not specify missing documents or information that were not delineated in the original notice of incompleteness.
(4)
(5)
Sections 4, 303, 48 Stat. 1066, 1082, as amended; 47 U.S.C. 154, 303. Interpret or apply sections 301, 309, 48 Stat. 1081, 1085 as amended; 47 U.S.C. 301, 309.
(c) * * *
(1) * * *
(v) For any other change that does not alter the physical structure, lighting, or geographic location of an existing structure;
(vi) For construction, modification, or replacement of an antenna structure on Federal land where another Federal agency has assumed responsibility for evaluating the potentially significant environmental effect of the proposed antenna structure on the quality of the human environment and for invoking any required environmental impact statement process, or for any other structure where another Federal agency has assumed such responsibilities pursuant to a written agreement with the Commission (
(vii) For the construction or deployment of an antenna structure that will:
(A) Be in place for no more than 60 days,
(B) Requires notice of construction to the FAA,
(C) Does not require marking or lighting under FAA regulations,
(D) Will be less than 200 feet in height above ground level, and
(E) Will either involve no excavation or involve excavation only where the depth of previous disturbance exceeds the proposed construction depth (excluding footings and other anchoring mechanisms) by at least two feet. An applicant that relies on this exception must wait 30 days after removal of the antenna structure before relying on this exception to deploy another antenna structure covering substantially the same service area.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FAA proposes to replace the Orders limiting scheduled operations at John F. Kennedy International Airport (JFK), limiting scheduled operations at Newark Liberty International Airport (EWR), and limiting scheduled and unscheduled operations at LaGuardia Airport (LGA). The Orders are scheduled to expire when this proposed rule becomes effective but not later than October 29, 2016. This proposal is intended to provide a longer-term and comprehensive approach to slot management at JFK, EWR, and LGA. The FAA proposes to maintain the limits on scheduled and unscheduled operations in place under the Orders, limit unscheduled operations at JFK and EWR, and require use of an allocated slot 80% of the time for the same flight or series of flights to retain historic precedence. The FAA also proposes five alternatives for a secondary market that would allow carriers to buy, sell, lease, and trade slots. The DOT proposes to review certain slot transfer transactions for significant anti-competitive effects and harms to the public interest. Finally, the FAA proposes minor miscellaneous amendments to remove inapplicable references in the High Density Rule.
Send comments on or before April 8, 2015.
Send comments identified by docket number FAA-2014-1073 using any of the following methods:
•
•
•
•
For technical questions concerning this action, contact Molly Smith, Office of Aviation Policy and Plans, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-3274; email
For legal questions concerning this action, contact Robert Hawks, Office of the Chief Counsel, Regulations Division, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-7143; email
See the “Additional Information” section for information on how to comment on this proposal and how the FAA will handle comments received. The “Additional Information” section also contains related information about the docket, privacy, the handling of proprietary or confidential business information. In addition, there is information on obtaining copies of related rulemaking documents.
This rulemaking is promulgated under the authority described in Title 49 of the United States Code, Subtitle VII, Part A, Subpart I, Sections 40101, 40103, 40105, and 41712
The Secretary of Transportation (Secretary) is the head of the DOT and has broad oversight of significant FAA decisions.
The FAA has broad authority under 49 U.S.C. 40103 to regulate the use of the navigable airspace of the United States. This section authorizes the FAA to develop plans and policy for the use of navigable airspace and to assign the use the FAA deems necessary for safe and efficient utilization. It further directs the FAA to prescribe air traffic rules and regulations governing the efficient utilization of navigable airspace. The FAA should ensure efficient use of navigable airspace in a manner that does not effectively shut out potential operators at the airport and in a manner that takes account of competitive market forces. The FAA should take steps to ensure the operational limits imposed and the rules
These authorities empower the DOT to ensure the efficient utilization of airspace by limiting the number of scheduled and unscheduled aircraft operations at JFK, EWR, and LGA, while balancing between promoting competition and recognizing historical investments in the airport and the need to provide continuity. They also authorize the DOT to review proposed transfers of slots and to limit or prohibit transfers where they present a potential for significant anticompetitive effects or adverse effects on the public interest.
This proposed rule would replace the Orders limiting scheduled operations at JFK and EWR and the Order limiting scheduled and unscheduled operations at LGA. Those Orders remain effective until this proposed rule becomes effective but not later than October 29, 2016. If adopted, this proposed rule would apply to all scheduled and unscheduled operations every day at JFK and EWR between the hours of 0600 and 2259, local time. This proposed rule would apply to all scheduled and unscheduled operations at LGA Monday through Friday between the hours of 0600 and 2159, local time, and Sunday between the hours of 1200 and 2159, local time. This proposed rule would apply, in large part, the International Air Transport Association (IATA) Worldwide Slot Guidelines (WSG) to administering slots at each airport.
The following tables provide a comparison between requirements under the current Orders and under this proposal. The first table summarizes existing requirements for each airport under the Orders. The second table summarizes this proposal's establishment of an initial slot base based on carrier holdings under the Orders, the slot-controlled periods, hourly and daily limits for scheduled operations, hourly limits for unscheduled operations, and the general processes that would be used to allocate slots or reservations for scheduled and unscheduled flights. It also identifies differences between the five potential alternatives for a secondary market to buy, sell, lease, or otherwise transfer slots between carriers and introduces a review of slot transfer transactions for significant anti-competitive effect.
The FAA developed this analysis using 2009 data to model the behaviors of carriers based on meeting the minimum requirement of the proposed rule. Under this assumption, carriers would incrementally increase actual operations in year one to meet the new usage requirement, and this new operating level would grow by the FAA's Terminal Area Forecast (TAF) until it reached the daily limits. The analysis period is the first year because compliance cost is the highest in that year, and if benefits exceed the cost in the first year, this relationship will continue until passenger demand forces operations up to 100% of the available slots. In the first year, carrier utilization of slots will be at least 80%. Thereafter, increases in operations and slot utilization are a result of an increase in forecasted demand. Assuming the highest cost secondary market alternative (either alternative four or five) is adopted, the total benefits and costs are estimated at $74,696,596 ($65,242,900 Present Value at 7%) for benefits and $53,056,768 ($46,341,836 Present Value at 7%) for costs. These costs and benefits result from the changed behavior concerning use-or-lose, secondary market, and reporting requirements under this proposal as compared to current behavior under the existing Orders for each airport. Moreover, the FAA believes that this rule would improve utilization of existing slots, possibly increase a carrier's penalty for retaining slots of limited value and thus result in the return of some slots, and would result in net benefits.
To manage airspace congestion, in 1968, the FAA adopted the High Density Rule (HDR), which limited take-offs and landings at JFK, EWR, LGA, Washington National Airport (DCA), and Chicago O'Hare International Airport (ORD).
Under the HDR, air carrier slots were allocated through airline scheduling committees, operating under then-authorized antitrust immunity, and the airlines would agree to the allocation. The FAA's role was limited to determining how many operations air traffic control (ATC) could reasonably handle during congested periods and enforcing operator compliance with the rules. After the Airline Deregulation Act in 1978, new entrant airlines sought access to, and legacy carriers sought expansion at, slot-controlled airports. This increased competition made it more difficult for airlines to reach agreement on slot allocation, and the scheduling committees began to deadlock. The Civil Aeronautics Board or DOT periodically stepped in to resolve the deadlocks. In resolving a 1980 deadlock at DCA, the DOT divested a small percentage of slots from incumbent airlines and reallocated them to a requesting new entrant. The DOT noted that additional reduced fare service was likely to increase competition and thus be consistent with the general pro-competitive policy of the Airline Deregulation Act of 1978.
In 1981, the FAA responded to a nationwide shortage of air traffic controllers by reducing the level of air traffic operations and imposing slot controls on the nation's 22 busiest airports.
The FAA established more permanent allocation procedures for slots under the HDR in 1985 when it adopted the Buy/Sell Rule, which allowed carriers to buy, sell, lease, and trade most slots.
For the next 15 years the agency relied primarily on the secondary market authorized by the Buy/Sell Rule to address access issues at HDR airports, particularly for domestic operations. However, carriers without a substantial presence at HDR airports increasingly criticized the Buy/Sell Rule because their access to slot-controlled airports was severely limited. Those carriers complained to the FAA that grandfathering 95 percent of slots at slot-controlled airports to incumbent carriers left insufficient capacity available for reallocation. Carriers further criticized the Buy/Sell Rule for failing to foster a robust secondary market and complained about a lack of transparency that permitted private transactions arranged to reduce competition. Some carriers also complained they were unaware of slots potentially available for sale or lease even when they were seeking to initiate or expand service. Finally, a small number of carriers contended they were effectively denied access to the airports because their competitors refused to sell slots or provide meaningful lease terms.
In 1994, Congress began to relax the HDR by authorizing the Secretary, upon making a public interest finding, to grant exemptions from the HDR to enable new entrant carriers
On April 5, 2000, Congress enacted the Wendell H. Ford Aviation and Investment Reform Act of the 21st Century (AIR-21).
LGA, which provides almost exclusively domestic service,
The slot exemptions mandated by Congress under AIR-21 facilitated access for new entrants and small community service at LGA, but the trade-off for this service was increased airport congestion and delays. By fall 2000, carriers had added over 300 new scheduled flights at LGA and had plans to operate even more, resulting from more than 600 exemption requests. While the number of allowable scheduled operations under the HDR remained constant at 62 per hour, the actual number of scheduled operations rose to over 100 in several hours with the additional AIR-21 slot exemptions. With no new airport infrastructure, overall airport capacity remained the same while the number of aircraft operations and delays soared. Additional operations following AIR-21 resulted in significantly higher delays at LGA than existed before 2000. The average minutes of delay for all arriving flights at LGA increased 144% from 15.52 minutes in March 2000 (the month before AIR-21 was enacted) to 37.86 minutes in September 2000.
Using its authority under 49 U.S.C. 40103, and pending the development of a long-term solution, the FAA published a Notice of Intent in the
Under AIR-21, slots allocated under the HDR at LGA were scheduled to expire on January 1, 2007. Based on its experience in 2000, the FAA determined that simply lifting the HDR at LGA would result in a significant increase in delays and adversely impact the airspace around New York City and the NAS as a whole.
In August 2006, the FAA published a notice of proposed rulemaking (LGA NPRM) proposing a continuation of the existing cap of 75 scheduled and six unscheduled hourly operations as well as a new method of allocating capacity.
The FAA recognized that it would be unable to complete its rulemaking by January 1, 2007, when the HDR was scheduled to expire. After providing for notice and comment, the agency published an FAA Order Operating Limitations at New York LaGuardia Airport (LGA Order).
In August 2008, the FAA reduced the number of reservations available for unscheduled operations at LGA from six
Until recently, most operations at JFK took place during relatively pronounced arrival and departure banks corresponding to the operating windows of transatlantic flights. The FAA accommodated those banks and achieved maximum efficiency by using either two arrival runways and one departure runway, or two departure runways and one arrival runway. Air traffic controllers have employed that configuration to facilitate the historical transatlantic traffic flows.
Beginning in the spring of 2006, U.S. air carriers serving JFK significantly increased their domestic scheduled operations throughout the day, changing the historical arrival and departure patterns. For example, the traditional transatlantic arrival and departure periods now have significant levels of departing and arriving flights, respectively. While demand is somewhat more balanced, some loss of efficiency associated with a two-arrival or two-departure runway configuration has resulted.
While operations at LGA remained capped throughout 2007, caps on afternoon operations at JFK were lifted on January 1, 2007, when the HDR expired at that airport. Operations at JFK already had begun to increase during the morning hours, but the increase in operations in the afternoon hours soon led to long delays, especially for departing flights during the evening transatlantic departure bank.
During fiscal year 2007, the average daily operations at JFK increased 21 percent over fiscal year 2006. At the same time, on-time performance and other delay metrics declined year over year. The on-time performance at JFK, which is defined as the arrival at the gate within 15 minutes of the scheduled time, declined from 68.5 percent in fiscal year 2006 to 62.19 percent in fiscal year 2007. On-time arrivals during the peak travel months of June, July, and August declined from 63.37 percent in 2006 to 58.89 percent in 2007, while on-time departures declined from 67.49 percent to 59.89 percent during that period. For fiscal year 2007, the average daily arrival delays exceeding 1 hour increased by 87 percent over fiscal year 2006 levels. Additionally, taxi-out delays, which measure the time that aircraft wait prior to departing the runway, increased by 15 percent. Taxi-out delays in the evening departure periods frequently exceeded 1 hour in duration.
In September 2007, the FAA re-designated JFK as a Level 2 Schedules Facilitated Airport
Also in September 2007, the Secretary and the Administrator determined that a delay reduction meeting was necessary to discuss flight reductions with U.S. air carriers to reduce over-scheduling and flight delays at JFK during peak operating hours.
To address the projected increased demand for summer 2008 and the previous over-scheduling in summer 2007 when the airport lacked scheduling limits, the FAA convened a scheduling reduction meeting on October 23-24, 2007. The FAA's goal was to obtain voluntary schedule reductions from historically operated and planned flights. Subsequent in-person and telephonic meetings took place as well. American Airlines, Delta Air Lines, and JetBlue, which together accounted for three-quarters of the total JFK operations, withdrew the schedule increases each had proposed for summer 2008 during the airport's 1500 to 1959 peak hours. They also adjusted the timing of operations throughout the day to smooth out peaks. Other airlines agreed to retime peak operations. Consequently, the FAA was able to offer additional operations during non-peak hours, which increased the daily total of operations while decreasing delays over the previous summer season. As a result of the agreements reached at that meeting and other discussions held with carriers regarding their planned summer 2008 schedules, the FAA issued a temporary Order limiting scheduled operations at JFK to 81 per hour from 0600 to 2259 (JFK Order).
In July 2008, the FAA proposed to limit unscheduled operations at JFK to two hourly reservations from 0600 through 1359, to one hourly reservation from 1400 through 2159, and to two from 2200 through 2259 at JFK.
EWR has grown to be one of the most delay-prone airports in the country. In 2007, demand during peak hours approached or exceeded the average runway capacity, resulting in significant volume-related delays. These delays were aggravated by weather or other adverse operating conditions.
Comparing fiscal year 2007 to fiscal year 2000, the percent of on-time gate arrivals decreased from 70.66 percent to 61.71 percent, and arrival delays greater than one hour increased, on average, from 54 to 93 per day. EWR's on-time arrival performance of 61.8 percent was the second worst among the 35 busiest airports. Based on “the airport's performance metrics and imbalance between ATC capacity and demand that is expected to continue in the near term,” the FAA designated EWR a Level 2 IATA Schedules Facilitated Airport for the summer 2008 scheduling season.
The information provided by carriers for the summer 2008 scheduling season reflected a projected increase in flight schedules, especially during the peak hours. U.S. and foreign carriers had planned about 100 new operations per day at EWR, many during the afternoon and early evening hours. For several consecutive hours, the number of hourly arrivals and departures would have reached between the upper 80s and mid-90s. These operations would have significantly exceeded the airport's average of 83 total operations per hour over the 12-month period ending August 2007. These additional flights would have caused a spike in congestion and delays at EWR and also would have adversely affected other airports in the New York-New Jersey region and the NAS.
In the autumn of 2007, the FAA found it necessary to informally discuss summer 2008 schedules with carriers operating at EWR because it was concerned proposed operations would cause excessive congestion-related delays. Modeling indicated a potential delay increase of almost 50 percent if the scheduled flights were operated as planned. The FAA asked carriers to consider scheduling flights at times when there was available capacity. However, the FAA realized some carriers intended to proceed with their plans to begin operating their proposed schedules during the busiest hours, regardless of the potential impact on delay. The FAA also believed limiting operations at JFK would create a spillover effect at EWR, thus exacerbating historical and projected delays. To prevent carriers from adding flights to already oversubscribed hours at EWR and from shifting flights from JFK to EWR, the FAA designated EWR as a Level 3 Coordinated Airport effective for summer 2008.
In May 2008, the FAA placed temporary limits on peak hour operations at EWR to mitigate persistent congestion and delays at the airport (EWR Order).
Following the enactment of AIR-21, the FAA and the DOT began investigating a long-term congestion management plan for the New York City area airports. In June 2001, the FAA published a variety of congestion management alternatives for public comment, including the use of auctions, congestion pricing, and administrative alternatives.
The level of interest in a long-term plan increased as the sunset of the HDR neared and following the experience of increased operations at the airports. Nationally, the summer of 2007 was the second worst on record for flight delays. Delays impacted all three New York City area airports and cascaded throughout the NAS. On September 27, 2007, the Secretary announced the formation of the New York Aviation Rulemaking Committee (NYARC) to help the DOT and FAA explore available options for congestion management and how changes to current policy for JFK, EWR, and LGA would affect the airline access and utilization of the airports.
The NYARC was designed to provide opportunity for extensive input by all stakeholders, having members from every major U.S. air carrier, several foreign carriers, associations representing different aviation interests, and the Port Authority of New York and New Jersey (Port Authority). The NYARC submitted a report of its findings and recommendations to the Secretary, dated December 13, 2007.
The increased congestion and associated delays at JFK, EWR, and LGA impact each other and the NAS. The airspace redesign for the New York/New Jersey/Philadelphia metropolitan area, approved in 2007, documents the costs and far-reaching impacts of delays that originate from this area.
Further, the FAA continues to work with stakeholders to implement short-term initiatives to improve the efficiency of airport operations and air traffic control, particularly during severe weather. Additionally, the FAA has increased the use of a second departure runway at JFK when conditions permit. However, none of these initiatives offer an immediate or complete solution.
With the three temporary Orders limiting operations in place, the FAA determined to pursue a long-term solution for limiting operations and allocating slots for all three airports. After evaluating comments to the LGA NPRM and input from the NYARC, the FAA decided not to adopt its earlier proposal to require upgauging aircraft size and to reallocate 10 percent of the existing capacity each year. Instead, the FAA published a supplemental notice of proposed rulemaking (LGA SNPRM) in April 2008.
In conjunction with the LGA SNPRM, the FAA published an NPRM for JFK and EWR that sought to provide a longer-term solution and address a number of congestion-related issues (JFK/EWR NPRM).
The FAA issued a final rule for JFK and EWR, which was consistent with the JFK/EWR NPRM, in October 2008 with a published effective date of December 9, 2008.
Currently, the JFK and EWR Orders remain in effect, limiting scheduled operations to 81 per hour at each airport, until this proposed rule becomes effective.
JFK and EWR currently have similar demand profiles, with an early morning peak followed by lower demand in the mid-morning. Demand then approaches the average runway capacity in the early afternoon and typically continues until about 2200. LGA, on the other hand, has consistently high demand at or above the average runway capacity throughout the entire day.
To determine the scheduling limits and associated delay mitigation goals under the Orders, the FAA modeled congestion and delays for each airport.
When developing the scheduled and unscheduled limits (of 71 and 3, respectively) for LGA, modeling showed a reduction in the scheduled limit from 75 to 71 could generate a 41% decrease in mean delays. As discussed earlier, the FAA established a limit of 75 in December 2000 to reduce delays associated with new flights operating under AIR-21 slot exemptions.
When developing the scheduled limits for JFK, operational analysis showed that the average adjusted capacity was steadily increasing over time.
When developing the scheduled limits for EWR, modeling showed an average adjusted capacity of 83 total operations per hour with high sustained delays throughout the day. Additionally, the FAA modeled the proposed 2008 schedules and projected an even higher level of congestion and delays from those proposed schedules with EWR already one of the most delay-prone airports in the system. The FAA established a goal of no increase in delays at EWR while permitting additional operations to the extent practicable. The limit of 81 scheduled operations per hour reflected that goal and permitted a margin for unscheduled operations.
The FAA has continued to monitor the three New York City area airports since the Orders were put in place to determine whether the limits continue to be appropriate. Actual performance in summer 2008 through 2012 was compared to the modeled projections to ensure that the model results were consistent with actual experience. Adjusted airport capacity information for 2008 through 2012 was updated. This information includes hourly arrival and departure rates based on runway configuration, demand, operating conditions, and actual hourly runway operations. Peak summer unscheduled demand for each hour between 0600 and 2259, Eastern time, was reviewed for 2008 through 2011.
Performance at JFK and EWR has improved in each year when compared to summer 2007. In some cases, actual operations were below allocated slot levels, and this contributed to delay reduction. However, as discussed later in this proposal, underutilization of
During summer 2010, one of the main runways at JFK was closed or partially closed so a valid comparison to earlier periods is not practical. Carriers voluntarily reduced scheduled operations, and the FAA waived the usage requirements to mitigate delay impacts from the construction and reduced airport capacity. The FAA used non-preferred runway configurations and waived slot usage requirements to facilitate temporary carrier schedule reductions to mitigate delays. In addition, the Port Authority has adopted an automated departure queuing program at JFK to manage when aircraft are released from the gate. This program reduces taxi-out delays for aircraft waiting to depart. Many of these procedural changes, including the departure queuing program, have been permanently implemented.
As stated earlier, delay modeling for EWR and JFK analyzed the effects of both scheduled and unscheduled operations. Although not adopted, the FAA had proposed limits on unscheduled operations at the airports, while accommodating existing scheduled operations without creating high levels of congestion and delays. For 2007, unscheduled operations at the two airports averaged two per hour with several hours exceeding that average. The FAA had proposed limits for each airport of one and two operations per hour depending on the time of day. For summer 2010, actual operations were down at JFK and EWR to an hourly average of roughly one unscheduled operation. Unscheduled operations averaged just less than two per hour at both airports during the afternoon hours.
The current Orders limit a carrier's ability to transfer a slot (either by trade, lease, or sale) beyond the duration of the Orders. The Orders were intended as a short-term measure to allow time for development of a long-term, comprehensive rule that included a secondary market mechanism. The transfer mechanisms in place under the Orders differ significantly from those permitted under the HDR, currently in place only at DCA, which allow slots to be bought, sold, leased, or otherwise transferred for any duration and to any person.
The following tables show the approximate percentage of slots held at each airport by carriers holding more than one percent of total slots.
Because of the combination of high demand and limited ability to increase capacity at JFK, EWR, and LGA, the FAA must address a dilemma: How can the agency manage delays while promoting access to carriers wishing to operate at the airport, thus encouraging competition? This proposed rule attempts to address that dilemma.
Ongoing implementation of the New York/New Jersey/Philadelphia Metropolitan Area Airspace Redesign project and Next Generation Air Transportation System (NextGen) technologies are expected to increase the efficiency and reliability of the airspace structure and ATC system and reduce delays within the next 10 years. Although the FAA continues to develop and implement these improvements, which it believes over time will reduce congestion and delays at the New York City area airports, it does not anticipate these airspace improvements will provide significant benefits at JFK, EWR, and LGA in the immediate future. Letting the Orders expire without replacing them with a more permanent solution likely would result in a growth in operations and consequently high levels of congestion and delays, as was experienced following AIR-21.
Rather than take repeated and piecemeal approaches to manage slots and efficient use of airspace at JFK, EWR, and LGA, the FAA believes a longer-term and comprehensive rule is prudent. The FAA's longstanding preference for addressing capacity limitations is to expand airport infrastructure, increase airport throughput, and improve airspace and airport surface efficiency. The FAA currently is implementing ways to utilize the airspace in the New York City area more efficiently and to decrease delays, but there are physical limitations to expanding these airports in the foreseeable future. This proposed rule would complement planned airspace and airport capacity improvements by encouraging more efficient use of existing capacity.
This proposed rule would treat all three New York City area airports
Currently, hourly scheduled operations are limited under the Orders to 81 at JFK, 81 at EWR, and 71 at LGA, and hourly unscheduled operations at LGA are limited to three under the LGA Order. This proposal, if adopted, would replace those Orders. It would adopt the current limits on operations, limit hourly unscheduled operations to two at JFK and one at EWR, and establish daily limits on scheduled operations at all three airports.
For seasonal allocations of available slots, the FAA proposes to substantially follow the WSG at each airport. The WSG generally provides a consistent, transparent, and fair method of slot allocation. This proposed rule specifically addresses the WSG processes being applied. For WSG processes not specifically addressed in this proposal or for future changes to the WSG, the FAA would consider whether they are consistent with this proposed rule or other U.S. statutes or regulations. The current allocation mechanisms at JFK and EWR generally are consistent with the WSG. The FAA proposes to extend this allocation approach to LGA, even though it is an overwhelmingly domestic airport, because these international guidelines are widely understood by carriers. One allocation mechanism for all airports also maintains consistency and reduces the opportunity for confusion on how slot management applies at an individual airport. The allocation mechanism is discussed later and any significant deviations from the WSG are noted.
The FAA also proposes to retain the 80 percent usage requirement, which is consistent with the WSG, at each of the airports. The usage requirement would be applied to slots on an individual day-of-week basis over the entire season at each of the airports, similar to the method currently used at JFK and EWR. However, the FAA proposes a change in the way the utilization rules were applied under the Orders and under the HDR. The FAA proposes a specific flight or series of flights be identified for each requested slot throughout the entire season. Because each slot has a corresponding series of flights, a flight associated with one slot in the same 30-minute slot time period could not be used to help another slot meet the minimum usage rules.
Based on modeling of airport capacity and demand at each of the airports, the FAA has determined that limits should apply throughout most of the day. As discussed in the Background section, operational demand is steady and approaches airport capacity throughout the day. The FAA proposes to retain the slot-controlled hours as they exist under the Orders. Accordingly, the FAA proposes the following slot-controlled hours: for JFK, daily from 0600 through 2259; for EWR, daily from 0600 through 2259; and for LGA, Monday through Friday from 0600 through 2159 and Sunday from 1200 through 2159. All times are expressed in Eastern time, which is the local time for all three airports. The FAA would use the 24-hour clock because carriers currently submit schedules using that international standard in local time or Coordinated Universal Time (UTC).
Although not proposed, the FAA is considering changing the slot-controlled hours to daily from 0600 to 2259 for LGA to maintain consistency across all airports. The FAA believes a consistent approach across the three airports would reduce confusion for carriers as to when slots are required for an operation and reduce the carriers' burden when submitting slot requests. If the FAA changed the slot-controlled hours at LGA, it would have to allocate slots in those new hours. The FAA tentatively is considering allocating daily slots to each carrier for the summer and winter scheduling seasons that correspond to the maximum number of flights that actually were operated by the carrier in that hour from the last Sunday in March 2014 through the first Saturday in September 2014. Carriers would be afforded an opportunity to return unneeded slots to the FAA. Any modifications to allocations in those hours due to operational changes between the publication of the NPRM and effective date of any final rule would be handled on an individual basis and could be temporarily allocated until a permanent (historic precedence) allocation is made for the subsequent corresponding season. The FAA requests comments, including specific benefits and drawbacks, on whether it should adopt a common definition of “slot-controlled hours” across the three airports.
The FAA proposes to limit scheduled operations to no more than 81 per hour (or any 60-minute period) at JFK, 81 per hour at EWR, and 71 per hour at LGA. The FAA also proposes to assign slots specifically as an arrival or departure in 30-minute windows, a practice already in place under the Orders, to manage peaking of operations within the hour. These proposed schedule limits would be 44 in any 30-minute period at JFK, 44 in any 30-minute period at EWR, and 38 in any 30-minute period at LGA. While the FAA does not propose to change the limits from those currently in effect, it may change them in the future. Enhanced capacity or delay reduction resulting from technological advances or procedural changes (
The FAA acknowledges that allocated slots exceed these schedule limits in several hours at each airport, but the FAA does not propose to withdraw any allocated slots. As applies under the Orders, the FAA would reserve authority to retire any returned slots until allocations in an hour no longer exceed the limits. The FAA would continue to work with carriers and encourage retiming of operations to depeak individual time periods, as necessary to mitigate congestion and delays.
The nature of operations at JFK, and to a lesser extent at EWR, is such that demand has historically been less in mid-morning and very early afternoon. Therefore, many of those lower demand hours have allocations below the hourly limits of 81. These low demand hours currently provide a recovery period that reduces delays and prevents them from continuing into the peak afternoon
The FAA acknowledges the benefits of a daily limit at LGA are not as significant as at JFK and EWR because allocations in most hours at LGA currently are at or above the hourly limit. A daily LGA limit would limit additional allocations in hours that may be below 71 scheduled operations, now or in the future, providing modest delay-management benefits. Nevertheless, the FAA proposes a daily limit at LGA for consistency purposes and to ensure the operational impacts of additional flights are considered.
The FAA considered actual allocations accepted in 2008 and what was currently operating at each airport to determine this daily limit. These 2008 allocations, and subsequent slot allocation decisions made with respect to the Orders, establish the upper bound of allocations at the airport to meet the established delay goals. The FAA proposes a daily slot limit of 1,205 at both JFK and EWR and 1,136 at LGA. This proposed limit would not result in any withdrawal of slots. Based on current allocations at JFK, there would be roughly 20 slots in low demand hours available for allocation. At EWR or LGA, there would be no slots available for allocation. Additionally, like the hourly limit at LGA, actual allocations currently exceed the LGA daily limit. Because slot allocation and usage are dynamic, this number of available slots is likely to change prior to the FAA issuing a final rule.
The FAA proposes to grandfather all existing slot allocations made under the Orders for both the summer and winter scheduling seasons. This grandfathering recognizes that carriers have made investment, marketing, operating, and business decisions based on the assignment of Operating Authorizations under the Orders and the expectation that those slots would continue to be available in future seasons subject to the usage and other general Order provisions. On the proposed rule's effective date, at JFK and EWR, the FAA would assign, according to its records, each carrier all slots for the summer scheduling season that had been approved for the previous summer scheduling season as amended through the slot allocation process. Similarly, the FAA would assign, according to its records, each carrier all slots for the winter scheduling season that had been approved for the previous winter season as amended through the slot allocation process. At LGA, for the hours of 0600 through 2159 or 1200 through 2159 on Sunday, the FAA would assign each carrier all slots held as of the effective date for both the summer and winter scheduling seasons and for each day-of-week.
Temporary, one season-only, and other contingent allocations would not automatically receive historic precedence at the same times. For all other slots allocated under this transitional mechanism, carriers would have historic precedence, provided all other proposed conditions are met, for the subsequent corresponding scheduling season. The FAA tentatively has determined this is the most efficient method of transitioning from the temporary Orders to a more permanent regime. These allocated slots, however, would be subject to reversion to the FAA under the proposal's minimum usage requirements and could be withdrawn for operational reasons.
When making decisions regarding the allocation of available slots, the FAA would seek to allocate in a manner that ensures efficient use of a scarce resource and maximizes the benefits to both airport users and the traveling public. Except as indicated in the following discussion, the proposed allocation priorities mirror current WSG priorities. The FAA believes the WSG approach is well-understood and is an internationally-recognized system of slot allocation at airports. These allocation procedures would apply to JFK, EWR, and LGA. A WSG-like allocation process already applies under the JFK and EWR Orders because those airports have a significant international presence, and the WSG is commonly applied to international slot-controlled airports and understood by carriers with international service. Although a WSG procedure previously has not applied to LGA, the FAA proposes to do so to maintain consistency between the airports. A common approach to allocating slots reduces the administrative burden of multiple procedures for both the FAA and carriers. A common approach also reduces confusion with respect to the rules for each airport. The FAA understands that carriers with only domestic service would have some adjustment to the new rules at LGA, but most of these carriers already operate at JFK or EWR (and would have familiarity with the WSG at those airports). The FAA does not anticipate changing the allocation and usage mechanisms at LGA would be overly burdensome.
Like the WSG, the FAA proposes to afford priority treatment for slot requests by new entrants. The FAA proposes to define a “new entrant” as a U.S. or foreign air carrier that holds or operates fewer than 20 slots on any day of the week, in any combination during the slot-controlled hours, at the respective airport. That number would include any slots that had been returned to FAA after the slot return deadline, or that had been revoked by the FAA for insufficient use, during the two corresponding scheduling seasons immediately preceding the scheduling season for which a slot allocation is being conducted. A carrier would not be eligible for slot allocation as a new entrant if it had returned slots to the FAA after the slot return deadline, or had slots revoked by the FAA for insufficient use, during the two corresponding scheduling seasons immediately preceding the scheduling season for which a slot allocation is being conducted.
The proposed “new entrant” definition differs from the definition contemplated under the WSG, which sets a threshold of five slots, because the lower threshold would provide little opportunity for a new entrant to establish its operations before losing new entrant status and thereafter being able to expand in those markets only through slots obtained in the secondary market. With up to 20 slots, a carrier would have sufficient flexibility to establish a competitive presence at a large metropolitan airport such as LGA, JFK, or EWR, giving the carrier not only a basic foothold but also a critical mass of frequencies that would allow it to compete effectively. The FAA also proposes the definition be applicable at each airport, thus establishing a uniform definition that is easily understood by all stakeholders.
For purposes of slot allocation, the FAA historically has treated U.S. air carriers conducting operations solely
Prior to the start of the scheduling season, and according to the schedule published by IATA, the FAA would publish a notice in the
The FAA is not proposing a particular format for the submission of schedule requests because it wants to avoid an unnecessary burden, especially for carriers that operate a large number of slots at the airports, and wants to maximize carrier flexibility. However, each slot request would be required to indicate the effective dates of the request, proposed days of operation, proposed time of operation (indicated as either UTC or local time), whether the operation is an arrival or departure, flight number, and aircraft type. Although not required under this proposal, the FAA would accept schedule submissions in IATA Standard Schedules Information Manual (SSIM) format or another similar format.
The FAA would accommodate these requests by allocating available slots according to the priorities set forth in proposed § 93.41. First, the FAA would confirm any requests for historic slots, including those that have adjustments within the same 30-minute period or other minor changes that do not affect operations, prior to the IATA Slot Conference. The FAA then would split the remaining available slots into two pools: One pool for new entrants as defined in proposed § 93.36 and another pool for all carrier requests. The FAA acknowledges this method of establishing two pools prior to accommodating retimings differs from the WSG, but the FAA believes that it provides new entrants with a better opportunity to access desirable slot times. The FAA would allocate any available slots according to these priorities until there were no available slots remaining in each pool.
Within each pool, the FAA first would accommodate carrier requests to retime slots for operational reasons. The FAA recognizes that a carrier may request a retiming of a slot in a particular time period that the FAA cannot accommodate, and the FAA may offer a slot in a different time period. The carrier may then trade the slot with another carrier to conduct its desired operation or may operate in the allocated time period. A carrier in this situation that makes a request for a retiming to its desired slot time for a subsequent corresponding season will receive priority treatment within the set of requests for retimings. The FAA would use the carrier's previous requests and slot transfer records to make this determination of priority.
After addressing requests for retimings within each pool, the FAA then would accommodate requests by carriers to extend an allocated seasonal slot to year-round service. Consistent with the WSG, the FAA gives priority to requests for year-round service because that service most efficiently uses the scarce resource of available slots.
Finally, the FAA would accommodate any remaining requests. The FAA would consider the extent and regularity of the intended slot use by giving priority to intended year-round service and greater weight to requests for daily service. The FAA would consider the effective period of operation by giving greater weight to intended use throughout the entire season. The FAA also would consider schedule constraints of the carriers requesting slots, especially if the carrier is operating to or from another slot-controlled airport. Finally, the FAA would consider the overall operational impacts of schedule requests, including the distribution of flights and mix of arrivals and departures. This holistic approach allows the FAA to best manage airport and airspace congestion.
Because the FAA expects that requests for slots would exceed the number of slots available in most seasons, the FAA proposes to include some tie-breaker factors to aid in allocation decision-making. Although the FAA does not intend these factors to be determinative, it could consider airport facilities constraints (such as constraints on gates, terminals, aircraft parking, customs and immigration, and curfews) and impacts to competition and markets served when weighing which request to accommodate.
The FAA proposes to retain the current 80% usage requirement for historic precedence, but the methodology for calculating usage would change. The proposed calculation method would be used to determine historic precedence only for slots allocated for summer and winter scheduling seasons after this proposed rule becomes effective. Determining historic precedence for the first summer and winter scheduling seasons after this proposed rule becomes effective would use the calculation method under the rules in effect when the slots were allocated and operated.
The 80% usage requirement provides a reasonable allowance for planned and unplanned cancellations. The usage calculation would be applied on an individual day-of-week basis. This method currently is used for JFK and EWR slots, and using this method for LGA slots would ensure consistency among the airports and afford carriers greater flexibility for slot allocations.
A carrier must use the allocated slot at least 80% of the time for the same flight or series of flights throughout the period for which it is allocated during the scheduling season. The same series of flights would be at least five flights at approximately the same time on the same day-of-week, generally with the same flight number, generally serving the same market, and distributed regularly in the same season (for example, a 1035 JFK-LAX flight on every Monday of the summer season). This definition of same series of flights allows the FAA to see the intent to operate a series of flights but is not intended to preclude a carrier from
The FAA has found that the practice of spreading individual flights over a set of slots to achieve 80% usage potentially underutilizes slots because the full allocation of slots is not being scheduled and operated. Theoretically, operating four flights 100% of the time could meet the 80% usage requirement for five slots, which could result in non-utilization of 20% of the allocated slots (thereby limiting market access). While the FAA acknowledges scheduling realities make underutilization to this extent impractical, the FAA has observed some underutilization behavior at JFK, EWR, and LGA. The FAA believes this behavior could adversely affect the opportunities for new entrants to begin service at a particular airport or could reduce the choices available to consumers.
This proposal would better ensure that the scarce resource of slots is used optimally. The FAA acknowledges that requiring carriers to operate their full allocation of slots could increase the number of operations. However, any increase in delays over current levels should remain within the accepted delay levels that were modeled at the time the current Orders, and corresponding hourly slot limits, were implemented. This model assumed full slot usage. It is likely that any increase in flights also would increase the number of flight choices available to consumers. The FAA believes another result of the changed usage calculation could be that a carrier that operates fewer flights than its slot holdings could dispose of the excess slots on the secondary market. The exchange of these slots could increase competition at the airport and provide consumer benefits, especially if the slots were acquired by a new entrant. Although the FAA believes it unlikely, especially in the peak demand hours, a carrier with excess slots could return those slots to the FAA, and they could be retired in hours exceeding the slot limits (providing delay-reduction benefits) or could be allocated to other carriers (providing consumer and economic benefits).
The FAA requests comment on whether the proposed usage rate is appropriate. Additionally, in theory, it is possible that usage requirements may encourage carriers to fly smaller-than-optimal aircraft or to fly less-than-full aircraft. The FAA requests comment on how the proposed usage requirement might impact utilization of slots. Please provide data supporting the comments.
The FAA would have discretion to waive the usage requirements when a carrier ceases operation at an airport due to a strike. The FAA also would retain discretion to waive the usage requirements in the event of a highly unusual and unpredictable condition beyond the carrier's control and affecting operations for 5 or more consecutive days. These exceptions allow carriers and the FAA flexibility to adapt to unusual and unexpected cancellations in contrast to the usual localized weather and mechanical cancellations the 80-percent usage rule permits. These usage waivers are similar to those under the WSG, and they previously have been successfully applied at U.S. slot-controlled airports. In certain circumstances, the FAA also could waive the usage requirements for a period up to 180 days for a new entrant acquiring slots at an airport either through FAA allocation or the secondary market.
Under the HDR and the Orders limiting operations, slots held by a carrier were treated as used on Thanksgiving Day, the Friday following Thanksgiving Day, and the period from December 24 through the first Sunday of January. Under those rules, a carrier was allocated slots for the entire season rather than according to the schedule submitted by the carrier. Under this proposed rule, a carrier may give back a slot to the FAA for short periods of time (
To aid in the usage calculation, the FAA proposes to require carriers to submit an interim and final usage report to the FAA, as is required under the JFK and EWR Orders. The interim report would be due by September 1 for the summer scheduling season and February 1 for the winter scheduling season. The final report would be due no later than 30 days after the end of the respective scheduling season. The interim and final reports should detail slot usage for each day of the respective scheduling season and report the following information for each slot held: The slot number, airport code, time, and arrival or departure designation; the operating carrier; the date and scheduled time of the actual operation, the flight number, origin and destination, and aircraft type identifier; and whether the flight was actually conducted. These reporting requirements are similar to those under the HDR and Orders. In addition to analyzing slot usage reports, the FAA would monitor slot usage throughout the scheduling season.
When the FAA adopted the Buy/Sell Rule, it recognized slots have value in the secondary market. The FAA believes the development of a robust secondary market ultimately is the best way to maximize competition. Over the years, the FAA has received complaints that carriers were unaware of possible opportunities to buy or lease slots, that incumbent carriers were colluding to constrain new entrant carriers' market access to an airport, and that there was uncertainty about the value of slots. The DOT and FAA believe increased transparency in the secondary market would address these concerns as well as allow interested parties to better understand the nature of slot transactions. For these reasons, the FAA proposes a secondary market and offers five alternatives for proposed § 93.45. The FAA requests comments on each of these alternatives and assumptions associated with these alternatives. The most helpful comments would include a weighing of the benefits and drawbacks of how each alternative
Under the first alternative, the FAA would permit a carrier to buy, sell, or lease a slot to another carrier or to trade a slot with another carrier for a slot at any U.S. or foreign slot-controlled airport. This alternative is similar to what was permitted under the Buy/Sell Rule and would permit privately-negotiated transactions between carriers. The FAA believes this alternative creates the least administrative burden on carriers, but it does not address previously-voiced concerns about lack of knowledge of opportunities to acquire slots. Transparency benefits would be realized largely through the transaction approval process, which is discussed later.
Under the second alternative, a carrier seeking to sell, lease, or trade a slot with another carrier would be required to follow a formal process to negotiate the terms of the transaction. This alternative would require a public notice on an FAA-managed bulletin board system. The carrier would have to submit a notice to the FAA that it intended to engage in a slot transaction, and the notice would include the carrier's intended terms. These terms would include the slots available for transfer (slot time and slot number), the type of transfer intended (trade, sale, lease), the proposed duration of a lease if applicable, and the intended effective date. The FAA requests comments on any additional information that the transferring carrier should provide.
The carrier would make its request to the FAA at least 4 months in advance of its intended effective date. The FAA would post a notice of the offer to transfer and relevant details on the FAA Web site. The FAA would post that notice at least 3 weeks in advance of the opening date for bidding, and the notice would state the opening and closing dates for bidding and the contact information for submitting bids. The bidding period would last 2 weeks unless the transferring carrier requested a longer period of time. Carriers (and other interested parties) would be able to register to receive automatic notices when a new posting is published on the FAA bulletin board. The transferring carrier would not be permitted to negotiate terms prior to the start of the bidding period. The FAA intends all bids would be submitted directly to the transferring carrier. The transferring carrier could conduct negotiations during the bidding period to clarify and refine the bid. The transferring carrier, however, would be able to consider and negotiate only bids submitted during the bidding period, but that carrier could request an extension of the bidding period. Once the bidding period closes, the transferring carrier could select its preferred offer and negotiate the final terms of the transaction.
The proposed rule would allow the transferring carrier flexibility in determining the best offer. The FAA would not require the carrier to select the highest-dollar offer because a carrier could place a higher value on non-cash assets and on the overall impact of the proposed transaction on its operations.
The FAA requests comments on the timeframes being proposed. Is a 4-month advance notice to the FAA enough time to complete the proposed process for completing a transfer transaction? Is this advance notice period too long to be practical in light of operational necessity? Does a 3-week public notice provide sufficient time for a carrier to obtain necessary approvals to bid on a slot? With a system where bids are submitted directly to the transferring carrier for review and further negotiation, would a 1-week bidding period be sufficient?
The third alternative is similar to the second alternative, except that carriers would be permitted to privately negotiate tentative terms of a transaction before publishing its intent to transfer slots on the bulletin board. Carriers could approach any prospective transferor or transferee to evaluate the market or assess how to package the slots for transfer. Those tentative terms would be submitted to the FAA and posted on the bulletin board, and other carriers would be permitted to submit counter-offers. The transferring carrier could then select its preferred offer and privately negotiate the final transaction terms. Like the second alternative, the transferring carrier would be able to consider only counter-offer bids submitted during the bidding period. Under this alternative, a carrier would be able to submit a notice of intent to engage in a slot transaction, as under Alternative 2, without prior private negotiation.
The fourth alternative attempts to encourage the greatest transparency by requiring bidders to post their bids on the bulletin board during the bidding period. A carrier would submit a notice to the FAA that it intended to engage in a slot transaction, and the bidding time frames would be the same as under the second alternative. Bidding carriers would post their bids, and any counterbids, on the bulletin board. Therefore, negotiations in the form of iterative bids would be available to all registered interested parties. Because this alternative may require posting of proprietary or confidential business information, a bidding carrier would have the option of posting a summary bid with more detailed information submitted directly to the transferring carrier. The FAA requests comment on whether the option for submitting both a publicly-available summary bid and private detailed bid adequately ensures protection of proprietary or confidential business information. What level of detail for the publicly-available summary bid is adequate to inform other potential bidders of the transaction value?
The fifth alternative is similar to the fourth alternative, but the identities of the offering carrier and bidders would not be revealed. Bids under this alternative would be cash only because non-monetary assets could reveal the identity of the parties. Under this alternative, the offering carrier would be required to accept the highest bid posted. This alternative would mitigate the possibility of any collusion between carriers (
Under the bulletin board alternatives, the FAA anticipates the transferring carrier would structure its notice in a way that permits a transaction involving multiple slots in any desirable combination. For example, the transferring carrier could require multiple slots be transferred as a set or it would consider bids for smaller groupings of slots. The FAA intends to allow maximum flexibility for transferring slots provided prospective bidders have adequate information on which to act. The FAA expects that if the material terms of the transaction change during or after the bidding period, the transferring carrier would repost the notice of intent to transfer for a new bidding period. The FAA requests comment on whether it should implement additional procedures for a subsequent bidding period that included shorter notice and bidding time frames. Does allowing the transferring carrier to craft a notice in a way to allow transfer of multiple combinations of slots ensure both that the transferring carrier would have sufficient flexibility in transferring the slots, and that bidding carriers would have an adequate opportunity to acquire the slots?
Under alternatives one through four, transactions could include both cash and non-cash consideration, and the transactions via the bulletin board would not have to be blind. A carrier also would need to know the identity of a bidder offering non-cash assets to accurately value those assets. The FAA requests comment on whether non-cash bids promote competition by enlarging the pool of potential bidders, which could result in more bidders and more valuable bids.
Do the bulletin board processes adequately accommodate complex transactions involving consideration other than cash? Do the bulletin board processes adequately accommodate transactions that are initiated by the transferee? The FAA also is willing to consider additional proposals for, and comments on, alternative secondary market mechanisms. These additional proposals should encourage the efficient transfer and use of slots in a transparent environment that permits meaningful opportunities for all carriers to participate.
Under each of these alternatives, the transferee would not be able to use the slot until the FAA approved the transaction.
The FAA acknowledges submitting detailed terms of a transaction could in rare circumstances involve legitimate proprietary or confidential business information. A carrier may request confidential treatment of the request for approval while it is under review. The FAA's general practice has been to not make this type of information public until after approval is granted, consistent with the Freedom of Information Act. In addition to confidential treatment while the request is under review, the FAA requests comment on whether it should develop a process for confidential treatment of certain information after the transaction is approved. If so, under what limited circumstances should this confidential treatment be granted to ensure a transparent secondary market? The FAA also requests comment on whether the transaction terms should not be made publicly available for a period of time after the transaction is approved. If so, what is a reasonable period of time?
Under alternatives two, three, four, and five, the FAA proposes some limited exceptions to using the bulletin board system. The FAA proposes these exceptions because it believes they would facilitate transfers made for operational reasons, or as part of a transaction that does not raise concerns about a transparent secondary market. A carrier may trade a slot on a one-for-one basis with another carrier without submitting a bulletin board notice, but no consideration or promise of consideration may be offered for these trades. A carrier also may lease a slot to another carrier for a period of time no longer than two scheduling seasons. The FAA would review a series of short-term leases to determine whether a carrier is effectively engaging in a longer-term transaction. For example, a one-season transfer that is executed for multiple seasons would be construed as a longer-term transfer. In this situation, the FAA may disapprove the transaction. Carriers would have the option of posting a notice on the bulletin board and negotiating a new transaction. Trades among carriers with unified marketing control are permitted without using the bulletin board, thus effectively allowing those carriers to treat slots as one inventory because these transactions do not have the characteristics of a normal arms-length transaction. Finally, slot transfers that take place as a result of a carrier merger or acquisition would not be subject to the bulletin board requirements. These transactions are subject to Federal agency review under antitrust and other authorities. While the bulletin board process would be suitable for purposes of transparency and competitive opportunity for standalone slot transactions, the proposed process is not designed for slot transfers that result from a carrier merger or acquisition.
Under these alternatives, it may be necessary for the DOT to conduct a public interest or competitive review of a transaction for anti-competitive effect, which is discussed later in this document. The FAA would not approve any transaction until it had received an approval or non-objection from the Secretary or the initial 14-day review period had elapsed. To be clear, the FAA would monitor compliance with any required bid procedures.
The FAA requests comments on whether variations to the five alternatives presented would better achieve the stated goals of the rulemaking, including creating a vibrant secondary market. For example, under each alternative, the FAA would post the final terms of the transaction. Please comment on whether the availability of this information facilitates transactions in the secondary market.
While the FAA seeks comment on the proposed secondary market alternatives noted above, the FAA also is open to other mechanisms to more efficiently allocate slots in the secondary market. For this reason, the FAA requests comments regarding lessons learned from the use of secondary markets in other regulated industries (such as market for pollution permits, CAFE credits, or wireless spectrum). This information may assist the FAA in designing a more robust, flexible, and efficient secondary market for slots. Additionally, the FAA requests comments regarding lessons learned from historical secondary market mechanisms implemented by the FAA (such as the HDR or 2006 Chicago O'Hare final rule).
The FAA acknowledges that many carriers have engaged in short-term trades and leases at JFK, EWR, and LGA that extend until the termination date of the Orders. Carriers may intend these transactions be permanent rather than temporary, if permitted by FAA rules. In many cases a permanent transaction has operational or competition-enhancing benefits, but the Orders prohibit a transaction lasting beyond their effective dates. To facilitate the transition of these transactions from the Orders to this proposed rule, the FAA proposes to waive any bulletin board requirements, if adopted, for 90 days after the effective date of the final rule to allow carriers to negotiate and execute these transfers. These transactions still would be subject to the FAA approval process and DOT review.
Under the Orders, carriers must transfer slots among various carriers operating on behalf of the marketing carrier. Some of these carriers are commonly owned while others are contracted service providers. Because the carriers operate under their own DOT and FAA operating authorities and communicate with ATC using their discrete call signs, the FAA has a valid interest in ensuring that carriers operating at a slot-controlled airport have the proper slot authorizations. The FAA proposes a simplified process in
Over the course of the last several years, the DOT has heard many airlines, communities, and airports express concerns that incumbent slot holders have acted to limit competitors' access to slots. Arguments have been made that incumbent carriers have chosen not to transact with low-cost carriers or new entrants, preferring instead to deal with other incumbent carriers that hold a large portfolio of slots in order to preserve a competitive position in the market and forestall more rigorous competition. Similarly, there have been complaints that incumbent slot holders transfer slots for short periods to avoid losing slots under the application of the usage requirement. Consequently, some have sought more rigorous oversight and transparency of slot transactions.
This section describes the DOT's proposal to draw upon existing authority to review certain slot transactions at the New York City area airports that may raise potential competitive or public interest issues. First, this section will explain the DOT's authorities that allow for review of standalone transactions.
The DOT's authority to review slot transfers resulting from standalone slot transactions derives from several statutory provisions. The DOT has authority under 49 U.S.C. 41712 to prohibit airline conduct comparable to antitrust violations. Section 41712 authorizes the DOT to prohibit conduct that it determines is an “unfair method of competition.”
In addition, the DOT is directed by statute, under 49 U.S.C. 40101(a), to carry out the pro-competitive aspects of the Airline Deregulation Act, in the course of carrying out the agency's duties and responsibilities. These pro-competitive objectives include maintaining the availability of a variety of adequate, economic, efficient, and low-priced air services; placing maximum reliance on competitive market forces and on actual and potential competition; avoiding airline industry conditions that would tend to allow at least one air carrier unreasonably to increase prices, reduce services, or exclude competition in air transportation; encouraging, developing, and maintaining an air transportation system relying on actual and potential competition; encouraging entry into air transportation markets by new and existing air carriers and the continued strengthening of small air carriers to ensure a more effective and competitive airline industry.
Furthermore, the DOT also is directed by statute, under 49 U.S.C. 40101(a), to consider certain factors as being in the public interest, in the course of carrying out the agency's duties and responsibilities. Many of these public interest considerations are enumerated in the statute, while others are left to the Secretary's discretion.
Recently, the DOT/FAA has had occasion to apply the Section 40101(a) pro-competitive policy considerations in responding to joint requests of two carriers with large slot holdings to waive, under 49 U.S.C. 40109,
In the course of that process, the Department of Justice (DOJ) and the DOT informally agreed that the DOT would have primary responsibility to consider the carriers' waiver request and DOJ would consider the carriers' Hart-Scott-Rodino Act (HSR) notification and report.
With respect to standalone slot transactions between or among carriers, the DOT proposes to conduct reviews for purposes of evaluating the effects of the transaction based on competitive, or other public interest, factors. For purposes of the DOT's review based on competitive factors, the DOT proposes to limit its review to circumstances where the standalone slot transaction has the potential to substantially reduce competition or create unreasonable concentration. For purposes of the DOT's review based on public interest factors, the review may examine the adverse effects of the slot transfers on service to small communities, the traveling public, or other statutory public interest objectives.
The FAA would forward each request for a standalone slot transaction approval and the final terms of the transaction, required under proposed § 93.45, to the Office of the Secretary. The DOT would determine, within 14 days of receiving the request for approval, whether it needed to request and evaluate additional information for either competitive or public interest concerns, or both. As part of the Secretary's determination of those slot transactions for which additional review is necessary, the Secretary would specifically identify the additional information required. If the DOT requests additional information, the FAA would not approve the transaction, and any slots involved could not be operated by the transferee until the DOT notifies the parties and the FAA of its approval or non-objection. If the Secretary did not notify the parties and the FAA within 14 days of the DOT's receipt of the request for approval, the FAA could approve the transaction.
The DOT would review the additional information as expeditiously as possible. The DOT's review process would be facilitated by the parties' timely information responses provided in a readable and workable format. For standalone slot transactions reviewed due to competition concerns, because the competitive factors would take antitrust law standards and policies into consideration, the DOT intends to coordinate and cooperate with DOJ to avoid unnecessary duplication of effort and burden by agencies and the parties concerned. If, after reviewing the additional information, the DOT determines the slot transaction raises no concerns, the Secretary would notify the parties and the FAA that the transaction may proceed. If the transaction raises concerns, the DOT would notify the parties of its concerns, propose remedies or other actions, and set appropriate procedures and timelines for review.
For standalone slot transactions that raise competitive issues, the DOT would coordinate and consult with DOJ throughout the review process, to minimize the burden on the affected parties and to utilize Government resources efficiently. With respect to standalone slot transactions, the DOT would conduct a separate review under 49 U.S.C. 40101, and may consider using its Section 41712 enforcement authority, as appropriate. The DOT requests comments and suggestions as to how best to minimize the burden on parties that may be subject to these reviews. The process that the DOT would use to conduct these reviews is proposed in § 93.47 and further explained below.
The DOT proposes to review competitive issues arising from standalone slot transactions having the potential for significant anti-competitive effects, such as those that would significantly change the market structure at one of the slot-controlled airports, allow unreasonable industry concentration, permit one or two airlines to excessively dominate a market, or create an environment that would facilitate monopoly powers or practices that would tend to cause a carrier to unreasonably raise fares, reduce services, or exclude competition. Such transactions raise concerns because they may impede the pro-competitive goals of the Airline Deregulation Act.
Among the issues that the DOT may consider in determining whether a particular standalone slot transaction merits further competitive review are those analyzed in connection with the Delta-US Airways slots swap, including whether:
• The transaction would increase the airline's already dominant position in a significant manner, or place the airline in a significantly dominant position;
• the transaction would significantly enhance an airline's ability to unreasonably increase its airfares in a manner unconstrained by competitors; or
• the transaction would enable slot interests to be used in an anti-competitive manner, such as by targeting smaller competitors.
The DOT believes that the transparency of the transfer mechanisms proposed in some of the secondary market alternatives discussed earlier would allow a better understanding of the dynamics behind slot transactions. That additional transparency may protect against the kind of behavior
To prevent harm to the public interest pertaining to factors other than competition, the DOT is proposing to review standalone slot transactions for purposes of analyzing effects that may be inconsistent with the public interest objectives. The DOT's public interest review could consider adverse effects on the traveling public, service to small communities, service through secondary or satellite airports, or other areas covered by the public interest. The DOT requests comments on the use of these and other criteria to address public interest concerns.
The DOT expects very few proposed standalone transactions would raise significant competitive or public interest concerns. Accordingly, the DOT proposes to exempt from its review the more routine types of transactions involving small numbers of slots (such as those consisting of fewer than eight slots in total), involving limited terms (such as those extending over two or fewer scheduling seasons), involving one-for-one trades among incumbents at any of the three airports, or involving a sale or lease entirely to a new entrant or incumbent that holds or operates a relatively small proportion of the slots at an airport. However, the DOT would consider multiple transactions within a period of a few years, including slot transfers to multiple carriers under the marketing or operational control of a single entity, as constituting a single aggregate transaction that could be subject to review. As with HSR filing guidance published by DOJ and the Federal Trade Commission, the DOT would seek to ensure that carriers not enter into multiple small transactions with the purpose of evading the review process; multiple transactions within a three-year period could be reviewed if they constituted a pattern and raised competitive or public interest issues.
The DOT does not intend to review transactions that would be excepted from the bulletin board process. Nevertheless, it may conduct such reviews if it believes carriers have engaged in multiple transactions or have structured transactions to circumvent the competitive or public interest review process.
The DOT requests comments on whether the exceptions described above create a sufficient safe harbor so that transactions enhancing competition and providing public benefits are encouraged, while still providing the DOT with an opportunity to review transactions that could impede competition, promote monopoly markets, unreasonably raise fares, reduce service, cause undue harm to small communities or service to secondary or satellite airports, or otherwise adversely impact the public interest. Are there alternative ways to describe the sorts of slot transfers that may be excluded from the review (that is, measured by the percentage gain in market share by an acquiring carrier)? Do the proposed timeframes for additional review permit carriers to plan slot transfers without discouraging those transactions?
With respect to the proposals outlined above regarding reviews of standalone transactions for competitive or public interest factors, if upon first examination, the DOT determines that review is necessary, the DOT anticipates using expedited procedures to conduct that review. The procedures may include an opportunity for public comment as in the Delta/US Airways slot swap proceeding, or, for example, as in a potential proceeding involving a tentative DOT decision that seeks public comment. The DOT intends to harmonize such proceedings with DOJ. The DOT requests comments on appropriate procedures to synchronize the process with DOJ and to avoid undue burden and duplication on the parties.
With respect to information submitted by the parties to a transaction, the DOT proposes that parties could request that any information submitted to the DOT for review and designated as confidential not be disclosed to the public. The DOT, subject to the procedures at 49 CFR part 7, would keep such designated information confidential and not include it in any public proceeding. The DOT would treat a request to examine or copy this information as any other request under the Freedom of Information Act, 5 U.S.C. 552, and process the request under the DOT's procedures at 49 CFR part 7. The DOT would use the procedures described in proposed § 93.47(e) for receiving, handling, and disclosing such confidential information. The procedures at 14 CFR 302.12 (commonly known as Rule 12) would not apply. The DOT requests comments on these proposed procedures, including the handling of confidential documents or alternative procedures, to ensure that decisions are made in a timely, effective, and transparent manner.
The FAA proposes to reserve the authority to retime or temporarily suspend a slot if a reduction in operations during a particular time period is required. Events such as a runway or taxiway closure, a change in separation standards, or fleet mix change that could impact throughput
The FAA also reserves the authority to permanently withdraw slots at an airport. The FAA first would make a determination of decreased airport capacity that it does not expect to increase for an indefinite period of time.
The FAA believes that a carrier that ceases all operations at an airport should not continue to hold a slot and earn rental income from it, just as it believes that non-carriers should not be permitted to hold slots. The FAA believes slots held in these ways undermine the FAA's promotion of efficient use of a scarce resource controlled by the U.S. Government. The FAA proposes to allow a carrier that ceases all operations to hold the slot at that airport for no longer than 2 years after the end of the season in which it ceased operations. The carrier could lease the slot during this period so that it does not permanently lose it. This 2-year period provides adequate time for the carrier to determine its long-term plans for operating at the airport and either resume operations at the airport, return the slot to the FAA, or sell the slot to another carrier. After the 2 years elapse, the slot would revert to the FAA, and any carrier operating the slot would have to cease that operation. Similarly, if a carrier's DOT economic authority or FAA operating certificate is suspended, surrendered, or revoked, any slots held by that carrier would revert to the FAA. The FAA has determined only operating carriers may hold slots. If that carrier had an existing agreement under which another carrier were operating the slots, the FAA could allocate the slots on a temporary, non-historical basis for the remainder of the scheduling season or up to the duration of the agreement to avoid disrupting operations or expectations of the operating carrier.
The FAA proposes to limit unscheduled operations into and out of JFK, EWR, and LGA during the slot-controlled hours. Unscheduled operations already are limited at LGA by Order, and the FAA previously had proposed limits on unscheduled operations at JFK and EWR. Although unscheduled operations (including general aviation, passenger and cargo charter, ferry, and other ad hoc operations) are typically a small percentage of overall traffic, the FAA has determined these limits are necessary because any airport operation affects congestion and delays. Even a few additional operations during peak hours could result in significant additional delay, thus eroding the effectiveness of the slot limits. Accordingly, limitations on unscheduled operations should be part of any comprehensive plan to manage congestion and delays and ensure the effectiveness of limits on scheduled operations. A comprehensive plan should seek to balance airport access to all potential operators without permitting unreasonably increased congestion and delays in the absence of FAA oversight.
The FAA believes most unscheduled operations can be accommodated under this proposed rule if operators are flexible in their arrival and departure times. Moreover, the FAA believes that general aviation demand and a segment of flights conducted as business and private charters can be accommodated within regional capacity, including operating at Westchester County Airport, Islip MacArthur Airport, Republic Airport, Stewart International Airport, Morristown Municipal Airport, and Teterboro Airport. Based on data from the FAA's Enhanced Traffic Management System (ETMS) for the year ended May 31, 2008,
Unscheduled operations at JFK would be limited to two per hour, at EWR to one per hour, and at LGA to three per hour. The proposed LGA limits are consistent with the limit that has been in place since 2009. Although the limits for JFK and EWR are lower than that for LGA, these limits generally correlate to actual hourly unscheduled operations at the airports in summer 2008. To the extent possible, ATC would permit additional operations (for example, in favorable weather conditions or if unallocated slots exist in a particular time period). Also, a secondary market alternative for unscheduled operations, in addition to the existing reservation system, could allow slot holders to exchange slots that they are not able to use on a particular day. The FAA requests comments on whether allowing slots to be exchanged in the secondary market to unscheduled operators would lead to a more efficient use of limited operational capacity.
Reservations obtained through the FAA's Airport Reservation Office (ARO) would be required prior to conducting the operation (except in the case of emergency operations) and could be obtained up to 72 hours in advance. These reservations would allow an unscheduled operation (either arrival or departure) during a 60-minute period. The reservations would be allocated on a first-come, first-served basis, determined by the time the request is received by the ARO. When the ARO allocates a reservation, it would assign a unique reservation number. Operators would primarily obtain reservations through the ARO's interactive computer system accessed via the Internet or touch-tone telephone system. This system is known as the e-CVRS. Operators would provide the date and time of the proposed operation along with other identifying information concerning the aircraft and the intended flight. Additional reservations would be available in the e-CVRS system, but these reservations may not appear until close to the reservation time.
All operations at the airport other than declared emergencies, whether under instrument flight rules (IFR) or visual flight rules (VFR), would require a reservation. However, non-emergency national security, law enforcement, military, public aircraft, or other similar mission-critical operations may be accommodated above the limits with prior FAA approval. In the case of diplomatic or other flights in direct support of foreign governments, the FAA would permit additional reservations, if necessary, to accommodate these flights but may approve an operation at a time other than the one initially requested.
The filing of a request for reservation would not constitute the filing of an IFR flight plan as required under other rules. However, an IFR flight plan could not be filed until the reservation is obtained. The operator would include the reservation number in the “Remarks” section of the flight plan to indicate that it has a reservation for the operation.
The FAA recognizes the needs of public charter operators to confirm
Public charter operations that seek a reservation more than 72 hours and up to 6 months in advance of the planned operation, would submit their request to the FAA's Slot Administration Office. A public charter operator would be required to provide the Slot Administration Office with a certification that any required prospectus has been submitted to the DOT in accordance with 14 CFR part 380; the call sign/flight number to be used for ATC communication by the direct air carrier conducting the operation; the date and time of the proposed arrival or departure; and the origin airport immediately prior to JFK, EWR, or LGA, or the destination airport immediately following JFK, EWR, or LGA; and aircraft type. A public charter operator also would be required to notify the Slot Administration Office of any changes to the above information after the reservation has been allocated.
The number of reservations available in advance for public charter operations would be limited to one per hour at LGA and two per day at JFK and EWR. If a public charter operator were unable to obtain an advance reservation, it could attempt to obtain a reservation within the 3-day window that is open to all unscheduled operations. A public charter operator also could attempt to obtain a slot from another carrier in the secondary market under proposed § 93.45.
Because the HDR no longer is in effect for JFK, EWR, LGA, and ORD, the FAA proposes to remove references to these airports in part 93, subparts K and S. These out-of-date references have caused confusion for the public, and these amendments would reduce that confusion. Accordingly, the FAA proposes to remove references to these airports in §§ 93.123 (including the table in § 93.123(a)), 93.211, 93.223, 93.226. The FAA also proposes to remove §§ 93.133, 93.215, 93.217, 93.218, and 93.221(e) because they do not apply to DCA, which is the only airport for which the HDR applies. None of these amendments would substantively change how the HDR applies to DCA.
Changes to Federal regulations must undergo several economic analyses. First, Executive Orders 12866 and 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this proposed rule. We suggest readers seeking greater detail read the full regulatory evaluation, a copy of which we have placed in the docket for this rulemaking.
In conducting these analyses, the FAA has determined this proposed rule has benefits that justify its costs, and is a “significant regulatory action” as defined in section 3(f) of Executive Order 12866 because it raises novel policy issues contemplated under that executive order. The rule is also “significant” as defined in the DOT's Regulatory Policies and Procedures. The proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities, would not create unnecessary obstacles to international trade and would not impose an unfunded mandate on state, local, or tribal governments, or on the private sector.
The FAA developed this analysis using 2009 data to model the behaviors of carriers based on meeting the minimum requirement of the proposed rule. Under this assumption, carriers would incrementally increase actual operations in year one to meet the new use-or-lose requirement and this new operating level would grow by the FAA's Terminal Area Forecast (TAF) until it reached the daily limits. In the first year carrier utilization of slots will be at least 80%. After this year, any increase in operations and slot utilization is due to an increase in forecasted demand. Total benefits and costs for the regulatory case are estimated at $74,696,596 ($65,242,900 Present Value at 7%) for benefits and $53,056,768 ($46,341,836 Present Value at 7%) for costs, assuming the highest cost secondary market alternative (either alternative four or five) is adopted. Moreover, the FAA believes that this rule would improve utilization of existing slots, possibly increase a carrier's penalty for retaining slots of limited value and thus result in the return of some slots, and would result in net benefits over one year.
• Operators of scheduled and non-scheduled, domestic and international flights, and new entrants who do not yet operate at JFK, LGA, and EWR.
• All communities with air service to JFK, LGA, and EWR.
• Passengers of scheduled flights to JFK, LGA, and EWR.
• The Port Authority of New York and New Jersey, which operates the airports.
• FAA Air Traffic Control.
• All costs and benefits are in 2010 dollars.
• Costs and benefits estimated for the first year.
• Additional flights added to meet new usage requirement excludes weekends (Saturday and Sunday).
• Assume some flights rescheduled to meet new usage requirement.
• Present value discount rate of 7 percent is applied.
• Some unscheduled flights would be redirected.
• Carriers that would need to add a large number of flights in less desirable hours (hours 0600 and 2100) would return or sell those slots.
The majority of the costs and benefits from this proposed rule are from changes to the usage requirement. The secondary market and new administrative and reporting requirements result in minor benefits and costs. Benefits include consumer benefits (measured as consumer surplus) from additional flights at JFK, EWR, and LGA. Costs are attributed to the additional operating costs carriers incur for these added flights to meet the proposed usage requirement, the additional minutes of delay and any administrative and reporting costs.
The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.
Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.
The initial regulatory flexibility analysis addresses:
• Description of reasons the agency is considering the action;
The purpose of this rulemaking is to replace the current temporary Orders limiting operations at LGA, JFK, and EWR with a permanent rule. Under the existing Orders the hourly scheduled operations are limited to 81 at JFK, 81 at EWR, and 71 at LGA, and unscheduled operations are limited to 3 at LGA. This proposal, if adopted, would replace those Orders and continue the existing limits on scheduled operations in addition to limiting unscheduled operations to 2 per hour at JFK and 1 at EWR and establishing daily scheduled operations limits. The FAA also intends to increase the use of slots through a revised usage requirement and secondary market.
• Statement of the legal basis and objectives of the proposed rule;
This rulemaking is promulgated under the authority described in Title 49 U.S.C. Subtitle VII, Part A, Subpart I, Sections 40101, 40103, 40105, and 41712 and in Title 15 U.S.C. Section 21. The FAA has broad authority under 49 U.S.C. 40103 to regulate the use of the navigable airspace of the United States. This section authorizes the FAA to develop plans and policy for the use of navigable airspace and to assign the use the FAA deems necessary for safe and efficient utilization.
• Identification, to the extent practicable, of all relevant Federal rules which may duplicate, overlap or conflict with the proposed rule;
This rule would replace existing FAA Orders and does not duplicate, overlap, or conflict with other federal rules.
• Description of the recordkeeping and other compliance requirements.
The scheduled carrier would incur reporting costs for buying, selling, leasing or trading a slot. While these costs for an operator are minimal, largely voluntary, and can provide revenue opportunities for small operators, a full discussion of these costs now follows. For all five alternatives, each carrier party to the negotiated transaction would be required to submit a request for approval to the FAA along with the final terms of the transaction including the names of all parties to the transaction, the consideration offered by each party, the effective date of the transfer, and, if appropriate, the length of the lease. Each respondent would require 30 minutes, that includes 30 minutes for the transferring carrier and 30 minutes for the receiving carrier. Given the legal nature of the agreement a lawyer would be retained with an hourly burden labor rate
For alternatives that require the bulletin board the FAA estimates that carriers would need at least one hour to report the buying, selling, or trading of a slot. As mentioned above the FAA estimates that carriers would post up to 25 trades. To estimate the annual reporting costs to carriers for buying, selling, or trading on the bulletin board, the FAA multiplied the estimated number of annual reports by the number of hours needed per report and the wage. The hourly burden labor rate was for a computer support specialist
• A description and estimated number of small entities to which the rule would apply.
Any scheduled carrier, employing less than 1,500 employees, with existing slots or wanting a slot today would be affected by this rule. There are two
The delay costs for the small entities at the New York City area airports would not result in a significant economic impact. The annual delay cost equals the average of delay per flight, multiplied by the total number of flights, then by 50 percent attributed to ground delay, and then multiplied by the average airplane operating cost. When this total delay cost is divided by annual revenue the result is less than 2 percent for the small entity scheduled operators. The FAA believes that compliance cost less than two percent of annual revenue is not a significant economic impact.
A small number of unscheduled passenger flights planning to operate at EWR or JFK may have to operate at another New York City area airport, such as Teterboro, if they are unable to obtain a reservation. This change in plans may result in an additional ground transportation cost to or from the alternative airport. However, when considering the cost of travel by private jet compared to commercial passenger service, any additional ground transportation cost is not significant.
The FAA believes the nonscheduled cargo carriers would not have a significant economic impact, as their flights would continue and most of their flights occur at night and would not incur delay costs.
The FAA considered two alternatives to the proposed rule. The first alternative was to simply extend the existing Orders. This alternative was rejected because the FAA wanted to increase competition by making slots available to more operators. The FAA believes these operators are likely to be small entities. The second alternative was to remove the existing Orders. This alternative would result in unacceptable delay costs from the increase in operations.
Thus, the FAA certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities.
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 standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such the protection of safety, and does not operate in a manner that excludes 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. The FAA has assessed the potential effect of this proposed rule and determined that it would impose the same costs on domestic and international entities and thus has a neutral trade impact.
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $143.1 million in lieu of $100 million. This proposed rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. According to the 1995 amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi)), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid OMB control number.
This action contains the following proposed information collection requirements. As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the FAA has submitted these proposed information collection amendments to OMB for its review.
The FAA also uses this information to help provide access to unscheduled operators seeking access to these airports.
The slot exchange information posted on the FAA's electronic bulletin board is designed to enhance competition by making the availability of slots known to new entrant and incumbent carriers seeking to serve these markets.
Respondents also would be unscheduled operators seeking to operate at LGA, JFK, or EWR. For the period from May through August 2010, there were approximately 50 unscheduled operators at LGA, 25 at JFK, and 30 at EWR that used the respective airports for more than five operations.
Slot requests for the upcoming scheduling season would take place twice per year, before the winter and summer IATA scheduling seasons. Slot usage reporting would occur four times per year, with interim and final usage reports for each scheduling season. Requests for approval of one-for-one trades, request for approvals for slots transferred between carriers under the same marketing control, and submission of bulletin board notices regarding the intent to transfer slots would all be event-driven and would occur as frequently as secondary market transactions warrant. The FAA estimates there would be approximately 2,700 secondary market transactions per year for all three airports. Similarly, reservation requests by unscheduled operators would also be event-driven and could occur as frequently as the hourly limit at the respective airport,
JFK:
EWR:
LGA:
(147 carriers) * (2 hours per report) * (2 scheduling seasons) = Total Annual Hourly Burden = 588 hours
(147 carriers) * (1.5 hours per submittal) * (4 occurrences per year) = Total Annual Hourly Burden = 882 Hours
From prior experience, the FAA estimates that there would be approximately 2,700 slot transfer transactions yearly for all three airports. This amounts to roughly 575 transactions for EWR, 1480 for LGA, and 645 for JFK. Many transactions include trades among carriers with unified marketing control, and those carriers could use the simplified process under proposed § 93.46 to reduce the reporting burden. The proposed oversight of secondary market competition may require submission of additional information, but the DOT expects few transactions would be reviewed.
The FAA estimates that there would be roughly 25 notices per airport per year that would be posted to a bulletin board under alternatives 2, 3, and 4. The FAA estimates carriers would spend 2 hours preparing and submitting those notices. For alternative 4, the FAA estimates approximately 5 bids per notice for a total of 375 bids at the three airports per year. The FAA estimates that bidders would spend approximately 2 hours dealing with each bid.
The agency requests comments to—
(1) Evaluate whether the proposed information requirements are necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the agency's estimate of the burden;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Individuals and organizations may submit comments on the information collection requirement by March 9, 2015, and should direct them to the address listed in the
According to the 1995 amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi)), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid OMB control number. The OMB control number for this information collection will be published in the
In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to these proposed regulations.
Executive Order 13609, Promoting International Regulatory Cooperation, promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609, and has determined that this action would have no effect on international regulatory cooperation.
FAA Order 1050.1E,
See the “Regulatory Evaluation” discussion in the “Regulatory Notices and Analyses” section elsewhere in this preamble.
The FAA has analyzed this proposed rule under the principles and criteria of Executive Order 13132, Federalism. The agency has determined that this action would not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, would not have Federalism implications.
The FAA analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it would not be a “significant energy action” under the executive order and would not be likely to have a significant adverse effect on the supply, distribution, or use of energy.
The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The agency also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.
The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The agency may change this proposal in light of the comments it receives.
Proprietary or Confidential Business Information: Commenters should not file proprietary or confidential business information in the docket. Such information must be sent or delivered directly to the person identified in the
Under 14 CFR 11.35(b), if the FAA is aware of proprietary information filed with a comment, the agency does not place it in the docket. It is held in a separate file to which the public does not have access, and the FAA places a note in the docket that it has received it. If the FAA receives a request to examine or copy this information, it treats it as any other request under the Freedom of Information Act (5 U.S.C. 552). The FAA processes such a request under Department of Transportation procedures found in 49 CFR part 7.
An electronic copy of rulemaking documents may be obtained from the Internet by—
1. Searching the Federal eRulemaking Portal (
2. Visiting the FAA's Regulations and Policies Web page at
3. Accessing the Government Printing Office's Web page at
Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Commenters must identify the docket or notice number of this rulemaking.
All documents the FAA considered in developing this proposed rule, including economic analyses and technical reports, may be accessed from the Internet through the Federal eRulemaking Portal referenced in item (1) above.
Air traffic control, Airports, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend chapter I of title 14, Code of Federal Regulations as follows:
49 U.S.C. 106(f), 106(g), 40101, 40103, 40105, 40106, 40109, 40113, 41712, 44502, 44514, 44701, 44715, 44719, 46301; 15 U.S.C. 21.
(a) This subpart prescribes the air traffic rules for the arrival and departure of aircraft used for scheduled and unscheduled service, other than helicopters, at John F. Kennedy International Airport (JFK), Newark Liberty International Airport (EWR), and LaGuardia Airport (LGA).
(b) This subpart prescribes procedures for the assignment, transfer, lease, and withdrawal of slots issued by the FAA for scheduled operations at JFK, EWR, and LGA.
(c) This subpart applies to operations at:
(1) JFK, daily from 0600 through 2259, Eastern time;
(2) EWR, daily from 0600 through 2259, Eastern time; and
(3) LGA, Monday through Friday from 0600 through 2159, Eastern time, and Sunday from 1200 through 2159, Eastern time.
(d) A U.S. or, to the extent provided for by international agreements, foreign air carrier conducting operations solely under another carrier's marketing control with unified inventory control is not considered a separate carrier under this subpart.
For purposes of this subpart:
(1) For JFK, daily from 0600 through 2259, Eastern time;
(2) For EWR, daily from 0600 through 2259, Eastern time;
(3) For LGA, Monday through Friday from 0600 through 2159, Eastern time, and Sunday from 1200 through 2159, Eastern time.
(a) No person may operate certain public charters or any scheduled arrival into or departure out of JFK, EWR, or LGA during the slot-controlled hours
(b) Except as otherwise approved by the Administrator, the number of slots are limited to no more than 81 per hour at JFK, 81 per hour at EWR, and 71 per hour at LGA.
(1) At JFK, the number of slots may not exceed 44 in any 30-minute period, 81 in any 60-minute period, or a total of 1,205 between the slot-controlled hours of 0600 and 2159.
(2) At EWR, the number of slots may not exceed 44 in any 30-minute period, 81 in any 60-minute period, or a total of 1,205 between the slot-controlled hours of 0600 and 2159.
(3) At LGA, the number of slots may not exceed 38 in any 30-minute period, 71 in any 60-minute period, or a total of 1,136 during the slot-controlled hours.
(4) The FAA may adjust the number of arrival and departure slots in any period as necessary based on the actual or potential delays created by such number or other considerations relating to congestion, airfield capacity, and the air traffic control system.
(a) Any carrier holding operating authorizations (except for temporary, one-season-only, or other contingent operating authorizations) allocated under the Order limiting operations at JFK, the Order limiting operations at EWR, or the Order limiting operations at LGA, as evidenced by the FAA's records, will be assigned corresponding slots in 30-minute periods consistent with the limits under § 93.37(b) and the carrier's summer and winter season schedules as approved by the FAA. The carrier will have historic precedence, subject to the requirements of this section, for these slots for the subsequent corresponding season.
(b) To be eligible for historic precedence, an allocated slot must be used at least 80% of the time for which it is allocated during the scheduling period, subject to the following:
(1) Absent approval by the FAA, the same flight or series of flights must be reported as used for an allocated slot throughout the summer or winter season.
(2) For a series of flights operated on more than one day-of-week, each day-of-week is considered a separate series of flights.
(3) The FAA will treat as used a slot held by a carrier that ceases operations using that slot due to a strike.
(4) The FAA may waive these usage requirements in the event of a highly unusual and unpredictable condition which is beyond the carrier's control and which affects carrier operations for a period of five or more consecutive days.
(5) The FAA may waive these usage requirements for a period of up to 180 days if a slot is allocated to or otherwise acquired by a new entrant carrier.
(c) A slot allocated by the FAA under § 93.41(i) does not have historic precedence for the subsequent corresponding season.
(a) Requests for slots must be submitted to the FAA Slot Administration Office at the address and by the deadline published by the FAA in a
(1) The requesting carrier must submit its entire schedule at JFK, EWR, and LGA, as appropriate, for the particular season, noting which requests, if any, are in addition to, or changes from, the previous corresponding season at the respective airport.
(2) Each slot request must indicate the effective dates of the request, proposed days of operation, proposed time of operation (indicated as either UTC or local time), whether the operation is for an arrival or departure, flight number, and aircraft type.
(b) The FAA first will accommodate requests for slots for which the carrier has historic precedence and are for the same time period as the previous corresponding season.
(c) After accommodating historic precedence slots, the remaining slots available for allocation will be divided into two pools:
(1) Not less than 50% of the available slots will be for new entrants that have not returned slots to the FAA after the slot return deadline, or had slots revoked by the FAA for insufficient use, during the two corresponding scheduling seasons immediately preceding the scheduling season for which a slot allocation is being conducted; and
(2) The remainder will be for any carrier.
(d) Within each pool, the FAA first will accommodate carrier requests to retime slots for operational reasons.
(e) Within each pool, the FAA next will accommodate carrier requests to extend an allocated seasonal slot to year-round service.
(f) Within each pool, the FAA then will accommodate any remaining carrier requests. If all requests cannot be accommodated, the FAA will consider the following factors:
(1) The effective period of operation;
(2) The extent and regularity of intended slot use with priority given to year-round service;
(3) Schedule constraints of carriers requesting slots; and
(4) The operational impacts of scheduled demand, including the distribution of flights and the mix of arrivals and departures.
(g) If an available slot cannot be allocated according to the factors in paragraph (f) of this section, the FAA may consider the following factors:
(1) Airport facilities constraints including gates, terminals, parking, customs and immigration, and curfews; and
(2) Competition and impacts to markets served.
(h) A carrier allocated a slot under paragraph (f) of this section must operate that slot and may not transfer it for two corresponding seasons, except that carrier may engage in a one-for-one trade for operational reasons.
(i) Notwithstanding paragraphs (a) through (g) of this section, the FAA may assign an available slot to a carrier on a non-permanent, first-come, first-served basis subject to permanent assignment under this subpart. Any remaining unassigned slots may be made available to unscheduled operations on a non-permanent basis according to the procedures in § 93.49.
(j) The FAA will assign each slot a designation that consists of the airport code, slot number, 30-minute time period, frequency, summer or winter season, and arrival or departure designation.
(k) If directed by the Office of the Secretary of Transportation, the FAA will not apply the provisions of this section to any foreign air carrier or commuter operator of a country that provides slots to U.S. air carriers and commuter operators on a basis more restrictive than provided under this subpart.
(a) Absent prior approval by the FAA and except as otherwise provided in this subpart, a carrier that ceases all operations at an airport may transfer, sell, or lease any slots to another carrier as provided in § 93.45, but the carrier may not hold any slots for a period exceeding 2 years after the season in which it ceases all operations at the respective airport.
(b) If a carrier's DOT economic authority or FAA operating certificate is suspended, surrendered, or revoked, any slots held by that carrier revert to the FAA. If another carrier is operating
(c) The FAA may retime or temporarily suspend slots at any time to fulfill operational needs. The FAA will provide a 45-day notice, unless shorter notice is required for operational needs, to an affected carrier prior to temporarily suspending a slot that specifies the date by which operations using that slot must cease. The FAA will determine the suspended slots by lottery of slot holdings in the particular time period during which slots are being suspended. The FAA will reassign a suspended slot, if at all, only to the carrier from which it was suspended, provided the carrier continues to conduct scheduled operations at the respective airport.
(d) If the FAA determines to reduce the number of allocated slots following a determination of decreased airport capacity, it may permanently withdraw slots to reach the accepted limit. The FAA will determine the withdrawn slots by lottery of slot holdings in the particular time period during which slots are being withdrawn. Following withdrawal, those slots would cease to exist.
(e) The FAA will not retime, suspend, or withdraw slots, under this section, of a carrier that holds fewer than 20 slots on any day of the week at the respective airport.
(a)(1) No later than September 1 for the summer scheduling season and February 1 for the winter scheduling season, each carrier holding a slot must submit an interim report of slot usage for each day of the applicable scheduling season.
(2) No later than 30 days after the last day of the applicable scheduling season, each carrier must submit a final report of the completed operations for each day of the entire scheduling season.
(b) The report required under paragraph (a) this section must contain, in a format acceptable to the FAA, the following information for each slot:
(1) The slot number, airport code, time, and arrival or departure designation;
(2) The operating carrier;
(3) The date and scheduled time of each of the operations conducted with the slot, including the flight number, origin and destination, and aircraft type identifier; and
(4) Whether the flight was actually conducted.
(c) The FAA may withdraw the slots of any carrier that does not meet the reporting requirements of paragraph (a) of this section.
(a) Except as otherwise provided in this subpart, a carrier may buy, sell, or lease a slot to another carrier for any consideration and for any time period, and a carrier may trade a slot with another carrier for a slot at any U.S. or foreign slot-controlled airport.
(b) Requests for FAA approval of transfers under this section must be submitted in writing by all parties to the transaction to the FAA Slot Administration Office in a manner acceptable to the Administrator. Requests must provide the names of the transferor and recipient; business address and telephone number of the person representing the transferor and recipient; whether the slot is to be used for an arrival or departure; and the slot designation of the slot as described in § 93.41(j).
(c) The request for FAA approval also must include the final terms of the transaction including:
(1) The names of all parties to the transaction;
(2) The consideration offered by each party;
(3) The effective date of the transfer; and
(4) The length of the lease, if applicable.
(d) Prior to approving the transfer, the FAA will confirm the transferred slots come from the transferor's FAA-approved slot holdings and that no transfer limitations apply.
(e) The Secretary may review the final terms of the transaction for any anti-competitive effects or adverse public interest effects under § 93.47. The FAA may not approve the transfer until the Secretary notifies the FAA of the Secretary's approval or non-objection or the 14-day notice period under § 93.47(b) elapses.
(f) The slot may not be used by the transferee until the conditions of this section have been met, and the FAA provides notice of its approval of the transfer.
(a) Except as otherwise provided in this subpart, a carrier may buy, sell, or lease a slot to another carrier for any consideration and for any time period, and a carrier may trade a slot with another carrier for a slot at any U.S. or foreign slot-controlled airport.
(b) Except as permitted under paragraphs (c), (d), (e), (f), and (g) of this section, a carrier must provide notice to the FAA four months before its intended transaction date of its intent to transfer a slot prior to negotiating with another carrier. The notice of intent to transfer must include the slot number and time, effective date of the transfer, and, if applicable, the duration of the lease. The FAA will post a notice of the offer to transfer the slot and relevant details on the FAA Web site at
(c) A carrier may trade a slot with another carrier on a one-for-one basis without providing notice to the FAA under paragraph (b) of this section provided the request for FAA approval also includes a certification by both carriers that no consideration or promise of consideration was provided by either party to the trade.
(d) A carrier may lease a slot to another carrier without notice to the FAA under paragraph (b) of this section provided the lease is effective for no longer than two scheduling seasons.
(e) Carriers with agreements where one carrier operates solely under the other's marketing control may transfer a slot with another party subject to that agreement without notice to the FAA under paragraph (b) of this section provided the request for FAA approval also includes a certification of that agreement by both carriers.
(f) Prior to [90 DAYS AFTER EFFECTIVE DATE], a carrier may buy, sell, or trade with another carrier a slot that was subject to a lease or short-term trade under the Order limiting operations at JFK, Order limiting operations at EWR, or Order limiting operations at LGA without notice to the FAA under paragraph (b) of this section.
(g) Requests for FAA approval for transfers under this section must be submitted in writing by all parties to the transaction to the FAA Slot Administration Office in a manner acceptable to the Administrator. Requests must provide the names of the transferor and recipient; business address and telephone number of the person representing the transferor and recipient; whether the slot is to be used for an arrival or departure; and the slot designation of the slot as described in § 93.41(j).
(h) The request for FAA approval also must include the final terms of the transaction including, as applicable:
(1) The names of all parties to the transaction;
(2) A description of the transaction;
(3) The consideration offered by each party;
(4) The names of all bidders and consideration offered by each bidder;
(5) The effective date of the transfer; and
(6) The length of the lease.
(i) Prior to approving the transfer, the FAA will confirm the relevant slots are part of the carrier's FAA-approved slot holdings and that no transfer limitations apply.
(j) The Secretary may review the final terms of the transaction for any anti-competitive effects or adverse public interest effects under § 93.47. The FAA may not approve the transfer until the Secretary notifies the FAA of the Secretary's approval or non-objection or the 14-day notice period under § 93.47(b) elapses.
(k) The slot may not be used by the transferee until the conditions of this section have been met, and the FAA provides notice of its approval of the transfer.
(a) Except as otherwise provided in this subpart, a carrier may buy, sell, or lease a slot to another carrier for any consideration and for any time period, and a carrier may trade a slot with another carrier for a slot at any U.S. or foreign slot-controlled airport.
(b) Except as permitted under paragraphs (c), (d), (e), and (f) of this section, a carrier may negotiate tentative terms of a transfer without providing advance notice to the FAA. A carrier must provide notice to the FAA four months before its intended transaction date of these tentative transfer terms that includes the slot number and time, effective date of the transfer, consideration offered, and, if applicable, the duration of the lease. The FAA will post a notice of the relevant details of the transfer on the FAA Web site at
(c) A carrier may trade a slot with another carrier on a one-for-one basis without providing notice to the FAA under paragraph (b) of this section provided the request for FAA approval also includes a certification by both carriers that no consideration or promise of consideration was provided by either party to the trade.
(d) A carrier may lease a slot to another carrier without notice to the FAA under paragraph (b) of this section provided the lease is effective for no longer than two scheduling seasons.
(e) Carriers with agreements where one carrier operates solely under the other's marketing control may transfer a slot with another party subject to that agreement without notice to the FAA under paragraph (b) of this section provided the request for FAA approval also includes a certification of that agreement by both carriers.
(f) Prior to [90 DAYS AFTER EFFECTIVE DATE], a carrier may buy, sell, or trade with another carrier a slot that was subject to a lease or short-term trade under the Order limiting operations at JFK, Order limiting operations at EWR, or Order limiting operations at LGA without notice to the FAA under paragraph (b) of this section.
(g) Requests for FAA approval for transfers under this section must be submitted in writing by all parties to the transaction to the FAA Slot Administration Office in a manner acceptable to the Administrator. Requests must provide the names of the transferor and recipient; business address and telephone number of the person representing the transferor and recipient; whether the slot is to be used for an arrival or departure; and the slot designation of the slot as described in § 93.41(j).
(h) The request for FAA approval also must include the final terms of the transaction including:
(1) The names of all parties to the transaction;
(2) The consideration offered by each party;
(3) The names of all bidders and consideration offered by each bidder, if applicable;
(4) The effective date of the transfer; and
(5) The length of the lease, if applicable.
(i) Prior to approving the transfer, the FAA will confirm the transferred slots come from the transferor's FAA-approved slot holdings and that no transfer limitations apply.
(j) The Secretary may review the final terms of the transaction for any anti-competitive effects or adverse public interest effects under § 93.47. The FAA may not approve the transfer until the Secretary notifies the FAA of the Secretary's approval or non-objection or the 14-day notice period under § 93.47(b) elapses.
(k) The slot may not be used by the transferee until the conditions of this section have been met, and the FAA provides notice of its approval of the transfer.
(a) Except as otherwise provided in this subpart, a carrier may buy, sell, or lease a slot to another carrier for any consideration and for any time period, and a carrier may trade a slot with another carrier for a slot at any U.S. or foreign slot-controlled airport.
(b) Except as permitted under paragraphs (c), (d), (e), and (f) of this section, a carrier must provide notice to the FAA four months before its intended transaction date of its intent to transfer a slot prior to negotiating with another carrier. The notice of intent to transfer must include the slot number and time, effective date of the transfer, and, if applicable, the duration of the lease. The FAA will post a notice of the offer to transfer the slot and relevant details on the FAA Web site at
(c) A carrier may trade a slot with another carrier on a one-for-one basis without providing notice to the FAA under paragraph (b) of this section provided the request for FAA approval also includes a certification by both carriers that no consideration or promise of consideration was provided by either party to the trade.
(d) A carrier may lease a slot to another carrier without notice to the FAA under paragraph (b) of this section provided the lease is effective for no longer than two scheduling seasons.
(e) Carriers with agreements where one carrier operates solely under the other's marketing control may transfer a slot with another party subject to that agreement without notice to the FAA under paragraph (b) of this section provided the request for FAA approval also includes a certification of that agreement by both carriers.
(f) Prior to [90 DAYS AFTER EFFECTIVE DATE], a carrier may buy, sell, or trade with another carrier a slot that was subject to a lease or short-term trade under the Order limiting operations at JFK, Order limiting operations at EWR, or Order limiting
(g) Requests for FAA approval for transfers under this section must be submitted in writing by all parties to the transaction to the FAA Slot Administration Office in a manner acceptable to the Administrator. Requests must provide the names of the transferor and recipient; business address and telephone number of the person representing the transferor and recipient; whether the slot is to be used for an arrival or departure; and the slot designation of the slot as described in § 93.41(j).
(h) The request for FAA approval also must include the final terms of the transaction including:
(1) The names of all parties to the transaction;
(2) The consideration offered by each party;
(3) The names of all bidders and consideration offered by each bidder, if applicable;
(4) The effective date of the transfer; and
(5) The length of the lease, if applicable.
(i) Prior to approving the transfer, the FAA will confirm the transferred slots come from the transferor's FAA-approved slot holdings and that no transfer limitations apply.
(j) The Secretary may review the final terms of the transaction for any anti-competitive effects or adverse public interest effects under § 93.47. The FAA may not approve the transfer until the Secretary notifies the FAA of the Secretary's approval or non-objection or the 14-day notice period under § 93.47(b) elapses.
(k) The slot may not be used by the transferee until the conditions of this section have been met, and the FAA provides notice of its approval of the transfer.
(a) Except as otherwise provided in this subpart, a carrier may buy, sell, or lease a slot to another carrier for currency only and for any time period, and a carrier may trade a slot with another carrier for a slot at any U.S. or foreign slot-controlled airport.
(b) Except as permitted under paragraphs (c), (d), (e), and (f) of this section, a carrier must provide notice to the FAA four months before its intended transaction date of its intent to transfer a slot. The notice of intent to transfer must include the slot number and time, effective date of the transfer, and, if applicable, the duration of the lease. The FAA will post a notice of the offer to transfer the slot and relevant details on the FAA Web site at
(c) A carrier may trade a slot with another carrier on a one-for-one basis without providing notice to the FAA under paragraph (b) of this section provided the request for FAA approval also includes a certification by both carriers that no consideration or promise of consideration was provided by either party to the trade.
(d) A carrier may lease a slot to another carrier without notice to the FAA under paragraph (b) of this section provided the lease is effective for no longer than two scheduling seasons.
(e) Carriers with agreements where one carrier operates solely under the other's marketing control may transfer a slot with another party subject to that agreement without notice to the FAA under paragraph (b) of this section provided the request for FAA approval also includes a certification of that agreement by both carriers.
(f) Prior to [90 DAYS AFTER EFFECTIVE DATE], a carrier may buy, sell, or trade with another carrier a slot that was subject to a lease or short-term trade under the Order limiting operations at JFK, Order limiting operations at EWR, or Order limiting operations at LGA without notice to the FAA under paragraph (b) of this section.
(g) Requests for FAA approval for transfers under this section must be submitted in writing by all parties to the transaction to the FAA Slot Administration Office in a manner acceptable to the Administrator. Requests must provide the names of the transferor and recipient; business address and telephone number of the person representing the transferor and recipient; whether the slot is to be used for an arrival or departure; and the slot designation of the slot as described in § 93.41(j).
(h) The request for FAA approval also must include the final terms of the transaction including:
(1) The names of all parties to the transaction;
(2) The price offered by each bidder;
(3) The effective date of the transfer; and
(4) The length of the lease, if applicable.
(i) Prior to approving the transfer, the FAA will confirm the transferred slots come from the transferor's FAA-approved slot holdings and that no transfer limitations apply.
(j) The Secretary may review the final terms of the transaction for any anti-competitive effects or public interest effects under § 93.47. The FAA may not approve the transfer until the Secretary notifies the FAA of the Secretary's approval or non-objection or the 14-day notice period under § 93.47(b) elapses.
(k) The slot may not be used by the transferee until the conditions of this section have been met, and the FAA provides notice of its approval of the transfer.
A carrier that operates solely under the marketing control of another carrier may operate the other carrier's slots without transferring the slots provided that:
(a) The marketing carrier is responsible for ensuring that there are slots assigned for the planned operations of the carrier under its marketing control. The marketing carrier must submit information in advance to the FAA Slot Administration Office, at least on a seasonal basis, detailing the airport, carrier, marketed and operational flight number ranges, and effective dates.
(b) The marketing carrier must submit changes throughout the reporting period.
(c) The marketing carrier is responsible for submitting the usage reports required under § 93.44.
(a) The Secretary may review a standalone slot transfer transaction conducted under § 93.45, to determine adverse public interest and/or anti-competitive effects, as described in 49 U.S.C. 40101(a). Small transactions of fewer than 8 slots in total or transfers extending for 2 or fewer seasons) would not be subject to review under this section. However, the Secretary may consider multiple transactions within a three-year period as constituting a single aggregate transaction, including transactions that involve the transfer of slots to carriers under the marketing or operational control of a single entity.
(b) The following procedures are used when conducting a review for public interest or competitive factors under paragraph (a) of this section.
(1) Within 14 days of receiving from the FAA the final terms of a transaction under § 93.45, the Secretary will notify
(2) After receiving notice of a slot transfer under § 93.45, the FAA may not approve the transaction without further notice from the Secretary.
(3) If the Secretary does not notify the parties and the FAA within 14 days of the intent to request and evaluate additional information, the FAA may approve the transaction.
(c) The procedures for objections to public disclosure of information at 14 CFR 302.12 do not apply to information submitted to the DOT under paragraphs (a) or (b) of this section. Any person seeking confidential treatment for information submitted to the DOT under paragraphs (a) or (b) of this section must clearly designate the information for which confidential treatment is sought by including appropriate markings on each page of the submission. The DOT will not disclose such designated information to the public, except as required under the Freedom of Information Act, 5 U.S.C. 552, and pursuant to the procedures in 49 CFR part 7.
(d) Nothing in this section limits the authority of the Secretary to investigate and prohibit any unfair or deceptive practice or an unfair method of competition, as provided by 49 U.S.C. 41712.
(a) During the slot-controlled hours, no person may operate an aircraft other than a helicopter to or from JFK, EWR, or LGA unless he or she has received, for that unscheduled operation, a reservation that is assigned by the ARO or, in the case of certain public charters, in accordance with the procedures in paragraph (d) of this section. The FAA will accept requests for reservations through the e-CVRS beginning 72 hours prior to the proposed time of arrival to or departure from the respective airport. Additional information on procedures for obtaining a reservation is available on the Internet at
(b) Reservations, including those assigned to certain public charter operations under paragraph (d) of this section, will be available to be assigned by the ARO on a 60-minute basis as follows:
(1) At JFK, two reservations per hour during the slot-controlled hours.
(2) At EWR, one reservation per hour during the slot-controlled hours.
(3) At LGA, three reservations per hour during the slot-controlled hours.
(c) The ARO will receive and process all reservation requests for unscheduled arrivals and departures and assign reservations on a first-come, first-served basis determined by the time the request is received by the ARO.
(d) One reservation per hour at LGA and two reservations per day at JFK and EWR will be available for assignment to certain public charter operations prior to the 72-hour reservation window in paragraph (a) of this section.
(1) A public charter operator may request a reservation up to six months in advance of the date of the flight operation for a planned individual operation or a series of operations occurring fewer than 3 times per month. Reservation requests must be submitted to the Federal Aviation Administration, Slot Administration Office, AGC-200, 800 Independence Avenue SW., Washington, DC 20591. Requests may be made via facsimile at (202) 267-7277 or by email at
(2) The public charter operator must certify that its prospectus has been accepted by the Department of Transportation in accordance with 14 CFR part 380.
(3) The public charter operator must identify the call sign/flight number or aircraft registration number of the direct air carrier; the date and time of the proposed operation; the airport served immediately prior to or after JFK, EWR, or LGA; aircraft type; and the nature of the operation (
(4) A series of operations occurring more than 3 times per month is required to have a slot allocated by the FAA as provided in § 93.37.
(5) If all reservations available under paragraph (d)(1) of this section have been assigned, the public charter operator may request a reservation under paragraph (a) of this section.
(e) The filing of a request for a reservation does not constitute the filing of an IFR flight plan as required by regulation. The IFR flight plan may be filed only after the reservation is obtained, must include the reservation number in the “Remarks” section, and must be filed in accordance with FAA regulations and procedures.
(f) Air Traffic Control will accommodate declared emergencies without regard to reservations. Non-emergency national security, law enforcement, military, public aircraft, or other similar mission-critical operations may be accommodated above the reservation limits with the prior approval of the Vice President, System Operations Services, Air Traffic Organization. Procedures for obtaining the appropriate waiver will be available on the Internet at
(g) Notwithstanding the limits in paragraph (b) of this section, if conditions are favorable, and significant delay is unlikely, the FAA may determine that additional reservations may be accommodated for a specific time period. Unused slots also may be made available temporarily for unscheduled operations. Reservations for additional operations must be obtained through the ARO.
(h) No reservations may be bought, sold, or leased.
(i) A Reservation must be canceled if it will not be used as assigned.
(a) Each of the following airports is designated as a high density traffic airport and, except as provided in § 93.129 and paragraph (b) of this section, or unless otherwise authorized by ATC, is limited to the hourly number of allocated IFR operations (takeoffs and landings) that may be reserved for the specified classes of users for that airport:
(b) * * *
(4) The allocation of IFR reservations for air carriers except commuters at Ronald Reagan Washington National Airport does not include extra sections of scheduled flights. The allocation of IFR reservations for scheduled commuters at Ronald Reagan Washington National Airport does not include extra sections of scheduled flights. These flights may be conducted without regard to the limitation upon the hourly IFR reservations at those airports.
(a) This subpart prescribes rules applicable to the allocation and withdrawal of IFR operational authority (takeoffs and landings) to individual air carriers and commuter operators at the High Density Traffic Airports identified in subpart K of this part.
(b) Separate slot pools shall be established for air carriers and commuter operators at each airport. The FAA shall assign, by random lottery, withdrawal priority numbers for the recall priority of slots at each airport. Each additional permanent slot, if any, will be assigned the next higher number for air carrier or commuter slots, as appropriate, at each airport. Each slot shall be assigned a designation consisting of the applicable withdrawal priority number; the airport code; a code indicating whether the slot is an air carrier or commuter operator slot; and the time period of the slot. The designation shall also indicate, as appropriate, if the slot is daily or for certain days of the week only; is limited to arrivals or departures; and is allocated for international operations or for EAS purposes.
(a) * * *
(3) For Ronald Reagan Washington National Airport:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
This final rule requires each air carrier operating under 14 CFR part 121 to develop and implement a safety management system (SMS) to improve the safety of its aviation-related activities. SMS is a comprehensive, process-oriented approach to managing safety throughout an organization. SMS includes an organization-wide safety policy; formal methods for identifying hazards, controlling, and continually assessing risk and safety performance; and promotion of a safety culture. SMS stresses not only compliance with technical standards but also increased emphasis on the overall safety performance of the organization.
This final rule becomes effective March 9, 2015.
Scott Van Buren, Chief System Engineer for Aviation Safety, Office of Accident Investigation and Prevention (AVP), Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 494-8417; facsimile: (202) 267-3992; email:
The Federal Aviation Administration's (FAA) authority to issue rules on aviation safety is found in Title 49 of the United States Code. This rulemaking is promulgated under the authority described in 49 U.S.C. 106(f), which establishes the authority of the Administrator to promulgate regulations and rules and 49 U.S.C. 44701(a)(5), which requires the Administrator to promulgate regulations and minimum standards for other practices, methods, and procedures necessary for safety in air commerce and national security.
In addition, the Airline Safety and Federal Aviation Administration Extension Act of 2010 (the Act), Public Law 111-216, sec. 215 (August 1, 2010), required the FAA to conduct rulemaking to “require all 14 CFR part 121 air carriers to implement a safety management system.” The Act required the FAA to issue this final rule within 24 months of the passing of the Act (July 30, 2012).
This final rule requires air carriers authorized to conduct operations under 14 Code of Federal Regulations (CFR) part 121 (part 121) to develop and implement a safety management system (SMS) to improve the safety of their aviation-related activities. SMS includes an organization-wide safety policy; formal methods for identifying hazards, controlling, and continually assessing risk; and promotion of a safety culture. When systematically applied, SMS provides a set of decision-making tools that air carriers can use to improve safety. SMS improves safety by addressing underlying organizational issues that may result in accidents or incidents.
This final rule is part of the FAA's efforts to continuously improve safety in air transportation by filling gaps through improved management practices. SMS's proactive emphasis on hazard identification and mitigation, and on communication of safety issues, will provide air carriers with robust tools to improve safety. Congress, in the Airline Safety and Federal Aviation Administration Extension Act of 2010 (Pub. L. 111-216, August 1, 2010), directed the FAA to issue a notice of proposed rulemaking within 90 days of enactment, and a final SMS rule by July 30, 2012. In addition, the National Transportation Safety Board (NTSB) has recommended the FAA pursue rulemaking to require all part 121 operators to implement an SMS. Further, the International Civil Aviation Organization (ICAO), in its March 2006 amendments to Annex 6 part I, which addresses operation of airplanes in international commercial air transport, established a standard for member states to mandate that each air carrier establish an SMS. This regulation will comply with the statutory requirement, fully address the NTSB recommendation, and harmonize U.S. requirements with ICAO standards for air carriers operating under part 121.
While the commercial air carrier accident rate in the United States has decreased substantially over the past 10 years, the FAA has identified a recent trend involving hazards that were revealed during accident investigations. The FAA's Office of Accident Investigation and Prevention identified 123 accidents involving part 121 air carriers from fiscal year (FY) 2001 through FY 2010 for which identified causal factors could have been mitigated if air carriers had implemented an SMS to identify hazards in their operations and developed methods to control the risk.
The requirements in this rule function as follows. Air carriers authorized to conduct operations under part 121 must develop and implement an SMS within 3 years of the effective date of the final rule. To demonstrate that the air carrier's SMS will be fully implemented by the end of this three-year period, the air carrier will be required to submit an implementation plan within 6 months of the effective date of the final rule. The implementation plan should include any existing programs, policies or procedures the air carrier intends to include in its SMS, such as continuing analysis and surveillance systems, aspects of quality management systems, and employee reporting systems. This implementation plan must be approved by the FAA within 12 months of the effective date of the final rule.
The air carrier's SMS must contain the following four major components: Safety policy, safety risk management, safety assurance, and safety promotion. To satisfy the safety policy component, the air carrier must establish a policy which, among other things, defines the air carrier's safety objectives and commitment toward achieving those objectives. The air carrier will also be required to designate an accountable executive who is ultimately responsible for the safety performance of its operations, as well as sufficient management personnel who will be responsible for the coordination, implementation, and maintenance of the SMS, as well as integration of SMS processes across the air carrier.
Under safety risk management, air carriers must develop processes to analyze existing and potential systems and use the resulting system analyses to identify hazards that may impact the air carrier's aviation operations.
Through safety assurance, the air carrier will develop and implement processes to monitor the safety performance of its aviation operations. The processes must include means to monitor and audit operational processes, investigate incidents and accidents, and allow for confidential employee reporting of hazards as well as proposing solutions for safety improvement. The air carrier will also conduct evaluations regarding its safety performance to review the effectiveness of risk controls that are implemented as well as to identify any changes in the operational environment that may introduce new hazards.
Under safety promotion, air carriers will be required to train their employees (including managers) and develop the tools to communicate necessary safety information. Involvement of the air carriers' employees is essential to the success of its SMS. The employees must be properly informed of their responsibilities and trained regarding their duties relevant to the safety performance of the air carrier. In addition, they must be made aware of necessary safety information resulting from the various SMS analyses.
This rule requires part 121 air carriers (domestic, flag, and supplemental operations) to establish an SMS. SMS is a tool designed to help air carriers effectively integrate formal risk control procedures into normal operational practices to improve safety for all part 121 air carriers. It is expected that the requirements of the rule will help airlines to identify safety problems, and if airlines take steps to mitigate these problems it is estimated that the benefits from that mitigation could be between $205.0 and $472.3 million over 10 years ($104.9 to $241.9 million present value at 7 percent discount rate). Costs of the rule's provisions (excluding any mitigation costs, which have not been estimated) are estimated to be $224.3 million ($135.1 million present value at 7 percent discount rate) over 10 years.
On November 5, 2010, the FAA published a notice of proposed rulemaking (NPRM) on SMS for part 121 certificate holders (75 FR 68224). In the NPRM, the FAA proposed to require these certificate holders to develop and implement an SMS to improve the safety of their aviation related activities. In response to several commenters' requests, the comment period was extended and ultimately closed on March 7, 2011.
The FAA received 69 comment documents in response to the NPRM from a variety of commenters, including air carriers, aircraft designers and manufacturers, trade associations, emergency medical transport services, a non-profit safety organization, a university, and private citizens. Commenters included Aerospace Industries Association (AIA)/General Aviation Manufacturers Association (GAMA), Air Charter Safety Foundation (ACSF), Aircraft Electronics Association (AEA), Aircraft Owners and Pilots Association (AOPA), Air Line Pilots Association, International (ALPA), Air Medical Operators Association (AMOA), Air Transport Association of America, Inc.
The FAA is adopting the final rule, as proposed, with minor modifications based on the comments discussed below. The rule requires part 121 certificate holders to submit a plan for implementation of SMS and fully implement an SMS within 3 years of the effective date of the final rule.
The SBA raised concerns about the scalability of this rule and its impact on small business entities. The SBA, along with True-lock, AEA, MARPA, and ASA, indicated that this rule would be too costly for small businesses to implement. The SBA suggested limiting the final rule to incident management, strategic decision-making, and notification of incidents to the FAA.
The FAA has decided not to limit this rule as suggested by the SBA because adopting the SBA's proposal would only partially enact the safety assurance component and none of the other requirements that the FAA considers to be necessary for an effective SMS. The four parts of an SMS (safety policy, safety risk management, safety assurance, and safety promotion) work together to stress management accountability and decision-making based on forward looking hazard identification and mitigation of risks, rather than a retrospective review of conditions that have already caused accidents and incidents. The four components working together provide the tools necessary to allow strategic decision-making.
However, the FAA recognizes the perceived impact that this rule may have on small businesses. As of January 6, 2012, there were 90 part 121 certificate holders. The size, scope, and complexity of the operations of each of these certificate holders vary greatly. For example, a third of the part 121 certificate holders have 10 or fewer airplanes, while 10% have more than 270 airplanes.
Given the variance in these types of operations, the FAA designed these requirements to be applicable to air carriers of various sizes, scopes, and complexities, as well as adaptable to fit the different types of organizations in the air transportation system and operations within an individual air carrier. The FAA does not anticipate, nor expect, that small air carriers would require an SMS as complex as one for large air carriers. To further clarify this issue, the FAA has revised 14 CFR 5.3 in the final rule to state that the SMS must be appropriate to the size, scope, and complexity of the certificate holder's operations. As such, it is scalable to the size of a small entity.
The FAA has also revised the guidance material that was published for comment with the NPRM. The revised guidance material provides a variety of examples of how to implement the SMS processes and procedures that an air carrier may develop based on the size, scope, and complexity of its operation. The examples outlined in the guidance material are not intended to limit an air carrier to only these methods of compliance. The following outlines different approaches, based on processes and procedures developed by air carriers participating in the Flight Standards Service (AFS) Voluntary SMS Pilot Project (“Pilot Project”), which may be adapted to fit the operational needs of an air carrier based on the size of its operation.
Larger air carriers participating in the Pilot Project typically use their existing divisional structures as a foundation for SMS management. The flight safety organization or equivalent provides a source of standardization, oversight, and reporting directly to a corporate accountable executive. Each division typically establishes a management review process with a committee chaired by the most senior manager (generally a senior vice president) in the division. This senior manager may be one of the management personnel that is already required of an air carrier conducting operations under part 121 under 14 CFR 119.65. These committees are most often supported by a staff-level working group that attends to day-to-day safety management functions, and advises the senior management committee. These working groups are usually made up of existing safety and quality assurance personnel, along with representatives from the functional areas within the division. They are, in turn, supported by the members of the flight safety organization which may also manage corporate level data management and analysis functions. To provide coordination and integration across the air carrier, most large air carriers have a corporate level committee made up of the division managers and including the most senior managers in the air carrier (
Using this framework, a large air carrier has established a team of sufficient management personnel responsible for the daily oversight of SMS and communication to the accountable executive, to ensure that informed decisions regarding the safety performance of the air carrier's operations are being made. This existing framework can be used to satisfy the management structure requirements in this final rule.
At medium size air carriers, the decision making and information process flows are similar to those of larger air carriers, but the supporting functions are often integrated under the Director of Safety. These structures are similar to what are traditionally used to accomplish the requirements of an independent evaluation program (IEP), which most part 121 air carriers already have in place.
At small air carriers, there will likely not be the multiple tiers of decision making and structures that exist in larger air carriers. For small air carriers, convening ad hoc committees might be an appropriate SMS mechanism. In these cases, the Director of Safety may be the sole support staff available. Using the Director of Safety in this capacity
Another example of scalability stems from management's need for continued access to information about the air carrier's operational processes. Larger air carriers may, as part of safety assurance, have full time safety and quality auditors who conduct internal audits, or, particularly in smaller divisions, these audits may be performed by personnel from inside the divisions as collateral duties. In addition, automated data entry, record keeping, retrieval, and analysis are nearly universal at larger air carriers. Software may be developed by or for the air carrier, or may be selected from a variety of specialty safety and quality system software providers. Larger air carriers typically also have specialized information technology (IT) staffs that may be used to monitor and complete the recordkeeping requirements of the final rule.
Managers of medium to small air carriers certainly need the same type of information to make decisions. Typically, though, the volume of information is smaller because the operation is smaller and not as complex. The frequency of the air carrier's operations may also affect the rate at which information must be updated and audits must be conducted. Medium and small air carriers often purchase uniform software packages sold by third parties rather than invest in custom-built packages that require hiring in-house staffers to implement, design, and maintain the software. Very small air carriers may use basic desktop software (
Another example of the scalability of SMS can be seen in the employee reporting system required by this rule. The FAA anticipates that smaller air carriers will have to deal with significantly fewer reports from the employee reporting system than larger air carriers. Also, larger air carriers are more likely to satisfy this requirement through one or more aviation safety action programs' (ASAP) employee group applications. These systems for large employee groups might be more costly than the minimum requirements imposed by this rule. ASAP is an employee reporting system that air carriers may use to gather information from employees on safety compliance and performance issues. Approximately two-thirds of air carriers conducting operations under part 121 have implemented some type of ASAP program. While ASAP originally was limited to pilots and flight engineers, some air carriers have expanded the program to include their flight attendants, dispatchers, and mechanics; and one air carrier has an ASAP for ground service personnel.
To further ensure that the SMS is scaled to fit the needs of the air carrier's operations, the FAA recommends each air carrier evaluate its existing management systems and regulatory compliance programs and then incorporate those systems and programs that exemplify the key components of SMS as appropriate. The FAA designed the final rule to allow for this flexibility. The FAA acknowledges that many air carriers already have quality management systems (QMS) and other processes currently in place to monitor performance of their operations. In addition, some current regulatory and voluntary programs, like the continuing analysis and surveillance system (CASS) and ASAPs, can be incorporated into the SMS and used to meet the safety assurance requirements of the final rule. Incorporating those existing systems that already meet the performance objectives of this rule will only serve to expedite an air carrier's implementation of SMS, and allow for a smoother transition for employees expected to participate in the air carrier's SMS because of their familiarity with their employers' existing systems.
In addition to the flexibility incorporated in the final rule and the ability to leverage existing processes to meet SMS requirements, the FAA has offered a tool to air carriers that will facilitate SMS implementation and data management. It is important to note that this rule does not specifically require automated information technology systems. However, several SMS processes will require management of varying amounts of data, depending on the size and complexity of the air carrier's organization. Currently, air carriers have free access to the FAA's web-based application tool (WBAT) to assist in satisfying the data collection and management aspects of the final rule. WBAT is a federally developed and funded software system that may be used to assist the air carriers with data management.
WBAT began as an ASAP and incident reporting tool. Its use was expanded to contain functions that more broadly support SMS. Specifically, WBAT currently has modules that support the data management needs of safety risk management and safety assurance functions (
While the FAA is not requiring air carriers to use WBAT, it is one option that is available and it reduces the costs of developing and implementing a separate platform. The FAA has made a commitment to continue to support WBAT for basic services as a result of the comments submitted to the NPRM.
ATA, AIA/GAMA, and Delta asserted that the rule was too broad and could be applied to areas beyond the FAA's oversight authority. To address this issue, the commenters suggested revising the final rule to limit the SMS to those areas of a certificate holder's business that have a direct operational impact on aviation activities.
To address the commenters' concerns regarding the FAA's oversight of SMS, the FAA has incorporated the suggestions of the commenters to limit that oversight to the air carrier's aviation activities conducted under part 121. While some air carriers may narrowly tailor their SMS to address only these activities, the FAA acknowledges that some air carriers may opt to extend their SMS to other aviation related activities for which they hold certificates, such as 14 CFR part 145 (part 145) repair station activities, or 14 CFR part 142 training center activities. Some air carriers might also extend their SMS to their non-aviation related activities, such as security and occupational safety and health issues. If an air carrier elects to do so, the FAA would only conduct
The FAA also limited the scope of SMS, in part, by defining hazard more narrowly. There were thirteen comments related to the definition of “hazard.” U.S.C. stated that the definition of hazard should be expansive enough to include non-operational elements (
Upon review of the comments, the FAA recognizes that the scope of the hazard and risk analysis and control processes required of the SMS must be consistent with the FAA's statutory authority and the intended scope of the SMS. Therefore, the FAA has amended the definition of “hazard” to limit it to a “condition that could foreseeably cause or contribute to an aircraft accident as defined in 49 CFR 830.2.” This definition more clearly limits the potential events to be considered to those directly related to aircraft operations and the potential severity of those events to aircraft accidents, which is consistent with the FAA's statutory authority in 49 U.S.C. 44702. The FAA definition, though it is tailored specifically to aviation, is consistent in intent and application with long standing industry system safety definition and practice. The revised definition also incorporates the NTSB's definition of “aircraft accident,” as provided under 49 CFR 830.2. According to 49 CFR 830.2, an “aircraft accident” means an occurrence associated with the operation of an aircraft which takes place between the time any person boards the aircraft with the intention of flight and all such persons have disembarked, and in which any person suffers death or serious injury, or in which the aircraft receives substantial damage.
AMOA, AOPA, ASA, ATA, Boeing, Bombardier, CAA, EAA, FedEx, GE, HAI, JetBlue, MARPA, NACA, UTC, and RAA all raised concerns that if SMS data is not protected from disclosure under FOIA, the FAA's oversight over SMS could be compromised due to a lack of data being submitted to the FAA. ATA and GE, while supporting the FAA's approach in the NPRM to not require the physical submission of any data, asserted that this is not adequate protection. These commenters indicated that protection of this data is vital to ensuring this information is shared with the FAA.
Exposing submitted safety data to public scrutiny may have a chilling effect on reporting practice. ATA acknowledged that this information should be shared only with the FAA. JetBlue suggested the FAA develop a 14 CFR part 193 (part 193) protection order, extending the same protections to SMS data that currently exist for ASAP, the Flight Operational Quality Assurance Program (FOQA), the Line Operations Safety Audit (LOSA), etc. AAJ opposed the protection of information beyond existing FOIA protections because of the impact the protection may have on the ability to gather information during discovery processes.
The FAA recognizes that protection of certain safety information is vital to ensuring that employees and air carriers provide sufficient data to the FAA to ensure effective oversight over SMS. Section 44735 of title 49 of the United States Code, as amended by the FAA Modernization and Reform Act of 2012, Public Law 112-95 (Feb. 14, 2012), specifically contemplates the protection of voluntarily submitted reports, data, or other information produced or collected for purposes of developing and implementing a safety management system acceptable to the Administrator. It is important to note, however, such protection could not be afforded to information that is required to be kept to satisfy compliance with other regulatory requirements, such as crewmember training records or maintenance service records.
To further clarify the extent of protection that may be afforded under the statute, the FAA notes that any record or other documentation that is required to show compliance with other regulatory requirements would not be protected. Protection also would not extend to records that must be made available under the provisions of 14 CFR 119.59. Furthermore, any information protected under the statute is only protected from release by the FAA. If the information is submitted or released by the air carrier to another government entity, the protections of the statute are not binding on these other entities. Nor are these documents necessarily protected from discovery in civil litigation, although the carrier would be free to ask the court for whatever protections would be appropriate under the rules of the relevant jurisdiction.
ACSF, AEA, and DTI Training raised concerns about the manner in which the FAA plans to enforce the requirements of the new rule and address issues of noncompliance identified through SMS policies and procedures. ACSF recommended that the FAA publish its plan for compliance and enforcement, and provide industry the opportunity to comment.
In regard to enforcement of the provisions of 14 CFR part 5 (part 5), the FAA acknowledges that each SMS will be uniquely designed to meet the needs of that air carrier's operations. Determining compliance with the requirements of part 5 will be dependent on the specific facts of each case. As such, the FAA will exercise its discretion in deciding to pursue enforcement of the requirements of part 5.
The FAA also recognizes that a fundamental concept of SMS is for air carriers to identify and correct their own instances of noncompliance and invest resources and efforts to preclude their recurrence. This concept is not new to FAA enforcement policy. Many air carriers are currently addressing these issues under the voluntary disclosure reporting program (VDRP). When an apparent violation is detected through SMS processes and procedures, the FAA encourages air carriers to use VDRP as appropriate to disclose the violation.
AOPA, ASA, MARPA, NATA, SBA, and True-Lock raised concerns that the FAA could use SMS to extend regulatory requirements without going through notice and comment rulemaking as required under the Administrative Procedure Act (APA), 5 U.S.C. 552. Specifically, concerns were
This issue is not unique to SMS. Many regulations impose performance requirements that may be met in different ways. For example, certificate holders are required under 14 CFR 121.135 to develop and document certain procedures, methods, and instructions to personnel. This provision sets forth areas that must be addressed by these procedures, but does not prescribe the exact procedures that must be incorporated into the certificate holders' manuals. This discretion is evident in the requirement of 14 CFR 121.135(b)(15), which requires the manual to include “procedures for operating in periods of . . . potentially hazardous meteorological conditions.” As the regulation does not establish a prescriptive, exclusive list of hazardous meteorological conditions for which procedures must be developed, the certificate holder must identify those conditions that are likely to impact its operation and address them appropriately in its manual. If these procedures are incorporated in the certificate holder's required manual, the certificate holder must ensure compliance with the procedures it develops and documents in its manuals.
A practical outcome of the safety risk management and safety assurance components of SMS is that procedures developed and documented under 14 CFR 121.135 may need to be revised, or new procedures added, to mitigate risk from identified hazards. It is not the intent of this rulemaking to alter the existing regulatory standards or the approval and acceptance processes that already apply to each certificate holder.
In some instances, the FAA may determine that a particular mitigation is necessary for all certificate holders based on the identification of a system-wide hazard. If the FAA identifies the need for such mitigation, the FAA would conduct rulemaking in accordance with the APA in order to apply the standard to all certificate holders.
ACSF, EAA, and NATA raised concerns about the different set of SMS requirements for airports and suggested combining these two rulemaking actions into one to ensure consistency. ASA and MARPA asserted that the FAA should not create a general part 5, but rather should incorporate the proposed requirements into a new subpart for part 121. This would allow for SMS requirements to be tailored to each specific part to address technical issues that are unique to the regulated entities.
As stated in the NPRM, the FAA developed the framework of the rule as a means of harmonizing with ICAO standards, while establishing a uniform standard that could be extended to apply to 14 CFR part 135 (part 135) certificate holders, part 145 repair stations, and design and manufacturing entities. The uniform standard is necessary because some of these regulated entities may hold more than one FAA certificate and may need or want to create one SMS to encompass all of their aviation-related activities. The general standards set forth in part 5 would permit such integration with only minor modifications. Any extension of the applicability of part 5 required by the FAA will be made through the APA notice and comment rulemaking process.
In regard to the separate standards for airports, the FAA notes that both SMS rules are structured in accordance with the ICAO SMS framework, which is identical in Annex 6 (air operators) and Annex 14 (airports). However, the FAA recognizes that there are inherent differences in the operation of an airport and an air carrier. Based on a review of these differences, the FAA determined that the rulemakings should proceed as separate projects.
Although there may be two separate regulations addressing SMS, the FAA encourages air carriers and airports to communicate with one another when hazards are identified through their respective SMS procedures and processes. In that way, they can determine which SMS may best address the hazard. For example, if an air carrier's employee identifies a hazard on the movement area of the airport, the air carrier's employee would likely report the hazard through the air carrier's employee reporting system. Once reported, the FAA recommends that the air carrier notify the airport of the identified hazard so the airport is aware of the issue and can analyze the risk accordingly. In addition, the air carrier may also analyze the risk of the hazard and determine if it warrants any sort of mitigation through the revision or further development of the air carrier's procedures. This type of communication will serve to ensure that hazards, whether unique to the certificate holder or more systemic to the airport, are being addressed effectively by all parties.
ATA, Delta, NACA, and StandardAero suggested grandfathering in the participants in the Pilot Project, or otherwise providing credit for their progress in developing and implementing an SMS based on the framework set forth in AC 120-92A. Delta requested additional guidance for those certificate holders transitioning from the levels of validation in the Pilot Project to satisfying the requirements of part 5. In addition, ASA and StandardAero requested that they receive credit for third party systems that are similar to SMS that they have implemented, such as QMS, IEP, or International Standard for Business Aircraft Operations (IS-BAO).
The FAA developed the requirements in the NPRM based on the ICAO SMS framework in Annex 6 and the guidelines for developing a voluntary SMS described in AC 120-92A, Appendix I. Despite the attempt to harmonize the proposed regulatory standards with the ICAO framework and guidance material, there may be some differences between what the air carriers have done in the Pilot Project and what would be required under part 5 once the rule becomes effective. Rather than exempt the Pilot Project participants from the requirements of part 5, the FAA believes that these air carriers would benefit from reviewing their existing implementation plans, and comparing the plans with the final rule. If gaps are found, the carriers would update the implementation plans to fill the gaps identified and submit their plans to the FAA for approval to satisfy the requirements of 14 CFR 5.1(b).
Some air carriers completed SMS implementation through the Pilot Project under the framework of AC 120-92A and their SMS has been validated by the FAA. To comply with the implementation plan requirements of 14 CFR 5.1(b), these air carriers will need to conduct a gap analysis of the systems currently in place under their SMS and the requirements of the final rule, and identify any gaps that will need to be addressed to bring their existing SMS into compliance with the requirements of the final rule. However, they may not have to repeat the entire gap analysis and planning process in areas where there are no differences between the final rule and Pilot Project guidance.
In regard to the request for credit for implementation of third party systems, like International Air Transportation Association (IATA) Operational Safety Audit (IOSA), International Standards
These third-party systems may be incorporated into an air carrier's SMS if the systems satisfy the requirements set forth in the final rule. If an air carrier plans to incorporate these other systems into its SMS, the air carrier should outline the incorporation of these systems in its implementation plan. Given these avenues for incorporating existing processes and procedures, the FAA has not revised the final rule to allow credit for Pilot Project participants, nor other air carriers who have implemented third-party SMS systems or other management tools.
ACSF, ATA, Bombardier, NACA, and RAA requested the timeframe for submission of the implementation plans be extended from 6 months to anywhere from 9 to 18 months. ASCA, ATA, Bombardier, FedEx, Omni Air, and RAA expressed concern with the FAA's ability to manage the 90 submissions it will receive, as well as the FAA's ability to establish a consistent process for review and acceptance of the plans. Bombardier, EAA, and RAA asserted that an extension of this time is needed because the FAA would not be held to a timetable for accepting the implementation plans. FedEx suggested the FAA consider a timetable of three months to approve the implementation plan, or, in the alternative, to simply accept the plan. ASCA, Bombardier, and FedEx requested that the time to submit and wait for the FAA to approve an implementation plan should not be included in the 3-year implementation timeframe.
In addition, ATA, AOPA, ASCA, and Bombardier indicated that three years was not adequate for carriers to develop and implement an SMS. In contrast, AFA, ALPA, NTSB, Omni Air, and SWA acknowledged that the proposed timeframes for implementation plan approval and SMS acceptance were reasonable.
The FAA notes that 24 of the part 121 certificate holders participating in the SMS Pilot Project have submitted an SMS implementation plan as part of the pilot project. The typical implementation plans received in the pilot projects indicated that full implementation of SMS could be achieved within three years. None of the participants indicated the need for more time during development of their plans. Because this timeframe is consistent with the comments received from AFA, ALPA, NTSB, Omni Air, and SWA, as well as the lessons learned from other Civil Aviation Authorities (CAAs), the FAA has determined that three years is an adequate timeframe for implementation of SMS.
However, upon review of the comments, the FAA has revised 14 CFR 5.3 to require submission of the implementation plan for review within 6 months of the final rule's effective date, and for approval of the plan no later than 12 months after the effective date of the final rule. As of January 11, 2012, 72 of the approximately 90 part 121 certificate holders are participating in the Pilot Project. Of these, 17 have completed implementation plans, which have been validated by the FAA. The average time for completing and receiving approval of these plans is approximately one year. Based on this average, the FAA expects that certificate holders will be able to meet this requirement. Certificate holders that already have a validated implementation plan through the Pilot Project will not be required to resubmit their original implementation plan for approval, but rather may submit an abridged analysis that identifies the areas in their existing implementation plans that need to be revised to comply with the new regulatory requirements. Many Certificate Management Teams (CMTs), which are the FAA field offices responsible for managing individual part 121 certificates, have been exposed to these implementation plans due to their work with the Pilot Project and, therefore, there should be no extended delays in reviewing and ultimately approving these plans. Accordingly, the FAA believes this timeframe is sufficient and will not cause undue burden on either the affected certificate holders or the FAA.
Pinnacle disagreed with the proposal to require implementation plans be approved. Due to the dynamic nature of the airline industry, Pinnacle asserts that these plans must be routinely modified to accommodate changes to an airline's organization or environment. If a plan requires approval, an airline would not be able to proceed with a change to a plan until the FAA reviewed and approved each change. Bombardier, while not objecting to the requirement to have the plans approved, recommended some minimum requirements for the content and level of detail for the implementation plan.
The FAA recognizes the dynamic nature of an air carrier's operations, and, thus, maintains that the SMS should be accepted rather than approved to allow the air carrier to make the necessary changes to address issues in its operations. However, to ensure that the SMS is properly developed within the required timeframe, some measure of additional oversight control is necessary. One of the foremost acknowledged sources of hazards is change in an air carrier's operation, and it is one of the principal reasons for special or expanded oversight by the FAA. The FAA, therefore, has not revised the requirement that the implementation plan must ultimately be approved. Any changes to the implementation plan and SMS will be documented and submitted to the FAA by the air carrier. If a modification is required, the FAA will provide additional guidance to the air carrier to ensure that the SMS remains in compliance with part 5 and is implemented within 3 years of the effective date of the final rule.
ATA suggested extending the effective date of the final rule because the proposed 60-day period is not sufficient time to review the rule and understand what is required to be in the implementation plan before the time for submission of the implementation plan begins to run. In contrast, AFA, NTSB, Omni Air, and SWA stated that the 60-day effective date was reasonable.
The FAA has determined that the 60-day effective date is appropriate. The changes to the final regulatory text are not significant and, again, more than 50% of the part 121 certificate holders already are engaged in developing and implementing an SMS. Therefore, the 60-day effective date is a reasonable timeframe for certificate holders to conduct their review of the final rule and initiate compliance.
Bombardier raised concerns that proposed 14 CFR 5.25 does not permit any flexibility for the certificate holder to delegate tasks to more than one executive or other management representatives as appropriate, based on the size and complexity of the organization. ATA recommended further clarifying the role of the accountable executive, and removing the requirement that the accountable executive be responsible for implementation of the SMS. ATA, NACA, and RAA asserted that this
As proposed, 14 CFR 5.25 defines both the accountable executive and the management personnel. The accountable executive must be a single, identifiable person having final authority and responsibility for the safety performance of the air carrier. This ensures that executive management is integrally involved in the oversight of the air carrier's safety performance. The FAA has not revised this requirement in the final rule.
To address the commenters' concerns about the accountable executive's responsibilities, the FAA has clarified the criteria and responsibilities set forth in 14 CFR 5.25. As prescribed, the accountable executive needs to be able to organize, direct, and control the air carrier's activities, as well as allocate resources to make safety controls effective. The accountable executive must also develop the documented safety policy proposed under 14 CFR 5.21, communicate the policy throughout the air carrier, and regularly review the safety policy and safety performance of the air carrier. The accountable executive must review safety information to assess the overall performance of the air carrier and make necessary changes.
Delta suggested that the involvement of a part 119 management position in the efficient working of an SMS must suffice as a required resource for the implementation of the SMS. Other commenters questioned the need to require only one management representative and suggested revising the rule to allow for the certificate holder to determine how to structure a management team responsible for monitoring the daily operation of the SMS.
Part 119 identifies various management personnel needed for an air carrier to function and maintain a certificate. The FAA does not believe it is necessary to restrict part 121 air carriers from using only the Director of Safety or another part 119 management personnel position to perform the duties specified in 14 CFR 5.25(c). The requirement to have a designated management representative was intended to ensure coordinated and consistent implementation of a fully integrated SMS throughout the air carrier's aviation related activities, as well as to provide adequate support for continued operation and maintenance of the SMS.
Upon review of the comments, it appears that either one person, or a combination of personnel, could perform the function of the management representative as proposed in the NPRM. The FAA does not expect that the accountable executive will always perform every day-to-day activity that the function of the management representative requires. As air carrier operations are diverse, one method of managing implementation and continued operation of an SMS cannot be exclusively defined. To do so may stifle innovation and creativity. Although a single management representative, designated by and reporting directly to the accountable executive, is conceptually the most direct means of establishing a point of responsibility for an integrated system, this does not represent the only means. Depending upon the size and complexity of the air carrier, the functions of the management representative or personnel may range between being a collateral duty of the accountable executive, to a team of representatives working under the guidance and coordination of a team leader who is responsible for the effectiveness of the team. Accordingly, the FAA has revised 14 CFR 5.25(c) to allow the air carrier to designate sufficient management personnel responsible for the coordination and implementation of the SMS.
Whatever structure is implemented by the air carrier, 14 CFR 5.25(c)(4) requires that these personnel regularly report to the accountable executive. Personnel designated to perform this function must be in positions in the organization of sufficient independence to have direct access to the accountable executive to report on the safety performance of the operation and recommend any necessary improvements.
AFA raised concerns that the line employees are not defined as having a key role in the decision-making process and that they are merely a reporting mechanism for the SMS. AFA asserted that these employees should also have input into the decision- making process.
For an SMS to be effective, input and active participation is essential from all levels of employees in an air carrier. Many air carriers have different decision-making processes, some of which include line employees. Roles that employees play within that air carrier's SMS must be identified and documented in the safety policy as described in 14 CFR 5.21. If line employees are identified to participate in safety boards, working groups or audit review teams, they must be trained to actively support the safety policy of the accountable executive as well as comply with all established organizational safety initiatives. Another aspect of SMS that requires line employee participation is the employee reporting system. The participation of line employees is critical in developing improvements in functions that directly impact their job tasks.
AIG, ASA, ATA, Boeing, GAMA, MARPA, Pinnacle, and RAA recognized the importance of SRM, but requested clarification regarding when the SRM processes and procedures are triggered and what constitutes a “system.” The commenters also suggested reorganizing 14 CFR 5.51, 5.53, and 5.55, to emphasize hazard identification and to eliminate system analysis.
The FAA has revised the regulatory text to clarify how safety analyses must be used under safety risk management. With regards to this rule, the term “system” is used to describe the operational components used to deliver aviation-related services. Systems may include hardware, software, people, procedures, resources, or functions directly related to the delivery of air transportation services. For example, a system would include, among others: The aircraft, the crewmembers, crew training, crewmember duty time tracking programs, dispatch functions, maintenance of the aircraft, fueling, servicing, and flight operations. The term “system” does not include those people, procedures, resources, hardware, and software that are not directly related to the delivery of air transportation services (
As part of the SRM process, air carriers need to consider the operational environment directly related to the delivery of air transportation services. The operational environment that should be considered includes not only
Regarding when SRM would be triggered, 14 CFR 5.51 (Applicability.) requires that the SRM process be applied under the following conditions: Planning for and implementation of new systems; revision of existing systems; development of operational procedures; or identification of hazards or ineffective risk controls through the safety assurance processes in subpart D of part 5. Some examples of these triggers are outlined below.
Changes to an air carrier's operation could include addition of new routes, opening or closing of line stations, adding or changing contractual arrangements for services, additions of new fleets or major modifications of existing fleets, addition of different types of operations such as extended-range operational performance standards operations, or a change in the software for operational systems such as flight planning and dispatch. Any of these additions or changes would trigger the use of the SRM process.
A further trigger for SRM would be cases when the safety assurance processes reveal hazards that have not been addressed or instances when the procedures that have been specified fail to control risk. For example, an air carrier might discover through employee reporting or internal auditing that procedures for loading data into the airplane flight management computer are confusing. This would result in action such as the air carrier modifying the procedures themselves or the training and checking process in use. In another example, an analysis of internal audits could reveal that a maintenance tracking and control program failed to identify required inspections, resulting in some of them being missed or overdue. In this case, the air carrier may decide that the program itself is defective and must be reengineered, again, requiring the application of SRM. These are just some examples of systems and triggers for the SRM processes of subpart C of the final rule.
RAA suggested that 14 CFR 5.53(c) include the requirement to track hazards. This practice would prevent hazards from being identified and recorded without further action. The FAA has reviewed this suggestion and determined that the purpose of the suggested revision is already met under the final rule. Subpart C, SRM, and Subpart D, Safety Assurance, work together such that identified hazards must be tracked in addition to being identified. Thus, the FAA has not adopted this suggested revision in the final rule.
AIG, ASA, ATA, Boeing, Cessna, GAMA, MARPA, Rockwell Collins, and U.S.C. agreed on the importance of safety assurance practices, but recommended the FAA clarify the applicability of safety assurance and the definition of “system” to mirror the definition of “system” for SRM. Boeing also suggested revising 14 CFR 5.71 and 5.73 to limit the scope of the SMS to the aviation-related activities of the company. In addition, Boeing, GAMA, MARPA, and Rockwell Collins recommended replacing the term “operation” with “system” because operation implies the activities of an air carrier, and would require modification if these provisions were extended to other types of operators in future rulemakings.
AIA/GAMA, Boeing, Cessna, and Rockwell Collins all questioned using the terms “continuous” and “periodic” in 14 CFR 5.71. The commenters asserted that the terms are ambiguous and do not establish a frequency for adequate monitoring. For example, one commenter stated that the continuous monitoring requirement could imply monitoring the system 24 hours a day, which could be burdensome.
Because different systems will require different monitoring processes, the FAA has removed the terms continuous and periodic from 14 CFR 5.71. Additional clarification of the monitoring requirements is also provided in the advisory material associated with this final rule. In regards to the suggestion to define the term system for safety assurance, the FAA has determined that such a definition would not be necessary in the regulatory text because the list in 14 CFR 5.71(a) provides the scope of safety assurance activities. Further, as stated in section J, the term “system” is used to describe the operational components used to deliver aviation-related services. Systems may include hardware, software, people, procedures, resources, and functions directly related to the delivery of air transportation services. The systems addressed by this rule do not include those elements that are not directly related to the delivery of air transportation services.
AIA/GAMA, Boeing, Bombardier, Omni Air, and Rockwell Collins asserted that the record keeping and documentation requirements for SMS are too prescriptive and onerous. ATA and Delta advocated the retention requirement be scalable and flexible according to the certificate holder's policy and that outputs of the SMS should be retained for as long as deemed necessary by the air carrier. EAA questioned the operational reason for mandating the retention of SMS records beyond existing industry standards and requirements. NATA requested clarification on the types of documents that must be maintained under the proposed standards.
Bombardier and Boeing suggested revising recordkeeping provisions in 14 CFR 5.97 to require certificate holders to maintain these records for 5 years. AIA/GAMA also supported a 5-year retention requirement for outputs of SRM processes. NACA acknowledged that the recordkeeping requirements were acceptable as proposed.
Neither the proposed rule text nor the preamble implies that an air carrier would have to undergo a complicated and expensive revamping of its organization to accommodate document and record retention requirements. The required records can be kept electronically or in paper format. For SRM outputs, the timeline associated with the retention of the documents must be scalable to the air carrier's operation. The outputs of SRM processes should be kept for as long as they remain relevant to the air carrier's operation to allow the air carrier to evaluate whether the controls put in place under SRM are effective and needed. Once the action that triggers the development of the control is no longer present in the air carrier's operation, the air carrier may determine that the records no longer need to be kept. Thus, it is important that the air carrier exercise discretion to determine how long SRM output records are kept.
Similarly, this rule requires a certificate holder to retain records of SMS-required training that is administered to the accountable executive, members of the certificate holder's management, and other employees for as long as the individual who received the training is employed by the certificate holder. Once the individual who received the training is no longer employed by the certificate holder, there is no longer a need for the certificate holder to retain these records.
The recordkeeping requirements associated with the safety assurance's processes and procedures serve a different purpose. The goal of safety assurance is to collect historical data on an operating system for analysis. The air carrier needs to have sufficient
ALPA asserted that an air carrier must exercise some oversight of those entities providing services to them and that the proposed rule would naturally have some flow down effect. ALPA asserted there should be a requirement to develop and document an avenue for the reporting of hazards from subcontractor field employees to the air carrier. This may include establishing a liaison that would communicate necessary safety information to the subcontractor and take corrective action as necessary.
RAA stated that, even though the FAA will not expand these existing requirements to entities other than certificate holders authorized to conduct operations under part 121, it can be expected that air carrier SMS programs will produce positive trickledown benefits to the operational safety of contractors. Under this scenario, air carriers will provide safety-enhancing guidance and oversight (at some level) to relevant elements of their contract service providers operations, and contractors will share information with the air carriers on the risks or safety trends that the contractors may from time to time identify.
Bombardier stated that it is expected that SMS regulated entities will determine what aspects of the SMS need to be passed on to non-regulated suppliers and pass those requirements along through business requirements. Inevitably, this will then result in additional burden on the regulated entities to provide support and increased oversight to ensure compliance of these suppliers, contractors and sub-contractors with these SMS related requirements. The SMS rule should be carefully constructed to allow those part 121 or 135 carriers to accept their part 145 certificated suppliers' SMS without deviation. Otherwise, inconsistent requirements will be passed on from different operators.
ASA and MARPA stated it is normal in the industry for air carriers and other certificate holders to flow-down their requirements to their suppliers, even without a regulatory requirement. For example, many certificate holders may decide to use their suppliers as data sources for their SMS (
NACA agreed, asserting that it is not necessary to require contractors or subcontractors to develop an SMS at this time. They should be permitted to let data flow into a part 121 carrier's program when handling their aircraft. This would add valuable information to SMS and produce a more comprehensive program.
AOPA strongly disagreed with the FAA's assessment and believed the FAA has greatly underestimated the trickle down implications for contractors and subcontractors of regulated certificate holders. The more functions a certificate holder contracts out, such as fueling, deicing, and pilot training, the more critical it is that the certificate holder include its contractors in its SMS process. Although the FAA is not seeking regulation of these contracted entities, AOPA asserted that FAA should not discount the potential effects of this proposed regulation on these entities. AOPA is concerned that this ripple effect would become even more apparent when the FAA expands the requirements of 14 CFR part 5 to encompass part 135 certificate holders.
Delta Air Lines did not see a significant impact or flow down effect of the development of SMS and its implications on vendors and contractors providing services to the operator. The comprehensive implementation in all levels of the organization has allowed the vendors and contractors to be assessed under the safety assurance component of its SMS and findings and observations are mitigated under a risk-based system documented and tracked according to the SMS requirements and SRM techniques.
Boeing said that the product/service provider should be allowed to determine the level of integration based on business needs and operational efficiency, without incurring undue compliance burden.
The SMS requirements of the rule are intended to be applied to individual air carriers. This rule does not require the air carrier to require SMSs on the part of contractors, code-share partners, or other business affiliates. This rule permits the use of contractors as a data source, but will not mandate this requirement. Associated policy and advisory documents will not specify or imply these requirements as conditions of acceptance. An air carrier may include SMS in its negotiated business arrangements, consistent with the common practice in industry where air carriers require registration under such programs as AS 9100, IOSA, and Coordinating Agency for Supplier Evaluation (C.A.S.E.) audits. Contractual requirements for arrangements do not relieve the air carrier from its responsibilities under this rule.
AIA/GAMA, AOPA, Hawker Beechcraft, JetBlue, Omni Air, and RAA asserted it is essential that the FAA develop and deploy appropriate training and guidance material for the inspector workforce involved in SMS assessment and oversight. Hawker Beechcraft and Omni Air questioned whether the FAA would be able to handle the significant surge in plan submissions as the deadline nears.
FedEx suggested that the FAA consider a process by which differences in interpretation, applicability, and direction between a carrier and the FAA approval authority can be elevated within the FAA for resolution.
Clear and comprehensive guidance documents have been developed and will be provided to the Aviation Safety Inspectors (ASIs) prior to this rule's effective date to ensure standardization. The SMS Program Office is also available as subject matter experts to assist the field office inspectors. Training is also currently underway for part 121 ASIs. This training includes the principles and precepts of SMS. Additional training is being designed to enhance the ASI's knowledge and ability to assess the compliance of an air carrier's SMS with part 5.
Air carriers also will be able to use the Consistency and Standardization Initiative
ACSF, AOPA, Boeing, GE, Hawker Beechcraft, and NATA suggested rescinding draft FAA Order 8900xx and reissuing simplified guidance material
Upon review of the comments, the FAA has revised the guidance material to ensure that there is a clear delineation between regulatory requirements and other information.
AEA, AOPA, ASCA, and ATA asked for a definition of acceptable level of safety. They expressed concern that lacking a clear definition of this term would leave the industry and the FAA in a position where inspectors would be defining what constitutes an acceptable level of safety. This would lead to inconsistent application across the industry. The SBA also asserted that the FAA should conduct a gap analysis of its regulations and fill any holes to establish standardized acceptable levels of safety through the regulations that can be uniformly applied throughout the industry.
The term “acceptable level of safety” is only used in the preamble of the NPRM and is only mentioned when referencing ICAO standards/framework and an NTSB recommendation. In determining the safety performance measurement for the air carrier's operation, each air carrier should use the regulatory minimums set forth in Chapter I, Title I, of 14 CFR as the baseline.
ASA and MARPA stated that the proposed part 5 was a process-based rule. In contrast, AIA/GAMA and Bombardier stated that the proposal was a performance-based rule. All of these commenters expressed a strong desire to avoid a prescriptive-based rule because of the dynamic nature of air carrier operations. They were also concerned that a performance-based rule could lead to wide variances in interpretation as to what is acceptable for an SMS.
The ARC, ATA, and GE expressed a strong desire for a rule that closely matched the ICAO framework to allow for increased acceptance of an air carrier's SMS by foreign civil aviation authorities. They stressed the need to balance prescription with the need for adequate description and flexibility to develop multiple solutions in the interest of increased innovation. They stated that the proposed requirements met all of these needs.
Changing the regulatory text to a pure performance-based rule would deviate from the ICAO SMS requirements. This increases the risk that the FAA's SMS rules would fail to meet the requirements of other sovereign nations, and thus jeopardize the ability of U.S. air carriers to operate in countries where compliance with these standards is enforced. This final rule specifies a basic set of processes to form a framework for the SMS, but does not specify particular methods for implementing these processes. This provides a balance between standardization and a robust SMS structure while allowing considerable flexibility for how an individual air carrier chooses to establish its SMS.
Proposed 14 CFR 5.21(a)(4) states there must be an employee reporting system, and that the reporting system must be confidential as per 14 CFR 5.71(a)(7). AFA, ALPA, RAA, and SWA were concerned that unless an explicit restriction is imposed to prevent abuse, disclosures of safety improvement opportunities, concerns, or issues submitted by any employee may be used against the reporting employee in a disciplinary manner. They suggested that the employee reporting system be non-punitive.
The confidential reporting system in 14 CFR 5.71(a)(7) is a conduit for employees to raise safety issues without fear of reprisal. There is a distinction in a non-punitive reporting system and the requirement in 14 CFR 5.21(a)(5) to require the certificate holder to establish a policy that defines unacceptable employee behaviors. There are some instances where disciplinary action is warranted (
Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 directs that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule. We suggest readers seeking greater detail read the full regulatory evaluation, a copy of which we have placed in the docket for this rulemaking.
In conducting these analyses, FAA has determined that this final rule: (1) Has benefits that justify its costs, (2) is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866, (3) is “significant” as defined in DOT's Regulatory Policies and Procedures; (4) will not have a significant economic impact on a substantial number of small entities; (5) will not create unnecessary obstacles to the foreign commerce of the United States; and (6) will not impose an unfunded mandate on state, local, or tribal governments, or on the private sector by exceeding the threshold identified above. These analyses are summarized below.
This rule requires Part 121 operators (domestic, flag, and supplemental operations) to establish an SMS. It is expected that the requirements of the rule will help airlines to identify safety problems, and if airlines take steps to mitigate these problems it is estimated
All Part 121 Operators
• All costs and benefits are presented in 2010 dollars.
• All costs and benefits are estimated over a 10-year period from 2014 through 2023.
• Benefits of SMS implementation would begin to accrue in 2017.
• Costs to air carriers would begin to accrue in 2014.
• The present value discount rate is 7 percent.
• The Value of Statistical Life = $8.9 million in 2010$.
The benefits of this final rule consist of the value of averted fatalities, casualties, aircraft damage, accident investigation costs, and reduced employee compensation claims. These benefits are a result of identifying safety issues, spotting trends, implementing necessary safety mitigations, and communicating findings before they result in a near-miss, incident, or accident. Over the 10-year period of analysis, it is estimated that the benefits from averted accidents, reduced employee compensation claims, and safety mitigations could range between $205.0 and $472.3 million ($104.9 to $241.9 million present value at 7 percent discount rate).
Each air carrier will be required to develop an SMS that includes the four SMS components: Safety Policy, Safety Risk Management, Safety Assurance, and Safety Promotion. To support each component, the FAA projects that the compliance cost of this rule will come from the initial development and documentation of the carriers' SMS, implementation and continuous operating costs to include the modification or purchasing of new equipment/software, additional staff and promotional materials, and training. Costs increase with the size of the carrier and the type of operations that they provide. However, medium and large operators have existing quality management systems which will lower their estimated compliance costs. Costs of the rule's provisions (excluding any mitigation costs, which have not been estimated) are estimated to be $224.3 million ($135.1 million present value at 7 percent discount rate) over 10 years.
The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.
Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA. Section 603 of the Act requires agencies to prepare and make available for public comment an initial regulatory flexibility analysis (IRFA) describing the impact of proposed rules on small entities.
As required by Section 603(a) of the RFA, we prepared and published an initial regulatory flexibility analysis (IRFA) as part of the NPRM for this rule (75 FR 68240, November 5, 2010). As a result of that analysis we determined this rule would have a significant impact on a substantial number of small entities for the following reasons: We estimated that 64 operators were small entities. Even though the proposed rule responds to the PL 111-216 Congressional requirement, we structured the requirement such that small entities could meet the requirements with lower costs than a larger firm.
Section 604 of the RFA also requires an agency to publish a final regulatory flexibility analysis (FRFA) in the
• A statement of the need for, and objectives of, the rule;
• a statement of the significant issues raised by the public comments in response to the initial regulatory flexibility analysis, a statement of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments;
• the response of the agency to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration in response to the proposed rule, and a detailed statement of any change made to the proposed rule in the final rule as a result of the comments;
• a description of and an estimate of the number of small entities to which the rule will apply or an explanation of why no such estimate is available;
• a description of the projected reporting, recordkeeping and other compliance requirements of the rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; and,
• a description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.
The objective of Safety Management Systems (SMS) is to proactively manage safety, to identify potential hazards, to determine risk, and to implement measures that mitigate the risk. The FAA envisions operators being able to use all of the components of SMS to enhance a carrier's ability to identify safety issues and spot trends before they result in a near-miss, incident, or accident. For this reason, the FAA is requiring carriers to develop and implement an SMS.
AEA commented that the FAA failed to analyze alternatives and stated that small carriers do not have enough incidents to make SMS cost-beneficial. The FAA maintains that SMS is congressionally mandated and we did look at two alternatives. For the final rule we discussed: (1) Extending the timeframe for development of SMS implementation plans; and (2) extending the timeframe for implementation of SMS. However, as stated above, the FAA ultimately determined that delaying the implementation of SMS delays the safety benefits and this delay in benefits is not offset by the small, delayed compliance cost. Upon a review of these costs, the FAA determined the compliance costs are not a significant economic impact.
The Small Business Administration (SBA) commented that an SMS would be burdensome for a small carrier, plus SMS may be more suitable for larger carriers because it aids in reducing silos which many not be an issue because of size for many smaller carriers. The FAA maintains the program is flexible and there are several existing programs that small carriers can leverage to make SMS less expensive. For example, many small and medium sized carriers reported that they would use the Web-Based Application Tool (WBAT), which is an FAA sponsored tool, to report and house their data. In addition, carriers that are currently pursuing an SMS reported benefits similar to their larger counterparts.
Under the North American Industry Classification System (NAICS) codes 481111 and 481112, for scheduled air transportation, small entities would be all part 121 carriers with less than 1,500 employees. The FAA estimates that there are approximately 90 part 121 operators and 60 of these operators meet the definition of a small entity; therefore the FAA believes that there are a substantial number of small entities impacted by this rule.
An SMS is a formalized approach to managing safety by developing an organization-wide safety policy, developing formal methods of identifying hazards, analyzing and mitigating risk, developing methods for ensuring continuous safety improvement, and creating organization-wide safety promotion strategies. Each air carrier would be required to develop an SMS that includes the four SMS components: Safety Policy, Safety Risk Management, Safety Assurance, and Safety Promotion. To support each component, the FAA projects that the compliance cost of this rule would come from the initial development and documentation of their SMS, implementation and continuous operating costs to include the modification or purchasing of new equipment/software, additional staff and promotional materials, and training. Costs increase as the size of the carrier increases. However, carriers have the ability to use existing programs such as an Aviation Safety Action Programs (ASAP) or the Web-Based Application Tool (WBAT) to meet these requirements.
The FAA estimated the average annual compliance cost during the first three years the rule is in effect for the 60 carriers identified as small entities and compared these costs to calendar year 2011 operating revenues (the most current data available).
Each of the 29 carriers in the “small” group fits the criteria of a small entity. The compliance cost for this group of carriers will average $164,500 per year. For the 26 small entities in the “medium” group, the compliance cost will average $206,400 per year. The compliance cost for the five carriers identified as small entities in the “large” group will average $408,000 per year. Each carrier's compliance cost will vary from the averages presented here due to carrier size (in terms of employee headcount), and the extent to which a carrier already has an ASAP or other safety program already in place.
Of the 60 carriers classified as small entities, 54 reported operating revenues on Form 41. For these 54 reporting carriers, annual compliance costs during the first three years the rule is in effect were less than two percent of their calendar year 2011 operating revenues. A determination for the six remaining small entities was not possible because financial data was not publicly available.
To relieve the burden of this rule on small entities, the FAA considered extending the timeframe for
The FAA also considered extending the timeframe for implementation of SMS. However, the FAA ultimately concluded that three years for full implementation of SMS is appropriate. In making this determination, the FAA considered longer and shorter terms. Based on information from the SMS Pilot Project, as well as lessons learned from other Civil Aviation Authorities (CAAs), which showed that three years was an appropriate timeframe for implementation of an SMS, the FAA decided that three years was the best interval to allow carriers to prepare and begin implementation.
In conclusion, while the FAA found this rule will affect a substantial number of small entities, we found annual compliance cost was less than two percent of annual revenue for the firms with public data. As the compliance cost is less than two percent of annual revenue, the FAA concludes there will not be a significant economic impact. Therefore, as the FAA Administrator, I certify this rule will not have a significant economic impact on a substantial number of small entities.
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 standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such the protection of safety, and does not operate in a manner that excludes 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. The FAA has assessed the potential effect of this final rule and determined that it uses ICAO international standards as its basis and therefore is in compliance with the Trade Agreements Act.
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $143.1 million in lieu of $100 million. This final rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. According to the 1995 amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi)), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid Office of Management and Budget (OMB) control number.
This final rule will impose new information collection requirements. The estimated burden of those requirements is discussed below. As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the FAA has submitted these information collection requirements to OMB for its review. Notice of OMB approval for this information collection will be published in a future
Under this final rule, each certificate holder operating under part 121 will develop an SMS, tailored to its unique operating environment, comprised of the four key components: Safety policy, safety risk management, safety assurance, and safety promotion. Collection and analysis of safety data is an essential part each carrier's SMS. The FAA has identified the following areas that will create information collection burdens under this final rule: Development and implementation of the SMS; implementation plan and documentation; recordkeeping requirements associated with the safety policy, safety risk management and safety assurance processes; training records, and communication records. In addition, based on comments received to the proposed rule, the FAA has also identified information collection burdens associated with expanding existing programs that may be used to satisfy the requirements of the final rule. For all information required to be submitted, documented, or collected under this final rule, the FAA does not specify how, or in what media, the documents and records must be maintained relative to the requirements of the final rule. Air carriers are encouraged to use existing mechanisms and systems to minimize the burden of the final rule. These burdens are outlined below. The cost estimates associated with these burdens are based on comments from the ARC, information from the SMS pilot program participants, and comments received in response to the NPRM.
The FAA has strongly encouraged air carriers to use existing programs, such as the Aviation Safety Action Program (ASAP), and the Internal Evaluation Program (IEP), to satisfy some of the requirements for the safety assurance component of SMS. The FAA expects that the 59 air carriers with existing ASAP programs will expand their programs to cover those employees currently not covered, to satisfy the employee reporting system requirement of the final rule. For the 31 remaining air carriers, the FAA expects that these carriers will use the employee reporting
The FAA
Implementation Cost: 107,146.4 labor hours and $3.9 million over 3 years.
Average Annual Cost: 35,715.5 labor hours and $1.28 million per year.
All 90 certificate holders will be required to develop and submit an implementation plan. The implementation plan will guide the certificate holder's implementation of SMS, as well as provide the basis for FAA's oversight during the development and implementation phases. The SMS implementation plan is the only document or data that the certificate holder must submit to the FAA. It is a one-time submission due six months after the effective date of the final rule.
All 90 certificate holders must also develop and maintain documentation that describes the safety policy for the certificate holder. The safety policy must address, among other things, the certificate holder's safety objectives, statements about the necessary resources for the implementation of the SMS, a safety reporting policy that defines requirements for employee reporting of safety hazards or issues, and an emergency response plan.
In addition to the safety policy, all 90 certificate holders are required under this rule to develop and maintain documentation of SMS processes and procedures, including safety risk management processes and safety assurance processes. Given that these processes and procedures will depend on the size and scope of each air carrier's operation, the amount of documentation will vary greatly amongst these certificate holders.
In comments to the NPRM, ATA estimates that small carriers will spend $10,000 a year, medium sized carriers will spend $15,000, and large carriers will spend $30,000 on SMS manual revision.
This rule requires air carriers to record outputs from their safety risk management (SRM) processes, safety assurance (SA) processes, safety communications and SMS training. Records of outputs for SRM processes must be maintained for as long as the outputs remain relevant to the certificate holder's operation. Outputs of safety assurance processes must be maintained for 5 years. Training records must be kept for as long as the individual is employed by the certificate holder and all SMS communication records under § 5.93 must be kept for 24 months. The scope and breadth of these recordkeeping requirements will depend on the size and complexity of the certificate holder's operation. To mitigate these burdens, the FAA has not specified how, or in what media, these records must be maintained, and has also encouraged the use of existing mechanisms. For example, the FAA has estimated the burden of maintaining employee SMS training records to be minimal since 121 certificate holders are already required to maintain training records.
Based on this information, the FAA maintains that only one additional employee will be required for carriers with several existing safety programs, 2 full time employees for large and medium carriers with few pre-existing programs, and a part-time employee for small carriers. The FAA also maintains that there will be minimal additional material costs and training record costs since all part 121 certificate holders already maintain training records. Operating costs will begin after the development, documentation, and implementation of an SMS.
176,000 labor hours and $8.3 million per year (Years 4-10).
This rule requires air carriers to implement an SMS acceptable to the Administrator within 3 years of the effective date of the final rule. The FAA offers a federally developed and funded software system, WBAT, which serves a variety of functions in addition to aiding carriers with their ASAPs and SMS. The FAA estimates at most that it costs $2.6 million per year to maintain WBAT.
In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has reviewed the corresponding ICAO Standards and Recommended Practices and has identified the following differences with these proposed regulations. Amendment 30 to Annex 6 part I Section 3.2 Safety Management, Paragraph 3.3.6 effective 1 January, 2009 requires that a Flight Data Analysis Program be in the SMS standard. The FAA will file a difference with ICAO.
ICAO Annex 6 part I includes a provision that part 121 air carriers operating airplanes having a maximum gross takeoff weight in excess of 27,000 kg (approximately 59,400 lbs.). “. . . shall establish and maintain a flight data analysis programme as part of its safety management system.” Flight Data Analysis Program (FDAP) is a general term encompassing a number of means by which routine flight operations data may be acquired, recorded, analyzed, and shared. Flight Operational Quality Assurance (FOQA) is one such program. FOQA is a formal voluntary program which has been implemented by 41 air carriers conducting operations under part 121. FOQA specifications include installation of extensive flight data recording systems which facilitate rapid transfer of recorded data, de-identification of that data, and agreements between pilot organizations and the air carriers which define how this information may be used.
The part 121 fleet is diverse in terms of size, complexity, and age, as well as the size of the air carriers that operate them. Many of the older aircraft would require extensive modifications to adapt them to the technical requirements of a FOQA program. The investment and expense of implementing and maintaining such a system exceeds the financial capability of many smaller air carriers. There are a number of ways to meet the requirements of an FDAP. Therefore, the FAA will not require FOQA in this rule.
FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in Chapter 3, paragraph 312d and involves no extraordinary circumstances.
Section 1205 of the FAA Reauthorization Act of 1996 (110 Stat. 3213) requires the FAA, when modifying its regulations in a manner affecting intrastate aviation in Alaska, to consider the extent to which Alaska is not served by transportation modes other than aviation, and to establish appropriate regulatory distinctions. In the NPRM, the FAA requested comments on whether the proposed rule should apply differently to intrastate operations in Alaska. The agency did not receive any comments, and has determined, based on the administrative record of this rulemaking, that there is no need to make any regulatory distinctions applicable to intrastate aviation in Alaska.
The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. The agency determined that this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, does not have Federalism implications.
The FAA analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it is not a “significant energy action” under the executive order and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
An electronic copy of a rulemaking document may be obtained by using the Internet—
1. Search the Federal eRulemaking Portal (
2. Visit the FAA's Regulations and Policies Web page at
3. Access the Government Printing Office's Web page at
Copies may also be obtained by sending a request (identified by notice, amendment, or docket number of this rulemaking) to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680.
Comments received may be viewed by going to
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document, may contact its local FAA official, or the person listed under the
Air carriers, Aircraft, Airmen, Aviation safety, Reporting and recordkeeping requirements, Safety, Transportation.
Administrative practice and procedure, Air carriers, Aircraft, Aviation safety, Charter flights, Reporting and recordkeeping requirements.
In consideration of the foregoing, and under the authority of 49 U.S.C. 106(f) and 44701(a)(5), the Federal Aviation amends chapter I of title 14, Code of Federal Regulations, as follows:
Pub. L. 111-216, sec. 215 (Aug. 1, 2010); 49 U.S.C. 106(f), 106(g), 40101, 40113, 40119, 41706, 44101, 44701-44702, 44705, 44709-44711, 44713, 44716-44717, 44722, 46105.
(a) A certificate holder under part 119 of this chapter authorized to conduct operations in accordance with the requirements of part 121 of this chapter must have a Safety Management System that meets the requirements of this part and is acceptable to the Administrator by January 8, 2018.
(b) A certificate holder must submit an implementation plan to the FAA Administrator for review no later than September 9, 2015. The implementation plan must be approved no later than March 9, 2016.
(c) The implementation plan may include any of the certificate holder's existing programs, policies, or procedures that it intends to use to meet the requirements of this part, including components of an existing SMS.
(a) Any certificate holder required to have a Safety Management System under this part must submit the Safety Management System to the Administrator for acceptance. The SMS must be appropriate to the size, scope, and complexity of the certificate holder's operation and include at least the following components:
(1) Safety policy in accordance with the requirements of subpart B of this part;
(2) Safety risk management in accordance with the requirements of subpart C of this part;
(3) Safety assurance in accordance with the requirements of subpart D of this part; and
(4) Safety promotion in accordance with the requirements of subpart E of this part.
(b) The Safety Management System must be maintained in accordance with the recordkeeping requirements in subpart F of this part.
(c) The Safety Management System must ensure compliance with the relevant regulatory standards in chapter I of Title 14 of the Code of Federal Regulations.
(a) The certificate holder must have a safety policy that includes at least the following:
(1) The safety objectives of the certificate holder.
(2) A commitment of the certificate holder to fulfill the organization's safety objectives.
(3) A clear statement about the provision of the necessary resources for the implementation of the SMS.
(4) A safety reporting policy that defines requirements for employee reporting of safety hazards or issues.
(5) A policy that defines unacceptable behavior and conditions for disciplinary action.
(6) An emergency response plan that provides for the safe transition from normal to emergency operations in accordance with the requirements of § 5.27.
(b) The safety policy must be signed by the accountable executive described in § 5.25.
(c) The safety policy must be documented and communicated throughout the certificate holder's organization.
(d) The safety policy must be regularly reviewed by the accountable executive to ensure it remains relevant and appropriate to the certificate holder.
(a) The certificate holder must define accountability for safety within the organization's safety policy for the following individuals:
(1) Accountable executive, as described in § 5.25.
(2) All members of management in regard to developing, implementing, and maintaining SMS processes within their area of responsibility, including, but not limited to:
(i) Hazard identification and safety risk assessment.
(ii) Assuring the effectiveness of safety risk controls.
(iii) Promoting safety as required in subpart E of this part.
(iv) Advising the accountable executive on the performance of the SMS and on any need for improvement.
(3) Employees relative to the certificate holder's safety performance.
(b) The certificate holder must identify the levels of management with the authority to make decisions regarding safety risk acceptance.
(a)
(1) Is the final authority over operations authorized to be conducted under the certificate holder's certificate(s).
(2) Controls the financial resources required for the operations to be conducted under the certificate holder's certificate(s).
(3) Controls the human resources required for the operations authorized to be conducted under the certificate holder's certificate(s).
(4) Retains ultimate responsibility for the safety performance of the operations conducted under the certificate holder's certificate.
(b)
(1) Ensure that the SMS is properly implemented and performing in all areas of the certificate holder's organization.
(2) Develop and sign the safety policy of the certificate holder.
(3) Communicate the safety policy throughout the certificate holder's organization.
(4) Regularly review the certificate holder's safety policy to ensure it remains relevant and appropriate to the certificate holder.
(5) Regularly review the safety performance of the certificate holder's organization and direct actions necessary to address substandard safety performance in accordance with § 5.75.
(c)
(1) Coordinate implementation, maintenance, and integration of the SMS throughout the certificate holder's organization.
(2) Facilitate hazard identification and safety risk analysis.
(3) Monitor the effectiveness of safety risk controls.
(4) Ensure safety promotion throughout the certificate holder's organization as required in subpart E of this part.
(5) Regularly report to the accountable executive on the performance of the SMS and on any need for improvement.
Where emergency response procedures are necessary, the certificate holder must develop and the accountable executive must approve as part of the safety policy, an emergency response plan that addresses at least the following:
(a) Delegation of emergency authority throughout the certificate holder's organization;
(b) Assignment of employee responsibilities during the emergency; and
(c) Coordination of the certificate holder's emergency response plans with the emergency response plans of other organizations it must interface with during the provision of its services.
A certificate holder must apply safety risk management to the following:
(a) Implementation of new systems.
(b) Revision of existing systems.
(c) Development of operational procedures.
(d) Identification of hazards or ineffective risk controls through the safety assurance processes in subpart D of this part.
(a) When applying safety risk management, the certificate holder must analyze the systems identified in § 5.51. Those system analyses must be used to identify hazards under paragraph (c) of this section, and in developing and implementing risk controls related to the system under § 5.55(c).
(b) In conducting the system analysis, the following information must be considered:
(1) Function and purpose of the system.
(2) The system's operating environment.
(3) An outline of the system's processes and procedures.
(4) The personnel, equipment, and facilities necessary for operation of the system.
(c) The certificate holder must develop and maintain processes to identify hazards within the context of the system analysis.
(a) The certificate holder must develop and maintain processes to analyze safety risk associated with the hazards identified in § 5.53(c).
(b) The certificate holder must define a process for conducting risk assessment that allows for the determination of acceptable safety risk.
(c) The certificate holder must develop and maintain processes to develop safety risk controls that are necessary as a result of the safety risk assessment process under paragraph (b) of this section.
(d) The certificate holder must evaluate whether the risk will be acceptable with the proposed safety risk control applied, before the safety risk control is implemented.
(a) The certificate holder must develop and maintain processes and systems to acquire data with respect to its operations, products, and services to monitor the safety performance of the organization. These processes and systems must include, at a minimum, the following:
(1) Monitoring of operational processes.
(2) Monitoring of the operational environment to detect changes.
(3) Auditing of operational processes and systems.
(4) Evaluations of the SMS and operational processes and systems.
(5) Investigations of incidents and accidents.
(6) Investigations of reports regarding potential non-compliance with regulatory standards or other safety risk controls established by the certificate holder through the safety risk management process established in subpart B of this part.
(7) A confidential employee reporting system in which employees can report hazards, issues, concerns, occurrences, incidents, as well as propose solutions and safety improvements.
(b) The certificate holder must develop and maintain processes that
(a) The certificate holder must conduct assessments of its safety performance against its safety objectives, which include reviews by the accountable executive, to:
(1) Ensure compliance with the safety risk controls established by the certificate holder.
(2) Evaluate the performance of the SMS.
(3) Evaluate the effectiveness of the safety risk controls established under § 5.55(c) and identify any ineffective controls.
(4) Identify changes in the operational environment that may introduce new hazards.
(5) Identify new hazards.
(b) Upon completion of the assessment, if ineffective controls or new hazards are identified under paragraphs (a)(2) through (5) of this section, the certificate holder must use the safety risk management process described in subpart C of this part.
The certificate holder must establish and implement processes to correct safety performance deficiencies identified in the assessments conducted under § 5.73.
The certificate holder must provide training to each individual identified in § 5.23 to ensure the individuals attain and maintain the competencies necessary to perform their duties relevant to the operation and performance of the SMS.
The certificate holder must develop and maintain means for communicating safety information that, at a minimum:
(a) Ensures that employees are aware of the SMS policies, processes, and tools that are relevant to their responsibilities.
(b) Conveys hazard information relevant to the employee's responsibilities.
(c) Explains why safety actions have been taken.
(d) Explains why safety procedures are introduced or changed.
The certificate holder must develop and maintain SMS documentation that describes the certificate holder's:
(a) Safety policy.
(b) SMS processes and procedures.
(a) The certificate holder must maintain records of outputs of safety risk management processes as described in subpart C of this part. Such records must be retained for as long as the control remains relevant to the operation.
(b) The certificate holder must maintain records of outputs of safety assurance processes as described in subpart D of this part. Such records must be retained for a minimum of 5 years.
(c) The certificate holder must maintain a record of all training provided under § 5.91 for each individual. Such records must be retained for as long as the individual is employed by the certificate holder.
(d) The certificate holder must retain records of all communications provided under § 5.93 for a minimum of 24 consecutive calendar months.
Pub. L. 111-216, sec. 215 (August 1, 2010); 49 U.S.C. 106(f), 106(g), 1153, 40101, 40102, 40103, 40113, 44105, 44106, 44111, 44701-44717, 44722, 44901, 44903, 44904, 44906, 44912, 44914, 44936, 44938, 46103, 46105.
(a) Certificate holders authorized to conduct operations under part 121 of this chapter must have a safety management system that meets the requirements of part 5 of this chapter and is acceptable to the Administrator by March 9, 2018.
(b) A person applying to the Administrator for an air carrier certificate or operating certificate to conduct operations under part 121 of this chapter after March 9, 2015, must demonstrate, as part of the application process under § 119.35, that it has an SMS that meets the standards set forth in part 5 of this chapter and is acceptable to the Administrator.