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Merced has yet to be tested and will not intellectual property and design team transaction, Digital is selling off most of be available for more than a year, Intel and is, therefore, only receiving its semiconductor business to Intel and has already successfully obtained "foundry" services (that is, a supply thus will have no economic need for a commitments from a large share of the agreement where one company marketing staff, which includes people software vendors and computer system manufactures the product for another) who market Alpha to other computer manufacturers to write software and from Intel. The parties will also end the system manufacturers. Without a build computers for it. patent litigation and sign a patent cross- marketing staff to service and pursue the license agreement. merchant market, the loss of C. Competitive Effects The proposed transaction has positive competition would be significant.6 Intel has market power in both implications for the future of Digital's Computer system manufacturers using relevant microprocessor product Alpha systems. The supply agreement Alpha microprocessors have pioneered markets. Intel accounts for nearly 90 frees Digital from operating a plant that the opening of new market segment for percent of dollar sales and nearly 85 it was not able to utilize efficiently. Alpha-based systems, such as media percent of unit sales of microprocessors Because Intel manufactures a vast line graphics. With the expected growth of for Windows NT and for nearly 90 of semiconductor products, it can utilize Windows NT, Alpha and Intel should go percent of dollar sales and 80 percent of the plant more efficiently than Digital. head-to-head in competition in these unit sales of general-purpose As a result, overall manufacturing costs market segments for these systems. The microprocessors. No firm other than will go down and, under the Digital- uncertainty created by the proposed Intel accounts for more than 4 percent Intel agreement, those cost reductions transaction, had it not been addressed of dollar sales of microprocessors or for will be passed on to Digital. Under the by the proposed consent, could have more than 10 percent of unit sales of agreement, Digital will also be able to reduced competition between Intel and microprocessors. Finally, the bring the next generation of Alphas- Alpha processors, resulting in higher competitive significance of other high based on an improved .18 micron prices, reduced consumer choice, and performance microprocessors such as process technology to market earlier lower rates of innovation. Hewlett-Packard's PA-RISC, Sun than it would have absent the The Complaint concludes that, unless Microsystems' SPARC, PowerPC from transaction. remedied, the transaction is likely to the Motorola/IBM/Apple venture, and Digital's move to this "fabless" create uncertainty regarding the future Silicon Graphics' MIPS business model of operation is not competitive viability of Alpha, thereby microprocessors-has been declining. unprecedented. Other successful maintaining and enhancing Intel's The transaction also threatens to increase concentration significantly in companies—like Sun Microsystems, Inc. market power, which could result in and Silicon Graphics—have designed increased prices and reduced quality the relevant innovation market. Digital high performance microprocessors and innovation in each of the relevant and Intel are two of the most significant markets for the following reasons: (1) By innovation competitors in the design while relying on third-party foundries making it less likely that Digital would and development of high-performance fabless microprocessor companies, maintain the sales force to continue microprocessors. Even with its however, placed manufacturing in the "merchant market" sales of Alpha comparatively small share of the relevant markets, the Alpha architecture hands of such a dominant competitor. microprocessors and other products to (because of Alpha's superior processing Because of this unique characteristic, other computer system manufacturers, it the proposed transaction creates the would reduce competition between Intel performance) represents the most significant threat to Intel's continued opportunity for Intel to slow down or and Digital for such sales; and (2) market dominance. Intel's documents putting Digital's supply of Alpha solely otherwise impair the supply of Alpha microprocessors, harming competition in the hands of Intel would give Intel refer repeatedly to the competitive in the relevant markets. In particular, threat posed by Alpha, which is the opportunity to delay production of acknowledged by many as possibly the the transaction presents a risk that Intel Alpha microprocessors, impede the best performing and fastest will not provide the necessary level of development of new generations of coordination between the design and microprocessor in the world. Innovation Alpha microprocessors, and otherwise and actual competition between the two manufacturing processes, and that Intel undermine the competitiveness of may take other steps to reduce quality companies is likely to increase in the Alpha. In these ways, according to the future because of the growing popularity microprocessors to Digital . Every and slow the supply of Alpha Complaint, the consummation of the proposed transaction, without any of Microsoft's Windows NT operating system, which currently supports only foundry arrangement requires design changes, would violate Section 5 of the Federal Trade Commission Act, as Digital's Alpha and Intel's advanced engineers and manufacturing process microprocessors. As the demand for and engineers to coordinate their efforts. The amended, 15 U.S.C. 45, and Section 7 of functionality of Windows NT grow, the the Clayton Act, as amended, 15 U.S.C. development of a microprocessor 18. competition between the Alpha and involves conforming that design to the Intel architecture is likely to intensify. process technology and vice-versa. The IV. The Proposed Consent Order On these facts, it is clear that an Digital-Intel settlement separates these The Commission has entered into an acquisition of Digital by Intel would functions and provides no incentive for agreement containing a Proposed substantially lessen competition. Intel to “tweak” its own processes to Consent Order with Digital in settlement Although the transaction at issue here conform to Digital's products. of the draft Complaint. The Proposed does not involve an outright acquisition Furthermore, the transaction as Consent Order is designed to preserve of Alpha technology, it nevertheless proposed threatens the continued Alpha's future viability by ensuring threatens competition in the relevant viability of Digital's sales of Alpha to alternative sources for production, markets. Under the terms of the the “merchant market.”'5 As part of this settlement, Intel will acquire Digital's 6 As explained more fully below, as part of this Alpha fabrication plant (known as Fab Page 3
(5) Letters of support from purposes of the grant, and terms and Dated: April 27, 1998. community-based organizations condition of the grant award. Nancy C. Hirsch, indicating their support of the project Dated: April 8, 1998. Acting Director, Management Analysis and and their interest in participating in the Services Office Centers for Disease Control project. (15 points) James Randolph Farris, and Prevention (CDC). Applications must be postmarked or, Regional Health Administrator. (FR Doc. 98–11715 Filed 5-1-98; 8:45 am) if not sent by U.S. mail, received at the (FR Doc. 98–11688 Filed 5-1-98; 8:45 am) Office of Grants Management no later than the close of business on June 15, 1998. Private metered postmarks will DEPARTMENT OF HEALTH AND not be acceptable as proof of timely DEPARTMENT OF HEALTH AND HUMAN SERVICES mailing. Applications which are HUMAN SERVICES postmarked later than June 15, 1998 will Food and Drug Administration be judged late and will not be accepted Centers for Disease Control and for review. (Applicants should request a Prevention Research Studies to Support Microbial legibly dated postmark from the U.S. Risk Assessment Modeling; Postal Service.) Applications which do Injury Research Grant Review Availability of Cooperative not conform to the requirements of this Committee: Meeting Agreements; Request for Applications program announcement or do not meet the applicable regulatory requirements In accordance with section 10(a)(2) of AGENCY: Food and Drug Administration, HHS. will not be accepted for review. the Federal Advisory Committee Act Applicants will be so notified, and the ACTION: Notice. (Pub. L. 92–463), the Centers for Disease applications will be returned. Control and Prevention (CDC) SUMMARY: The Food and Drug Grant Award announces the following committee Administration (FDA), Center for Food meeting. The grant will be funded in annual Safety and Applied Nutrition (CFSAN) increments (budget periods). The project Name: Injury Research Grant Review is announcing the availability of may be funded for up to three (3) years. Committee (IRGRC). approximately $800,000 for research Time and Date: 6:30 p.m.-9 p.m., June 6, funds for fiscal year (FY) 1998 to Funding for all approved budget periods 1998; 8 a.m.-5 p.m., June 7, 1998. conduct research to support the beyond the first year is contingent upon the availability of funds, satisfactory Place: Renaissance Atlanta Hotel development of risk assessment doseprogress of the project, and adequate Downtown, 590 West Peachtree Street, NW, response models for microbiological stewardship of federal funds. Atlanta, Georgia 30308. hazards associated with food. FDA Status: Open: 6:30 p.m.-7 p.m., June 6, anticipates making two to three awards Review Under Executive Order 12372 1998. Closed: 7 p.m.-9 p.m., June 6, 1998, at $250,000 to $400,000 (direct and Applicants under this announcement through 5 p.m., June 7, 1998. indirect costs) per award per year. are subject to the review requirements of Purpose: This committee is charged with Support of these agreements may be up Executive Order 12372, advising the Secretary of Health and Human to 3 years. The number of agreements Intergovernmental Review of Services, the Assistant Secretary for Health, funded will depend on the quality of the Department of Health and Human and the Director, CDC, regarding the applications received and the Services Programs and Activities, as scientific merit and technical feasibility of availability of Federal funds to support implemented by 45 CFR part 100. As grant applications received from academic the project. After the first year, 2 soon as possible, the applicant should institutions and other public and private additional years of noncompetitive discuss the project with the State Single profit and nonprofit organizations, including support are predicated upon Point of Contact (SPOC) for each State State and local government agencies, to performance and the availability of to be served. The application kit conduct specific injury research that focus on Federal FY funds. contains the currently available listing prevention and control and to support injury DATES: Submit applications by June 18, of the SPOCs which have elected to be prevention research centers. 1998. If the closing date falls on a informed of the submission of Matters To Be Discussed: Agenda items weekend, it will be extended to include announcements, discussion of applications. For those States not Monday; if the date falls on a holiday, review procedures, and review of grant represented on the listing, further it will be extended to the following applications. inquiries should be made to the workday. Governor's office of the pertinent states Beginning at 7 p.m., June 6, through 5 p.m., ADDRESSES: Application forms are for information regarding the review available from, and completed process designated by their state or the a review of grant applications. This portion applications should be submitted to: SPOC for the state in question. Robert L. Robins, Grants Management in accordance with provisions set forth in SPOC comments must be received by the Office of Grants Management 30 section 552b(c)(4) and (6), title 5 U.S.C., and Officer, Division of Contracts and the Determination of the Associate Director Procurement Management (HFA-520), days prior to the funding date to be for Management and Operations, CDC, Food and Drug Administration, Park considered. When the final funding decision has pursuant to Public Law 92-463. Bldg., 5600 Fishers Lane, rm. 3—40, Agenda items are subject to change as Rockville, MD 20857, 301-443-6170. been made, each applicant will be notified by letter of the outcome of its priorities dictate. Applications hand-carried or Contact Person For More Information: commercially delivered should be application. The official document Richard W. Sattin, M.D., Executive Secretary, addressed to Park Bldg., 12420 notifying an applicant that a project IRGRC, National Center for Injury Prevention Parklawn Dr., rm. 3–40, Rockville, MD application has been approved for and Control, CDC, 4770 Buford Highway, NE, 20852. funding is the Notice of Grant Award, M/S K58, Atlanta, Georgia 30341-3724, FOR FURTHER INFORMATION CONTACT: which specifies to the grantee the telephone 770/488-4580. Regarding the administrative and amount of money awarded, the financial management aspects of Page 4
VII. Submission Requirements DEPARTMENT OF HEALTH AND HUMAN SERVICES The original and five copies of the Submission of the application must be completed Grant Application Form PHS on Grant Application Form PHS 398 Food and Drug Administration 398 (Rev. 5/95) or the original and two (Rev. 5/95). All “General Instructions” copies of the PHS 5161 (Rev. 7/92) for [Docket No. 96P-0090) and “Specific Instructions” in the State and local governments, with application kit should be followed with Determination That Testosterone copies of the appendices for each of the the exception of the receipt dates and Propionate 2% Ointment Was Not copies, should be delivered to Robert L. the mailing label address. Applicants Withdrawn From Sale for Reasons of Robins (address above). State and local are also advised that FDA does not Safety or Effectiveness; Amendment governments may choose to use the PHS adhere to the page limitations or the 398 application form in lieu of the PHS type size and line spacing requirements AGENCY: Food and Drug Administration, 5161. The application receipt date is imposed by NIH on its applications. Do HHS. June 18, 1998. If the receipt date falls on not send applications to CSR, NIH. ACTION: Notice. a weekend, it will be extended to Monday; if the date falls on a holiday, Applications from State and local it will be extended to the following governments may be submitted on Form SUMMARY: The Food and Drug Administration (FDA) is amending a workday. No supplemental or PHS 5161 (Rev. 7/92) or Form PHS 398 previous determination regarding the addendum material will be accepted (Rev. 5/95) fact that testosterone propionate 2% after the receipt date. The face page of the application ointment (Perandren Ointment) was not The outside of the mailing package should reflect RFA's number RFA- withdrawn from sale for reasons of and item 2 of the application face page FDA-CFSAN-98–1. safety or effectiveness. FDA has should be labeled “Response to RFA- Data included in the application, if determined that it is not appropriate at FDA-CFSAN-98–1." restricted with the legend specified this time to accept abbreviated new drug below, may be entitled to confidential VIII. Method of Application applications (ANDA's) for testosterone treatment as trade secret or confidential propionate 2% ointment. A. Submission Instructions commercial information within the FOR FURTHER INFORMATION CONTACT: David T. Read, Center for Drug Applications will be accepted during Act (FOIA) (5 U.S.C. 552(b)(4)) and Evaluation and Research (HFD-7), Food working hours, 8 a.m. to 4:30 p.m., FDA's implementing regulations (21 and Drug Administration, 5600 Fishers Monday through Friday, on or before CFR 20.61). Lane, Rockville, MD 20855, 301-594the established receipt date. 2041. Applications will be considered Information collection requirements SUPPLEMENTARY INFORMATION: ANDA received on time if sent or mailed on or requested on Form PHS 398 and the before the receipt date as evidenced by instructions have been submitted by sponsors must, with certain exceptions, show that the drug for which they are a legible U.S. Postal Service dated PHS to the Office of Management and seeking approval contains the same postmark or a legible date receipt from Budget (OMB) and were approved and active ingredient in the same strength a commercial carrier, unless they arrive assigned OMB control number 0925– and dosage form as a "listed drug." A too late for orderly processing. Private 0001. listed drug is one that has an effective metered postmarks shall not be C. Legend approval, either under section 505(c) of acceptable as proof of timely mailing. the Federal Food, Drug, and Cosmetic Applications not received on time will Unless disclosure is required by FOIA Act (the act) (21 U.S.C. 355(c)) for safety not be considered for review and will be as amended (5 U.S.C. 552), as and effectiveness or under section 505(j) returned to the applicant. Applicants determined by the freedom of of the act, which has not been should note that the U.S. Postal Service information officials of DHHS or by a withdrawn for reasons of safety or does not uniformly provide dated effectiveness (21 CFR 314.3, see also 21 postmarks. Before relying on this court, data contained in the portions of method, applicants should check with U.S.C. 355(j)(6)). Neither at the time of this application which have been their local post office. specifically identified by page number, ANDA submission nor at the time of ANDA approval is it essential that a Do not send applications to the Center paragraph, etc., by the applicant as Do not send applications to the Center containing restricted and/or proprietary listed drug be currently marketed. for Scientific Research (CSR), NIH. Any information shall not be used or FDA's "Approved Drug Products with application that is sent to NIH, that is then forwarded to FDA and not received disclosed except for evaluation Therapeutic Equivalence Evaluations" (popularly referred to as the "Orange purposes. in time for orderly processing, will be Book”) contains the official register of deemed unresponsive and returned to Dated: April 3, 1998. listed drugs, and a drug is removed from the applicant. Instructions for William K. Hubbard, this register in either of two ways. First, completing the application forms can be Associate Commissioner for Policy a listed drug is removed if the agency found on the NIH home page on the Coordination. withdraws or suspends approval of the Internet (address: http://www.nih.gov/ (FR Doc. 98-11743 Filed 5-1-98; 8:45 am) drug's new drug application (NDA) or grants/funding/phs398/phs398.html; the ANDA for reasons of safety or forms can be found at http:// effectiveness. Second, in the case of a www.nih.gov/grants/funding/phs398/ listed drug that was discontinued from forms_toc.html). However, as noted sale but did not have its approval previously, applications are not to be withdrawn or had its approval mailed to NIH. Applications must be withdrawn for reasons other than safety submitted via mail delivery as stated or effectiveness, the drug is removed if previously. FDA is unable to receive FDA determines that it was applications via Internet. discontinued from sale for reasons of Page 5
Enter several times and then select FIC International Policy Support to NIH by the public will be limited to space menu choice 1: FDA BULLETIN BOARD and other Government Agencies. available. SERVICE. From there follow In accordance with the provisions of A portion of the Board meeting will instructions for logging in, and at the sections 552b(c)(4) and 552b(c)(6), Title be closed to the public as indicated BBS TOPICS PAGE, arrow down to the 5, United States Code and section 10(d) below in accordance with the provisions FDA home page (do not select the first of Public Law 92-463, as amended, the set forth in sections 552(c)(4) and CDRH entry). Then select Medical entire meeting of the Research Awards 552(c)(6), Title 5 U.S.C. and section Devices and Radiological Health. From Subcommittee on May 18 will be closed 10(d) of Public Law 92–463, for the there select CENTER FOR DEVICES to the public from 1:00 p.m. to review, discussion and evaluation of AND RADIOLOGICAL HEALTH for approximately 4:00 p.m., and the Board individual grant applications and for general information, or arrow down for meeting on May 19 will be closed to the discussion of issues pertaining to specific topics. public from 1:00 p.m. to adjournment programmatic areas and/or NČI for the review of applications for awards personnel. These applications and IV. Comments under the Senior International discussions could reveal confidential Interested persons may, on or before Fellowship and International trade secrets or commercial property August 3, 1998, submit to the Dockets Fellowship Programs; and the Fogarty such as patentable material, and Management Branch written comments International Research Collaboration personal information concerning the regarding this guidance document. Two Awards and HIV, AIDS and Related individuals associated with the copies of any comments are to be Illnesses Collaboration Awards. applications or programs, the disclosure submitted, except that individuals may Paula Cohen, Committee Management of which would constitute a clearly submit one copy. Comments are to be Officer, Fogarty International Center, unwarranted invasion of personal identified with the docket number National Institutes of Health, Building privacy found in brackets in the heading of this 31, Room B2C08, 31 CENTER DR MSC The Committee Management Office, document. The guidance document and 2220, Bethesda, Maryland 20892-2220, National Cancer Institute, National received comments may be in the telephone: 301-496–1491, will provide Institutes of Health, Executive Plaza Dockets Management Branch (address a summary of the meeting and a roster North, Room 609, 6130 Executive above) between 9 a.m. and 4 p.m., of the committee members upon Boulevard, MSC 7410, Bethesda, Monday through Friday. request. Maryland 20892–7410, (310) 496–5708 Dated: April 14, 1998. Irene Edwards, Executive Secretary, will provide summaries of the meetings D.B. Burlington, Fogarty International Center Advisory and rosters of the Board members, upon Director, Center for Devices and Radiological Board, Building 31, Room B2C08, request. Health. telephone: 301-496–1491, will provide (FR Doc. 98–11683 Filed 5–1-98; 8:45 am) substantive program information. Individuals who plan to attend and Individuals who plan to attend and need special assistance, such as sign need special assistance, such as sign language interpretation or other language interpretation or other reasonable accommodations, should DEPARTMENT OF HEALTH AND reasonable accommodations, should contact Mrs. Linda Quick-Cameron, HUMAN SERVICES contact Ms. Cohen at least 2 weeks in Committee Management Officer, at (301) advance of the meeting. 496–5708 in advance of the meetings. National Institutes of Health (Catalog of Federal Domestic Assistance Name of Committee(s): Subcommittee on Program No. 93.989, Senior International Activities and Agenda, Subcommittee on John E. Fogarty International Center Fellowship Awards Programs; and 93.934, Cancer Centers, Subcommittee on Clinical for Advanced Study in the Health Fogarty International Research Collaboration Investigations, Subcommittee on Planning and Budget. Sciences; Notice of Meeting of the Award) Date: May 11, 1998. Fogarty International Center Advisory Dated: April 24, 1998. Time: 7:00 p.m.-Adjournment. Board LaVerne Y. Stringfield, Place: Hyatt Regency Bethesda, One Bethesda Metro, Bethesda, Maryland 20814. amended, notice is hereby given of the (FR Doc. 98-11676 Filed 5-1-98; 8:45 am) Agenda(s): See NCI Homepage/ Advisory Board and Groups, thirty-eighth meeting of the Fogarty BILLING CODE 4140-01-M http://deainfo.nci.nih.gov/ADVISORY/ International Center (FIC) Advisory boards.htm Board, May 19, 1998, in the Lawton Tentative agenda available 10 working Chiles International House (Building 16) DEPARTMENT OF HEALTH AND at the National Institutes of Health. The HUMAN SERVICES days prior to meetings: Final agenda available 5 working days Research Awards Subcommittee will National Institutes of Health prior to meetings. meet on May 18 in the FIC Conference Contact Person: Dr. Marvin R. Kalt, Room, Building 31, Room B2C07, from National Cancer Institute; Notice of Executive Secretary, National Cancer 1:00 p.m. to approximately 4:00 p.m., Institute, NIH, Executive Plaza North, Room Meeting of the National Cancer and will be closed to the public. 600, 6130 Executive Blvd., MSC 7405, Advisory Board and Its Subcommittees Bethesda, MD 20892–7405, (301) 496–5147. The meeting of the Board will be open to the public from 8:30 a.m. to Pursuant to the Federal Advisory Name of Committee: National Cancer approximately 12:00 noon. Committee Act, as amended, notice is Advisory Board. Dates: May 12–13, 1998. Place: Building 31C, Conference Room 10, National Institutes of Health, 3100 Center presentations on FIC Evolution and (Board), National Cancer Institute (NCI), Drive, Bethesda, MD. 20892. Long-Range Planning; the Status of FIC and its Subcommittees on May 11-13, Open: May 12–9:00 a.m. to 4:00 p.m.; May International Training and Research 1998. The meeting of the Board and its 13–9:00 a.m. to 12:20 p.m. Programs; ICD-Wide Initiatives in Subcommittees will be open the Agenda: Program reports and Support of International Relations; and public as indicated below. Attendance presentations; business of the Board. For a Page 6
because rotations are long (65–120 years potential differences in stream Quigley, T.M. and S.J. Arbelbide, technical depending on species and site) and temperatures for four riparian editors. 1997. An assessment of selective harvest is used liberally (about prescriptions, including 300-foot no ecosystem components in the interior Columbia Basin and portions of the 80 percent of east-side harvests are harvest riparian buffers on fish-bearing Klamath and Great Basins: Volume III. uneven-aged management), fewer streams on National Forest lands. ephemeral streams are exposed to the U.S. Department of Agriculture, Forest Streams with verified populations of Service, Pacific Northwest Research temporary yet harsh conditions of a bull trout, or those on the Clean Water Ştation. Portland, Oregon. standard clearcut at any given time than Act 303(d) list, will be monitored for Thurow, R.F., D.C. Lee and B.E. Rieman. would be observed under standard stream temperature at a minimum of 1997. Distribution and status of seven commercial forestry. Road management is another two locations per stream. Diurnal native salmonids in the Interior fluctuations and maximum annual Columbia River Basin and portions of the important component of the Habitat Klamath River and Great Basins. North Conservation Plan and will also be temperature will be evaluated. Bull American Journal of Fisheries addressed through watershed analysis. trout streams will have additional Management 17: 1094-1110. Watershed Analysis examines potential temperature measurements to monitor U.S. Department of Interior, U.S. Department risks to the resources, such as sediment conditions during the spawning season, of Commerce. 1996. Final Environmental delivery from roads, and develops and to evaluate the effects of Impact Statement for the Proposed Issuance of a Permit to Allow Incidental prescriptions to reduce the vulnerability groundwater input on stream Take of Threatened and Endangered of the resources. For instance, as a result temperature. Ambient air temperature Species: Plum Creek Timber Company, of the Quartz Mountain Watershed will also be monitored. L.P., Lands in the 1-90 Corridor, King Analysis within the Habitat In addition to habitat monitoring, and Kittitas Counties, Washington. (U.S. Conservation Plan area, a road-sediment Plum Creek will assess salmonid Fish and Wildlife Service, National budget was established that included an Marine Fisheries Service). Olympia, populations in a watershed with elaborate monitoring system. In that Washington. March 1996. watershed, sediment delivery must be recovering habitat conditions. To assess reduced to target levels prior to Dated: April 29, 1998. the biological integrity of streams, Plum construction of new roads. Creek will continue long-term Thomas J. Dwyer, In the Plum Creek Habitat monitoring of aquatic macro Acting Regional Director, Region 1, Portland, Conservation Plan area, the known bull invertebrates. Oregon. trout locations are within the Grizzly (FR Doc. 98–11825 Filed 5-1-98; 8:45 am) Plum Creek will also conduct BILLING CODE 4310-65-P DEPARTMENT OF THE INTERIOR stream channel conditions, and the be reduced to below 1 mile per section effectiveness of resource protection within the first 10 years of the plan. Geological Survey The minimization and mitigation prescriptions. Examples of monitoring and research done as a result of measures described above represent the Technology Transfer Act of 1986 minimum level of riparian conservation watershed analysis include: (1) A road that Plum Creek has committed to AGENCY: United States Geological sediment production study; (2) McNeil implement. Several aspects of the sampling of streams to assess fine Survey, Interior. Habitat Conservation Plan, including sediment levels; (3) installation of ACTION: Notice to accept contribution watershed analysis, are subject to stream gages; (4) testing of digital from private source. adaptive management as described elevation hydrologic models; (5) stream below: If additional actions are temperature monitoring; and (6) stream SUMMARY: The U.S. Geological Survey is necessary to protect bull trout, surveys to evaluate channel changes and adjustments would be made to accepting a $10,000 contribution from large woody debris levels. If monitoring the National Stone Association to watershed analysis-derived results indicate that prescriptions are expedite a digital map showing prescriptions and to the interim and ineffective or inadequate, the minimum buffer prescriptions. potential sources of crushed stone in the prescriptions will be changed to make Monitoring and Adaptive conterminous United States. them effective and adequate. Management: To ensure that the ADDRESSES: If any other parties are mitigation and minimization strategies References interested in making contributions for are effective, the Habitat Conservation Baxter, C.V., Frissell, C.A. and F.R. Hauer. In the same or similar purposes, please Plan incorporates a variety of aquatic press. Geomorphology, logging roads and contact Mr. William Langer, U.S. monitoring components that will the distribution of bull trout (Salvelinus Geological Survey, Mineral Resources provide feedback for adaptive confluentus) spawning in a forested river Program, Box 25046, Mail Stop 973, management. For habitat conditions, basin: implications for management and conservation. Plum Creek will conduct bank-full and Denver, CO 80225; telephone (303) 236low-flow cross-sectional and Quigley, T.M., R.W. Haynes and R.T. 1249; e-mail . longitudinal channel profiles, Wolman Graham, technical editors. 1996. SUPPLEMENTARY INFORMATION: This pebble counts, large woody debris Integrated scientific assessment for notice is to meet the USGS requirement counts, permanent photo points to ecosystem management in the interior stipulated in the Survey Manual. document changes in channel Klamath and Great Basins. U.S. Dated: April 14, 1998. morphology and substrate composition, Department of Agriculture, Forest and measurement of the frequency and P. Patrick Leahy, Service, Pacific Northwest Research residual volume of pools. To analyze the Station. Portland, Oregon. Chief, Geologic Division. effects on stream temperatures, Plum (FR Doc. 98-11787 Fil 5–1-98; 8:45 am) Creek will initiate a study to measure Page 7
procedures for solicitations, please call Effecting Data Transfer Between Data establishment and maintenance of a the U.S. Department of Justice Response Systems,” for which a U.S. Patent physical protection system with Center 1-800-421-6770. Application was filed and assigned to capabilities for protection of special SUPPLEMENTARY INFORMATION: the United States of America as nuclear material at fixed sites and in represented by the Administrator of the transit and of plants in which special Authority National Aeronautics and Space nuclear material is used. The This action is authorized under the Administration. Written objections to information in the reports and records is Omnibus Crime Control and Safe Streets the prospective grant of a license should used by the NRC staff to ensure that the Act of 1968, sections 201-03, as be sent to John F. Kennedy Space health and safety of the public is amended, 42 U.S.C. 3721-23 (1994). Center. protected and that licensee possession Background DATES: Responses to this Notice must be and use of special nuclear material is in received on or before July 6, 1998. compliance with license and regulatory NIJ is soliciting proposals for research FOR FURTHER INFORMATION CONTACT: Beth requirements. and evaluation on violence against Vrioni at (407) 867–6225, Mail Code Submit, by July 6, 1998, comments women. Four major program areas are MM-E, John F. Kennedy Space Center, identified in the request for proposals. that address the following questions: FL 32899. 1. Is the proposed collection of They are Practitioner-Researcher information necessary for the NRC to Collaborations, Evaluation of Policies Dated: April 27, 1998. properly perform its functions? Does the and Programs including Experimental Edward A. Frankle, information have practical utility? Research Designs, Longitudinal Studies General Counsel. 2. Is the burden estimate accurate? of Women's Experience with Violence, (FR Doc. 98-11744 Filed 5-1-98; 8:45 am) 3. Is there a way to enhance the and Basic Research. For this solicitation, quality, utility, and clarity of the violence against women includes information to be collected? domestic or intimate partner violence, 4. How can the burden of the sexual assault, other assaultive NUCLEAR REGULATORY information collection be minimized, behaviors against women and stalking. COMMISSION including the use of automated NIJ anticipates awarding a total of 15 to collection techniques or other forms of 20 grants in the four program areas with Agency Information Collection information technology? a funding total of $4,000,000. Activities: Proposed Collection; Interested organizations should call Comment Request A copy of the draft supporting statement may be viewed free of charge the National Criminal Justice Reference Service (NCJRS) at 1-800-851–3420 to AGENCY: U. S. Nuclear Regulatory at the NRC Public Document Room, Commission (NRC). 2120 L Street, NW (lower level), obtain a copy of “Research and Evaluation on Violence Against Women: ACTION: Notice of pending NRC action to Washington, DC. OMB clearance Practitioner-Researcher Collaboration; submit an information collection requests are available at the NRC Evaluation of Policies and Programs request to OMB and solicitation of worldwide web site (http:// public comment. www.nrc.gov) under the Fed World including Experimental Research collection link on the home page tool Designs; Longitudinal Studies of Women's Experience with Violence; and submittal to OMB for review of SUMMARY: The NRC is preparing a bar. The document will be available on the NRC home page site for 60 days after Basic Research” (refer to document no. SL000279). For World Wide Web access, collections under the provisions of the continued approval of information the signature date of this notice. Comments and questions about the connect to either NIJ at http:// Paperwork Reduction Act of 1995 (44 information collection requirements www.ojp.usdoj.gov/nij/funding.htm, or U.S.C. Chapter 35). may be directed to the NRC Clearance the NCJRS Justice Information Center at Information pertaining to the Officer, Brenda Jo. Shelton, U.S. Nuclear http://www.ncjrs.org/fedgrant.htm#nij. requirement to be submitted: Regulatory Commission, T-6 F33, Jeremy Travis, 1. The title of the information Washington, DC, 20555-0001, or by Director, National Institute of Justice. collection: 10 CFR part 73—Physical telephone at 301-415–7233, or by (FR Doc. 98–11690 Filed 5-1-98; 8:45 am) Protection of Plants and Materials. Internet electronic mail at 2. Current OMB approval number: . 3150-0002. Dated at Rockville, Maryland, this 23th day 3. How often the collection is of April 1998. NATIONAL AERONAUTICS AND required: On occasion. Required reports For the Nuclear Regulatory Commission. SPACE ADMINISTRATION are submitted and evaluated as events Brenda Jo. Shelton, Occur. [Notice (98-060)] 4. Who is required or asked to report: NRC Clearance Officer, Office of the Chief Notice of Prospective Patent License Persons who possess, use, import, Information Officer. (FR Doc. 98–11729 Filed 5-1-98; 8:45 am) export, transport, or deliver to a carrier AGENCY: National Aeronautics and for transport, special nuclear material. BILLING CODE 7590-01-P Space Administration. 5. The number of annual responses: ACTION: Notice of prospective patent 68,643. NUCLEAR REGULATORY license. 6. The number of hours needed COMMISSION annually to complete the requirement or SUMMARY: NASA hereby gives notice request: The industry total burden is Agency Information Collection that Omni Technologies, Inc., of Kenner, 410,602 hours annually (43,241.7 hours Activities: Submission for OMB Louisiana, has applied for an exclusive for reporting and 367,359.8 hours for Review; Comment Request license to practice the invention recordkeeping). disclosed in NASA Case No. SSC-00052 7. Abstract: NRC regulations in 10 AGENCY: U.S. Nuclear Regulatory entitled “Apparatus & Method for CFR part 73 prescribe requirements for Commission (NRC). Page 8
PENSION BENEFIT GUARANTY the sponsor's controlled group ("the Issued in Washington, DC, this 27th day of CORPORATION employer”) incur liability ("employer April, 1998. liability'') if the plan terminates with David M. Strauss, Proposed Submission of Information assets insufficient to pay benefit Executive Director, Pension Benefit Guaranty Collection for OMB Review; Comment liabilities under the plan. The PBGC's Corporation. Request; Liability for Termination of statutory lien for employer liability and (FR Doc. 98-11710 Filed 5-1-98; 8:45 am) Single-Employer Plans the payment terms for employer liability AGENCY: Pension Benefit Guaranty are affected by whether and to what Corporation. extent employer liability exceeds 30 percent of the employer's net worth. PENSION BENEFIT GUARANTY ACTION: Notice of intention to request Section 4062.6 of the PBGC's CORPORATION extension of OMB approval. employer liability regulation (29 CFR Proposed Submission of Information SUMMARY: The Pension Benefit Guaranty 4062.6) requires a contributing sponsor or member of the contributing sponsor's Collection for OMB Review; Comment Corporation ("PBGC") intends to request that the Office of Management controlled group who believes employer Request; Disclosure to Participants and Budget ("OMB") extend approval, liability upon plan termination exceeds AGENCY: Pension Benefit Guaranty under the Paperwork Reduction Act, of 30 percent of the employer's net worth Corporation. a collection of information contained in to so notify the PBGC and to submit net ACTION: Notice of intention to request its regulation on Liability for worth information. This information is extension of OMB approval. Termination of Single-Employer Plans, necessary to enable the PBGC to 29 CFR Part 4062 (OMB control number determine whether and to what extent SUMMARY: The Pension Benefit Guaranty 1212-0017; expires September 30, employer liability exceeds 30 percent of Corporation (“PBGC'') intends to 1998). This notice informs the public of the employer's net worth. request that the Office of Management the PBGC's intent and solicits public The collection of information under and Budget ("OMB”) extend approval, comment on the collection of the regulation has been approved by under the Paperwork Reduction Act, of information. OMB under control number 1212-0017 the collection of information under it: through September 30, 1998. The PBGC regulation on Disclosure to Participants, DATES: Comments should be submitted intends to request that OMB extend its 29 CFR Part 4011 (OMB control number by July 6, 1998. approval for another three years. An 1212-0050; expires September 30, ADDRESSES: Comments may be mailed to agency may not conduct or sponsor, and 1998). This notice informs the public of the Office of the General Counsel, suite a person is not required to respond to, the PBGC's intent and solicits public 340, Pension Benefit Guaranty a collection of information unless it comment on the collection of Corporation, 1200 K Street, NW., displays a currently valid OMB control information. Washington, DC 20005-4026, or number. DATES: Comments should be submitted delivered to that address between 9 a.m. The PBGC estimates that an average of by July 6, 1998. and 4 p.m. on business days. Written 13 contributing sponsors or controlled DDRESSES: Comments may be mailed to comments will be available for public group members per year will respond to the Office of the General Counsel, suite inspection at the PBGC's this collection of information. The 340, Pension Benefit Guaranty Communications and Public Affairs PBGC further estimates that the average Corporation, 1200 K Street, NW., Department, suite 240 at the same annual burden of this collection of address, between 9 a.m. and 4 p.m. on Washington, DC 20005–4026, or information will be 12 hours and $1800 delivered to that address between 9 a.m. business days. per respondent, with an average total and 4 p.m. on business days. Written Copies of the collection of annual burden of 156 hours and information may be obtained without comments will be available for public $23,400. inspection at the PBGC's charge by writing to the PBGC's The PBGC is soliciting public Communications and Public Affairs Communications and Public Affairs comments to Department, suite 240 at the same Department at the address given above • evaluate whether the collection of address, between 9 a.m. and 4 p.m. on or calling 202-326–4040. (For TTY and information is necessary for the proper business days. TDD, call 800-877–8339 and request performance of the functions of the Copies of the collection of connection to 202-326-4040). The agency, including whether the information may be obtained without regulation on Liability for Termination information will have practical utility; charge by writing to the PBGC's of Single-employer Plans can be • evaluate the accuracy of the Communications and Public Affairs accessed on the PBGC's home page at agency's estimate of the burden of the Department at the address given above http://www.pbgc.gov. collection of information, including the or calling 202-326-4040. (For TTY and FOR FURTHER INFORMATION CONTACT: validity of the methodology and TDD, call 800-877–8339 and request Harold J. Ashner, Assistant General assumptions used; connection to 202–326-4040). The Counsel, or Catherine B. Klion, • enhance the quality, utility, and regulation on Disclosure to Participants Attorney, Office of the General Counsel, clarity of the information to be can be accessed on the PBGC's home Pension Benefit Guaranty Corporation, collected; and page at http://www.pbgc.gov. 1200 K Street, NW., Washington, DC minimize the burden of the FOR FURTHER INFORMATION CONTACT: 20005–4026, 202–326–4024. (For TTY collection of information on those who Harold J. Ashner, Assistant General and TDD, call 800-877–8339 and are to respond, including through the Counsel, or Catherine B. Klion, request connection to 202–326–4024). use of appropriate automated, Attorney, Office of the General Counsel, SUPPLEMENTARY INFORMATION: Section electronic, mechanical, or other Pension Benefit Guaranty Corporation, 4062 of the Employee Retirement technological collection techniques or 1200 K Street, NW., Washington, DC Income Security Act of 1974 provides other forms of information technology, 20005–4026, 202-326–4024. (For TTY that the contributing sponsor of a single- eig., permitting electronic submission of and TDD, call 800–877–8339 and employer pension plan and members of responses. request connection to 202-326–4024). Page 9
along" orders does not prohibit a floor SECURITIES AND EXCHANGE II. Self-Regulatory Organization's broker from properly exercising COMMISSION Statement of the Purpose of, and discretion in the representation of an Statutory Basis for, the Proposed Rule order or prevent market participants [Release No. 34–39925; File No. SR-CBOE- Change from effecting legitimate trading 97-67] strategies. In addition, the proposed rule In its filing with the Commission, the change was published for the full Self-Regulatory Organizations; Notice Exchange included statements comment period and Amendment Nos. of Filing of Proposed Rule Change by concerning the purpose of and basis for 1 and 2 do not substantively change the the Chicago Board Options Exchange, the proposed rule change and discussed proposal. Accordingly, the Commission Incorporated, Relating to Substantive any comments it received on the believes that it is consistent with Revisions of the Exchange's Rules proposed rule change. The text of these Section 6(b)(5) of the Act to approve Governing Margin Regulation statements may be examined at the places specified in Item IV below. The Amendment Nos. 1 and 2 to the April 27, 1998. Exchange has prepared summaries, set proposal on an accelerated basis. Pursuant to Section 19(b)(1) of the forth in sections A, B, and C below, of Interested persons are invited to Securities Exchange Act of 1934 the most significant aspects of such submit written data, views, and (“Act"),notice is hereby given that on statements. arguments concerning Amendment Nos. December 29, 1997, the Chicago Board 1 and 2 to the rule proposal, including Options Exchange, Incorporated A. Self-Regulatory Organization's whether Amendment Nos. 1 and 2 are ("Exchange" or "CBOE'') filed with the Statement of the Purpose of, and consistent with the Act. Persons making Securities and Exchange Commission Statutory Basis for, the Proposed Rule Change written submissions should file six ("Commission") the proposed rule copies thereof with the Secretary, change as described in Items I, II, and 1. Purpose Securities and Exchange Commission, III below, which Items have been 450 Fifth Street, N.W., Washington, D.C. prepared by the Exchange. The The Exchange proposes to make 20549. Copies of the submission, all Commission is publishing this notice to revisions to its rules governing margin subsequent amendments, all written solicit comments on the proposed rule regulation that would: (i) Expand the statements with respect to the proposed change from interested persons. types of short positions that would be rule change that are filed with the considered “covered” in a cash account, I. Self-Regulatory Organization's specifically, certain short positions that Commission, and all written Statement of the Terms of Substance of communications relating to the the Proposed Rule Change are components of limited-risk spread proposed rule change between the strategies (e.g., butterfly and box Commission and any person, other than spreads); (ii) allow a bank-issued escrow The Exchange proposes substantive changes to its rules concerning margin agreement to serve as cover in lieu of those that may be withheld from the requirements. The revisions would: (i) cash for certain spread positions held in public in accordance with the Expand the types of short positions that a cash account; (iii) recognize butterfly provisions of 5 U.S.C. 552, will be would be considered "covered" in a and box spreads as strategies for available for inspection and copying at cash account, specifically, certain short purposes of margin treatment and the Commission's Public Reference positions that are components of establish appropriate margin Room. Copies of such filing also will be limited-risk spread strategies (e.g., requirements; (iv) recognize various available for inspection and copying at butterfly and box spreads); (ii) allow a strategies involving stocks (or other the principal office of the Exchange. All bank-issued escrow agreement to serve underlying instruments) paired with submissions should refer to File No. as cover in lieu of cash for certain long options, and provide for lower SR-CBOE-97-50 and should be spread positions held in a cash account; maintenance margin requirements on submitted by May 26, 1998. (iii) recognize butterfly and box spreads such hedged stock positions; (v) permit V. Conclusion as strategies for purposes of margin the extension of credit on certain long treatment and establish appropriate term options and certain long box It is therefore ordered, pursuant to margin requirements; (iv) recognize spreads; (vi) consolidate in one chapter, Section 19(b)(2) of the Act,12 that the various strategies involving stocks (or the various margin requirements that proposed rule change (SR-CBOE-97– other underlying instruments) paired presently are dispersed throughout the 50), including Amendment Nos. 1 and with long options, and provide for lower Exchange's rules; (vii) revise other 2, is approved. maintenance margin requirements on Exchange rules impacted by the such hedged stock positions; (v) permit For the Commission, by the Division of proposal; and (viii) update and improve, Market Regulation, pursuant to delegated the extension of credit on certain long as necessary, current margin rules. authority.13 term options and certain long box Previously, the margin requirements Jonathan G. Katz, the various margin requirements that Secretary presently are dispersed throughout the Regulation T, "Credit by Brokers and (FR Doc. 98–11746 Filed 5–1-98; 8:45 am) Exchange's rules; (vii) revise other Dealers." 2 However, recent BILLING CODE 8010-01-M Exchange rules impacted by the amendments to Regulation T that proposal; and (viii) update and improve, became effective June 1, 1997, modified or deleted certain margin requirements as necessary, current margin rules. The text of the proposed rule change regarding options transactions in favor of rules to be adopted by the option selfis available at the Office of the regulatory organizations ("OSROs'), Secretary, the Exchange, and at the Commission. Page 10
For the Commission by the Division 1979, as amended (as carried out under 74(8)(B) of the Arms Export Control Act of Market Regulation, pursuant to Executive Order 12424 of August 19, (22 U.S.C. 2797c(8)(B)) and North delegated authority.? 1994). Korea's status as a country with a nonMargaret H. McFarland, EFFECTIVE DATE: April 17, 1998. market economy that is not a former Deputy Secretary. member of the Warsaw Pact, the FOR FURTHER INFORMATION CONTACT: (FR Doc. 98-11745 Filed 5-1-98; 8:45 am) Vann H. Van Diepen, Office of following sanctions shall be applied to BILLING CODE 8010-01-M all activities of the North Korean of production of missile equipment or SMALL BUSINESS ADMINISTRATION technology and all activities of the (202-647-1142). North Korean government affecting the SUPPLEMENTARY INFORMATION: Pursuant Capstone Ventures SBIC, L.P. (License No. to Section 73(a)(1) of the Arms Export development or production of 09/79-0413) electronics, space systems or equipment, and military aircraft: (A) New licenses for export to the Investment Company License app. 24016(b)(1)), as carried out under government activities described above Executive Order 12924 of August 19, of items controlled pursuant to the On September 19, 1997, an application was filed by Capstone 1994 (hereinafter cited as the “Export Arms Export Control Act will be denied for two years; Ventures SBIC, L.P., at 3000 Sand Hill Administration Act of 1979'), and (B) No U.S. Government contracts Road, Bldg. 1, Suite 290, Menlo Park, Executive Order 12851 of June 11, 1993, California 94025, with the Small the United States Government involving the government activities described above will be entered into for Business Administration (SBA) determined on April 17, 1998, that the pursuant to Section 107.300 of the following foreign persons have engaged two years; and Regulations governing small business in missile technology proliferation (C) No products produced by the investment companies (13 CFR 107.300 activities that require the imposition of government activities described above will be imported into the United States (1997)) for a license to operate as a small the sanctions described in Sections for two years. business investment company. 73(a)(2) (B) and (C) of the Arms Export Notice is hereby given that, pursuant Control Act (22 U.S.C. 2797b(a)(2) (B) These measures shall be implemented to Section 301(c) of the Small Business and (C)) and Sections 11B(b)(1)(B) (ii) by the responsible agencies as provided in Executive Order 12851 of June 11, Investment Act of 1958, as amended, and (iii) of the Export Administration 1993. after having considered the application Act of 1979 (50 U.S.C. app. and all other pertinent information, SBA 24106(b)(1)(B) (ii) and (iii)) on these Dated: April 24, 1998. issued License No. 09/79-0413 on April entities: Eric D. Newsom, 7, 1998, to Capstone Ventures SBIC, L.P. 1. Changgwang Sinyong Corporation Acting Assistant Secretary of State for to operate as a small business (a.k.a. North Korea Mining Development Political Military Affairs. investment company. Trading Corporation) (North Korea) and (FR Doc. 98–11935 Filed 5-1-98; 8:45 am) (Catalog of Federal Domestic Assistance its sub-units, successors, and affiliated BILLING CODE 4710-25-HH Program No. 59.011, Small Business companies; and Investment Companies) 2. Khan Research Laboratories Dated: April 22, 1998. (Pakistan) and its sub-units and successors. DEPARTMENT OF TRANSPORTATION Don A. Christensen, Accordingly, the following sanctions Associate Administrator for Investment. National Highway Traffic Safety are being imposed on these entities: (FR Doc. 98-11794 Filed 5-1-98; 8:45 am) Administration (A) New individual licenses for export BILLING CODE 8025-01-P to the entities described above of items (Docket No. NHTSA-97-3052; Notice 2] controlled pursuant to the Export Administration Act of 1979 will be Kolcraft Enterprises, Inc.; Grant of DEPARTMENT OF STATE denied for two years; Application for Decision of (B) New licenses for export to the (Public Notice 2798] Inconsequential Noncompliance entities described above of items Bureau of Political-Military Affairs; controlled pursuant to the Arms Export Kolcraft Enterprises of Chicago, Control Act will be denied for two Illinois, has determined that Imposition of Missile Proliferation Sanctions Against Entities in North years; approximately 107,000 child restraint Korea and Pakistan (C) No United States Government systems fail to comply with Federal contracts involving the entities Motor Vehicle Safety Standard (FMVSS) AGENCY: Department of State. described above will be entered into for No. 213, “Child Restraint Systems,” and ACTION: Notice. two years; and has filed an appropriate report pursuant (D) No products produced by the to 49 CFR part 573, “Defects and SUMMARY: The United States entities described above will be Noncompliance Reports." Kolcraft has Government has determined that imported into the United States for two also applied to be exempted from the entities in North Korea and Pakistan years. notification and remedy requirements of have engaged in missile technology With respect to items controlled 49 U.S.C. Chapter 301—“Motor Vehicle proliferation activities that require pursuant to the Export Administration Safety" on the basis that the imposition of sanctions pursuant to the Act of 1979, the export sanction only noncompliance is inconsequential to Arms Export Control Act, as amended, applies to exports made pursuant to motor vehicle safety. and the Export Administration Act of individual export licenses. Notice of receipt of the application Additionally, because of the was published, with a 30-day comment 717 CFR 200.30-3(a)(12). definition of “person” in section period, on November 25, 1997, in the Page 11
Questions concerning this Notice may federal tax payments (FTPs). The Batch Filer the authority vested in my by the Act of be directed to the U.S. Department of and Bulk Filer programs are used by Filers October 19, 1965 (79 Stat. 985, 22 U.S.C. the Treasury, Financial Management for electronically submitting enrollments, 2459), Executive Order 12047 of March Service, Funds Management Division, FTDs, and FTPs on behalf of multiple 27, 1978 (43 FR 13359, March 29, 1978), taxpayers. Surety Bond Branch, 3700 East-West Current Actions: There are no changes and Delegation Order No. 85-5 of June Highway, Room 6A11, Hyattsville, MD being made to the revenue procedure at this 27, 1985 (50 FR 27393, July 2, 1985), I 20792. time. hereby determine that the objects to be Dated: April 27, 1998. Type of Review: Extension of a currently included in the exhibit, “Songs on Mitchell A. Levine, approved collection. Stone: James McNeill Whistler and the Affected Public: Business or other-for- Art of Lithography,” (see list)," Assistant Commissioner, Financial profit organizations. imported from abroad for the temporary Information, Financial Management Service. Estimated Number of Respondents/ exhibition without profit within the (FR Doc. 98-11800 Filed 5–1-98; 8:45 am) Recordkeepers: 620. United States, are of cultural BILLING CODE 4810–35-M Estimated Time Per Respondent/ significance. These objects are imported Recordkeeper: 83 hours, 41 minutes. Estimated Total Annual Reporting pursuant to loan agreements with DEPARTMENT OF THE TREASURY Recordkeeping Burden Hours: 51,885. foreign lenders. I also determine that the The following paragraph applies to all of exhibition or display of the listed Internal Revenue Service the collections of information covered by this exhibit objects at The Art Institute of notice: Chicago from June 6 to August 30, 1998, Proposed Collection; Comment An agency may not conduct or sponsor, is in the national interest. Public Notice Request for Revenue Procedure 98-32 and a person is not required to respond to, of these determinations is ordered to be a collection of information unless the published in the Federal Register. AGENCY: Internal Revenue Service (IRS)collection of information displays a valid Treasury. OMB control number. Books or records Dated: April 28, 1998. ACTION: Notice and request for relating to a collection of information must Les Jin, be retained as long as their contents may General Counsel. comments. become material in the administration of any (FR Doc. 98-11712 Filed 5-1-98; 8:45 am) SUMMARY: The Department of the internal revenue law. Generally, tax returns BILLING CODE 8230-01-M and tax return information are confidential, Treasury, as part of its continuing effort to reduce paperwork and respondent as required by 26 U.S.C. 6103. burden, invites the general public and Request for Comments: Comments DEPARTMENT OF VETERANS other Federal agencies to take this submitted in response to this notice will AFFAIRS opportunity to comment on proposed be summarized and/or included in the and/or continuing information request for OMB approval. All Privacy Act of 1974; Report of collections, as required by the comments will become a matter of Amended Matching Program Paperwork Reduction Act of 1995, public record. Comments are invited on: Public Law 104-13 (44 U.S.C. (a) Whether the collection of AGENCY: Department of Veterans Affairs. information is necessary for the proper ACTION: Notice. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning performance of the functions of the Notice is hereby given that the Revenue Procedure 98–32, Electronic agency, including whether the information shall have practical utility; Federal Tax Payment System (EFTPS) Department of Veterans Affairs (VA) intends to conduct a recurring computer Programs for Reporting Agents. (b) the accuracy of the agency's estimate matching program matching Social DATES: Written comments should be of the burden of the collection of Security Administration (SSA) records received on or before July 6, 1998 to be information; (c) ways to enhance the with VĂ pension and parents' assured of consideration. quality, utility, and clarity of the dependency and indemnity ADDRESSES: Direct all written comments compensation (DIC) records. minimize the burden of the collection of to Garrick R. Shear, Internal Revenue The goal of this match is to compare information on respondents, including Service, room 5571, 1111 Constitution income status as reported to VA with through the use of automated collection Avenue NW., Washington, DC 20224. records maintained by SSA. techniques or other forms of information The Department of Veterans Affairs FOR FURTHER INFORMATION CONTACT: technology; and (e) estimates of capital plans to match records of veterans and Requests for additional information or or start-up costs and costs of operation, surviving spouses and children who copies of the revenue procedure should maintenance, and purchase of services be directed to Carol Savage, (202) 622– receive pension, and parents who to provide information. receive DIC, with the Master Beneficiary 3945, Internal Revenue Service, room 5569, 1111 Constitution Avenue NW., Approved: April 27, 1998. Record (MBR) and Master Earnings File Garrick R. Shear, (MEF) maintained by SSA. Washington, DC 20224. VA will use this information to SUPPLEMENTARY INFORMATION: IRS Reports Clearance Officer. update the master records of VA (FR Doc. 98–11687 Filed 5-1-98; 8:45 am) Title: Electronic Federal Tax Payment beneficiaries receiving income BILLING CODE 4830-01-U System (EFTPS) Programs for Reporting dependent benefits and to adjust VA Agents. benefit payments as prescribed by law. OMB Number: 1545–1601. The proposed matching program will Revenue Procedure Number: Revenue UNITED STATES INFORMATION enable VA to ensure accurate reporting Procedure 98-32. AGENCY of income. Abstract: This revenue procedure provides information about the Electronic Federal Tax Culturally significant Objects Imported 1 A copy of this list may be obtained by Payment System (EFTPS) programs for Batch for Exhibition Determinations contacting Ms. Carol Epstein, Assistant General Filers and Bulk Filers (Filers). EFTPS is an Counsel, at 202/619-6981. The address is U.S. electronic remittance processing system for Notice is hereby given of the Information Agency, 301 4th Street, SW., Room 700, making federal tax deposits (FTDs) and following determinations: Pursuant to Washington, DC 20547-0001. Page 12
rules found at the end of this Federal substantial present or potential hazard and are designated by EPA hazardous Register document. If you have to human health or the environment waste numbers K117, K118, and K136. questions regarding the applicability of when improperly managed. Under The final rule listing wastes from this action to a particular entity, consult $261.11(a)(3), a substance is listed in methyl bromide production was the person listed in the preceding FOR appendix VIII if it has been "shown in published on October 6, 1989 (54 FR FURTHER INFORMATION CONTACT section. scientific studies” to have toxic effects 41402). These wastes are listed at 40 on life forms. II. Legal Authority CFR 261.32 and are designated by Wastes listed as hazardous are subject hazardous waste codes K131 and K132. These regulations are promulgated to federal requirements under RCRA for Methyl bromide and ethylene dibromide under the Solid Waste Disposal Act persons who generate, transport, treat, are also on the Appendix VIII list of (SWDA), as amended by various other store or dispose of such waste. Facilities hazardous constituents. Acts over time. These statutes are that must meet the hazard waste In June of 1991, EPA entered into a commonly referred to as the Resource treatment, storage and disposal proposed consent decree in a lawsuit Conservation and Recovery Act (RCRA) requirements, including the need to filed by the Environmental Defense and are codified at Volume 42 of the obtain permits to operate, are commonly Fund, et al. (EDF v. Reilly, Civ. No. 89– United States Code (U.S.C.), sections referred to as RCRA Subtitle C or 0598 (D.D.C.)), in which the Agency 6901 through 6992k (42 U.S.C. 6901– "Subtitle C” facilities. Subtitle C is agreed, among other things, to publish 6992k). Congress' original statutory designation proposed and final determinations Section 3001(a) of RCRA, 42 U.S.C. for that part of RCRA that directs EPA whether to list wastes from the 6921(a), requires EPA to promulgate to issue regulations for hazardous production of the five other criteria for identifying characteristics of wastes as may be necessary to protect organobromine chemicals evaluated in hazardous wastes and for listing human health or the environment. Thus, this rulemaking. hazardous wastes. Section 3001(b) of facilities like incinerators or landfills Under a recently lodged proposed RCRA requires EPA to promulgate that are required to comply with RCRA consent order in that case, the Agency regulations, based on these criteria, requirements for hazardous waste are is required to promulgate on or before identifying and listing hazardous wastes referred to as Subtitle Cincinerators or April 15, 1998 a final decision on which shall be subject to the landfills. whether or not to list these wastes as requirements of RCRA Subtitle C. Subtitle C is codified as Subchapter III hazardous. The Agency reserves the Hazardous waste is defined at section of Chapter 82 (Solid Waste Disposal) of right to evaluate wastes from the 1004(5) of RCRA, 42 U.S.C. 6903(5). Volume 42 of the United States Code, 42 production of other organobromine There are two types of hazardous waste. U.S.C. 6921 thru 6939e. EPA standards compounds in the future, if and when First, hazardous wastes are those solid and procedural regulations such an evaluation is deemed necessary. wastes which may cause or significantly implementing subtitle C are found contribute to an increase in mortality, generally at 40 CFR parts 260 through III. Summary of the Proposed and Final serious irreversible illness, or 272. Rules incapacitating reversible illness. In Section 3001(e)(2) of RCRA (42 U.S.C. A. Background Analysis addition, hazardous wastes are those 6921(e)(2)) requires EPA to determine solid wastes which may pose a whether to list, as hazardous, wastes To provide a sound technical basis for substantial present or potential hazard generated by various chemical this listing determination, EPA to human health or the environment production processes, including the conducted a study of the organobromine when improperly managed. production of organobromines. chemicals industry in 1991 and 1992. EPA's regulations establishing criteria Solid wastes which are not hazardous Six firms were identified as currently for listing hazardous wastes are codified wastes may be disposed of at facilities manufacturing organobromine at volume 40 of the Code of Federal which are overseen by state and local chemicals at eight facilities in the Regulations (CFR) at $ 261.11 (40 CFR governments. These are the so-called United States. The majority of 261.11). Section 261.11 states three subtitle D facilities. Subtitle D is organobromine chemicals are currently criteria for identifying characteristics Congress' original statutory designation sold as flame retardants. Most are solid and for listing wastes as hazardous. for that part of RCRA which deals with compounds that are incorporated into First, wastes may be classified as non-hazardous solid waste. polymers, which are then used in a "characteristic" wastes if they have the Subtitle D is codified as Subchapter variety of products. Smaller volumes of properties described at 40 CFR 261.20 IV of Chapter 82 (Solid Waste Disposal) organobromine chemicals are used as which would cause them to be classified of Volume 42 of the United States Code reagent chemicals and pharmaceutical as having the characteristics of (42 U.S.C. 6941 thru 6949a). EPA intermediates. Under the authority of ignitability, corrosivity, reactivity and regulations affecting subtitle D facilities RCRA Section 3007, EPA sent toxicity. are found generally at 40 CFR parts 240 questionnaires to these firms and four of Second, wastes may be classified as thru 247, and 255 thru 258. them were selected for engineering site acute hazardous wastes if they are fatal In response to the mandate on visits. These four facilities account for to humans at low doses, lethal in animal organobromine production wastes in over 99 percent of total domestic studies at particular doses designated in RCRA section 3001(e)(2), the Agency tion. Samples of process the regulation, or otherwise capable of undertook a two-year study of the residuals were collected during the site causing or significantly contributing to industry and, eventually, listed several visits to familiarize the Agency with the an increase in serious illness. wastes from the production of ethylene types of materials generated by the Third, wastes may be listed as dibromide (EDB) and methyl bromide. industry. Later in the study, record hazardous if they contain hazardous The final rule listing wastes from the samples to be used as part of the constituents identified in appendix VIII production of EDB was published in the technical basis to decide whether a of 40 CFR part 261 and the Agency Federal Register on February 13, 1986 listing rule is appropriate were collected concludes, after considering eleven (51 FR 5327). These wastes are listed in at facilities of the two largest domestic factors enumerated in § 261.11(a) Title 40 of the Code of Federal producers. EPA published a proposed that the waste is capable of posing a Regulations $ 261.32 (40 CFR 261.32) rule on the listing of organobromine Page 13
between 2,4,6-TBP and 2,4,6-TCP are chemical properties as well (e.g., water this matter. EPA takes the position that, much stronger than those in the pairs in solubility and octanol/water partition depending on the strength of the Figure 2, and thus the uncertainty for coefficients). Physical/chemical evidence, SAR-based listings are the current rulemaking is much less properties such as water solubility and appropriate to use for the hazardous than the uncertainty/error would be for octanol/water partition coefficients are waste listings program. SAR is an a SAR analysis for any of the chemical important because they are related to available tool that can solve a problem pairs in the counter example. EPA has how a compound is absorbed and the Agency faces in the case: Making determined that these data support the distributed in the body. In particular, risk-based regulatory decisions (such as regulation of 2,4,6-TBP under RCRA, the octanol/water partition coefficient is listing determinations) in the absence of because they reasonably support a a measure of a compound's relative Agency-verified or provisional health conclusion that 2,4,6-TBP has a level of solubility in octanol and water, and is benchmarks (e.g., reference dose (RfD), carcinogenicity comparable to that of related to how well a compound reference concentration (RfC), or cancer 2,4,6-TCP, a known carcinogen. dissolves in fat versus the blood. The slope factor (CSF). octanol/water partition coefficient As described in further detail in other C. Issues Regarding the Use of describes a compound's hydrophobicity, places in this preamble, the evidence in Structure-Activity Relationship (SAR) which was mentioned in Section III.A.2. this case rests on four points: 2,4,6-TCP Analysis of this preamble. In cases where direct is a close structural analogue to 2,4,61. Use of SARs to Support Listing chemical-specific toxicity data are TBP; the physical and chemical Constituents in Appendix VIII lacking and where appropriate analogue properties of the compounds are similar; chemicals exist to allow valid the available genetic toxicity data also All seven commenters addressed the comparisons to be drawn, SAR analysis show consistent results for 2,4,6-TCP use of structure-activity relationships (QSARs) in this rulemaking. Two represents a scientifically valid and 2,4,6-TBP; and examples in the approach for assessing the potential literature support the idea that if a commenters stated that SAR analysis cannot be used to support listing a toxicity of a chemical. As discussed in chlorinated compound is a carcinogen, Section III.B. of this preamble, EPA the compound formed by substitution of constituent in Appendix VIII, citing the regards SAR as "scientific studies" and a chlorine with bromine will still be a language of 40 CFR 261.11(a)(3), which believes that the SAR analysis carcinogen. states that constituents may be listed in conducted for this rulemaking does SAR is one approach that was Appendix VIII "only if they have been "show" toxic effects of 2,4,6-TBP designed specifically to address this shown in scientific studies to have sufficiently to support its listing in problem. The use of SAR is particularly toxic, carcinogenic, mutagenic, or Appendix VIII. compelling in the organobromines teratogenic effects on humans or other listing determination. The constituent life forms." The commenters stated that 2. Use of SARs Is a Departure From 2,4,6-TBP has an extremely close SARs are not equivalent to empirical Agency Policy structural analogue (2,4,6-TCP) for data, do not represent “scientific Two commenters stated that the use which direct toxicity data are available. studies" and do not show that 2,4,6- of SAR analysis in this rulemaking Because of this, the Agency specifically tribromophenol has toxic effects on life represents a departure from Agency solicited comment on the policy forms. Therefore, the commenters stated policy. The commenters added that the implications of the use of QSAR/SAR in that information on structure-activity use of SARs in making hazardous waste the organobromines proposal. relationships cannot be used to list determinations establishes a new The Agency has concluded that SAR constituents in Appendix VIII and, criterion for identifying hazardous currently is a viable approach for consequently, may not be used to list wastes and the public was not given making a human health impact hazardous wastes under EPA's sufficient opportunity to comment on determination for the waste stream of regulation. this new criterion. concern. The strong technical argument ĒPA disagrees with the commenters. The Agency agrees that this listing involved, that the principal toxicant of The commenters interpret “shown in represents a new element in the concern, 2,4,6-TBP, is a highly similar scientific studies" to mean directly Agency's hazardous waste listing analogue of 2,4,6-TCP, makes this listing shown in laboratory studies that pertain determination policy in that this is the the appropriate place to use SAR. It is to the constituent in question. EPA does first listing to use SAR as basis for important to note, however, that the not interpret the phrase so narrowly. listing a waste stream as hazardous. determination to list 2,4,6-TBPSAR analysis represents a valid However, the SAR analysis is consistent containing residuals as hazardous scientific approach for assessing with 40 CFR 260.11(a)(3) of EPA's wastes is not based solely on the SAR toxicity. As noted above, EPA has regulations, since EPA's decision to list analysis for 2,4,6-TBP. Other factors concluded that there is sufficient a constituent in Appendix VIII makes were included in the risk assessment, similarity between 2,4,6-TBP and 2,4,6- use of a scientific study that shows the including the concentrations of 2,4,6TCP to justify using a SAR analysis for toxic effects of that constituent. There TBP in the waste, the volumes of waste this rulemaking. has been adequate opportunity to generated, the mobility of the 2,4,6-TBP EPA's use of SAR analysis in comment on this issue, since the in leachate tests of the waste, plausible regulatory programs is not Agency explained in the proposal that it mismanagement scenarios, and unprecedented. EPA has used SAR was interpreting 40 CFR 260.11(a)(3) to potential receptors. analysis for assessing the hazards of allow use of structure-activity chemicals to human health and the relationships. Indeed, the bulk of 3. Validity of SAR Analysis in environment for 15 years in the New comments on the proposed rule dealt Supporting the Hazardous Waste Listing Chemicals Program under section 5 of with the highly technical issue of Determination for 2,4,6-TBP Production Wastes whether SAR could be used to list TSCA. The process of using SAR takes into account the similarity of the hazardous wastes. This is a strong All seven commenters addressed the surrogate chemicals with regard not indication that commenters understood general validity of the SAR analysis only to chemical structure and that they were being given the employed in this rulemaking. One functional reactive groups, but physical/ opportunity to express their views on commenter supported the Agency's use Page 14
Thus, the structural similarities the results of the Agency's SAR analysis Not only is there nothing in the between 2,4,6-TCP and 2,4,6-TBP are for this rulemaking, EPA could take regulation that precludes EPA from greater than those between pairs of appropriate action at that time to revisit considering Appendix VIII and chemicals cited by a commenter in a the listing investigation for 2,4,6-TBP hazardous waste listings in the same counter-example. As described in the production wastes. proposal but, in many instances, to do Listing Background Document and the D. Addition of Constituent to Appendix otherwise could lead to absurd and Response to Public Comment futile results. In general, because listing VIII Document, the physical properties of a substance in Appendix VIII and listing the compounds are also similar, with Two commenters stated that EPA. a substance or a waste stream as a similar octanol/water partition cannot simultaneously propose to list a hazardous waste under 40 CFR coefficients and solubility in the same constituent in Appendix VIII and 261.11(a)(3) involve consideration of a solvents. The available genetic toxicity propose to list a waste as hazardous common factor, toxicity, simultaneous data show consistent results for 2,4,6- because it contains that constituent. The listing is appropriate. TCP and 2,4,6-TBP, although data for commenters contended that this the latter compound are quite limited. E. Plausible Mismanagement Scenario approach is illegal and violates the Finally, examples in the literature and Other Issues in the Listing procedures established in 40 CFR support the idea that if a chlorinated 261.11(a)(3), which require the Agency Determination for Waste Solids From compound is a carcinogen, the the Production of 2,4,6-Tribromophenol. to list a constituent in Appendix VIII compound formed by substitution of a based on the results of "scientific 1. Comments on the Proposed Rule chlorine with bromine still will be a studies” demonstrating that the In comments on the proposed rule carcinogen. Based on this line of substance has toxic or other adverse published May 11, 1994 (59 FR 24530), reasoning, the Agency believes that a effects. Following the listing of a SAR is appropriate in this case, and the one commenter disputed the plausible constituent in Appendix VIII, the mismanagement scenario used by the very strong chemical similarities Agency may use that constituent to between 2,4,6-TCP and 2,4,6-TBP justify justify a hazardous waste listing. Agency to support the proposed listing the use of the cancer slope factor for of 2,4,6-TBP production wastes Therefore, they reasoned that EPA may 2,4,6-TCP as a default value for 2,4,6 (disposal in unlined Subtitle D not proceed with listing the 2,4,6- landfills), and noted that the proposed TBP. tribromophenol production wastes Two commenters expressed rule contained errors in the description because the hazardous constituent reservations regarding the use of QSAR (2,4,6-tribromophenol) was proposed for management practices. The commenter of 2,4,6-TBP waste quantities and SAR analysis to support listing inclusion in Appendix VIII determinations, but outlined conditions stated that it was the sole generator of simultaneously with the proposed under which the use of SARS TBP wastes covered by the proposed be may hazardous waste listing. acceptable. Both of these commenters listing and that all of its solid streams recommended that the Agency require EPA disagrees and finds no basis in containing TBP are shipped to a Subtitle some level of peer review of SAR results the regulation to support this C disposal facility. The generator as a standard procedure, including both contention. Furthermore, this practice is subsequently submitted information internal reviews by Agency senior long-standing. Other simultaneous showing that it disposed of these wastes scientists and external peer reviews. listings are found at 59 FR 24530 (May in Subtitle C facilities for many years. EPA is cognizant of the novelty of the 11, 1994), 59 FR 458 (Jan. 4, 1994), 54 (See letter to Anthony Carrell, EPA, FR 50968 (Dec. 11, 1989), and 51 FR use of SAR analysis for this hazardous from Stephen M. Wallace, Great Lakes waste determination and, therefore, has 6537 (Feb. 25, 1986). Chemical Corporation, dated April 23, subjected its analysis to both internal The plain language of 40 CFR 1997). The generator reported sending Agency review and external peer 261.11(a)(3) provides that a waste shall the waste to various Subtitle C landfills review, as described in Section III.A.4. be listed if it contains an Appendix VIII since 1981 (1981–1990, Chemical Waste constituent and the Administrator Management, Emelle, AL; 1991–1994, 4. Types of Data Appropriate to Support concludes it poses a hazard after Chemical Waste Management, Carliss, or Refute SAR Predictions considering the eleven factors cited in LA; 1995–1996, American Ecology, Five commenters responded to the the regulation. Neither the August 1986 Winona, TX; 1997, Philips Agency's request for information on the preamble text to which the commenter Environmental, Avalon, TX). The types of data appropriate in supporting makes reference nor the regulatory commenter noted that the only waste or refuting SAR results. Three language of 40 CFR 261.11(a)(3) suggest from 2,4,6-TBP production disposed in commenters stated that actual data that a sequential determination is a Subtitle D landfill consists of 10 tons should be used to confirm or refute SAR required. In the August 1986 rule, the of empty soda ash bags that do not predictions and that empirical evidence Agency stated that the significance of contain any TBP. The commenter stated should take precedence over modeling placing a constituent in Appendix VIII that the other combined waste solids predictions. One commenter added that includes the fact that the constituent from TBP production (floor sweepings, the Agency should simplify delisting then can be cited as a basis for listing off-specification product and spent procedures for sole-constituent wastes toxic wastes (51 FR 28296, August 6, carbon from filters) total approximately that were listed based on SAR analysis 1986). Nothing in this statement 34 tons annually. The commenter such that if actual data become available suggests that an Appendix VIII listing argued that EPA's selection of an that refute the SAR conclusions, the must be proposed for public comment unlined Subtitle D landfill as a plausible Agency could delist the waste. EPA and finalized separately from an mismanagement scenario is erroneous appreciates the commenters' response to associated hazardous waste listing. The and, therefore, EPA's risk analysis its request for information on the types public was given ample opportunity to significantly overstates the risk. of data appropriate for supporting or comment on all relevant issues After considering these comments, refuting SAR analyses. If toxicity data concerning both the hazardous waste EPA issued the September 3, 1997, for 2,4,6-TBP become available at some listing and the Appendix VIII listing on letter, noted above, which evaluated point in the future and these data refute which it is based. additional information to support the Page 15
must be examined in conjunction with than 99% of 2,4,6-TBP used as an end- toxic as indicated by SAR and that the concentration and properties of product is shipped overseas to be used disposal of wastes containing high toxic constituents present. In this case, as an intermediate in the production of levels of this toxic chemical in a landfill the relatively small quantity of waste brominated flame retardants; and (3) (even a Subtitle C landfill) poses a contains very high concentrations of a environmental and workplace substantial hazard that requires listing highly toxic constituent, 2,4,6-TBP. monitoring indicate that 2,4,6-TBP is the waste as hazardous. As noted elsewhere in today's rule, not likely to result in substantial One commenter supported the EPA continues to believe that the SAR environmental releases or significant proposed decision to list waste solids results demonstrate that 2,4,6-TBP is exposures to workers, consumers, or the from the production of 2,4,6highly toxic. Furthermore, EPA has general public. Exposure and release tribromophenol, but argued that EPA shown how this toxic chemical, in a information provided by industry and underestimated the risks posed by highly concentrated waste, may the CMA include an industrial hygiene disposal of the waste in a Subtitle C potentially cause a substantial risk even survey from 1979, a historical landfill for at least three reasons. The if managed in a Subtitle C landfill. The prospective mortality study of workers, reasons noted by the commenter were: waste in question is so toxic and a pollution evaluation, and a (1) The TCLP understates the leaching concentrated that release may occur at determination of brominated organic potential of the waste in a Subtitle C levels of concern, even if the compounds in environmental matrices landfill by at least an order of containment system of a Subtitle C (secondary effluents). The available magnitude, because the waste may be landfill were very high (e.g., 95%). exposure information pertains to exposed to solvents and other chemicals Given this result, EPA believes that workers and the potential for general that encourage contaminant leaching, listing is warranted. and because the TCLP appears d. Other Risk Issues. Two commenters manufacturing sites. In deciding to list population exposure from "uniquely ineffective" in leaching argued that the Agency's toxicity waste solids from the production of contaminants from the waste; (2) EPA's assumptions for 2,4,6-TBP are invalid. 2,4,6-TBP, however, EPA considered in risk estimates are based on the presence One stated that EPA failed to address detail the potential exposure and risks of 2,4,6-TBP only and ignore the comments on the use of Quantitative due to the disposal of wastes generated, presence of arsenic and other toxic Structure Activity Relationships (QSAR) not product use. EPA notes that none of contaminants in the waste and TCLP in its risk analysis, and incorporated its the exposure studies used in the ITC leachate; (3) EPA's assumption of 95% previous comments by reference. The decision deal with RCRA issues, for containment efficiency for a Subtitle C commenter also noted that a proposal by example, the EPA to gather the data necessary to landfill is unreasonable given that of TBP in waste presence evaluate 2,4,6-TBP was rejected by the streams, its subsequent disposal in a owner/operator's post-closure landfill, and the potential hazards responsibilities typically end after 30 Interagency Testing Committee (ITC). associated with leakage from such a years; containment efficiency would The commenter stated that, while the landfill or with any mismanagement drop to 60% at 100 years, and beyond ITC originally proposed to include scenario. 100 years additional declines can be 2,4,6-TBP on the priority testing list expected. under Section 4(e) of the Toxic EPA further examined the rationale As a general response to the argument Substances Control Act (TSCA), for the removal of 2,4,6-TBP from the that EPA underestimated the risks posed following receipt of exposure Priority Testing List and does not agree by Subtitle C disposal for the wastes in information from an industry group and that this action in any way undermines question, the Agency notes that these the producer of 2,4,6-TBP, the ITC EPA's use of SAR to estimate the arguments have no practical effect and revised its position and removed 2,4,6 chemical's toxicity. 2,4,6-TBP was not would not change EPA's decision to list TBP from the priority list. The removed from the ITC Priority Testing the waste. However, EPA does not agree commenter stated that the rationale for List because the ITC had found that TBP with some of the arguments put forth by removal of 2,4,6-TBP was based on the was not toxic. Indeed, the chemical was the commenter, and is responding to ITC's determination that originally included on the List because them for this reason. EPA does not agree "environmental and workplace the NIEHS needed chronic toxicity and that the TCLP underestimates the monitoring indicate that 2,4,62-year carcinogenesis study data. The leaching potential of the waste in tribromophenol is not likely to result in availability of these data would obviate question for reasons discussed below. substantial environmental releases or the need for the use of a qualitative or Absent any firm data to conclude significant exposures to workers, quantitative SAR by EPA, which would otherwise, EPA finds no reason to consumers or the general population.” prefer to use actual data on the conclude that the TCLP underestimates EPA has not ignored the comments constituent in question whenever the leaching potential of the 2,4,6-TBP received on the Agency's use of possible. Among the studies cited by production wastes. As a preliminary Structure Activity Relationships for CMA and GLCC as available for EPA matter, EPA notes that the commenter estimating the toxicity of 2,4,6-TBP. review are acute toxicity (oral, cites no basis for its quantified estimate EPA responds fully to all comments inhalation, and dermal), dermal that the leaching is underestimated by related to this issue in a separate section sensitization, skin and eye irritation, 21- one order of magnitude. Moreover, there of today's preamble. As the commenter day inhalation toxicity, 28-day subacute is no indication that the TCLP is noted, the ITC's 40th Report revised the dermal toxicity, clearance, "uniquely ineffective" in leaching TSCA section 4(e) Priority Testing List teratogenicity, genotoxicity, and contaminants from this waste, as the by removing 2,4,6,-TBP, which had pharmacokinetics. None of these studies commenter claims. The properties of previously been recommended for are sufficient to judge the carcinogenic 2,4,6-TBP indicate that the relatively testing in its 39th report (62 FR 8578, potential of TBP, which is the primary low leaching efficiency is not February 25, 1997). The ITC stated that endpoint of concern for this chemical. unexpected. This chemical is not highly it removed 2,4,6-TBP after reviewing Therefore, EPA does not believe that the soluble in water (70 ppm; see The data that demonstrated that: (1) It is ITC decision to remove TBP from the Merck Index, Ninth Edition, 1976) and used as a chemical intermediate to Priority Testing List addresses EPA's would not be expected to leach from the produce flame retardants; (2) greater determination that 2,4,6-TBP is highly organic waste matrix at very high levels. Page 16
"inherently waste-like" materials. tribromophenol product. Such off- comply with numerical treatment Accordingly, these materials are not specification product should be very standards for 2,4,6-tribromophenol to be hazardous wastes; thus, furnaces similar to discarded material that might promulgated in 40 CFR 268.40, and that processing them are not processing carry the U408 listing and, as such, the 2,4,6-tribromophenol be added as a hazardous wastes and are not subject to discarded U-waste may present underlying hazardous constituent the BIF regulations. Listed and comparable risks and is even more subject to the universal treatment characteristic brominated streams that likely to be disposed of in an unlined standards of 40 CFR 268.48. do not meet the criteria of 40 CFR landfill). EPA responded above, and in Since treatment data currently are not 261.2(d)(2), i.e., that contain >1% of the separate Response to Public available for 2,4,6-TBP, the Agency Appendix VIII materials, are considered Comment Document, to all comments proposed to set the UTS for 2,4,6-TBP inherently waste-like and should not be on the SAR analysis. These listing based on analytical detection limit data burned in non-RCRA facilities. Today's determinations are based on the transferred from 2,4,6-trichlorophenol. listing of TBP wastes does not alter the projected toxicity of 2,4,6-TBP from The structures of 2,4,6-tribromophenol criteria of this exclusion nor subject the structural activity studies, and the and 2,4,6-trichlorophenol are commenter's BRUs to any additional assessment of risk from potential sufficiently similar to be considered requirements. If the commenter's exposure to this chemical. EPA's halogenated congeners of phenol. Both brominated waste streams meet the decision to list these wastes as halogenated phenols contain three criteria for the exclusion, the BRUs to hazardous represents a determination by symmetrically placed bromine or which these streams are fed are not the Agency that the wastes identified in chlorine substituents that are difficult to subject to regulation under part 266, this action meet the criteria for listing remove by chemical substitution. The subpart H. hazardous wastes presented in 40 CFR chemical behavior and mechanisms of Finally, the Agency notes that the sole 261.11. Specifically, based on available action for 2,4,6-tribromophenol are generator of the 2,4,6-tribromophenol evidence, the Agency concludes that expected to be similar to its chlorinated production solids did not attempt to use 2,4,6-tribromophenol is similar in analogue, 2,4,6-trichlorophenol. Thus, this material as feedstock for the BRU, toxicity to its chlorinated analogue the Agency proposed the treatment even in the absence of a hazardous (2,4,6-trichlorophenol) and, therefore, standards for 2,4,6-tribromophenol at waste listing. One commenter questioned the may pose a risk to human health and the 7.4 mg/kg for nonwastewaters and 0.035 environment if improperly land mg/L for wastewaters for 2,4,6accuracy of early sampling and analysis disposed. tribromophenol. results obtained at one facility. This Based on the data collected by the The Agency solicited comment commenter submitted a letter to the Agency during the recent regarding the achievability of this Agency in 1993 detailing concerns over organobromines industry study and the standard by demonstrated available the quality and accuracy of some of the unique conditions of the industry technologies and regarding the analytical results. The commenter regarding limitations to future analytical detection limit of 2,4,6-TBP concluded in the 1993 letter, “There are expansion, EPA believes there is ample in treatment residual matrices. The a great many non-credible and justification for a no-list determination Agency also solicited any available data questionable analyses in this study. We on the concentrations 2,4,6-TBP in believe that the analytical work will for wastes generated from production of treatment residuals from the recovery or simply not stand up to close scrutiny. the other organobromine chemicals destruction of wastes containing 2,4,6The analytical results are not of a decree (i.e., tetrabromobisphenol A, TBP. The analytical method for 2,4,6quality that lend themselves to making a valid risk assessment or developing TBP is SW-846 method 8270 (GC/MS bromochloromethane, ethyl bromide, octabromodiphenyl oxide, and for semivolatiles, capillary column). regulations for the organo-bromine decabromodiphenyl oxide) and for In response to the Agency's request industry. The validity and accuracy for comment, Chemical Waste simply aren't there.” EPA prepared a wastewaters from 2,4,6-tribromophenol Management, Inc. supported the Agency's proposed treatment standards associated with organobromine wastes; it in the public docket for today's toxicological, chemical, the Environmental Technology Council, rulemaking. EPA notes that none of the hydrogeological, and engineering while objecting to setting treatment questioned data were used as a basis for viewpoints, EPA has concluded that the standards on the sole basis of analytical the decision to list wastes from the disposal of any wastes from these detection limits, noted that EPA can use processes production of 2,4,6-tribromophenol. that are not currently listed in technology transfer to develop standards 40 CFR part 261, subpart D does not V. Conclusions from similar chlorinated organics. pose a substantial present or future risk Therefore, EPA is promulgating the The Agency is listing, as EPA to human health or the environment. Hazardous Waste No. K140, floor Therefore, EPA is not listing any proposed UTS for 2,4,6-TBP at 7.4 mg/ sweepings, off-specification product, additional hazardous wastes generated kg for nonwastewaters and 0.035 mg/L for wastewaters. and spent filter media from the from the production of these chemicals. production of 2,4,6-tribromophenol. The Agency received no comments B. Applicable Technology EPA is also listing discarded 2,4,6-TBP objecting to its decision not to list these The single facility that produces 2,4,6product as EPA Hazardous Waste No. wastes. TBP wastes uses a bromine recovery U408. EPA received no comments VI. Land Disposal Restrictions unit (BRU) to recover bromine values objecting to the listing of U408, except from organic liquid and vapor waste to the extent that issues relating to SAR A. Treatment Standards for streams. In this unit, the organics are may be considered relevant to the U408 Organobromine Wastes burned and the combustion products are listing. (EPA notes, however, that the In the land disposal restrictions Phase removed by a wet scrubber. The BRU is analysis completed for the listing of III proposed rule (60 FR 11722, March a halogen acid furnace which meets the K140 also included an evaluation of the 2, 1995), EPA proposed that the newly regulatory definition of industrial risks posed by off-specification 2,4,6- identified K140 and U408 wastes furnace in 40 CFR 260.10. The Page 17
applicable 40 CFR part 265 ground- Agency's methodology for adjusting RQs additional process applies to RCRA water monitoring and financial of individual hazardous substances listed wastestreams, which contain responsibility requirements no later begins with an evaluation of the individual hazardous constituents. As than November 4, 1998. If the facility intrinsic physical, chemical, and the Agency has stated (54 FR 33440, fails to submit these certifications, toxicological properties of each August 14, 1989), to assign an RQ to a authority to manage the newly listed hazardous substance. 12 The intrinsic RCRA wastestream, the Agency wastes under 40 CFR 270.42(g) will properties examined-called "primary determines the RQ for each constituent terminate on that date. criteria”—are aquatic toxicity, acute within the wastestream and establishes mammalian toxicity (oral, dermal, and the lowest RQ value of these X. Listing as CERCLA Hazardous inhalation), ignitability, reactivity, Substances and RQ Adjustment constituents as the adjusted RQ for the chronic toxicity, and potential wastestream. All hazardous wastes listed in 40 CFR carcinogenicity. Generally, for each Adjusted RQs for 2,4,6261.31 through 261.33, as well as any intrinsic property, the Agency ranks tribromophenol and K140. Waste U408 solid waste that meets one or more of hazardous substances on a scale, is 2,4,6-tribromophenol, an individual the characteristics of a RCRA hazardous associating a specific range of values on hazardous substance. It has been waste (as defined at 40 CFR 261.21 each scale with an RQ of 1, 10, 100, evaluated for the six primary RQ through 261.24), are hazardous 1000, or 5000 pounds. Each hazardous adjustment criteria-aquatic toxicity, substances under the Comprehensive substance may receive several tentative acute mammalian toxicity, ignitability, Environmental Response, RQ values based on the primary criteria. reactivity, chronic toxicity, and Compensation, and Liability Act of The lowest of the tentative RQs becomes potential carcinogenicity-and the 1980, as amended (CERCLA), pursuant the “primary criteria RQ" for that secondary adjustment criteria of BHP. to CERCLA section 101(14)(C), 42 U.S.C. substance. Available studies of aquatic toxicity 9601(14). CERCLA hazardous After the primary criteria RQs are have measured an LC50 of 6.54 mg/L for substances and their reportable assigned, substances are evaluated the fathead minnow, resulting in a quantities (RQs) are listed in Table further for their susceptibility to certain primary criterion RQ of 100 pounds for 302.4 at 40 CFR 302.4. Therefore, in degradative processes, which are used the substance. addition to the K140 listing being as secondary RQ adjustment criteria. In addition, based on an analysis of promulgated today for 40 CFR 261.32 These natural degradative processes are the structural and chemical similarities and the U408 listing being promulgated biodegradation, hydrolysis, and of 2,4,6-tribromophenol and 2,4,6for 40 CFR 261.33, the Agency also is photolysis (BHP). If a hazardous trichlorophenol and an evaluation of the adding K140 and 2,4,6-tribromophenol substance, when released into the potential carcinogenicity of the latter of to the list of CERCLA hazardous environment, degrades relatively the two substances, EPA has estimated substances at Table 302.4 of 40 CFR rapidly to a less hazardous form by one a low hazard ranking for the potential 302.4. or more of the BHP processes, its ŘQ (as carcinogenicity of 2,4,6-tribromophenol. Reporting Requirements. Under determined by the primary RQ This low hazard ranking results in a CERCLA section 103(a), the person in adjustment criteria) generally is raised primary criterion RQ of 100 pounds. charge of a vessel or facility from which one level.13 This adjustment is made Based on this evaluation and the a hazardous substance has been released because the relative potential for harm absence of relevant BHP data, the in a quantity that equals or exceeds its to public health or welfare or the Agency today is finalizing an adjusted RQ must immediately notify the environment posed by the release of RQ of 100 pounds for 2,4,6National Response Center of the such a substance is reduced by these tribromophenol. release. In addition to this reporting degradative processes. Conversely, if a The EPA is adjusting the RQ of waste requirement under CERCLA, section 304 hazardous substance degrades to a more K140 in accordance with the of the Emergency Planning and hazardous product after its release, the methodology for adjusting RQs of Community Right-to-Know Act of 1986 original substance is assigned an RQ hazardous wastestreams by assigning (EPCRA), 42 U.S.C. 11004, requires equal to the RQ for the more hazardous them RQs equal to that of the owners or operators of certain facilities substance, which may be one or more wastestream constituent with the lowest to report the release of a CERCLA levels lower than the RQ (as determined RQ. hazardous substance in a quantity that by the primary RQ adjustment criteria) equals or exceeds its RQ to State and for the original substance. The XI. Regulatory Impact Analysis and local authorities. EPCRA section 304 downward adjustment is appropriate Compliance Costs notification must be given to the because the potential for harm posed by A. Regulatory Impact Analysis Pursuant community emergency coordinator of to Executive Order 12866 the local emergency planning committee increased as a result of degradative Executive Order 12866 requires that a (LEPC) for each area likely to be affected processes. The methodology summarized above regulatory agency determine whether a by the release, and to the State is applied to adjust the ROs of new regulation will have "significant emergency response commission (SERC) individual hazardous substances. An regulatory action" and, if so, that a costof any State likely to be affected by the benefit analysis be conducted. This release. 12 For more detailed information on this analysis is a quantification of the Adjustment of RQs. Under section methodology, see the preamble to an RQ adjustment potential benefits, costs, and economic 102(b) of CERCLA, all hazardous final rule published on August 14, 1989 (54 FR impacts of a rule. A significant substances under CERCLA have a 33426). A different methodology is used to assign adjusted RQs to radionuclides (see 54 FR 22524, statutory RQ of one pound unless and regulatory action is defined as a until adjusted by regulation. The May 24, 1989). regulation that has an annual cost to the 13 No RQ level increase based on BHP occurs if economy of $100 million or more that the primary criteria RQ already is at its highest adversely affects in a material way the 11 The toll free telephone number of the National possible level (100 pounds for potential carcinogens Response Center is 800-424–8802; in the and 5000 pounds for all other types of hazardous economy, a sector of the economy, Washington, DC metropolitan area, the number is substances except radionuclides). BHP is not productivity, competition, jobs, the 202-267-2675. applied to radionuclides. environment, public health or safety, or Page 18
6. Appendix VII to Part 261 is amended by adding the following waste stream in alphanumeric order. Appendix VII to Part 261—Basis for Listing Hazardous Waste
PART 261-IDENTIFICATION AND Industry and EPA haz Hazard Hazardous waste ardous code Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y) and 6938. 4. In & 261.32 the table is amended by 5. In $ 261.33(f) the table is amended adding in numerical order the following by adding in numerical order the waste stream to the subgroup 'Organic following substance to read as follows: chemicals': § 261.33 Discarded commercial chemical & 261.32 Hazardous wastes from specific products, off-specification species, container residues, and spill residues thereof.
PART 268—LAND DISPOSAL RESTRICTIONS 8. The authority citation for Part 268 continues to read as follows:
Subpart C-Prohibitions on Land Disposal Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6924. 9. Section 268.33 is added to read as follows:
268.33 Waste-specific prohibitions organobromine wastes. (a) Effective November 4, 1998, the waste specified in 40 CFR 261.32 as EPA Hazardous Wastes Numbers K140, and in 40 CFR 261.33 as EPA Hazardous waste number U408 are prohibited from land disposal. In addition, soils and debris contaminated with these wastes, radioactive wastes mixed with these hazardous wastes, and soils and debris contaminated with these radioactive mixed wastes, are prohibited from land disposal. (6) Between May 4, 1998 and November 4, 1998, the wastes included in the paragraph (a) of this section may
be disposed in a landfill or surface specified in § 268.40, the initial impoundment only if such unit is in generator must test a sample of the compliance with the requirements waste extract or the entire waste, specified in $268.5(h)(2). depending on whether the treatment (c) The requirements of paragraphs (a) standards are expressed as and (b) of this section do not apply if: concentrations in the waste extract or (1) The wastes meet the applicable the waste, or the generator may use treatment standards specified in subpart knowledge of the waste. If the waste D of this part; contains constituents (including (2) Persons have been granted an underlying hazardous constituents in exemption from a prohibition pursuant characteristic wastes that have been to a petition under $ 268.6, with respect diluted to remove the characteristic) in to those wastes and units covered by the excess of the applicable Universal petition; Treatment Standard levels of $268.48, (3) The wastes meet the applicable the waste is prohibited from land treatment standards established disposal, and all requirements of this pursuant to a petition granted under part 268 are applicable, except as § 268.44; otherwise specified. (4) Hazardous debris that has met treatment standards in § 268.40 or in the Subpart D— Treatment Standards alternative treatment standards in $268.45; or 10. In $268.40 the table is amended (5) Persons have been granted an by adding in alphanumeric order the extension to the effective date of a following new entries. The appropriate prohibition pursuant to $268.5, with footnotes are republished without respect to these wastes covered by the change. extension. (d) To determine whether a hazardous $268.40 Applicability of treatment waste identified in this section exceeds standards. the applicable treatment standards Page 19
obtained the correct telephone number Amtrak, regulations establishing minimum standards to contact the U.S. Coast Guard. Long Island Rail Road (LIRR), for the safety of cars used by railroad carriers Considerable effort has focused on MTA Metro-North Railroad (METRO to transport passengers. Before prescribing NORTH), how to mitigate casualties after a train such regulations, the Secretary shall Northeast Illinois Regional Commuter consideraccident occurs. In this regard, even Railroad Corporation (METRA), (1) the crashworthiness of the cars; before the occurrence of the tragic Peninsula Corridor Joint Powers Board (2) interior features (including luggage accident near Mobile, FRA had tasked (CALTRAIN), restraints, seat belts, and exposed surfaces) DOT's Volpe National Transportation Port Authority Trans-Hudson Corporation that may affect passenger safety; Systems Center (TSC), in Cambridge, (PATH), (3) maintenance and inspection of the cars; Massachusetts, to perform research and Southern California Regional Rail Authority (4) emergency response procedures and (METROLINK), to recommend emergency preparedness equipment; and Southeastern Pennsylvania Transportation guidelines for passenger train operators. (5) any operating rules and conditions that Authority (SEPTA), directly affect safety not otherwise governed by regulations. 1993 as a publication entitled RAIL), The Secretary may make applicable some or "Recommended Emergency TSC, and all of the standards established under this Preparedness Guidelines for Passenger Virginia Railway Express (VRE). subsection to cars existing at the time the Trains" (Volpe Report), which is During the meeting, FRA agreed to regulations are prescribed, as well as to new available to the public through the assist the passenger railroads in cars, and the Secretary shall explain in the National Technical Information Service, establishing improved working rulemaking document the basis for making Springfield, VA 22161 (DOT/FRA/ORD- relationships with their host freight such standards applicable to existing cars. (b) INITIAL AND FINAL 93–24-DOT-VNTSC-FRA-93–23). The railroads. FRA also promised to help the publication references safety railroads in their emergency REGULATIONS.—(1) The Secretary shall passenger prescribe initial regulations under subsection recommendations of the NTSB, as well response efforts in larger metropolitan (a) within 3 years after the date of enactment as many other publications on the areas by contacting emergency response of the Federal Railroad Safety Authorization subject of emergency preparedness, and agencies and eliciting more cooperation Act of 1994. The initial regulations may contains recommended guidelines between them. In addition, FRA stated exempt equipment used by tourist, historic, designed to assist passenger train that it would conduct field visits to scenic, and excursion railroad carriers to operating systems and emergency several passenger railroads to study transport passengers. response organization management in their equipment and their emergency (2) The Secretary shall prescribe final evaluating and modifying or response and training programs. regulations under subsection (a) within 5 supplementing their emergency At that same meeting, the passenger years after such date of enactment. response plans. A copy of the Volpe railroads agreed to provide stronger (c) PERSONNEL.—The Secretary may establish within the Department of Report has been placed in the public supervisory oversight of their Transportation 2 additional full-time docket for this rulemaking. emergency response and training equivalent positions beyond the number The Volpe Report recommendations programs, and stated that they would permitted under existing law to assist with address guidelines relating to offer additional, structured "hands-on” the drafting, prescribing, and implementation emergency plans, procedures, and training to their train crews concerning, of regulations under this section. training. In addition, guidelines are the removal of emergency windows and (d) CONSULTATION.-In prescribing presented for passenger train and passenger evacuation. They also agreed regulations, issuing orders, and making facility features intended to shorten amendments under this section, the Secretary to develop programs for recurring emergency response time, improve the passenger car inspections, emphasizing may consult with Amtrak, public authorities effectiveness of evacuating passengers, operating railroad passenger service, other checking of emergency equipment such railroad carriers transporting passengers, and minimize the effects of an as windows, tools, and fire organizations of passengers, and emergency. The publication also lists extinguishers. Further, they agreed to organizations of employees. A consultation is inter-organizational emergency improve their methods of apprising not subject to the Federal Advisory protocols, which include those of fire passengers of emergency information, to Committee Act, (5 U.S.C. App.), but minutes departments, emergency medical include seat placards inside each of the consultation shall be placed in the services (EMS), police departments, car, and messages in on-board public docket of the regulatory proceeding. public utilities, hospitals, and local, newsletters. While FRA was encouraged The Secretary of Transportation has State, regional, and Federal that passenger railroads had already delegated these rulemaking governments. begun to incorporate the responsibilities to the Federal Railroad In an effort to be proactive after the Administrator. 49 CFR 1.49(m). accident near Mobile, FRA mailed the into their own emergency preparedness FRA is committed to the maximum Volpe Report to all intercity passenger procedures and policies, more progress feasible use of collaborative processes in and commuter railroads, freight by the entire industry was needed. the development of safety regulations. railroads, the United Transportation Consistent with the intent of Congress the safety of the operation of rail Union, and the Brotherhood of that FRA consult with the railroad enacted Locomotive Engineers in March 1994 for section 215 of the Federal Railroad passenger service, Congress industry, FRA invited various their information and guidance. Safety Authorization Act of 1994, Pub. organizations to participate in a Concurrent with this mailing, FRA L. No. 103–440, 108 Stat. 4619, 4623– passenger train emergency preparedness invited the railroads to attend an 4624 (November 2, 1994), entitled working group (Working Group) to focus agency-sponsored roundtable meeting in "Passenger Car Safety Standards," on the issues related thereto and build Washington, D.C., on June 9, 1994, to which amended 49 U.S.C. 20133 to read the framework for the development of a discuss the emergency preparedness as follows: Notice of Proposed Rulemaking (NPRM) issues addressed in the publication. The and, ultimately, the final rule. FRA held 23 persons attending the roundtable $ 20133. Passenger cars its first Working Group meeting on included representatives from FRA and (a) MINIMUM STANDARDS.-The August 8, 1995. The 33-member the following other organizations: Secretary of Transportation shall prescribe Working Group was comprised of Page 20
response situations that inevitably drills. Tabletop exercises, with follow- many of the fire departments overlap to occur, should be sufficient to up debrief and critique, are very such an extent, that by performing the accomplish the objectives of evaluating effective and less administratively set number of route simulations in the and improving the ability of railroads burdensome. Certain exercises, such as proposal, some of the departments and emergency responders to function window removal or after-dark could be involved in three or more effectively in the event of an accident. conditions, can be performed as part of simulations per year. Because of Amtrak recommended that if the final a tabletop drill by moving to the nearest liability and publicity concerns, most rule requires some actual full-scale rail facility. Subsequent to the Working fire departments would elect to be fully experiences each year, an actual Group meeting held in Washington, D.C. involved, but too many simulations may response, accompanied by an on August 28, 1997, CALTRAIN dilute the aggressiveness of the appropriate debriefing and critique, recommended that any full activation of emergency responders. METRA satisfy that requirement. the emergency preparedness plan in suggested that the number of required APTA stated that the simulation either an actual accident or other simulations should be reduced in the requirement should be either deleted or emergency situation count as a final rule to only two per year, and that made optional, and noted that simulation, instead of only triggering a videotaping of emergency simulations commuter railroads agree with the 180-day extension of the timeframe in could be used in the preparation of intent of the regulation, but object to a which to perform the full-scale training for future simulations. prescriptive approach. APTA observed simulation, while if no such activation In its comments, the NTSB expressed that simulations, especially full-scale occurred, then the two-year cycle would concern that a railroad could comply ones, are time consuming, expensive, apply. Since a “real” activation would with the rule by only performing and benefit a small percentage of be fully evaluated and modifications tabletop exercises each time it conducts employees. It stated that in view of would be made, a "simulated" drill an emergency simulation. The NTSB these factors, the requirement to would be burdensome and redundant. stated that a tabletop simulation perform simulations at all combined Also, while CALTRAIN makes exercise is not equal to a comprehensive with the requirement to perform reasonable efforts to contact and invite full-scale exercise, since only a fullsimulations on 50 percent of main lines area agencies, attendance is not scale exercise involving personnel and each year, goes beyond what is mandatory. It argued that the final rule equipment can demonstrate an necessary for emergency preparedness. should discuss "best efforts to contact, organization's capability and readiness APTA also noted that since train, and participate" in drills, since to respond to a disaster. It also noted emergency responders are not required response agencies have budgetary and that full-scale exercises best afford a to attend, commuter railroads often hold other issues with which to contend that railroad the ability to assess the full-scale training sessions that are affects their ability to participate in effectiveness of its emergency response poorly attended. It argued that each emergency drills on any given day. plan and to identify the resources railroad should be permitted to METRA commented that it has 13 necessary to support its plan in an maintain operational flexibility to major lines, and would have to hold 6.5 actual emergency, as well as to uncover determine the best way to involve simulations each year under the specific problems, and that emergency emergency responders. proposal. It noted that the participants response personnel can only become The LIRR noted that emergency would also have to be trained before familiar with railroad equipment by response agency costs vary and are each simulation, and under proposed 49 participating in full-scale search-anddifficult to uantify, since the majority of CFR 239.105, debriefing and critique rescue scenarios. fire departments and ambulance crews sessions would be held afterward. The Office of Emergency Management are volunteers. Since they are METRA assumes that responder of DuPage County, Illinois commented volunteers, it may be difficult for the preplanning requires three weeks, the that a simulation is a much better means LIRR to get them to attend many drills. actual simulation takes two to four of training emergency responders to However, there are costs for equipment weeks to plan and coordinate, and the respond to a significant emergency than usage (e.g., fuel) and for medical critique is performed a week after the a classroom alone. However, DuPage supplies (e.g., bandages and splints). simulation and compiled and acted County has three METRA lines running The railroad noted that, including upon the following week, for a total of through it (and a fourth in planning), preparation, it takes two full months to 58.5 weeks spent performing 6.5 and would have to perform two plan a full-scale simulation, integrate it simulations. Under the proposal, simulations annually in addition to with the responding agencies, METRA contends that it would have to meeting other Federal emergency coordinate and integrate it with the conduct more than five simulations per planning requirements. The commenter railroad's own transportation people year due to its system size and number noted that although a tabletop exercise (track time, service disruptions, of major routes. Even if the personnel is a great way to discuss policy and talk alternative means of transportation, and budget could be found to plan and about what will likely happen, until a development of the program and conduct this level of simulation every person actually goes into the field and scenario), and then complete the drill. year, METRA believes that it is stands next to the rail car or has to move Internally, the LIRR uses tabletop questionable that the region's injured persons off the second level of exercises extensively for procedure emergency responders could participate a rail car, it is impossible to know how review and testing. They are used in at this level. one really does it. areas where it is difficult to get track METRA states that the Illinois Law The Des Plaines, Illinois Fire time and run the railroad, and are less Enforcement and Standards Board has Department believes that its employees effective than practical, experiential certified METRA's program for training get more knowledge through individual drills and training because of the all law enforcement personnel training at the departmental level than minimal amount of exposure to the throughout Illinois, and requests that a they can from mass casualty situations emergency responders. "Train the Trainer” program be added or large-scale incidents, and notes that CALTRAIN commented that tabletop to the final rule as a means of ensuring individual training ensures that all exercises should be accorded the same a qualified response to passenger train personnel go through the hours of weight and emphasis as actual field emergencies. METRA's concern is that classes and go out on a train to touch Page 21
In its comments, the AAR for its failure to comply with the the general railroad system of acknowledged that while freight requirements of part 239. transportation. These terms are intended railroads neither provide nor operate the portion of the emergency to have the same meaning as in part 239 rail passenger service themselves, and preparedness plan addressing the host of this chapter. However, FRA does not are not subject to most of the rule's railroad's responsibilities shall, at a intend for its definition of “railroad" in requirements, freight railroads still have minimum, include procedures for either this part or part 239 of this certain emergency preparedness notifying emergency responder chapter to have any bearing on how the responsibilities. The AAR organizations and discuss the railroad's term is used for purposes of the recommended that FRA not revise the general capabilities for rendering regulatory activities of the Surface proposed language of $ 239.101(a)(3), assistance to an involved passenger Transportation Board. since it is in a freight railroad's interest railroad during an emergency situation. to coordinate with a passenger railroad The host railroad must also address any 2. Requirements for New or Rebuilt to ensure emergency preparedness. The physical and operating characteristics of Equipment: Section 223.9 AAR rejected APTA's concern about its rail lines that may affect the safety of FRA received no comments regarding freight railroads refusing to cooperate the rail passenger operations, e.g., proposed paragraph (d), and the with the passenger railroads, arguing evacuation of passengers from a train paragraph is adopted as proposed. In that APTA, or any other interested stalled in a tunnel or on an elevated accordance with the requirements of 49 party, presented no data or evidence to structure. CFR 223.9(c) and 223.15(c), all indicate that passenger railroads have Section-by-Section Analysis passenger cars must be equipped with at experienced problems from freight least four emergency windows, which railroads refusing to coordinate As a number of the issues and must be designed to permit rapid and provisions have been discussed and emergency responses. The AAR easy removal during a crisis situation. believed that FRA would never fine a addressed in detail in the preceding Section 223.9(d) requires that all discussions, this section-by-section passenger railroad that demonstrates windows intended by a railroad to be that it attempted to comply with the analysis will explain the provisions of used during an emergency situation be regulation, but was unable to coordinate the final rule and changes from the properly marked inside and outside, with a freight railroad due to the freight NPRM by briefly highlighting the and that the railroad post clear and railroad's refusal to cooperate. rationales or referring to the prior understandable instructions for their discussion. The discussions and Based upon careful consideration of use at or near the designated locations. conclusions contained above should be the comments, FRA is requiring Section 223.9(d)(1) requires that the considered in conjunction with the communication and coordination emergency windows be conspicuously analysis contained below. Each and legibly marked on the inside of the between all railroads affected by this rule involved in each passenger comment received has been fully car with luminescent material. FRA considered by FRA in preparing this realizes that during an emergency a operation, by mandating the submission final rule. main power supply to the passenger by the passenger railroad of one FRA amends part 223 of title 49, Code cars may become inoperative and that emergency preparedness plan that is of Federal Regulations by adding six crewmembers with portable flashlights jointly prepared. Accordingly, if a State new definitions and requiring railroads may be unavailable. Since lack of clear or public authority provides commuter operating passenger train service to identification or lighting could make it rail passenger train service by clearly mark emergency windows. FRA difficult for passengers to find the contracting with another railroad to also adds part 239 to title 49, Code of emergency exits, the rule requires actually operate the service, and the Federal Regulations specifically devoted luminescent material on all emergency passenger operation is in turn hosted by to prescribing minimum Federal safety windows to assist and speed passenger a freight railroad, all three entities are standards concerning the preparation, egress from the train during an required to work together and file one adoption, and implementation of emergency. The marking of the emergency preparedness plan for the emergency preparedness plans by emergency windows must be operation setting forth each railroad's railroads connected with the operation conspicuous enough so that a procedures and responsibilities under of passenger trains. reasonable person, even while enduring the plan. If for example, a passenger the stress and potential panic of an operation will fulfill none of the 1. Definitions: Section 223.5 emergency evacuation, can determine requirements of emergency planning, Section 223.5 is reorganized and where the closest and most accessible with the host railroad having all of the definitions of four important terms responsibilities under the plan, this fact employed in the passenger train emergency route out of the car is located. In addition, while this must be clearly stated in the plan. emergency preparedness regulations are subsection does not prescribe a In the event of noncompliance by any added. The four new defined terms are particular brand, type, or color of or all of the entities involved in the “emergency responder,” “passenger luminescent paint or material that a implementation of the plan, FRA train service," "person,” and “railroad." railroad must use to identify a window reserves the right to initiate appropriate For ease of reference, FRA defines the exit, FRA intends each railroad to select enforcement action against all parties term "railroad" so as to include the a material durable enough to withstand participating in the plan. Of course, statutory (49 U.S.C. 20102) definitions the daily effects of passenger traffic, FRA will intervene to assist any railroad of both “railroad” and “railroad carrier" such as the contact that occurs as that is having difficulty crafting a joint and to clarify that those who provide passengers enter and leave the cars. emergency preparedness plan, and help railroad transportation directly or METROLINK, in commenting on the mediate a solution. While FRA might through an operating contractor are proposed rule, noted that the last line of not initially seek an injunction to railroad carriers. Thus, the term $223.9(d) requires "each railroad (to) prevent a passenger train operation from “railroad" is clearly intended to include post clear and legible operating operating due to a host railroad's failure commuter authorities as well as rapid instructions at or near such exits," to cooperate, FRA could initiate civil transit authorities whose operations are stated that it assumes that the penalty action against the host railroad in an urban area and are connected with referenced instructions relate to the Page 22
about the possibilities of theft of its on- request, FRA would conduct a factual statements to railroad employees, and board emergency equipment and/or investigation to determine whether contain implementation details vandalism of its passenger cars, and there was a basis to deviate from the concerning the roles, responsibilities, wanted FRA's permission to post general criteria without compromising and expectations for employee warnings to members of the general or risking a diminution of rail safety. participation. The plan does not have to public that committing such acts could 11. Information Collection: Section be one single document with each subject them to Federal penalties. FRA section applying to every railroad that is 239.15 encourages railroads to notify their a party to the plan or to every affected passengers (and any potential vandal or FRA is adding this section to note that railroad employee and location; instead, trespasser) that in addition to any it is inserting the OMB approval number the plan may consist of multiple Federal or state criminal statutes that for the information collection documents, with a separate section of exist to prohibit vandalism, theft, requirements of this rule for part 239, the plan detailing the specific trespassing, or tampering involving since OMB has completed its review responsibilities for each job category or railroad equipment, property, or and granted approval. This section also function or railroad or all. In instances operations, FRA may impose a civil identifies the sections of part 239 that where a railroad hosts the operations of penalty upon any individual who contain information collection a passenger railroad, both railroads have willfully causes a railroad to be in requirements. to address issues of emergency violation of any requirement of this part. 12. Emergency preparedness plan: preparedness. The rule requires the host Take for example, a railroad that Section 239.101 railroad to jointly develop the supplies each of its passenger cars with applicable portions of an emergency one fire extinguisher and one pry bar, In drafting the final rule, FRA preparedness plan with the operating and provides each of its on-board recognized that the specific operations crewmembers with one flashlight. By of each individual passenger train passenger railroad, uniquely dealing with the passenger operations not equipping its train with all of these system must be considered in the otherwise addressed. A detailed items, the railroad would be in full development and implementation of discussion of the requirement to jointly compliance with the minimum effective emergency preparedness adopt a single emergency preparedness requirements of paragraph programs. Factors which should be plan for the passenger service is 239.101(a)(6)(i) of this part. considered include system sizes and included in the preceding "Discussion Accordingly, if unbeknownst to the route locations, types of passenger cars of Comments and Conclusions” portion railroad, a vandal pilfers a pry bar from and motive power units, types of right of this document under item number 5. one of the passenger cars while the train of-way structures and wayside facilities, The majority of passenger train is in service FRA can impose a civil and numbers of passengers carried, as operational difficulties are handled penalty upon that individual for causing well as internal railroad organizations effectively and do not become the railroad to be in violation of 49 CFR and outside emergency response emergencies. Since in many instances a part 239. FRA recommends that in resources. Under the final rule, each train crew can immediately take action addition to posting written warnings on railroad subject to the regulation is to resolve a problem and potential and in passenger cars, railroads use on- required to establish an emergency emergency without evacuating the train, board announcements to remind their preparedness plan designed to safely existing emergency preparedness passengers of the serious consequences manage emergencies and minimize policies deemphasize immediate that can result from placing the railroad subsequent trauma and injury to evacuation from trains located between in violation of the important safety passengers and on-board railroad stations unless passengers and crews are requirements of this part. personnel. The plan must reflect the in immediate danger. Accordingly, in The final rule includes a schedule of railroad's policies, plans, and readiness most situations, after notifying the civil penalties in an Appendix A to 49 procedures for addressing emergencies. control center that a problem exists and CFR part 239, to be used in connection The railroad is expected to employ its receiving permission, the train crew will with this part. Commenters were invited best efforts, under the circumstances of move the train to the nearest station or to submit suggestions to FRA describing the emergency situation, to execute the safe location (e.g., outside a tunnel) the types of actions or omissions under provisions of its plan. before taking further action. If the train each regulatory section that would In their development of emergency crew is unable to resolve the situation, subject a person to the assessment of a preparedness plans, FRA encourages railroad personnel or outside emergency civil penalty. Commenters were also railroads to integrate, as practicable, the responders may be sent to the invited to recommend what penalties recommended guidelines contained in emergency scene to provide mechanical may be appropriate, based upon the the Volpe Report. The report provides a aid, alternate transportation, or medical relative seriousness of each type of comprehensive degree of specificity. assistance. violation. FRA did not receive any While the final rule does not require the The effectiveness of a railroad's public comments nor did the Working special level of detail reflected in the overall response under its emergency Group present any recommendations to Volpe Report, FRA advocates that preparedness plan will be greatly the agency on this topic. Accordingly, railroads voluntarily incorporate such influenced by the type of emergency FRA has drafted the penalty schedule elements and items as appropriate into with which the train crew is presented based on its own analysis of the the development of their own (e.g., injury or illness, stalled train, inherent seriousness of violating the emergency preparedness plans, and suicide or accidental collision with a requirements of part 239 of this chapter. reject recommendations only after person, derailment or collision, smoke judicious consideration. or fire, severe weather conditions or 10. Waivers: Section 239.13 While FRA stresses that each railroad natural disasters, and vandalism or Section 239.13 identifies FRA's ability should retain latitude in developing an sabotage). The response will also be to grant waivers of compliance with the emergency preparedness plan affected by the characteristics and type requirements of this rule. Requests for appropriate for its operations, the plan of train involved and the functional such waivers can be filed by any must provide a comprehensive status of electrical and mechanical interested party. In reviewing the overview, make clear and positive systems, including lighting, ventilation, and public address systems. In addition, operation, the rule does not mandate emergency responders. Railroads should the operational environment (e.g., a that every element be addressed Page 23
preparedness training) as part of regular Rationale for Requiring Two-year at least one first-aid kit (see the sectionoperating rules training programs. Interval by-section analysis of this issue under Comments were also requested In rejecting the request of various the "On-board emergency equipment" concerning the estimated dollar amount commenters to raise the time interval heading for a detailed discussion of this of the incremental additional costs between periodic training cycles for on requirement), the final rule does not connected with modifying existing board and control center employees to require on-board personnel to receive training programs to comply with this three years, FRA carefully considered training in first-aid or in CPR. Although proposal. FRA was interested in both financial cost issues and the safety FRA initially considered including ascertaining whether the training ramifications of weakening an integral these items as training requirements in requirements would merely add de element of emergency preparedness. the rule, or at least mandating that minimis costs to each railroad's existing Based upon FRA's analysis, the railroads offer employees the agency training program or if compliance recognizes that railroads providing and opportunity to receive this training, the would entail moderate or significant hosting passenger train service will consensus of the Working Group during additional costs. experience cost increases by being the drafting of the NPRM was that both first-aid and CPR training should be The majority of the organizations that required to train their employees at least excluded from the rule. The Working submitted comments on § 239.101(a)(2) once every two years. However, FRA concludes that the effective and efficient Group stressed that the goal of the rule recommended that FRA modify the management of passenger train is to ensure that emergency responders requirement for employee training and arrive promptly at the scene of an qualification by permitting each railroad emergencies begins with properly trained and knowledgeable railroad emergency, not to train on-board to provide periodic training at least once employees onboard the trains and in the personnel to act as emergency every three years, responders. The Working Group also once every two years. In this regard, obtaining the assistance of emergency stated that even if FRA requires a Amtrak recommended that the periodic responders and ensuring the safety of railroad to offer first-aid and CPR training requirement be changed to at the passengers. FRA believes that in training, no railroad can literally force least once every three years, to coincide order to maximize a railroad's level of an on-board crewmember to assist an with Amtrak's interval for refresher emergency preparedness, frequent ailing passenger. Further, trains with training on first aid. Although Amtrak refresher training is essential, and any heavier passenger loadings are likely to stated that three years would provide periodic requirement longer than at have on board one or more medical sufficient frequency, it did not provide least once every two years increases the professionals whose skills will be more a reason. Amtrak also noted that probability that a certain number of extensive, and better practiced, than railroads will provide their employees employees would become unfamiliar those of a crewmember whose primary with interim updates when major with their crucial emergency and recurring duties do not include changes to their emergency response preparedness roles. medical emergencies. programs occur. As discussed in the analysis of During the Working Group meeting on APTA offered no comment on the $ 239.103, FRA requires railroads February 7, 1996, Amtrak stated that it frequency of periodic training for on operating passenger train service to is spending between $2.5 to $3 million conduct full-scale emergency by fiscal year 1998 to train the chiefs of board personnel, but recommended a simulations to evaluate their overall on-board service and to provide for at training cycle of three years for control center personnel. Consistent with the emergency response capabilities and least one employee on every train being ensure that emergency preparedness trained to administer first-aid and requirements of 49 CFR part 240 plans, procedures, and equipment perform CPR. Under the Amtrak plan, (Qualification and Certification of address the particular needs of various employees will not be required to use Locomotive Engineers), APTA stated types of passengers. Emergency this training, merely to receive it. that a three-year training cycle better fits simulations can help railroads achieve Despite the extent of Amtrak's the training programs of all commuter these goals through careful selection of commitment to voluntarily providing railroads, especially the larger ones. the time and location of the simulation extensive first-aid and CPR training, APTA also argued that a three-year and participation by personnel from the Amtrak did not want these items training cycle would permit better railroads, outside emergency responder required in the final rule. Another scheduling of funding outlays for this organizations, and "volunteer member of the Working Group, important training activity. passengers." In addition to classroom METROLINK, stated that it has served CALTRAIN commented that a three- training, simulations provide employees approximately eight million passengers year cycle of formal training is with a practical and realistic in three years of operation, and has preferable, since existing training drills understanding of rules, procedures, never had a passenger require CPR. regularly provide much of the required trains, and right-of-way structures/ METROLINK also noted that commuter materials. CALTRAIN also stated that wayside facilities as they relate to railroads generally operate in populated since formal training may require emergency response. FRA expects that areas, with professional emergency reassignment, a three-year training cycle the employee training provided in responders in most cases only minutes better allows for budgeting and accordance with $ 239.101(a)(2) will away. The LIRR stated that it offers CPR personnel reassignments during austere include instruction on the importance of training to newly hired employees and full-scale emergency simulations in shows a refresher film to employees fiscal times. achieving successful implementation of every five years, but acknowledged that The LIRR stated that a three-year the emergency preparedness plan. it cannot force employees to administer qualification period for emergency CPR. The railroad also noted that it preparedness training would meet the First-Aid and CPR Training would never want the engineer to leave criteria set forth in the rule. However, Although $ 239.101(a)(6)(ii) has been the controls of the locomotive during an the LIRR offered no supporting data for added to require railroads providing emergency. NJTR indicated that its train this assertion. intercity service to equip each train with crews already have many duties to Page 24
perform the functions for which they are a separate emergency preparedness plan Tunnels Section 239.101(a)(4)(i) addresses provisions of the railroad's emergency preparedness responsibilities involving FRA's requirements for compliance with preparedness plan. For example, in the the service being hosted. (See the this part by railroads with operations year 2002 (a date beyond the deadline preceding “Discussion of Comments that include tunnels of considerable for the completion of initial training and Conclusions” portion of this length, where immediate passenger under $ 239.101(a)(2)(iii) by all existing document under the heading of item railroads providing intercity passenger egress is not feasible. Since FRA did not number 5 for a detailed discussion of receive any comments on this issue, service), a train on an intercity railroad the requirement that a joint emergency is scheduled to travel from Washington, preparedness plan be submitted for each paragraph (a)(4) is adopted as proposed. In order to limit the number of D.C. to Atlanta, Georgia with a fourpassenger train operation by all structures covered by this paragraph to person operating crew fully trained railroads involved with providing, the longer ones that could be expected under the applicable provisions of the operating, or hosting such passenger railroad's emergency preparedness plan. service.) The final rule also recognizes to present more impediments to the safe and orderly withdrawal of passengers However, the train crew also includes that while hosts of passenger train from a disabled train, tunnels of less someone assigned to perform service as service are generally freight railroads, an attendant in a sleeping car (and not than 1,000 feet are excluded. This passenger railroads (e.g., Amtrak) may limitation is reasonable, considering as a new railroad employee for purposes also serve as hosts. of $ 239.101(a)(2)(iv)) who is not yet that intercity passenger trains seldom The host railroads must prepare consist of less than four cars and often qualified under the plan's provisions to sections of the emergency preparedness perform assigned functions. Although have many more cars than this, plans addressing instances when they this train already has a fully trained and implying a minimum total train length host the operations of rail passenger qualified crew operating the train, the of 400 or more feet. Most likely, a train service over their lines. Even though intercity railroad would still not be in of this or greater length will have either freight railroads may neither provide the head or rear end close to or outside full compliance with the final rule since nor operate rail passenger service the crew includes one on-board of a tunnel portal should an unplanned themselves, and therefore not be subject stop occur in a tunnel less than 1,000 crewmember who is not qualified under to most requirements of the proposed feet long. the emergency preparedness plan. (See rule, these railroads still have certain Over the years, passenger train the preceding “Discussion of Comments and Conclusions” portion of this significant emergency preparedness emergencies have occurred in tunnels responsibilities. The emergency document under the heading of item where existing emergency procedures number 1 for a detailed discussion of preparedness plan sections addressing and tunnel characteristics, such as hosting by both freight and passenger FRA's decision to revise the definition lighting and communication railroads must, at a minimum, include of "crewmember" in $ 239.7 and capabilities, were determined to be increase the on-board staffing procedures for making emergency inadequate. In order to better evaluate requirements.) The one exception to the responder notifications, and discuss tunnel safety issues related to general capabilities for rendering general rule, as set forth in emergency preparedness, FRA requested assistance to the involved hosted subparagraph (B), applies if, for additional information from the railroad passenger railroads during emergency example, a fully-trained passenger train industry. The results were summarized crew turns over the operation of its train situations. The hosting railroads must in a report entitled "Tunnel Safety to a freight railroad train crew that is not address any physical and operating to a freight railroad train crew that is not characteristics of their rail lines that Analysis" (Tunnel Report), which was qualified under the passenger railroad's published by FRA in February 1990. A emergency preparedness plan. Provided may affect the safety of the hosted rail copy of the report was also made that the passenger train is operated by passenger operations, e.g., evacuating available to the rail passenger railroads the freight crew with at least one onpassengers from a train stalled in a for their information and guidance, and board crewmember of the passenger tunnel or on an elevated structure. has been placed in the docket for this train present who is qualified under the FRA expects a railroad that operates rulemaking. FRA encourages all passenger railroad's emergency rail passenger service over the line of railroads required to address tunnel preparedness plan and available to another railroad to review all of the safety in their emergency preparedness perform excess service under the requirements imposed by the final rule plans to consult the Tunnel Report for Federal hours of service laws in the with the host railroad, and coordinate guidance. FRA is also aware that many event of a passenger train emergency, their respective roles in implementing a State and local jurisdictions already there would be no violation of the final coherent response to an emergency impose site-specific regulations to rule. situation. While FRA presumes that the address tunnel safety, and that most host railroad will bear primary. railroads with operations involving Joint Operations responsibility for ensuring the tunnels have long-standing internal Section 239.101(a)(3) has been revised emergency preparedness of any railroad emergency tunnel procedures. from the NPRM, and now contains the permitted to operate intercity passenger requirement that each freight or or commuter trains over its line, the Other Operating Considerations passenger railroad hosting passenger final rule does not restrict the host FRA also did not receive any train service shall communicate with railroad and the operating railroad from comments on $ 239.101(a)(4)(ii), and has that service's provider or operator or assigning responsibility for compliance adopted paragraph (a)(4)(ii) as proposed. both and coordinate applicable portions with this part via a private contractual The paragraph requires that railroads of the one jointly-adopted emergency arrangement. FRA is including the operating on elevated structures, over preparedness plan for that passenger coordination requirement to ensure that drawbridges, and in electrified territory, service. One significant difference to the all railroads involved in a particular rail incorporate emergency preparedness language of paragraph (a)(3) from the passenger service operation understand procedures into their plans to address NPRM stage, is that the final rule each other's crucial role in planning for these unique physical characteristics. prohibits a host railroad from utilizing emergency preparedness. For example, in an emergency in Page 25
Passenger awareness education procedures that must be followed procedures and equipment can be should include information that may during an emergency. As set forth in the evaluated. permit passengers to accomplish the preceding "Discussion of Comments FRA recognizes that full-scale following: and Conclusions" portion of this emergency exercises require weeks of • Recognize and immediately report document under the heading of item carefully organized plans involving all potential emergencies to crewmembers; number 3, the survey requirement and participating organizations and involve • Recognize hazards; its accompanying recordkeeping burden the expenditure of funds for both the • Recognize and know how and when have been deleted from the final rule. training and the actual full-scale to operate appropriate emergency exercise. Recording or videotaping the related features and equipment, such as 13. Passenger Train Emergency scenes and conversations in key areas of fire extinguishers, train doors, and Simulations: Section 239.103 the exercise itself can serve as valuable emergency exits; and Section 239.103 recognizes that one of classroom training for later years. A full• Recognize the potential special the most effective training techniques is scale exercise is the total application of needs of fellow passengers during an a simulation of specific emergency the resources of the passenger railroad emergency, such as children, the scenarios. Simulations may vary from a operator and the voluntarily elderly, and disabled persons. FRA had asked for public comment small-scale drill or tabletop exercise for participating emergency response organizations. Such an exercise can on whether the final rule should include just one train crew or control center fixed timeframes in which railroads operator, to a full-scale emergency reveal the degree of familiarity of both must provide their passengers with exercise involving several levels of the passenger train system and additional methods of safety awareness railroad management that includes the emergency response organization personnel with train operations, the information, and urged commenters to supply scientific or sociological data departments , ambulance and emergency physical layout of trains, right-of-way medical service units, local police, structures and wayside facilities, and/or cost estimates in support of their sheriff and state police organizations, emergency exits, and emergency suggested time intervals. The general local emergency auxiliary groups, and equipment. Thus, shortcomings in the recommendation of the commenters was that the final rule should leave the state and federal regulatory agencies. emergency preparedness plan and features of the awareness programs to While simulations are primarily specific response protocols and each railroad's discretion, and that the designed to demonstrate that railroad procedures, as well as equipment, can be identified and corrected. key component of this requirement employees can quickly and efficiently In the NPRM, FRA questioned should be flexibility so that railroads manage an emergency situation to can utilize the right mix of passenger ensure that emergency responders arrive whether tabletop exercises should be quickly, simulations are also intended afforded the same weight in the final communication techniques. rule as full-scale simulations for Based to determine whether train crews are FRA's consideration of upon this issue, instead of specifying fixed properly trained to get passengers out of purposes of demonstrating the readiness of a railroad to successfully react to a maximum time intervals between an imperiled train. passenger train emergency. FRA also utilizing the additional forms of stated that the final rule might require program activity, FRA will allow the tabletop exercise is the simplest to stage, that each railroad conduct a minimum railroads to determine the optimal as it involves only a meeting room and number of its simulations as full-scale frequency that best serves their knowledgeable managers and employees exercises. In this regard, FRA was passengers and their operations. FRA from the passenger train operator and skeptical as to whether a tabletop expects that as the traveling public the appropriate responding exercise could equal the grows more accustomed to reading and organizations who voluntarily comprehensiveness of a full-scale understanding the emergency participate. For an imaginary exercise and be a highly effective means instructions posted inside all passenger emergency, the actions to be taken by of determining whether a railroad is cars on bulkhead signs, seatback decals, the appropriate personnel are described; adequately prepared for the likely or seat cards the need for redundant the time, equipment, and personnel variety of emergency scenarios that reminders (e.g., on-board necessary are estimated; and potential could occur on its lines, as well as an announcements, ticket envelope safety problems are predicted. Conflicts of important training tool for the train information, or public service functional areas, lack of equipment, crews, control center employees, and announcements), especially at frequent procedural weaknesses or omissions, members of the emergency responder time intervals, will greatly diminish. communication difficulties, and community who elect to participate. In Moreover, depending on the additional confusing terminology are among the contemplating during the NPRM stage of method selected, different time intervals problems which can be identified. this proceeding whether to strengthen may be appropriate. For example, while Passenger train operators can drill the emergency simulation requirement, it may be suitable for a railroad to their train crews, other on-board FRA was aware that realistic full-scale distribute safety awareness information personnel, supervisors, and control simulations that enable all participants on a seat drop every three months, the center operators on emergency operating to practice using the on-board railroad may conclude that it shouid procedures by posing a hypothetical emergency equipment and emergency arrange for public service emergency for employees to resolve exits (and encourage the emergency announcements on a weekly basis. without dispatching emergency responders to become personally responders to the scene. A drill could familiar with passenger equipment and Passenger Surveys also involve the voluntary participation applicable railroad operations) could Paragraph 239.101(a)(7)(iii) of the of personnel of a particular response prove invaluable in helping railroads NPRM would have required railroads to organization, e.g., a fire department. The and the emergency responder perform surveys of their passengers in same type of problems as indicated for community to manage real emergencies order to learn how successful the the tabletop exercise can be identified, in ways that tabletop exercises cannot. passenger awareness program activities and the actual response capabilities of However, FRA was also aware that the are in apprising passengers of the personnel in terms of their knowledge of financial and logistical costs of Page 26
responders. Since Amtrak is involved in emergency preparedness plan. Upon preparedness plan under these approximately one grade crossing or review of the comments, FRA circumstances, or any other trespasser incident every other day, a recognizes the potentially significant circumstances, for purposes of satisfying requirement to conduct a debriefing and commitment of resources that such a the emergency simulation requirements critique session after such occurrences session can involve, and does not wish of $ 239.103. would be burdensome. to impose this obligation on railroads While a significant derailment with CALTRAIN commented that the unless the evaluation process would one or more injured passengers or a fire debriefing requirement fails to establish focus on ways to improve the on a passenger train would undoubtedly the threshold or norms that trigger a effectiveness of the emergency involve significant threats to passenger debriefing and critique session. preparedness plan in ways that would safety, and therefore require a debriefing CALTRAIN argued that this decision benefit passengers on board the train. and critique session, the proposed rule should be made by railroad Since emergency situations involving left open the question of what other management, with the exception of significant threats to the safety or health types of emergency situations would simulation drills and tabletop exercises, of train passengers that require trigger the requirements of this section. which typically conclude with a immediate attention may entail a variety The NPRM sought public comment on debriefing and critique. of unique fact patterns, the railroad what sorts of situations, or "significant APTA commented that under the employees and passengers involved threats," FRA should include in the proposal, a commuter railroad must the invaluable debriefing and critique final rule under the definition of conduct a debriefing after every exercise can help individuals involved “emergency” or “emergency situation” passenger train emergency. APTA in future incidents benefit from a set forth in $ 239.7. Although no suggested that FRA revise the rule to add a threshold before the debriefing prompt and coordinated response from comments were received, FRA has the railroad and the emergency revised the definition of “emergency” or requirement is triggered, and responder community. However, "emergency situation" in $ 239.7 to recommended that the requirement be because collisions of the type set forth include: derailments; a fatality at a triggered only when a major emergency affects five or more passengers. As in paragraph (b) occur with greater · grade crossing; a passenger or employee proposed, APTA argued that the regularity and involve more predictable fatality, or an illness or injury to one or fact patterns (e.g., a motor vehicle at a more crewmembers or passengers provision would be costly to comply with and annoy passengers, without any gate arm and is hit by a passenger train, gated crossing circumvents a lowered requiring admission to a hospital; an evacuation of a passenger train; and a corresponding benefit to rail safety. For with no one on the train suffering an security situation (e.g., a bomb threat). example, a passenger heart attack would injury), debriefing and critique sessions The final rule does not prescribe an trigger the debriefing requirement. In after these incidents would quickly FRA form or other substantive addition, APTA noted that the become repetitive in nature. questionnaire to be used at the opportunity for passenger fraud is much Accordingly, FRA would burden the debriefing and critique sessions, or set greater, since a passenger being debriefed may attempt to collect money railroads, yet achieve only a marginal forth specific questions to be asked after a full-scale simulation or actual from the railroad for a nonexistent benefit to rail safety. emergency. Paragraph (c) simply injury. In accordance with the above change requires the railroad to determine, by Although METROLINK did not in the final rule, while the term whatever means it selects, the address the issue of establishing a "emergency or emergency situation" is effectiveness of its emergency threshold level in the final rule that defined in $ 239.7 of this part to include preparedness plan; specifically, the would trigger the debriefing and critique a collision with a person, including functional capabilities of the on-board requirement, it did comment before suicides, FRA does expect a railroad to communications equipment, the issuance of the NPRM that if a conduct a debriefing and critique timeliness of the required emergency commuter railroad did a tabletop session after every grade crossing notifications, and the overall efficiency exercise or simulation, it could not accident. Although the railroad would of the emergency responders and the follow the criteria of the proposal for a still be expected to invoke its emergency emergency egress of the passengers. debriefing. During a table exercise or preparedness plan in the event of any Although the requirements of paragraph simulation, a railroad does not usually grade crossing accident, the goal of this (c) were included in the NPRM as notify the emergency responders via the final rule is to ensure that railroads paragraph (b), the requirements remain normal means of communication, does effectively and efficiently manage essentially unchanged under its new not respond via normal emergency passenger train emergencies. designation, except for some minor conditions (code three with lights and Accordingly, FRA does not intend for stylistic changes. sirens), and does not involve real the debriefing and critique requirements In the NPRM, FRA had invited passengers in the simulation. As noted of this section to apply when an comments on whether the final rule in FRA's preceding "Discussion of emergency situation involves only a should specify additional types of issues Comments and Conclusions” portion of motorist or pedestrian who has been that must be addressed by railroads at this document (item number 2), as well injured or killed, but does not affect the debriefing and critique sessions (in as in the sectional analysis of $ 239.103, passengers onboard the train. Of course, addition to the five issues required to be the final rule prohibits a railroad from if a grade crossing accident leads to an addressed in paragraph (c)), or whether counting a tabletop exercise toward the evacuation of the passenger train (e.g., a each railroad should retain some simulation requirement of the final rule. gasoline truck collides with the side of flexibility to develop its own approach Accordingly, METROLINK's concern is a passenger train, and diesel fuel begins to conducting these sessions. FRA did no longer relevant. to leak from the locomotive, creating the not receive any comments on this issue. A substituted paragraph (b) has been risk of a fire or an explosion), then a Upon further deliberation, FRA added to $ 239.105 to set forth the railroad must conduct a post-accident concludes that if a railroad rigorously limited circumstances under which a debriefing and critique session. In analyzes its emergency response debriefing and critique session is not addition, a railroad cannot count its scenario in accordance with the five required after a railroad has activated its activation of the emergency required subparagraphs to paragraph (c), and corrects all relevant deficiencies other appropriate action to ensure that equipment, operation of these doors has identified by the debrief and critique this element of emergency preparedness required considerable effort, including session, there is no need to impose any planning is sufficiently addressed. hand tools. If a power loss occurs, additional requirements in the final In order to achieve the goals of this crewmembers may be unable to open rule. Nevertheless, still FRA encourages section, and to comply with the |
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