issue-1996-06-05•Federal Register final rules — 1996-06-05
Federal Register final rules — 1996-06-05
issue-1996-06-05Federal Register final rules — 1996-06-05Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 96-14238 Open Video Systems
[Federal Register Volume 61, Number 109 (Wednesday, June 5, 1996)]
[Rules and Regulations]
[Pages 28698-28718]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14238]
[[Page 28697]]
_______________________________________________________________________
Part V
Federal Communications Commission
_______________________________________________________________________
47 CFR Part 76
Open Video Systems; Final Rule
Federal Register / Vol. 61, No. 109 / Wednesday, June 5, 1996 / Rules
and Regulations
[[Page 28698]]
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 76
[CS Docket No. 96-46; FCC 96-249]
Open Video Systems
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: The Second Report and Order describes rules and policies
concerning open video systems. The Second Report and Order amends our
regulations to reflect the provisions regarding open video systems in
the Telecommunications Act of 1996 (the ``1996 Act''). The Second
Report and Order fulfills Congress' mandate in adopting the 1996 Act
and will provide guidance to open video system operators, video
programming providers, and consumers concerning open video systems.
DATES: Effective date: July 5, 1996, except for Sec. 76.1502 which is
not effective until approval by OMB of the new information
requirements. The Commission will publish a document at a later date
notifying the public as to the effective date of Sec. 76.1502.
Written comments by the public on the proposed and/or modified
information collections are due on or before July 5, 1996. Written
comments must be submitted by the Office of Management and Budget (OMB)
on the proposed and/or modified information collections on or before 60
days after publication of the Second Report and Order in theFederal
Register.
ADDRESSES: A copy of any comments on the information collections
contained herein should be submitted to Dorothy Conway, Federal
Communications Commission, Room 234, 1919 M Street, N.W., Washington,
D.C. 20554, or via the Internet to [email protected], and to Timothy
Fain, OMB Desk Officer, 10236 NEOB, 725-17th Street, N.W., Washington,
D.C., 20503 or via the Internet to [email protected].
FOR FURTHER INFORMATION, CONTACT: Rick Chessen, Cable Services Bureau,
(202) 418-7200. For additional information concerning the information
collections contained herein, contact Dorothy Conway at 202-418-0217,
or via the Internet at [email protected].
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Report and Order in CS Docket No. 96-46, FCC No. 96-249, adopted May
31, 1996 and released June 3, 1996. The full text of this decision is
available for inspection and copying during normal business hours in
the FCC Reference Center (room 239), 1919 M Street, NW, Washington,
D.C. 20554, and may be purchased from the Commission's copy contractor,
International Transcription Service, (202) 857-3800, 1919 M Street, NW,
Washington, D.C. 20554.
The Second Report and Order contains proposed and/or modified
information collections. It has been submitted to the OMB for review,
as required by the Paperwork Reduction Act of 1995. The Commission, as
part of its continuing effort to reduce paperwork burdens, invites the
general public and OMB to comment on the information collections
contained in the Second Report and Order. Comments should address: (a)
whether the proposed collections of information are necessary to the
proper performance of the functions of the Commission, including
whether the information shall have practical utility; (b) the accuracy
of the Commission's burden estimates; (c) ways to enhance the quality,
utility, and clarity of the information collected; and (d) ways to
minimize the burden of the collection of information on the
respondents, including the use of automated collection techniques or
other forms of information technology.
OMB Approval Number:3060-0700.
Title:Implementation of Section 302 of the Telecommunications Act
of 1996; Open Video Systems.
Type of Review:Revision of a currently approved collection.
Respondents:640. (10 OVS operators, 250 video programming providers
that may request additional Notice of Intent information, file rate
complaints, or initiate dispute cases, 60 broadcast stations that may
elect type of carriage or make network non-duplication notifications,
300 must-carry list requesters, 20 oppositions to OVS operator
certifications.)
Number of Responses:3750. (10 Notices of Intent, 250 requests for
additional Notice of Intent information, 250 responses to requests for
additional Notice of Intent information, 50 rate complaints, 50 rate
justifications, 60 carriage elections, 10 must-carry recordkeepers, 300
must-carry list requests, 300 provisions of must-carry lists, 1200
notifications of network non-duplication rights to OVS operators, 1200
OVS operator notifications of network non-duplication rights to
programming providers, 10 certifications of compliance, 20 oppositions
to certifications of compliance, 20 dispute case complainants, and 20
dispute case defendants.)
Estimated Burden to Respondents: Notice of Intent requirements: 10
prospective OVS operators are estimated to be in existence within the
next year. Average number of entities that prospective OVS operators
must notify with each Notice of Intent: 45. Average burden to each OVS
operator to complete a Notice of Intent and to provide copies to all
applicable entities: 8 hours apiece; therefore 10 x 8 = 80 hours.
Estimated number of written requests for additional information that
will be received subsequent to Notices of Intent: 25 per Notice of
Intent x 10 Notices = 250. Average burden to prospective video
programming providers to make each written request: 2 hours apiece;
therefore 10 x 25 x 2 = 500 hours. Average burden to each OVS
operator to provide the additional information to all prospective video
programming providers: 8 hours apiece; therefore 10 x 8 = 80 hours.
Total burden for all respondents = 80 + 500 + 80 = 660 hours. Rate
Justification requirements: Estimated number of rate complaints that
video programming providers will file: 5 per OVS operator; therefore 10
x 5 = 50. Estimated number of rate justifications filed by OVS
operators in response to rate complaints: 50. Burden to video
programming providers for filing complaints: 1 hour per complaint;
therefore 50 x 1 = 50 hours. Burden to OVS operators for filing rate
justifications: 20 hours per justification; therefore 10 x 5 x 20 =
1,000 hours. Total burden for all respondents: 50 + 1,000 = 1050 hours.
Must-Carry and Retransmission Consent requirements: Number of OVS
operators: 10. Average number of broadcast stations in each OVS
operator's area of carriage: 6. Average burden to broadcast stations
for each election for must-carry or retransmission consent: 2 hours per
election; therefore 10 x 6 x 2 hours = 120 hours. Annual
recordkeeping burden for OVS operators to maintain list of its
broadcast stations carried in fulfillment of must-carry requirements: 4
hours per OVS operator; therefore 10 x 4 = 40 hours. Estimated annual
number of written requests received by OVS operators: 30 per OVS
operator; therefore 10 x 30 = 300. Burden for completing written
requests: .25 hours per request; therefore 10 x 30 x .25 = 75
hours. Burden to OVS operators to respond to requests: .25 hours per
request; therefore 10 x 30 x .25 = 75 hours. Total burden for all
respondents: 120 + 40 + 75 + 75 = 310 hours.
Sports Exclusivity, Network Non-Duplication and Syndicated
Exclusivity requirements: Estimated number of occurrences where
television broadcast stations must notify OVS operators of exclusive or
non-duplication rights
[[Page 28699]]
being exercised: 6 stations in each OVS operator's area of carriage x
20 annual notifications x 10 OVS operators = 1200. Burden to
television stations to make notifications: .5 hours per notification;
therefore 12400 x .5 = 600 hours. Burden for each OVS operator to
make notifications available to all programming providers on their
systems: 1 hour per notification x 1200 occurrences = 1200 hours.
Total burden for all respondents: 600 + 1200 = 1800 hours.
Certification Process requirements: Annual burden to OVS operators
to complete certifications: 1 hour apiece; therefore 10 x 1= 10
hours. Number of oppositions estimated to be filed with the Commission:
2 per certification; therefore 2 x 10 = 20. Average burden for
completing oppositions: 4 hours per opposition; therefore 20 x 4 = 80
hours. Total burden for all respondents: 10 + 80 = 90 hours.
Dispute Resolution requirements: Estimated number of notices filed
by complainant: 20. Estimated number of defendants' responses to
notices filed: 20. Average burden for each notice and response to
notice: 4 hours apiece; therefore 40 x 4 = 160 hours. We estimate
that the 20 notices will result in the initiation of 10 dispute cases.
The average burden for complainants and defendants for undergoing all
aspects of the dispute case: 25 hours per case; therefore 20 (10
complainants + 10 defendants) x 25 = 500 hours. Total burden to all
respondents: 160 + 500 = 660 hours.
Total Annual Burden to Respondents: 4570 hours. (660 + 1050 + 310 +
18600 + 90 + 660)
Estimated Cost to Respondents: Notices of Intent costs of
stationery and postage at $2 apiece for (10 Notices of Intent x 45
entities) + 250 requests for additional information + 250 responses to
requests for additional information = $1900.
Rate Justifications costs of stationery and postage at $2 apiece
for 50 rate complaints + 50 rate justifications = $200.
Must-Carry and Retransmission Consent costs of stationery and
postage at $2 apiece for 60 carriage elections + 300 requests for lists
+ 300 provisions of lists = $1320.
Sports Exclusivity, Network Non-Duplication and Syndicated
Exclusivity costs of stationery and postage at $2 apiece for 1200
notifications to OVS operators + 1200 OVS operator notifications to
programming providers = $4800.
Certification Process costs of stationery, diskettes, and postage
at $5 for 10 certifications = $50. Costs of stationery and postage at
$2 apiece for 20 opposition filings = $40. $50 + $40 = $90.
Dispute Resolutions costs of stationery and postage at $2 apiece
for 20 notices + 20 responses to notices = $80. Costs of stationery and
postage at $10 apiece for 10 complainants in dispute cases + 10
defendants in dispute cases = $200. $80 + $200 = $280.
Total Estimated Costs to Respondents: $8590. ($1900 + $200 + $1320
+ $4800 + $90 + $280).
Needs and Uses: The information collections contained herein are
necessary to implement the statutory provisions for Open Video Systems
contained in the Telecommunications Act of 1996.
Second Report and Order--Open Video Systems
1. New Section 653 of the Communications Act establishes a new
framework for entry into the video programming delivery marketplace--
the ``open video system.'' See Sections 651 and 653 of the
Communications Act of 1934, 47 U.S.C. Sec. 151 (``Communications
Act''). As designed by Congress, the open video framework provides an
option, particularly to a local exchange carrier, for the distribution
of video programming other than as a ``cable system'' governed by all
of the provisions of Title VI of the Communications Act. If a telephone
company agrees to comply with certain non-discrimination and other
requirements it can be certified as an operator of an ``open video
system'' and subjected to streamlined regulation under Title VI.
2. In establishing this structure, we believe that Congress
intended to advance competition in two areas of the video marketplace.
First, Congress sought to encourage telephone companies to enter the
video programming distribution market and to deploy open video systems
in order to ``introduce vigorous competition in entertainment and
information markets'' by providing a competitive alternative to the
incumbent cable operator. Telecommunications Act of 1996 Conference
Report, S. Rep. 104-230 at 178 (February 1, 1996) (``Conference
Report''). The incentive provided by Congress to encourage such entry
was not only exemption from particular requirements of Title VI, but
that streamlined Title VI obligations would apply in lieu of, and not
in addition to, any requirements under Title II. Second, by requiring
open video system operators to provide carriage opportunities for video
programming providers on terms that are just and reasonable, and not
unjustly or unreasonably discriminatory, Congress sought to foster
competition by encouraging multiple programming sources on open video
systems.
3. The open video system model can provide the competitive benefits
that Congress hoped to achieve: market entry by new providers, enhanced
competition, streamlined regulation, investment in infrastructure and
technology, diversity of programming choices and increased consumer
choice. We believe that the best way to achieve Congress' goals is to
give open video system operators the flexibility to enter and compete
based on the demands of the marketplace. Our approach reflects the
reduced regulatory burdens clearly envisioned by Congress for open
video systems. Where necessary, the Commission has provided a level of
guidance to parties in order to comply with Congress' particular
directives under Section 653 and to give certainty to the parties.
4. On March 11, 1996, the Commission released a Report and Order
and Notice of Proposed Rulemaking, seeking comment on how to implement
the requirements of Section 653. See Report and Order and Notice of
Proposed Rulemaking in CS Docket No. 96-46 and CC Docket No. 87-266
(terminated), released March 11, 1996, 61 FR 10496 (March 14, 1996)
(the ``NPRM''). We received 61comments and 79 replies in response to
the NPRM. After consideration of the comments and reply comments, we
hereby adopt the Second Report and Order herein.
A. Qualifications To Be an Open Video System Operator
5. We conclude that Section 653(a)(1) authorizes the Commission to
allow non-local exchange (``non-LECs'') to operate open video systems,
and to allow LECs to operate open video systems outside of their
telephone service areas, when the public interest, convenience, and
necessity are served. We further conclude that it would serve the
public interest, convenience and necessity to permit: (1) non-LECs that
are not cable operators; (2) LECs outside of their telephone service
areas; and (3) cable operators outside of their cable franchise areas,
to own or operate open video systems. With respect to cable operators
within their cable franchise areas, we conclude that it would serve the
public interest, convenience, and necessity to allow a cable operator
to operate an open video system in its cable franchise area if it is
subject to ``effective competition'' in its cable franchise area under
Section 623(l)(1) of the Communications Act, 47 U.S.C.
[[Page 28700]]
Sec. 543(l)(1). This condition shall apply even if a cable operator
also provides local exchange services within its cable franchise area.
In certain circumstances, particularly where the entry of a facilities-
based competitor into a market served by an incumbent cable operator
would likely be infeasible, we believe that it would be consistent with
the public interest to allow the incumbent cable operator to convert
its cable system to an open video system even if it is not subject to
``effective competition'' in its cable franchise area under Section
623(l)(1) of the Communications Act, 47 U.S.C. Sec. 543(l)(1). We will
consider petitions from cable operators seeking such a public interest
finding. Our decision to allow cable operators to become open video
system operators under these circumstances shall not be construed to
affect the terms of any existing franchising agreements or other
contractual agreements.
B. Certification Process
6. In light of the brief period (ten days) allowed for Commission
review of certification filings, we conclude that Congress intended the
certification process to be streamlined. We will require that
certifications be verified by an officer or director of the applicant,
stating that, to the best of his or her information and belief, the
representations made therein are accurate. The certification must
contain particular facts and representations about the system,
including: (1) the applicant's name, address and telephone number; (2)
a statement of ownership, including all affiliated entities; (3) if the
applicant is a cable operator applying for certification within its
cable franchise area, a statement that the applicant is qualified to
operate an open video system under Section 76.1501 of the Commission's
rules; (4) a statement that the applicant agrees to comply and to
remain in compliance with each of the Commission's regulations under
Section 653(b); (5) if the applicant is required under 47 CFR
Sec. 64.903(a) to file a cost allocation manual, a statement that the
applicant will file changes to its manual at least 60 days prior to
commencement of service; (6) a general description of the anticipated
communities or areas to be served upon completion of the system; (7)
the anticipated amount and type (i.e., analog or digital) of capacity
(for switched digital systems, the anticipated number of available
channel input ports); and (8) a statement that the applicant will
comply with the Commission's notice and enrollment requirements for
unaffiliated video programming providers. Applicants will be required
to file for certification using FCC Form 1275 (OMB approval pending).
7. Open video system operators may apply for certification at any
point prior to the commencement of service, subject to conditions. If
construction of new physical plant is required, the applicant must
obtain Commission approval of its certification prior to the
commencement of construction. If no new construction is required,
Commission approval of certification may be obtained at any point prior
to the commencement of service that would allow the applicant
sufficient time to comply with the Commission's notification
requirements herein.
8. We will consider comments or oppositions to a certification that
are filed within five days of the Commission's receipt of the
certification. Disapproval of a certification will not preclude the
applicant from filing a revised certification or from refiling its
original submission with a statement addressing the issues in dispute.
Such refilings must be served on any objecting party or parties. Any
certification filing that the Commission does not disapprove within ten
days will be deemed approved. If the representations contained in a
certification filing prove to be materially false or materially
inaccurate, the Commission retains the authority to revoke an open
video system operator's certification or to impose such other penalties
it deems appropriate, including forfeitures.
C. Carriage of Video Programming Providers
9. We affirm our tentative conclusion that the 1996 Act does not
require that the open video system operator be prohibited from
participating in the allocation of channel capacity. We believe that
the statute and implementing rules will prevent an open video system
operator from discriminating against unaffiliated video programming
providers, notwithstanding the operator's involvement in the allocation
process.
10. These rules and policies are designed to implement Sections
653(b)(1)(A) and 653(b)(1)(B) of the Communications Act. An open video
system operator will file a ``Notice of Intent'' (``Notice'') with the
Commission. The Commission will release the Notice to the public. The
Notice will contain certain information that a video programming
provider reasonably would need in order to assess whether to seek
carriage on the system. The Notice must include: a heading clearly
indicating that the document is a Notice of Intent; the open video
system operator's name, address and telephone number; a description of
the system's projected service area; a description of the system's
projected channel capacity, in terms of analog, digital, and other
type(s) of capacity, upon activation of the system; a description of
the steps a prospective video programming provider must follow to seek
carriage on the system, including the name, address and telephone
number of a person to contact for further information; the starting and
ending dates of the initial enrollment period; and a certification that
the system operator has complied with all relevant notification
requirements under our open video system regulations concerning must-
carry and retransmission consent, including a list of all local
commercial and non-commercial television stations served, and a
certificate of service showing that the Notice of Intent has been
served on all local franchising authorities entitled to establish
requirements under Section 611 of the Communications Act.
11. In addition to the information in the Notice, the open video
system operator will be required to provide within five business days
of receiving a written request from a potential video programming
provider certain information, including: the projected activation date
of the system (if a system is to be activated in stages, an operator
should describe each stage and the projected dates on which each stage
will be activated; a preliminary rate estimate; the information a video
programming provider will be required to provide to qualify as a
commercially bona fide video programming provider; technical
information that is reasonably necessary to prospective video providers
to assess whether to seek capacity on the system; any transmission or
reception equipment needed by a video programming provider to interface
successfully with the open video system; and the equipment available to
facilitate the carriage of unaffiliated video programming and the
electronic forms that will be accepted for processing and subsequent
transmission through the system.
12. The open video system operator may establish terms and
conditions of carriage for video programming providers that are just
and reasonable, and are not unreasonably or unjustly discriminatory.
For instance, an open video system operator may: (1) take reasonable
steps to ensure that a prospective video programming provider's request
for capacity is bona fide; (2) generally exclude an
[[Page 28701]]
incumbent, competing in-region cable operator from obtaining capacity
on its system when such carriage would siginificantly impede
facilities-based competition; (3) require video programming providers
to obtain capacity in increments of no less than one full-time channel,
however, the operator may not require video programming provider to
obtain capacity only in amounts greater than one full-time channel; (4)
preclude unaffiliated video programming providers from selecting the
programming on more capacity than the operator itself and its
affiliates; (5) negotiate co-packaging agreements with unaffiliated
video programming providers; and (6) require assurances that a video
programming provider will deliver video programming over the open video
system within some reasonable time after the system is activated.
13. At the conclusion of the open enrollment or notice period, the
open video system operator will determine whether demand for carriage,
including its own demand, exceeds the system's channel capacity. For
this purpose, analog and digital capacity must be treated separately.
Specifically, if the system contains both analog and digital capacity,
the open video system operator must separately assess whether analog
demand exceeds analog capacity and whether digital demand exceeds
digital capacity. Analog capacity shall be measured in 6 MHz channel
increments, and digital capacity shall be measured in bandwidth.
14. Further, we anticipate that concerns regarding the methods for
soliciting carriage demand and allocating system capacity will be
alleviated with capacity significantly higher than carriage demand.
Therefore, when an open video system operator can demonstrate that, due
to technology, the system's capacity is plentiful as compared to
demand, we will consider waiving the rules adopted in this Order.
15. If demand for carriage does not exceed system capacity, the
open video system operator may fill all video programming providers'
demands for capacity, including its own. If demand for carriage exceeds
capacity, the open video system operator may select the programming
services on no more than one-third of the system's activated channel
capacity. Public, educational, and governmental (``PEG'') and must-
carry channels carried pursuant to Sections 611, 614 and 615 of the
Communications Act will count in the system's total activated channel
capacity for purposes of calculating the operator's one-third limit,
but will not count against the operator's one-third limit. Channels
carrying ``shared'' programming will count against the operator's one-
third limit on a pro-rata basis, e.g., if the operator shares the
channel with one other video programming provider, it will count as
half of a channel against the operator's limit. The remaining two-
thirds of capacity, other than PEG and must-carry channels, must be
allocated to unaffiliated video programming providers on an open, fair,
non-discriminatory basis. The Commission does not require a specific
allocation methodology.
16. After service commencement, an open video system operator will
be required to allocate open capacity, if any is available, at least
every three years beginning three years after the system is activated,
through an open, fair, non-discriminatory process. Such open capacity
will include capacity that becomes available during the year, e.g., due
to a system upgrade or the expiration of carriage contracts, and any
capacity on which the open video system operator is selecting the video
programming beyond one-third of activated channel capacity. Changes in
an operator's PEG and must-carry obligations which cause changes in the
level of available open video system capacity must be accommodated in
accordance with the rules adopted in this Order. An operator must keep
a list of qualified video programming providers that have sought
carriage or additional carriage during the previous three year period.
17. In addition, we find that channel positioning is an important
part of allocating channel capacity to video programming providers, and
therefore will require an open video system operator to assign channel
positions in a non-discriminatory manner. We also find that, given
Section 653(b)(1)(A)'s specific exemption of must-carry and PEG from
its general non-discrimination requirements, an open video system
operator must comply with the channel positioning requirements
contained in those rules. Finally, we find that the statute leaves to
an open video system operator's discretion whether to create shared
channels for some or all of the duplicative programming on its system.
However, we disagree with telephone companies who argue that the
statutory reference to ``any video programming service'' means that an
open video system operator may select--in advance of any actual
duplication--which program services to place on shared channels. We
also note that certain cable operators and programmers argue that the
placement of a program service on a shared channel must be conditioned
on the approval of the program service. We take this to mean simply
that each video programming provider using the shared channel has
reached its own agreement with the programming service. We also find
that the statutory provision requiring subscribers have ``ready and
immediate'' access to programming carried on shared channels means that
channel sharing must be transparent to subscribers.
18. An open video system operator may not discriminate among video
programming providers with respect to technology or technical
information necessary to access the system.
D. Rates, Terms, and Conditions of Service
19. We will accord a strong presumption that carriage rates are
just and reasonable for open video system operators where at least one
unaffiliated video programming provider, or unaffiliated programming
providers as a group, occupy capacity equal to the lesser of one-third
of capacity or that occupied by the open video system operator and its
affiliates, and where any rate complained of is no higher than the
average of the rates paid by unaffiliated programmers receiving
carriage from the open video system operator.
20. We adopt our tentative conclusion that some level of rate
differentiation is permissible, provided that the bases for the
differences are not unjust or unreasonable. We therefore agree with
those commenters that argue that open video system operators should be
given flexibility to offer different carriage rates.
21. We conclude that it is unnecessary and undesirable to require
open video system operators to disclose publicly its carriage
contracts. In general, we agree with those telephone companies that
argue that making carriage contracts public would stifle competition by
forcing them to divulge sensitive information. In order to protect
video programming providers from discriminatory conduct, we will
require all open video system operators to make preliminary rate
estimates available to potential video programming providers. If,
however, a complaint is filed, regardless of which party bears the
burden of proof, the open video system operator's contracts with video
programming providers will be subject to discovery.
[[Page 28702]]
E. Applicability of Title VI Provisions
1. Public, Educational and Governmental Access Channels
22. The first issue we must address with respect to PEG use is how
PEG access obligations should be established for open video systems,
including the extent and amount of channel capacity and other resources
that open video system operators should be required to devote to PEG
use. We conclude that open video system operators should in the first
instance be permitted to negotiate their PEG access obligations with
the relevant local franchising authority. These negotiations may
include the local cable operator if the local franchising authority,
the open video system operator and the cable operator so desire.
23. We are unaware of any cable operator that charges PEG
programmers for access to the PEG channels on its cable system.
Therefore, because the PEG access obligations of open video system
operators are to the extent possible to be no greater or lesser than
those imposed on cable operators, we do not foresee open video system
operators charging PEG programmers for PEG use. We recognize that
certain costs will be associated with providing PEG channels. These
costs may be recovered as an element of the carriage rate.
24. Although we believe that negotiation is the best way to
establish the appropriate PEG access obligations for each open video
system operator, we recognize that the parties may be unable to reach
agreement. We therefore believe it is necessary to have a default
mechanism for establishing PEG access obligations. If the open video
system operator and the local franchising authority are unable to come
to an agreement, we will require the open video system operator to
satisfy the same PEG access obligations as the local cable operator. We
believe this can be accomplished by connection to the cable operator's
PEG access channel feeds and by sharing the costs directly related to
supporting PEG access, including costs of PEG equipment and facilities,
and equipment necessary to achieve the connection. We also determine
that, under these circumstances, in order to comply with the statutory
directive that to the extent possible the obligations be no greater or
lesser than those imposed on cable operators, the open video system
operator must provide the same amount of channel capacity for PEG
access as the local cable operator is required to provide.
25. If an open video system operator builds an institutional
network, the local franchising authority may require that educational
and govermental access channels be designated on that network to the
extent such channels are designated on the institutional network of the
local cable operator.
26. In addition, absent an agreement to the contrary, the open
video system operator will be subject to the same rules and procedures
as those imposed on the local cable operator regarding the use of PEG
channels for other programming when such channels are not being used
for PEG.
27. We will require cable operators to permit open video system
operators to connect with their PEG feeds. We will leave how this
connection is accomplished to the discretion of the parties, allowing
them to take into consideration the exact physical and technical
circumstances of the cable and open video systsms involved. If the
cable and open video system operators cannot agree on how this
connection can best be accomplished, the local franchising authority
may decide. In this context, the local franchising authority may
require that the connection take place on government property or on
public rights of way.
28. With regard to cost sharing, the costs of connection and
maintaining PEG facilities and equipment shall be divided equitably
between the cable operator and the open video system operator. This
shall include captial contributions and any other costs or investments
directly relating to or supporting PEG access and required by the cable
operator's franchise agreement. Capital expenses incurred prior to the
open video system operator's connection shall be subject to cost
sharing on a pro rata basis to the extent such investments have not
been fully amortized by the cable operator.
29. Where the open video system operator and the local franchising
authority cannot negotiate an agreement regarding PEG access, and the
open video system operator is instead satisfying its PEG access
obligations by connection and cost sharing with the cable operator's
PEG facilities, the open video system operator's PEG access obligations
should change to the extent that the cable operator's PEG access
obligations change with the franchise renewal. Accordingly, open video
system operators should be prepared to adjust their systems to comply
with new PEG access obligations as necessary. An open video system
operator will not, however, be required to displace other programmers
to accommodate PEG channels until channel capacity becomes available,
whether it be due to increased channel capacity or decreased demand for
channel capacity. Because PEG access channels are expressly exempt from
Section 653(b)(1)(A)'s non-discrimination requirement, an open video
system operator need not and should not wait until the next three-year
reallocation to comply with new PEG access obligations, but should
comply with such obligations whenever additional capacity is or becomes
available.
30. Where there is no local cable operator and the open video
system operator and the local franchising authority cannot agree on
appropriate PEG access obligations, we believe that the open video
system operator should make a reasonable amount of channel capacity
available for PEG access, as well as provide reasonable support of PEG,
services, facilities and equipment. First, the open video system
operator's PEG access obligations shall depend on whether there used to
be a cable franchise agreement in that franchise area. If there was,
the open video system operator shall follow the PEG terms of the
previously existing franchise agreement. Absent a previous cable
franchise agreement, the open video system operator's PEG access
obligations shall be determined by comparison to the franchise
agreement(s) for the nearest operating cable system with a commitment
to provide PEG access.
31. We believe that PEG access channels should be provided to all
subscribers to the open video system. The provision of PEG channels to
all open video system subscribers is important to ensure that the PEG
access obligations imposed on open video system operators are ``no
greater or lesser'' than those imposed on cable operators.
32. We also conclude that open video system operators should be
subject to PEG access requirements for every franchise area with which
its system overlaps. We believe that, despite open video system
operators not being subject to franchise requirements, pursuant to
Section 653(c)(1)(C), it is appropriate to require open video system
operators to comply with these franchise by franchise requirements so
that the obligations imposed on the open video system operator with
respect to PEG access are ``no greater or lesser'' than those imposed
on cable operators, as required by Section 653(c)(2)(A) of the
Communications Act.
2. Must-Carry and Retransmission Consent
33. We find that at this time the public interest will best be
served by application of the cable must-carry and
[[Page 28703]]
retransmission consent rules to open video systems, even though future
system configurations may require modification of our regulations. If
our regulations later become inadequate for open video system
operators, we intend to address promptly the problem. For now, we are
guided by Congress' directive that we impose obligations that are ``no
greater or lesser'' than the obligations currently imposed on cable
operators.
(1) Must-Carry
34. Pursuant to Section 614(b)(7) and 615(h), the operator of a
cable system is required to ensure that signals carried in fulfillment
of the must-carry requirements are provided to every subscriber of the
system. Sections 614 and 615 also generally state the number of must-
carry stations that a cable operator is required to provide. We believe
that in order to apply obligations that are no greater or lesser than
those imposed on cable operators, we must also apply these requirements
to open video system operators. Consequently, we find that the operator
of an open video system must ensure that every subscriber on the open
video system receives all appropriate must-carry channels carried in
accordance with our rules. An open video system operator will be
required to fulfill this obligation regardless of whether or not
individual subscribers on its system subscribe to the open video system
operator's programming package. We do not find it necessary to
prescribe a specific method to be used by an open video system operator
to comply with these requirements, such as a requirement that an open
video system operator must use a basic tier. We recognize that certain
costs will be associated with providing must-carry channels. These
costs may be recovered as an element of the carriage rate.
35. As a related matter, we leave the decision of how to offer any
necessary customer premises equipment to the open video system
operator, including whether the open video system operator will offer
it directly or require video programming providers to provide the
equipment. In addition, an open video system operator will be required
to implement the channel positioning requirements contained in the
must-carry rules in a manner as similar as possible to that of a cable
operator, including, for example, identifying broadcast stations on the
same channels as their over-the-air channel numbers, or on a channel
mutually agreed upon by the station and the operator. Consistent with
the statutory requirement of comparable treatment, open video systems
that span multiple television markets will be subject to the same must-
carry and retransmission consent rules as cable systems that span
multiple markets.
(2) Retransmission Consent
36. We find that our existing retransmission consent rules should
also be applied to the distribution of programming over open video
systems. These rules generally prohibit multichannel video programming
providers from retransmitting the signal of a commercial broadcasting
station without the station's express authority. Our retransmission
consent rules will apply to any video programming provider on an open
video system that provides more than one channel of video programming.
Given the inherent differences between cable systems and open video
systems, we believe that the application of our retransmission consent
rules in this fashion will impose obligations that are no greater or
lesser than those imposed on cable operators. The open video system
operator is charged with the responsibility for assuring that its
system meets the requirements of our must-carry rules. We believe that
it is also appropriate as a matter of administrative efficiency that
open video system operators receive all must-carry/retransmission
consent election statements that broadcast stations are required to
send under our retransmission consent rules. However, open video system
operators will not be responsible for making retransmission consent
arrangements for all programming carried on the system. Once
retransmission consent has been elected, broadcast stations will have
to negotiate agreements with individual video programming providers on
the open video system. Television broadcast stations are not required
to make the same elections for open video systems and cable systems in
the same geographic area.
3. Program Access
37. We believe that four general issues arise in the context of
applying the program access rules to open video systems. The first
concerns the extent to which the program access regime restricts the
activities of open video system operators. The second pertains to how
the program access regime restricts the conduct of open video system
video programming providers. The third issue concerns the extent to
which the benefits of the program access statute and rules apply to
open video system video programming providers. The fourth issue raised
by commenters involves certain expansions of our program access rules.
38. Section 653(c)(1)(A) applies the program access provisions to
open video system operators. Given this statutory language, we conclude
that the program access restrictions shall apply to the conduct of open
video system operators in the same manner as they are currently applied
to cable operators and common carriers or their affiliates that provide
video programming directly to subscribers. Specifically, the conduct of
an open video system operator shall be subject to Section 628(b), which
prohibits unfair methods of competition and unfair or deceptive acts or
practices. In addition, the program access provisions which preclude
certain specific conduct, including undue or improper influence, and
discrimination in prices, terms, or conditions, shall apply to open
video system operators as well. Similarly, the limitations on exclusive
contracts contained in Sections 628(c)(2) (C) and (D) shall apply to
open video system operators so that open video system operators will
generally be restricted from entering into exclusive contracts with
satellite programmers in which an open video system operator has an
attributable interest, but not in which a cable operator has an
attributable interest. Thus, any practice, understanding, arrangement
or activity, including exclusive contracts, between an open video
system operator and a satellite programmer vertically integrated with
an open video system operator that prevents an MVPD from obtaining
satellite programming in an area unserved by a cable operator as of the
date of enactment of the 1992 Cable Act is per se unlawful. Exclusive
contracts between an open video system operator and a satellite
programmer vertically integrated with an open video system operator
which relate to an area served by cable as of the date of enactment of
the 1992 Cable Act are prohibited unless the Commission first
determines that such a contract is in the public interest in accordance
with the factors set forth in Section 628(c)(2)(D). Moreover, Section
628 and or program access rules shall apply to any affiliate
established by an open video system operator to distribute programming
on its system. We also believe it is reasonable to, and will therefore
insert a note in Section 76.1000(h) of our rules indicating that
satellite open video system programming is included within the
definition of satellite cable programming.
39. The programming relationships that are likely to occur with
respect to open video systems raise additional
[[Page 28704]]
program access issues that are not raised by the programming
relationships on cable systems. In the cable context, an agreement to
carry programming is generally between a programmer and a cable
operator. Restricting the activities of cable operators and satellite
programmers vertically integrated with cable operators therefore
addresses Congress' concern over cable operator control over video
programming. In the open video system context, however, there may be
many programmers providing packages of programming directly to
subscribers. An agreement to carry programming may be between a
programmer and an open video system operator or between a programmer
who produces programming and one who will distribute it directly to
subscribers. Moreover, a video programmer may provide its own
programming directly to subscribers by purchasing channel capacity on
an open video system platform.
40. We believe that, in order to effectuate the purposes of the
program access statute in the open video context, open video system
programming providers should be subject to the program access
restrictions to the extent described below. In the open video system
context, a vertically integrated satellite programmer will not be per
se precluded from selling its programming exclusively to one MVPD on an
open video system, as long as that MVPD is not affiliated with the same
type of operator as the vertically integrated satellite programmer.
Similarly, cable operators, common carrriers or their affiliates
providing video programming directly to subscribers and open video
system operators are not generally restricted from entering into
exclusive contracts with non-vertically integrated programmers. We do
not intend to foreclose challenges to exclusive contracts between
vertically integrated satellite programmers and MVPDs, including
unaffiliated MVPDs, on open video systems under Section 628(b) or
Section 628(c)(2)(B), which prohibits, with limited exceptions,
discrimination among competing MVPDs by a vertically integrated
satellite programmer.
41. We believe that the purposes of the program access rules and
statute are served by extending the current program access rules to
apply to exclusive arrangements between satellite programmers in which
a cable operator has an attributable interest and open video system
programming providers in which a cable operator has an attributable
interest. We believe that Section 628(b) authorizes the Commission to
adopt additional rules to accomplish the program access statutory
objectives should additional types of conduct emerge as barriers to
competition and obstacles to the broader distribution of satellite
cable and broadcast programming. We will apply the program access rules
under Section 628 to exclusive contracts between a satellite programmer
in which a cable operator has an attributable interest (``cable-
affiliated satellite programmer'') and an open video system video
programming provider in which a cable operator has an attributable
interest (``cable-affiliated open video system programming provider'').
Specifically, such exclusive contracts will be prohibited unless the
contract pertains to an area served by a cable operator as of the date
of the enactment of the 1992 Cable Act and the Commission first
determines that the exclusive arrangement is in the public interest
under the factors listed in Section 628(c)(4). Two types of cable-
affiliated satellite programmer/cable-affiliated open video system
programming provider relationships will be affected by this restriction
on exclusive contracts. First, this rule will preclude a cable-
affiliated satellite programmer from entering into an exclusive
contract to provide its own programming to a cable-affiliated open
video system programming provider with which the programmer is
affiliated. Second, the new rule will preclude, absent prior Commission
approval, a cable-affiliated satellite programmer from entering into an
exclusive contract to provide its programming to an open video system
programming provider that is affiliated with another cable operator.
42. We believe that subjecting these types of exclusive contracts
to prior Commission review is necessary to fulfill the objectives of
the program access rules in the open video system context. The program
access requirements have at their heart the objective of releasing
programming to existing or potential competitors of traditional cable
systems so that the public may benefit from the development of
competitive distributors. Our primary concern is that exclusive
arrangements among cable-affiliated open video system programmers and
cable-affiliated satellite programmers may serve to impede development
of open video systems as a viable competitor to cable to the extent
that popular programming services are denied to open video system
operators or unaffiliated open video system programmers that seek to
package such programming for distribution to subscribers. In adopting
this rule, we recognize, as did Congress in enacting the program access
provisions, that exclusive contracts can often have pro-competitive
effects under certain market conditions. However, strategic vertical
restraints can also deter entry into markets for the distribution of
multichannel video programming. Accordingly, the Commission's program
access policies seek to balance the likely competitive harm to
consumers created by a particular vertical arrangement against its
likely efficiency benefits. In the context of open video systems,
unless the Commission first determines that exclusive arrangements for
satellite programming which favor cable-affiliated video programming
providers are in the public interest under Section 628(c)(4), the
potential for competitive harm from such contracts requires their
prohibition.
43. As stated above, a satellite programmer may also provide its
own programming directly to subscribers by purchasing channel capacity
on an open video system platform. It is therefore possible for a
programmer vertically integrated with a cable operator to purchase
channel capacity, to provide its own programming directly to
subscribers and to refuse to sell the programming it owns to another
MVPD on the open video system. Such a refusal to sell would appear to
be unreasonable because it discriminates against a class of
distributors, i.e., open video system programming providers.
Furthermore, this type of refusal to sell would result in the same
situation which we have deemed contrary to the purposes of Section 628
when achieved through an exclusive contract, i.e., restricting
competitive access to vertically integrated satellite cable programming
to a vertically integrated entity. We believe this would consequently
be actionable under Section 628(c).
44. Open video system operators and video programming providers
that provide more than one channel of programming on an open video
system are MVPDs. We will not create an exception to our rules that
would exclude open video system operators or open video system
programming providers from the benefits of our program access rules.
Accordingly, we will add a note to the definition of MVPD contained in
Section 76.1000(e) of our rules to indicate that video programming
providers on open video systems that provide more than one channel of
programming to subscribers are MVPDs.
[[Page 28705]]
4. Sports Exclusivity, Network Non-Duplication and Syndicated
Exclusivity
45. We believe that we can directly apply our existing cable
regulations regarding sports exclusivity, syndicated exclusivity and
network non-duplication to open video systems. We do not believe that
open video systems that span multiple geographic zones or communities
should be treated any differently than similar cable systems. The
record evidence indicates that large cable systems are able to comply
with these provisions, and no commenter has provided any reason why
open video systems should not be required to comply with the same
regulations. In addition, we find that open video system operators
should be responsible for compliance with these rules.
46. In all cases, we find that television stations must notify the
open video system operator of the exclusive or non-duplication rights
being exercised. When the open video system operator receives such a
notification, it will be required to give the appropriate video
programming providers an opportunity to either substitute signals or
delete signals where possible. Therefore, we require that open video
system operators make all notices of exclusive or non-duplication
rights received immediately available to the appropriate video
programming providers on their systems. We would not expect to impose
sanctions on an OVS operator for violations of the exclusivity rules by
an unaffiliated program supplier if the operator provided proper
notices to the program supplier and took prompt steps to stop the
distribution of the infringing program once it was notified of the
violation.
5. Other Title VI Provisions
47. The Commission will, as proposed in the NPRM, apply the
following provisions of the Communications Act and the Commission's
rules thereunder to open video systems: Section 613 (c) through (h)
regarding ownership restrictions; Section 616 regarding regulation of
carriage agreements; Section 623(f) regarding negative option billing;
Section 631 regarding subscriber privacy; and Section 634 regarding
equal employment opportunity.
6. Preemption of Local Franchising Requirements
48. Section 653 exempts an open video system operator from the
requirement of obtaining a local franchise under Section 621, although
the operator still must pay a gross revenue fee ``in lieu of'' a
franchise fee and must satisfy obligations under Section 611. However,
we believe that Congress did not intend to infringe upon local
communities' prerogative to manage their rights-of-way in order to
protect the public health and safety. State and local authorities may
impose conditions on an open video system operator for use of the
rights-of-way, so long as such conditions are applied equally to all
users of the rights-of-way (i.e., are non-discriminatory and
competitively neutral). Conversely, state and local authorities may not
impose specific conditions on use of the rights-of-way that are
unrelated to their management function or that apply to an open video
system operator differently than they apply to other rights-of-way
users.
49. Any state or local requirement that seeks to impose Title VI
``franchise-like'' requirements on an open video system operator would
directly conflict with Congress' express direction that open video
system operators need not obtain local franchises. Examples of such
``franchise-like'' requirements include constructing institutional
networks, donating money to local educational or charitable
institutions, or specifying the amount or type of capacity that the
system must possess. Such requirements are preempted because they
``stand[ ] as an obstacle to the accomplishment of the full purposes
and objectives of Congress.'' We believe the most natural reading of
Section 653, in light of Congress's stated intent, is that state and
local governments cannot require any open video system operator to
obtain a Title VI franchise from a state or local authority for use of
public rights-of-way necessary to operate its open video system.
50. The state or local government may, however, impose non-
discriminatory and competitively conditions on an open video system
operator for use of the rights-of-way, so long as such conditions are
applied equally to all users of the rights-of-way (i.e., are non-
discriminatory and competitvely neutral). For instance, a state or
local government could impose normal fees associated with zoning and
construction of an open video system, so long as such fees were applied
in a non-discriminatory and competitively neutral manner. Conversely,
state and local authorities may not impose specific conditions on the
use of the rights-of-way that are unrelated to their management
function or that apply to an open video system operator differently
than they apply to other users of the rights-of-way.
51. Local authorities will retain their ability to address the
following valid local concerns: (1) coordination of construction
schedules, (2) establishment of standards and procedures for
constructing lines across private property, (3) determination of
insurance and indemnity requirements, (4) establishment of rules for
local building codes, (5) repairing and resurfacing construction-
damaged streets, (6) ensuring public safety in the use of rights-of-way
by gas, telephone, electric, cable, and similar companies, and (7)
keeping track of the various systems using the rights-of-way to prevent
interference among facilities.
52. We will apply the fee to all gross revenues received by an open
video system operator or its affiliates, including all revenues
received from subscribers and all carriage revenues received from
unaffiliated video programming providers. Gross revenues will not
include revenues collected by unaffiliated video programming providers
from their subscribers or advertisers, etc.--gross revenues will only
include fees paid to the OVS operator. We will also require any gross
revenues fee that the open video system operator or its affiliate
collects from subscribers to be excluded from gross revenues.
53. Thus, we conclude that a state or local government requirement
that directs an open video system operator to obtain a Title VI
franchise, or impose Title VI ``franchise like'' requirements, to
operate an open video system directly conflicts with Section 653 of the
Communications Act and is preempted.
F. Information Provided to Subscribers
54. We believe, as stated in the Notice, that Section
653(b)(1)(E)(i) is intended to be a specific application of the non-
discrimination requirement contained in Section 653(b)(1)(A).
Specifically, we believe that this provision is meant to ensure that an
open video system operator does not favor itself or its affiliates in
its interaction with the customer at the point of actual program
selection (i.e., when the subscriber is choosing a particular channel
to watch). The type of ``material or information'' that therefore would
fall within the scope of Section 653(b)(1)(E)(i) includes navigational
devices, guides (electronic or paper) and menus used by the subscriber
to actively select programming.
55. An open video system operator may not discriminate in favor of
affiliated programming by, for example, ``burying'' unaffiliated
programmers in difficult to access portions of electronic guides,
navigational devices or menus, or by otherwise placing affiliated
programming in more prominent
[[Page 28706]]
positions on the electronic guides, navigational devices or menus. To
the extent that an open video system operator uses billing inserts to
advertise its service generally, rather than providing inserts as a
guide to program selection, we believe that such inserts fall outside
the scope of Section 653(b)(1)(E)(i). We believe that a paper
programming guide that is intended to be used at the point of actual
channel selection would be governed by Section 653(b)(1)(E)(i).
56. Section 653(b)(1)(E)(i) prohibits the open video system
operator from unreasonably discriminating in favor of its affiliated
programming by means of discriminatory use of on-system advertising, if
that advertising is contained in any channel selection guide, aid or
menu. Accordingly, an open video system operator may not use its
position as controller of a navigational device or menu to advertise
its programming on the navigational device or menu, while at the same
time disallowing unaffiliated programming providers comparable
opportunities to advertise on the navigational device or menu.
57. Menus offered by the OVS operator may inform the viewer that
other services (that the consumer has not ordered) are available on the
open video system, and direct the subscriber how to access a second
screen with more complete information on those other services. In
addition, for programming to which the consumer has actually
subscribed, no programming service on the open video system operator's
navigational device should be more difficult to select than any other
programming service.
58. An open video system operator is not relieved of the non-
discrimination provisions of Section 653(b)(1)(E)(i) if the operator
offers a navigational device that works only with affiliated video
programming packages. In addition, the open video system operator may
not evade its obligation to ensure that other non-affiliated
programming providers are represented on a navigational device, guide
or menu simply by having the service nominally provided by its
affiliate.
59. We find that the ``suitable and unique'' identification
requirement of Section 653(b)(1)(E)(ii) would be satisfied if an open
video system operator's navigational device included a provider's name
(broadcast station call letters and network affiliation, for example),
but not its logo or branding device. However, if the open video system
operator chooses to prohibit unaffiliated providers' logos or branding
information on its navigational device, guide or menu, it would
similarly have to prohibit its own logo or branding information under
Section 653(b)(1)(E)(i).
G. Dispute Resolution
60. Given the short 10-day period in which the Commission must
approve or disapprove a certification request, we believe that the
dispute resolution process will play a key role in ensuring the success
of the open video framework. In order for the Commission's review to be
as efficient and thorough as possible, we adopt our suggestion in the
Notice to model our open video system dispute resolution process after
our rules governing program access disputes (except for must-carry
complaints and petitions for special relief).
61. We will seek to dispose of as many cases as possible on the
basis of a complaint, answer and reply. Parties should include all
relevant evidence, including documentary evidence, in the complaint and
answer to support their claims. Discovery will not be permitted as a
matter of right, but on a case-by-case basis as deemed necessary by the
Commission staff reviewing the complaint. Any complaint filed pursuant
to Section 653(a)(2) must be filed within one year of the date on which
the open video system operator's actions allegedly violated Commission
rules.
62. Finally, while we encourage parties to use ADR techniques to
attempt to resolve their dispute without the Commission's direct
involvement, we believe that a clause in a carriage agreement requiring
ADR before a dispute could be brought to the Commission would not be a
``just and reasonable'' term or condition of carriage. Such a
requirement could delay an aggrieved party's right to redress
significantly beyond the 180-day period mandated by Congress. In
addition, permitting operators to require as a condition of carriage
that all disputes be resolved through ADR, may lead operators to
mandate ADR practices that give them an unfair advantage over
complainants.
H. Joint Marketing, Bundling and Structural Separation
63. Section 653 is silent on the issue of joint marketing. The Act
does, however, expressly impose joint marketing restrictions on
telephone companies in other contexts. Given that these Sections were
all enacted as part of the 1996 Act, we find it a significant
indication of Congress' intent that Sections 271(e), 272(g) and 274(c)
contain express joint marketing restrictions while Section 653 does
not. Section 272(g)(2) specifically sets a similar competitive
condition on the lifting of the joint marketing restrictions between
telephone exchange and interLATA services: a BOC's authorization under
Section 271(d) to provide interLATA services in an in-region State.
Again, no such condition was established in Section 653.
64. Since Congress chose not to adopt joint marketing restrictions
in Section 653 even though (1) it specifically applied joint marketing
restrictions to other provisions of the 1996 Act, and (2) it restricted
joint marketing in some provisions of the 1996 Act until the
introduction of competition in the local telephone market, we decline
to adopt joint marketing restrictions here. We note, however, that any
entity that offers any telecommunications service will be subject to
both the customer proprietary network information (``CPNI'')
restrictions set forth in Section 222 of the Communications Act and any
regulations the Commission establishes pursuant to Section 222.
Similarly, any provider of cable or open video service will be subject
to the cable privacy restrictions set forth in Section 631.
b. Bundling
65. Section 653 also does not address the issue of ``bundling,''
which we define in this context to mean the offering of video service
and local exchange service in a single package at a single price. We
would also treat as bundling the situation in which an entity offers
one service at a discount if the customer purchases another service. We
disagree that the bundling of telephone and video services will be
anti-competitive, and increase the risk of cross-subsidization of the
competitive service by the monopoly service. We believe that the
Commission's Part 64 cost allocation rules and any amendments thereto
will protect adequately regulated telephone ratepayers from a
misallocation of costs that could lead to excessive telephony rates.
However, we will impose certain safeguards to protect consumers in
these circumstances. First, the open video system operator, where it is
the incumbent LEC, may not require that a subscriber purchase its video
service in order to receive local exchange service. Second, while the
open video system operator may offer subscribers a discount for
purchasing the bundled package, the LEC must impute the unbundled
tariff rate for the regulated service.
[[Page 28707]]
c. Structural Separation
66. We disagree with those commenters that argue that a separate
affiliate requirement nevertheless should be imposed pursuant to
Section 272. We believe that Congress did not intend to impose a
separate affiliate requirement on LECs providing open video service.
First, Section 653 is silent on whether LECs and others must provide
open video service through a separate affiliate. In fact, Congress
expressly directed that Title II requirements not be applied to ``the
establishment and operation of an open video system'' under Section
653. In addition, Section 272 exempts ``incidental interLATA services''
from the separate affiliate requirement, and includes certain video
programming services within the definition of ``incidental interLATA
services'' described in Section 271(g). Since we conclude that Congress
did not intend to apply a separate affiliate requirement in this
context, we need not address whether the provision of video programming
would qualify as an ``information service'' under Section 272(a)(2)(C),
or exercise our authority under Section 272(f)(3). Rather, we will
adhere to Congress' intent and decline to impose a separate affiliate
requirement here.
I. Advanced Telecommunications Incentives
67. In order to promote the development of advanced
telecommunications to consumers, the Commission will consider proposals
for actions to encourage open video system deployment of advanced
telecommunications services as defined in Section 706 of the 1996 Act.
This approach will be available on a case-by-case basis for open video
system operators that can demonstrate a need for additional
deregulatory measures to successfully deploy advanced
telecommunications to all consumers.
Final Regulatory Flexibility Analysis
68. Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C.
Secs. 601-12, the Commission's final analysis with respect to the
Second Report and Order is as follows:
69. Need and purpose of this action: The Commission, in compliance
with Section 302(a) of the Telecommunications Act of 1996 pertaining to
open video systems, is required to adopt rules and procedures necessary
to implement this section of the Telecommunications Act of 1996.
70. Summary of issues raised by the public in response to the
Initial Regulatory Flexibility Analysis: Collectively, the National
League of Cities; the United States Conference of Mayors; the National
Association of Counties; the National Association of Telecommunications
Officers and Advisors; Montgomery County, Maryland; the City of Los
Angeles, CA; the City of Chillicothe, OH; the City of Dearborn,
Michigan; the City of Dubuque, Iowa; the City of St. Louis, MO; the
City of Santa Clara, CA; and the City of Tallahassee, FL filed reply
comments in response to the Initial Regulatory Flexibility Analysis.
These reply comments assert that a significant number of small
governmental entities will be burdened by the proposals of the
Commission and commenters. The Commission has considered these reply
comments and has attempted to structure the open video system rules set
forth in this Second Report and Order so as to minimize the
administrative burden upon small governmental entities.
71. Significant alternatives considered: Petitioners representing
cable interests, telephone interests, programming interests, consumer
interests and local government interests submitted several alternatives
aimed at minimizing administrative burdens. In this proceeding, the
Commission has considered these alternatives and has attempted both to
accommodate the concerns raised by the parties and to minimize the
administrative burdens upon the parties in accordance with Congress'
desire for the Commission to develop a streamlined regulatory model for
open video service operators.
Paperwork Reduction Act of 1995 Analysis
72. The requirements adopted in the Second Report and Order have
been analyzed with respect to the Paperwork Reduction Act of 1995 (the
``1995 Act'') and found to impose new or modified information
collection requirements on the public. Implementation of any new or
modified requirement will be subject to approval by the Office of
Management and Budget (``OMB'') as prescribed by the 1995 Act. The
Commission, as part of its continuing effort to reduce paperwork
burdens, invites the general public and OMB to comment on the
information collections contained in this Second Report and Order as
required by the 1995 Act, Public Law No. 104-13. OMB comments are due
on or before August 5, 1996. Comments should address: (1) Whether the
proposed collection of information is necessary for the proper
performance of the functions of the Commission, including whether the
information shall have practical utility; (2) the accuracy of the
Commission's burden estimates; (3) ways to enhance the quality,
utility, and clarity of the information collected; and (4) ways to
minimize the burden of the collection of information on the
respondents, including the use of automated collection techniques or
other forms of information technology.
73. Written comments by the public on the modified information
collections are due on or before June 20, 1996, and reply comments are
due on or before July 1, 1996. Written comments must be submitted by
OMB on modified information collections on or before August 5, 1996. A
copy of any comments on the information collections contained herein
should be submitted to Dorothy Conway, Federal Communications
Commission, Room 234, 1919 M Street, N.W., Washington, DC 20554, or via
the Internet to [email protected] and to Timothy Fain, OMB Desk Officer,
10236, NEOB, 725--17th Street, N.W., Washington, DC 20503 or via the
Internet to [email protected]. For additional information concerning
the information collections contained herein contact Dorothy Conway at
202-418-0217, or via the Internet at [email protected].
Ordering Clauses
74. Accordingly, it is ordered that, pursuant to Sections 4(i),
4(j), 303(r), and 653 of the Communications Act of 1934, as amended, 47
U.S.C. 154(i), 154(j), 303(r), and 573, the rules, requirements and
policies discussed in this Second Report and Order ARE adopted and
Sections 76.1000 and 76.1500 through 76.1515 of the Commission's rules,
47 CFR Secs. 1000, 76.1000 and 76.1500 through 76.1515 ARE AMENDED as
set forth below.
75. It is further ordered that the requirements and regulations
established in this decision shall become effective upon approval by
OMB of the new information collection requirements adopted herein, but
no sooner than July 5, 1996.
76. It is further ordered that the Secretary shall send a copy of
this Second Report and Order including the Final Regulatory Flexibility
Analysis, to the Chief Counsel for Advocacy of the Small Business
Administration in accordance with paragraph 603(a) of the Regulatory
Flexibility Act, Public Law No. 96-354, 94 Stat. 1164, 5 U.S.C.
Secs. 601 through 699 (1981).
[[Page 28708]]
Federal Communications Commission.
LaVera F. Marshall,
Actin
FR Doc. 96-14238 Open Video Systems
g Secretary.
List of Subjects in 47 CFR Part 76
Cable television.
Appendix B
Rule Changes
Part 76 of Title 47 of the Code of Federal Regulations is amended
as follows:
PART 76--CABLE TELEVISION SERVICE
1. The authority citation for Part 76 is revised to read as
follows:
Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302, 303, 303a,
307, 308, 309, 312, 315, 317, 325, 503, 521, 522, 531, 532, 533,
534, 535, 536, 537, 543, 544, 544a, 545, 548, 552, 554, 556, 558,
560, 561, 571, 572, 573.
2. Section 76.1000 is amended by adding notes to paragraphs (e) and
(h) to read as follows:
Sec. 76.1000 Definitions.
* * * * *
(e) * * *
Note to paragraph (e): A video programming provider that
provides more than one channel of video programming on an open video
system is a multichannel video programming distributor for purposes
of this subpart O and Section 76.1507.
* * * * *
(h) * * *
Note to paragraph (h): Satellite programming which is primarily
intended for the direct receipt by open video system operators for
their retransmission to open video system subscribers shall be
included within the definition of satellite cable programming.
* * * * *
3. Section 76.1004 is amended by designating the existing text as
paragraph (a), and adding paragraph (b) to read as follows:
Sec. 76.1004 Applicability of program access rules to common carriers
and affiliates.
* * * * *
(b) Sections 76.1002(c)(1) through (3) shall be applied to a common
carrier or its affiliate that provides video programming by any means
directly to subscribers in such a way that such common carrier or its
affiliate shall be generally restricted from entering into an exclusive
arrangement for satellite cable programming or satellite broadcast
programming with a satellite cable programming vendor in which a common
carrier or its affiliate has an attributable interest or a satellite
broadcast programming vendor in which a common carrier or its affiliate
has an attributable interest, unless the arrangement pertains to an
area served by a cable system as of October 5, 1992, and the Commission
determines in accordance with Section Sec. 76.1002(c)(4) that such
arrangment is in the public interest.
4. A new Subpart S is added to Part 76 to read as follows:
Subpart S--Open Video Systems
Sec.
76.1500 Definitions.
76.1501 Qualifications to be an open video system operator.
76.1502 Certification.
76.1503 Carriage of video programming providers on open video
systems.
76.1504 Rates, terms and conditions for carriage on open video
systems.
76.1505 Public, educational and governmental access.
76.1506 Carriage of television broadcast signals.
76.1507 Competitive access to satellite cable programming.
76.1508 Network non-duplication.
76.1509 Syndicated program exclusivity.
76.1510 Application of certain Title VI provisions.
76.1511 Fees.
76.1512 Programming information.
76.1513 Dispute resolution.
76.1514 Bundling of video and local exchange services.
Subpart S--Open Video Systems
Sec. 76.1500 Definitions.
(a) Open video system. A facility consisting of a set of
transmission paths and associated signal generation, reception, and
control equipment that is designed to provide cable service which
includes video programming and which is provided to multiple
subscribers within a community, provided that the Commission has
certified that such system complies with this part.
(b) Open video system operator (``operator''). Any person or group
of persons who provides cable service over an open video system and
directly or through one or more affiliates owns a significant interest
in such open video system, or otherwise controls or is responsible for
the management and operation of such an open video system.
(c) Video programming provider. Any person or group of persons who
has the right under the copyright laws to select and contract for
carriage of specific video programming on an open video system.
(d) Activated channels. This term shall have the same meaning as
provided in the cable television rules, 47 CFR 76.5(nn).
(e) Shared channel. Any channel that carries video programming that
is selected by more than one video programming provider and offered to
subscribers.
(f) Cable service. This term shall have the same meaning as
provided in the cable television rules, 47 CFR 76.5(ff).
(g) Other terms. Unless otherwise expressly stated, words not
defined in this part shall be given their meaning as used in Title 47
of the United States Code, as amended, and, if not defined therein,
their meaning as used in Part 47 of the Code of Federal Regulations.
Sec. 76.1501 Qualifications to be an open video system operator.
Any person may obtain a certification to operate an open video
system pursuant to Section 653(a)(1) of the Communications Act, 47
U.S.C. 573(a)(1), except that an operator of a cable system, regardless
of any other service that the cable operator may provide, may not
obtain such a certification within its cable service area unless it is
subject to ``effective competition,'' as defined in Section 623(l)(1)
of the Communications Act, 47 U.S.C. 543(l)(1). A cable operator that
is not subject to effective competition within its cable service area
may file a petition with the Commission, seeking a finding that
particular circumstances exist that make it consistent with the public
interest, convenience, and necessity to allow the operator to convert
its cable system to an open video system. Nothing herein shall be
construed to affect the terms of any franchising agreement or other
contractual agreement.
Note to Sec. 76.1501: An example of a circumstance in which the
public interest, convenience and necessity would be served by
permitting a cable operator not subject to effective competition to
become an open video system operator within its cable service area
is where the entry of a facilities-based competitor into its cable
service area would likely be infeasible.
Sec. 76.1502 Certification.
(a) An operator of an open video system must certify to the
Commission that it will comply with the Commission's regulations in 47
CFR 76.1503, 76.1504, 76.1506(m), 76.1508, 76.1509, and 76.1513. If
construction of new physical plant is required, the Commission must
approve such certification prior to the commencement of construction.
If no new construction is required, the Commission must approve such
certification prior to the commencement of service at such a point in
time that would allow the applicant sufficient time to comply with the
Commission's notification requirements.
(b) Certifications must be verified by an officer or director of
the applicant, stating that, to the best of his or her information and
belief, the
[[Page 28709]]
representations made therein are accurate.
(c) Certifications must be filed on FCC Form 1275 and must include:
(1) The applicant's name, address and telephone number;
(2) A statement of ownership, including all affiliated entities;
(3) If the applicant is a cable operator applying for certification
in its cable franchise area, a statement that the applicant is
qualified to operate an open video system under Section 76.1501.
(4) A statement that the applicant agrees to comply and to remain
in compliance with each of the Commission's regulations in
Secs. 76.1503, 76.1504, 76.1506(m), 76.1508, 76.1509, and 76.1513;
(5) If the applicant is required under 47 CFR 64.903(a) of this
chapter to file a cost allocation manual, a statement that the
applicant will file changes to its manual at least 60 days before the
commencement of service;
(6) A general description of the anticipated communities or areas
to be served upon completion of the system;
(7) The anticipated amount and type (i.e., analog or digital) of
capacity (for switched digital systems, the anticipated number of
available channel input ports); and
(8) A statement that the applicant will comply with the
Commission's notice and enrollment requirements for unaffiliated video
programming providers.
(d) Comments or oppositions to a certification must be filed within
five days of the Commission's receipt of the certification and must be
served on the party that filed the certification. If the Commission
does not disapprove certification within ten days after receipt of an
applicant's request, the certification will be deemed approved. If
disapproved, the applicant may file a revised certification or refile
its original submission with a statement addressing the issues in
dispute. Such refilings must be served on any objecting party or
parties.
Sec. 76.1503 Carriage of video programming providers on open video
systems.
(a) Non-discrimination principle. Except as otherwise permitted in
applicable law or in this part, an operator of an open video system
shall not discriminate among video programming providers with regard to
carriage on its open video system, and its rates, terms and conditions
for such carriage shall be just and reasonable and not unjustly or
unreasonably discriminatory.
(b) Demand for carriage. An operator of an open video system shall
solicit and determine the level of demand for carriage on the system
among potential video programming providers in a non-discriminatory
manner.
(1) Notification. An open video system operator shall file with the
Secretary of the Federal Communications Commission a ``Notice of
Intent'' to establish an open video system, which the Commission will
release in a Public Notice. The Notice of Intent shall include the
following information:
(i) A heading clearly indicating that the document is a Notice of
Intent to establish an open video system;
(ii) The name, address and telephone number of the open video
system operator;
(iii) A description of the system's projected service area;
(iv) A description of the system's projected channel capacity, in
terms of analog, digital and other type(s) of capacity upon activation
of the system;
(v) A description of the steps a potential video programming
provider must follow to seek carriage on the open video system,
including the name, address and telephone number of a person to contact
for further information;
(vi) The starting and ending dates of the initial enrollment period
for video programming providers;
(vii) The process for allocating the system's channel capacity, in
the event that demand for carriage on the system exceeds the system's
capacity; and
(viii) A certification that the operator has complied with all
relevant notification requirements under the Commission's open video
system regulations concerning must-carry and retransmission consent
(Sec. 76.1506), including a list of all local commercial and non-
commercial television stations served, and a certificate of service
showing that the Notice of Intent has been served on all local cable
franchising authorities entitled to establish requirements concerning
the designation of channels for public, educational and governmental
use.
(2) Information. An open video system operator shall provide the
following information to a video programming provider within five
business days of receiving a written request from the provider, unless
otherwise included in the Notice of Intent:
(i) The projected activation date of the open video system. If a
system is to be activated in stages, the operator should describe the
respective stages and the projected dates on which each stage will be
activated;
(ii) A preliminary carriage rate estimate;
(iii) The information a video programming provider will be required
to provide to qualify as a video programming provider, e.g.,
creditworthiness;
(iv) Technical information that is reasonably necessary for
potential video programming providers to assess whether to seek
capacity on the open video system, including what type of customer
premises equipment subscribers will need to receive service;
(v) Any transmission or reception equipment needed by a video
programming provider to interface successfully with the open video
system; and
(vi) The equipment available to facilitate the carriage of
unaffiliated video programming and the electronic form(s) that will be
accepted for processing and subsequent transmission through the system.
(3) Qualifications of video programming providers. An open video
system operator may impose reasonable, non-discriminatory requirements
to assure that a potential video programming provider is qualified to
obtain capacity on the open video system.
(c) One-third limit. If carriage demand by video programming
providers exceeds the activated channel capacity of the open video
system, the operator of the open video system and its affiliated video
programming providers may not select the video programming services for
carriage on more than one-third of the activated channel capacity on
such system.
(1) Measuring capacity. For purposes of this section:
(i) If an open video system carries both analog and digital
signals, an open video system operator shall measure analog and digital
activated channel capacity independently;
(ii) Channels that an open video system is required to carry
pursuant to the Commission's regulations concerning public, educational
and governmental channels and must-carry channels shall be included in
``activated channel capacity'' for purposes of calculating the one-
third of such capacity on which the open video system operator and its
affiliates are allowed to select the video programming for carriage.
Such channels shall not be included in the one-third of capacity on
which the open video system operator is permitted to select programming
where demand for carriage exceeds system capacity;
(iii) Channels that an open video system operator carries pursuant
to the
[[Page 28710]]
Commission's regulations concerning retransmission consent shall be
included in ``activated channel capacity'' for purposes of calculating
the one-third of such capacity on which the open video system operator
and its affiliates are allowed to select the video programming for
carriage. Such channels shall be included in the one-third of capacity
on which the open video system operator is permitted to select
programming, where demand for carriage exceeds system capacity, to the
extent that the channels are carried as part of the programming service
of the operator or its affiliate, subject to paragraph (c)(1)(iv); and
(iv) Any channel on which shared programming is carried shall be
included in ``activated channel capacity'' for purposes of calculating
the one-third of such capacity on which the open video system operator
and its affiliates are allowed to select the video programming for
carriage. Such channels shall be included in the one-third of capacity
on which the open video system operator is permitted to select
programming, where demand for carriage exceeds system capacity, to the
extent the open video system operator or its affiliate is one of the
video programming providers sharing such channel.
Note to paragraph (c)(1)(iv): For example, if the open video
system operator and two unaffiliated video programming providers
each carry a programming service that is placed on a shared channel,
the shared channel shall count as 0.33 channels against the one-
third amount of capacity allocable to the open video system
operator, where demand for carriage exceeds system capacity.
(2) Allocating capacity. An operator of an open video system shall
allocate activated channel capacity through a fair, open and non-
discriminatory process; the process must be insulated from any bias of
the open video system operator and verifiable.
(i) If an open video system carries both analog and digital
signals, an open video system operator shall treat analog and digital
capacity separately in allocating system capacity.
(ii) Subsequent changes in capacity or demand. An open video system
operator must allocate open capacity, if any, at least once every three
years, beginning three years from the date of service commencement.
Open capacity shall be allocated in accordance with this section. Open
capacity shall include all capacity that becomes available during the
course of the three-year period, as well as capacity in excess of one-
third of the system's activated channel capacity on which the operator
of the open video system or its affiliate selects programming. An
operator shall maintain a file of qualified video programming providers
who have requested carriage or additional carriage since the previous
allocation of capacity. Information regarding how a video programming
provider should apply for carriage must be made available upon request.
Note 1 to paragraph (c)(2)(ii): An open video system operator
will not be required to comply with the regulations contained in
this section if there is no open capacity to be allocated at the end
of the three year period.
Note 2 to paragraph (c)(2)(ii): An open video system operator
shall be required to accommodate changes in obligations concerning
public, educational or governmental channels or must-carry channels
in accordance with Sections 611, 614 and 615 of the Communications
Act and the regulations contained in this part.
(iii) Channel sharing. An open video system operator may carry on
only one channel any video programming service that is offered by more
than one video programming provider (including the operator's video
programming affiliate), provided that subscribers have ready and
immediate access to any such programming service. Nothing in this
section shall be construed to impair the rights of programming
services.
Note 1 to paragraph (c)(2)(iii): An open video system operator
may implement channel sharing only after it becomes apparent that
one or more video programming services will be offered by multiple
video programming providers. An open video system operator may not
select, in advance of any duplication among video programming
providers, which programming services shall be placed on shared
channels.
Note 2 to paragraph (c)(2)(iii): Each video programming provider
offering a programming service that is carried on a shared channel
must have the contractual permission of the video programming
service to offer the service to subscribers. The placement of a
programming service on a shared channel, however, is not subject to
the approval of the video programming service or vendor.
Note 3 to paragraph (c)(2)(iii): Ready and immediate access in
this context means that the channel sharing is ``transparent'' to
subscribers.
(iv) Open video system operator discretion. Notwithstanding the
foregoing, an operator of an open video system may:
(A) Require video programming providers to request and obtain
system capacity in increments of no less than one full-time channel;
however, an operator of an open video system may not require video
programming providers to obtain capacity in increments of more than one
full-time channel;
(B) Limit video programming providers from selecting the
programming on more capacity than the amount of capacity on which the
system operator and its affiliates are selecting the programming for
carriage; and
(C) Refuse carriage on its open video system to a competing, in-
region cable operator or its affiliates that offers cable service to
subscribers located in the service area of the open video system,
except where the allocation of open video system capacity to a
competing cable operator is consistent with the public interest,
convenience, and necessity.
Note to paragraph (c)(2)(iv)(C): The Commission will except
situations where it is determined that facilities-based competition
will not be significantly impeded. We will provide a specific
exception in a situation in which: the competing, in-region cable
operator and affiliated systems offer service to less than 20% of
the households passed by the open video system; and the competing,
in-region cable operator and affiliated systems provide cable
service to a total of less than 17,000 subscribers within the open
video system's service area.
(3) Nothing in this paragraph shall be construed to limit the
number of channels that the open video system operator and its
affiliates, or another video programming provider, may offer to provide
directly to subscribers. Co-packaging is permissible among video
programming providers, but may not be a condition of carriage. Video
programming providers may freely elect whether to enter into co-
packaging arrangements.
Note to paragraph (c)(3): Any video programming provider on an
open video system may co-package video programming that is selected
by itself, an affiliated video programming provider and/or
unaffiliated video programming providers on the system.
Sec. 76.1504 Rates, terms and conditions for carriage on open video
systems.
(a) Reasonable rate principle. An open video system operator shall
set rates, terms, and conditions for carriage that are just and
reasonable, and are not unjustly or unreasonably discriminatory.
(b) Differences in rates.
(1) An open video system operator may charge different rates to
different classes of video programming providers, provided that the
bases for such differences are not unjust or unreasonably
discriminatory.
(2) An open video system operator shall not impose different rates,
terms, or conditions based on the content of the programming to be
offered by any unaffiliated video programming provider.
[[Page 28711]]
(c) Just and reasonable rate presumption. A strong presumption will
apply that carriage rates are just and reasonable for open video system
operators where at least one unaffiliated video programming provider,
or unaffiliated programming providers as a group, occupy capacity equal
to the lesser of one-third of the system capacity or that occupied by
the open video system operator and its affiliates, and where any rate
complained of is no higher than the average of the rates paid by
unaffiliated programmers receiving carriage from the open video system
operator.
(d) Examination of rates. Complaints regarding rates shall be
limited to video programming providers that have sought carriage on the
open video system. If a video programming provider files a complaint
against an open video system operator meeting the above just and
reasonable rate presumption, the burden of proof will rest with the
complainant. If a complaint is filed against an open video system
operator that does not meet the just and reasonable rate presumption,
the open video system operator will bear the burden of proof to
demonstrate, using the principles set forth below, that the carriage
rates subject to the complaint are just and reasonable.
(e) Determining just and reasonable rates subject to complaints.
Carriage rates subject to complaint shall be presumed just and
reasonable if they are no greater than an imputed carriage rate based
on the following. The imputed rate will reflect what the open video
system operator, or its affiliate, ``pays'' for carriage of its own
programming. Use of this approach is appropriate in circumstances where
the pricing is applicable to a new market entrant (the open video
system operator) that will face competition from an existing incumbent
provider (the incumbent cable operator), as opposed to circumstances
where the pricing is used to establish a rate for an essential input
service that is charged to a competing new entrant by an incumbent
provider. With respect to new market entrants, an efficient component
pricing model will produce rates that encourage market entry. If the
carriage rate to an unaffiliated program provider surpasses what an
operator earns from carrying its own programming, the rate can be
presumed to exceed a just and reasonable level. An open video system
operator's price to its subscribers will be determined by several
separate costs components. One general category are those costs related
to the creative development and production of programming. A second
category are costs associated with packaging various programs for the
open video system operator's offering. A third category related to the
infrastructure or engineering costs identified with building and
maintaining the open video system. Contained in each is a profit
allowance attributed to the economic value of each component. When an
open video system operator provides only carriage through its
infrastructure, however, the programming and packaging flows from the
independent program provider, who bears the cost. The open video system
operator avoids programming and packaging costs, including profits.
These avoided costs should not be reflected in the price charged an
independent program provider for carriage. The imputed rate also seeks
to recognize the loss of subscribers to the open video system
operator's programming package resulting from carrying competing
programming.
Sec. 76.1505 Public, educational and governmental access.
(a) An open video system operator shall be subject to public,
educational and governmental access requirements for every cable
franchise area with which its system overlaps.
(b) An open video system operator must ensure that all subscribers
receive any public, educational and governmental access channels within
the subscribers' franchise area.
(c) An open video system operator may negotiate with the local
cable franchising authority of the jurisdiction(s) which the open video
system serves to establish the open video system operator's obligations
with respect to public, educational and governmental access channel
capacity, services, facilities and equipment. These negotiations may
include the local cable operator if the local franchising authority,
the open video system operator and the cable operator so desire.
(d) If an open video system operator and a local franchising
authority are unable to reach an agreement regarding the open video
system operator's obligations with respect to public, educational and
governmental access channel capacity, services, facilities and
equipment within the local franchising authority's jurisdiction:
(1) The open video system operator must satisfy the same public,
educational and governmental access obligations as the local cable
operator by connecting with the cable operator's public, educational
and governmental access channel feeds and by sharing the costs directly
related to supporting public, educational and governmental access,
including costs of public, educational and governmental access
services, facilities and equipment, and equipment necessary to achieve
the connection. The open video system operator must provide the same
amount of public, educational and governmental access as the local
cable operator is required to carry.
(2) The local franchising authority shall impose the same rules and
procedures on an open video system operator as it imposes on the local
cable operator with regard to the open video system operator's use of
channel capacity designated for public, educational and governmental
access use when such capacity is not being used for such purposes.
(3) The local cable operator is required to permit the open video
system operator to connect with its public, educational and
governmental access channel feeds. The open video system operator and
the cable operator may decide how to accomplish this connection, taking
into consideration the exact physical and technical circumstances of
the cable and open video systems involved. If the cable and open video
system operator cannot agree on how to accomplish the connection, the
local franchising authority may decide. The local franchising authority
may require that the connection occur on government property or on
public rights of way.
(4) The costs of connection and maintaining public, educational and
governmental access channel capacity, services, facilities and
equipment shall be divided equitably between the cable operator and the
open video system operator. Shared costs shall include capital
contributions and any other costs or investments directly relating to
or supporting public, educational and governmental access and required
by the cable operator's franchise agreement. Capital expenses incurred
prior to the open video system operator's connection shall be subject
to cost sharing on a pro-rata basis to the extent such investments have
not been fully amortized by the cable operator.
(5) The local franchising authority may not impose public,
educational and governmental access obligations on the open video
system operator that would exceed those imposed on the local cable
operator.
(6) Where there is no existing local cable operator, the open video
system operator must make a reasonable amount of channel capacity
available for public, educational and governmental use, as well as
provide reasonable support for services, facilities and
[[Page 28712]]
equipment relating to such public, educational and governmental use. If
a franchise agreement previously existed in that franchise area, the
open video system operator shall be required to maintain the previously
existing public, educational and governmental access terms of that
franchise agreement. Absent a previous cable franchise agreement, the
open video system operator shall be required to provide channel
capacity, services, facilities and equipment relating to public,
educational and governmental access equivalent to that prescribed in
the franchise agreement(s) for the nearest operating cable system with
a commitment to provide public, educational and governmental access.
Note to paragraph (d)(6): If a cable system converts to an open
video system, the operator will be required to maintain the
previously existing terms of its public, educational and
governmental access obligations.
(7) The open video system operator must adjust its system(s) to
comply with new public, educational and governmental access obligations
imposed by a cable franchise renewal; provided, however, that an open
video system operator will not be required to displace other
programmers using its open video system to accommodate public,
educational and governmental access channels. The open video system
operator shall comply with such public, educational and governmental
access obligations whenever additional capacity is or becomes
available, whether it is due to increased channel capacity or decreased
demand for channel capacity.
(8) The open video system operator and/or the local franchising
authority may file a complaint with the Commission, pursuant to our
dispute resolution procedures set forth in Sec. 76.1514, if the open
video system operator and the local franchising authority cannot agree
as to the application of the Commission's rules regarding the open
video system operator's connection and/or cost sharing obligations
under this section.
(e) If an open video system operator maintains an institutional
network, as defined in Section 611(f) of the Communications Act, the
local franchising authority may require that educational and
governmental access channels be designated on that institutional
network to the extent such channels are designated on the institutional
network of the local cable operator.
(f) An open video system operator shall not exercise any editorial
control over any public, educational, or governmental use of channel
capacity provided pursuant to this subsection, provided, however, that
any open video system operator may prohibit the use on its system of
any channel capacity of any public, educational, or governmental
facility for any programming which contains nudity, obscene material,
indecent material as defined in Sec. 76.701(g), or material soliciting
or promoting unlawful conduct. For purposes of this section, ``material
soliciting or promoting unlawful conduct'' shall mean material that is
otherwise proscribed by law. An open video system operator may require
any access user, or access manager or administrator agreeing to assume
the responsibility of certifying, to certify that its programming does
not contain any of the materials described above and that reasonable
efforts will be used to ensure that live programming does not contain
such material.
Sec. 76.1506 Carriage of television broadcast signals.
(a) The provisions of Subpart D shall apply to open video systems
in accordance with the provisions contained in this subpart.
(b) For the purposes of this Subpart S, television stations are
significantly viewed when they are viewed in households that do not
receive television signals from multichannel video programming
distributors as follows:
(1) For a full or partial network station--a share of viewing hours
of at least 3 percent (total week hours), and a net weekly circulation
of at least 25 percent; and
(2) For an independent station--a share of viewing hours of at
least 2 percent (total week hours), and a net weekly circulation of at
least 5 percent. See Sec. 76.1506(c).
Note to paragraph (b): As used in this paragraph, ``share of
viewing hours'' means the total hours that households that do not
receive television signals from multichannel video programming
distributors viewed the subject station during the week, expressed
as a percentage of the total hours these households viewed all
stations during the period, and ``net weekly circulation'' means the
number of households that do not receive television signals from
multichannel video programming distributors that viewed the station
for 5 minutes or more during the entire week, expressed as a
percentage of the total households that do not receive television
signals from multichannel video programming distributors in the
survey area.
(c) Significantly viewed signals; method to be followed for special
showings. Any provision of Sec. 76.54 that refers to a ``cable
television community'' or ``cable community or communities'' shall
apply to an open video system community or communities. Any provision
of Sec. 76.54 that refers to ``non-cable television homes'' shall apply
to households that do not receive television signals from multichannel
video programming distributors. Any provision of Sec. 76.54 that refers
to a ``cable television system'' shall apply to an open video system.
(d) Definitions applicable to the must-carry rules. Section 76.55
shall apply to all open video systems in accordance with the provisions
contained in this section. Any provision of Sec. 76.55 that refers to a
``cable system'' shall apply to an open video system. Any provision of
Sec. 76.55 that refers to a ``cable operator'' shall apply to an open
video system operator. Any provision of Sec. 76.55 that refers to the
``principal headend'' of a cable system as defined in Sec. 76.5(pp)
shall apply to the equivalent of the principal headend of an open video
system. Any provision of Sec. 76.55 that refers to a ``franchise area''
shall apply to the service area of an open video system.
(e) Signal carriage obligations. Any provision of Sec. 76.56 that
refers to a ``cable television system'' or ``cable system'' shall apply
to an open video system. Any provision of Sec. 76.56 that refers to a
``cable operator'' shall apply to an open video system operator.
Section 76.56(d)(2) shall apply to open video systems as follows: An
open video system operator shall make available to every subscriber of
the open video system all qualified local commercial television
stations and all qualified non-commercial educational television
stations carried in fulfillment of its carriage obligations under this
section.
(f) Channel positioning. Open video system operators shall comply
with the provisions of Sec. 76.57 to the closest extent possible. Any
provision of Sec. 76.57 that refers to a ``cable operator'' shall apply
to an open video system operator. Any provision of Sec. 76.57 that
refers to a ``cable system'' shall apply to an open video system,
except the references to ``cable system'' in Sec. 76.57(d) which shall
apply to an open video system operator.
(g) Notification. Any provision of Sec. 76.58 that refers to a
``cable operator'' shall apply to an open video system operator. Any
provision of Sec. 76.58 that refers to a ``cable system'' shall apply
to an open video system. Any provision of Sec. 76.58 that refers to a
``principal headend'' shall apply to the equivalent of the principal
headend for an open video system.
(h) Modification of television markets. Any provision of Sec. 76.59
that refers to a
[[Page 28713]]
``cable system'' shall apply to an open video system. Any provision of
Sec. 76.59 that refers to a ``cable operator'' shall apply to an open
video system operator.
(i) Compensation for carriage. Any provision of Sec. 76.60 that
refers to a ``cable operator'' shall apply to an open video system
operator. Any provision of Sec. 76.60 that refers to a ``cable system''
shall apply to an open video system. Any provision of Sec. 76.60 that
refers to a ``principal headend'' shall apply to the equivalent of the
principal headend for an open video system.
(j) Disputes concerning carriage. Any provision of Sec. 76.61 that
refers to a ``cable operator'' shall apply to an open video system
operator. Any provision of Sec. 76.61 that refers to a ``cable system''
shall apply to an open video system. Any provision of Sec. 76.61 that
refers to a ``principal headend'' shall apply to the equivalent of the
principal headend for an open video system.
(k) Manner of carriage. Any provision of Sec. 76.62 that refers to
a ``cable operator'' shall apply to an open video system operator.
(l) Retransmission consent. Section 76.64 shall apply to open video
systems in accordance with the provisions contained in this paragraph.
(1) Any provision of Sec. 76.64 that refers to a ``cable system''
shall apply to an open video system. Any provision of Sec. 76.64 that
refers to a ``cable operator'' shall apply to an open video system
operator.
(2) Must-carry/retransmission consent election notifications shall
be sent to the open video system operator. An open video system
operator shall make all must-carry/retransmission consent election
notifications received available to the appropriate programming
providers on its system.
(3) Television broadcast stations are not required to make the same
election for open video systems and cable systems in the same
geographic area.
(4) An open video system commencing new operations shall notify all
local commercial and noncommercial broadcast stations as required under
paragraph (l) of this section on or before the date on which it files
with the Commission its Notice of Intent to establish an open video
system.
(m) Sports broadcast. Section 76.67 shall apply to open video
systems in accordance with the provisions contained in this paragraph.
(1) Any provisions of Sec. 76.67 that refers to a ``community
unit'' shall apply to an open video system or that portion of an open
video system that operates or will operate within a separate and
distinct community or municipal entity (including unincorporated
communities within unincorporated areas and including single, discrete
unincorporated areas).
(2) Notification of programming to be deleted pursuant to this
section shall be served on the open video system operator. The open
video system operator shall make all notifications immediately
available to the appropriate video programming providers on its open
video system. An open video system operator shall not be subject to
sanctions for any violation of these rules by an unaffiliated program
supplier if the operator provided proper notices to the program
supplier and subsequently took prompt steps to stop the distribution of
the infringing program once it was notified of a violation.
(n) Exemption from input selector switch rules. Any provision of
Sec. 76.70 that refers to a ``cable system'' or ``cable systems'' shall
apply to an open video system or open video systems.
(o) Special relief and must-carry complaint procedures. The
procedures set forth in Sec. 76.7 shall apply to special relief and
must-carry complaints relating to open video systems, and not the
procedures set forth in Sec. 76.1514 (Dispute resolution). Any
provision of Sec. 76.7 that refers to a ``cable television system
operator'' or ``cable operator'' shall apply to an open video system
operator. Any provision of Sec. 76.7 that refers to a ``cable
television system'' shall apply to an open video system. Any provision
of Sec. 76.7 that refers to a ``system community unit'' shall apply to
an open video system or that portion of an open video system that
operates or will operate within a separate and distinct community or
municipal entity (including unincorporated communities within
unincorporated areas and including single, discrete unincorporated
areas).
Sec. 76.1507 Competitive access to satellite cable programming.
(a) Any provision that applies to a cable operator under
Secs. 76.1000 through 76.1003 shall also apply to an operator of an
open video system and its affiliate which provides video programming on
its open video system, except as limited by paragraph (a) (1)-(3) of
this section. Any such provision that applies to a satellite cable
programming vendor in which a cable operator has an attributable
interest shall also apply to any satellite cable programming vendor in
which an open video system operator has an attributable interest,
except as limited by paragraph (a) (1)-(3) of this section.
(1) Section 76.1002(c)(1) shall only restrict the conduct of an
open video system operator, its affiliate that provides video
programming on its open video system and a satellite cable programming
vendor in which an open video system operator has an attributable
interest, as follows: No open video system operator or its affiliate
that provides video programming on its open video system shall engage
in any practice or activity or enter into any understanding or
arrangement, including exclusive contracts, with a satellite cable
programming vendor or satellite broadcast programming vendor for
satellite cable programming or satellite broadcast programming that
prevents a multichannel video programming distributor from obtaining
such programming from any satellite cable programming vendor in which
an open video system operator has an attributable interest, or any
satellite broadcasting vendor in which an open video system operator
has an attributable interest for distribution to person in areas not
served by a cable operator as of October 5, 1992.
(2) Section 76.1002(c)(2) shall only restrict the conduct of an
open video system operator, its affiliate that provides video
programming on its open video system and a satellite cable programming
vendor in which an open video system operator has an attributable
interest, as follows: No open video system operator or its affiliate
that provides video programming on its open video system shall enter
into any exclusive contracts, or engage in any practice, activity or
arrangement tantamount to an exclusive contract, for satellite cable
programming or satellite broadcast programming with a satellite cable
programming vendor in which an open video system operator has an
attributable interest or a satellite broadcast programming vendor,
unless the Commission determines in accordance with Sec. 76.1002(c)(4)
that such a contract, practice, activity or arrangement is in the
public interest.
(3) Section 76.1002(c)(3) (i) through (ii) shall only restrict the
conduct of an open video system operator, its affiliate that provides
video programming on its open video system and a satellite cable
programming vendor in which an open video system operator has an
attributable interest, as follows:
(i) Unserved areas. No open video system operator shall enter into
any subdistribution agreement or arrangement for satellite cable
programming or satellite broadcast programming with a satellite cable
programming vendor in which an open video system operator has an
attributable interest or a satellite broadcast programming vendor in
[[Page 28714]]
which an open video system operator has an attributable interest for
distribution to persons in areas not served by a cable operator as of
October 5, 1992.
(ii) Served areas. No open video system operator shall enter into
any subdistribution agreement or arrangement for satellite cable
programming or satellite broadcast programming with a satellite cable
programming vendor in which an open video system operator has an
attributable interest or a satellite broadcast programming vendor in
which an open video system operator has an attributable interest, with
respect to areas served by a cable operator, unless such agreement or
arrangement complies with the limitations set forth in
Sec. 76.1002(c)(3)(iii).
(b) No open video system programming provider in which a cable
operator has an attributable interest shall:
(1) engage in any practice or activity or enter into any
understanding or arrangement, including exclusive contracts, with a
satellite cable programming vendor or satellite broadcast programming
vendor for satellite cable programming or satellite broadcast
programming that prevents a multichannel video programming distributor
from obtaining such programming from any satellite cable programming
vendor in which a cable operator has an attributable interest, or any
satellite broadcasting vendor in which a cable operator has an
attributable interest for distribution to person in areas not served by
a cable operator as of October 5, 1992.
(2) enter into any exclusive contracts, or engage in any practice,
activity or arrangement tantamount to an exclusive contract, for
satellite cable programming or satellite broadcast programming with a
satellite cable programming vendor in which a cable operator has an
attributable interest or a satellite broadcast programming vendor,
unless the Commission determines in accordance with Section
76.1002(c)(4) that such a contract, practice, activity or arrangement
is in the public interest.
Sec. 76.1508 Network non-duplication.
(a) Sections 76.92 through 76.97 shall apply to open video systems
in accordance with the provisions contained in this section.
(b) Any provision of Sec. 76.92 that refers to a ``cable community
unit'' or ``community unit'' shall apply to an open video system or
that portion of an open video system that operates or will operate
within a separate and distinct community or municipal entity (including
unincorporated communities within unincorporated areas and including
single, discrete unincorporated areas). Any provision of Sec. 76.92
that refers to a ``cable television community'' shall apply to an open
video system community. Any provision of Sec. 76.92 that refers to a
``cable television system's mandatory signal carriage obligations''
shall apply to an open video system's mandatory signal carriage
obligations.
(c) Any provision of Sec. 76.94 that refers to a ``cable system
operator'' or ``cable television system operator'' shall apply to an
open video system operator. Any provision of Sec. 76.94 that refers to
a ``cable system'' or ``cable television system'' shall apply to an
open video system except Sec. 76.94 (e) and (f) which shall apply to an
open video system operator. Open video system operators shall make all
notifications and information regarding the exercise of network non-
duplication rights immediately available to all appropriate video
programming provider on the system. An open video system operator shall
not be subject to sanctions for any violation of these rules by an
unaffiliated program supplier if the operator provided proper notices
to the program supplier and subsequently took prompt steps to stop the
distribution of the infringing program once it was notified of a
violation.
(d) Any provision of Sec. 76.95 that refers to a ``cable system''
or a ``cable community unit'' shall apply to an open video system or
that portion of an open video system that operates or will operate
within a separate and distinct community or municipal entity (including
unincorporated communities within unincorporated areas and including
single, discrete unincorporated areas).
Sec. 76.1509 Syndicated program exclusivity.
(a) Sections 76.151 through 76.163 shall apply to open video
systems in accordance with the provisions contained in this section.
(b) Any provision of Sec. 76.151 that refers to a ``cable community
unit'' shall apply to an open video system.
(c) Any provision of Sec. 76.155 that refers to a ``cable system
operator'' or ``cable television system operator'' shall apply to an
open video system operator. Any provision of Sec. 76.155 that refers to
a ``cable system'' or ``cable television system'' shall apply to an
open video system except Sec. 76.155(c) which shall apply to an open
video system operator. Open video system operators shall make all
notifications and information regarding exercise of syndicated program
exclusivity rights immediately available to all appropriate video
programming provider on the system. An open video system operator shall
not be subject to sanctions for any violation of these rules by an
unaffiliated program supplier if the operator provided proper notices
to the program supplier and subsequently took prompt steps to stop the
distribution of the infringing program once it was notified of a
violation.
(d) Any provision of Sec. 76.156 that refers to a ``cable
community'' shall apply to an open video system community. Any
provision of Sec. 76.156 that refers to a ``cable community unit'' or
``community unit'' shall apply to an open video system or that portion
of an open video system that operates or will operate within a separate
and distinct community or municipal entity (including unincorporated
communities within unincorporated areas and including single, discrete
unincorporated areas). Any provision of Secs. 76.156 through 76.158,
and 76.163 that refers to a ``cable system'' shall apply to an open
video system.
(e) Any provision of Sec. 76.159 that refers to ``cable
television'' or a ``cable system'' shall apply to an open video system.
(f) Any provision of Sec. 76.161 that refers to a ``community
unit'' shall apply to an open video system or that portion of an open
video system that is affected by this rule.
Sec. 76.1510 Application of certain Title VI provisions.
The following sections within Part 76 shall also apply to open
video systems: Secs. 76.71, 76.73, 76.75, 76.77 and 76.79 (Equal
Employment Opportunity Requirements); Secs. 76.503 and 76.504
(ownership restrictions); Sec. 76.981 (negative option billing); and
Secs. 76,1300, 76.1301 and 76.1302 (regulation of carriage agreements);
provided, however, that these sections shall apply to open video
systems only to the extent that they do not conflict with this subpart
S. Section 631 of the Communications Act (subscriber privacy) shall
also apply to open video systems.
Sec. 76.1511 Fees.
An open video system operator may be subject to the payment of fees
on the gross revenues of the operator for the provision of cable
service imposed by a local franchising authority or other governmental
entity, in lieu of the franchise fees permitted under Section 622 of
the Communications Act. Gross revenues under this paragraph means all
gross revenues received by an open video system operator or its
affiliates,
[[Page 28715]]
including all revenues received from subscribers and all carriage
revenues received from unaffiliated video programming providers. Gross
revenues does not include revenues collected by unaffiliated video
programming providers from their subscribers. Any gross revenues fee
that the open video system operator or its affiliate collects from
subscribers shall be excluded from gross revenues. An operator of an
open video system may designate that portion of a subscriber's bill
attributable to the fee as a separate item on the bill.
Sec. 76.1512 Programming information.
(a) An open video system operator shall not unreasonably
discriminate in favor of itself or its affiliates with regard to
material or information (including advertising) provided by the
operator to subscribers for the purpose of selecting programming on the
open video system, or in the way such material or information is
provided to subscribers.
Note to paragraph (a): ``Material or information'' as used in
paragraph (a) of this section means material or information that a
subscriber uses to actively select programming at the point of
program selection.
(b) In accordance with paragraph (a) of this section:
(1) An open video system operator shall not discriminate in favor
of itself or its affiliate on any navigational device, guide or menu;
(2) An open video system operator shall not omit television
broadcast stations or other unaffiliated video programming services
carried on the open video system from any navigational device, guide
(electronic or paper) or menu. For programming services that an open
video system subscriber has not ordered, menus provided by an open
video system operator shall, at a minimum, inform the subscriber how to
access an additional screen that lists the unordered programming
services.
(c) An open video system operator shall ensure that video
programming providers or copyright holders (or both) are able to
suitably and uniquely identify their programming services to
subscribers.
(d) An open video system operator shall transmit programming
identification without change or alteration if such identification is
transmitted as part of the programming signal.
Sec. 76.1513 Dispute resolution.
(a) Complaints. Any party aggrieved by conduct that it alleges to
constitute a violation of the regulations set forth in this part or in
Section 653 of the Communications Act (47 U.S.C. 573) may commence an
adjudicatory proceeding at the Commission. The Commission shall resolve
any such dispute within 180 days after the filing of a complaint.
(b) Alternate dispute resolution. An open video system operator may
not provide in its carriage contracts with programming providers that
any dispute must be submitted to arbitration, mediation, or any other
alternative method for dispute resolution prior to submission of a
complaint to the Commission.
(c) Notice required prior to filing of complaint. Any aggrieved
party intending to file a complaint under this section must first
notify the potential defendant open video system operator that it
intends to file a complaint with the Commission based on actions
alleged to violate one or more of the provisions contained in this part
or in Section 653 of the Communications Act. The notice must be in
writing and must be sufficiently detailed so that its recipient(s) can
determine the specific nature of the potential complaint. The potential
complainant must allow a minimum of ten (10) days for the potential
defendant(s) to respond before filing a complaint with the Commission.
(d) General pleading requirements. Complaint proceedings under this
part are generally resolved on a written record consisting of a
complaint, answer, and reply, but may also include other written
submissions such as briefs and written interrogatories. All written
submissions, both substantive and procedural, must conform to the
following standard:
(1) Pleadings must be clear, concise, and explicit. All matters
concerning a claim, defense or requested remedy, should be pleaded
fully and with specificity;
(2) Pleadings must contain facts which, if true, are sufficient to
constitute a violation of the Communications Act or of a Commission
regulation or order, or a defense to such alleged violation;
(3) Facts must be supported by relevant documentation or affidavit;
(4) Legal arguments must be supported by appropriate judicial,
Commission, or statutory authority;
(5) Opposing authorities must be distinguished;
(6) Copies must be provided of all non-Commission authorities
relied upon which are not routinely available in national reporting
systems, such as unpublished decisions or slip opinions of courts or
administrative agencies; and
(7) Parties are responsible for the continuing accuracy and
completeness of all information and supporting authority furnished in a
pending complaint proceeding. Information submitted, as well as
relevant legal authorities, must be current and updated as necessary
and in a timely manner at any time before a decision is rendered on the
merits of the complaint.
(e) Complaint.
(1) A complaint filed under this part shall contain:
(i) The name of the complainant and each defendant;
(ii) The type of entity that describes complainant (e.g.,
individual, private association, partnership, or corporation), the
address and telephone number of the complainant, and the address and
telephone number of each defendant;
(iii) The name, address and telephone number of complainant's
attorney, if complainant is represented by counsel;
(iv) Citation to the section of the Communications Act and/or the
Commission regulation or order alleged to have been violated;
(v) A complete statement of facts, which, if proven true, would
constitute such a violation;
(vi) Any evidence that supports the truth or accuracy of the
alleged facts;
(vii) Evidence that the open video system operator's conduct at
issue violated a section of the Communications Act and/or Commission
regulation or order.
(viii) If discrimination in rates, terms, and conditions of
carriage is alleged, documentary evidence shall be submitted such as a
preliminary carriage rate estimate or a programming contract that
demonstrates a differential in price, terms or conditions between
complainant and a competing video programming provider or, if no
programming contract or preliminary carriage rate estimate is submitted
with the complaint, an affidavit signed by an officer of complainant
alleging that a differential in price, terms or conditions exists, a
description of the nature and extent (if known or reasonably estimated
by the complainant) of the differential, together with a statement that
defendant refused to provide any further specific comparative
information;
(ix) If a programming contract or a preliminary carriage rate
estimate is submitted with the complaint in support of the alleged
violation, specific references to the relevant provisions therein; and
(x) The specific relief sought.
(2) Every complaint alleging a violation of the open video system
requirements shall be accompanied by a sworn affidavit signed by an
authorized
[[Page 28716]]
officer or agent of the complainant. This affidavit shall contain a
statement that the affiant has read the complaint and that to the best
of the affiant's knowledge, information, and belief formed after
reasonable inquiry, it is well grounded in fact and is warranted under
Commission regulations and policies, or is a good faith argument for
the extension, modification or reversal of such regulations or
policies, and it is not interposed for any improper purpose. If the
complaint is signed in violation of this rule, the Commission upon
motion or its own initiative, shall impose upon the complainant an
appropriate sanction.
(3) The following format may be used in cases to which it is
applicable, with such modifications as the circumstances may render
necessary:
Before The Federal Communications Commission, Washington, D.C.
20554
In the Matter of Complainant
File No. (To be inserted by the Commission) v. Defendant.
[Insert Subject or Nature of Issue: Unjust or Unreasonable
Discrimination in Rates, Terms, and Conditions; Discriminatory
Denial of Carriage]
Open Video System Complaint
To: The Commission.
The complainant (here insert full name of complainant and type
of entity of such complainant):
1. (Here state the complainant's post office address and
telephone number).
2. (Here insert the name, address and telephone number of each
defendant).
3. (Here insert fully and clearly the specific act or thing
complained of, together with such facts as are necessary to give
full understanding of the matter, including relevant legal and
documentary support).
Wherefore, complainant asks (here state specifically the relief
desired).
(Date)-----------------------------------------------------------------
(Name of complainant)--------------------------------------------------
----------------------------------------------------------------------
(Name, address, and telephone number of attorney, if any)
(4) The complaint must be accompanied by appropriate evidence
demonstrating that the required notification pursuant to paragraph (c)
of this section has been made.
(f) Answer.
(1) Any open video system operator upon which a complaint is served
under this section shall answer within thirty (30) days of service of
the complaint, unless otherwise directed by the Commission.
(2) The answer shall advise the parties and the Commission fully
and completely of the nature of any and all defenses, and shall respond
specifically to all material allegations of the complaint. Collateral
or immaterial issues shall be avoided in answers and every effort
should be made to narrow the issues. Any defendant failing to file and
serve an answer within the time and in the manner prescribed by these
rules may be deemed in default and an order may be entered against
defendant in accordance with the allegations contained in the
complaint.
(3) The answer shall state concisely any and all defenses to each
claim asserted and shall admit or deny the averments on which the
adverse party relies. If the defendant is without knowledge or
information sufficient to form a belief as to the truth of an averment,
the defendant shall so state and this has the effect of a denial. When
a defendant intends in good faith to deny only part of an averment, the
answer shall specify so much of it as is true and shall deny only the
remainder. The defendant may make its denials as specific denials of
designated averments or paragraphs, or may generally deny all the
averments except such designated averments or paragraphs as the
defendant expressly admits. When the defendant intends to controvert
all averments, the defendant may do so by general denial.
(4) Averments in a complaint are deemed to be admitted when not
denied in the answer.
(5) An answer to a discrimination complaint shall state the reasons
for any differential in prices, terms or conditions between the
complainant and its competitor, and shall specify the particular
justification relied upon in support of the differential. Any documents
or contracts submitted pursuant to this paragraph (f)(5) may be
protected as proprietary pursuant to paragraph (j) of this section.
(g) Reply. Within twenty (20) days after service of an answer, the
complainant may file and serve a reply which shall be responsive to
matters contained in the answer and shall not contain new matters.
Failure to reply will not be deemed an admission of any allegations
contained in the answer, except with respect to any affirmative defense
set forth therein. Replies containing information claimed by defendant
to be proprietary under paragraph (j) of this section shall be
submitted to the Commission in confidence pursuant to the requirements
of Sec. 0.459 of this chapter and clearly marked ``Not for Public
Inspection.'' An edited version removing all proprietary data shall be
filed with the Commission for inclusion in the public file within five
(5) days from the date the unedited reply is submitted, and shall be
served on the defendant.
(h) Motions. Except as provided in this section, or upon a showing
of extraordinary circumstances, additional motions or pleadings by any
party will not be accepted.
(i) Discovery.
(1) The Commission staff may in its discretion order discovery
limited to the issues specified by the Commission. Such discovery may
include answers to written interrogatories or document production.
(2) The Commission staff may in its discretion direct the parties
to submit discovery proposals, together with a memorandum in support of
the discovery requested. Such discovery requests may include answers to
written interrogatories, document production or depositions. The
Commission staff will then hold a status conference with the parties,
pursuant to paragraph (l) of this section, to determine the scope of
discovery. If the Commission staff determines that extensive discovery
is required or that depositions are warranted, the staff will advise
the parties that the proceeding will be referred to an administrative
law judge in accordance with paragraph (o) of this section.
(j) Confidentiality of proprietary information.
(1) Any materials generated or provided by a party in connection
with the pre-complaint notification procedure required under paragraph
(c) of this section and in the course of adjudicating a complaint under
this provision may be designated as proprietary by that party if the
party believes in good faith that the materials fall within an
exemption to disclosure contained in the Freedom of Information Act
(FOIA), 5 U.S.C. 552(b). Any party asserting confidentiality for such
materials shall so indicate by clearly marking each page, or portion
thereof, for which a proprietary designation is claimed. If a
proprietary designation is challenged, the party claiming
confidentiality will have the burden of demonstrating, by a
preponderance of the evidence, that the material designated as
proprietary falls under the standards for nondisclosure enunciated in
the FOIA.
(2) Materials marked as proprietary may be disclosed solely to the
following persons, only for use in prosecuting or defending a party to
the complaint action, and only to the extent necessary to assist in the
prosecution or defense of the case:
(i) Counsel of record representing the parties in the complaint
action and any support personnel employed by such attorneys;
(ii) Officers or employees of the opposing party who are named by
the opposing party as being directly
[[Page 28717]]
involved in the prosecution or defense of the case;
(iii) Consultants or expert witnesses retained by the parties;
(iv) The Commission and its staff; and
(v) Court reporters and stenographers in accordance with the terms
and conditions of this section.
(3) The persons designated in paragraph (j)(2) of this section
shall not disclose information designated as proprietary to any person
who is not authorized under this section to receive such information,
and shall not use the information in any activity or function other
than the prosecution or defense in the case before the Commission. Each
individual who is provided access to the information by the opposing
party shall sign a notarized statement affirmatively stating, or shall
certify under penalty of perjury, that the individual has personally
reviewed the Commission's rules and understands the limitations they
impose on the signing party.
(4) No copies of materials marked proprietary may be made except
copies to be used by persons designated in paragraph (j)(2) of this
section. Each party shall maintain a log recording the number of copies
made of all proprietary material and the persons to whom the copies
have been provided.
(5) Upon termination of the complaint proceeding, including all
appeals and petitions, all originals and reproductions of any
proprietary materials, along with the log recording persons who
received copies of such materials, shall be provided to the producing
party. In addition, upon final termination of the complaint proceeding,
any notes or other work product derived in whole or in part from the
proprietary materials of an opposing or third party shall be destroyed.
(k) Other required written submissions.
(1) The Commission may, in its discretion, require the parties to
file briefs summarizing the facts and issues presented in the pleadings
and other record evidence. These briefs shall contain the findings of
fact and conclusions of law which that party is urging the Commission
to adopt, with specific citations to the record, and supported by
relevant authority and analysis.
(2) The Commission may require the parties to submit any additional
information it deems appropriate for a full, fair, and expeditious
resolution of the proceeding, including copies of all contracts and
documents reflecting arrangements and understandings alleged to violate
the requirements set forth in the Communications Act and in this part,
as well as affidavits and exhibits.
(3) Any briefs submitted shall be filed concurrently by both the
complainant and defendant at such time as is designated by the staff.
Such briefs shall not exceed fifty (50) pages.
(4) Reply briefs may be submitted by either party within twenty
(20) days from the date initial briefs are due. Reply briefs shall not
exceed thirty (30) pages.
(5) Briefs containing information which is claimed by an opposing
or third party to be proprietary under paragraph (j) of this section
shall be submitted to the Commission in confidence pursuant to the
requirements of Sec. 0.459 of this chapter, and shall be clearly marked
``Not for Public Inspection.'' An edited version removing all
proprietary data shall be filed with the Commission for inclusion in
the public file within five (5) days from the date the unedited version
is submitted and served on opposing parties.
(l) Status conference.
(1) In any complaint proceeding under this part, the Commission
staff may in its discretion direct the attorneys and/or the parties to
appear for a conference to consider:
(i) Simplification or narrowing of the issues;
(ii) The necessity for or desirability of amendments to the
pleadings, additional pleadings, or other evidentiary submissions;
(iii) Obtaining admissions of fact or stipulations between the
parties as to any or all of the matters in controversy;
(iv) Settlement of the matters in controversy by agreement of the
parties;
(v) The necessity for and extent of discovery, including objections
to interrogatories or requests for written documents;
(vi) The need and schedule for filing briefs, and the date for any
further conferences; and
(vii) Such other matters that may aid in the disposition of the
complaint.
(2) Any party may request that a conference be held at any time
after the complaint has been filed.
(3) Conferences will be scheduled by the Commission at such time
and place as it may designate, to be conducted in person or by
telephone conference call.
(4) The failure of any attorney or party, following reasonable
notice, to appear at a scheduled conference will be deemed a waiver and
will not preclude the Commission from conferring with those parties or
counsel present.
(5) During a status conference, the Commission staff may issue oral
rulings pertaining to a variety of interlocutory matters relevant to
the conduct of the complaint proceeding including, inter alia,
procedural matters, discovery, and the submission of briefs or other
evidentiary materials. These rulings will be promptly memorialized in
writing and served on the parties. When such rulings require a party to
take affirmative action not subject to deadlines established by another
provision of this part, such action will be required within ten (10)
days from the date of the written memorialization unless otherwise
directed by the staff.
(m) Specifications as to pleadings, briefs, and other documents;
subscriptions.
(1) All papers filed in a complaint proceeding under this part must
be drawn in conformity with the requirements of Sections 1.49 and 1.50
of this chapter.
(2) All averments of claims or defenses in complaints and answers
shall be made in numbered paragraphs. The contents of each paragraph
shall be limited as far as practicable to a statement of a single set
of circumstances. Each claim founded on a separate transaction or
occurrence and each affirmative defense shall be separately stated to
facilitate the clear presentation of the matters set forth.
(3) The original of all pleadings and submissions by any party
shall be signed by that party, or by the party's attorney. Complaints
must be signed by the complainant. The signing party shall state his or
her address and telephone number and the date on which the document was
signed. Copies should be conformed to the original. Except when
otherwise specifically provided by rule or statute, pleadings need not
be verified. The signature of an attorney or party shall be a
certificate that the attorney or party has read the pleading, motion,
or other paper; that to the best of his or her knowledge, information
and belief formed after reasonable inquiry, it is well grounded in fact
and is warranted by existing law or a good faith argument for the
extension, modification or reversal of existing law; and that it is not
interposed for any improper purpose. If any pleading or other
submission is signed in violation of this provision, the Commission
shall upon motion or upon its own initiative impose upon the party an
appropriate sanction. Where the pleading or submission is signed by
counsel, the provisions of Sections 1.52 and 1.24 of this chapter shall
also apply.
(n) Copies; service.
(1) The complainant shall file an original plus three copies of the
complaint with the Commission.
[[Page 28718]]
However, if the complaint is addressed against multiple defendants,
complainant shall provide three additional copies of the complaint for
each additional defendant.
(2) An original plus two copies shall be filed of all pleadings and
documents other than the complaint.
(3) The complainant shall serve the complaint on each defendant at
the same time that it is filed at the Commission.
(4) All subsequent pleadings and briefs, as well as all letters,
documents or other written submissions, shall be served by the filing
party on all other parties to the proceeding, together with proof of
such service in accordance with the requirements of Sec. 1.47 of this
chapter.
(5) The parties to any complaint proceeding brought pursuant to
this section may be required to file additional copies of any or all
papers filed in the proceeding.
(o) Referral to administrative law judge.
(1) After reviewing the complaint, answer and reply, and at any
stage of the proceeding thereafter, the Commission staff may, in its
discretion, designate any complaint proceeding for an adjudicatory
hearing before an administrative law judge.
(2) Before designation for hearing, the staff shall notify, either
orally or in writing, the parties to the proceeding of its intent to so
designate, and the parties shall be given a period of ten (10) days to
elect to resolve the dispute through alternative dispute resolution
procedures, or to proceed with an adjudicatory hearing. Such election
shall be submitted in writing to the Commission.
(3) Unless otherwise directed by the Commission, or upon motion by
the Cable Services Bureau Chief, the Cable Services Bureau Chief shall
not be deemed to be a party to a complaint proceeding designated for a
hearing before an administrative law judge pursuant to this paragraph.
(p) Petitions for reconsideration. Petitions for reconsideration of
interlocutory actions by the Commission's staff or by an administrative
law judge will not be entertained. Petitions for reconsideration of a
decision on the merits made by the Commission's staff should be filed
in accordance with Secs. 1.104 through 1.106 of this chapter.
(q) Interlocutory review.
(1) Except as provided below, no party may seek review of
interlocutory rulings until a decision on the merits has been issued by
the staff or administrative law judge.
(2) Rulings listed in this paragraph are reviewable as a matter of
right. An application for review of such ruling may not be deferred and
raised as an exception to a decision on the merits:
(i) If the staff's ruling denies or terminates the right of any
person to participate as a party to the proceeding, such person, as a
matter of right, may file an application for review of that ruling:
(ii) If the staff's ruling requires production of documents or
other written evidence, over objection based on a claim of privilege,
the ruling on the claim of privilege is reviewable as a matter of
right; and/or
(iii) If the staff's ruling denies a motion to disqualify a staff
person from participating in the proceeding, the ruling is reviewable
as a matter of right.
(r) Expedited review.
(1) Any party to a complaint proceeding under this part aggrieved
by any decision on the merits issued by the staff pursuant to delegated
authority may file an application for review by the Commission in
accordance with Section 1.115 of this chapter.
(2) Any party to a complaint proceeding aggrieved by any decision
on the merits by an administrative law judge may file an appeal of the
decision directly with the Commission, in accordance with Sec. 1.276(a)
and Secs. 1.277 (a) through (c) of this chapter, except that unless a
stay is granted by the Commission, the decision by the administrative
law judge will become effective upon release and will remain in effect
pending appeal.
(s) Frivolous complaints. It shall be unlawful for any party to
file a frivolous complaint with the Commission alleging any violation
of this part. Any violation of this paragraph shall constitute an abuse
of process subject to appropriate sanctions.
(t) Statute of limitations. Any complaint filed pursuant to this
subsection must be filed within one year of the date on which the
following acts or conduct occur which form the basis of the complaint:
(1) The open video system operator enters into a contract with the
complainant that the complainant alleges to violate one or more of the
rules contained in this part; or
(2) The open video system operator offers to carry programming for
the complainant pursuant to terms that the complainant alleges to
violate one or more of the rules contained in this part; or
(3) The complainant has notified an open video system operator that
it intends to file a complaint with the Commission based on a request
for such operator to carry the complainant's programming on its open
video system that has been denied or unacknowledged, allegedly in
violation of one or more of the rules contained in this part.
(u) Remedies for violations.
(1) Remedies authorized. Upon completion of such adjudicatory
proceeding, the Commission shall order appropriate remedies, including,
if necessary, the requiring carriage, awarding damages to any person
denied carriage, or any combination of such sanctions. Such order shall
set forth a timetable for compliance, and shall become effective upon
release.
(2) Additional sanctions. The remedies provided in paragraph (u)(1)
of this section are in addition to and not in lieu of the sanctions
available under Title VI or any other provision of the Communications
Act.
Sec. 76.1514 Bundling of video and local exchange services.
An open video system operator may offer video and local exchange
services for sale in a single package at a single price, provided that:
(a) the open video system operator, where it is the incumbent local
exchange carrier, may not require that a subscriber purchase its video
service in order to receive local exchange service; and
(b) Any local exchange carrier offering such a package must impute
the unbundled tariff rate for the unregulated service.
[FR Doc. 96-14238 Filed 6-4-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-14122 Change in Organizational Title From Regional Director to Field Director
[Federal Register Volume 61, Number 109 (Wednesday, June 5, 1996)]
[Rules and Regulations]
[Pages 28504-28505]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14122]
=======================================================================
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DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Part 6
RIN 1024-AC37
Change in Organizational Title From Regional Director to Field
Director
AGENCY: National Park Service, Interior.
ACTION: Administrative amendment to final rule.
-----------------------------------------------------------------------
SUMMARY: The National Park Service (NPS) amended the General Provisions
Definition of ``Regional Director'' to reflect a new organizational
structure on November 3, 1995. With the recent reorganization of the
NPS eliminating existing geographic regions (effective May 15, 1995),
the term Regional Director is no longer an agency job position. The
duties and responsibilities of these positions have been assumed by
Field Directors. The amendment to the definitions replaced the term
Regional Director with Field Director wherever it appeared in 36 CFR
Parts 1-199, as well as eliminated all reference to the former
geographic regions.
This change was necessary because the terms Region and Regional
Director are no longer recognized in the NPS reorganizational
structure. Certain responsibilities and delegations of authority
associated with the former Regional Directors are now assumed by the
positions identified by the term Field Director. Publication of this
change is also a requirement of the Federal Register Act.
Unfortunately, the necessary amendments to 36 CFR Part 6 were
inadvertently omitted from the original document and are addressed
through this administrative amendment to the final rule.
EFFECTIVE DATE: This final rule becomes effective on June 5, 1996.
FOR FURTHER INFORMATION CONTACT: Dennis Burnett, Ranger Activities
Division, National Park Service, P.O. Box 37127, Washington, D.C.,
20013-7127. Telephone 202-208-4874.
[[Page 28505]]
SUPPLEMENTARY INFORMATION:
Background
The National Park System of the United States comprises 369 areas
covering over 80 million acres in 49 States, the District of Columbia,
American Samoa, Guam, Puerto Rico, Sampan and the Virgin Islands. These
areas of national significance justify special recognition and
protection in accordance with various acts of Congress.
In 1995, as a result of: (1) the NPS's own assessment of a need to
change how it accomplished its essential work with increasing
constraints; (2) the National Performance Review (NPR), which directed
Federal agencies to cut red tape, put customers first, empower
employees to get results and reduce layers in organizations; and (3)
The Federal Workforce Restructuring Act of 1994 (P.L. 103-226), a
government-wide Workforce reduction, the NPS implemented a Servicewide
restructuring of the organization. The reorganization effort
drastically reduces central office staffs. The 10 NPS Regional
Directors have been replaced by 7 Field Directors, who provide
direction, oversight, budget formulation and assistance in media
relations for the parks and support offices in their geographical field
areas. With the change and revision of the regional concept, all
national park units are now grouped into clusters to act
collaboratively in sharing limited resources. A network of 16 system
support offices provide services and support to the parks by cluster.
The President of the United States, through the Secretary of the
Interior and the Director of the NPS, allowed the Regional Directors of
the ten Regional Offices certain delegated authorities in the
management of the park units. 36 CFR Parts 1-199 contains many of these
authorities. Because the term Regional Director is codified in the CFR,
the definition of Regional Director must be replaced to reflect the new
authorities given to Field Directors as a result of the reorganization.
Many of these authorities have the enforcement powers of law. On
November 3, 1995, the NPS published a final rule in the Federal
Register (60 FR 55789) changing the nomenclature in 36 CFR Parts 1-199
from Regional Director to Field Director.
The NPS adopts this final rule pursuant to the ``agency
organization'' exception of the Administrative Procedure Act (5 U.S.C.
553(b)(A)) from general notice and comment rulemaking. The NPS believes
that this exception from rulemaking procedures is warranted because it
is merely a change in agency organizational structure. The NPS finds
that notice and comment are unnecessary and contrary to the public
interest for this final rule.
The NPS has also determined, in accordance with the Administrative
Procedure Act (5 U.S.C. 553(d)(3)), that the publishing of this final
rule 30 days prior to the rule becoming effective would be
counterproductive and unnecessary for the reasons discussed above. A
30-day delay would be contrary to the public interest and the interest
of the agency. Therefore, under the ``good cause'' exception of the
Administrative Procedure Act (5 U.S.C. 553(d)(3)), it has been
determined that this rulemaking is excepted from the 30-day delay in
the effective date and shall therefore become effective on the date
published in the Federal Register.
Drafting Information. The primary author of this final rule is
Dennis Burnett, Washington Office of Ranger Activities, National
Park Service.
Paperwork Reduction Act
This rulemaking does not contain information collection
requirements that require approval by the Office of Management and
Budget under the Paperwork Reduction Act of 1995.
Compliance With Other Laws
This rule was not subject to Office of Management and Budget review
under Executive Order 12866. The Department of the Interior has
determined that this document will not have a significant economic
effect on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et. seq.). The economic effects of this
rulemaking are negligible.
The NPS has determined that this proposed rulemaking will not have
a significant effect on the quality of the human environment, health
and safety because it is not expected to:
(a) Increase public use to the extent of compromising the nature
and character of the area or causing physical damage to it;
(b) Introduce incompatible uses which compromise the nature and
characteristics of the area or cause physical damage to it;
(c) Conflict with adjacent ownership or land uses; or
(d) Cause a nuisance to adjacent owners or occupants.
Based on this determination, the regulation is categorically
excluded from the procedural requirements of the National Environmental
Policy Act (NEPA) by Departmental guidelines in 516 DM 6 (49 FR 21438).
As such, neither an Environmental Assessment (EA) nor an Environmental
Impact Statement (EIS) has been prepared.
List of Subjects in 36 CFR Part 6
National parks, Natural resources, Penalties, Reporting and
recordkeeping requirements, Waste treatment.
In consideration of the foregoing, and under the authority at 18
U.S.C. 1 and 3, 36 CFR Chapter I is amended as follows:
PART 6--SOLID WASTE DISPOSAL SITES IN UNITS OF THE NATIONAL PARK
SYSTEM
1. The authority citation for 36 CFR part 6 continues to read as
follows:
Authority: 16 U.S.C. 1, 3, 4601-22(c).
2. 36 CFR Part 6 is amended by removing the term ``Regional
Director'' and inserting the term ``Field Director'' in its place each
time it appears.
Dated: May 29, 1996.
George T. Frampton,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 96-14122 Filed 6-4-96; 8:45 am]
BILLING CODE 4310-70-P
Complete official Federal Register PDF
FR Doc. 96-14106 Hazardous Waste Treatment, Storage, and Disposal Facilities and Hazardous Waste Generators; Organic Air Emission Standards for Tanks, Surface Impoundments, and Containers
[Federal Register Volume 61, Number 109 (Wednesday, June 5, 1996)]
[Rules and Regulations]
[Pages 28508-28511]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14106]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 264, 265, 270, and 271
[FRL-5509-4]
RIN 2060-AB94
Hazardous Waste Treatment, Storage, and Disposal Facilities and
Hazardous Waste Generators; Organic Air Emission Standards for Tanks,
Surface Impoundments, and Containers
AGENCY: Environmental Protection Agency (EPA).
ACTION: Amendment of final rule to postpone requirements.
-----------------------------------------------------------------------
SUMMARY: This document amends the EPA standards to postpone the
effective date of the requirements in the December 6, 1994 final rule
entitled, ``Hazardous Waste Treatment, Storage, and Disposal Facilities
and Hazardous Waste Generators; Organic Air Emission Standards for
Tanks, Surface Impoundments, and Containers'' until October 6, 1996.
DATES: These amendments are effective June 5, 1996.
ADDRESSES: Docket. The supporting information used for the final rule
is available for public inspection and copying in the RCRA docket. The
RCRA docket numbers pertaining to the final rule are F-91-CESP-FFFFF,
F-92-CESA-FFFFF, F-94-CESF-FFFFF, F-94-CE2A-FFFFF, F-95-CE3A-FFFFF, and
F-96-CE4A-FFFFF. The RCRA docket is located at Crystal Gateway, 1235
Jefferson Davis Highway, First Floor, Arlington, Virginia. Review of
docket materials is conducted at the Virginia address; an appointment
is required to review docket materials. Appointments can be scheduled
by calling the Docket Office at (703) 603-9230. The mailing address for
the RCRA Docket Office is RCRA Information Center (5305W), U.S.
Environmental Protection Agency, 401 M Street, S.W., Washington, D.C.
20460.
FOR FURTHER INFORMATION CONTACT: For information about this
postponement contact the RCRA Hotline at (800) 424-9346 toll-free, or
(703) 920-9810.
SUPPLEMENTARY INFORMATION:
1. Postponement of Effective Date for Rule Requirements
The effective date of the requirements in the final rule,
originally published December 6, 1994 (59 FR 62896) and postponed
November 13, 1995 (60 FR 56952), are further postponed until October 6,
1996. The requirements of these final standards were originally
scheduled to become effective as of June 5, 1995. The EPA specified in
the final rule a schedule that established the compliance dates by
which different requirements of the final rule must be met. These
compliance dates and requirements are explained further in the final
rule (59 FR 62896, December 6, 1994) under SUPPLEMENTARY INFORMATION.
Today's amendment changes only the effective date of the requirements
contained in the final standards. The effective date will be October 6,
1996 for all provisions of the standards, including the applicability
of 40 CFR part 265 subparts AA, BB, and CC to 90-day accumulation units
at hazardous waste generators, the applicability of 40 CFR part 265
subparts AA, BB, and CC to RCRA permitted units, and the applicability
of the final standards to tanks in which waste stabilization activities
are performed. All other compliance dates for the final rule remain as
published in the final rule (59 FR 62896.)
The EPA initially extended the effective date of the requirements
in the final rule for six months to allow time to clarify certain
provisions of the final rule and develop other compliance options (see
60 FR 26828, May 19, 1995). On August 14, 1995 the EPA published a
Federal Register notice, ``Proposed rule; data availability'' (60 FR
41870) and opened RCRA docket F-95-CE3A-FFFFF to accept comments on
revisions that the EPA is considering for the final standards. The
provisions of the final rule that these revisions would affect are the
waste determination procedures, the standards for containers, and the
applicability of the final standards to units that operate air emission
controls in accordance with certain Clean Air Act standards. In
addition, these revisions would reduce the monitoring, record keeping,
and reporting requirements for affected tanks, surface impoundments,
and containers.
The EPA accepted public comments on the appropriateness of these
revisions through October 13, 1995, and is now in the process of
finalizing amendments to the final rule to incorporate the described
revisions, based on the information the EPA noticed and the comments
EPA received. As anticipated, the amendments will provide certain
compliance options for waste determination procedures and for container
standards that are not currently available in the published final rule.
On November 13, 1995 (60 FR 56952) the EPA again postponed the
effective date of the rule requirements until June 6, 1996 to allow
time for the EPA to publish amendments to the December 6, 1994 final
standards. The EPA expects to publish these amendments in the near
future. Given that the EPA is in the process of amending the rule in
ways that would increase compliance flexibility and possibly reduce
certain regulatory requirements, the EPA considers it appropriate to
delay the June 6, 1996 effective date of the rule requirements for four
months. (See 5 U.S.C. 705, ``when an agency finds that justice so
requires, it may postpone the effective date of action taken by it,
pending judicial review.'') In particular, the EPA is not sure that it
will have adequate time to promulgate the amendments before June 6,
1996 to allow facilities to avoid compliance expenditures based on the
December 6, 1994 final rule, expenditures which may prove unnecessary
in light of the projected amendments. This postponement will thus allow
time for the EPA to publish
[[Page 28509]]
the amendments. The EPA anticipates that by October 6, 1996 affected
sources will have had ample time to make any necessary alterations to
their compliance plans in response to the amendments. Affected sources
have been on notice of the final regulations since they were published
in December of 1994. The EPA expects that by early 1995, most
facilities had begun preparing their implementation strategies and
planning for any necessary equipment modifications, in anticipation of
the originally scheduled implementation date of June 6, 1995. Thus, the
EPA considers today's four month extension to be sufficient time for
affected facilities to become familiar with the revised requirements
contained in the amended standards, and to make any necessary revisions
to their implementation strategies.
The EPA has received a request to stay the rule from parties that
brought judicial challenges to the December 6, 1994 published rule. In
taking this action to postpone the effective date of the rule
requirements, the EPA is not concurring that the criteria for a stay
(such as likelihood of irreparable harm or likelihood that these
parties will ultimately prevail should the rule be litigated) are met.
Rather, as a prudential matter, the EPA believes that a four month
delay is appropriate for the reasons explained above.
2. Retention of Final Compliance Date of December 8, 1997
The December 6, 1994 published rule set a final compliance date of
December 8, 1997, by which time all required air emission control
equipment must be operating (59 FR 62897). The EPA does not believe
that postponing the effective date of the rule requirements
necessitates any postponement of the December 8, 1997 compliance date.
The final compliance date was chosen to allow time for facility
modifications that may be involved in the compliance approach of
certain facilities. The EPA believes that, for many air emission
control applications, the required control devices can be installed and
in operation within several months. However, the EPA agrees that under
some circumstances, the owner's or operator's approach to complying
with the air emission control requirements under the subpart CC
standards may involve a major design and construction project which
requires a longer time to complete. In recognition of these cases, the
EPA decided that it is reasonable to allow up to December 8, 1997 for
affected facilities to install and begin operation of air emission
controls required by the supbart CC standards. (Hazardous Waste TSDF
Background Information Document for Promulgated Organic Air Emission
Standards, EPA-453/R-94-076b, page 9-7.)
The final rule requirements that may necessitate a major
modification, as described above, for tanks are paragraphs (b) through
(d) of 40 CFR parts 264.1084 and 265.1085. These paragraphs specify air
emission control equipment that must be operated on tanks receiving
affected hazardous waste. Similarly, the requirements that may
necessitate such a major modification for surface impoundments are
paragraphs (b) through (e) of 40 CFR parts 264.1085 and 265.1086. These
paragraphs specify air emission control equipment that must be operated
on surface impoundments receiving affected hazardous waste. To comply
with these requirements for tanks and surface impoundments, facilities
may choose to construct new hazardous waste management units to replace
existing units, or may choose to modify existing hazardous waste
management units. Examples of facility equipment modifications that
could require an extended period of compliance would be replacing a
large open surface impoundment with a series of covered tanks, or
fitting an existing open tank with a fixed roof vented to a control
device. The EPA recognizes that such major modifications or new
construction can require several months or more, and therefore allows
until December 8, 1997 for facilities to comply with the air emission
control requirements of the final subpart CC standards.
In addition, certain States may require that a facility obtain a
permit modification prior to performing a major modification such as
those described above. The EPA recognizes that such permit
modifications can be a lengthy process, and therefore felt it was
appropriate to afford an extended compliance period to allow such
modifications to be obtained (59 FR 62919). The EPA does not expect
that such a lengthy period of implementation would be required in
circumstances other than those described above, although
Sec. 264.1082(c) allows that such a period is available if necessary.
The final rule provisions that justified a compliance date of
December 8, 1997 are not among those that are potentially affected by
the revisions currently under EPA's consideration. Specifically, the
EPA is not considering changes to the requirements for covers and air
emission controls on tanks and surface impoundments. All affected
facilities have been on notice of the final rule air emission control
requirements for these units since the final rule publication on
December 6, 1994. Therefore, the EPA does not consider it appropriate
to postpone the compliance date of December 8, 1997, by which all
required air emission control equipment must be operating.
3. Conclusion
The EPA is amending the final rule such that the final rule
requirements are not effective until October 6, 1996. The final rule
text affected by this postponement is amended as follows.
List of Subjects
40 CFR Parts 264 and 265
Air pollution control, Container, Control device, Hazardous waste,
Incorporation by reference, Inspection, Miscellaneous unit, Monitoring,
Reporting and recordkeeping requirements, Standards, Surface
impoundment, Tank, TSDF, Waste determination.
40 CFR Part 271
Administrative practice and procedure, Air pollution control,
Confidential business information, Hazardous waste, Reporting and
recordkeeping requirements.
Dated: May 16, 1996.
Mary D. Nichols,
Assistant Administrator for Air and Radiation.
For the reasons set out in the preamble, title 40, chapter I, parts
264, 265, and 271 of the Code of Federal Regulations are amended as
follows:
PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND DISPOSAL FACILITIES
1. The authority citation for part 264 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6924 and 6925.
Subpart CC--Air Emission Standards for Tanks, Surface Impoundments,
and Containers
2. Section 264.1080 is amended by revising paragraphs (b)(1) and
(c) to read as follows:
Sec. 264.1080 Applicability.
* * * * *
(b) * * *
(1) A waste management unit that holds hazardous waste placed in
the unit before October 6, 1996, and in
[[Page 28510]]
which no hazardous waste is added to the unit on or after this date.
* * * * *
(c) For the owner and operator of a facility subject to this
subpart and who received a final permit under RCRA section 3005 prior
to October 6, 1996, the requirements of this subpart shall be
incorporated into the permit when the permit is reissued in accordance
with the requirements of 40 CFR 124.15 of this chapter or reviewed in
accordance with the requirements of 40 CFR 270.50(d) of this chapter.
Until such date when the owner and operator receives a final permit
incorporating the requirements of this subpart, the owner and operator
is subject to the requirements of 40 CFR Part 265 subpart CC.
PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
3. The authority citation for part 265 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6924, 6925, and 6935.
Subpart CC--Air Emission Standards for Tanks, Surface Impoundments,
and Containers
4. Section 265.1080 is amended by revising paragraph (b)(1) and
paragraph (c) introductory text to read as follows:
Sec. 265.1080 Applicability.
* * * * *
(b) * * *
(1) A waste management unit that holds hazardous waste placed in
the unit before October 6, 1996, and in which no hazardous waste is
added to the unit on or after this date.
* * * * *
(c) For the owner and operator of a facility subject to this
subpart who has received a final permit under RCRA section 3005 prior
to October 6, 1996, the following requirements apply:
* * * * *
5. Section 265.1082 is amended by revising paragraphs (a)
introductory text, paragraph (a)(1), (a)(2) introductory text,
(a)(2)(iii), and (a)(2)(iv) to read as follows:
Sec. 265.1082 Schedule for implementation of air emission standards.
(a) Owners or operators of facilities existing on October 6, 1996,
and subject to subparts I, J, and K of this part shall meet the
following requirements:
(1) Install and begin operation of all control equipment required
by this subpart by October 6, 1995, except as provided for in paragraph
(a)(2) of this section.
(2) When control equipment required by this subpart cannot be
installed and in operation by October 6, 1996, the owner or operator
shall:
* * * * *
(iii) For facilities subject to the recordkeeping requirements of
Sec. 265.73 of this part, the owner or operator shall enter the
implementation schedule specified in paragraph (a)(2)(ii) of this
section in the operating record no later than October 6, 1996.
(iv) For facilities not subject to Sec. 265.73 of this part, the
owner or operator shall enter the implementation schedule specified in
paragraph (a)(2)(ii) of this section in a permanent, readily available
file located at the facility no later than October 6, 1996.
* * * * *
PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE
PROGRAMS
6. The authority citation for part 271 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), and 6926.
Subpart A--Requirements for Final Authorization
7. Section 271.1(j) is amended by revising the effective date of
the following entry in Table 1 to read as follows:
Sec. 271.1 Purpose and Scope.
* * * * *
(j) * * *
Table 1.--Regulations Implementing the Hazardous and Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
Federal Register
Promulgation date Title of regulation reference Effective date
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
December 6, 1994..................... Air Emission Standards 59 FR 62896-62953...... October 6, 1996.
for Tanks, Surface
Impoundments, and
Containers.
----------------------------------------------------------------------------------------------------------------
8. Section 271.1(j) is amended by revising the effective date of
the following entry in Table 2 to read as follows:
Sec. 271.1 Purpose and Scope.
* * * * *
(j) * * *
Table 2.--Self-Implementing Provisions of the Hazardous and Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
Self-implementing Federal Register
Effective date provision RCRA citation reference
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
October 6, 1996...................... Air Emission Standards 3004(n)................ December 6, 1994, 59 FR
for Tanks, Surface 62896-62953.
Impoundments, and
Containers.
----------------------------------------------------------------------------------------------------------------
[[Page 28511]]
[FR Doc. 96-14106 Filed 6-4-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-14104 Conveyance of Freehold and Leasehold Interests
[Federal Register Volume 61, Number 109 (Wednesday, June 5, 1996)]
[Rules and Regulations]
[Pages 28506-28508]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14104]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
36 CFR Part 17
RIN 1024-AC27
Conveyance of Freehold and Leasehold Interests
AGENCY: National Park Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The National Park Service (NPS) is revising portions of the
regulations for conveyance of freehold and leasehold interests on lands
administered by the NPS. The final rule will allow bids for freehold
and
[[Page 28507]]
leasehold interests on lands to be accompanied by earnest money
equivalent to 2 percent of the appraised value or $2,500, whichever is
greater, with the balance of the bid due within 45 days of the award.
The NPS has experienced problems selling parcels of real estate under
the current regulations, which require that bids be accompanied by
certified checks, post office money orders, bank drafts or cashier's
checks for the full amount of the bids. The changes to the regulations
address this issue and will correct the problem identified with the
previous regulations. With these changes, the NPS will be able to
convey freehold and leasehold interests on federally owned lands.
This final rule also provides for a time frame for submitting the
balance of the bid and describes what occurs if the successful bidder
is unable to obtain the necessary financing in the case of a freehold
interest. The NPS is revising and amending the current regulations on
action at close of bidding, by allowing 45 days from the time of bid
award to submit the balance due. Failure to submit the full bid price
within 45 days will result in forfeiture of $1,000 of the deposited bid
amount and the property will be awarded to the next highest bid.
EFFECTIVE DATE: This rule becomes final on July 5, 1996.
FOR FURTHER INFORMATION CONTACT: Jeff Winstel, Historian, Cuyahoga
Valley National Recreation Area, 15160 Vaughn Road, Brecksville, OH
44114. Telephone (216) 546-5975.
SUPPLEMENTARY INFORMATION:
Background
The current NPS regulations regarding conveyance of freehold and
leasehold interests on land are codified in 36 CFR part 17 and
authorize sale of Federal real property acquired from non-Federal
sources.
On June 3, 1993, Cuyahoga Valley National Recreation Area, a unit
of the National Park System, held a bid opening for the purpose of
selling 1.13 acres of improved Federally owned land. Improvements
included a historic three-bedroom residence, a detached single car
garage and two small sheds. Historic preservation deed restrictions
were placed on the structures and scenic deed restrictions were placed
on the property.
The property was marketed extensively. It was listed in the Federal
Register, advertised in a local paper for five consecutive weeks,
marketed with a local realtor, listed in the Multiple Listing Service,
advertised on local television channels and open houses were held on
four days. There was considerable interest in the property with 180
prospective buyers attending the open houses and private showings.
Interviews with park officials by news media reporters regarding the
property appeared on local TV stations and in local newspapers.
When the property was open for bid on June 3, 1993, not a single
bid was received. This lack of response was a concern and inquiries
were made of 50 people who had attended the open houses and expressed a
sincere interest in buying the property. The major reason given for not
bidding was the requirement that the full amount of the bid be enclosed
with the bid. No lending institution would approve this type of
arrangement.
The NPS is therefore revising this regulation. The NPS is amending
the sixth sentence of 36 CFR 17.5 as follows: ``Bid must be accompanied
by certified checks, post office money orders, bank drafts or cashier's
checks made payable to the United States of America for 2 percent of
the fair market value or $2,500, whichever is greater, in the case of a
freehold interest or for the amount of the first year's rent in the
case of a leasehold interest.''
The NPS is also amending 36 CFR 17.6 by adding the following two
sentences to the end of the section: ``In the case of a freehold
interest the high bidder must submit the balance of the bid within 45
days of the bid award in the form of certified check, post office money
order, bank draft or cashier's check made payable to the United States
of America. Failure to submit the full balance within 45 days will
result in forfeiture of $1,000 of the bid deposit, unless the bidder
has been released from the bid or an extension has been granted by the
authorized officer, and the property will be awarded to the next
highest bidder upon fulfillment of the requirements of this section.''
These changes will improve the existing regulations by permitting
prospective bidders to participate without an outlay of a large sum of
cash. This amendment will also facilitate the ``sellback'' of historic
structures to the private sector and place real property on the local
tax rolls. The historic and scenic values of the properties will be
protected through deed restrictions.
On February 12, 1996, the NPS published the proposed regulation
that will amend these regulations for conveyance of freehold and
leasehold interests on lands administered by the NPS (61 FR 5356). The
comment period closed on April 12, 1996. No comments were received
during the public comment period. This rule becomes final 30 days after
publication in the Federal Register.
Drafting Information. The primary author of this regulation is
John P. Debo, Jr., Superintendent, Cuyahoga Valley National
Recreation Area.
Paperwork Reduction Act
This final rule does not contain collections of information
requiring approval by the Office of Management and Budget under the
Paperwork Reduction Act of 1995.
Compliance With Other Laws
This final rule was not subject to Office of Management and Budget
review under Executive Order 12866. The Department of the Interior
determined that this document will not have a significant economic
effect on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.). In fact, this rulemaking will
lessen the economic burden on prospective bidders by not requiring the
full amount of the bid at the time of the bid.
The NPS has determined that this rulemaking will not have a
significant effect on the quality of the human environment, health and
safety because it is not expected to:
(a) Increase public use to the extent of compromising the nature
and character of the area or causing physical damage to it;
(b) Introduce non-compatible uses which might compromise the nature
and characteristics of the area, or cause physical damage to it;
(c) Conflict with adjacent ownerships or land uses; or
(d) Cause a nuisance to adjacent owners or occupants.
Based on this determination, this rulemaking is categorically
excluded from the procedural requirements of the National Environmental
Policy Act (NEPA) by Departmental regulations in 516 DM 6, (49 FR
21438). As such, neither an Environmental Assessment (EA) nor an
Environmental Impact Statement (EIS) has been prepared.
List of Subjects in 36 CFR Part 17
National parks, Reporting and recordkeeping requirements.
In consideration of the foregoing, 36 CFR Chapter I is amended as
follows:
PART 17--CONVEYANCE OF FREEHOLD AND LEASEHOLD INTERESTS ON LANDS OF
THE NATIONAL PARK SYSTEM
1. The authority citation for Part 17 continues to read as follows:
Authority: Sec 5(a) of the Act of July 15, 1968, 82 Stat. 354,
16 U.S.C. 4601-22(a).
[[Page 28508]]
2. Section 17.5 is amended by revising the sixth sentence to read
as follows:
Sec. 17.5 Bids.
* * * Bids must be accompanied by certified checks, post office
money orders, bank drafts, or cashier's checks made payable to the
United States of America for 2 percent of the amount of the fair market
value or $2,500, whichever is greater, in the case of a freehold
interest or for the amount of the first year's rent in the case of a
leasehold interest. * * *
3. Section 17.6 is amended by adding two sentences to the end of
the section, to read as follows:
Sec. 17.6 Action at close of bidding.
* * * In the case of a freehold interest, the high bidder must
submit the balance of the bid within 45 days of the bid award in the
form of a certified check, post office money order, bank draft, or
cashier's check, made payable to the United States of America. Failure
to submit the full balance within 45 days will result in the forfeiture
of $1,000 of bid deposit, unless the bidder has been released from the
bid or an extension has been granted by the authorized officer, and the
property will be awarded to the next highest bidder upon fulfillment of
the requirements of this section.
Date: May 19, 1996.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 96-14104 Filed 6-4-96; 8:45 am]
BILLING CODE 4310-70-P
Complete official Federal Register PDF
FR Doc. 96-14103 Appalachian National Scenic Trail, Powerless Flight
[Federal Register Volume 61, Number 109 (Wednesday, June 5, 1996)]
[Rules and Regulations]
[Pages 28505-28506]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14103]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
36 CFR Part 7
RIN 1024-AC42
Appalachian National Scenic Trail, Powerless Flight
AGENCY: National Park Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The National Park Service (NPS) is adopting this final rule to
allow powerless flight along the Appalachian National Scenic Trail at
times and locations designated by the Park Manager, pursuant to the
terms and conditions of a permit. The terms and conditions of a Special
Use Permit (SUP) will in all cases prohibit stunt flying,
commercialization, advertising, publicity, contests, meets,
demonstrations and motor vehicular access on non-public roads. In
addition, the Park Manager may require, as a standard condition of the
SUP, that all hang gliders using the designated site be qualified
pilots licensed by the United States Hang Gliding Association. The
frequency of launch sites, level of use, availability of alternate
sites and cumulative impacts on the remote recreational experience and
character of the Appalachian Trail will be significant factors in
determining whether new launch and/or landing sites will be designated.
EFFECTIVE DATE: This final rule becomes effective on July 5, 1996.
[[Page 28506]]
FOR FURTHER INFORMATION CONTACT: Virginia F. Williams, NPS, Appalachian
National Scenic Trail, Harpers Ferry Center, Harpers Ferry, WV 25425.
Telephone (304) 535-6278
SUPPLEMENTARY INFORMATION:
Background
The Appalachian National Scenic Trail (AT) is a north-south hiking
trail that stretches nearly 2,200 miles from Mt. Katahdin, Maine, to
Springer Mountain, Georgia, along the crest of the Appalachian
Mountains. The AT is administered by the Secretary of the Interior
through the NPS, as part of the National Trails System.
At its inception, the AT traversed mostly private lands. Use of the
private lands was enjoyed not only by hikers, but also by other types
of outdoor enthusiasts. In the late 1970's, hang gliders in the area of
Fox Gap, Pennsylvania, with the permission of the landowner, began
launching from the ridgetop known as Kirkridge, along the crest of the
Appalachian Mountains. The hang gliders formally organized and
established the Water Gap Hang Gliding Club (WGHGC) for the purpose of
promoting the safety of hang gliding and addressing liability issues.
Originally, the WGHGC used the area with the express permission of
the landowner and, after the area was acquired by the NPS, the WGHGC
requested permission from the NPS and was issued a SUP to continue
using the AT area as a launch site. During the review process conducted
by the NPS in 1995 for the renewal of the SUP for the WGHGC, the NPS
discovered that a 1983 revision to the general regulations found at 36
CFR 2.17 had created the requirement of a special regulation before the
NPS could renew the WGHGC permit. Private managing partners were
consulted and they endorse seeking the special regulation.
Other sites along the AT have historically been used as launch
sites for hang gliders prior to NPS acquisition. To date, the WGHGC is
the only organized club that has requested a permit to maintain a
launch site.
A proposed regulation was published in the Federal Register on
January 31, 1996 (60 FR 3358) to allow hang gliding at the Fox Gap site
pursuant to the terms and conditions of a permit. Public comment was
invited. The comment period closed March 1, 1996.
Summary of Comments Received
During the public comment period, the NPS received 620 letters, of
which 618 were identical form letters. After the close of the comment
period, approximately 300 additional form letters were received. All of
the respondents to the proposed rule endorsed hang gliding use of the
Fox Gap site. However, the 918 form letters urged the NPS to seek a
broader, non site-specific special regulation. After considering all of
the public comments received, the NPS has decided to endorse a broader
rule, and to proceed with a final rule with a modification of the
proposed rule from a site specific regulation to a non site-specific
special regulation that may allow powerless flight on AT acquired lands
at times and locations designated by the Park Manager, pursuant to the
terms and conditions of a permit.
Drafting Information. The primary authors of this final rule are
Park Manager Pamela Underhill, Landscape Architect Virginia F.
Williams at the Appalachian National Scenic Trail Office and Dennis
Burnett, Washington Office of Ranger Activities, National Park
Service.
Paperwork Reduction Act
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.), the information collection requirements contained in this
final rule have been approved by the Office of Management and Budget
and assigned clearance number 1024-0026. This information is being
collected for the Superintendent to issue a permit. The information
will be used to grant administrative benefits. The obligation to
respond is required to obtain a benefit.
Compliance With Other Laws
This rule was not subject to Office of Management and Budget review
under Executive Order 12866. The Department of the Interior determined
that this document will not have a significant economic effect on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et. seq.). Any economic effects of this rulemaking
will be local in nature and negligible in scope.
The NPS has determined that this final rule will not have a
significant effect on the quality of the human environment, health and
safety because it is not expected to:
(a) Increase public use to the extent of compromising the nature
and character of the area or causing physical damage to it;
(b) Introduce incompatible uses which compromise the nature and
character of the area or causing physical damage to it;
(c) Conflict with adjacent ownerships or land uses; or
(d) Cause a nuisance to adjacent owners or occupants.
Based on this determination, the regulation is categorically
excluded from the procedural requirements of the National Environmental
Policy Act (NEPA) by Departmental guidelines in 516 DM 6 (49 FR 21438).
As such, neither an Environmental Assessment (EA) nor an Environmental
Impact Statement (EIS) has been prepared. However, as requests for
permits for specific launch or landing sites are received, an EA in
accordance with the procedural requirements of NEPA, and by
Departmental guidelines, may be required.
List of Subjects in 36 CFR Part 7
National parks, Reporting and recordkeeping requirements.
In consideration of the foregoing, 36 CFR Chapter I, is amended as
follows:
PART 7--SPECIAL REGULATIONS, AREAS OF THE NATIONAL PARK SYSTEM
1. The authority citation for Part 7 continues to read as follows:
Authority: 16 U.S.C. 1, 3, 9a, 460(q), 462(k); Sec. 7.96 also
issued under D.C. Code 8-137 (1981) and D.C. Code 40-721 (1981).
2. Section 7.100 is amended by adding paragraph (c) to read as
follows: -
Sec. 7.100 Appalachian National Scenic Trail.
* * * * *
(C) Powerless flight. The use of devices designed to carry persons
through the air in powerless flight is allowed at times and locations
designated by the Park Manager, pursuant to the terms and conditions of
a permit.
Dated: May 29, 1996.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 96-14103 Filed 6-4-96; 8:45 am]
BILLING CODE 4310-70-P
Complete official Federal Register PDF
FR Doc. 96-14026 Removal of Toshiba Sanction Regulations
[Federal Register Volume 61, Number 109 (Wednesday, June 5, 1996)]
[Rules and Regulations]
[Pages 28500-28501]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14026]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
Customs Service
19 CFR Parts 12 and 178
[T.D. 96-46]
RIN 1515-AB96
Removal of Toshiba Sanction Regulations
AGENCY: Customs Service, Treasury.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document amends the Customs Regulations by removing the
regulatory provisions that implemented the import sanctions against all
products produced by the Toshiba Machine Company and the Kongsberg
Trading Company. The ``Toshiba Sanctions'' were imposed by Executive
Order No. 12661 for a three year time period, which expired on December
28, 1991.
EFFECTIVE DATE: June 5, 1996.
.FOR FURTHER INFORMATION CONTACT: Louis Alfano, Office of Field
Operations, Trade Compliance, Commercial Enforcement, (202) 927-0005.
SUPPLEMENTARY INFORMATION:
Background
As part of Customs continuing effort to ensure that its regulations
are informative and up-to-date, Customs has determined that four of its
regulatory provisions in Part 12 of the Customs Regulations (19 CFR
Part 12) are obsolete and should be removed. The regulatory sections
are found at 19 CFR 12.140-143, Customs Regulations, and were
promulgated to implement the import sanctions mandated by section
2443(a)(2) of the Omnibus Trade and Competitiveness Act of 1988 (Pub.L.
100-418, 102 Stat. 1107, 1365, 50 U.S.C. App. 2410a note) and imposed
by Executive Order No. 12661 of December 27, 1988 (53 FR 779, 3 CFR
part 1988 Comp. p. 618, 24 Weekly Comp.Pres.Doc. 1661) for a three year
time period against all products produced by the Toshiba Machine
Company and the Kongsberg Trading Company. As the three year time
period expired on December 28, 1991, Customs has decided to remove
these four obsolete regulatory provisions, commonly referred to as the
``Toshiba Sanctions''. Also, because the Toshiba Sanction regulations
required the submission of information to Customs, the listing of
Office of Management and Budget (OMB) control numbers found at 19 CFR
178.2 is amended to remove the information collection authorization for
Sec. 12.143, which provided for declarations of exception from import
sanctions.
Inapplicability of Public Notice and Comment Requirements, Delayed
Effective Date Requirements, the Regulatory Flexibility Act, and
Executive Order 12866
Because this amendment removes obsolete regulatory provisions to
conform the Customs Regulations to current legal requirements, which
have no substantive effect on the public, pursuant to 5 U.S.C. 553
(b)(B), good cause exists for dispensing with notice and public
procedure thereon as unnecessary. For the same reasons, it is
determined under the provisions of 5 U.S.C. 553(d)(1) and (d)(3) that
good cause exists for dispensing with a delayed effective date. Since
this document is not subject to the notice and public procedure
requirements of 5 U.S.C. 553, it is not subject to provisions of the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). This document does
not meet the criteria for a ``significant regulatory action'' as
specified in E.O. 12866.
List of Subjects
19 CFR Part 12
Customs duties and inspection, Economic sanctions, Imports,
Licensing, Prohibited merchandise, Restricted merchandise, Reporting
and recordkeeping requirements, Sanctions, Seizure and forfeiture.
19 CFR Part 178
Administrative practice and procedure, Exports, Imports, Reporting
and recordkeeping requirements.
Amendments to the Regulations
For the reasons stated above, parts 12 and 178 of the Customs
Regulations (19 CFR parts 12 and 178) are amended as set forth below:
PART 12--SPECIAL CLASSES OF MERCHANDISE
1. The general authority citation for Part 12 continues to read as
follows, and the specific authority citation for Secs. 12.140 through
12.143 is removed:
Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 20,
Harmonized Tariff Schedule of the United States (HTSUS)), 1624;
* * * * *
2. Part 12 is amended by removing the undesignated centerheading
``Sanctions Against Toshiba Machine Company and Kongsberg Trading
Company'' and Secs. 12.140 through 12.143.
PART 178--APPROVAL OF INFORMATION COLLECTION REQUIREMENTS
1. The authority citation for part 178 continues to read as
follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 1624; 44 U.S.C. 3501 et seq.
[[Page 28501]]
Sec. 178.2 [Amended]
2. Section 178.2 is amended by removing the designation and
description entry for Sec. 12.143.
George J. Weise,
Commissioner of Customs.
Approved: May 15, 1996.
Dennis M. O'Connell,
Acting Deputy Assistant Secretary of the Treasury.
[FR Doc. 96-14026 Filed 6-4-96; 8:45 am]
BILLING CODE 4820-02-P
Complete official Federal Register PDF
FR Doc. 96-13999 Special Local Regulations: Beaufort Water Festival, Beaufort, SC
[Federal Register Volume 61, Number 109 (Wednesday, June 5, 1996)]
[Rules and Regulations]
[Pages 28501-28502]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13999]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 100
[CGD07-96-020]
RIN 2115-AE46
Special Local Regulations: Beaufort Water Festival, Beaufort, SC
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is establishing permanent special local
regulations for the Beaufort Water Festival. This event will be held
annually on the last two Saturdays and Sundays of July, between 7:30
a.m. and 7 p.m. e.d.t. (Eastern Daylight Time). Historically, the raft
races, sailboat regattas, aerial demonstrations, power boat races, and
a parade of ships have drawn 75 event participants and 400 spectator
craft to the Beaufort River each day of the event. The anticipated
concentration of spectator and event participant vessels associated
with the Beaufort Water Festival poses a safety concern. Furthermore,
the nature of the event and the closure of the Beaufort River between
the Ladys Island swing bridge and Spanish Point creates an extra or
unusual hazard in the navigable waters during the event. These
regulations are necessary to provide for the safety of life on
navigable waters during the event.
EFFECTIVE DATE: July 5, 1996.
FOR FURTHER INFORMATION CONTACT:
ENS M.J. DaPonte, project officer, Coast Guard Group Charleston at
(803) 724-7621.
SUPPLEMENTARY INFORMATION:
Regulatory History
On April 19, 1996, the Coast Guard published a notice of proposed
rulemaking entitled ``Beaufort Water Festival, Beaufort, SC [CGD07-96-
020] in the Federal Register (61 FR 17269). The comment period ended on
May 20, 1996. The Coast Guard received no comments during the notice of
proposed rulemaking comment period. A public hearing was not requested
and no hearing was held.
Discussion of Regulations
These regulations are needed to provide for the safety of life
during the Beaufort Water Festival. The regulations are intended to
promote safe navigation on the waters of the Beaufort River between the
Ladys Island swing bridge and Spanish Point by controlling the traffic
entering, exiting, and traveling within these waters. Historically, the
raft races, sailboat regattas, aerial demonstrations, power boat races
and a parade of ships have drawn approximately 75 event participants
and 400 spectator craft to the Beaufort River each day of the event.
The anticipated concentration of spectator and event participant
vessels associated with the Beaufort Water Festival poses a safety
concern, which is addressed in these special local regulations.
These regulations will not permit movement of spectator vessels and
other non-event participating vessel traffic within the regulated area,
between the Ladys Island swing bridge (32 deg.25'40'' N,
080 deg.40'10'' W) and a line drawn directly across the Beaufort River
at Spanish Point (32 deg.24'00'' N) from 7:30 a.m. to 7 p.m. e.d.t,
annually on the last two Saturdays and Sundays of July. All coordinates
referenced use datum: NAD 1983. However, these regulations will permit
the movement of spectator vessels and other non-event participant
vessels between scheduled events and at the termination of the last
scheduled event, at the discretion of the Coast Guard Patrol Commander.
Regulatory Evaluation
This rule is not a significant regulatory action under Section 3(f)
of Executive Order 12866 and does not require an assessment of the
potential costs and benefits under Section 6(a)(3) of that order. It
has been exempted from review by the Office of Management and Budget
under that order. It is not significant under the regulatory policies
and procedures of the Department of Transportation (DOT) (44 FR 11040;
February 26, 1979). The Coast Guard expects the economic impact of this
rule to be so minimal that a full Regulatory Evaluation under paragraph
10e of the regulatory policies and procedures of DOT is unnecessary.
These regulations will last for only 11 and one half hours on each day
of the event. No public comments were received during the notice of
proposed rulemaking comment period.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider whether this rulemaking will have a
significant economic impact on a substantial number of small entities.
``Small entities'' include independently owned and operated small
businesses that are not dominant in their field and that otherwise
qualify as ``small business concerns'' under Section 3 of the Small
Business Act (15 U.S.C. 632).
For reasons set forth in the above Regulatory Evaluation, the Coast
Guard certifies under 5 U.S.C. 605(b) that this rule will not have a
significant economic impact on a substantial number of small entities.
Collection of Information
These regulations contain no collection of information requirements
under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that this rulemaking does not have sufficient Federalism implications
to warrant the preparation of a Federalism Assessment.
Environmental Assessment
The Coast Guard has considered the environmental impact of this
rulemaking consistent with Section 2.B.2. of Commandant Instruction
M16475.1B. In accordance with that section, this action has been
environmentally assessed (EA completed), and the Coast Guard has
concluded that it will not significantly affect the quality of the
human environment. An environmental assessment and a finding of no
significant impact have been prepared and are available in the docket
for inspection.
List of Subjects in 33 CFR Part 100
Marine safety, Navigation (water), Reporting and recordkeeping
requirements, Waterways.
Regulations
In consideration of the foregoing, Part 100 of Title 33, Code of
Federal Regulations, the Coast Guard amends as follows:
PART 100--[AMENDED]
The authority citation for Part 100 continues to read as follows:
Authority: 33 U.S.C. 1233; 49 CFR 1.46 and 33 CFR 100.35.
[[Page 28502]]
2. A new section 100.715 is added to read as follows:
Sec. 100.715 Annual Beaufort Water Festival, Beaufort River, Beaufort,
SC.
(a) Definitions.
(1) Regulated Area.A regulated area is established on that portion
of the Beaufort River, between the Ladys Island swing bridge at
32 deg.25'40'' N, 080 deg.40'10'' W and a line drawn directly across
the Beaufort River at Spanish Point, at 32 deg.24'00'' N. All
coordinates referenced use datum: NAD 1983.
(2) Coast Guard Patrol Commander. The Coast Guard Patrol Commander
is a commissioned, warrant, or petty officer of the United States Coast
Guard who has been designated by the Commander, Coast Guard Group
Charleston, Charleston, South Carolina.
(b) Special local regulations. (1) Entry into the regulated area by
other than event participants is prohibited, unless otherwise
authorized by the Coast Guard Patrol Commander.
(2) Between scheduled events the Coast Guard Patrol Commander may
authorize vessels to resume normal operations.
(3) After termination of the Beaufort Water Festival events, all
vessels may resume normal operation at the discretion of the Coast
Guard Patrol Commander.
(c) Effective Dates. This section become effective annually from
7:30 a.m. to 7 p.m. EDT, on the last two Saturdays and Sundays of July.
Dated: May 14, 1996.
Roger T. Rufe, Jr.,
Rear Admiral, U.S. Coast Guard, Commander, Seventh Coast Guard
District.
[FR Doc. 96-13999 Filed 6-4-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-13998 Special Local Regulations: Fort Myers Beach Offshore Grand Prix; Fort Myers Beach, FL
[Federal Register Volume 61, Number 109 (Wednesday, June 5, 1996)]
[Rules and Regulations]
[Pages 28502-28503]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13998]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
33 CFR Part 100
[CGD07-96-005]
RIN 2115-AE46
Special Local Regulations: Fort Myers Beach Offshore Grand Prix;
Fort Myers Beach, FL
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is establishing permanent special local
regulations for the Fort Myers Offshore Grand Prix. This event will be
held annually during the first Saturday and Sunday of June, between 12
p.m. and 3 p.m. (Eastern Daylight Time). Historically, there have been
approximately 170 participant and spectator craft. The resulting
congestion of navigable channels creates an extra or unusual hazard in
the navigable waters. These regulations are necessary to provide for
the safety of life on navigable waters during the event.
EFFECTIVE DATE: July 5, 1996.
FOR FURTHER INFORMATION CONTACT: LTJG T. Stuhlreyer, project officer,
Coast Guard Group St. Petersburg, FL at (813) 824-7533.
SUPPLEMENTARY INFORMATION:
Regulatory History
On March 20, 1996, the Coast Guard published a notice of proposed
rulemaking entitled [CGD07-96-005] in the Federal Register (61 FR
11354). The Coast Guard received no written or oral comments during the
proposed rulemaking comment period. A public hearing was not requested
and one was not held.
Discussion of Regulations
These regulations are needed to provide for the safety of life
during the Fort Myers Beach Offshore Grand Prix. These regulations are
intended to promote safe navigation on the waters off Fort Myers Beach
during the races by controlling the traffic entering, exiting, and
traveling within these waters. The anticipated concentration of
spectator and participant vessels associated with the Grand Prix poses
a safety concern, which is addressed in these special local
regulations. These regulations will not permit anchoring shoreward of
the shoreside legs of the racecourse, from 11 a.m. to 3 p.m., on the
first Saturday and Sunday of June. Spectator craft will be permitted
near the race area but will be required to stay clear of the race
lanes. These regulations will permit anchoring for spectators seaward
of the seaside legs of the racecourse, but only in the designated
spectator area defined in paragraph (b) of the regulations. All vessel
traffic, not involved with the Fort Myers Beach Offshore Grand Prix,
exiting Matanzas Pass between 11 a.m. and 3 p.m. will exit the marked
channel at Matanzas Pass Channel daybeacon #3 (26 deg.25.9' N,
82 deg.58.2' W, LLNR 16365) and #4 (26 deg.26.1' N, 82 deg.57.8' W,
LLNR 16370), and will proceed in a southwesterly direction seaward of
the designated spectator area defined in paragraph (b) of these
regulations, taking action to avoid a close-quarters situation until
the vessel finally is past and clear of the racecourse. All coordinates
referenced use datum: NAD 83. All vessel traffic, not involved with the
Fort Myers Beach Offshore Grand Prix, exiting Big Carlos Pass between
11 a.m. and 3 p.m. will proceed in a southwesterly direction seaward of
the designated spectator area defined in paragraph (b) of these
regulations, taking action to avoid a close-quarters situation until
finally past and clear of the racecourse.
Regulatory Evaluation
This rule is not a significant regulatory action under Section 3(f)
of the Executive Order 12866 and does not require an assessment of the
potential costs and benefits under Section 6(a)(3) of that Order. It
has been exempted from review by the Office of Management and Budget
under that order. It is not significant under the regulatory policies
and procedures of the Department of Transportation (DOT) (44 FR 11040;
February 26, 1979). The Coast Guard expects the economic impact of this
rule to be so minimal that a full Regulatory Evaluation under paragraph
10e of the regulatory policies and procedures of DOT is unnecessary.
These regulations will last for only 4 hours each day of the event.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider whether this action will have a significant
economic impact on a substantial number of small entities. ``Small
entities'' include independently owned and operated small businesses
that are not dominant in their field and that otherwise qualify as
``small business concerns'' under Section 3 of the Small Business Act
(15 U.S.C. 632).
For reasons set forth in the above Regulatory Evaluation, the Coast
Guard certifies that this action will not have a significant economic
impact on a substantial number of small entities.
Collection of Information
These regulations contain no collection of information requirements
under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that the rulemaking does not have sufficient Federalism implications to
warrant the preparation of a Federalism Assessment.
Environmental Assessment
The Coast Guard has considered the environmental impact of this
action and has concluded that preparation of an Environmental Impact
Statement is not necessary. An Environmental Assessment and Finding of
No Significant Impact are available in the docket for inspection or
copying. The
[[Page 28503]]
Coast Guard has concluded that this action will not significantly
affect the quality of the human environment.
List of Subjects in 33 CFR Part 100
Marine safety, Navigation (water), Reporting and record keeping
requirements, Waterways.
Proposed Regulations
For reasons set out in the preamble, the Coast Guard amends 33 CFR
Part 100 as follows:
PART 100--[AMENDED]
1. The authority citation for Part 100 continues to read as
follows:
Authority: 33 U.S.C. 1233; 49 CFR 1.46 and 33 CFR 100.35.
2. A new section 100.717 is added to read as follows:
Sec. 100.717 Annual Fort Myers Beach Offshore Grand Prix; Fort Myers,
FL.
(a) Regulated Area. The regulated area is formed by a line drawn
from the start/finish position, at the Fort Myers Beach pier
(26 deg.28.07' N, 81 deg.58.30' W), thence to position 26 deg.26.08' N,
81 deg.55.29' W, thence to position 26 deg.24.76' N, 81 deg.54.68' W,
thence to position 26 deg.23.74' N, 81 deg.55.10' W, thence to position
26 deg.23.91' N, 81 deg.55.40' W, thence to position 26 deg.24.94' N,
81 deg.55.24' W, thence to position 26 deg.26.93' N, 81 deg.58.53' W,
thence to position 26 deg.27.32' N, 81 deg.58.16' W, thence back to the
start/finish position, at the Fort Myers Beach pier (26 deg.28.07,
81 deg.58.30' W). All coordinates referenced use datum: NAD 83.
(b) Special local regulations. (1) No vessel may anchor shoreward
of the shoreside boundaries of the regulated area, from 11 a.m. to 3
p.m. edt.
(2) Spectator craft will be permitted to anchor seaward of the
seaside boundaries of the regulated area, in the spectator area formed
by a line drawn from the position 29 deg.26.54' N, 81 deg.58.12' W,
thence to position 28 deg.25.06' N, 81 deg.55.42' W, thence to position
26 deg.24.45' N, 81 deg.55.50' W, thence to position 26 deg.26.54' N,
81 deg.58.30' W, thence back to position 29 deg.26.54' N, 81 deg.58.12'
W, and in the spectator area formed by a line drawn from the position
26 deg.25.06' N, 81 deg.54.18' W, thence to position 26 deg.23.47' N,
81 deg.54.00' W, thence to position 25 deg.24.05' N, 81 deg.54.47' W,
thence back to position 26 deg.25.06' N, 81 deg.54.18' W. All
coordinates referenced use datum: NAD 83.
(3) All vessel traffic, not involved with the Fort Myers Beach
Offshore Grand Prix, exiting Matanzas Pass between 11 a.m. and 3 p.m.
will exit the marked channel at Matanzas Pass Channel daybeacon #3
(26 deg.25.9' N, 82 deg.58.2' W, LLNR 16365) and #4 (26 deg.26.1' N,
82 deg.57.8' W, LLNR 16370), and shall proceed in a southwesterly
direction seaward of the spectator area defined in paragraph (b)(2) of
this section, taking action to avoid a close-quarters situation until
finally past and clear of the racecourse. All coordinates referenced
use datum: NAD 83.
(4) All vessel traffic, not involved with the Fort Myers Beach
Offshore Grand Prix, exiting Big Carlos Pass between 11 a.m. and 3 p.m.
edt will exit the pass in a southwesterly direction seaward of the
spectator area defined in paragraph (b)(2) of this section, taking
action to avoid a close-quarters situation with the spectator craft
until finally past and clear of the racecourse. All coordinates
referenced use datum: NAD 83.
(5) Entry into the regulated area shall be in accordance with this
regulation. Spectator vessels shall stay seaward of the seaside legs of
the racecourse at all times in the spectator areas defined in paragraph
(b)(2) of this section.
(c) Effective Dates. This section is effective at 11 a.m. and
terminates at 3 p.m. edt annually during the first Saturday and Sunday
of June.
Dated: May 22, 1996.
Roger T. Rufe, Jr.,
Rear Admiral, U.S. Coast Guard, Commander, Seventh Coast Guard
District.
[FR Doc. 96-13998 Filed 6-4-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-13997 Special Local Regulations: Augusta Southern National Drag Boat Races; Augusta, GA
[Federal Register Volume 61, Number 109 (Wednesday, June 5, 1996)]
[Rules and Regulations]
[Pages 28503-28504]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13997]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
33 CFR Part 100
[CGD07-96-021]
RIN 2115-AE46
Special Local Regulations: Augusta Southern National Drag Boat
Races; Augusta, GA
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is establishing permanent special local
regulations for the Augusta Southern National Drag Boat Races. As a
permanent event, except this year, the Augusta Southern National Drag
Boat Races will be held annually on Thursday, Friday, Saturday and
Sunday during the third week of July, between 6 a.m. and 8 p.m. edt
(Eastern Daylight Time). However, due to the 1996 Summer Olympic Games,
this year's Augusta Southern National Drag Boat Races will be held on
July 18-21, 1996 between 6 a.m. and 8 p.m. edt. Historically, there
have been approximately 160, 16-18 foot drag boats racing two vessels
per heat on a quarter mile long course on that portion of the Savannah
River at Augusta, GA, between U.S. Highway 1 (Fifth St) Bridge at mile
marker 199.45 and Eliot's Fish Camp at mile marker 197. The boats will
be competing at high speeds and at close range. The nature of the event
and the closure of the Savannah River create an extra or unusual hazard
on the navigable waters. These regulations are necessary to provide for
the safety of life on navigable waters during the event.
EFFECTIVE DATE: July 5, 1996.
FOR FURTHER INFORMATION CONTACT:
ENS M. J. DaPonte, project officer, Coast Guard Group Charleston at
(803) 724-7621.
SUPPLEMENTARY INFORMATION:
Regulatory History
On April 18, 1996, the Coast Guard published a notice of proposed
rulemaking entitled [CGD07-96-021] in the Federal Register (61 FR
16885). The comment period ended on May 20, 1996. The Coast Guard
received no comments on the notice of proposed rulemaking. A public
hearing was not requested and no hearing was held.
Discussion of Comments and Changes
No comments were received during the comment period. However, the
regulations dates for this year are being changed due to the 1996
Olympic Yachting Competition. The Augusta Southern National Drag Races
will occur permanently on an annual basis, except this year, on
Thursday, Friday, Saturday, and Sunday of the third week in July from 6
a.m. to 8 p.m. edt. However, due to the Olympics this year's Augusta
Southern National Drag Races will be held on July 18-21 from 6 a.m. to
8 p.m. edt.
Discussion of Regulations
These regulations are needed to provide for the safety of life
during Augusta Southern National Drag Boat Races. These regulations are
intended to promote safe navigation on the waters off Augusta on the
Savannah River during the races by controlling the traffic entering,
exiting, and traveling within these waters. The anticipated
concentration of spectator and event participant vessels associated
with the Drag Boat Races poses a safety concern, which is addressed in
these special local regulations.
These regulations will not permit the entry or movement of
spectator vessels and other non-event participating vessel traffic
between the U.S. Highway Route
[[Page 28504]]
1 (Fifth Street) Bridge at mile marker 199.45 and Eliot's Fish Camp at
mile marker 197 from 6 a.m. to 8 p.m. edt, on July 18, 19, 20, and 21,
1996, and then thereafter, annually on Thursday, Friday, Saturday and
Sunday of the third week in July. These regulations will permit the
movement of spectator vessels and other non-event participants after
the termination of race each day, and during intervals between
scheduled events at the discretion of the Coast Guard Patrol Commander.
Regulatory Evaluation
This regulation is not a significant regulatory action under
Section 3(f) of the Executive Order 12866 and does not require an
assessment of the potential costs and benefits under Section 6(a)(3) of
that Order. It has been exempted from review by the Office of
Management and Budget under that order. It is not significant under the
regulatory policies and procedures of the Department of Transportation
(DOT) (44 FR 11040; February 26, 1979). The Coast Guard expects the
economic impact of this rule to be so minimal that a full Regulatory
Evaluation under paragraph 10e of the regulatory policies and
procedures of DOT is unnecessary. These regulations will only last for
14 hours each day of the event. No public comments were received during
the notice of proposed rulemaking comment period.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider whether this rulemaking will have a
significant economic impact on a substantial number of small entities.
``Small entities'' include independently owned and operated small
businesses that are not dominant in their field and that otherwise
qualify as ``small business concerns'' under Section 3 of the Small
Business Act (15 U.S.C. 632).
For reasons set forth in the above Regulatory Evaluation, the Coast
Guard certifies under 5 U.S.C. 605(b) that this rulemaking, would not
have a significant economic impact on a substantial number of small
entities.
Collection of Information
These regulations contain no collection of information requirements
under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that the rulemaking does not have sufficient Federalism implications to
warrant the preparation of a Federalism Assessment.
Environmental Assessment
The Coast Guard has considered the environmental impact of this
rulemaking consistent with Section 2.B.2. of Commandant Instruction
M16475.1B. In accordance with that section, this action has been
environmentally assessed (EA completed), and the Coast Guard has
concluded that it will not significantly affect the quality of the
human environment. An environmental assessment and a finding of no
significant impact have been prepared and are available for copying and
inspection.
List of Subjects in 33 CFR Part 100
Marine safety, Navigation (water), Reporting and recordkeeping
requirements, Waterways.
Final Regulations
In consideration of the foregoing, Part 100 of Title 33, Code of
Federal Regulations, the Coast Guard amends as follows:
PART 100--[AMENDED]
1. The authority citation for Part 100 continues to read as
follows:
Authority: 33 U.S.C. 1233; 49 CFR 1.46 and 33 CFR 100.35.
2. A new section 100.709 is added to read as follows:
Sec. 100.709 Annual Augusta Southern National Drag Boat Races;
Savannah River, Augusta GA.
(a) Definitions. (1) Regulated area. The regulated area is formed
by a line drawn directly across the Savannah River at the U.S. Highway
1 (Fifth Street) Bridge at mile marker 199.45 and directly across the
Savannah River at Eliot's Fish Camp at mile marker 197. The regulated
area encompasses the width of the Savannah River between these two
lines.
(2) Coast Guard Patrol Commander. The Coast Guard Patrol Commander
is a commissioned, warrant, or petty officer of the Coast Guard who has
been designated by the Commander, Coast Guard Group Charleston,
Charleston, South Carolina.
(b) Special local regulations. (1) Entry into the regulated area is
prohibited to all non-event participants.
(2) After the termination of the Augusta Southern National Drag
Boat Races each day, and during intervals between scheduled events, at
the discretion of the Coast Guard Patrol Commander, all vessels may
resume normal operations.
(c) Effective Dates. This section is effective annually on
Thursday, Friday, Saturday and Sunday of the third week of July from 6
a.m. to 8 p.m. edt, except in 1996, the section is effective on July
18-21, 1996 from 6 a.m. to 8 p.m. edt.
Dated: May 22, 1996.
Roger T. Rufe, Jr.,
Rear Admiral, U.S. Coast Guard, Commander, Seventh Coast Guard
District.
[FR Doc. 96-13997 Filed 6-4-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-13985 Substances Contingency Plan: National Priorities List Update
[Federal Register Volume 61, Number 109 (Wednesday, June 5, 1996)]
[Rules and Regulations]
[Page 28511]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13985]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 300
[FRL-5511-9]
Substances Contingency Plan: National Priorities List Update
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of deletion of the Waste Disposal Engineering Superfund
Site from the National Priorities List (NPL).
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) announces the
deletion of the Waste Disposal Engineering Inc. Site in Minnesota from
the National Priorities List (NPL). The NPL is Appendix B of 40 CFR
part 300 which is National Oil and Hazardous Substances Contingency
Plan (NCP), which EPA promulgated pursuant to Section 105 of the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980 (CERCLA), as amended. This action is being taken by EPA and the
State of Minnesota, because it has been determined that Responsible
Parties have implemented all appropriate response actions required.
Moreover, EPA and the State of Minnesota have determined that remedial
actions conducted at the site to date remain protective of public
health, welfare, and the environment.
EFFECTIVE DATE: June 5, 1996.
FOR FURTHER INFORMATION CONTACT:
Larry Schmitt at (312) 353-6565 (SR-6J), Remedial Project Manager or
Gladys Beard at (312) 886-7253, Associate Remedial Project Manager,
Superfund Division, U.S. EPA--Region V, 77 West Jackson Blvd., Chicago,
IL 60604. Information on the site is available at the local information
repository located at: The Anoka County Community Health and
Environmental Service, Anoka County Government Center, RM. 360, 2100
3rd Ave., Anoka, MN 55303 and Andover City Hall, 1685 Crosstown Blvd.,
Andover, MN 55304. Requests for comprehensive copies of documents
should be directed formally to the Regional Docket Office. The contact
for the Regional Docket Office is Jan Pfundheller (H-7J), U.S. EPA,
Region V, 77 W. Jackson Blvd., Chicago, IL 60604, (312) 353-5821.
SUPPLEMENTARY INFORMATION: The site to be deleted from the NPL is:
Waste Disposal Engineering Inc. Site located in Andover, Minnesota. A
Notice of Intent to Delete for this site was published March 26, 1996
(61 FR 13131). The closing date for comments on the Notice of intent to
Delete was April 26, 1996. EPA received no comments and therefore no
Responsiveness Summary was prepared.
The EPA identifies sites which appear to present a significant risk
to public health, welfare, or the environment and it maintains the NPL
as the list of those sites. Sites on the NPL may be the subject of
Hazardous Substance Response Trust Fund (Fund-) financed remedial
actions. Any site deleted from the NPL remains eligible for Fund-
financed remedial actions in the unlikely event that conditions at the
site warrant such action. Section 300.425(e)(3) of the NCP states that
Fund-financed actions may be taken at sites deleted from the NPL in the
unlikely event that conditions at the site warrant such action.
Deletion of a site from the NPL does not affect responsible party
liability or impede agency efforts to recover costs associated with
response efforts.
List of Subjects in 40 CFR Part 300
Air pollution control, Chemicals, Hazardous substances, Hazardous
Waste, Intergovernmental relations, Penalties, Reporting and
recordkeeping requirements, Superfund, Water pollution control, Water
supply.
PART 300--[AMENDED]
1. The authority citation for Part 300 continues to read as
follows:
Authority: 42 U.S.C. 9601-9657; 33 U.S.C. 1321(c)(2); E.O.
12777, 56 FR 54757, 3 CFR, 1991 Comp; p. 351; E.O. 12580, 52 FR
2923, 3 CFR, 1987 Comp.; p. 193.
Appendix B to Part 300 [Amended]
2. Table 1 of Appendix B to part 300 is amended by removing the
Site ``Waste Disposal Engineering Inc. Site, Andover, Minnesota''.
Dated: May 14, 1996.
Valdas V. Adamkus,
Regional Administrator, U.S. EPA, Region V.
[FR Doc. 96-13985 Filed 6-4-96; 8:45 am]
BILLING CODE 6560-50-M
Complete official Federal Register PDF
FR Doc. 96-13947 Standards for Approval for High Altitude Operation of Subsonic Transport Airplanes
[Federal Register Volume 61, Number 109 (Wednesday, June 5, 1996)]
[Rules and Regulations]
[Pages 28684-28696]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13947]
[[Page 28683]]
_______________________________________________________________________
Part IV
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 CFR Part 25
Standards for Approval for High Altitude Operation of Subsonic
Transport Airplanes; Final Rule
Federal Register / Vol. 61, No. 109, Wednesday, June 5, 1996 / Rules
and Regulations
[[Page 28684]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 25
[Docket No. 26070, Amendment No. 25-87]
RIN 2120-AB18
Standards for Approval for High Altitude Operation of Subsonic
Transport Airplanes
Agency: Federal Aviation Administration (FAA), DOT.
Action: Final rule.
-----------------------------------------------------------------------
Summary: This amendment to the Federal Aviation Regulations (FAR)
specifies airplane and equipment airworthiness standards for subsonic
transport airplanes to be operated up to an altitude of 51,000 feet.
This action is prompted by an increase in the number of applications
received to raise the maximum certificated operating altitude for
transport category airplanes, and is intended to ensure an acceptable
level of safety for airplanes operated at high altitudes.
Effective Date: July 5, 1996.
For Further Information Contact: Robert C. McCracken, Flight Test and
Systems Branch, ANM-111, Transport Airplane Directorate, Aircraft
Certification Service, 1601 Lind Avenue Southwest, Renton, Washington
98055-4056; telephone (206) 227-2118.
SUPPLEMENTARY INFORMATION:
Background
This amendment is based on Notice of Proposed Rulemaking (NPRM) No.
89-31, which was published in the Federal Register on November 22, 1989
(54 FR 48538). The notice proposed to upgrade airplane and equipment
airworthiness standards for subsonic transport airplanes to be operated
up to an altitude of 51,000 feet, and it was based on special
conditions that have been used for type certification for many years.
Current policy for FAA rulemaking projects is to endeavor to
achieve harmonization with the Joint Airworthiness Authorities (JAA)
and other airworthiness authorities through the Aviation Rulemaking
Advisory Committee (ARAC) and its harmonization working groups.
Although this rulemaking project has not been the subject of a
harmonization working group activity, because it was initiated prior to
the time harmonization became a high priority with the FAA and JAA,
comments received from the JAA members were addressed in this
amendment.
As noted in Notice 89-31, the higher operational altitudes made
feasible by the advent of turbojet transport airplanes introduced
certain risks with respect to crew and passenger breathing that were
not experienced with earlier propeller-driven airplanes. Accordingly,
certification standards were developed in the early 1950s to permit
safe operation of early turbojet transport airplanes up to certain
maximum operating altitudes--typically 41,000 or 42,000 feet.
Subsequent to the type certification of the early turbojet transport
airplanes, applicants requested approval to operate certain later
airplanes at higher altitudes. These were in most cases small
``executive'' transport airplanes, and the requested altitudes ranged
up to 51,000 feet.
The operation of these airplanes at altitudes above 40,000 feet
usually involved a number of novel or unusual design features that were
not addressed by the airworthiness requirements in the current
regulations. In order to ensure a level of safety equivalent to that
established by part 25 of the FAR, Secs. 21.16 and 21.101 of part 21
require that additional standards be developed in the form of special
conditions and that compliance with the special conditions be
demonstrated.
The regulatory changes adopted by this amendment codify and
consolidate the different high-altitude criteria that have been made
applicable by special conditions to previously certificated subsonic
transport airplanes. In addition, the changes acknowledge a human
physiological limit of 34,000 feet (see Glossary), the level above
which persons not using supplementary oxygen are in serious peril. To
assure compatibility or equivalency with other provisions of part 25,
which were amended after many of the special conditions discussed
herein were implemented, these changes are written so that terminology
relating to the probability of certain failures is consistent with
those other provisions. Generally, the intent of those provisions is to
recognize that the degree of hazard of any given failure is inversely
related to the probability of occurrence of that failure. Failures that
are considered to be catastrophic must be shown to be extremely
improbable, and hazardous failures must be shown to be improbable (see
Glossary). Examples of these terms are found in Secs. 25.671, 25.672,
and 25.1309.
It must be noted that widespread operation of transport category
airplanes at altitudes greater than 51,000 feet is not currently
envisioned. A major factor in an approval for operation up to 51,000
feet is an emergency descent during a decompression, which must be
shown to result in a maximum cabin altitude of no more than 40,000
feet. Accordingly, the changes adopted in this amendment have been
developed to provide adequate standards for safe operation of such
airplanes up to 51,000 feet. Should an applicant seek approval to
operate a transport category airplane above that altitude, additional
standards may be needed for safe operation. If so, appropriate special
conditions would be adoptive to require compliance with those
standards.
The changes in this amendment involve ventilation, cabin cooling,
pressurization and pressure vessel integrity, and oxygen equipment. The
following paragraphs describe the changes, and the reasons for the
changes, in the regulations incorporated with the adoption of this
amendment. The comments received in response to Notice 89-31, the
disposition of the comments, and, when applicable, the effect of the
comments on the changes, are discussed immediately following this
section.
1. Ventilation (Airflow and Contamination)
Prior to this amendment, Sec. 25.831(a) required each passenger and
crew compartment to be ventilated and each crew compartment to have
enough fresh air to enable crewmembers to perform their duties without
undue discomfort or fatigue. For the crew compartment, a minimum of 10
cubic feet of fresh air per minute per crewmember was required. Section
25.1309 (specifically Secs. 25.1309(b)(2) and 25.1309(d)(3)) requires
that the effects on occupants of any failures of required systems be
analyzed, but Sec. 25.1309 is a general rule and does not specifically
address minimum airflow requirements.
The executive transport special conditions that have been applied
in the past supplemented Sec. 25.831(a) by specifying that the minimum
fresh airflow of 10 cubic feet per minute (cfm) per crewmember was to
be provided to each occupant during normal operation. The special
conditions also required that each occupant be furnished with enough
uncontaminated air to provide reasonable comfort during normal
operating conditions and also after any probable failure of any system
that would adversely affect the cabin ventilation air. This rule amends
Sec. 25.831 to include the additional airflow requirements contained in
previous special conditions, stipulating that the ventilation system
must be designed to provide 10 cfm (converted to pounds of air) for
each occupant.
[[Page 28685]]
Some airplanes now incorporate ventilation systems in which fresh
air is augmented with conditioned and recirculated air. Section
25.831(a) as amended permits a ventilation system that uses a mixture
of the minimum amount of fresh air and any desired quantity of
recirculated air that is shown to be uncontaminated by odors,
particulates, or gases. In this regard, the minimum amount of fresh air
is specified by weight rather than by volume in order to provide a
parameter independent of altitude. Ten cubic feet of standard air at a
typical cabin altitude of 8,000 feet and typical cabin temperature of
75 deg.F. weighs approximately 0.55 pounds. This rule amends
Sec. 25.831 to include the additional airflow requirements as noted
above. This standard is equivalent to the present requirement for
crewmembers.
2. Cabin Cooling
During the Supersonic Transport (SST) review in the 1960s, it was
noted that certain pressurization system failures, whether considered
by themselves or in combination with the use of hot ram air for
emergency pressurization, could lead to cabin temperatures exceeding
human tolerance. The FAA therefore concluded that any failure or
combination of failures that could lead to temperature exposures that
would cause undue discomfort must be shown to be improbable (see
Glossary). Minor corrective actions (e.g., selection of alternate
equipment or procedures) would be allowed if necessary for probable
failures. The FAA also concluded that any failure or combination of
failures that could lead to intolerable temperature exposures must be
extremely improbable. Major corrective actions (e.g., emergency
descent, configuration changes) would be allowed for an improbable
failure condition. Temperature limits were incorporated into the
special conditions imposed on executive transport airplanes when
approved for high altitude operation. The SST and executive transport
special conditions contained two graphs which explained the
requirements for the probable and improbable cases. In formulating this
amendment, the FAA has determined that the public interest is served by
adopting the time-temperature limits associated with improbable failure
conditions, and they are adopted as a new Sec. 25.831(g). This
amendment does not allow the time of exposure at any given temperature
to exceed the values given in the associated graph.
3. Pressurization and Pressure Vessel Integrity
Section 25.365(d), increases the fuselage pressure relief valve
safety factor of 1.33 by 25 percent to 1.67, codifying the standard
that was originally contained in the SST special conditions. This
increased structural safety factor was also included in the executive
transport special conditions to reduce the likelihood of structural
failure and to limit the size of the opening if a failure occurs. It is
included in this amendment for this reason.
The FAA had considered proposing both pressurization standards
similar to those previously required by the special conditions for
executive transport and separate standards similar to those required
for large transport airplanes. The separate standards were thought to
be necessary because of the inherent differences in pressurized volume
of the two types of transports, and the belief that a larger airplane
may decompress more slowly than a smaller airplane. Upon further
review, this approach was deemed impractical because certain larger
transport airplanes have decompression characteristics more analogous
to smaller transport airplanes and vice versa. Therefore, this
amendment applies the same standard to all transport airplanes.
It should be noted that the special conditions required
consideration of specific failures, which are addressed later in this
discussion. Subsequent to the issuance of the special conditions,
reliability, probability, and damage tolerance concepts addressing
other failures and methods of analysis were incorporated into part 25.
This amendment allows the use of these additional methods of analysis
and failure considerations.
The earlier executive transport special conditions required a
pressure demand mask (see Glossary). Later special conditions included,
pursuant to the recommendations of the FAA Civil Aeromedical Institute
(CAMI), a requirement for a pressure demand mask with a mask-mounted
regulator (see Glossary). The requirement for the use of the same type
of equipment is adopted by this amendment.
The objective of the amended Sec. 25.841(a) (pressurization) when
applied in conjunction with amended Sec. 25.1447(c) (oxygen equipment)
is to provide airworthiness standards that allow subsonic airplanes to
operate at their maximum achievable altitudes. This is the highest
altitude for which an applicant chooses to demonstrate that, after
decompression caused by a single failure or combination of failures
that are not shown to be extremely improbable: (1) the flightcrew will
remain alert and be able to fly the airplane; (2) the cabin occupants
will be protected from the effects of hypoxia; and (3) in the event
that some occupants do not receive supplemental oxygen, they
nevertheless will be protected against permanent physiological damage.
Section 25.841(a)(1) as amended is equivalent to the existing
Sec. 25.841(a) with the exception of editorial changes and elimination
of the words ``reasonably'' and ``or malfunctions.'' The ``probable''
failure criteria are the same as those contained in Sec. 25.1309. The
term ``failure conditions'' has been added to this section to clarify
that failure combinations that lead to a probable depressurization
event must also be considered.
Section 25.841(a)(2) as amended limits exposure of the airplane
occupants, after decompression, to a cabin altitude no greater than
40,000 feet. This requirement is unchanged from that previously
established in part 25 for certification of transport category
airplanes using diluter demand (flightcrew) and continuous flow
(passenger) oxygen equipment (see Glossary).
Section 25.841(a)(2) as amended is a combination of the later
executive transport high altitude special conditions and Sec. 25.1309,
i.e., the degree of the hazard must be inversely related to the
probability of the failure condition. The amended Sec. 25.841(a)(2) was
developed from the recommendations of CAMI and is based on the concept
of ``Time of Safe Unconsciousness'' documented by James G. Gaume (see
Reference 1). The use of continuous-flow oxygen masks by passengers
following rapid decompression to cabin altitudes above 34,000 feet may
fail to provide protection from hypoxia, as noted in the discussion
under Paragraph 4. ``OXYGEN EQUIPMENT,'' below. Additionally, some
passengers might be exposed to high cabin altitudes following
decompression without the use of oxygen. A few passengers may lose
consciousness at 34,000 feet cabin altitude, and more may lose
consciousness at greater altitudes even with the use of continuous-flow
oxygen equipment. Exposure to cabin altitudes in excess of 25,000 feet
for more than 2 minutes without supplemental oxygen may cause permanent
physiological (brain) damage. Therefore, in order to demonstrate
compliance with this rule, approved emergency descent procedures and a
cabin altitude analysis must be prepared to ensure that these
[[Page 28686]]
altitude limits are not exceeded following a decompression failure that
is not shown to be extremely improbable.
Section 25.841(a)(3) as amended describes the failure conditions
that must be considered in evaluating cabin decompression. Possible
modes of failure to be evaluated include malfunctions and damage from
external sources such as tire burst, wheel failure, uncontained engine
failure, engine fan, compressor or turbine multi-blade failure, and
loss of antennas. Sections 25.1309 and 25.571, and associated advisory
material, provide guidance in determining the sources of failure.
System failures (both latent and active), combinations of system
failures, system failures combined with pressure vessel leaks, system
failures causing engine shutdown, uncontained engine failures causing
structural and system damage, and structural failures without system
failures must all be evaluated. Typical systems include engine bleed
air systems, air conditioning systems, power sources, outflow valves
and control systems. Failures which expose the occupants to cabin
altitudes in excess of either 25,000 feet for more than 2 minutes or
40,000 feet for any amount of time must be shown to be extremely
improbable.
The executive transport airplane special conditions required
evaluation of uncontained engine failure (including fan, compressor and
turbine blades, and rotor disc) and complete loss of thrust from all
engines. The FAA policy has been to presume that these failures will
occur and permit the use of analytical methods to assess the damage.
Multiple engine failures have occurred because of secondary effects
from uncontained engine failure and from operational errors. Multiple
fan blade, rotor, and other uncontained engine failures have occurred
during cruise conditions and have caused cabin decompression. The
service history of airplane decompressions resulting from uncontained
engine failure has been acceptable. Flight levels for most transport
airplanes have been at an altitude where oxygen equipment is capable of
providing adequate protection. Uncontained engine failure is most
likely to occur during takeoff and climb; however, approximately 20
percent of the known bursts have occurred in cruise mode, not including
those caused by bird strikes. The possibility of an uncontained engine
failure in cruise mode cannot be ignored, and the damage resulting in
depressurization must be assessed.
Structural failures in large transport airplanes which would result
in decompression are generally considered to include a loss of a
typical skin panel bound by a crack stopper pattern, a door seal,
window, or windshield, unless the design is such that loss of the
windshield is shown to be extremely improbable when operating at the
higher altitudes. Structural failures in executive transport airplanes
leading to decompression, discussed in the various special conditions,
included the following:
1. Any single failure in the pressurization system combined with
the occurrence of a leak produced by the complete loss of a door seal
element, or a fuselage leak through an opening having an area 2.0 times
the area which produces the maximum permissible fuselage leak rate
approved for normal operation in accordance with Sec. 25.841(a).
2. The maximum pressure vessel opening resulting from an initially
detectable crack propagating for a period encompassing four normal
inspection intervals. Mid-panel cracks and cracks through skin-stringer
and skin-frame combinations must be evaluated.
3. Pressure vessel openings resulting from tire burst, uncontained
engine failure, loss of antennas, or stall warning vanes, or any
probable equipment failure. The effects of such damage while operating
under maximum cabin pressure differential must be evaluated.
Subsequent to the initial development and issuance of high altitude
special conditions, Sec. 25.571 was amended by Amendments 25-45 (1978)
and 25-52 (1980) to require damage-tolerance and fatigue evaluation of
airplane primary structure. Section 25.571 requires showing that a
catastrophic failure due to fatigue, corrosion, or accidental damage
will not occur throughout the operational life of the airplane
(Sec. 25.571 (a)). The effects that are required to be considered under
Sec. 25.571 are not limited to depressurization. Compliance with
Sec. 25.571 requires the development of inspection intervals and
procedures for the detection of crack lengths associated with the
decompression of critical vent areas. Any event that would expose the
occupants to cabin pressure altitudes in excess of the limits
established under this amendment must be shown to be extremely
improbable.
In demonstrating compliance with proposed Sec. 25.841, the crew
would presumably perform an emergency descent in accordance with an
approval emergency procedure. The time required for the crew to
recognize a decompression emergency and don their oxygen masks has been
established by tests to be 17 seconds. This 17-second delay is imposed
between the cabin altitude warning and the beginning of action for
descent. The critical failure case (probable system failure) must be
demonstrated by system failure tests at the maximum airplanes altitude.
For improbable failure, the cabin altitude can be established by
analysis, and verified, if necessary, by tests at a much lower
altitude, with the results extrapolated to the higher altitude.
4. Oxygen Equipment
Both diluter demand and pressure demand oxygen equipment have
proven satisfactory for cabin pressure altitudes of 40,000 feet or less
when the person using the oxygen equipment is exposed gradually to
increased altitudes. However, the FAA was concerned that rapid
decompression to cabin pressure altitudes that exceed 34,000 feet could
temporarily negate the protective qualities of such equipment, unless
the mask and oxygen are being used prior to the decompression, leading
to moderate to severe decreases in flightcrew performance. To prevent
such performance decrements, Notice 89-31 proposed that the use of 100
percent oxygen be required by this amendment for flightcrews operating
at airplane altitudes which may expose them to cabin altitudes
exceeding 34,000 feet following a pressurization failure. As discussed
below, in response to public comment, this requirement has been removed
pending further study by the FAA.
Prior to this amendment, Sec. 25,1447(c)(3) required that each
washroom be equipped with two oxygen outlets and two units of
dispensing equipment. The term washroom has been replaced in other
sections of part 25. This reference is deleted for consistency, and the
existing provisions of Sec. 25,1447(c)(3) are incorporated into a
revised Sec. 25.1447(c)(1). The amended regulation does not specify
demand equipment under Sec. 25.1447(c)(2), because
Sec. 25.1447(c)(3)(i) as amended allows the option of using either
diluter demand or pressure demand equipment for airplanes to be
operated above an altitude of 25,000 feet, and Sec. 25,1447(c)(3)(ii)
as amended requires pressure demand equipment for airplanes where
decompression may expose the flightcrew to cabin altitudes in excess of
34,000 feet.
Discussion of Comments
Comments were received from foreign and domestic airplane
manufacturers, foreign government agencies, various trade organizations
representing employee groups, and individuals. The majority of the
commenters support the
[[Page 28687]]
proposals but many suggest changes. Many commenters recommend
editorial, organizational, and clarifying comments which would result
in clearer language.
Several commenters recommend removing the proposed change to
Sec. 25.365(d) that would require a safety factor of 1.67 times the
structural design pressure differential loads corresponding to the
maximum relief valve setting for airplanes to be approved for operation
above 45,000 feet. One commenter notes that the pressure vessel
structural design is based on fatigue loads and their effect on crack
propagation. Another commenter expresses the opinion that, as the
justification for the margin increase is concerned with damage
tolerance rather than static strength, the FAA should attack the
problem through damage tolerance requirements rather than static
strength. This commenter also states that the damage tolerance
requirements, even at altitudes below 40,000 feet, lead to stress
levels sufficiently low so that the 1.67 requirement is ``likely to be
complied with.'' A third commenter recommends changing the wording to
remove the 1.67 factor, substituting a requirement that thermal effects
on structural components and materials must be accounted for. The FAA
does not concur that the higher factor is not necessary for airplanes
operating at altitudes above 45,000 feet. A rapid decompression at
altitudes above 45,000 feet could be catastrophic to the passengers.
Therefore, this event must be extremely improbable; i.e., it is not
expected to occur during the lifetime of an entire fleet of airplanes.
Service history, however, shows that decompressions at higher altitudes
are not extremely remote events even for airplanes assessed to the
damage tolerance criteria. Loss of cabin pressure at lower altitudes
has not been catastrophic to the passengers from environmental effects
due to the higher ambient pressures and relatively short time for
emergency descent. Although application of damage tolerance techniques
will reduce the incidence of pressure vessel failures in service, there
is no reason to expect that current methodology will preclude all
future failures. To address these concerns, the FAA has determined that
requiring the higher safety factor of 1.67 will reduce the probability
of structural failures which could result in depressurization. The
static factor of 1.67 is not appropriate to account for thermal effects
because not all parts are subjected to the same temperature and also
materials may not be affected to the same degree. The current
Sec. 25.603(c) already requires that the effects of temperature be
accounted for in determining material properties. Section 25.365 is,
therefore, amended as proposed.
Two commenters note that the probability terminology regarding
proposed Secs. 25.831 (c), (d), and (g) is not consistent with that
found in regulatory and advisory material associated with Sec. 25.1309.
The FAA concurs with these comments. The terminology in the amendment
is changed to address failure conditions rather than failures or
failure combinations as proposed.
One commenter recommends allowing the fresh air requirements
proposed to be required under Sec. 25.831(a) to remain a crewmember
requirement only. The FAA does not concur with this recommendation. It
has been determined that this level of airflow is required for several
reasons. Members of the flightcrew performing their functions in the
passenger cabin are not sedentary and must perform their duties without
undue discomfort or fatigue. In addition, fresh airflow has been
determined to be necessary to provide adequate smoke clearance in the
event of smoke accumulation due to a system failure or fire. However,
it is clear that the additional airflow is not required at all times
and under all operating conditions. Therefore, the wording in the final
rule has been changed to state that the ventilation system must be
designed to provide the fresh airflow. This also addresses concerns
regarding the low fresh airflow capability that occurs during descent
at low power levels.
Two commenters note that the fresh air requirement should be 0.55
pounds of fresh air per minute per occupant rather than the 0.6 pounds
proposed in the notice. The FAA ``rounded off'' the value for mass flow
from 0.55 to 0.6 pounds of fresh air per second when proposing the
rule. Recognizing that this constitutes an increase in the level of
safety not originally intended by the FAA, and noting that the added
fresh air must be supplied at some specific cost, the final rule is
changed to require that the airplane ventilation system be designed to
provide 0.55 pounds of fresh air per minute per occupant. Another
commenter recommends that the FAA use 0.5 pounds per minute per
occupant rather than 0.6, noting that the Civil Aviation Authorities
(CAA) and other airworthiness authorities use 0.5 pounds per minute.
The FAA has determined that the 10 cubic feet per minute, converted to
0.55 pounds per minute as noted above, provides an acceptable minimum
airflow. The commenter provides no data to support the recommendation.
The rule is issued with the change noted above.
The same commenter notes that the notice does not contain clear
requirements for airflow following failures. The commenter further
notes that the JAA provides guidance in ACJ 25.831(e) regarding this
matter. The FAA has not determined that a need exists to define the
ventilation requirements following failures. The ventilation rates
following various failures conditions were not addressed either in
previously issued special conditions or Notice 89-31. In addition, the
commenter did not provide any data in support of his proposal other
than that it exists in advisory material in other airworthiness
standards.
One commenter states that 0.6 pounds of fresh air per occupant is
impractical and unjustified for commuter airplanes because available
engines do not provide sufficient bleed flow to meet the new
requirement. The FAA does not concur that this proposal is impractical
or unjustified. This rule will not apply to existing airplanes. When
new airplanes are designed and certificated, propulsion systems are
available that can provide adequate bleed air to meet these
requirements. The FAA has determined that health and safety
considerations justify the new requirements for airplanes operating at
all altitudes.
Further, the commenter states that the changes proposed for
Secs. 25.831 (c) and (d) will require an increase in reliability
requirements that is not justifiable for airplanes certificated for
altitudes below 40,000 feet. This commenter believes that the existing
wording, ``reasonably probable,'' is not equivalent to the proposed
wording, ``not extremely improbable.'' The FAA concurs with the
commenter, and has determined that these changes are not needed.
Therefore, because these were the only proposed changes to Secs. 25.831
(c) and (d), the final rule has been revised to remove the changes to
these sections.
Two commenters recommend either removing or defining the word
``uncontaminated'' as used in the proposed Sec. 25.831(a), noting that
the term is too vague, and might well be impossible to meet in, for
instance, the case where the airplane is operating in an environment
which itself contains contaminants, as might be the case near some
airports in congested areas, the FAA does not concur with the comment.
Descriptive wording is often used when the desire is to present
objective design standards. The intent in this case is to ensure that
the system
[[Page 28688]]
designer will consider the need to provide an environment conducive to
crew and passenger comfort. The FAA has prepared and plans to release
advisory material to provide more detailed guidance for use in finding
compliance with this rule.
One commenter recommends removing both the proposed and the
existing Secs. 25.831 (c) and (d), stating that the sections are
ambiguous and that the requirement that the systems perform their
intended functions under all foreseeable (normal and failure)
conditions is addressed in Sec. 25.1309. The FAA does not concur. As
noted above, descriptive terminology is used to present design
standards when specific requirements would be too inflexible and
restrictive. Further, Sec. 25.1309 is not intended to be the sole
regulation for use in determining acceptability of system design when
failure conditions exist. The FAA has found that individual rules are
desirable when addressing specific functions, such as those governing
ventilation requirements, in order to ensure adequate consideration of
the specific issues identified.
One commenter suggest changing the wording of the proposed
Sec. 25.831(d) from ``If the accumulation of hazardous quantities of
smoke * * *,'' noting that in-service experience has shown that
accumulation of smoke is reasonably likely. The FAA concurs that the
accumulation of smoke in cockpits has occurred on numerous occasions,
and is not an extremely improbable event. However, future designs may
embody features that render smoke accumulation extremely improbable.
Should a manufacturer be able to show such reliability, smoke
evacuation should not be required to be demonstrated.
Two commenters note that protection from smoke in the cockpit
cannot be ensured, even while wearing and using the crewmember oxygen
equipment stipulated in the proposed Sec. 25.1447(c)(3), unless an
``emergency pressure (1 to 3 inches of water) is provided to ensure
positive mask pressure and flow into goggles.'' The FAA recognized that
a positive pressure differential between the inside of the mask and
ambient is desirable. Many existing regulators have a ``test'' or
``emergency'' position to provide the pressure differential noted
above. However, the FAA does not concur that this approach needs to be
required by regulation, and has not proposed such a change. For the
purposes of this rulemaking, the preamble of Notice 89-31 merely notes
that one of the advantages of the pressure demand mask is that, if
either the 100 percent or the full positive pressure (sometimes called
``test'') setting is selected, protection from smoke within the cockpit
would be provided. While the degree of protection is not identified,
selection of either of these settings does eliminate the ambient air
which is inspired with diluter demand masks, thus reducing the risk of
smoke or fumes being inhaled by the wearer.
Three parties offer comments on the proposed new Sec. 25.831(g).
One commenter recommends continuing the time/temperature curve proposed
for this section beyond 90 minutes, and recommends referring to the
curve in the FAA SST ``white book,'' TENTATIVE AIRWORTHINESS STANDARDS
FOR SUPERSONIC TRANSPORTS. Copies of the appropriate pages from that
document have been added to the docket for this rulemaking action. The
FAA infers that the commenter believes the curve should be extended to
200 plus minutes because that is the extent of the graph in the white
book. The FAA does not concur with this comment. The curve in the white
book actually ends at 90 minutes for a temperature of 90 degrees
Fahrenheit (90 deg.F), although the actual graph grid extends to over
200 minutes. The FAA, in responding to comments on previously issued
special conditions for high altitude operations, modified the SST time/
temperature curve by increasing the allowable maximum temperature from
90 degrees to 100 degrees Fahrenheit to accommodate aircraft while
operating in high ambient temperature conditions. It was noted that it
would be difficult to meet the temperature maximums while operating on
the ground with outside temperatures above 100 degrees. The end point
on the proposed curve indicates that the exposure time to a temperature
of 100 degrees Fahrenheit (100 deg.F) shall not exceed 90 minutes. The
FAA has determined that the limits established by this curve are
appropriate for improbable failure conditions. In addition, there were
no other comments addressing the proposed time/temperature limits.
Considering the above, the curve in the final rule is retained as
proposed.
A second commenter states that this amendment is not justified for
airplanes operating below 40,000 feet. The FAA infers that the
commenter is recommending removing this proposal. The FAA does not
concur that this change is unjustified. Excessive temperatures in the
crew and passenger compartments can present a hazard to continued safe
flight and landing for any airplane. Therefore, although this hazard is
not regarded as sufficient to warrant retroactive application of these
requirements to existing designs, these improvements in design
standards are appropriate and cost effective for future designs. While
this change was proposed primarily to codify existing special
conditions for high altitude operation, it is also appropriate for
airplanes certificated for operation at lower maximum altitudes. A
third commenter recommends changing the proposed rule to clarify that
the amended rule is directed at airplanes which utilize high
temperature air to maintain pressurization following failure
conditions. While the FAA concurs that the requirement, which
originated in existing special conditions, was directed primarily at
such airplanes, the amended rule is intended to apply to any failure
condition that can result in excessively high temperatures. For the
above reasons, Sec. 25.831(g) is added as proposed.
One commenter recommends leaving the phrase ``Pressurized cabins
and compartments to be occupied * * *'' in Sec. 25.841(a) rather than
changing it to ``Pressurized cabins and any other occupied compartments
* * *'' as proposed. The commenter notes that this change is not
addressed in the preamble to the proposal, and expresses concern that
the change in wording might result in a change in interpretation. The
FAA does not concur with this comment. This change in wording does not
change the meaning of the Section, and, in the opinion of the FAA, is
clearer.
One commenter recommends adding a section to the proposed
Sec. 25.841(a)(3) to note that ``Turbine engine installations failures
must be assessed according to the specific requirements of
Sec. 25.903(d) * * *'' The FAA does not concur with this
recommendation. It is not clear how adding this detail would clarify
the requirements for assessing the damage resulting from an contained
engine failure. Further clarification is considered to be appropriate
for advisory material, and the FAA addresses uncontained engine failure
in the advisory circular which was proposed concurrent with Notice 89-
31.
One commenter states that the proposed Sec. 25.841(a)(1) calls for
``an unjustified reliability increase relating to the pressurization
system.'' The FAA infers that the commenter is requesting that the rule
continue to address only those failures which are ``reasonably
probable.'' The FAA does not concur. As noted earlier, reasonably
probable has been interpreted by the FAA to include both the probable
and
[[Page 28689]]
improbable categories. For this reason, the new wording does not
constitute an increase in the required reliability.
The same commenter states that the proposed Sec. 25.841(a)(2) will
be in conflict with the proposed Sec. 25.841(a)(1). The FAA does not
agree. Section 25.841(a)(1) addresses acceptable cabin pressure
altitudes following probable failure conditions, while
Sec. 25.841(a)(2) addresses cabin altitudes following failure
conditions not shown to be extremely improbable, i.e., probable and
improbable failure conditions.
One commeter expresses the concern that the adoption of the
proposed Sec. 25.841(a)(2)(i), which limits exposure to cabin pressure
altitudes exceeding 25,000 feet to a maximum of 2 minutes for failure
conditions not shown to be extremely improbable, will result in
``severe restrictions on flight routes as well as maximum certification
altitude.'' The commeter states that the proposed Secs. 25.841(a)(2)
and (a)(3) are proposed to address concerns regarding ``extremely rapid
decompressions which may occur with small volume, high altitude (to
51,000 feet) executive transport airplanes,'' and recommends that the
FAA remove these sections from the final rule. The FAA does not concur.
While it is true that one of the reasons for formulating this rule
change was to codify the certification requirements previously issued
as special conditions for small volume transport category airplanes
requesting approval for high altitude operation, the FAA has reviewed
the service history of rapid depressurizations on all transport
category airplanes including those with large pressurized volumes. Such
events, while rare, do occur in service. The effects of exposure to
altitudes above 25,000 feet for more than 2 minutes, or to an altitude
above 40,000 feet for any period of time, are discussed in the preamble
of the notice. If an applicant can show that failure conditions leading
to excellence of these cabin altitudes are extremely improbable, there
is no impact on operating altitude. As to having a significant effect
on operating altitudes, this requirement does not affect airplanes
already certificated, so there would be no ``more extensive
requirements on the current commercial fleet.'' This commenter also
recommends changing ``any probable failure or failure combinations'' to
``any probable failure or probable failure combination.'' As noted
earlier, the FAA is changing the wording for both Secs. 25.831 and
25.841 to ``failure conditions,'' which covers failures and
combinations of failures, and more closely parallels Sec. 25.1309
terminology.
One commenter recommends revising Sec. 25.841(a)(1) to show that
``In case of dispatch with equipment inoperative per an approved
Minimum Equipment List (MEL), only reasonably probable failures or
reasonably probable failure malfunctions need be considered,'' when
addressing the 15,000 feet maximum cabin altitude requirement of this
section. The commenter notes that dispatch under an approved MEL with
one of two air conditioning packs inoperative has been a safe practice.
The FAA does not concur with this recommendation. The certification
rules in part 25 do not address MEL dispatch. In the case of dispatch
with one pack inoperative, the practice followed in recent
certification projects has been to limit the operating altitude of an
airplane dispatching under these conditions to that which has been
demonstrated in that configuration considering the effect of potential
failures. The FAA intends that this practice be continued under this
rule.
One commenter suggests adding a new Sec. 25.841(a)(2)(iii) reading
``Compliance with paragraph (i) is not required for cabin altitude
versus time profiles where exposure above ten thousand feet does not
exceed 10 minutes.'' The commenter notes that operating rules
(Sec. 121.333(a)) assume that the airplane descends from the maximum
altitude to 10,000 feet in ten minutes, and that permanent ill effects
from hypoxia under present operating rules have been rare. Further,
recent special conditions for the Beech Model 400A and British
Aerospace Model BAe Model 125-1000A airplane contains cabin altitude
versus time curves which support the ``ten minutes above 10,000 feet''
criteria. The FAA does not concur with the commenter's suggestion. The
cabin altitude limitations stipulated in the special conditions were
interim standards applicable to those airplanes only. Physiological
data from CAMI have resulted in the FAA establishing the requirements
for cabin altitudes as they are stated in the proposal. Adopting the
commenter's proposal could result in an applicant being allowed to
demonstrate compliance while showing exposures to cabin altitudes up to
40,000 feet for extended periods while still meeting the standards,
which would be unacceptable. The FAA has determined that preventing the
occupants from being exposed to cabin altitudes greater than 25,000
feet for more than 2 minutes or 40,000 feet for any duration will
provide an acceptable level of safety at an acceptable cost.
This commenter also suggests adding a new Sec. 25.841(a)(2)(iv) to
allow the occupants to be exposed to cabin altitudes greater than
25,000 feet or 10,000 feet (if (iii) were adopted) when minimum flight
altitudes make literal compliance with these sections impractical. The
commenter is concerned that literal compliance with Sec. 25.841(b)
would result in prohibition of flight over the Himalayas or Andes, or
in certain areas where minimum altitudes are stipulated. The FAA does
not share this concern. The proposed rule requires design features to
prevent the exposure of occupants to the high cabin altitudes in the
presence of failure conditions. The ability to operate in areas where
operational constraints dictate minimum flight altitudes is a function
of operating rules and appropriate flight planning in terms of
supplemental oxygen, etc. The certification rules do not address these
considerations.
The same commenter recommends changing Sec. 25.841(a)(3) to more
precisely define the manner in which various causes of a decompression
are treated, and suggests subparagraphs treating uncontained engine
failure, fuselage structural failure, discrete source failure, and
system failure separately. The FAA does not agree that these details
are appropriate for inclusion in the certification rule. The FAA plans
to provide guidance material regarding the manner in which the various
failure cases may be addressed.
One commenter supports the rulemaking but states that ``Existing
crew and passenger emergency oxygen systems in civil aircraft do not
have sufficient pressure breathing capability to protect the individual
for the required length of time for controlled descent to below 33,000
feet where, I believe, existing oxygen systems may function adequately
for life support.'' The FAA infers from this comment that the commenter
desires that this proposal contain new requirements for oxygen systems.
The FAA does not agree with this commenter concerning equipment used by
the flightcrew. The FAA has determined that the oxygen dispensing
equipment required by this rule will provide adequate protection when
the exposure envelopes are observed. The FAA shares the commenter's
concern with respect to the passenger oxygen equipment. While the
passenger equipment is certificated to operate to a pressure altitude
of 40,000 feet, the physiological effects of decompression on the
passengers may prevent the equipment from being effective in all cases.
The alternatives would be to require the passengers to breathe 100
percent oxygen at the altitudes of concern or to prohibit operation at
the
[[Page 28690]]
higher altitudes. Breathing 100 percent oxygen by all passengers is
considered to be an unacceptable solution from an operational
standpoint, and the exposure envelopes adopted for this rule have been
selected to mitigate the limitations of the passenger oxygen system. It
is considered that developing new oxygen equipment standards to be
included with this rule is unwarranted. The FAA has determined that
operation at the altitudes addressed in this rule can be accomplished
with an acceptable level of safety, and this rule has established cost
effective means of attaining that goal.
One commenter suggests that the requirement in Sec. 25.1447(c)(1)
for automatic presentation of oxygen dispensing units if certification
for operation above 30,000 feet is requested refer to 31,000 feet, as
30,000 feet (FL300) is not an authorized cruising altitude. The FAA
agrees that this is not a cruising altitude. However, the FAA does not
concur that it is inappropriate to stipulate a requirement for
operation above 30,000 feet. Further, this requirement is unchanged
from the existing rule.
A second commenter recommends amending Sec. 25.1447(c)(1) by
removing the requirement for supplemental oxygen for passengers if the
cabin altitude limits in Notice 89-31 are adopted. The commenter states
that it is not realistic to expect all passengers to utilize the oxygen
system, and infers that if the limits proposed are adopted, the risk to
healthy passengers is minimal. The FAA does not concur with this
comment. If the FAA were to follow the commenter's logic, i.e., not to
require passenger oxygen systems, the exposure envelope would limit the
cabin altitude to 15,000 feet. Historical events and decompression
tests indicate that supplemental oxygen is needed even when the cabin
pressure altitudes required by this rule are observed. Further, this
requirement is unchanged from the existing rule. No other comments were
received on the proposed Secs. 25.1447 (c)(1) and (c)(2) and they are
adopted as proposed.
One commenter states that Sec. 25.1447(c)(3) requires pressure
demand masks for operation above 25,000 feet but the justification in
the preamble of the notice states that diluter demand masks are
acceptable up to 34,000 feet. The FAA does not agree with this comment.
Section 25.1447(c)(3)(i) requires a diluter demand or pressure demand
(pressure demand mask with a diluter demand pressure breathing
regulator) type mask for airplanes to be operated above 25,000 feet.
The pressure demand (pressure demand mask with a diluter demand
pressure breathing regulator) type with a mask-mounted regulator is
required for airplanes operated at altitudes where decompressions that
are not extremely improbable may expose the flightcrew to cabin
pressure altitudes above 34,000 feet.
One commenter recommends that the pressure breathing requirements
of Secs. 25.1447(c)(3)(i) and (ii) be detailed in the form of mask
pressure versus cabin altitude curves. The commenter suggests that the
current pressure breathing equipment specified under Technical Standard
Order TSO-C89 may not be acceptable for cabin altitudes up to 45,000
feet. The commenter provides no rationale in support of his
recommendation. The FAA does not concur. The type of data recommended
by the commenter is appropriate to TSO requirements, and the revision
to those documents is beyond the scope of this notice. Further, one of
the purposes of this rulemaking is to provide protection by preventing
exposure of the occupants to cabin altitudes above 40,000 feet. Masks
and regulators are currently in use that meet the requirements in the
curves submitted by the commenter for conditions up to that altitude.
One commenter notes that a pressure demand mask with a mask-mounted
regulator may have different oxygen delivery percentage requirements
under TSO-C89 depending on the altitude for which it is certificated.
The commenter suggests that the rule clarify the mask and regulator
requirements by stipulating the altitude to which the mask and
regulator are approved under the TSO. The FAA does not concur with this
suggestion. By specifying the type of oxygen equipment for the crew,
and the manner of its use, the FAA has determined that the flightcrew
will retain the ability to safely operate the airplane during a
decompression.
One commenter suggests withdrawing the proposed
Sec. 25.1447(c)(3)(ii) because the equipment standards defined in TSO-
C89 ``provide the necessary oxygen up to 40,000 feet, and are
considered safe.'' The FAA does not concur. There is no requirement
that the equipment used in transport category airplanes be approved
under a TSO. As discussed in the notice, operation at altitudes which
can, in the event of a rapid decompression, result in incapacitation or
a physiological hazard to the occupants requires oxygen equipment to
meet the specific environments that may be encountered. It is
recognized that equipment with TSO authorization is available that will
provide the required protection at a reasonable cost. The intent of
this rulemaking is to identify a minimum equipment standard that is
known to provide this protection, and that equipment is called out in
the amended sections.
Another commenter suggests amending Sec. 25.1443 by addition of a
curve of ``cabin pressure altitude versus minimum required oxygen mass
flow'' for cabin altitudes from 0 to 51,000 feet which would replace
the generic mass flow requirement which appears in Sec. 25.1441. The
FAA does not concur with this comment. A revision to Sec. 25.1443 as
suggested by the commenter would not increase the level of safety.
Existing rules related to oxygen mass flow provide an adequate level of
safety. If such material were to be added, this level of detail would
be more appropriate in a Technical Standard Order or the advisory
material that has been proposed to accompany this rulemaking action.
One commenter recommends deleting Sec. 25.1447(c)(3)(ii) both as it
now exists and as proposed. The existing section is deleted for the
reasons noted in the preamble to Notice 89-31. The commenter believes
that the section as proposed, which stipulates the use of ``a pressure
demand (pressure demand mask with a diluter demand pressure breathing
regulator) type with a mask-mounted regulator,'' is unduly restrictive
by requiring a mask-mounted regulator, and dictates a design solution.
Additionally, the commenter states that Secs. 25.1441(d) and 25.1443(b)
and Technical Standard Order TSO-C89 address oxygen equipment, thereby
obviating the need for the proposed section. Another commenter
recommends that the FAA define the required oxygen equipment (diluter
demand and pressure demand masks) in terms of performance rather than
by stipulating a specific equipment type. The FAA does not concur with
these comments. The specific descriptions for the oxygen equipment that
is proposed in these amendments has been determined by the FAA to be
necessary to provide protection for the flightcrew in cases where the
cabin altitude will exceed the specified levels. Neither of the FAR
sections nor the TSO data provide adequate assurance of that
protection. The FAA believes that this detailed stipulation is
necessary to ensure the protection and to provide standardization in
interpretation of the new requirements. However, the FAA intends to
allow sufficient latitude for system designers to develop safer and/or
less expensive approaches to specific requirements. For this reason,
Sec. 25.1447(c)(3)(ii) is changed to allow other means of protection
for flight
[[Page 28691]]
crewmembers if the proposed equipment affords the same protection.
One commenter states that existing panel-mounted diluter-demand
regulators have proven satisfactory. This party suggests that the
pressure-demand mask with a mask-mounted regulator be mandatory for
newly certificated airplanes only. The FAA agrees that panel mounted
regulators have proven satisfactory, but the FAA has determined that in
a high altitude rapid decompression, the protection afforded by a mask
mounted regulator is superior to that found in panel mounted
regulators. As noted in the preamble of the notice, the time delay in
providing 100 percent oxygen to the flight crewmember, which results
from the air in the hoses of the oxygen equipment, can significantly
negate the hypoxic protection of such equipment. Further, this
amendment constitutes a revision to part 25, and is not applicable to
the existing fleet. It is, however, the FAA's position that every
effort be made to provide a level of safety equal to the latest
certification standards for existing airplanes that are updated by
amended or supplemental type certification. The FAA's policy regarding
establishment of the type certification basis for derivative airplanes
is described in Action Notice A 8110.23, dated September 26, 1990. A
copy of this document has been placed in the Rules Docket. Following
issuance of these amendments, the concepts contained herein would be
applicable to airplanes which incorporate changes in the oxygen systems
or increases in approved operating altitudes, in accordance with
Sec. 21.101. For high altitude approvals, this has been accomplished in
the past through special conditions which contain provisions
essentially the same as those embodied in these amendments.
Several comments express concerns regarding long term use of 100
percent oxygen by fightcrews. One of these parties suggests that the
crew member use normally diluted oxygen with the regulator set at the
``normal'' position. Another states that 100 percent oxygen should not
be permitted unless adequate safeguards have been established. A third
party states that 100 percent oxygen should be used only for short
periods as an emergency measure due to a health hazard. One commenter
recommends deleting the proposed Sec. 25.1447(c)(4) and retaining
Sec. 121.333(c)(2), which requires at least one pilot to wear and use
an oxygen mask at altitudes of 41,000 feet and greater. Another
commenter believes that wearing an oxygen mask at lower altitudes ``is
not necessary nor is it useful.'' One commenter notes that breathing
100 percent oxygen will dry out the lungs, can lead to narcosis, and
states that the long term effects are not clearly understood. Another
commenter recommends deleting the proposal to require the wearing of
masks and revert to the requirements in the operating rules. Another
commenter states that large volume transports decompress slowly giving
crews more time to don oxygen masks, and current large transports are
certificated to 45,000 feet without requiring the flightcrew to be
using oxygen. The FAA infers that the commenter believes that this
proposal should not apply to ``large'' transport airplanes. The FAA
does not concur with this viewpoint. The physical size of the airplane
is not germane; the important parameter is the post-decompression cabin
altitude and its effect on occupants. One commenter notes that the
requirement for prebreathing 100 percent oxygen would necessitate
additional oxygen supplies at added cost. Finally, one commenter
questions whether breathing 100 percent rather than 40 percent oxygen
provides better protection in terms of blood oxygen saturation level.
This commenter provides data showing that prebreathing 30 to 40 percent
oxygen provides adequate protection against the effects of hypoxia
following rapid decompression. The data show that the blood oxygen
saturation level following the decompression is not significantly
depressed even if the crew member is breathing 30 percent oxygen, as
long as the oxygen supplied to the crew member goes to 100%
immediately. After considering all the negative comments received and
reviewing existing data regarding high altitude decompressions, the FAA
has determined that it is appropriate to withdraw this proposal. The
proposed Sec. 25.1447(c)(4), requiring that one flight crewmember be
wearing an oxygen mask and breathing 100 percent oxygen when operating
at altitudes where the cabin altitude can reach 34,000 feet in the
event of a decompression, has been withdrawn.
One commenter states that, regarding the proposed
Sec. 25.1447(c)(5), portable oxygen equipment would only be ``at hand''
if the crew members were sitting by the oxygen equipment or were
actually using it, and recommends striking the work ``immediately''
from the proposal. The FAA does not believe this change is necessary or
warranted. This requirement is retained from the existing
Sec. 25.1447(c)(4), and is considered met in existing airplanes by
having portable oxygen equipment located adjacent to the crew member
seat with additional units located at specific locations in the
passenger cabin. The FAA anticipates that industry will continue to
provide this protection in the same manner as it has done in existing
airplanes, with no change in the rule or in FAA policy regarding
showing compliance.
Two commenters point out that the nomenclature used in the glossary
of the notice misidentified the type of passenger oxygen equipment used
in airplanes with altitudes above 35,000 feet. One commenter recommends
changing the definition in the Glossary for ``Continuous Flow Oxygen
Systems'' to note that the type of equipment used is a mask with a
``reservoir'' bag rather than a ``rebreather'' bag. The FAA concurs
with these comments, and the glossary is changed to reflect the
terminology used in current descriptive literature.
One commenter notes that, while special conditions have been issued
covering various airplanes requesting approval for high altitude
operations, this proposal impacts all airplanes seeking certification
under part 25 of the FAR, including those with maximum flight altitudes
less than 41,000 feet. These proposals constitute increased standards
for those airplanes. The FAA concurs with this statement. This
rulemaking addresses the physiological limitations of occupants of
transport category airplanes which can experience depressurization to
cabin altitudes greater than 34,000 feet. However, the commenter does
not recommend any specific changes in the proposals.
The JAA notes that future rulemaking relative to the Joint
Airworthiness Regulations (JAR) will require retroactive application
for each new amendment, and asks if the FAA is considering similar
action. As noted earlier, application of new amendments to the FAR are
made applicable to type certification programs in accordance with
Sec. 21.101 of the FAR. There are no plans to require retroactive
application of new amendments to the existing fleet, as suggested by
the JAA. The JAA also suggests considering a number of added concerns
regarding operations at high altitudes, such as the effects of icing on
airspeed and pressure probes, changes in static stability criteria for
high mach/high altitude operation, and health hazards related to cosmic
radiation during high altitude cruise. A second commenter recommends
that the proposal be revised to address standards related to the
exposure of crewmembers to cosmic radiation when operating at altitudes
up to 51,000 feet. The effects of icing (ice crystals) on airspeed and
pressure probes and stability criteria
[[Page 28692]]
were not considered in the special conditions issued prior to this
rulemaking, and no data was submitted by the commenter to support its
position. No action is contemplated by the FAA regarding these
comments. The effects of cosmic radiation are not addressed in this
proposal, and no data were submitted by either commenter in support of
their suggestions. The FAA is aware of the concerns expressed by the
commenters and may consider further rulemaking to address those
concerns.
One commenter suggests requiring initial and periodic training
including altitude chamber and pressure breathing instruction for
pilots of airplanes affected by this rulemaking. As the certification
rules in part 25 do not address specific training requirements, this
proposal is outside the scope of this rulemaking. However, this
proposal will be discussed with the FAA organization responsible for
crew training.
One commenter notes that the FAA should require improvements in
pressure demand masks to improve comfort, and suggests that research
and development in comfort and human factors is needed. The FAA
believes that there is oxygen equipment available that meets the
requirements of this rule and also provides an acceptable level of
comfort. The small executive jet airplanes approved under existing
special conditions are so equipped. If further improvements are needed,
the marketplace will drive the development and availability of these
products.
One commenter suggests that the FAA has failed to consider the
relatively small transport category airplanes intended for commuter
airline operation. The example noted is a 16,000 pound airplane
intended to carry 25 passengers, operating at altitudes of 25,000 to
30,000 feet. The commenter states that the manufacturer will apply for
certification to the highest expected operating altitude and the
amendments of this proposal will apply. The specific comments related
to these concerns are addressed elsewhere in this document, but the
commenter apparently believes that these applicants should not have
these requirements imposed on their airplanes. The position adopted by
the FAA with this rulemaking action is that any airplane operating at
flight altitudes where decompression can result in a hazard to the
occupants must be designed to provide protection.
One commenter recommends leaving the regulations as they now exist
for large airplanes operating up to 45,000 feet and directing the
proposed rules to the smaller airplanes operating at higher altitudes.
This party states that large airplanes certified under the existing
rules provide an acceptable level of safety, and the proposed rules
will result in ``undue restrictions or unvalidated costly additional
effort.'' Another commenter expresses a similar opinion, and comments
that adoption of these standards will have a significant economic
impact due to requiring retrofit of many existing airplanes. The FAA
does not share these views. The protection afforded the occupants
should be the same for any transport category airplane, regardless of
volume. Larger airplanes have shown decompression characteristics
similar to the small airplanes. If the applicant can demonstrate that
the cabin altitude does not exceed prescribed limits, many of the
provisions of this amendment do not apply. In any case, these rules are
not retroactive to existing airplanes as a result of this rulemaking,
and only new or modified airplanes are required to meet the new
requirements. Another commenter makes the point that there have been
recent decompression events involving large airplanes wherein the
decompression ``is surely as explosive as any to be realized on a
smaller Lear Jet . . .,'' and agrees with the proposals.
Another commenter believes that existing supplemental oxygen
systems are acceptable, and if the requirements in Notice 89-31 are
adopted, there are strong arguments for elimination of the passenger
oxygen system. The FAA does not concur with these statements. While it
is recognized that not all passengers will be able to don their oxygen
equipment, the protection afforded by the systems currently installed
provides acceptable protection from the effects of hypoxia at an
acceptable cost for the majority of the occupants from the effects of
hypoxia. Even when the decompression event is slower or the cabin
altitude is limited, and the oxygen masks are not absolutely essential
for survival, some protection is afforded to all the passengers when
the cabin altitude exceeds safe limits. The operating rules also
require the installation of this equipment.
One commenter states that the economic analysis reflects an
operating cost increase of $19 million per year, implying that the rule
would have to save 19 lives per year to be reasonable. The same
commenter recommends revising the Regulatory Flexibility Determination
because small entities may operate affected airplanes and may incur
increased operating costs. In each case, the commenter appears to be
referring to FAA's economic analysis of proposed Sec. 25.1447(c)(4). As
noted earlier, Notice 89-31 proposed that Sec. 25.1447(c)(4) require
that one flight crewmember wear an oxygen mask and breathe 100 percent
oxygen when operating at altitudes where the cabin altitude can reach
34,000 feet in the event of a decompression. In response to public
comments and cost considerations, the FAA has withdrawn this proposal
and will subject it to further study. In regard to the commenter's
recommendation regarding small entities, the magnitude of the costs and
the number of affected small entities, rather than simply the incidence
of costs, are the criteria by which a rule is judged to have a
significant economic impact on small entities. A regulatory flexibility
determination of the final rule is presented in the next section of
this document.
The same commenter also states that the Regulatory Evaluation does
not take into consideration evolving FAA policy of applying the latest
FAR amendments when determining the certification basis for amended
type certifications. The FAA agrees and has added this policy to this
final regulatory evaluation, without affecting the justification of the
rule. It is FAA's policy that every effort be made to provide a level
of safety equal to the latest certification standards for existing
airplanes that are updated by amended or supplemental type
certificates. Amendments to the FAR may be made applicable to
derivative airplanes in accordance with Sec. 21.101 if it is determined
that the new or redesigned system is not adequately addressed in the
regulations incorporated by reference to the type design.
The commenter also identifies a statement in the NPRM Regulatory
Evaluation that incorrectly assumes that new airplanes will not have
engines mounted in positions which could damage the fuselage. The
commenter appears to be misinterpreting FAA's language. The statement
being referred to by the commenter is one pertaining only to small
volume transport airplanes. The FAA agrees that most other transport
category airplanes will have wing-mounted engines located such that
fragments from an engine burst could affect the fuselage and pressure
vessel.
References
Reference 1. ``Factors Influencing the Time of Safe
Unconsciousness (TSU) for Commercial Jet Passengers Following Cabin
Decompression'' by James G. Gaume, Aerospace Medicine, April 1970.
Reference 2. Aerospace Information Report (AIR) No. 822 and 825B
(Physiology Section); SAE Committee A-10.
Copies of pertinent portions of these documents have been placed in
the
[[Page 28693]]
Rules Docket and are available for public inspection.
Glossary
Physiology Altitude Limits. The response of human beings to
increased altitude varies with the individual. People that smoke or are
in poor health will be affected at a much lower altitude than people
who are young and in good physical condition. Without supplementary
oxygen, most people will begin to experience a reduction in night
vision or general visual acuity at approximately 5,000 feet altitude.
At an altitude of approximately 10,000 feet, a person will begin to
display measurable deterioration in mental abilities and physical
dexterity after a period of several hours. At 18,000 feet, the mental
deterioration may result in unconsciousness, and the time of useful
consciousness (TUC) is generally about 15 minutes. At 25,000 feet, the
TUC for most people is about 3-10 minutes. At altitudes above 25,000
feet, the TUC decreases very rapidly, becoming only a few seconds at
40,000 feet. If a person is breathing 100 percent oxygen, however, the
partial pressure of oxygen in the lungs at 34,000 feet altitude is the
same as that for a person breathing air at sea level. At 40,000 feet, a
person breathing 100 percent oxygen will have the same partial pressure
of oxygen in the lungs as a person breathing air at 10,000 feet.
Therefore, 34,000 feet is the highest altitude at which a person would
be provided complete protection from the effects of hypoxia, and 40,000
feet is the highest altitude at which 100 percent oxygen will provide
reasonable protection for the time period needed to descend to a safe
altitude.
Hypoxia. Hypoxia is a condition caused by insufficient oxygen. It
results from the reduced oxygen partial pressure in the inspired air
caused by the decrease in barometric pressure with increasing altitude.
Diluter Demand Oxygen System. A flightcrew oxygen system consisting
of a close-fitting mask with a regulator that supplies a flow of oxygen
proportional to cabin altitude. Regulators are usually designed to
provide zero percent oxygen and 100 percent cabin air at cabin
altitudes of 8,000 feet or less, with the ratio changing to 100 percent
oxygen and zero percent cabin air at approximately 34,000 feet cabin
altitude. Oxygen is supplied only when the user inhales, reducing, the
amount of oxygen that is required.
Pressure Demand Oxygen System. Similar to diluter demand equipment,
except that oxygen is automatically supplied to the mask under pressure
at cabin altitudes above approxmately 34,000 feet. This pressurized
supply of oxygen provides some additional protection against hypoxia at
altitudes up to 39,000 feet.
Pressure Demand Mask With Mask-Mounted Regulator. A pressure demand
mask with the regulator attached directly to the mask, rather than
mounted on the instrument panel or other area within the flight deck.
The mask-mounted regulator eliminates the problem of a long hose which
must be purged of air before oxygen is delivered to the mask.
Continuous Flow Oxygen System. The oxygen system typically provided
to passengers. The passenger mask most commonly used in transport
category airplanes is equipped with a reservoir bag, which is
replenished by a continuous flow of oxygen. This design incorporates a
check valve between the reservoir bag and the face mask to prevent
introduction of exhaled gasses into the bag and assure 100% oxygen in
the reservoir. Dilution is accomplished at the later phases in
inspiration by a loaded ambient air valve which introduces ambient air
following depletion of the oxygen in the reservoir bag.
Probable Failures. Probable failures may be expected to occur
several times during the operational life of each airplane. The
probability of occurrence is on the order of 1 x 10-5 or greater
(Advisory Circular 25.1309-1A). The consequences of the failure or the
required corrective action may not significantly impact the safety of
the airplane or the ability of the crew to cope with adverse operating
conditions. Systems that operate within this category are referred to
as nonessential systems.
Improbable Failures. Improbable failures are not expected to occur
during the total operational life of a random single airplane of a
particular type, but may occur during the total operational life of all
airplanes of a particular type. The probability of occurrence is on the
order of 1 x 10-5 or less. The consequences of the failure or
the required corrective action must not prevent the continued safe
flight and landing of the airplane. Systems that operate within this
category are referred to as essential systems.
Extremely Improbable Failures. Extremely improbable failures are so
unlikely that they need not be considered to ever occur, unless
engineering judgement would require their consideration. The
probability of occurrence is on the order of 1 x 10-9 or less.
This category includes failures or combinations of failures that would
prevent the continued safe flight and landing of the airplane. Systems
that operate within this category are referred to as critical systems.
Regulatory Evaluation Summary
Proposed changes to Federal regulations must undergo economic
analyses. First, Executive Order 12866 directs that each Federal agency
shall propose or adopt a regulation only upon a reasoned determination
that the benefits of the intended regulation justify its costs.
Section, the Regulatory Flexibility Act of 1980 requires agencies to
analyze the economic effect of regulatory changes on small entities.
Third, the Office of Management and Budget directs agencies to ass
FR Doc. 96-13947 Standards for Approval for High Altitude Operation of Subsonic Transport Airplanes
ess
the effects of regulatory changes on international trade. In conducting
these analyses, the FAA has determined that this rule: (1) will
generate benefits that justify its costs; (2) is not a ``significant
regulatory action'' as defined in the Executive Order and is not
``significant'' as defined in DOT's Regulatory Policies and Procedures;
(3) will not have a significant economic impact on a substantial number
of small entities; and (4) will not constitute a barrier to
international trade. These analyses, available in the docket, are
summarized below.
Regulatory Evaluation Summary
The rule may impose relatively incremental costs in that applicant
manufacturers will be required to demonstrate compliance and operators
may experience increased operating costs. The FAA has determined that
these potential incremental costs will be exceeded by the safety and
efficiency benefits of the rule.
A. Ventilation and Cabin Cooling--Sec. 25.831 (a), (c), (d), and (g)
The FAA has determined that health and safety considerations
justify the airflow design requirements of Sec. 28.831(a) for all
transport category airplanes. First, cabin crewmembers must be able to
perform their duties without undue discomfort or fatigue. Secondly,
benefits may be realized from the assured availability of the
additional airflow when it is required. Third, fresh airflow is
necessary to provide adequate smoke clearance in the event of smoke
accumulation in the passenger cabin, an event which has occurred on
several occasions. Fourth, administrative benefits will be realized
because codified regulations are more efficient than special
conditions. Finally, it is noted that other airworthiness authorities
have comparable ventilation standards.
[[Page 28694]]
The airflow design requirements in revised Sec. 25.831(a) are not
expected to result in significant cost changes. Incremental design and
manufacturing costs will be negligible because most current airplane
models were designed with the additional airflow capability and, even
in the absence of this rule, future airplane models would likely
continue to be so designed. Incremental operating costs are expected to
be nominal because the rule isn't an operating requirement and because
the additional airflow is not required at all times and under all
operating conditions. Furthermore, to the extent that the amendment
codifies special conditions that would have continued to be applied to
future high altitude airplane certifications, it will not cause changes
in costs.
The new Sec. 25.831(g) supplements the requirements found in
Sec. 25.1309 by limiting exposure times to excessive temperatures in
the crew and passenger compartments which can present a hazard to
continued safe flight and landing, and the limits are appropriate for
all transport category airplanes, regardless of certificated maximum
flight altitude.
B. Pressurization and Pressure Vessel Integrity--Secs. 25.365(d) and
25.841(a)
The higher structural safety factor in revised Sec. 25.365(d) is
necessary for airplanes operating above 45,000 feet because a rapid
decompression could be catastrophic to occupants. Therefore, the FAA
finds that this event should be extremely improbable; i.e., not
expected to occur during the lifetime of an entire fleet of airplanes.
Service history shows that decompressions at high altitudes are not
extremely remote events even for airplanes assessed to damage tolerance
criteria. Loss of cabin pressure at lower altitudes has not been
catastrophic due to higher ambient pressures and relatively short
emergency descent time. The higher structural safety factor was
included in the SST and executive transport category airplane special
conditions to reduce the likelihood of structural failure and to limit
the size of the opening if a failure occurs. The amendment will have a
negligible cost.
Revised Sec. 25.841(a) will provide airworthiness standards that
allow subsonic airplanes to operate at the highest altitude for which
the applicant manufacturer chooses to demonstrate that, after
decompression caused by a single failure or combination of failures
that are not shown to be extremely improbable: (1) the flightcrew will
remain alert and be able to fly the airplane; (2) the cabin occupants
will be protected from the effects of hypoxia; and (3) in the event
that some occupants do not receive supplemental oxygen, they
nevertheless will be protected against physiological injury.
Revised Sec. 25.841(a)(1) is equivalent to existing Sec. 25.841(a)
except for editorial changes, elimination of the words ``reasonably''
and ``or malfunctions,'' and addition of the term ``failure
conditions.'' Revised Sec. 25.841(a)(2), which limits exposure of
occupants after decompression to a cabin altitude not greater than
40,000, is unchanged from previously established standards for
airplanes using diluter demand (flightcrew) and continuous flow
(passenger) oxygen equipment. It combines the executive transport
category high altitude special conditions and Sec. 25.1309, i.e., the
degree of the hazard must be inversely related to the probability of
the failure condition.
The FAA has determined that the amendment will provide an
acceptable level of safety at an acceptable cost. To demonstrate
compliance with revised Sec. 25.841, an approved emergency descent
procedure and a cabin altitude analysis must be prepared and the crew
would perform an emergency descent in accordance with the approved
procedure. For probable system failures, the critical failure case
(probable system failure) system failure tests must be conducted at the
maximum airplane altitude. For improbable failures, the cabin altitude
could be established by analysis and verified by tests at a lower
altitude with the results extrapolated to the higher altitude. To the
extent that the rule codifies special conditions that would have
continued to be applied to future high altitude airplane type
certifications, it will have no incremental economic effects. There
will also be administrative benefits in that codified regulations are
more efficient than special conditions.
C. Oxygen Equipment--Sec. 25.1447(c)
The FAA has determined that operation in accordance with the
revised oxygen equipment standards will provide an acceptable level of
safety. By specifying the type of oxygen equipment for the crew and the
manner of its use, there will be assurance that the flightcrew will
retain its ability to safely operate the airplane during a
decompression. Panel-mounted regulators have proven satisfactory, but
the FAA has determined that in a high altitude rapid decompression, the
protection afforded by a mask-mounted regulator is superior to that of
panel-mounted regulators. The FAA intends to allow sufficient latitude
for system designers to develop safer and/or less expensive approaches
to specific requirements. For this reason, Sec. 25.1447(c)(3)(ii) will
allow other means of protection for flight crewmembers if they afford
the same protection.
To the extent that the changes codify special conditions that would
have continued to be applied to future high altitude airplane type
certifications, the amendments will have no incremental economic effect
other than the administrative benefits of codified regulations relative
to special conditions.
Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) was enacted by
Congress to ensure that small entities are not unnecessarily or
disproportionately burdened by Government regulations. The RFA requires
a Regulatory Flexibility Analysis, in which alternatives are considered
and evaluated if a rule is expected to have ``a significant economic
impact on a substantial number of small entities.'' FAA Order 2100.14A,
Regulatory Flexibility Criteria and Guidance, prescribes standards for
complying with RFA review requirements in FAA rulemaking actions. The
Order defines ``small entities'' in terms of size thresholds,
``significant economic impact'' in terms of annualized cost thresholds,
and ``substantial number'' as a number which is not less than eleven
and which is more than one-third of the small subject to the proposed
or final rule.
The rule will affect manufacturers and operators of transport
category airplanes produced under future new, and some amended and
supplemental, airplane type certifications. For manufacturers, Order
2100.14A specifies a size threshold for classification as a small
entity as 75 or fewer employees. Since no part 25 airplane manufacturer
has 75 or fewer employees, the rule will not have a significant
economic impact on a substantial number of small airplane
manufacturers. The size threshold for classification as a small
operator is the ownership (but not necessarily the operation) of nine
or fewer aircraft. The annualized cost thresholds constituting
``significant economic impact'' for operators of aircraft-for-hire,
when expressed in 1994 dollars, are $120,000 for scheduled operators
whose fleets consist entirely of aircraft with seating capacities of
over 60, $69,000 for other scheduled operators, and $4,900 for
unscheduled operators. The annualized incremental costs of this rule
amortized over a maximum nine-airplane fleet are expected to be less
than these annualized cost thresholds. The FAA
[[Page 28695]]
has therefore determined that the rule will not have a significant
economic impact on a substantial number of small operators.
International Trade Impact Assessment
The rule will have little or no effect on the sale of U.S.
airplanes in foreign markets and the sale of foreign airplanes into the
U.S.
Federalism Implications
The regulations adopted herein will not have substantial direct
effects on the states, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule will not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
International Compatibility
The FAA has reviewed corresponding International Civil Aviation
Organization regulations and Joint Airworthiness Authorities
regulations, where they exist, and has identified no differences in
these amendments and the foreign regulations.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1980 (Pub. L. 96-
511), there are no requirements for information collection associated
with this rule.
Conclusion
Because amending the airplane and equipment airworthiness standards
for subsonic transport airplanes for operation to an altitude of 51,000
feet is not expected to result in substantial costs, the FAA has
determined that this final rule is not major as defined in Executive
Order 12866. For the same reason and because this is an issue which has
not prompted a great deal of public concern, this final rule is not
considered to be significant as defined in Department of Transportation
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979). In
addition, since there are no small entities affected by this
rulemaking, it is certified, under the criteria of the Regulatory
Flexibility Act, that this final rule, a promulgation, will not have a
significant economic impact, positive or negative, on a substantial
number of small entities. A copy of the final regulatory evaluation
prepared for this project may be examined in the public docket or
obtained from the person identified under the caption FOR FURTHER
INFORMATION CONTACT.
List of Subjects in 14 CFR Part 25
Air transportation, Aircraft, Aviation safety, Safety.
The Amendment
Accordingly, the FAA amends part 25 of the Federal Aviation
Regulations (FAR) (14 CFR part 25) as follows:
PART 25--AIRWORTHINESS STANDARDS: TRANSPORT CATEGORY AIRPLANES
1. The authority citation for part 25 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44702, 44704.
2. By amending Sec. 25.365, by revising paragraph (d), to read as
follows:
Sec. 25.365 Pressurized compartment loads.
* * * * *
(d) The airplane structure must be designed to be able to withstand
the pressure differential loads corresponding to the maximum relief
valve setting multiplied by a factor of 1.33 for airplanes to be
approved for operation to 45,000 feet or by a factor of 1.67 for
airplanes to be approved for operation above 45,000 feet, omitting
other loads.
* * * * *
3. By amending Sec. 25.831 by revising paragraph (a) and by adding
a new paragraph (g) to read as follows:
Sec. 25.831 Ventilation.
(a) Under normal operating conditions and in the event of any
probable failure conditions of any system which would adversely affect
the ventilating air, the ventilation system must be designed to provide
a sufficient amount of uncontaminated air to enable the crewmembers to
perform their duties without undue discomfort or fatigue and to provide
reasonable passenger comfort. For normal operating conditions, the
ventilation system must be designed to provide each occupant with an
airflow containing at least 0.55 pounds of fresh air per minute.
* * * * *
(g) The exposure time at any given temperature must not exceed the
values shown in the following graph after any improbable failure
condition.
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[[Page 28696]]
[GRAPHIC] [TIFF OMITTED] TR05JN96.007
BILLING CODE 4910-13-C
4. By amending Sec. 25.841 by revising paragraph (a) to read as
follows:
Sec. 25.841 Pressurized cabins.
(a) Pressurized cabins and compartments to be occupied must be
equipped to provide a cabin pressure altitude of not more than 8,000
feet at the maximum operating altitude of the airplane under normal
operating conditions.
(1) If certification for operation above 25,000 feet is requested,
the airplane must be designed so that occupants will not be exposed to
cabin pressure altitudes in excess of 15,000 feet after any probable
failure condition in the pressurization system.
(2) The airplane must be designed so that occupants will not be
exposed to a cabin pressure altitude that exceeds the following after
decompression from any failure condition not shown to be extremely
improbable:
(i) Twenty-five thousand (25,000) feet for more than 2 minutes; or
(ii) Forty thousand (40,000) feet for any duration.
(3) Fuselage structure, engine and system failures are to be
considered in evaluating the cabin decompression.
* * * * *
5. By amending Sec. 25.1447, by revising paragraphs (c) (1) through
(4), to read as follows:
Sec. 25.1447 Equipment standards for oxygen dispensing units.
* * * * *
(c) * * *
(1) There must be an oxygen dispensing unit connected to oxygen
supply terminals immediately available to each occupant, wherever
seated, and at least two oxygen dispensing units connected to oxygen
terminals in each lavatory. The total number of dispensing units and
outlets in the cabin must exceed the number of seats by at least 10
percent. The extra units must be as uniformly distributed throughout
the cabin as practicable. If certification for operation above 30,000
feet is requested, the dispensing units providing the required oxygen
flow must be automatically presented to the occupants before the cabin
pressure altitude exceeds 15,000 feet. The crew must be provided with a
manual means of making the dispensing units immediately available in
the event of failure of the automatic system.
(2) Each flight crewmember on flight deck duty must be provided
with a quick-donning type oxygen dispensing unit connected to an oxygen
supply terminal. This dispensing unit must be immediately available to
the flight crewmember when seated at his station, and installed so that
it:
(i) Can be placed on the face from its ready position, properly
secured, sealed, and supplying oxygen upon demand, with one hand,
within five seconds and without disturbing eyeglasses or causing delay
in proceeding with emergency duties; and
(ii) Allows, while in place, the performance of normal
communication functions.
(3) The oxygen dispensing equipment for the flight crewmembers must
be:
(i) The diluter demand or pressure demand (pressure demand mask
with a diluter demand pressure breathing regulator) type, or other
approved oxygen equipment shown to provide the same degree of
protection, for airplanes to be operated above 25,000 feet.
(ii) The pressure demand (pressure demand mask with a diluter
demand pressure breathing regulator) type with mask-mounted regulator,
or other approved oxygen equipment shown to provide the same degree of
protection, for airplanes operated at altitudes where decompressions
that are not extremely improbable may expose the flightcrew to cabin
pressure altitudes in excess of 34,000 feet.
(4) Portable oxygen equipment must be immediately available for
each cabin attendant.
Issued in Washington, DC, on May 29, 1996.
David R. Hinson,
Administrator.
[FR Doc. 96-13947 Filed 6-4-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-13874 Environmental Review for Renewal of Nuclear Power Plant Operating Licenses
[Federal Register Volume 61, Number 109 (Wednesday, June 5, 1996)]
[Rules and Regulations]
[Pages 28467-28497]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13874]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 61, No. 109 / Wednesday, June 5, 1996 / Rules
and Regulations
[[Page 28467]]
NUCLEAR REGULATORY COMMISSION
10 CFR Part 51
RIN 3150-AD63
Environmental Review for Renewal of Nuclear Power Plant Operating
Licenses
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its
regulations regarding environmental protection regulations for domestic
licensing and related regulatory functions to establish new
requirements for the environmental review of applications to renew the
operating licenses of nuclear power plants. The amendment defines those
environmental impacts for which a generic analysis has been performed
that will be adopted in plant-specific reviews for license renewal and
those environmental impacts for which plant-specific analyses are to be
performed.
The amendment improves regulatory efficiency in environmental
reviews for license renewal by drawing on the considerable experience
of operating nuclear power reactors to generically assess many of the
environmental impacts that are likely to be associated with license
renewal. The amendment also eliminates consideration of the need for
generating capacity and of utility economics from the environmental
reviews because these matters are under the regulatory jurisdiction of
the States and are not necessary for the NRC's understanding of the
environmental consequences of a license renewal decision.
The increased regulatory efficiency will result in lower costs to
both the applicant in preparing a renewal application and to the NRC
for reviewing plant-specific applications and better focus of review
resources on significant case specific concerns. The results should be
a more focused and therefore a more effective NEPA review for each
license renewal. The amendment will also provide the NRC with the
flexibility to address unreviewed impacts at the site-specific stage of
review and allow full consideration of the environmental impacts of
license renewal.
The NRC is soliciting public comment on this rule for a period of
30 days. In developing any comment specific attention should be given
to the treatment of low-level waste storage and disposal impacts, the
cumulative radiological effects from the uranium fuel cycle, and the
effects from the disposal of high-level waste and spent fuel.
DATES: Absent a determination by the NRC that the rule should be
modified, based on comments received, the final rule shall be effective
on August 5, 1996. The comment period expires on July 5, 1996.
ADDRESSES: Send comments to: The Secretary of the Commission, U.S.
Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention:
Docketing and Services Branch, or hand deliver comments to the Office
of the Secretary, One White Flint North, 11555 Rockville Pike,
Rockville, Maryland between 7:30 a.m. and 4:15 p.m. on Federal
workdays. Copies of comments received and all documents cited in the
supplementary information may be examined at the NRC Public Document
Room, 2120 L Street NW. (Lower Level), Washington, DC between the hours
of 7:45 a.m. and 4:15 p.m. on Federal workdays.
FOR FURTHER INFORMATION CONTACT: Donald P. Cleary, Office of Nuclear
Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001, telephone: (301) 415-6263; e-mail [email protected].
SUPPLEMENTARY INFORMATION:
I. Introduction
II. Rulemaking History
III. Analysis of Public Comments
A. Commenters
B. Procedural Concerns
1. Public Participation and the Periodic Assessment of the Rule
and GEIS
2. Economic Costs and Cost-Benefit Balancing
3. Need for Generating Capacity and Alternative Energy Sources
C. Technical Concerns
1. Category and Impact Magnitude Definitions
2. Surface Water Quality
3. Aquatic Ecology
4. Groundwater Use and Quality
5. Terrestrial Ecology
6. Human Health
7. Socioeconomics
8. The Uranium Fuel Cycle and Solid Waste Management
9. Accidents
10. Decommissioning
11. Need for Generating Capacity
12. Alternatives to License Renewal
13. License Renewal Scenario
14. Environmental Justice
IV. Discussion of Regulatory Requirements
A. General Requirements
B. The Environmental Report
1. Environmental Impacts of License Renewal
2. Consideration of Alternatives
C. Supplemental Environmental Impact Statement
1. Public Scoping and Public Comments on the SEIS
2. Commission's Analysis and Preliminary Recommendation
3. Final Supplemental Environmental Impact Statement
D. NEPA Review for Activities Outside NRC License Renewal
Approved Scope
V. Availability of Documents
VI. Submittal of Comments in an Electronic Format
VII. Finding of No Significant Environmental Impact Availability
VIII. Paperwork Reduction Act Statement
IX. Regulatory Analysis
X. Regulatory Flexibility Act Certification
XI. Small Business Regulatory Enforcement Fairness Act
XII. Backfit Analysis
I. Introduction
The Commission has amended its environmental protection regulations
in 10 CFR part 51 to improve the efficiency of the process of
environmental review for applicants seeking to renew an operating
license for up to an additional 20 years. The amendments are based on
the analyses conducted for and reported in NUREG-1437, ``Generic
Environmental Impact Statement for License Renewal of Nuclear Plants''
(May 1996). The Commission's initial decision to undertake a generic
assessment of the environmental impacts associated with the renewal of
a nuclear power plant operating license was motivated by its beliefs
that:
(1) License renewal will involve nuclear power plants for which the
[[Page 28468]]
environmental impacts of operation are well understood as a result of
data evaluated from operating experience to date;
(2) Activities associated with license renewal are expected to be
within this range of operating experience, thus environmental impacts
can be reasonably predicted; and
(3) Changes in the environment around nuclear power plants are
gradual and predictable with respect to characteristics important to
environmental impact analyses.
Although this amendment is consistent with the generic approach and
scope of the proposed amendment published on September 17, 1991 (56 FR
47016), several significant modifications have been made in response to
the public comments received. The proposed amendment would have
codified the findings reached in the draft generic environmental impact
statement (GEIS) as well as certain procedural requirements. The draft
GEIS established the bounds and significance of potential environmental
impacts at 118 light-water nuclear power reactors that, as of 1991,
were licensed to operate or were expected to be licensed in the future.
All potential environmental impacts and other matters treated by
the NRC in an environmental review of nuclear power plants were
identified and combined into 104 discrete issues. For each issue, the
NRC staff established generic findings encompassing as many nuclear
power plants as possible. These findings would have been codified by
the proposed amendment. Of the 104 issues reviewed for the proposed
rule, the staff determined that 80 issues could be adequately addressed
generically and would not have been reviewed in plant-specific license
renewal reviews. For 22 of the issues, it was found that the issue was
adequately addressed for some but not all plants. Therefore, a plant-
specific review would be required to determine whether the plant is
covered by the generic review or whether the issue must be assessed for
that plant. The proposed amendment provided guidance on the application
of these findings at the site-specific license renewal stage. For the
two remaining issues, it was found that the issue was not generically
addressed for any plant, and thus a plant-specific review would have
been required for all plants.
Other major features of the proposed amendment included a
conditional finding of a favorable cost-benefit balance for license
renewal and a provision for the use of an environmental assessment that
would address only those issues requiring plant-specific review. A
finding of no significant impact would have resulted in a favorable
cost-benefit balance for that plant. If a finding of no significant
impact could not be made for the plant, there would have to have been a
determination as to whether the impacts found in the environmental
assessment were sufficient to overturn the conditional cost-benefit
balance found in the rule.
Although the final amendments to 10 CFR part 51 maintain the same
generic approach used in the proposed rule, there are several
modifications.The final amendments to 10 CFR part 51 now contain 92
issues. The reduction of the number of issues from 104 in the proposed
rule to 92 in the final rule is due to (1) the elimination from the
review of the consideration of the need for electric power and
associated generating capacity and of the direct economic benefits and
costs associated with electric power, (2) removing alternatives as an
issue from Table B-1 and addressing review requirements only in the
text of the rule, (3) combining the five severe accident issues used in
the proposed rule into one issue, (4) eliminating several regional
economic issues under socioeconomics that are not directly related to
environmental impacts, (5) making minor changes to the grouping of
issues under aquatic ecology and groundwater, (6) identifying
collective offsite radiological impacts associated with the fuel cycle
and all impacts of high level waste and spent fuel disposal as separate
issues, and (7) adding environmental justice as an issue for
consideration.
Of the 92 issues in the final rule, 68 issues were found to be
adequately addressed in the GEIS, and therefore, additional assessment
will not be required in a plant-specific review. Twenty-four issues
were found to require additional assessment for at least some plants at
the time of the license renewal review. In the final rule, the 2 issues
in the proposed rule that would have required review for all plants are
now included in the set of 24 issues of the final rule.
Public comments on the adequacy of the analysis for each issue were
considered by the NRC staff. Any changes to the analyses and findings
that were determined to be warranted were made in the final GEIS and
incorporated in the rule. Several changes were made to the procedural
features of the proposed rule in response to comments by the Council on
Environmental Quality, the Environmental Protection Agency, and a
number of State agencies. First, the NRC will prepare a supplemental
site-specific environmental impact statement (SEIS), rather than an
environmental assessment (as initially proposed), for each license
renewal application. The SEIS will be issued for public comment as part
of the individual plant review process. The NRC will delay any
conclusions regarding the acceptability of the overall impacts of the
license renewal until completion of the site-specific review. In
addition, the SEIS will be prepared in accordance with existing public
scoping requirements. The NRC will also review and consider any new and
significant information presented during the review of individual
license renewal applications. In addition, any person may challenge the
validity of the conclusions codified in the rule by filing a petition
for rulemaking pursuant to 10 CFR 2.802. Finally, the NRC will review
the rule and the GEIS on a schedule that allows revisions, if required,
every 10 years. This review will be initiated approximately 7 years
after the completion of the previous revision cycle.
In addition to the changes involving public participation, this
final rule also contains several changes regarding the scope of
analysis and conclusions in the rule and GEIS. The conditional cost-
benefit balance has been removed from the GEIS and the rule. In place
of the cost-benefit balancing, the NRC will use a new standard that
will require a determination of whether or not the adverse
environmental impacts of license renewal are so great, compared with
the set of alternatives, that preserving the option of license renewal
for future decisionmakers would be unreasonable. The final amendment
also eliminates NRC's consideration of the need for generating capacity
and the preparation of power demand forecasts for license renewal
applications. The NRC acknowledges the primacy of State regulators and
utility officials in defining energy requirements and determining the
energy mix within their jurisdictions. Therefore, the issue of need for
power and generating capacity will no longer be considered in NRC's
license renewal decisions. The final GEIS has been revised to include
an explicit statement of purpose and need for license renewal
consistent with this acknowledgment. Lastly, the final rule has
eliminated the consideration of utility economics from license renewal
reviews under the National Environmental Policy Act (NEPA) except when
such benefits and costs are either essential for a determination
regarding the inclusion of an alternative
[[Page 28469]]
in the range of alternatives considered or relevant to mitigation.
These and other features of the final rule are explained in detail
below.
The NRC is soliciting public comment on this rule for a period of
30 days. In developing any comment specific attention should be given
to the treatment of low-level waste storage and disposal impacts, the
cumulative radiological effects from the uranium fuel cycle, and the
effects from the disposal of high-level waste and spent fuel. Absent a
determination by the NRC that the rule should be modified, based on
comments received, the final rule shall be effective on August 5, 1996.
II. Rulemaking History
In 1986, the NRC initiated a program to develop license renewal
regulations and associated regulatory guidance in anticipation of
applications for the renewal of nuclear power plant operating licenses.
A solicitation for comments on the development of a policy statement
was published in the Federal Register on November 6, 1986 (51 FR
40334). However, the Commission decided to forgo the development of a
policy statement and to proceed directly to rulemaking. An advance
notice of proposed rulemaking was published on August 29, 1988 (53 FR
32919). Subsequently, the NRC determined that, in addition to the
development of license renewal regulations focused on the protection of
health and safety, an amendment to its environmental protection
regulations in 10 CFR part 51 was warranted.
On October 13, 1989 (54 FR 41980), the NRC published a notice of
its intent to hold a public workshop on license renewal on November 13
and 14, 1989. One of the workshop sessions was devoted to the
environmental issues associated with license renewal and the possible
merit of amending 10 CFR part 51. The workshop is summarized in NUREG/
CP-0108, ``Proceedings of the Public Workshop on Nuclear Power Plant
License Renewal'' (April 1990). Responses to the public comments
submitted after the workshop are summarized in NUREG-1411, ``Response
to Public Comments Resulting from the Public Workshop on Nuclear Power
Plant License Renewal'' (July 1990).
On July 23, 1990, the NRC published an advance notice of proposed
rulemaking (55 FR 29964) and a notice of intent to prepare a generic
environmental impact statement (55 FR 29967). The proposed rule was
published on September 17, 1991 (56 FR 47016). The same Federal
Register notice described the supporting documents that were available
and announced a public workshop to be held on November 4-5, 1991. The
supporting documents for the proposed rule included:
(1) NUREG-1437, ``Draft Generic Environmental Impact Statement for
License Renewal of Nuclear Plants'' (August 1991);
(2) NUREG-1440, ``Regulatory Analysis of Proposed Amendments to
Regulations Concerning the Environmental Review for Renewal of Nuclear
Power Plant Operating Licenses: Draft Report for Comment'' (August
1991);
(3) Draft Regulatory Guide DG-4002, Proposed Supplement 1 to
Regulatory Guide 4.2, ``Guidance for the Preparation of Supplemental
Environmental Reports in Support of an Application To Renew a Nuclear
Power Station Operating License'' (August 1991); and
(4) NUREG-1429, ``Environmental Standard Review Plan for the Review
of License Renewal Applications for Nuclear Power Plants: Draft Report
for Comment'' (August 1991).
After the comment period, the NRC exchanged letters with the
Council on Environmental Quality (CEQ) and the Environmental Protection
Agency (EPA) to address their concerns about procedural aspects of the
proposed rule. The Commission also decided that the staff should
discuss with the States the concerns raised in comments by a number of
States that certain features of the proposed rule conflicted with State
regulatory authority over the need for power and utility economics. To
facilitate these discussions, the NRC staff developed an options paper
entitled ``Addressing the Concerns of States and Others Regarding the
Role of Need for Generating Capacity, Alternative Energy Sources,
Utility Costs, and Cost-Benefit Analysis in NRC Environmental Reviews
for Relicensing Nuclear Power Plants: An NRC Staff Discussion Paper.''
A Federal Register notice published on January 18, 1994 (59 FR 2542)
announced the scheduling of three regional workshops during February
1994 and the availability of the options paper. A fourth public meeting
on the State concerns was held in May 1994 in order for the NRC staff
to better understand written proposals that had been submitted by two
industry organizations after the regional workshops. After considering
the comments from the workshops and the written comments, the NRC staff
issued a proposed supplement to the proposed rule published on July 25,
1994 (59 FR 37724), that it believed would resolve the States' concerns
regarding the Commission's consideration of need for power and utility
economics. Comments were requested on this proposal. The discussion
below contains an analysis of these comments and other comments
submitted in response to the proposed rule.
III. Analysis of Public Comments
The analysis of public comments and the NRC's responses to these
comments are documented in NUREG-1529, ``Public Comments on the
Proposed 10 CFR part 51 Rule for Renewal of Nuclear Power Plant
Operating Licenses and Supporting Documents: Review of Concerns and NRC
Staff Response'' (May 1996). The extent of comments received during the
various stages of the rulemaking process and the principal concerns
raised by the commenters, along with the corresponding NRC responses to
these concerns, are discussed below.
A. Commenters
In response to the Federal Register notice on the proposed rule
published on September 17, 1991 (56 FR 47016), 68 organizations and 49
private citizens submitted written comments. The 68 organizations
included 5 Federal agencies; 26 State, regional, and local agencies; 19
nuclear industry organizations and engineering firms; 3 law firms; and
15 public interest groups. Before the close of the initial comment
period, the NRC conducted a 2-day workshop on November 4-5, 1991, in
Arlington, Virginia, to discuss the proposed rule. Representatives from
Federal agencies, State agencies, utilities, engineering firms, law
firms, and public interest groups attended the workshop. Workshop
panelists included the NRC staff as well as representatives from the
Department of Energy (DOE), Department of Interior (DOI), Environmental
Protection Agency (EPA), Council on Environmental Quality (CEQ),
several State agencies, the nuclear industry, and public interest
groups.
In February 1994, the NRC conducted three public meetings to
solicit views on the NRC staff's options for addressing the need for
generating capacity, alternative energy sources, economic costs, and
cost-benefit analysis in the proposed rule. The intent to hold public
meetings and the availability of the options paper was noticed in the
Federal Register on January 12, 1994 (59 FR 2542). Written comments
were also solicited on the options paper. The public meetings were held
in Rockville, Maryland; Rosemont, Illinois; and Chicopee,
Massachusetts.
[[Page 28470]]
Representatives from several States, the National Association of
Regulatory Utility Commissioners (NARUC), the nuclear industry, and
public interest groups actively participated. Nineteen separate written
comments were also submitted, primarily by the States and the nuclear
industry. In their submittals, the Nuclear Energy Institute (NEI),
formerly known as the Nuclear Management and Resources Council
(NUMARC), and Yankee Atomic Electric Company (YAEC) each proposed an
approach to handling the issues of need for generating capacity and
alternative energy sources in the rule. For the NRC staff to better
understand these proposals, an additional public meeting was held with
NEI and YAEC on May 16, 1994, in Rockville, Maryland.
After considering the public comments on the NRC staff's options
paper, the NRC issued a proposed supplement to the proposed rule; it
was published in the Federal Register on July 25, 1994 (59 FR 37724).
The proposed supplement set forth the NRC staff's approach to the
treatment of need for generating capacity and alternative energy
sources, as well as the staff's revision to the purpose of and need for
the proposed action (i.e., license renewal), which was intended to
satisfy the States' concerns and to meet NEPA requirements. Twenty
separate written comments were received in response to this
solicitation from Federal and State agencies, the nuclear industry, a
public interest group, and two private citizens.
B. Procedural Concerns
The commenters on the proposed rule raised significant concerns
regarding the following procedural aspects of the rule:
(1) State and public participation in the license renewal process
and the periodic assessment of the GEIS findings;
(2) The use of economic costs and cost-benefit balancing; and
(3) Consideration of the need for generating capacity and
alternative energy sources in the environmental review of license
renewal applications.
Each of these concerns and the NRC response is discussed below.
1. Public Participation and the Periodic Assessment of the Rule and the
GEIS
Concern. Many commenters criticized the draft GEIS finding that 80
of 104 environmental issues could be generically applied to all plants
and, therefore, would not be subject to plant-specific review at the
time of license renewal. As a consequence, these commenters believe
they are being denied the opportunity to participate in the license
renewal process. Moreover, they pointed out that the site-specific
nature of many important environmental issues does not justify a
generic finding, particularly when the finding would have been made 20
years in advance of the decision to renew an operating license. The
commenters believe that only a site-specific EIS to support a license
renewal decision would satisfy NEPA requirements.
Federal and State agencies questioned how new scientific
information could be folded into the GEIS findings because the GEIS
would have been performed so far in advance of the actual renewal of an
operating license. There were differing views on exactly how the NRC
should address this question. A group of commenters, including CEQ and
EPA, noted that the rigidity of the proposed rule hampers the NRC's
ability to respond to new information or to different environmental
issues not listed in the proposed rule. They believe that incorporation
of new information can only be achieved through the process of amending
the rules. One commenter recommended that, if the NRC decides to pursue
the approach of making generic findings based on the GEIS, the
frequency of review and update should be specifically stated in the
rule. Recommendations on the frequency of the review ranged from 2
years to 5 years.
Response. In SECY-93-032, February 9, 1993, the NRC staff reported
to the Commission their discussions with CEQ and EPA regarding the
concerns these agencies raised, which were also raised by other
commenters, about limiting public comment and the consideration of
significant new information in individual license renewal environmental
reviews. The focus of the commenters concerns is the limited nature of
the site-specific reviews contemplated under the proposed rule. In
response, the NRC has reviewed the generic conclusions in the draft
rule, expanded the opportunity for site-specific review, and confirmed
that what remains as generic is so. Also, the framework for
consideration of significant new information has been revised and
expanded.
The major changes adopted as a result of these discussions are as
follows:
1. The NRC will prepare a supplemental site-specific EIS, rather
than an environmental assessment (as initially proposed), for each
license renewal application. This SEIS will be a supplement to the
GEIS. Additionally, the NRC will review comments on the draft SEIS and
determine whether such comments introduce new and significant
information not considered in the GEIS analysis. All comments on the
applicability of the analyses of impacts codified in the rule and the
analysis contained in the draft supplemental EIS will be addressed by
NRC in the final supplemental EIS in accordance with 40 CFR 1503.4,
regardless of whether the comment is directed to impacts in Category 1
or 2. Such comments will be addressed in the following manner:
a. NRC's response to a comment regarding the applicability of the
analysis of an impact codified in the rule to the plant in question may
be a statement and explanation of its view that the analysis is
adequate including, if applicable, consideration of the significance of
new information. A commenter dissatisfied with such a response may file
a petition for rulemaking under 10 CFR 2.802. If the commenter is
successful in persuading the Commission that the new information does
indicate that the analysis of an impact codified in the rule is
incorrect in significant respects (either in general or with respect to
the particular plant), a rulemaking proceeding will be initiated.
b. If a commenter provides new information which is relevant to the
plant and is also relevant to other plants (i.e., generic information)
and that information demonstrates that the analysis of an impact
codified in the final rule is incorrect, the NRC staff will seek
Commission approval to either suspend the application of the rule on a
generic basis with respect to the analysis or delay granting the
renewal application (and possibly other renewal applications) until the
analysis in the GEIS is updated and the rule amended. If the rule is
suspended for the analysis, each supplemental EIS would reflect the
corrected analysis until such time as the rule is amended.
c. If a commenter provides new, site-specific information which
demonstrates that the analysis of an impact codified in the rule is
incorrect with respect to the particular plant, the NRC staff will seek
Commission approval to waive the application of the rule with respect
to that analysis in that specific renewal proceeding. The supplemental
EIS would reflect the corrected analysis as appropriate.
2. The final rule and the GEIS will not include conditional cost-
benefit conclusions or conclusions about alternatives. Conclusions
relative to the overall environmental impacts including cumulative
impacts will be left entirely to each site-specific SEIS.
3. After consideration of the changes from the proposed rule to the
final rule and further review of the environmental issues, the NRC has
concluded that it is
[[Page 28471]]
adequate to formally review the rule and the GEIS on a schedule that
allows revisions, if required, every 10 years. The NRC believes that 10
years is a suitable period considering the extent of the review and the
limited environmental impacts observed thus far, and given that the
changes in the environment around nuclear power plants are gradual and
predictable with respect to characteristics important to environmental
impact analyses. This review will be initiated approximately 7 years
after completion of the last cycle. The NRC will conduct this review to
determine what, if anything, in the rule requires revision.
Concern. As part of their comments on the July 1994 Federal
Register notice, NEI, several utilities, and the DOE asked that the NRC
reconsider its understanding with CEQ and EPA regarding the preparation
of a site-specific supplemental EIS for each license renewal action.
These commenters supported an approach that would allow the preparation
of an environmental assessment for reviewing the environmental impacts
of license renewal.
Response. The NRC does not agree with this position. The NRC
believes that it is reasonable to expect that an assessment of the full
set of environmental impacts associated with an additional 20 years of
operation of any plant would not result in a ``finding of no
significant impact.'' Therefore, the review for any plant would involve
an environmental impact statement.
2. Economic Costs and Cost-Benefit Balancing
Concern. State, Federal, and utility representatives expressed
concern about the use of economic costs and cost-benefit balancing in
the proposed rule and the draft GEIS. Commenters criticized the NRC's
heavy emphasis on economic analysis and the use of economic decision
criteria. They argued that the regulatory authority over utility
economics falls within the States' jurisdiction and to some extent
within the jurisdiction of the Federal Energy Regulatory Commission.
Commenters also believe that the cost-benefit balancing used in the
proposed rule and the draft GEIS went beyond NEPA requirements and CEQ
regulations (40 CFR Parts 1500 to 1508). They noted that CEQ
regulations interpret NEPA to require only an assessment of the
cumulative effects of a proposed Federal action on the natural and man-
made environment.
Response. In response to these concerns, the NRC has eliminated the
use of cost-benefit analysis and consideration of utility economics in
its NEPA review of a license renewal application except when such
benefits and costs are either essential for a determination regarding
the inclusion of an alternative in the range of alternatives considered
or relevant to mitigation. As discussed in more detail in the following
section, the NRC recognizes that the determination of the economic
viability of continuing the operation of a nuclear power plant is an
issue that should be left to appropriate State regulatory and utility
officials.
3. Need for Generating Capacity and Alternative Energy Sources
Concern. In their comments on the proposed rule and the draft GEIS,
several States expressed concern that the NRC's analysis of need for
generating capacity would preempt or prejudice State energy planning
decisions. They argued that the determination of need for generating
capacity has always been the States' responsibility. Recommendations on
how to address this issue ranged from withdrawing the proposed rule to
changing the categorization of the issue so that a site-specific review
can be performed, thus allowing for meaningful State and public
participation. Almost all the concerned States called on the NRC to
modify the rule to state explicitly that NRC's analysis does not
preempt a State's jurisdiction over the determination of need for
generating capacity.
Regarding the issue of alternative energy sources, several
commenters contended that the site-specific nature of the alternatives
to license renewal did not justify the generic finding in the GEIS. One
significant concern about this finding is the States' perception that a
generic finding, in effect, preempts the States' responsibility to
decide on the appropriate mix of energy alternatives in their
respective jurisdictions.
Three regional public meetings were held during the February 1994
to discuss the concerns of the States. At these meetings, and later in
written comments, the State of New York proposed an approach to resolve
the problem. The approach was endorsed by several other States. This
approach had three major conditions:
(1) A statement in the rule that the NRC's findings on need and
alternatives are only intended to satisfy the NEPA requirements and do
not preclude the States from making their own determination with
respect to these issues;
(2) The designation of the need for generating capacity and
alternative energy sources as Category 3 (i.e., requiring site-specific
evaluation); and
(3) A requirement that all site-specific EISs and relicensing
decisions reference State determinations of need for generating
capacity and alternative energy sources, and that they defer to those
State determinations to the maximum extent possible.
Response. After consideration, the NRC staff did not accept all
elements of the States' approach because the approach would have
continued to require the NRC to consider the need for generating
capacity and utility economics as part of its environmental analysis.
In addition, the approach would have required the NRC to develop
guidelines for determining the acceptability of State economic
analyses, which some States may have viewed as an intrusion on their
planning process.
The NRC staff developed and recommended another approach, which was
published on July 25, 1994 (59 FR 37724), after consideration of
information gathered at the regional meetings and from the written
comments. This approach, which borrows some elements from NEI and YAEC
proposals, has five major features:
(1) Neither the rule nor the GEIS would contain a consideration of
the need for generating capacity or other issues involving the economic
costs and benefits of license renewal and of the associated
alternatives;
(2) The purpose and need for the proposed action (i.e., license
renewal) would be defined as preserving the continued operation of a
nuclear power plant as a safe option that State regulators and utility
officials may consider in their future planning actions;
(3) The only alternative to the proposed action would be the ``no-
action'' alternative, and the environmental consequences of this
alternative are the impacts of a range of energy sources that might be
used if a nuclear power plant operating license were not renewed;
(4) The environmental review for license renewal would include a
comparison of the environmental impacts of license renewal with impacts
of the range of energy sources that may be chosen in the case of ``no
action''; and
(5) The NRC's NEPA decision standard for license renewal would
require the NRC to determine whether the environmental impacts of
license renewal are so great that preserving the option of license
renewal for future decisionmakers would be unreasonable.
[[Page 28472]]
The statement that the use of economic costs will be eliminated in
this approach refers to the ultimate NEPA decision regarding the
comparison of alternatives and the proposed action. This approach does
not preclude a consideration of economic costs if these costs are
essential to a determination regarding the inclusion of an alternative
in the range of alternatives considered (i.e., an alternative's
exorbitant cost could render it nonviable and unworthy of further
consideration) or relevant to mitigation of environmental impacts.
Also, the two local tax issues and the two economic structure issues
under socioeconomics in the table would be removed from consideration
when applying the decision standard.
Concern. Comments received from several States on the NRC staff's
July 1994 recommended approach ranged from rejection to endorsement.
Some States supported the three conditions proposed by the State of New
York. Several States were still concerned about whether a meaningful
analysis of need for generating capacity and alternative energy sources
could be undertaken 20 years ahead of time. One State asked that the
proposed rule be withdrawn. Another State wanted the proposed rule to
be reissued for public comment. CEQ supported the approach proposed by
the State of New York. CEQ believed that the NRC's recommended approach
was in conflict with the NEPA process because the proposed statement of
purpose and need for the proposed action was too narrow and did not
provide for an appropriate range of alternatives to the underlying need
for the proposed action. CEQ wanted the NRC to address other energy
sources as separate alternatives, rather than as consequences of the
no-action alternative. Moreover, CEQ stated that the proposed decision
standard places a ``weighty and improper burden of proof'' on
consideration of the alternative. The EPA endorsed CEQ's comments. In
general, the nuclear industry was supportive of the recommended
approach. However, NEI and the utilities strongly expressed the opinion
that, with the redefined statement of purpose and need, alternative
energy sources would no longer be alternatives to the proposed action
and, therefore, need not be considered.
Response. After consideration of the comments received on the
Commission's July 1994 proposal, the Commission has modified and
clarified its approach in order to address the concerns of CEQ relative
to consideration of appropriate alternatives and the narrow definition
of purpose and need. These modifications and clarifications addressed
the States' concerns relative to treatment of need for generating
capacity and alternatives. Specifically, the Commission has clarified
the purpose and need for license renewal in the GEIS as follows:
The purpose and need for the proposed action (renewal of an
operating license) is to provide an option that allows for power
generation capability beyond the term of a current nuclear power
plant operating license to meet future system generating needs, as
such needs may be determined by State, utility, and, where
authorized, Federal (other than NRC) decisionmakers.
Using this definition of the purpose of and need for the proposed
action, which stresses options for the generation of power, the
environmental review will include a characterization of alternative
energy sources as being the alternatives to license renewal and not
merely the consequences of the no-action alternative and, thus, it
addresses CEQ's concern that the scope of the alternatives analysis is
unacceptably restricted.
With respect to the States' concerns regarding need for generating
capacity analysis, the NRC will neither perform analyses of the need
for power nor draw any conclusions about the need for generating
capacity in a license renewal review. This definition of purpose and
need reflects the Commission's recognition that, absent findings in the
safety review required by the Atomic Energy Act of 1954, as amended, or
in the NEPA environmental analysis that would lead the NRC to reject a
license renewal application, the NRC has no role in the energy planning
decisions of State regulators and utility officials. From the
perspective of the licensee and the State regulatory authority, the
purpose of renewing an operating license is to maintain the
availability of the nuclear plant to meet system energy requirements
beyond the term of the plant's current license. The underlying need
that will be met by the continued availability of the nuclear plant is
defined by various operational and investment objectives of the
licensee. Each of these objectives may be dictated by State regulatory
requirements or strongly influenced by State energy policy and
programs. In cases of interstate generation or other special
circumstances, Federal agencies such as the Federal Energy Regulatory
Commission (FERC) or the Tennessee Valley Authority (TVA) may be
involved in making these decisions. The objectives of the various
entities involved may include lower energy cost, increased efficiency
of energy production and use, reliability in the generation and
distribution of electric power, improved fuel diversity within the
State, and environmental objectives such as improved air quality and
minimized land use.
The consideration of alternatives has been shifted to the site-
specific review. The rule contains no information or conclusions
regarding the environmental impacts of alternative energy sources, it
only indicates that the environmental impact of alternatives will be
considered during the individual plant review. However, the GEIS
contains a discussion of the environmental impacts of alternative
energy sources based on currently available information. The
information in the GEIS is available for use by the NRC and the
licensee in performing the site-specific analysis of alternatives and
will be updated as appropriate. For individual plant reviews,
information codified in the rule, information developed in the GEIS,
and any significant new information introduced during the plant-
specific review, including any information received from the State,
will be considered in reaching conclusions in the supplemental EIS. The
NRC's site-specific comparison of the impacts of license renewal with
impacts of alternative energy sources will involve consideration of
information provided by State agencies and other members of the public.
This approach should satisfy the States' concerns relative to a
meaningful analysis of alternative energy sources.
The Commission disagrees with CEQ's assertion that the new decision
standard is inappropriate. Under this decision standard, the NRC must
determine if the adverse environmental impacts of license renewal are
so great that preserving the option of license renewal for energy
planning decisionmakers would be unreasonable. The Commission expects
that license renewal would be denied only if the expected environmental
effects of license renewal significantly exceed all or almost all
alternatives. The Commission believes that this is a reasonable
approach to addressing the issue of environmental impacts of license
renewal, given NRC's limited role in the area of energy systems
planning. The operation of a nuclear power plant beyond its initial
license term involves separate regulatory actions, one taken by the
utility and the NRC, and the other taken by the utility and the State
regulatory authorities. The decision standard would be used by NRC to
determine whether, from an environmental perspective, it is
[[Page 28473]]
reasonable to renew the operating license and allow State and utility
decisionmakers the option of considering a currently operating nuclear
power plant as an alternative for meeting future energy needs. The test
of reasonableness focuses on an analysis of whether the environmental
impacts anticipated for continued operation during the term of the
renewed license reasonably compare with the impacts that are expected
from the set of alternatives considered for meeting generating
requirements. The NRC would reject a license renewal application if the
analysis demonstrated that the adverse environmental impacts of the
individual license renewal were so great that preserving the option of
license renewal for energy planning decisionmakers would be
unreasonable.
After the NRC makes its decision based on the safety and
environmental considerations, the final decision on whether or not to
continue operating the nuclear plant will be made by the utility,
State, and Federal (non-NRC) decisionmakers. This final decision will
be based on economics, energy reliability goals, and other objectives
over which the other entities may have jurisdiction. The NRC has no
authority or regulatory control over the ultimate selection of future
energy alternatives. Likewise, the NRC has no regulatory power to
ensure that environmentally superior energy alternatives are used in
the future. Given the absence of the NRC's authority in the general
area of energy planning, the NRC's rejection of a license renewal
application based on the existence of a single superior alternative
does not guarantee that such an alternative will be used. In fact, it
is conceivable that the rejection of a license renewal application by
the NRC in favor of an individual alternative may lead to the
implementation of another alternative that has even greater
environmental impacts than the proposed action, license renewal.
Given the uncertainties involved and the lack of control that the
NRC has in the choice of energy alternatives in the future, the
Commission believes that it is reasonable to exercise its NEPA
authority to reject license renewal applications only when it has
determined that the impacts of license renewal sufficiently exceed the
impacts of all or almost all of the alternatives that preserving the
option of license renewal for future decision makers would be
unreasonable. Because the objectives of the utility and State
decisionmakers will ultimately be the determining factors in whether a
nuclear power plant will continue to operate, NRC's proposed decision
standard is appropriate. The decision standard will not affect the
scope or rigor of NRC's analyses, including the consideration of the
environmental impacts relevant to the license renewal decision and
associated alternatives. The NRC staff believes that, under the
circumstances, the decision standard does not place ``a weighty and
improper burden of proof'' on other alternatives as CEQ claims.
With respect to the industry's desire to eliminate consideration of
alternative energy sources, the Commission does not agree. The
Commission does not support the views of NEI and others that
alternative energy sources need not be considered in the environmental
review for license renewal. The Commission is not prepared to state
that no nuclear power plant will fall well outside the range of other
reasonably available alternatives far in advance of an actual
relicensing decision. Following NEI's suggestion would not lead to a
meaningful set of alternatives with which to compare a proposed action.
The Commission has always held the view that alternative sources of
energy should be compared with license renewal and continued operation
of a nuclear power plant.
Lastly, the Commission does not believe it is necessary to reissue
this rule for public comment as a State commenter requested. The
Commission has taken many measures to involve the public concerning the
resolution of public comments on the proposed rule. The Commission has
conducted a number of public meetings and published for public comment
its recommended procedural revisions to the proposed rule. The
Commission believes that modifications made to the proposed rule
reflect the logical outgrowth of the proposed rule based on the public
comments received by the Commission.
C. Technical Concerns
1. Category and Impact Magnitude Definitions
Concerns. Many commenters expressed concern that the category
definitions and the impact-significance definitions were ambiguous and
appeared somewhat interconnected. The EPA expressed concern that
mitigation of adverse impacts was not addressed adequately.
Commenters expressed a number of concerns about the use of the
applicability categories and the magnitude-level categories. With
respect to the applicability categories, concerns ranged from a general
concern that Category 1 precludes or hinders public involvement in an
issue at the time of the plant-specific review to specific concerns
about the technical adequacy of the analysis supporting a Category 1
finding for an issue. Several commenters believed that the definitions
create confusion, especially as to whether the finding of small impact
and Category 1 are interdependent. The GEIS appears to use Category 1
and ``small'' interchangeably. Concern was also expressed that the
requirement to consider mitigative actions was inadequately addressed
in the draft GEIS and proposed rule.
Response. To reduce potential confusion over the definitions, the
use of the categories, and the treatment of mitigation within the
context of the categorization scheme, the NRC has revised the
definitions to eliminate any ambiguity as to how they are used.
Further, the GEIS has been modified to clearly state the reasons behind
the category and magnitude findings.
In order to facilitate understanding of the modifications to the
GEIS, the previous approach is discussed as follows. In the proposed
rule and the draft GEIS, findings about the environmental impact
associated with each issue were divided into three categories of
applicability to individual plant reviews. These categories were:
Category 1: A generic conclusion on the impact has been
reached for all affected nuclear power plants.
Category 2: A generic conclusion on the impact has been
reached for affected nuclear power plants that fall within defined
bounds.
Category 3: A generic conclusion on the impact was not
reached for any affected nuclear power plants.
The significance of the magnitude of the impact for each issue was
expressed as one of the three following levels.
Small impacts are so minor that they warrant neither
detailed investigation nor consideration of mitigative actions when
such impacts are negative.
Moderate impacts are likely to be clearly evident and
usually warrant consideration of mitigation alternatives when such
impacts are negative.
Large impacts involve either a severe penalty or a major
benefit, and mitigation alternatives are always considered when such
impacts are negative.
With respect to the categories of applicability, under the proposed
rule applicants would have:
(1) Not provided additional analyses of Category 1 issues;
(2) Not provided additional analyses if their plant falls within
the bounds
[[Page 28474]]
defined in the rule for a Category 2 issue;
(3) Provided additional plant-specific analyses if their plant does
not fall within the bounds defined in the rule for a Category 2 issue;
and
(4) Provided plant-specific analyses of Category 3 issues.
In order to address the comments on these magnitude and category
definitions, the GEIS has been modified to clearly state the reasons
behind the category and magnitude findings.
The revised definitions are listed below.
Category 1: For the issue, the analysis reported in the
Generic Environmental Impact Statement has shown:
(1) The environmental impacts associated with the issue have been
determined to apply either to all plants or, for some issues, to plants
having a specific type of cooling system or other specified plant or
site characteristic;
(2) A single significance level (i.e., small, moderate, or large)
has been assigned to the impacts (except for collective off site
radiological impacts from the fuel cycle and from high level waste and
spent fuel disposal); and
(3) Mitigation of adverse impacts associated with the issue has
been considered in the analysis and it has been determined that
additional plant-specific mitigation measures are likely not to be
sufficiently beneficial to warrant implementation.
The generic analysis of the issue may be adopted in each plant-
specific review. Issues for which the impact was found to be favorable
were also defined to be Category 1 issues.
Category 2: For the issue, the analysis reported in the
GEIS has shown that one or more of the criteria of Category 1 cannot be
met and, therefore, additional plant-specific review is required.
If, for an environmental issue, the three Category 1 criteria apply
to all plants, that issue is Category 1 and the generic analysis should
be used in a license renewal review for all plant applications. If the
three Category 1 criteria apply to a subset of plants that are readily
defined by a common plant characteristic, notably the type of cooling
system, the population of plants is partitioned into the set of plants
with the characteristic and the set without the characteristic. For the
set of plants with the characteristic, the issue is Category 1 and the
generic analysis should be used in the license renewal review for those
plants. For the set of plants without the characteristic, the issue is
Category 2 and a site-specific analysis for that issue will be
performed as part of the license renewal review. The review of a
Category 2 issue may focus on the particular aspect of the issue that
causes the Category 1 criteria not to be met. For example, severe
accident mitigation under the issue ``severe accidents'' is the focus
for a plant-specific review because the other aspects of the issue,
specifically the offsite consequences, have been adequately addressed
in the GEIS. With the revised definitions, the two issues previously
designated as Category 3 are now designated Category 2. For an issue to
be a Category 1, current mitigation practices and the nature of the
impact were considered and a determination was made that it is unlikely
that additional measures will be sufficiently beneficial. In the GEIS,
in discussing the impacts for each issue, consideration was given to
what is known about current mitigation practices.
The definitions of the significance level of an environmental
impact have been revised to make the consideration of the potential for
mitigating an impact separate from the analysis leading to a conclusion
about the significance level of the impact. Further, the significance
level of an impact is now more clearly tied to sustaining specific
attributes of the affected resource that are important to its
viability, health or usefulness. General definitions of small, moderate
and large significance levels are given below. These definitions are
adapted to accommodate the resource attributes of importance for each
of the environmental issues in the GEIS. The definition of ``small''
clarifies the meaning of the term as it applies to radiological
impacts. The definition of ``small'' in the proposed rule did not
logically apply to such impacts.
The general definitions of significance level are:
Small: For the issue, environmental effects are not
detectable or are so minor that they will neither destabilize nor
noticeably alter any important attribute of the resource. For the
purposes of assessing radiological impacts, the Commission has
concluded that those impacts that do not exceed permissible levels in
the Commission's regulations are considered small.
Moderate: For the issue, environmental effects are
sufficient to alter noticeably but not to destabilize important
attributes of the resource.
Large: For the issue, environmental effects are clearly
noticeable and are sufficient to destabilize important attributes of
the resource.
The discussion of each environmental issue in the GEIS includes an
explanation of how the significance category was determined. For issues
in which probability of occurrence is a key consideration (i.e.,
accident consequences), the probability of occurrence has been factored
into the determination of significance. The determination of the
significance category was made independently of the consideration of
the potential benefit of additional mitigation.
The major concerns (organized by topical areas) about the
environmental issues examined in the draft GEIS and the NRC staff's
response to those concerns are summarized next.
2. Surface Water Quality
Concern. Several commenters expressed concerns related to the
National Pollutant Discharge Elimination System (NPDES) permitting
process for surface water discharge. They believe that the NRC may have
overlooked its legal obligation to comply with Section 401 of the Clean
Water Act (CWA). Their recommendations included withholding approval
for license renewal until a facility has complied with Section 401 and
treating license renewal as an opportunity for a new NEPA review. On
the other hand, other commenters recommended decoupling the NRC
relicensing process from the NPDES permitting process.
Response. In issuing individual license renewals, the Commission
will comply, as has been its practice, with the provisions of Section
401 of the Federal Water Pollution Control Act (see 10 CFR 51.45(d) and
51.71(c)). In addition, pursuant to Section 511(c) of the Federal Water
Pollution Control Act of 1972, the Commission cannot question or
reexamine the effluent limitations or other requirements in permits
issued by the relevant permitting authorities. Nevertheless, compliance
with the environmental quality standards and requirements of these
permits does not negate the requirement for the Commission to consider
all environmental effects of the proposed action. Accordingly, the
Commission has not only taken existing permits into account in its
analysis of the water quality impacts of license renewal but has also
considered information on actual operating impacts collected from
individual plants, State and Federal regulatory agencies, and published
literature. As a result of this analysis, the Commission has concluded
that the environmental impacts on surface water quality are small for
those effluents subject to existing permit or certification
requirements. A total decoupling of the license renewal process and the
NPDES permitting process is not appropriate because, for
[[Page 28475]]
issues with incomplete Clean Water Act determinations, the NRC cannot
complete its weighing and balancing of impacts without independently
addressing the issues.
Concern. Several commenters raised concerns that various issues
within the Surface Water Quality topic should be Category 2 or 3
issues. These included water use conflicts as experienced in Arizona
and the Midwest, thermal stratification and salinity gradients
associated with once-through cooling systems, and the toxicity of
biofouling compounds.
Response. Regarding the water use conflicts, the NRC has considered
the impacts of water use during the renewal period and has concluded
that these impacts are small for plants with a once-through cooling
system and that this is a Category 1 issue for those plants. However,
this issue is designated Category 2 for plants with cooling towers and
cooling ponds because, for those plants, the impacts might be moderate
(they could also be small). In either case, pursuant to 10 CFR
51.45(d), an applicant for license renewal must identify and indicate
in its environmental report the status of State and local approvals
regarding water use issues. For those reactor sites where thermal
stratification or salinity gradient was found to be the most
pronounced, the issues were reviewed during preparation of the GEIS and
found to be acceptable by the States within the NPDES process. No
change in the categorization in the GEIS would be required. Similarly,
the NPDES permit for a facility establishes allowable discharges,
including biocides. The NRC has no indication that residual
environmental impacts would occur as a result of license renewal
activities at any nuclear plant site other than perhaps water use
conflicts arising at plants with cooling ponds or cooling towers using
make-up water from a small river with low flow. For those plants, this
issue is Category 2.
3. Aquatic Ecology
Concern. A number of comments regarding the ecological impact of
cooling water withdrawal from aquatic bodies were received. Specific
concerns included fish kills associated with the entrainment and
impingement of fish within once-through and cooling pond cooling
systems, the use of chlorine and molluscicides to control mussel and
clam growth, and the long-term effects of heavy metal discharges from
plants with copper-nickel condenser tubes. Another commenter noted that
license extension affords the opportunity to review the intake and
discharge configuration of plant cooling water systems, since the best
available technology that is economically available may be different
given the additional 20 years of plant operating life.
Response. The Commission has considered the impacts of license
renewal on aquatic ecology and, in doing so, has reviewed existing
NPDES permits and other information. Based on this analysis, the
Commission has concluded that these impacts are small with the
exception that plants with once-through cooling and cooling ponds may
have larger effects associated with entrainment of fish and shellfish
in early life stages, impingement, and heat shock. Agencies responsible
for existing permits are not constrained from reexamining the permit
issues if they have reason to believe that the basis for their issuance
is no longer valid. The Commission does not have authority under NEPA
to impose an effluent limitation other than those established in
permits issued pursuant to the Clean Water Act. The problem of the
long-term effects of heavy metal discharges from plants with copper-
nickel condenser tubes has been found at only one plant. The affected
condenser tubes have been replaced with tubing of a more corrosion-
resistant material.
Concern. A commenter pointed out that the issue of riparian zones
should be addressed in the GEIS because the vegetation region along a
water course can be affected by water withdrawal and is important in
maintaining the habitat.
Response. The NRC agrees with the importance of addressing the
impacts of license renewal on the riparian habitat. The final GEIS
provides a discussion of the riparian habitat as an important resource
and the potential effects of consumptive water use on riparian zones.
4. Groundwater Use and Quality
Concern. Several commenters indicated that groundwater issues
should be reviewed on a site-specific basis because of groundwater use
conflicts (in particular, the effect on aquifer recharge of using
surface water for cooling water), opportunities for saltwater
intrusion, and concerns over tritium found in wells at one site. On the
other hand, a commenter requested that the issue of groundwater use for
cooling tower makeup water be changed from Category 2 to Category 1
because the issue is based solely on data from Ranney wells at the
Grand Gulf Nuclear Station, where tests have shown that the elevation
of the water plain around Grand Gulf is not dropping.
Response. Based on consideration of comments, the issue of
groundwater use conflicts resulting from surface water withdrawals for
cooling tower makeup water or cooling ponds is now Category 2 for
plants withdrawing surface water from small water bodies during low
flow conditions. The GEIS has identified a potential reduction in
aquifer recharge as a result of competing water use. These conflicts
are already a concern at two closed-cycle nuclear power plants. The NRC
does not agree that saltwater intrusion should be considered a Category
2 issue. When saltwater intrusion has been a problem, the major cause
has been the large consumption of groundwater by agricultural and
municipal users. Groundwater consumption by nuclear power plants is
small by comparison and does not contribute significantly to the
saltwater intrusion problem. With regard to traces of tritium found in
the groundwater at one nuclear power plant, the tritium was attributed
to a modification in the plant's inlet and discharge canal that did not
take into consideration a unique situation in topology and groundwater
flow. The releases were minor and the situation has been corrected.
Regarding the issue of the use of groundwater for cooling water
makeup, the NRC has designated this issue as Category 2 even though
only the Grand Gulf Nuclear Station is currently using Ranney wells to
withdraw groundwater. This water intake does not conflict with other
groundwater uses in the area. It is not possible to predict whether or
not water use conflicts will occur at the Grand Gulf facility in the
future. It is also not possible to determine the significance of the
environmental impacts associated with Ranney well use at other nuclear
plants that may choose to adopt this method in the future.
5. Terrestrial Ecology
Concern. Several commenters recommended that the issue of bird
mortality resulting from collisions with transmission lines, towers, or
cooling towers be characterized as a Category 2 issue. Such a
characterization would provide for a review of mitigation at those
plants with cooling towers that do not have illumination and for power
plant transmission lines that transect major flyways or that cross
wetlands used by large concentrations of birds.
Response. The NRC does not agree with this recommendation. The GEIS
cites several studies that conclude that bird mortalities resulting
from collision with transmission lines, towers, or cooling towers are
not significantly
[[Page 28476]]
reducing bird populations. Mitigation measures in place, such as safety
lights, were found adequate and additional measures were not warranted.
Therefore, the issue remains a Category 1 issue because refurbishment
will not involve construction of any additional transmission lines or
natural draft cooling towers.
Concern. One commenter expressed concern that the GEIS analysis of
land use did not adequately encompass the impact of onsite spent fuel
storage on land use and that the Category 1 finding is questionable. A
specific concern was the potential need for the construction of
additional spent fuel storage facilities associated with the license
renewal term, along with their associated impacts on the terrestrial
environment.
Response. The NRC does not agree that there is a need to change the
Category 1 determination for onsite land use. Waste management
operations could require the construction of additional storage
facilities and thus adversely affect land use and terrestrial ecology.
However, experience has shown that the land requirements would be
relatively small (less than 9 acres), impacts to land use and
terrestrial ecology would also be relatively small, and the land that
may be used is already possessed by the applicant; thus, its basic use
would not be altered. Onsite land use is Category 1. Terrestrial
ecology with disturbance of sensitive habitat is treated as a separate
issue and is Category 2.
6. Human Health
Concern. In the human health section of the GEIS, the radiological
impacts of plant refurbishment and continued operations during the
license renewal term to workers and the general public were examined.
Several commenters indicated that it was inappropriate to compare the
radiation exposures associated with license renewal to natural
background levels. These commenters believed that the appropriate
argument should be that the risks associated with the additional
exposures are so small that no additional mitigative measures are
required.
Response. The NRC agrees that the assessment of radiation exposure
should not be simply a comparison with background radiation. In
response to comments on the draft generic environmental impact
statement and the proposed rule, the standard defining a small
radiological impact has changed from a comparison with background
radiation to sustained compliance with the dose and release limits
applicable to the various stages of the fuel cycle. This change is
appropriate and strengthens the criterion used to define a small
environmental impact for the reasons that follow. The Atomic Energy Act
requires the Nuclear Regulatory Commission to promulgate, inspect and
enforce standards that provide an adequate level of protection of the
public health and safety and the environment. The implementation of
these regulatory programs provides a margin of safety. A review of the
regulatory requirements and the performance of facilities provides the
bases to project continuation of performance within regulatory
standards. For the purposes of assessing radiological impacts, the
Commission has concluded that impacts are of small significance if
doses to individuals and releases do not exceed the permissible levels
in the Commission's regulations.
With respect to whether additional mitigative measures are
required, it should be noted that in 10 CFR parts 20 and 50 there are
provisions that radiological impacts associated with plant operation be
reduced to levels as low as reasonably achievable (ALARA).
Concern. Several commenters indicated that the GEIS needs a broader
treatment of uncertainty as it relates to human health issues.
Response. The NRC agrees that there is considerable uncertainty
associated with health effects, especially at low occupational and
public dose levels, and particularly with respect to electromagnetic
fields. Health effect estimates from radiation exposures are based on
the best scientific evidence available and are considered to be
conservative estimates. Several sections of the GEIS have been expanded
to more thoroughly explain how predicted impacts could be affected by
changes in scientific information or standards.
Concern. One commenter indicated that, in the GEIS and the proposed
rule, risk coefficients should have been used for chemicals and
radiation to obtain upper bound risk estimates of cancer incidence.
Response. The NRC does not agree with this comment. In making
comparisons of alternatives, comparisons of the central or best
estimates of impacts are consistent with NEPA requirements because they
provide the fairest determination. The GEIS is written using current,
Commission-approved risk estimators.
Concern. Two commenters expressed concern regarding the GEIS
conclusion that the impact of radiation exposure to the public is
small, citing a study done by the Massachusetts Department of Public
Health (MDPH). This study concluded that adults who live within 10
miles of the Pilgrim Nuclear Power Plant have a risk of contracting
leukemia four times greater than other individuals.
Response. The NRC staff reviewed the MDHP study and compared it
with various other studies. The results of the study have been
contradicted by a National Cancer Institute (NCI) study entitled
``Cancer in Populations Living Near Nuclear Facilities'' (July 1990).
The NCI study, which included the Pilgrim plant in its analysis, found
no reason to suggest that nuclear facilities may be linked causally
with excess deaths from leukemia or from other cancers. The findings of
the NCI study are consistent with the findings of several similar
epidemiological studies in foreign countries and with the latest
conclusions of expert bodies such as the National Research Council's
Committee on the Biological Effects of Ionizing Radiation. The NRC
continues to base its assessment of the health effects of ionizing
radiation on the overall body of scientific knowledge and on the
recommendations of expert groups.
7. Socioeconomics
Concern. A commenter concerned with historic preservation pointed
out that this issue must be addressed through compliance with the
National Historic Preservation Act (NHPA) and cannot be resolved
generically.
Response. The NRC agrees with this comment. Historical and
archaeological impacts have been changed from a Category 1 to a
Category 2 issue (that is, it must be evaluated site-specifically).
Consultation with State historical preservation offices and other
Government agencies, as required by NHPA, must be undertaken to
determine whether protected historical or archaeological resources are
in areas that might be disturbed during refurbishment activities and
operation during the renewal period.
Concern. Several commenters indicated that transportation issues
associated with refurbishment activities should be changed from
Category 3 to Category 2 because the impacts will be insignificant in
the majority of cases. One recommendation was to use a level of service
(LOS) determination for specific plants as the bounding criterion. The
analysis would require that LOS be determined for that part of the
refurbishment period during which traffic not related to the plant is
expected to be the heaviest. Another recommendation was to establish
bounding criteria based on past major routine outages.
Response. The NRC agrees that use of the LOS approach may prove to
be
[[Page 28477]]
acceptable. Transportation still must be reviewed on a plant-specific
basis, that is, it is a Category 2 issue (based on the revised
definition).
Concern. There were recommendations to make the housing impacts
during refurbishment a Category 1 issue instead of Category 2. One
commenter noted that the construction period data used in the analysis
appears to overestimate the impact on housing.
Response. The NRC does not agree that this should be a Category 1
issue. Although negligible housing impacts are anticipated for most
license renewals, significant housing impacts have occurred dur
FR Doc. 96-13874 Environmental Review for Renewal of Nuclear Power Plant Operating Licenses
ing a
periodic plant outage at one of the case plants studied for the
analysis. This issue is now a Category 2 issue because moderate and
large impacts on housing are possible depending on local conditions
(e.g., areas with extremely slow population growth or areas with growth
control measures that limit housing development).
8. The Uranium Fuel Cycle and Solid Waste Management
Concern. Wide-ranging concerns were expressed in the comments on
the proposed rule and the draft GEIS about the treatment of storage and
disposal of low-level waste (LLW), mixed waste, spent fuel,
nonradiological waste, and the transportation of fuel and waste to and
from nuclear power plants as a consequence of license renewal. Concern
was expressed about the uncertain availability of disposal facilities
for LLW, mixed waste, and spent fuel; the prospect of generation and
onsite storage of an additional 20 years output of waste; and the
resulting pressure that would be put on the States to provide LLW
disposal facilities. Various commenters expressed concern about the
adequacy of the treatment of the cost of waste management and the
implications for the economic viability of license renewal. Numerous
comments were provided on updating and clarifying data on waste
management presented in the draft GEIS. Finally, various questions were
raised about the applicability of Table S-3 (10 CFR 51.51 Uranium fuel
cycle environmental data--Table S-3, Table of Uranium Fuel Cycle
Environmental Data) to the management of waste generated as a result of
license renewal.
With regard to spent fuel, several commenters expressed concern
that dry cask storage is not a proven technology and that onsite
storage of spent fuel from an additional 20 years of plant operation
will present environmental and safety problems. Therefore, onsite
storage of spent fuel should be considered on a site-specific basis
within a plant license renewal review.
Response. The Commission acknowledges that there is uncertainty in
the schedule of availability of disposal facilities for LLW, mixed
waste, and spent fuel. However, the Commission believes that there is
sufficient understanding of and experience with the storage of LLW,
mixed waste, and spent fuel to conclude that the waste generated at any
plant as a result of license renewal can be stored safely and without
significant environmental impacts before permanent disposal. In
addition, the Commission concluded that the classification of storage
and ultimate disposal as a Category 1 issue is appropriate because
States are proceeding, albeit slowly, with the development of new
disposal facilities; LLW and mixed waste have been and can be safely
stored at reactor sites until new disposal capacity becomes available.
Analyses to support this conclusion are presented in Chapter 6 of the
final GEIS (NUREG-1437). The following summary of the responses to
comments emphasizes the main features of these analyses.
In the draft GEIS, the environmental data in Table S-3 were
discussed with respect to applicability during the license renewal
period and supplemented with an analysis of the radiological release
and dose commitment data for radon-222 and technetium-99. The proposed
rule would have had this discussion apply to each plant at the time of
its review for license renewal.
Further, in the draft GEIS, Chapter 6, ``Solid Waste Management,''
covered the generation of LLW, mixed waste, spent fuel, and
nonradiological waste as a result of license renewal; the
transportation of the radiological waste; and the environmental impacts
of waste management, including storage and disposal. The findings that
were to have been codified in the rule were that, for nonradiological
waste, mixed waste, spent fuel, and transportation, the environmental
impacts are of small significance and that the analysis in the GEIS
applies to each plant (Category 1). For LLW, the finding that would
have been codified in the rule was that, if an applicant does not have
access to a low-level radioactive waste disposal facility through a
low-level waste compact or an unaffiliated State, the applicant must
present plans for interim waste storage with an assessment of potential
ecological habitat destruction caused by construction activities
(Category 2).
In response to the questions about the applicability of Table S-3
to the management of waste associated with license renewal and to the
various comments challenging the treatment of the several forms of
waste in the draft GEIS and in the proposed rule, the discussion of
Table S-3 has been moved from Section 4.8 of the draft GEIS to Chapter
6 of the final GEIS in order to provide a more integrated assessment of
the environmental impacts associated with waste management as a
consequence of license renewal. Also in response to various comments,
the discussion of Table S-3 and of each of the types of waste has been
expanded.
Supplemental data are presented in Chapter 6 of the final GEIS in
order to extend the coverage of the environmental impacts of the
uranium fuel cycle presented in the current Table S-3 and of
transportation of radioactive waste presented in the current Table S-4
to radon-222, technetium-99, higher fuel enrichment, and higher fuel
burnup. In part, the current Table S-3 and the data supplementing it
cover environmental impacts of:
(1) Onsite storage of spent fuel assemblies in pools for 10 years,
packaging and transportation to a Federal repository, and permanent
disposal; and
(2) Short-term storage onsite of LLW, packaging and transportation
to a land-burial facility, and permanent disposal.
The following conclusions have been drawn with regard to the
environmental impacts associated with the uranium fuel cycle.
The radiological and nonradiological environmental impacts of the
uranium fuel cycle have been reviewed. The review included a discussion
of the values presented in Table S-3, an assessment of the release and
impact of \222\Rn and of \99\Tc, and a review of the regulatory
standards and experience of fuel cycle facilities. For the purpose of
assessing the radiological impacts of license renewal the Commission
uses the standard that the impacts are of small significance if doses
and releases do not exceed permissible levels in the Commission's
regulations. Given the available information regarding the compliance
of fuel cycle facilities with applicable regulatory requirements, the
Commission has concluded that, other than for the disposal of spent
fuel and high-level waste, these impacts on individuals from
radioactive gaseous and liquid releases will remain at or below the
Commission's regulatory limits. Accordingly, the Commission concludes
that offsite radiological impacts of the fuel cycle (individual effects
from other than the disposal of
[[Page 28478]]
spent fuel and high-level waste) are small. ALARA efforts will continue
to apply to fuel cycle activities. This is a Category 1 issue.
The radiological impacts of the uranium fuel cycle on human
populations over time (collective effects) have been considered within
the framework of Table S-3. The 100 year environmental dose commitment
to the U.S. population from the fuel cycle, high level waste and spent
fuel disposal excepted, is calculated to be about 14,800 man-rem, or 12
cancer fatalities, for each additional 20 year power reactor operating
term. Much of this, especially the contribution of radon releases from
mines and tailing piles, consists of tiny doses summed over large
populations. This same dose calculation can theoretically be extended
to include many tiny doses over additional thousands of years as well
as doses outside the U.S. The result of such a calculation would be
thousands of cancer fatalities from the fuel cycle, but this result
assumes that even tiny doses have some statistical adverse health
effect which will not ever be mitigated (for example no cancer cure in
the next thousand years), and that these dose projections over
thousands of years are meaningful. However these assumptions are
questionable. In particular, science cannot rule out the possibility
that there will be no cancer fatalities from these tiny doses. For
perspective, the doses are very small fractions of regulatory limits,
and even smaller fractions of natural background exposure to the same
populations. No standards exist that can be used to reach a conclusion
as to the significance of the magnitude of the collective radiological
effects. Nevertheless, some judgement as to the regulatory NEPA
implication of this issue should be made and it makes no sense to
repeat the same judgement in every case. The Commission concludes that
these impacts are acceptable in that these impacts would not be
sufficiently large to require the NEPA conclusion, for any plant, that
the option of extended operation under 10 CFR part 54 should be
eliminated. Accordingly, while the Commission has not assigned a single
level of significance for the collective effects of the fuel cycle,
this issue is considered Category 1. For other Category 1 issues, the
impacts will be considered at the individual renewal stage as a means
of judging the total impact of an individual license renewal decision.
However, the Commission has already judged the impact of collective
effects of the fuel cycle as part of this rule.
There are no current regulatory limits for off-site releases of
radionuclides for the current candidate repository site. However if we
assume that limits are developed along the lines of the 1995 National
Academy of Sciences (NAS) report, and that in accordance with the
Commission's Waste Confidence Decision, a repository can and likely
will be developed at some site which will comply with such limits, peak
doses to virtually all individuals will be 100 millirem per year or
less. However, while the Commission has reasonable confidence that
these assumptions will prove correct there is considerable uncertainty
since the limits are yet to be developed, no repository application has
been completed or reviewed, and uncertainty is inherent in the models
used to evaluate possible pathways to the human environment. The
National Academy report indicated that 100 millirem per year should be
considered as a starting point for limits for individual doses, but
notes that some measure of consensus exists among national and
international bodies that the limits should be a fraction of the 100
millirem per year. The lifetime individual risk from 100 millirem per
year dose limit is about 3 x 10-3. Doses to populations from
disposal cannot now (or possibly ever) be estimated without very great
uncertainty. Estimating cumulative doses to populations over thousands
of years is more problematic. The likelihood and consequences of events
that could seriously compromise the integrity of a deep geologic
repository were evaluated by the Department of Energy in the ``Final
Environmental Impact Statement: Management of Commercially Generated
Radioactive Waste,'' October 1980. The evaluation estimated the 70-year
whole-body dose commitment to the maximum individual and to the
regional population resulting from several modes of breaching a
reference repository in the year of closure, after 1,000 years, after
100,000 years, and after 100,000,000 years. The release scenarios
covered a wide range of consequences from the limited consequences of
humans accidentally drilling into a waste package in the repository to
the catastrophic release of the repository inventory by a direct meteor
strike. Subsequently, the NRC and other Federal agencies have expended
considerable effort to develop models for the design and for the
licensing of a high level waste repository, especially for the
candidate repository at Yucca Mountain. More meaningful estimates of
doses to population may be possible in the future as more is understood
about the performance of the proposed Yucca Mountain repository. Such
estimates would involve very great uncertainty, especially with respect
to cumulative population doses over thousands of years. The standard
proposed by the NAS is a limit on maximum individual dose. The
relationship of potential new regulatory requirements, based on the NAS
report, and cumulative population impacts has not been determined,
although the report articulates the view that protection of individuals
will adequately protect the population for a repository at Yucca
Mountain. However, EPA's generic repository standards in 40 CFR part
191 generally provide an indication of the order of magnitude of
cumulative risk to population that could result from the licensing of a
Yucca Mountain repository, assuming the ultimate standards will be
within the range of standards now under consideration. The standard in
40 CFR part 191 protects the population by imposing ``containment
requirements'' that limit the cumulative amount of radioactive material
released over 10,000 years. The cumulative release limits are based on
EPA's population impact goal of 1,000 premature cancer deaths world-
wide for a 100,000 metric tonne (MTHM) repository.
Nevertheless, despite all the uncertainty surrounding the effects
of the disposal of spent fuel and high-level waste, some judgement as
to the regulatory NEPA implications of these matters should be made and
it makes no sense to repeat the same judgement in every case. Even
taking the uncertainties into account, the Commission concludes that
these impacts are acceptable in that these impacts would not be
sufficiently large to require the NEPA conclusion, for any plant, that
the option of extended operation under 10 CFR part 54 should be
eliminated. Accordingly, while the Commission has not assigned a single
level of significance for the impacts of spent fuel and high-level
waste disposal, this issue is considered Category 1. Excepting the
collective effects previously discussed, for other Category 1 issues,
the impacts will be considered at the individual renewal stage as a
means of judging the total impact of an individual license renewal
decision. However, the Commission has already judged the impacts of
high level waste disposal as part of this rule.
With respect to the nonradiological impact of the uranium fuel
cycle, data concerning land requirements, water requirements, the use
of fossil fuel, gaseous effluent, liquid effluent, and tailings
solutions and solids, all listed in Table S-3, have been reviewed to
[[Page 28479]]
determine the significance of the environmental impacts of a power
reactor operating an additional 20 years. The nonradiological impacts
attributable to the relicensing of an individual power reactor are
found to be of small significance. License renewal of an individual
plant is so indirectly connected to the operation of fuel cycle
facilities that it is meaningless to address the mitigation of impacts
identified above. This is a Category 1 issue.
Table S-3 does not take into account long-term onsite storage of
LLW, mixed waste, and storage of spent fuel assemblies onsite for
longer than 10 years, nor does it take into account impacts from mixed
waste disposal. The environmental impacts of these aspects of onsite
storage are also addressed in Chapter 6 of the final GEIS and the
findings are included in the final rule in Table B-1 of appendix B to
10 CFR part 51.
Chapter 6 of the GEIS discusses the impacts of offsite disposal of
LLW and mixed waste and concludes that impacts will be small. The
conclusion that impacts will be small is based on the regulations and
regulatory programs in place (e.g., 10 CFR part 61 for LLW and 40 CFR
parts 261, 264, and 268 for hazardous waste), experience with existing
sites, and the expectation that NRC, EPA, and the States will ensure
that disposal will occur in compliance with the applicable regulations.
The Low-Level Radioactive Waste Policy Act of 1980 (LLRWPA) made
the States responsible for the disposal of commercially generated LLW.
At present, 9 compacts have been formed, representing 42 States. The
Texas Compact (Texas, Maine, and Vermont) is pending before the U.S.
Congress.
New LLW disposal facilities in the host States of California, North
Carolina, and Texas are forecast to be operational between 1997 and
1998. Facilities in the host States of Connecticut, Illinois,
Massachusetts, Nebraska, New Jersey, Pennsylvania, and New York are
scheduled for operation between 1999 and 2002. Envirocare, in Utah,
takes limited types of waste from certain generators.
There are uncertainties in the licensing process and in the length
of time needed to resolve technical issues, but in NRC's view there are
no unsolvable technical issues that will inevitably preclude successful
development of new sites or other off-site disposal capacity for LLW by
the time they will be needed. For example, in California, the proposed
Ward Valley LLW disposal facility was unexpectedly delayed by the need
to resolve technical issues raised by several scientists independent of
the project after the license was issued. These issues were recently
reviewed and largely resolved by an independent review group. In North
Carolina, Texas, and Nebraska, the license application review period
has been longer than is required by the LLRWPA, but progress continues
to be made.
The State's LLW responsibilities include providing disposal
capacity for mixed LLW. Mixed waste disposal facility developers face
the same types of challenges as LLW site developers plus difficulties
with dual regulation and small volumes. However, in NRC's view there
are no technical reasons why offsite disposal capacity for all types of
mixed waste should not become available when needed. NRC and EPA have
developed guidance on the siting of mixed waste disposal facilities as
well as a conceptual design for a mixed waste disposal facility. A
disposal facility for certain types of mixed waste is operated by
Envirocare in Utah. States have begun discussions with DOE about
accepting commercial mixed waste for treatment and disposal at DOE
facilities. Although these discussions have yet to result in DOE
accepting commercial mixed waste at DOE facilities, it appears that
progress is being made toward DOE's eventual acceptance of some portion
of commercial mixed waste at its facilities.
While the NRC understands that there have been delays and that
uncertainties exist such as those just discussed, the Commission
concludes that there is reasonable assurance that sufficient LLW and
mixed LLW disposal capacity will be made available when needed so that
facilities can be decommissioned consistent with NRC decommissioning
requirements. This conclusion, coupled with the expected small impacts
from both storage and disposal justify classification of LLW and mixed
waste disposal as Category 1 issues.
The GEIS addresses the matter of extended onsite storage of both
LLW and mixed waste from refurbishment and operations for a renewal
period of up to 20 years. Summary data are provided and radiological
and nonradiological environmental impacts are addressed. The analysis
considers:
(1) The volumes of LLW and mixed waste that may be generated from
license renewal;
(2) Specific requirements under the existing regulatory framework;
(3) The effectiveness of the regulations in maintaining low average
doses to members of the public and to workers; and
(4) Nonradiological impacts, including land use, fugitive dust, air
quality, erosion, sedimentation, and disturbance of ecosystems.
In addition, under 10 CFR 50.59, licensees are allowed to make
changes to their facilities as discussed in the final safety analysis
report without NRC permission if the evaluation indicates that a change
in the technical specifications is not required or that an unreviewed
safety question does not exist. Licensees would have to ensure that any
new LLW activities would not represent an unreviewed safety question
for routine operations or for conditions that might arise from
potential accidents. Both onsite and offsite impacts would have to be
considered. If a LLW or mixed waste activity fails either of the two
tests in 10 CFR 50.59, a license amendment is required. Subject to the
two possible review requirements just noted, the Commission finds that
continued onsite storage of both LLW and mixed waste resulting from
license renewal will have small environmental impacts and will require
no further review within the license renewal proceeding.
The GEIS addresses extended onsite storage of spent fuel during a
renewal period of up to 20 years. The Commission has studied the safety
and environmental effects of the temporary storage of spent fuel after
cessation of reactor operation and has published a generic
determination of no significant environmental impact (10 CFR 51.23).
The environmental data on storing spent fuel onsite in a fuel pool for
10 years before shipping for offsite disposal have been assessed and
reported in NUREG-0116, ``The Environmental Survey of the Reprocessing
and Waste Management Portions of the LWR Fuel Cycle'' (October 1976),
and published in the Commission's regulations (10 CFR 51.51).
Environmental assessments (EA) for expanding the fuel pool storage
capacity have been conducted for numerous plants. In each case, a
finding of no significant environmental impact was reached.
Radioactive exposures, waste generation, and releases were
evaluated and found to be small. The only nonradiological effluent from
waste storage is additional heat from the plant that was found to have
a negligible effect on the environment. Accidents were evaluated and
were found to have insignificant effects on the environment. Dry cask
storage at an independent spent fuel storage installation (ISFSI) is
another technology used to store under a general license. The
environmental impacts of allowing onsite dry cask storage under a
general license were
[[Page 28480]]
assessed in an EA and found to be insignificant. Further, the
Commission has conducted EAs for seven specific licensed ISFSIs and has
reached a finding of no significant environmental impact for each site.
Each EA addressed the impacts of construction, use, and
decommissioning. Potential impacts that were assessed include
radiological impacts, land use, terrestrial resources, water use,
aquatic resources, noise, air quality, socioeconomics, radiological
impacts during construction and routine operation, and radiological
impacts of off-normal events and accidents. Trends in onsite spent fuel
storage capacity and the volume of spent fuel that will be generated
during an additional 20 years of operation are considered in the GEIS.
Spent fuel storage capacity requirements can be adequately met by
ISFSIs without significant environmental impacts. The environmental
impacts of onsite storage of spent fuel at all plants have been
adequately assessed in the GEIS for the purposes of an environmental
review and agency decision on renewal of an operating license; thus, no
further review within the license renewal proceeding is required. This
provision is relative to the license renewal decision and does not
alter existing Commission licensing requirements specific to on-site
storage of spent fuel.
The environmental impacts from the transportation of fuel and waste
attributable to license renewal are found to be small when they are
within the range of impacts of parameters identified in Table S-4. The
estimated radiological effects are within regulatory standards. The
nonradiological impacts are those from periodic shipments of fuel and
waste by individual trucks or rail cars and thus would result in
infrequent and localized minor contributions to traffic density.
Programs designed to further reduce risk, which are already in place,
provide for adequate mitigation. Recent, ongoing efforts by the
Department of Energy to study the impacts of waste transportation in
the context of the multi-purpose canister (see, 60 FR 45147, August 30,
1995) suggest that there may be unresolved issues regarding the
magnitude of cumulative impacts from the use of a single rail line or
truck route in the vicinity of the repository to carry all spent fuel
from all plants. Accordingly, NRC declines to reach a Category 1
conclusion on this issue at this time. Table S-4 should continue to be
the basis for case-by-case evaluation of transportation impacts of fuel
and waste until such time as a detailed analysis of the environmental
impacts of transportation to the proposed repository at Yucca Mountain
becomes available.
9. Accidents
Concern. Several commenters expressed concerns regarding the
appropriateness of the severe accident determination in the GEIS and
with the treatment of severe accident mitigation design alternatives
(SAMDAs) for license renewal. A group of commenters identified areas of
concern that they believe justify severe accidents being classified as
a Category 3 issue. The areas included seismic risks to nuclear power
plants and site-specific evacuation risks. Several commenters
questioned whether the analyses of the environmental impacts of
accidents were adequate to make a Category 1 determination for the
issue of severe accidents. The contention is that a bounding analysis
would be established only if plant-specific analyses were performed for
every plant, which was not the case. Instead, the GEIS analysis made
use of a single generic source term for each of the two plant types.
Response. The Commission believes that its analysis of the impacts
of severe accidents is appropriate. The GEIS provides an analysis of
the consequences of severe accidents for each site in the country. The
analysis adopts standard assumptions about each site for parameters
such as evacuation speeds and distances traveled, and uses site-
specific estimates for parameters such as population distribution and
meteorological conditions. These latter two factors were used to
evaluate the exposure indices for these analyses. The methods used
result in predictions of risk that are adequate to illustrate the
general magnitude and types of risks that may occur from reactor
accidents. Regarding site-evacuation risk, the radiological risk to
persons as they evacuate is taken into account within the individual
plant risk assessments that form the basis for the GEIS. In addition,
10 CFR Part 50 requires that licensees maintain up-to-date emergency
plans. This requirement will apply in the license renewal term as well
as in the current licensing term.
As was done in the GEIS analysis, the use of generic source terms
(one set for PWRs and another for BWRs) is consistent with the past
practice that has been used and accepted by the NRC for individual
plant Final Environmental Impact Statements (FEISs). The purpose of the
source term discussion in the GEIS is to describe whether or not new
information on source terms developed after the completion of the most
recent FEISs indicates that the source terms used in the past under-
predict environmental consequences. The NRC has concluded that analysis
of the new source term information developed over the past 10 years
indicates that the expected frequency and amounts of radioactive
release under severe accident conditions are less than that predicted
using the generic source terms. A summary of the evolution of this
research is provided in NUREG-1150, ``Severe Accident Risks: An
Assessment for Five U.S. Nuclear Power Plants'' (December 1990), and
its supporting documentation. Thus, the analyses performed for the GEIS
represent adequate, plant-specific estimates of the impacts from severe
accidents that would generally over-predict, rather than under-predict,
environmental consequences. Therefore, the GEIS analysis of the impacts
of severe accidents for license renewal is retained and is considered
applicable to all plants.
Based on an evaluation of the comments, the Commission has
reconsidered its previous conclusion in the draft GEIS concerning site-
specific consideration of severe accident mitigation. The Commission
has determined that a site-specific consideration of alternatives to
mitigate severe accidents will be required at the time of license
renewal unless a previous consideration of such alternatives regarding
plant operation has been included in a final environmental impact
statement or a related supplement. Because the third criterion required
to make a Category 1 designation for an issue requires a generic
consideration of mitigation, the issue of severe accidents must be
reclassified as a Category 2 issue that requires a consideration of
severe accident mitigation alternatives, provided this consideration
has not already been completed. The Commission's reconsideration of the
issue of severe accident mitigation for license renewal is based on the
Commission's NEPA regulations that require a consideration of
mitigation alternatives in its environmental impact statements (EISs)
and supplements to EISs, as well as a previous court decision that
required a review of severe mitigation alternatives (referred to as
SAMDAs) at the operating license stage. See, Limerick Ecology Action v.
NRC, 869 F.2d 719 (3d Cir. 1989).
Although the Commission has considered containment improvements for
all plants pursuant to its Containment Performance Improvement (CPI)
program, which identified potential containment improvements for site-
specific consideration by licensees,
[[Page 28481]]
and the Commission has additional ongoing regulatory programs whereby
licensees search for individual plant vulnerabilities to severe
accidents and consider cost-beneficial improvements, these programs
have not yet been completed. Therefore, a conclusion that severe
accident mitigation has been generically considered for license renewal
is premature.
The Commission believes it unlikely that any site-specific
consideration of severe accident mitigation alternatives for license
renewal will identify major plant design changes or modifications that
will prove to be cost-beneficial for reducing severe accident frequency
or consequences. This Commission expectation regarding severe accident
mitigation improvements is based on the analyses performed to date that
are discussed below.
The Commission's CPI program examined each of the five U.S.
containment types to determine potential failure modes, potential plant
improvements, and the cost-effectivenesses of such improvements. As a
result of this program, only a few containment improvements were found
to be potentially beneficial and were either identified for further NRC
research or for individual licensee evaluation.
In response to the Limerick decision, an NRC staff consideration of
SAMDAs was specifically included in the Final Environmental Impact
Statement for the Limerick 1 and 2 and Comanche Peak 1 and 2 operating
license reviews, and in the Watts Bar Supplemental Final Environmental
Statement for an operating license. The alternatives evaluated in these
analyses included the items previously evaluated as part of the CPI
Program, as well as improvements identified through other risk studies
and analyses. No physical plant modifications were found to be cost-
beneficial in any of these severe accident mitigation considerations.
Only plant procedural changes were identified as being cost-beneficial.
Furthermore, the Limerick analysis was for a high-population site.
Because risk is generally proportional to the population around a
plant, this analysis suggests that other sites are unlikely to identify
significant plant modifications that are cost-beneficial.
Additionally, each licensee is performing an individual plant
examination (IPE) to look for plant vulnerabilities to internally
initiated events and a separate IPE for externally initiated events
(IPEEE). The licensees were requested to report their results to the
Commission. Seventy-eight IPE submittals were received and seventy-five
IPEEE submittals will be received, covering all operating plants in the
United States. These examinations consider potential improvements to
reduce the frequency or consequences of severe accidents on a plant-
specific basis and essentially constitute a broad search for severe
accident mitigation alternatives. The NRC staff is conducting a process
review of each plant-specific IPE submittal and IPEEE submittal. To
date, all IPE submittals have received a preliminary review by the NRC
with 46 out of 78 completed; for the IPEEE submittals, 24 of the 75 are
under review. These IPEs have resulted in a number of plant procedural
or programmatic improvements and some plant modifications that will
further reduce the risk of severe accidents.
In conclusion, the GEIS analysis of severe accident consequences
and risk is adequate, and additional plant-specific analysis of these
impacts is not required. However, because the ongoing regulatory
program related to severe accident mitigation (i.e., IPE and IPEEE) has
not been completed for all plants and consideration of severe accident
mitigation alternatives has not been included in an EIS or supplemental
EIS related to plant operations for all plants, a site-specific
consideration of severe accident mitigation alternatives is required at
license renewal for those plants for which this consideration has not
been performed. The Commission expects that if these reviews identify
any changes as being cost beneficial, such changes generally would be
procedural and programmatic fixes, with any hardware changes being only
minor in nature and few in number. NRC staff considerations of severe
accident mitigation alternatives have already been completed and
included in an EIS or supplemental EIS for Limerick, Comanche Peak, and
Watts Bar. Therefore, severe accident mitigation alternatives need not
be reconsidered for these plants for license renewal.
Based on the fact that a generic consideration of mitigation is not
performed in the GEIS, a Category 1 designation for severe accidents
cannot be made. Therefore, the Commission has reclassified severe
accidents as a Category 2 issue, requiring only that alternatives to
mitigate severe accidents be considered for those plants that have not
included such a consideration in a previous EIS or supplemental EIS.
The Commission notes that upon completion of its IPE/IPEEE program, it
may review the issue of severe accident mitigation for license renewal
and consider, by separate rulemaking, reclassifying severe accidents as
a Category 1 issue.
The Commission does not intend to prescribe by rule the scope of an
acceptable consideration of severe accident mitigation alternatives for
license renewal nor does it intend to mandate consideration of
alternatives identical to those evaluated previously. In general, the
Commission expects that significant efficiency can be gained by using
site-specific IPE and IPEEE results in the consideration of severe
accident mitigation alternatives. The IPEs and IPEEEs are essentially
site-specific PRAs that identify probabilities of core damage (Level 1
PRA) and include assessments of containment performance under severe
accident conditions that identify probabilities of fission product
releases (Level 2 ). As discussed in Generic Letter 88-20, ``Individual
Plant Examination for Severe Accident Vulnerabilities'' (November 23,
1988), one of the important goals of the IPE and IPEEE was to reduce
the overall probabilities of core damage and fission product releases
as necessary by modifying hardware and procedures to help prevent or
mitigate severe accidents.
Although Level 3 PRAs have been used in SAMDA analyses to generate
site-specific offsite dose estimates so that the cost-benefit of
mitigation alternatives could be determined, the Commission does not
believe that site-specific Level 3 PRAs are required to determine
whether an alternative under consideration will provide sufficient
benefit to justify its cost. Licensees can use other quantitative
approaches for assigning site-specific risk significance to IPE results
and judging whether a mitigation alternative provides a sufficient
reduction in core damage frequency (CDF) or release frequency to
warrant implementation. For example, a licensee could use information
provided in the GEIS analysis (exposure indices, wind frequencies, and
demographics) to translate the dominant contributors to CDF and the
large release frequencies from the IPE/IPEEE results into dose
estimates so that a cost-benefit determination can be performed. In
some instances, a consideration of the magnitude of reduction in the
site-specific CDF and release frequencies alone (i.e., no conversion to
a dose estimate) may be sufficient to conclude that no significant
reduction in off-site risk will be provided and, therefore,
implementation of a mitigation alternative is not warranted. The
Commission will review each severe accident mitigation consideration
provided by a license renewal applicant on its merits and determine
whether it
[[Page 28482]]
constitutes a reasonable consideration of severe accident mitigation
alternatives.
10. Decommissioning
Concern. Several commenters requested further clarification of the
NRC's position regarding decommissioning requirements, especially
whether the total impacts address returning the site to green field
conditions.
Response. The decommissioning chapter of the GEIS analyzes the
impact that an additional 20 years of plant operation would have on
ultimate plant decommissioning; it neither serves as the generic
analysis of the environmental impacts associated with decommissioning
nor establishes decommissioning requirements. An analysis of the
expected impacts from plant decommissioning was previously provided in
NUREG-0586, ``Final Generic Environmental Impact Statement on
Decommissioning of Nuclear Facilities'' (August 1988). The analysis in
the GEIS for license renewal examines the physical requirements and
attendant effects of decommissioning after a 20-year license renewal
compared with decommissioning at the end of 40 years of operation and
finds little difference in effects.
With respect to returning a site to green field condition, the
Commission defines decommissioning as the safe removal of a nuclear
facility from service, the reduction of residual contamination to a
level that permits release of the property for unrestricted use, and
termination of the license. Therefore, the question of restoring the
land to a green field condition, which would require additional
demolition and site restoration beyond addressing residual
contamination and radiological effects, is outside the current scope of
the decommissioning requirements. Moreover, consistent with the
Commission's conclusion that license renewal is not expected to affect
future decommissioning, any requirement relative to returning a site to
a green field and the attendant effects of such a requirement would
also not be affected by an additional 20 years of operation. Therefore,
the issue of returning a site to pre-construction conditions is beyond
the scope of license renewal review.
Concern. Several commenters expressed concern that, because a
residual radioactivity rule is still not in place, the LLW estimates
should be reexamined.
Response. The NRC does have criteria in place for the release of
reactor facilities to unrestricted access following decommissioning.
These include the guidance in Regulatory Guide 1.86, ``Termination of
Operating Licenses for Nuclear Reactors'' (which provides guidance for
surface contamination), dose rate limits from gamma-emitting
radionuclides included in plant technical specifications, and
requirements for keeping residual contamination as low as reasonably
achievable (ALARA) as included in 10 CFR part 20. These criteria were
used in developing NUREG-0586, the final GEIS on decommissioning of
nuclear facilities, which was published in August of 1988. One
conclusion from the analysis conducted for NUREG-0586 was that waste
volumes from decommissioning of reactors are not highly sensitive to
the radiological criteria. A proposed rule dated August 22, 1994, would
codify radiological criteria for unrestricted release of reactors and
other nuclear facilities and for termination of a facility license
following decommissioning. NUREG-1496, the draft GEIS for the proposed
rule on radiological criteria, included analyses of a range of
radiological release criteria and confirmed the earlier conclusions
that waste volumes from decommissioning of reactors are not sensitive
to the residual radiological criteria within the range likely to be
selected. This range included residual dose levels comparable to the
radiological criteria currently being used for reactor decommissioning.
Based on the insensitivity of the waste volume from reactor
decommissioning to the radiological criteria, the Commission continues
to believe, as concluded in the decommissioning section of the GEIS,
that the contribution to environmental impacts of decommissioning from
license renewal are small. The Commission further concludes that these
impacts are not expected to change significantly as a result of the
ongoing rulemaking. Therefore, the determinations in the GEIS remain
appropriate.
11. Need for Generating Capacity
Concern. In addition to the major procedural concern discussed
earlier about the treatment of need for generating capacity, several
commenters raised concerns about the power demand projections used in
the GEIS. Some commenters noted that any determination of need quickly
becomes dated and, therefore, the demand for and the source of
electrical power at the time of license renewal cannot be accurately
predicted at this time. Moreover, they believe that the NRC's analysis
is not definitive enough to remain unchallenged for 40 years. Another
commenter criticized the analysis because it focused only on energy
requirements without making appropriate distinctions between energy and
peak capacity requirements, plant availability, and capacity factors.
Response. The NRC has determined that a detailed consideration of
the need for generating capacity is inappropriate in the context of
consideration of the environmental impacts of license renewal. Thus,
the NRC will limit its NEPA review of license renewal applications to
the consideration of the environmental impacts of license renewal
compared with those of other available generating sources. Hence, the
concerns regarding demand projections used in the draft GEIS are no
longer an issue and they have been removed from the GEIS.
12. Alternatives to License Renewal
Concern. In addition to the procedural concern discussed earlier
about the treatment of alternative energy sources as a Category 1
issue, several commenters expressed concerns about the comparison and
analysis of alternative energy sources, as well as the economic
analysis approach used in the draft GEIS. Consistent with their
arguments against the Category 1 designation of alternatives, the
commenters questioned the approach adopted in the GEIS of comparing
only single alternative energy sources to license renewal. They believe
that the NRC's failure to consider a mix of alternatives ignores the
potential for other alternative sources of power that are available to
different regions of the nation, such as demand-side management,
cogeneration, purchased power from Canada, biomass, natural gas, solar
energy, and wind power. They also indicated that this approach neglects
a utility's ability to serve its customers with a portfolio of supply
that is based on load characteristics, cost, geography, and other
considerations, and fails to consider the collective impact of the
alternatives. Furthermore, the possible technological advances in
renewable energy sources over the next 40 years are not addressed.
One commenter argued that designating the issue of alternative
energy sources as Category 1 allows a license renewal applicant not to
consider the additional requirement of economic threshold analysis.
Relative to the economic analysis of the alternatives to license
renewal, another commenter questioned the proposed requirement for the
license renewal applicant to demonstrate that the ``replacement of
equivalent generating capacity by a coal-fired plant has no
demonstrated cost advantage over the individual nuclear power plant
license renewal.''
[[Page 28483]]
According to the commenter, this requirement would force the applicant
to perform an economic analysis of an alternative to license renewal.
The commenter further argued that NEPA does not require an economic
consideration.
Response. In response to these concerns, the final rule no longer
requires a cost comparison of alternative energy sources relative to
license renewal. Furthermore, the alternative energy sources discussed
in the final GEIS include energy conservation and energy imports as
well as the other sources discussed by the commenters. An analysis of
the environmental impacts of alternative energy sources is included in
the GEIS but is not codified in 10 CFR part 51.
The NRC believes that its consideration of alternatives in the GEIS
is representative of the technologies available and the associated
environmental impacts. With regard to consideration of a mix of
alternative sources, the Commission recognizes that combinations of
various alternatives may be used to replace power generation from
license renewal.
13. License Renewal Scenario
Concern. Several commenters raised concerns related to the license
renewal scenario evaluation methodology as implemented in the GEIS. The
fundamental issues were the degree of conservatism built into the
scenario and the appropriateness of an upper bound type approach in
characterizing the refurbishment activities (and associated costs) in
light of NEPA requirements to determine reasonable estimates of the
environmental impacts of Federal actions.
Regarding the concerns that the refurbishment schedules and
scenarios developed for the GEIS were too conservative, several
commenters indicated that many of the activities slated for completion
during the extended refurbishment before license renewal would actually
be completed by many facilities during the course of the current
licensing term. The effect of having only one major outage instead of
leveling work over three or four outages could lead to an over-estimate
of the refurbishment activities and costs that any particular plant
would expect to see.
Response. In response to this concern, the NRC has revised the GEIS
to include two license renewal program scenarios. The first scenario
refers to a ``typical'' license renewal program and is intended to be
representative of the type of programs that many plants seeking license
renewal might implement. The second scenario retains the original
objective of establishing an upper bound of the impacts likely to be
generated at any particular plant. The typical scenario is useful for
estimating impacts at plants that have been well maintained and have
already undertaken most major refurbishment activities necessary for
operation beyond the current licensing term. The conservative scenario
estimates continue to be useful for estimating the maximum impacts
likely to result from license renewal.
The revised approach of providing two separate license renewal
scenarios also alleviates the concern about the use of a bounding
scenario for license renewal activities. The NRC acknowledges that some
applicants for license renewal may not be required to perform certain
major refurbishment or replacement activities and, therefore, may have
fewer or shorter outages. However, the two scenarios described in the
GEIS are neither unrealistic nor overconservative in representing the
range of activities that could be expected for license renewal and the
possible schedule for performing these activities.
14. Environmental Justice
On February 11, 1994, the President issued Executive Order (E.O.)
12898, ``Federal Actions To Address Environmental Justice in Minority
Populations and Low-Income Populations'' (59 FR 7629, February 16,
1994). This order requires each Federal agency to make achieving
environmental justice part of its mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health or environmental effects of its programs, policies, and
activities on minority and low income populations. The Commission will
endeavor to carry out the measures set forth in the executive order by
integrating environmental justice into NRC's compliance with the
National Environmental Policy of 1969 (NEPA), as amended. E.O. 12898
was issued after publication of the proposed rule and the receipt of
comments on the proposed rule. As a result, no comments were received
regarding environmental justice reviews for license renewal. Therefore,
a brief discussion of this issue relative to license renewal is
warranted.
As called for in Section 1-102 of E.O. 12898, the EPA established a
Federal interagency working group to, among other things, ``* * *
provide guidance to Federal agencies or criteria for identifying
disproportionately high and adverse human health or environmental
effects on minority populations and low-income populations * * *.'' The
CEQ was assigned to provide this guidance to enable agencies to better
comply with E.O. 12898. Until the CEQ guidance is received, the
Commission intends to consider environmental justice in its evaluations
of individual license renewal applications. Greater emphasis will be
placed on discussing impacts on minority and low-income populations
when preparing NEPA documents such as EISs, supplemental EISs, and,
where appropriate, EAs. Commission requirements regarding environmental
justice reviews will be reevaluated and may be revised after receipt of
the CEQ guidance.
IV. Discussion of Regulatory Requirements
A. General Requirements
In this final rule, the regulatory requirements for performing a
NEPA review for a license renewal application are similar to the NEPA
review requirements for other major plant licensing actions. Consistent
with the current NEPA practice for major plant licensing actions, this
amendment to 10 CFR Part 51 requires the applicant to submit an
environmental report that analyzes the environmental impacts associated
with the proposed action, considers alternatives to the proposed
action, and evaluates any alternatives for reducing adverse
environmental effects. Additionally, the amendment requires the NRC
staff to prepare a supplemental environmental impact statement for the
proposed action, issue the statement in draft for public comment, and
issue a final statement after considering public comments on the draft.
The amendment deviates from NRC's current NEPA review practice in
some areas. First, the amendment codifies certain environmental impacts
associated with license renewal that were analyzed in NUREG-1437,
``Generic Environmental Impact Statement for License Renewal at Nuclear
Plants'' (xxxx 1996). Accordingly, absent new and significant
information, the analyses for certain impacts codified by this
rulemaking need only be incorporated by reference in an applicant's
environmental report for license renewal and in the Commission's
(including NRC staff, adjudicatory officers, and the Commission itself)
draft and final SEIS and other environmental documents developed for
the proceeding. Secondly, the amendment reflects the Commission's
decision to limit its NEPA review for license renewal to a
consideration of the environmental
[[Page 28484]]
effects of the proposed action and alternatives to the proposed action.
Finally, the amendment contains the decision standard that the
Commission will use in determining the acceptability of the
environmental impacts of individual license renewals.
The Commission and the applicant will consider severe accident
mitigation alternatives to reduce or mitigate environmental impacts for
any plant for which severe accident mitigation alternatives have not
been previously considered in an environmental impact statement or
related supplement or in an environmental assessment. The Commission
has concluded that, for license renewal, the issues of need for power
and utility economics should be reserved for State and utility
officials to decide. Accordingly, the NRC will not conduct an analysis
of these issues in the context of license renewal or perform
traditional cost-benefit balancing in license renewal NEPA reviews.
Finally, in a departure from the approach presented in the proposed
rule, this final rule does not codify any conclusions regarding the
subject of alternatives. Consideration of and decisions regarding
alternatives will occur at the site-specific stage. The discussion
below addresses the specific regulatory requirements of this amendment
and any conforming changes to 10 CFR part 51 to implement the
Commission's decision to eliminate cost-benefit balancing from license
renewal NEPA reviews.
B. The Environmental Report
1. Environmental Impacts of License Renewal
Through this final rule, the NRC has amended 10 CFR 51.53 to
require an applicant for license renewal to submit an environmental
report with its application. This environmental report must contain an
analysis of the environmental impacts of renewing a license, the
environmental impacts of alternatives, and mitigation alternatives. In
preparing the analysis of environmental impacts contained in the
environmental report, the applicant should refer to the data provided
in appendix B to 10 CFR part 51, which has been added to NRC's
regulations as part of this rulemaking. The applicant is not required
to provide an analysis in the environmental report of those issues
identified as Category 1 issues in Table B-1 in Appendix B. For those
issues identified as Category 2 in Table B-1, the applicant must
provide a specified additional analysis beyond that contained in Table
B-1. In this final rule, 10 CFR 51.53(c)(3)(ii) specifies the subject
areas of the analysis that must be addressed for the Category 2 issues.
Pursuant to 10 CFR 51.45(c), 10 CFR 51.53(c)(2) requires the
applicant to consider possible actions to mitigate the adverse impacts
associated with the proposed action. This consideration is limited to
designated Category 2 matters. Pursuant to 10 CFR 51.45(d), the
environmental report must include a discussion of the status of
compliance with applicable Federal, State, and local environmental
standards. Also, 10 CFR 51.53(c)(2) specifically excludes from
consideration in the environmental report the issues of need for power,
the economic costs and benefits of the proposed action, economic costs
and benefits of alternatives to the proposed action, or other issues
not related to environmental effects of the proposed action and
associated alternatives. In addition, the requirements in 10 CFR 51.45
are consistent with the exclusion of economic issues in 10 CFR
51.53(c)(2).
2. Consideration of Alternatives
Pursuant to 10 CFR 51.45(c), 10 CFR 51.53(c)(2) requires the
applicant to consider the environmental impacts of alternatives to
license renewal in the environmental report. The treatment of
alternatives in the environmental report should be limited to the
environmental impacts of such alternatives.
The amended regulations do not require a discussion of the economic
costs and benefits of these alternatives in the environmental report
for the operating license renewal stage except as necessary to
determine whether an alternative should be included in the range of
alternatives considered or whether certain mitigative actions are
appropriate. The analysis should demonstrate consideration of a
reasonable set of alternatives to license renewal. In preparing the
alternatives analysis, the applicant may consider information regarding
alternatives in NUREG-1437, ``Generic Environmental Impact Statement
for License Renewal of Nuclear Plants'' (xxxx 1996).
The Commission has developed a new decision standard to be applied
in environmental impact statements for license renewal as discussed in
Section IV.C.2. The amended regulations for license renewal do not
require applicants to apply this decision standard to the information
generated in their environmental report (although the applicant is not
prohibited from doing so if it desires). However, the NRC staff will
use the information contained in the environmental report in preparing
the environmental impact statement upon which the Commission will base
its final decision.
3. Consideration of Mitigation Alternatives
Consistent with the NRC's current NEPA practice, an applicant must
include a consideration of alternatives to mitigate adverse
environmental impacts in its environmental report. However, for license
renewal, the Commission has generically considered mitigation for
environmental issues associated with renewal and has concluded that no
additional site-specific consideration of mitigation is necessary for
many issues. The Commission's consideration of mitigation for each
issue included identification of current activities that adequately
mitigate impacts and evaluation of other mitigation techniques that
might or might not be warranted, depending on such factors as the size
of the impact and the cost of the technique. The Commission has
considered mitigation for all impacts designated as Category 1 in Table
B-1. Therefore, a license renewal applicant need not address mitigation
for issues so designated.
C. Supplemental Environmental Impact Statement
This amendment also requires that the Commission prepare a
supplemental environmental impact statement (SEIS), consistent with 10
CFR 51.20(b)(2). This statement will serve as the Commission's
independent analysis of the environmental impacts of license renewal as
well as a comparison of these impacts to the environmental impacts of
alternatives. This document will also present the preliminary
recommendation by the NRC staff regarding the proposed action.
Consistent with the revisions to 10 CFR 51.45 and 51.53 discussed above
in regard to the applicant's environmental report, this rulemaking
revises portions of 10 CFR 51.71 and 51.95 to reflect the Commission's
approach to addressing the environmental impacts of license renewal.
The issues of need for power, the economic costs and benefits of
the proposed action, and economic costs and benefits of alternatives to
the proposed action are specifically excluded from consideration in the
supplemental environmental impact statement for license renewal by 10
CFR 51.95(c), except as these costs and benefits are either essential
for a determination regarding the inclusion of an alternative in the
range of alternatives considered or relevant to mitigation. The
supplemental
[[Page 28485]]
environmental impact statement does not need to discuss issues other
than environmental effects of the proposed action and associated
alternatives. This rule amends the requirements in 10 CFR 51.71 (d) and
(e) so that they are consistent with the exclusion of economic issues
in 10 CFR 51.95(c). Additionally, 10 CFR 51.95 has been amended to
allow information from previous NRC site-specific environmental
reviews, as well as NRC final generic environmental impact statements,
to be referenced in supplemental environmental impact statements.
1. Public Scoping and Public Comments on the SEIS
Consistent with NRC's current NEPA practice, the Commission will
hold a public meeting in order to inform the local public of the
proposed action and receive comments. In addition, the SEIS will be
issued in draft for public comment in accordance with 10 CFR 51.91 and
51.93. In both the public scoping process and the public comment
process, the Commission will accept comments on all previously analyzed
issues and information codified in Table B-1 of appendix B to 10 CFR
part 51 and will determine whether these comments provide any
information that is new and significant compared with that previously
considered in the GEIS. If the comments are determined to provide new
and significant information bearing on the previous analysis in the
GEIS, these comments will be considered and appropriately factored into
the Commission's analysis in the SEIS. Public comments on the site-
specific additional information provided by the applicant regarding
Category 2 issues will be considered in the SEIS.
2. Commission's Analysis and Preliminary Recommendation
The Commission's draft SEIS will include its analysis of the
environmental impacts of the proposed license renewal action and the
environmental impacts of the alternatives to the proposed action. With
the exception of offsite radiological impacts for collective effects
and the disposal of spent fuel and high level waste, the Commission
will integrate the codified environmental impacts of license renewal as
provided in Table B-1 of appendix B to 10 CFR part 51 (supplemented by
the underlying analyses in the GEIS), the appropriate site-specific
analyses of Category 2 issues, and any new issues identified during the
scoping and public comment process. The results of this integration
process will be utilized to arrive at a conclusion regarding the sum of
the environmental impacts associated with license renewal. These
impacts will then be compared, quantitatively or qualitatively as
appropriate, with the environmental impacts of the considered
alternatives. The analysis of alternatives in the SEIS will be limited
to the environmental impacts of these alternatives and will be prepared
in accordance with 10 CFR 51.71 and subpart A of appendix A to 10 CFR
part 51. The analysis of impacts of alternatives provided in the GEIS
may be referenced in the SEIS as appropriate. The alternatives
discussed in the GEIS include a reasonable range of different methods
for power generation. The analysis in the draft SEIS will consider
mitigation actions for designated Category 2 matters and will consider
the status of compliance with Federal, State, and local environmental
requirements as required by 10 CFR 51.71(d). Consistent with 10 CFR
51.71(e), the draft supplemental environmental impact statement must
contain a preliminary recommendation regarding license renewal based on
consideration of the information on the environmental impacts of
license renewal and of alternatives contained in the SEIS. In order to
reach its recommendation, the NRC staff must determine whether the
adverse environmental impacts of license renewal are so great that
preserving the option of license renewal for energy planning
decisionmakers would be unreasonable. This decision standard is
contained in 10 CFR 51.95(c)(4).
3. Final Supplemental Environmental Impact Statement
The Commission will issue a final supplemental environmental impact
statement for a license renewal application in accordance with 10 CFR
51.91 and 51.93 after considering the public comments related to new
issues identified from the scoping and public comment process, Category
2 issues, and any new and significant information regarding previously
analyzed and codified Category 1 issues. Pursuant to 10 CFR 51.102 and
51.103, the Commission will provide a record of its decision regarding
the environmental impacts of the proposed action. In making a final
decision, the Commission must determine whether the adverse
environmental impacts of license renewal (when compared with the
environmental impacts of other energy generating alternatives) are so
great that preserving the option of license renewal for energy planning
decisionmakers would be unreasonable.
D. NEPA Review for Activities Outside NRC License Renewal Approval
Scope
The Commission wishes to clarify that any activity that requires
NRC approval and is not specifically required for NRC's action
regarding management of the effects of aging on certain passive long-
lived structures and components in the period of extended operation
must be subject to a separate NEPA review. The actions subject to NRC
approval for license renewal are limited to continued operation
consistent with the plant design and operating conditions for the
current operating license and to the performance of specific activities
and programs necessary to manage the effects of aging on the passive,
long-lived structures and components identified in accordance with 10
CFR part 54. Accordingly, the GEIS does not serve as the NEPA review
for other activities or programs outside the scope of NRC's part 54
license renewal review. The separate NEPA review must be prepared
regardless of whether the action is necessary as a consequence of
receiving a renewed license, even if the activity were specifically
addressed in the GEIS. For example, the environmental impacts of spent
fuel pool expansion are addressed in the GEIS in the context of the
environmental consequences of approving a renewed operating license,
rather than in the context of a specific application to expand spent
fuel pool capacity, which would require a separate NEPA review.
These separate NEPA reviews may reference and otherwise use
applicable environmental information contained in the GEIS. For
example, an EA prepared for a separate spent fuel pool expansion
request may use the information in the GEIS to support a finding of no
significant impact.
V. Availability of Documents
The principal documents supporting this supplementary information
are as follows:
(1) NUREG-1437, ``Generic Environmental Impact Statement for
License Renewal of Nuclear Plants'' (May 1996).
(2) NUREG-1529, ``Public Comments on the Proposed 10 CFR part 51
Rule for Renewal of Nuclear Power Plant Operating Licenses and
Supporting Documents; Review of Concerns and NRC Staff Response'' (May
1996).
(3) NUREG-1440, ``Regulatory Analysis of Amendments to Regulations
Concerning the Environmental Review
[[Page 28486]]
for Renewal of Nuclear Power Plant Operating Licenses'' (May 1996).
Copies of all documents cited in the supplementary information are
available for inspection and for copying for a fee in the NRC Public
Document Room, 2120 L Street NW. (Lower Level), Washington, DC. In
addition, copies of NRC final documents cited here may be purchased
from the Superintendent of Documents, U.S. Government Printing Office,
PO Box 37082, Washington, DC 20013-7082. Copies are also available for
purchase from the National Technical Information Service, 5285 Port
Royal Road, Springfield, VA 22161.
VI. Submittal of Comments in an Electronic Format
Commenters are encouraged to submit, in addition to the original
paper copy, a copy of their letter in an electronic format on IBM PC
DOS-compatible 3.5- or 5.25-inch, double-sided, double-density (DS/DD)
diskettes. Data files should be provided in Wordperfect 5.1 or later
version of Wordperfect. ASCII code is also acceptable or, if formatted
text is required, data files should be provided in IBM Revisable-Form
Text Document Content Architecture (RFT/DCA) format.
VII. Finding of No Significant Environmental Impact: Availability
The NRC has determined that this final rule is the type of action
described as a categorical exclusion in 10 CFR 51.22(c)(3). Therefore,
neither an environmental impact statement nor an environmental
assessment has been prepared for this regulation. This action is
procedural in nature and pertains only to the type of environmental
information to be reviewed.
VIII. Paperwork Reduction Act Statement
This final rule amends information collection requirements that are
subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.). These requirements were approved by the Office of Management and
Budget, approval number 3150-0021.
The public reporting burden for this collection of information is
estimated to average 4,200 hours per response, including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Send comments regarding this burden estimate
or any other aspect of this collection of information, including
suggestions for reducing the burden, to the Information and Records
Management Branch (T-6F33), U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001, or by Internet electronic mail at
BJS[email protected]; and to the Desk Officer, Office of Information and
Regulatory Affairs, NEOB-10202 (3150-0021), Office of Management and
Budget, Washington, DC 20503.
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a currently
valid OMB control number.
IX. Regulatory Analysis
The Commission has prepared a regulatory analysis for this final
rule. The analysis examines the costs and benefits of the alternatives
considered by the Commission. The two alternatives considered were:
(A) Retaining the existing 10 CFR part 51 review process for
license renewal, which requires that all reviews be on a plant-specific
basis; and
(B) Amending 10 CFR part 51 to allow a portion of the environmental
review to be conducted on a generic basis.
The conclusions of the regulatory analysis show substantial cost
savings of alternative (B) over alternative (A). The analysis, NUREG-
1440, is available for inspection in the NRC Public Document Room, 2120
L Street NW. (Lower Level), Washington, DC. Copies of the analysis are
available as described in Section V.
X. Regulatory Flexibility Act Certification
As required by the Regulatory Flexibility Act of 1980, 5 U.S.C.
605(b), the Commission certifies that this final rule will not have a
significant impact on a substantial number of small entities. The final
rule states the application procedures and environmental information to
be submitted by nuclear power plant licensees to facilitate NRC's
obligations under NEPA. Nuclear power plant licensees do not fall
within the definition of small businesses as defined in Section 3 of
the Small Business Act, 15 U.S.C. 632, or the Commission's Size
Standards, April 11, 1995 (60 FR 18344).
XI. Small Business Regulatory Enforcement Fairness Act
In accordance with the Small Business Regulatory Enforcement
Fairness Act of 1996, the NRC has determined that this action is not a
major rule and has verified this determination with the Office of
Information and Regulatory Affairs of OMB.
XII. Backfit Analysis
The NRC has determined that these amendments do not involve any
provisions which would impose backfits as defined in 10 CFR
50.109(a)(1); therefore, a backfit analysis need not be prepared.
List of Subjects in 10 CFR Part 51
Administrative practice and procedure, Environmental impact
statement, Nuclear materials, Nuclear power plants and reactors,
Reporting and recordkeeping requirements.
For the reasons set out in the preamble and under the authority of
the Atomic Energy Act of 1954, as amended; the Energy Reorganization
Act of 1974, as amended; the National Environmental Policy Act of 1969,
as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following
amendments to 10 CFR part 51.
PART 51--ENVIRONMENTAL PROTECTION REGULATIONS FOR DOMESTIC
LICENSING AND RELATED REGULATORY FUNCTIONS
1. The authority citation for part 51 continues to read as follows:
Authority: Sec. 161, 68 Stat. 948, as amended, Sec. 1701, 106
Stat. 2951, 2952, 2953 (42 U.S.C. 2201, 2297f); secs. 201, as
amended, 202, 88 Stat. 1242, as amended, 1244 (42 U.S.C. 5841,
5842).
Subpart A also issued under National Environmental Policy Act of
1969, secs. 102, 104, 105, 83 Stat. 853-854, as amended (42 U.S.C.
4332, 4334, 4335); and Pub. L. 95-604, Title II, 92 Stat. 3033-3041.
Sections 51.20, 51.30, 51.60, 51.61, 51.80, and 51.97 also issued
under secs. 135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241, and sec.
148, Pub. L. 100-203, 101 Stat. 1330-223 (42 U.S.C. 10155, 10161,
10168). Section 51.22 also issued under sec. 274, 73 Stat. 688, as
amended by 92 Stat. 3036-3038 (42 U.S.C. 2021) and under Nuclear
Waste Policy Act of 1982, sec. 121, 96 Stat. 2228 (42 U.S.C. 10141).
Sections 51.43, 51.67, and 51.109 also issued under Nuclear Waste
Policy Act of 1982, sec. 114(f), 96 Stat. 2216, as amended (42
U.S.C. 10134(f)).
2. Section 51.45 is amended by revising paragraph (c) to read as
follows:
Sec. 51.45 Environmental report.
* * * * *
(c) Analysis. The environmental report shall include an analysis
that considers and balances the environmental effects of the proposed
action, the environmental impacts of alternatives to the proposed
action, and alternatives available for reducing or avoiding adverse
environmental effects. Except for environmental reports prepared at the
license renewal stage pursuant to Sec. 51.53(c), the analysis in the
environmental report should also
[[Page 28487]]
include consideration of the economic, technical, and other benefits
and costs of the proposed action and of alternatives. Environmental
reports prepared at the license renewal stage pursuant to Sec. 51.53(c)
need not discuss the economic or technical benefits and costs of either
the proposed action or alternatives except insofar as such benefits and
costs are either essential for a determination regarding the inclusion
of an alternative in the range of alternatives considered or relevant
to mitigation. In addition, environmental reports prepared pursuant to
Sec. 51.53(c) need not discuss other issues not related to the
environmental effects of the proposed action and alternatives. The
analyses for environmental reports shall, to the fullest extent
practicable, quantify the various factors considered. To the extent
that there are important qualitative considerations or factors that
cannot be quantified, those considerations o
FR Doc. 96-13874 Environmental Review for Renewal of Nuclear Power Plant Operating Licenses
r factors shall be
discussed in qualitative terms. The environmental report should contain
sufficient data to aid the Commission in its development of an
independent analysis.
* * * * *
3. Section 51.53 is revised to read as follows:
Sec. 51.53 Postconstruction environmental reports.
(a) General. Any environmental report prepared under the provisions
of this section may incorporate by reference any information contained
in a prior environmental report or supplement thereto that relates to
the production or utilization facility or any information contained in
a final environmental document previously prepared by the NRC staff
that relates to the production or utilization facility. Documents that
may be referenced include, but are not limited to, the final
environmental impact statement; supplements to the final environmental
impact statement, including supplements prepared at the license renewal
stage; NRC staff-prepared final generic environmental impact
statements; and environmental assessments and records of decisions
prepared in connection with the construction permit, the operating
license, and any license amendment for that facility.
(b) Operating license stage. Each applicant for a license to
operate a production or utilization facility covered by Sec. 51.20
shall submit with its application the number of copies specified in
Sec. 51.55 of a separate document entitled ``Supplement to Applicant's
Environmental Report--Operating License Stage,'' which will update
``Applicant's Environmental Report--Construction Permit Stage.'' Unless
otherwise required by the Commission, the applicant for an operating
license for a nuclear power reactor shall submit this report only in
connection with the first licensing action authorizing full-power
operation. In this report, the applicant shall discuss the same matters
described in Secs. 51.45, 51.51, and 51.52, but only to the extent that
they differ from those discussed or reflect new information in addition
to that discussed in the final environmental impact statement prepared
by the Commission in connection with the construction permit. No
discussion of need for power, or of alternative energy sources, or of
alternative sites for the facility, or of any aspect of the storage of
spent fuel for the facility within the scope of the generic
determination in Sec. 51.23(a) and in accordance with Sec. 51.23(b) is
required in this report.
(c) Operating license renewal stage. (1) Each applicant for renewal
of a license to operate a nuclear power plant under part 54 of this
chapter shall submit with its application the number of copies
specified in Sec. 51.55 of a separate document entitled ``Applicant's
Environmental Report--Operating License Renewal Stage.''
(2) The report must contain a description of the proposed action,
including the applicant's plans to modify the facility or its
administrative control procedures as described in accordance with
Sec. 54.21 of this chapter. This report must describe in detail the
modifications directly affecting the environment or affecting plant
effluents that affect the environment. In addition, the applicant shall
discuss in this report the environmental impacts of alternatives and
any other matters described in Sec. 51.45. The report is not required
to include discussion of need for power or the economic costs and
economic benefits of the proposed action or of alternatives to the
proposed action except insofar as such costs and benefits are either
essential for a determination regarding the inclusion of an alternative
in the range of alternatives considered or relevant to mitigation. The
environmental report need not discuss other issues not related to the
environmental effects of the proposed action and the alternatives. In
addition, the environmental report need not discuss any aspect of the
storage of spent fuel for the facility within the scope of the generic
determination in Sec. 51.23(a) and in accordance with Sec. 51.23(b).
(3) For those applicants seeking an initial renewal license and
holding either an operating license or construction permit as of June
30, 1995, the environmental report shall include the information
required in paragraph (c)(2) of this section subject to the following
conditions and considerations:
(i) The environmental report for the operating license renewal
stage is not required to contain analyses of the environmental impacts
of the license renewal issues identified as Category 1 issues in
appendix B to subpart A of this part.
(ii) The environmental report must contain analyses of the
environmental impacts of the proposed action, including the impacts of
refurbishment activities, if any, associated with license renewal and
the impacts of operation during the renewal term, for those issues
identified as Category 2 issues in appendix B to subpart A of this
part. The required analyses are as follows:
(A) If the applicant's plant utilizes cooling towers or cooling
ponds and withdraws make-up water from a river whose annual flow rate
is less than 3.15 x 1012 ft3/year (9 x 1010 m3/
year), an assessment of the impact of the proposed action on the flow
of the river and related impacts on instream and riparian ecological
communities must be provided. The applicant shall also provide an
assessment of the impacts of the withdrawal of water from the river on
alluvial aquifers during low flow.
(B) If the applicant's plant utilizes once-through cooling or
cooling pond heat dissipation systems, the applicant shall provide a
copy of current Clean Water Act 316(b) determinations and, if
necessary, a 316(a) variance in accordance with 40 CFR part 125, or
equivalent State permits and supporting documentation. If the applicant
can not provide these documents, it shall assess the impact of the
proposed action on fish and shellfish resources resulting from heat
shock and impingement and entrainment.
(C) If the applicant's plant uses Ranney wells or pumps more than
100 gallons of ground water per minute, an assessment of the impact of
the proposed action on ground-water use must be provided.
(D) If the applicant's plant is located at an inland site and
utilizes cooling ponds, an assessment of the impact of the proposed
action on groundwater quality must be provided.
(E) All license renewal applicants shall assess the impact of
refurbishment and other license-renewal-related construction activities
on important plant and animal habitats. Additionally, the applicant
shall assess the impact of the proposed action on threatened or
[[Page 28488]]
endangered species in accordance with the Endangered Species Act.
(F) If the applicant's plant is located in or near a nonattainment
or maintenance area, an assessment of vehicle exhaust emissions
anticipated at the time of peak refurbishment workforce must be
provided in accordance with the Clean Air Act as amended.
(G) If the applicant's plant uses a cooling pond, lake, or canal or
discharges into a river having an annual average flow rate of less than
3.15 x 1012 ft3/year (9 x 1010 m3/year), an
assessment of the impact of the proposed action on public health from
thermophilic organisms in the affected water must be provided.
(H) If the applicant's transmission lines that were constructed for
the specific purpose of connecting the plant to the transmission system
do not meet the recommendations of the National Electric Safety Code
for preventing electric shock from induced currents, an assessment of
the impact of the proposed action on the potential shock hazard from
the transmission lines must be provided.
(I) An assessment of the impact of the proposed action on housing
availability, land-use, and public schools (impacts from refurbishment
activities only) within the vicinity of the plant must be provided.
Additionally, the applicant shall provide an assessment of the impact
of population increases attributable to the proposed project on the
public water supply.
(J) All applicants shall assess the impact of the proposed project
on local transportation during periods of license renewal refurbishment
activities.
(K) All applicants shall assess whether any historic or
archaeological properties will be affected by the proposed project.
(L) If the staff has not previously considered severe accident
mitigation alternatives for the applicant's plant in an environmental
impact statement or related supplement or in an environmental
assessment, a consideration of alternatives to mitigate severe
accidents must be provided.
(M) The environmental effects of transportation of fuel and waste
shall be reviewed in accordance with Sec. 51.52.
(iii) The report must contain a consideration of alternatives for
reducing adverse impacts, as required by Sec. 51.45(c), for all
Category 2 license renewal issues in Appendix B to Subpart A of this
part. No such consideration is required for Category 1 issues in
Appendix B to Subpart A of this part.
(iv) The environmental report must contain any new and significant
information regarding the environmental impacts of license renewal of
which the applicant is aware.
(d) Postoperating license stage. Each applicant for a license
amendment authorizing the decommissioning of a production or
utilization facility covered by Sec. 51.20 and each applicant for a
license or license amendment to store spent fuel at a nuclear power
plant after expiration of the operating license for the nuclear power
plant shall submit with its application the number of copies specified
in Sec. 51.55 of a separate document entitled ``Supplement to
Applicant's Environmental Report--Post Operating License Stage.'' This
supplement will update ``Supplement to Applicant's Environmental
Report--Operating License Stage'' and ``Applicant's Environmental
Report--Operating License Renewal Stage,'' as appropriate, to reflect
any new information or significant environmental change associated with
the applicant's proposed decommissioning activities or with the
applicant's proposed activities with respect to the planned storage of
spent fuel. Unless otherwise required by the Commission, in accordance
with the generic determination in Sec. 51.23(a) and the provisions in
Sec. 51.23(b), the applicant shall address only the environmental
impact of spent fuel storage for the term of the license.
4. In Sec. 51.55, paragraph (a) is revised to read as follows:
Sec. 51.55 Environmental report--number of copies; distribution.
(a) Each applicant for a license to construct and operate a
production or utilization facility covered by paragraphs (b)(1),
(b)(2), (b)(3), or (b)(4) of Sec. 51.20, each applicant for renewal of
an operating license for a nuclear power plant, each applicant for a
license amendment authorizing the decommissioning of a production or
utilization facility covered by Sec. 51.20, and each applicant for a
license or license amendment to store spent fuel at a nuclear power
plant after expiration of the operating license for the nuclear power
plant shall submit to the Director of the Office of Nuclear Reactor
Regulation or the Director of the Office of Nuclear Material Safety and
Safeguards, as appropriate, 41 copies of an environmental report or any
supplement to an environmental report. The applicant shall retain an
additional 109 copies of the environmental report or any supplement to
the environmental report for distribution to parties and Boards in the
NRC proceedings; Federal, State, and local officials; and any affected
Indian tribes, in accordance with written instructions issued by the
Director of the Office of Nuclear Reactor Regulation or the Director of
the Office Nuclear Material Safety and Safeguards, as appropriate.
* * * * *
5. In Sec. 51.71, paragraphs (d) and (e) are revised to read as
follows:
Sec. 51.71 Draft environmental impact statement--contents.
* * * * *
(d) Analysis. The draft environmental impact statement will include
a preliminary analysis that considers and weighs the environmental
effects of the proposed action; the environmental impacts of
alternatives to the proposed action; and alternatives available for
reducing or avoiding adverse environmental effects. Except for
supplemental environmental impact statements for the operating license
renewal stage prepared pursuant to Sec. 51.95(c), draft environmental
impact statements should also include consideration of the economic,
technical, and other benefits and costs of the proposed action and
alternatives and indicate what other interests and considerations of
Federal policy, including factors not related to environmental quality
if applicable, are relevant to the consideration of environmental
effects of the proposed action identified pursuant to paragraph (a) of
this section. Supplemental environmental impact statements prepared at
the license renewal stage pursuant to Sec. 51.95(c) need not discuss
the economic or technical benefits and costs of either the proposed
action or alternatives except insofar as such benefits and costs are
either essential for a determination regarding the inclusion of an
alternative in the range of alternatives considered or relevant to
mitigation. In addition, the supplemental environmental impact
statement prepared at the license renewal stage need not discuss other
issues not related to the environmental effects of the proposed action
and associated alternatives. The draft supplemental environmental
impact statement for license renewal prepared pursuant to Sec. 51.95(c)
will rely on conclusions as amplified by the supporting information in
the GEIS for issues designated as Category 1 in appendix B to subpart A
of this part. The draft supplemental environmental impact statement
must contain an analysis of those issues identified as Category 2 in
appendix B to subpart A of this part that are open for the proposed
action. The analysis for all
[[Page 28489]]
draft environmental impact statements will, to the fullest extent
practicable, quantify the various factors considered. To the extent
that there are important qualitative considerations or factors that
cannot be quantified, these considerations or factors will be discussed
in qualitative terms. Due consideration will be given to compliance
with environmental quality standards and requirements that have been
imposed by Federal, State, regional, and local agencies having
responsibility for environmental protection, including applicable
zoning and land-use regulations and water pollution limitations or
requirements promulgated or imposed pursuant to the Federal Water
Pollution Control Act. The environmental impact of the proposed action
will be considered in the analysis with respect to matters covered by
such standards and requirements irrespective of whether a certification
or license from the appropriate authority has been obtained.3
While satisfaction of Commission standards and criteria pertaining to
radiological effects will be necessary to meet the licensing
requirements of the Atomic Energy Act, the analysis will, for the
purposes of NEPA, consider the radiological effects of the proposed
action and alternatives.
---------------------------------------------------------------------------
\3\ Compliance with the environmental quality standards and
requirements of the Federal Water Pollution Control Act (imposed by
EPA or designated permitting states) is not a substitute for and
does not negate the requirement for NRC to weigh all environmental
effects of the proposed action, including the degradation, if any,
of water quality, and to consider alternatives to the proposed
action that are available for reducing adverse effects. Where an
environmental assessment of aquatic impact from plant discharges is
available from the permitting authority, the NRC will consider the
assessment in its determination of the magnitude of environmental
impacts for striking an overall cost-benefit balance at the
construction permit and operating license stages, and in its
determination of whether the adverse environmental impacts of
license renewal are so great that preserving the option of license
renewal for energy planning decisionmakers would be unreasonable at
the license renewal stage. When no such assessment of aquatic
impacts is available from the permitting authority, NRC will
establish on its own or in conjunction with the permitting authority
and other agencies having relevant expertise the magnitude of
potential impacts for striking an overall cost-benefit balance for
the facility at the construction permit and operating license
stages, and in its determination of whether the adverse
environmental impacts of license renewal are so great that
preserving the option of license renewal for energy planning
decisionmakers would be unreasonable at the license renewal stage.
---------------------------------------------------------------------------
(e) Preliminary recommendation. The draft environmental impact
statement normally will include a preliminary recommendation by the NRC
staff respecting the proposed action. This preliminary recommendation
will be based on the information and analysis described in paragraphs
(a) through (d) of this section and Secs. 51.75, 51.76, 51.80, 51.85,
and 51.95, as appropriate, and will be reached after considering the
environmental effects of the proposed action and reasonable
alternatives,4 and, except for supplemental environmental impact
statements for the operating license renewal stage prepared pursuant to
Sec. 51.95(c), after weighing the costs and benefits of the proposed
action. In lieu of a recommendation, the NRC staff may indicate in the
draft statement that two or more alternatives remain under
consideration.
---------------------------------------------------------------------------
\4\ The consideration of reasonable alternatives to a proposed
action involving nuclear power reactors (e.g., alternative energy
sources) is intended to assist the NRC in meeting its NEPA
obligations and does not preclude any State authority from making
separate determinations with respect to these alternatives and in no
way preempts, displaces, or affects the authority of States or other
Federal agencies to address these issues.
---------------------------------------------------------------------------
Sec. 51.75 [Amended]
6. In Section 51.75, redesignate footnote 4 as footnote 5.
7. Section 51.95 is revised to read as follows:
Sec. 51.95 Postconstruction environmental impact statements.
(a) General. Any supplement to a final environmental impact
statement or any environmental assessment prepared under the provisions
of this section may incorporate by reference any information contained
in a final environmental document previously prepared by the NRC staff
that relates to the same production or utilization facility. Documents
that may be referenced include, but are not limited to, the final
environmental impact statement; supplements to the final environmental
impact statement, including supplements prepared at the operating
license stage; NRC staff-prepared final generic environmental impact
statements; environmental assessments and records of decisions prepared
in connection with the construction permit, the operating license, and
any license amendment for that facility. A supplement to a final
environmental impact statement will include a request for comments as
provided in Sec. 51.73.
(b) Initial operating license stage. In connection with the
issuance of an operating license for a production or utilization
facility, the NRC staff will prepare a supplement to the final
environmental impact statement on the construction permit for that
facility, which will update the prior environmental review. The
supplement will only cover matters that differ from the final
environmental impact statement or that reflect significant new
information concerning matters discussed in the final environmental
impact statement. Unless otherwise determined by the Commission, a
supplement on the operation of a nuclear power plant will not include a
discussion of need for power, or of alternative energy sources, or of
alternative sites, or of any aspect of the storage of spent fuel for
the nuclear power plant within the scope of the generic determination
in Sec. 51.23(a) and in accordance with Sec. 51.23(b), and will only be
prepared in connection with the first licensing action authorizing
full-power operation.
(c) Operating license renewal stage. In connection with the renewal
of an operating license for a nuclear power plant under part 54 of this
chapter, the Commission shall prepare a supplement to the Commission's
NUREG-1437, ``Generic Environmental Impact Statement for License
Renewal of Nuclear Plants'' (xxxx 1996).
(1) The supplemental environmental impact statement for the
operating license renewal stage shall address those issues as required
by Sec. 51.71. In addition, the NRC staff must comply with 40 CFR
1506.6(b)(3) in conducting the additional scoping process as required
by Sec. 51.71(a).
(2) The supplemental environmental impact statement for license
renewal is not required to include discussion of need for power or the
economic costs and economic benefits of the proposed action or of
alternatives to the proposed action except insofar as such benefits and
costs are either essential for a determination regarding the inclusion
of an alternative in the range of alternatives considered or relevant
to mitigation. In addition, the supplemental environmental impact
statement prepared at the license renewal stage need not discuss other
issues not related to the environmental effects of the proposed action
and the alternatives, or any aspect of the storage of spent fuel for
the facility within the scope of the generic determination in
Sec. 51.23(a) and in accordance with Sec. 51.23(b). The analysis of
alternatives in the supplemental environmental impact statement should
be limited to the environmental impacts of such alternatives and should
otherwise be prepared in accordance with Sec. 51.71 and appendix A to
subpart A of this part.
(3) The supplemental environmental impact statement shall be issued
as a final impact statement in accordance with Secs. 51.91 and 51.93
after considering any significant new information relevant to the
proposed
[[Page 28490]]
action contained in the supplement or incorporated by reference.
(4) The supplemental environmental impact statement must contain
the NRC staff's recommendation regarding the environmental
acceptability of the license renewal action. In order to make its
recommendation and final conclusion on the proposed action, the NRC
staff, adjudicatory officers, and Commission shall integrate the
conclusions, as amplified by the supporting information in the generic
environmental impact statement for issues designated Category 1 (with
the exception of offsite radiological impacts for collective effects
and the disposal of spent fuel and high level waste) or resolved
Category 2, information developed for those open Category 2 issues
applicable to the plant in accordance with Sec. 51.53(c)(3)(ii), and
any significant new information. Given this information, the NRC staff,
adjudicatory officers, and Commission shall determine whether or not
the adverse environmental impacts of license renewal are so great that
preserving the option of license renewal for energy planning
decisionmakers would be unreasonable.
(d) Postoperating license stage. In connection with an amendment to
an operating license authorizing the decommissioning of a production or
utilization facility covered by Sec. 51.20 or with the issuance,
amendment, or renewal of a license to store spent fuel at a nuclear
power plant after expiration of the operating license for the nuclear
power plant, the NRC staff will prepare a supplemental environmental
impact statement for the postoperating license stage or an
environmental assessment, as appropriate, which will update the prior
environmental review. Unless otherwise required by the Commission, in
accordance with the generic determination in Sec. 51.23(a) and the
provisions of Sec. 51.23(b), a supplemental environmental impact
statement for the postoperating license stage or an environmental
assessment, as appropriate, will address the environmental impacts of
spent fuel storage only for the term of the license, license amendment,
or license renewal applied for.
8. In Sec. 51.103, paragraph (a)(3) is revised and paragraph (a)(5)
is added to read as follows:
Sec. 51.103 Record of decision--General.
(a) * * *
(3) Discuss preferences among alternatives based on relevant
factors, including economic and technical considerations where
appropriate, the NRC's statutory mission, and any essential
considerations of national policy, which were balanced by the
Commission in making the decision and state how these considerations
entered into the decision.
* * * * *
(5) In making a final decision on a license renewal action pursuant
to part 54 of this chapter, the Commission shall determine whether or
not the adverse environmental impacts of license renewal are so great
that preserving the option of license renewal for energy planning
decisionmakers would be unreasonable.
* * * * *
9. Paragraph 4 of appendix A to subpart A of 10 CFR part 51 is
revised as follows:
Appendix A to Subpart A--Format for Presentation of Material in
Environmental Impact Statements
* * * * *
4. Purpose of and need for action. The statement will briefly
describe and specify the need for the proposed action. The
alternative of no action will be discussed. In the case of nuclear
power plant construction or siting, consideration will be given to
the potential impact of conservation measures in determining the
demand for power and consequent need for additional generating
capacity.
* * * * *
10. A new appendix B is added to subpart A of 10 CFR part 51 to
read as follows:
Appendix B to Subpart A--Environmental Effect of Renewing the Operating
License of a Nuclear Power Plant
The Commission has assessed the environmental impacts associated
with granting a renewed operating license for a nuclear power plant
to a licensee who holds either an operating license or construction
permit as of June 30, 1995. Table B-1 summarizes the Commission's
findings on the scope and magnitude of environmental impacts of
renewing the operating license for a nuclear power plant as required
by section 102(2) of the National Environmental Policy Act of 1969,
as amended. Table B-1, subject to an evaluation of those issues
identified in Category 2 as requiring further analysis and possible
significant new information, represents the analysis of the
environmental impacts associated with renewal of any operating
license and is to be used in accordance with Sec. 51.95(c). On a 10-
year cycle, the Commission intends to review the material in this
appendix and update it if necessary. A scoping notice must be
published in the Federal Register indicating the results of the
NRC's review and inviting public comments and proposals for other
areas that should be updated.
Table B-1.--Summary of Findings on NEPA Issues for License Renewal of Nuclear Power Plants \1\
----------------------------------------------------------------------------------------------------------------
Issue Category Findings \3\
---------------------------------------\2\----------------------------------------------------------------------
Surface Water Quality, Hydrology, and Use (for all plants)
----------------------------------------------------------------------------------------------------------------
Impacts of refurbishment on 1 SMALL. Impacts are expected to be negligible during
surface water quality. refurbishment because best management practices are expected to
be employed to control soil erosion and spills.
Impacts of refurbishment on 1 SMALL. Water use during refurbishment will not increase
surface water use. appreciably or will be reduced during plant outage.
Altered current patterns at 1 SMALL. Altered current patterns have not been found to be a
intake and discharge structures. problem at operating nuclear power plants and are not expected
to be a problem during the license renewal term.
Altered salinity gradients....... 1 SMALL. Salinity gradients have not been found to be a problem at
operating nuclear power plants and are not expected to be a
problem during the license renewal term.
Altered thermal stratification of 1 SMALL. Generally, lake stratification has not been found to be a
lakes. problem at operating nuclear power plants and is not expected
to be a problem during the license renewal term.
Temperature effects on sediment 1 SMALL. These effects have not been found to be a problem at
transport capacity. operating nuclear power plants and are not expected to be a
problem during the license renewal term.
Scouring caused by discharged 1 SMALL. Scouring has not been found to be a problem at most
cooling water. operating nuclear power plants and has caused only localized
effects at a few plants. It is not expected to be a problem
during the license renewal term.
Eutrophication................... 1 SMALL. Eutrophication has not been found to be a problem at
operating nuclear power plants and is not expected to be a
problem during the license renewal term.
[[Page 28491]]
Discharge of chlorine or other 1 SMALL. Effects are not a concern among regulatory and resource
biocides. agencies, and are not expected to be a problem during the
license renewal term.
Discharge of sanitary wastes and 1 SMALL. Effects are readily controlled through NPDES permit and
minor chemical spills. periodic modifications, if needed, and are not expected to be a
problem during the license renewal term.
Discharge of other metals in 1 SMALL. These discharges have not been found to be a problem at
waste water. operating nuclear power plants with cooling-tower-based heat
dissipation systems and have been satisfactorily mitigated at
other plants. They are not expected to be a problem during the
license renewal term.
Water use conflicts (plants with 1 SMALL. These conflicts have not been found to be a problem at
once-through cooling systems). operating nuclear power plants with once-through heat
dissipation systems.
Water use conflicts (plants with 2 SMALL OR MODERATE. The issue has been a concern at nuclear power
cooling ponds or cooling towers plants with cooling ponds and at plants with cooling towers.
using make-up water from a small Impacts on instream and riparian communities near these plants
river with low flow). could be of moderate significance in some situations. See Sec.
51.53(c)(3)(ii)(A).
----------------------------------------------------------------------------------------------------------------
Aquatic Ecology (for all plants)
----------------------------------------------------------------------------------------------------------------
Refurbishment.................... 1 SMALL. During plant shutdown and refurbishment there will be
negligible effects on aquatic biota because of a reduction of
entrainment and impingement of organisms or a reduced release
of chemicals.
Accumulation of contaminants in 1 SMALL. Accumulation of contaminants has been a concern at a few
sediments or biota. nuclear power plants but has been satisfactorily mitigated by
replacing copper alloy condenser tubes with those of another
metal. It is not expected to be a problem during the license
renewal term.
Entrainment of phytoplankton and 1 SMALL. Entrainment of phytoplankton and zooplankton has not been
zooplankton. found to be a problem at operating nuclear power plants and is
not expected to be a problem during the license renewal term.
Cold shock....................... 1 SMALL. Cold shock has been satisfactorily mitigated at operating
nuclear plants with once-through cooling systems, has not
endangered fish populations or been found to be a problem at
operating nuclear power plants with cooling towers or cooling
ponds, and is not expected to be a problem during the license
renewal term.
Thermal plume barrier to 1 SMALL. Thermal plumes have not been found to be a problem at
migrating fish. operating nuclear power plants and are not expected to be a
problem during the license renewal term.
Distribution of aquatic organisms 1 SMALL. Thermal discharge may have localized effects but is not
expected to affect the larger geographical distribution of
aquatic organisms.
Premature emergence of aquatic 1 SMALL. Premature emergence has been found to be a localized
insects. effect at some operating nuclear power plants but has not been
a problem and is not expected to be a problem during the
license renewal term.
Gas supersaturation (gas bubble 1 SMALL. Gas supersaturation was a concern at a small number of
disease). operating nuclear power plants with once-through cooling
systems but has been satisfactorily mitigated. It has not been
found to be a problem at operating nuclear power plants with
cooling towers or cooling ponds and is not expected to be a
problem during the license renewal term.
Low dissolved oxygen in the 1 SMALL. Low dissolved oxygen has been a concern at one nuclear
discharge. power plant with a once-through cooling system but has been
effectively mitigated. It has not been found to be a problem at
operating nuclear power plants with cooling towers or cooling
ponds and is not expected to be a problem during the license
renewal term.
Losses from predation, 1 SMALL. These types of losses have not been found to be a problem
parasitism, and disease among at operating nuclear power plants and are not expected to be a
organisms exposed to sublethal problem during the license renewal term.
stresses.
Stimulation of nuisance organisms 1 SMALL. Stimulation of nuisance organisms has been satisfactorily
(e.g., shipworms). mitigated at the single nuclear power plant with a once-through
cooling system where previously it was a problem. It has not
been found to be a problem at operating nuclear power plants
with cooling towers or cooling ponds and is not expected to be
a problem during the license renewal term.
----------------------------------------------------------------------------------------------------------------
Aquatic Ecology (for plants with once-through and cooling pond heat dissipation systems)
----------------------------------------------------------------------------------------------------------------
Entrainment of fish and shellfish 2 SMALL, MODERATE, OR LARGE. The impacts of entrainment are small
in early life stages. at many plants but may be moderate or even large at a few
plants with once-through and cooling-pond cooling systems.
Further, ongoing efforts in the vicinity of these plants to
restore fish populations may increase the numbers of fish
susceptible to intake effects during the license renewal
period, such that entrainment studies conducted in support of
the original license may no longer be valid. See Sec.
51.53(c)(3)(ii)(B).
Impingement of fish and shellfish 2 SMALL, MODERATE, OR LARGE. The impacts of impingement are small
at many plants but may be moderate or even large at a few
plants with once-through and cooling-pond cooling systems. See
Sec. 51.53(c)(3)(ii)(B).
Heat shock....................... 2 SMALL, MODERATE, OR LARGE. Because of continuing concerns about
heat shock and the possible need to modify thermal discharges
in response to changing environmental conditions, the impacts
may be of moderate or large significance at some plants. See
Sec. 51.53(c)(3)(ii)(B).
----------------------------------------------------------------------------------------------------------------
[[Page 28492]]
Aquatic Ecology (for plants with cooling-tower-based heat dissipation systems)
----------------------------------------------------------------------------------------------------------------
Entrainment of fish and shellfish 1 SMALL. Entrainment of fish has not been found to be a problem at
in early life stages. operating nuclear power plants with this type of cooling system
and is not expected to be a problem during the license renewal
term.
Impingement of fish and shellfish 1 SMALL. The impingement has not been found to be a problem at
operating nuclear power plants with this type of cooling system
and is not expected to be a problem during the license renewal
term.
Heat shock....................... 1 SMALL. Heat shock has not been found to be a problem at
operating nuclear power plants with this type of cooling system
and is not expected to be a problem during the license renewal
term.
----------------------------------------------------------------------------------------------------------------
Ground-water Use and Quality
----------------------------------------------------------------------------------------------------------------
Impacts of refurbishment on 1 SMALL. Extensive dewatering during the original construction on
ground-water use and quality. some sites will not be repeated during refurbishment on any
sites. Any plant wastes produced during refurbishment will be
handled in the same manner as in current operating practices
and are not expected to be a problem during the license renewal
term.
Ground-water use conflicts 1 SMALL. Plants using less than 100 gpm are not expected to cause
(potable and service water; any ground-water use conflicts.
plants that use <100 gpm).
Ground-water use conflicts 2 SMALL, MODERATE, OR LARGE. Plants that use more than 100 gpm may
(potable and service water, and cause ground-water use conflicts with nearby ground-water
dewatering; plants that use >100 users. See Sec. 51.53(c)(3)(ii)(C).
gpm).
Ground-water use conflicts 2 SMALL, MODERATE, OR LARGE. Water use conflicts may result from
(plants using cooling towers surface water withdrawals from small water bodies during low
withdrawing make-up water from a flow conditions which may affect aquifer recharge, especially
small river). if other ground-water or upstream surface water users come on
line before the time of license renewal. See Sec.
51.53(c)(3)(ii)(A).
----------------------------------------------------------------------------------------------------------------
Terrestrial Resources
----------------------------------------------------------------------------------------------------------------
Refurbishment impacts............ 2 SMALL, MODERATE, OR LARGE. Refurbishment impacts are
insignificant if no loss of important plant and animal habitat
occurs. However, it cannot be known whether important plant and
animal communities may be affected until the specific proposal
is presented with the license renewal application. See Sec.
51.53(c)(3)(ii)(E).
Cooling tower impacts on crops 1 SMALL. Impacts from salt drift, icing, fogging, or increased
and ornamental vegetation. humidity associated with cooling tower operation have not been
found to be a problem at operating nuclear power plants and are
not expected to be a problem during the license renewal term.
Cooling tower impacts on native 1 SMALL. Impacts from salt drift, icing, fogging, or increased
plants. humidity associated with cooling tower operation have not been
found to be a problem at operating nuclear power plants and are
not expected to be a problem during the license renewal term.
Bird collisions with cooling 1 SMALL. These collisions have not been found to be a problem at
towers. operating nuclear power plants and are not expected to be a
problem during the license renewal term.
Cooling pond impacts on 1 SMALL. Impacts of cooling ponds on terrestrial ecological
terrestrial resources. resources are considered to be of small significance at all
sites.
Power line right-of-way 1 SMALL. The impacts of right-of-way maintenance on wildlife are
management (cutting and expected to be of small significance at all sites.
herbicide application).
Bird collision with power lines.. 1 SMALL. Impacts are expected to be of small significance at all
sites.
Impacts of electromagnetic fields 1 SMALL. No significant impacts of electromagnetic fields on
on flora and fauna (plants, terrestrial flora and fauna have been identified. Such effects
agricultural crops, honeybees, are not expected to be a problem during the license renewal
wildlife, livestock). term.
Floodplains and wetland on power 1 SMALL. Periodic vegetation control is necessary in forested
line right of way. wetlands underneath power lines and can be achieved with
minimal damage to the wetland. No significant impact is
expected at any nuclear power plant during the license renewal
term.
----------------------------------------------------------------------------------------------------------------
Threatened or Endangered Species (for all plants)
----------------------------------------------------------------------------------------------------------------
Threatened or endangered species. 2 SMALL, MODERATE, OR LARGE. Generally, plant refurbishment and
continued operation are not expected to adversely affect
threatened or endangered species. However, consultation with
appropriate agencies would be needed at the time of license
renewal to determine whether threatened or endangered species
are present and whether they would be adversely affected. See
Sec. 51.53(c)(3)(ii)(E).
----------------------------------------------------------------------------------------------------------------
[[Page 28493]]
Air Quality
----------------------------------------------------------------------------------------------------------------
Air quality during refurbishment 2 SMALL, MODERATE, OR LARGE. Air quality impacts from plant
(nonattainment and maintenance refurbishment associated with license renewal are expected to
areas). be small. However, vehicle exhaust emissions could be cause for
concern at locations in or near nonattainment or maintenance
areas. The significance of the potential impact cannot be
determined without considering the compliance status of each
site and the numbers of workers expected to be employed during
the outage. See Sec. 51.53(c)(3)(ii)(F).
Air quality effects of 1 SMALL. Production of ozone and oxides of nitrogen is
transmission lines. insignificant and does not contribute measurably to ambient
levels of these gases.
----------------------------------------------------------------------------------------------------------------
Land Use
----------------------------------------------------------------------------------------------------------------
Onsite land use.................. 1 SMALL. Projected onsite land use changes required during
refurbishment and the renewal period would be a small fraction
of any nuclear power plant site and would involve land that is
controlled by the applicant.
Power line right of way.......... 1 SMALL. Ongoing use of power line right of ways would continue
with no change in restrictions. The effects of these
restrictions are of small significance.
----------------------------------------------------------------------------------------------------------------
Human Health
----------------------------------------------------------------------------------------------------------------
Radiation exposures to the public 1 SMALL. During refurbishment, the gaseous effluents would result
during refurbishment. in doses that are similar to those from current operation.
Applicable regulatory dose limits to the public are not
expected to be exceeded.
Occupational radiation exposures 1 SMALL. Occupational doses from refurbishment are expected to be
during refurbishment. within the range of annual average collective doses experienced
for pressurized-water reactors and boiling-water reactors.
Occupational mortality risk from all causes including radiation
is in the mid-range for industrial settings.
Microbiological organisms 1 SMALL. Occupational health impacts are expected to be controlled
(occupational health). by continued application of accepted industrial hygiene
practices to minimize worker exposures.
Microbiological organisms (public 2 SMALL, MODERATE, OR LARGE. These organisms are not expected to
health) (plants using lakes or be a problem at most operating plants except possibly at plants
canals, or cooling towers or using cooling ponds, lakes, or canals that discharge to small
cooling ponds that discharge to rivers. Without site-specific data, it is not possible to
a small river). predict the effects generically. See Sec. 51.53(c)(3)(ii)(G).
Noise............................ 1 SMALL. Noise has not been found to be a problem at operating
plants and is not expected to be a problem at any plant during
the license renewal term.
Electromagnetic fields, acute 2 SMALL, MODERATE, OR LARGE. Electrical shock resulting from
effects (electric shock). direct access to energized conductors or from induced charges
in metallic structures have not been found to be a problem at
most operating plants and generally are not expected to be a
problem during the license renewal term. However, site-specific
review is required to determine the significance of the
electric shock potential at the site. See Sec.
51.53(c)(3)(ii)(H).
Electromagnetic fields, chronic NA \4\ UNCERTAIN. Biological and physical studies of 60-Hz
effects \5\. electromagnetic fields have not found consistent evidence
linking harmful effects with field exposures. However, because
the state of the science is currently inadequate, no generic
conclusion on human health impacts is possible.\5\
Radiation exposures to public 1 SMALL. Radiation doses to the public will continue at current
(license renewal term). levels associated with normal operations.
Occupational radiation exposures 1 SMALL. Projected maximum occupational doses during the license
(license renewal term). renewal term are within the range of doses experienced during
normal operations and normal maintenance outages, and would be
well below regulatory limits.
----------------------------------------------------------------------------------------------------------------
Socioeconomics
----------------------------------------------------------------------------------------------------------------
Housing impacts.................. 2 SMALL, MODERATE, OR LARGE. Housing impacts are expected to be of
small significance at plants located in a medium or high
population area and not in an area where growth control
measures that limit housing development are in effect. Moderate
or large housing impacts of the workforce associated with
refurbishment may be associated with plants located in sparsely
populated areas or in areas with growth control measures that
limit housing development. See Sec. 51.53(c)(3)(ii)(I).
Public services: public safety, 1 SMALL. Impacts to public safety, social services, and tourism
social services, and tourism and and recreation are expected to be of small significance at all
recreation. sites.
Public services: public utilities 2 SMALL OR MODERATE. An increased problem with water shortages at
some sites may lead to impacts of moderate significance on
public water supply availability. See Sec. 51.53(c)(3)(ii)(I).
Public services, education 2 SMALL, MODERATE, OR LARGE. Most sites would experience impacts
(refurbishment). of small significance but larger impacts are possible depending
on site- and project-specific factors. See Sec.
51.53(c)(3)(ii)(I).
[[Page 28494]]
Public services, education 1 SMALL. Only impacts of small significance are expected.
(license renewal term).
Offsite land use (refurbishment). 2 SMALL OR MODERATE. Impacts may be of moderate significance at
plants in low population areas. See Sec. 51.53(c)(3)(ii)(I).
Offsite land use (license renewal 2 SMALL, MODERATE, OR LARGE. Significant changes in land use may
term). be associated with population and tax revenue changes resulting
from license renewal. See Sec. 51.53(c)(3)(ii)(I).
Public services, Transportation.. 2 SMALL, MODERATE, OR LARGE. Transportation impacts are generally
expected to be of small significance. However, the increase in
traffic associated with the additional workers and the local
road and traffic control conditions may lead to impacts of
moderate or large significance at some sites. See Sec.
51.53(c)(3)(ii)(J).
Historic and archaeological 2 SMALL, MODERATE, OR LARGE. Generally, plant refurbishment and
resources. continued operation are expected to have no more than small
adverse impacts on historic and archaeological resources.
However, the National Historic Preservation Act requires the
Federal agency to consult with the State Historic Preservation
Officer to determine whether there are properties present that
require protection. See Sec. 51.53(c)(3)(ii)(K).
Aesthetic impacts (refurbishment) 1 SMALL. No significant impacts are expected during refurbishment.
Aesthetic impacts (license 1 SMALL. No significant impacts are expected during the license
renewal term). renewal term.
Aesthetic impacts of transmission 1 SMALL. No significant impacts are expected during the license
lines (license renewal term). renewal term.
----------------------------------------------------------------------------------------------------------------
Postulated Accidents
----------------------------------------------------------------------------------------------------------------
Design basis accidents........... 1 SMALL. The NRC staff has concluded that the environmental
impacts of design basis accidents are of small significance for
all plants.
Severe accidents................. 2 SMALL. The probability weighted consequences of atmospheric
releases, fallout onto open bodies of water, releases to ground
water, and societal and economic impacts from severe accidents
are small for all plants. However, alternatives to mitigate
severe accidents must be considered for all plants that have
not considered such alternatives. See Sec. 51.53(c)(3)(ii)(L).
----------------------------------------------------------------------------------------------------------------
Uranium Fuel Cycle and Waste Management
----------------------------------------------------------------------------------------------------------------
Offsite radiological impacts 1 SMALL. Off-site impacts of the uranium fuel cycle have been
(individual effects from other considered by the Commission in Table S-3 of this part. Based
than the disposal of spent fuel on information in the GEIS, impacts on individuals from
and high level waste). radioactive gaseous and liquid releases including radon-222 and
technetium-99 are small.
Offsite radiological impacts 1 The 100 year environmental dose commitment to the U.S.
(collective effects). population from the fuel cycle, high level waste and spent fuel
disposal is calculated to be about 14,800 person rem, or 12
cancer fatalities, for each additional 20 year power reactor
operating term. Much of this, especially the contribution of
radon releases from mines and tailing piles, consists of tiny
doses summed over large populations. This same dose calculation
can theoretically be extended to include many tiny doses over
additional thousands of years as well as doses outside the U.S.
The result of such a calculation would be thousands of cancer
fatalities from the fuel cycle, but this result assumes that
even tiny doses have some statistical adverse health effect
which will not ever be mitigated (for example, no cancer cure
in the next thousand years), and that these does projection
over thousands of years are meaningful. However these
assumptions are questionable. In particular, science cannot
rule out the possibility that there will be no cancer
fatalities from these tiny doses. For perspective, the doses
are very small fractions of regulatory limits, and even smaller
fractions of natural background exposure to the same
populations.
Nevertheless, despite all the uncertainty, some judgement as to
the regulatory NEPA implications of these matters should be
made and it makes no sense to repeat the same judgement in
every case. Even taking the uncertainties into account, the
Commission concludes that these impacts are acceptable in that
these impacts would not be sufficiently large to require the
NEPA conclusion, for any plant, that the option of extended
operation under 10 CFR Part 54 should be eliminated.
Accordingly, while the Commission has not assigned a single
level of significance for the collective effects of the fuel
cycle, this issue is considered Category 1.
[[Page 28495]]
Offsite radiological impacts 1 For the high level waste and spent fuel disposal component of
(spent fuel and high level waste the fuel cycle, there are no current regulatory limits for
disposal). offsite releases of radionuclides for the current candidate
repository site. However, if we assume that limits are
developed along the lines of the 1995 National Academy of
Sciences (NAS) report, ``Technical Bases for Yucca Mountain
Standards,'' and that in accordance with the Commission's Waste
Confidence Decision, 10 CFR 51.23, a repository can and likely
will be developed at some site which will comply with such
limits, peak doses to virtually all individuals will be 100
millirem per year or less. However, while the Commission has
reasonable confidence that these assumptions will prove
correct, there is considerable uncertainty since the limits are
yet to be developed, no repository application has been
completed or reviewed, and uncertainty is inherent in the
models used to evaluate possible pathways to the human
environment. The NAS report indicated that 100 millirem per
year should be considered as a starting point for limits for
individual doses, but notes that some measure of consensus
exists among national and international bodies that the limits
should be a fraction of the 100 millirem per year. The lifetime
individual risk from 100 millirem annual dose limit is about
310-3.
Estimating cumulative doses to populations over thousands of
years is more problematic. The likelihood and consequences of
events that could seriously compromise the integrity of a deep
geologic repository were evaluated by the Department of Energy
in the ``Final Environmental Impact Statement: Management of
Commercially Generated Radioactive Waste,'' October 1980. The
evaluation estimated the 70-year whole-body dose commitment to
the
FR Doc. 96-13874 Environmental Review for Renewal of Nuclear Power Plant Operating Licenses
maximum individual and to the regional population resulting
from several modes of breaching a reference repository in the
year of closure, after 1,000 years, after 100,000 years, and
after 100,000,000 years. Subsequently, the NRC and other
federal agencies have expended considerable effort to develop
models for the design and for the licensing of a high level
waste repository, especially for the candidate repository at
Yucca Mountain. More meaningful estimates of doses to
population may be possible in the future as more is understood
about the performance of the proposed Yucca Mountain
repository. Such estimates would involve very great
uncertainty, especially with respect to cumulative population
doses over thousands of years. The standard proposed by the NAS
is a limit on maximum individual dose. The relationship of
potential new regulatory requirements, based on the NAS report,
and cumulative population impacts has not been determined,
although the report articulates the view that protection of
individuals will adequately protect the population for a
repository at Yucca Mountain. However, EPA's generic repository
standards in 40 CFR part 191 generally provide an indication of
the order of magnitude of cumulative risk to population that
could result from the licensing of a Yucca Mountain repository,
assuming the ultimate standards will be within the range of
standards now under consideration. The standards in 40 CFR part
191 protect the population by imposing ``containment
requirements'' that limit the cumulative amount of radioactive
material released over 10,000 years. The cumulative release
limits are based on EPA's population impact goal of 1,000
premature cancer deaths world-wide for a 100,000 metric tonne
(MTHM) repository.
Nevertheless, despite all the uncertainty, some judgement as to
the regulatory NEPA implications of these matters should be
made and it makes no sense to repeat the same judgement in
every case. Even taking the uncertainties into account, the
Commission concludes that these impacts are acceptable in that
these impacts would not be sufficiently large to require the
NEPA conclusion, for any plant, that the option of extended
operation under 10 CFR part 54 should be eliminated.
Accordingly, while the Commission has not assigned a single
level of significance for the impacts of spent fuel and high
level waste disposal, this issue is considered Category 1.
Nonradiological impacts of the 1 SMALL. The nonradiological impacts of the uranium fuel cycle
uranium fuel cycle. resulting from the renewal of an operating license for any
plant are found to be small.
Low-level waste storage and 1 SMALL. The comprehensive regulatory controls that are in place
disposal. and the low public doses being achieved at reactors ensure that
the radiological impacts to the environment will remain small
during the term of a renewed license. The maximum additional on-
site land that may be required for low-level waste storage
during the term of a renewed license and associated impacts
will be small.
Nonradiological impacts on air and water will be negligible. The
radiological and nonradiological environmental impacts of long-
term disposal of low-level waste from any individual plant at
licensed sites are small. In addition, the Commission concludes
that there is reasonable assurance that sufficient low-level
waste disposal capacity will be made available when needed for
facilities to be decommissioned consistent with NRC
decommissioning requirements.
Mixed waste storage and disposal. 1 SMALL. The comprehensive regulatory controls and the facilities
and procedures that are in place ensure proper handling and
storage, as well as negligible doses and exposure to toxic
materials for the public and the environment at all plants.
License renewal will not increase the small, continuing risk to
human health and the environment posed by mixed waste at all
plants. The radiological and nonradiological environmental
impacts of long-term disposal of mixed waste from any
individual plant at licensed sites are small. In addition, the
Commission concludes that there is reasonable assurance that
sufficient mixed waste disposal capacity will be made available
when needed for facilities to be decommissioned consistent with
NRC decommissioning requirements.
[[Page 28496]]
On-site spent fuel............... 1 SMALL. The expected increase in the volume of spent fuel from an
additional 20 years of operation can be safely accommodated on
site with small environmental effects through dry or pool
storage at all plants if a permanent repository or monitored
retrievable storage is not available.
Nonradiological waste............ 1 SMALL. No changes to generating systems are anticipated for
license renewal. Facilities and procedures are in place to
ensure continued proper handling and disposal at all plants.
Transportation................... 2 Table S-4 of this part contains an assessment of impact
parameters to be used in evaluating transportation effects in
each case. See Sec. 51.53(c)(3)(ii)(M).
----------------------------------------------------------------------------------------------------------------
Decommissioning
----------------------------------------------------------------------------------------------------------------
Radiation doses.................. 1 SMALL. Doses to the public will be well below applicable
regulatory standards regardless of which decommissioning method
is used. Occupational doses would increase no more than 1 man-
rem caused by buildup of long-lived radionuclides during the
license renewal term.
Waste management................. 1 SMALL. Decommissioning at the end of a 20-year license renewal
period would generate no more solid wastes than at the end of
the current license term. No increase in the quantities of
Class C or greater than Class C wastes would be expected.
Air quality...................... 1 SMALL. Air quality impacts of decommissioning are expected to be
negligible either at the end of the current operating term or
at the end of the license renewal term.
Water quality.................... 1 SMALL. The potential for significant water quality impacts from
erosion or spills is no greater whether decommissioning occurs
after a 20-year license renewal period or after the original 40-
year operation period, and measures are readily available to
avoid such impacts.
Ecological resources............. 1 SMALL. Decommissioning after either the initial operating period
or after a 20-year license renewal period is not expected to
have any direct ecological impacts.
Socioeconomic impacts............ 1 SMALL. Decommissioning would have some short-term socioeconomic
impacts. The impacts would not be increased by delaying
decommissioning until the end of a 20-year relicense period,
but they might be decreased by population and economic growth.
----------------------------------------------------------------------------------------------------------------
Environmental Justice
----------------------------------------------------------------------------------------------------------------
Environmental justice \6\........ NA\4\ NONE. The need for and the content of an analysis of
environmental justice will be addressed in plant-specific
reviews.\6\
----------------------------------------------------------------------------------------------------------------
\1\ Data supporting this table are contained in NUREG-1437, ``Generic Environmental Impact Statement for License
Renewal of Nuclear Plants'' (xxxx 1996).
\2\ The numerical entries in this column are based on the following category definitions:
Category 1: For the issue, the analysis reported in the Generic Environmental Impact Statement has shown:
(1) The environmental impacts associated with the issue have been determined to apply either to all plants or,
for some issues, to plants having a specific type of cooling system or other specified plant or site
characteristic;
(2) A single significance level (i.e., small, moderate, or large) has been assigned to the impacts (except for
collective off site radiological impacts from the fuel cycle and from high level waste and spent fuel
disposal); and
(3) Mitigation of adverse impacts associated with the issue has been considered in the analysis, and it has been
determined that additional plant-specific mitigation measures are likely not to be sufficiently beneficial to
warrant implementation.
The generic analysis of the issue may be adopted in each plant-specific review.
Category 2: For the issue, the analysis reported in the Generic Environmental Impact Statement has shown that
one or more of the criteria of Category 1 can not be met, and therefore additional plant-specific review is
required.
\3\ The impact findings in this column are based on the definitions of three significance levels. Unless the
significance level is identified as beneficial, the impact is adverse, or in the case of ``small,'' may be
negligible. The definitions of significance follow:
SMALL--For the issue, environmental effects are not detectable or are so minor that they will neither
destabilize nor noticeably alter any important attribute of the resource. For the purposes of assessing
radiological impacts, the Commission has concluded that those impacts that do not exceed permissible levels in
the Commission's regulations are considered small as the term is used in this table.
MODERATE--For the issue, environmental effects are sufficient to alter noticeably, but not to destabilize,
important attributes of the resource.
LARGE--For the issue, environmental effects are clearly noticeable and are sufficient to destabilize important
attributes of the resource.
For issues where probability is a key consideration (i.e. accident consequences), probability was a factor in
determining significance.
\4\ NA (not applicable). The categorization and impact finding definitions do not apply to these issues.
\5\ Scientific evidence about a chronic biological effect on humans from exposure to transmission line electric
and magnetic fields is inconclusive. If the Commission finds that a consensus has been reached by appropriate
Federal health agencies that there are adverse health effects, the Commission will require applicants to
submit plant-specific reviews of these health effects. Until such time, applicants for license renewal are not
required to submit information on this issue.
\6\ Environmental Justice was not addressed in NUREG-1437, ``Generic Environmental Impact Statement for License
Renewal of Nuclear Plants,'' because guidance for implementing Executive Order 12898 issued on February 11,
1994, was not available prior to completion of NUREG-1437. This issue will be addressed in individual license
renewal reviews.
[[Page 28497]]
Dated at Rockville, MD, this 29th day of May, 1996.
For the Nuclear Regulatory Commission.
John C. Hoyle,
Secretary of the Commission.
[FR Doc. 96-13874 Filed 6-4-96; 8:45 am]
BILLING CODE 7590-01-P
Complete official Federal Register PDF
FR Doc. 96-13798 Airworthiness Directives; Airbus Model A300 B2 and B4 Series Airplanes, Excluding Model A300-600 Series Airplanes
[Federal Register Volume 61, Number 109 (Wednesday, June 5, 1996)]
[Rules and Regulations]
[Pages 28497-28498]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13798]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 95-NM-161-AD; Amendment 39-9644; AD 96-12-02]
RIN 2120-AA64
Airworthiness Directives; Airbus Model A300 B2 and B4 Series
Airplanes, Excluding Model A300-600 Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to certain Airbus Model A300 B2 and B4 series airplanes,
that requires measurements of the thickness of the inner skin of the
longitudinal lap joint from the inside of the fuselage at certain
stringers. This amendment also requires inspections to detect stress
corrosion cracking in the subject area, and repair, if necessary. This
amendment is prompted by reports of stress corrosion cracking found in
the skin at the longitudinal lap joint at certain stringers of the
fuselage, which was caused by the increased stress level in the subject
area when it was reworked beyond certain limits. The actions specified
by this AD are intended to prevent such stress corrosion cracking
which, if not detected and corrected in a timely manner, could result
in rapid depressurization of the airplane.
DATES: Effective July 10, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of July 10, 1996.
ADDRESSES: The service information referenced in this AD may be
obtained from Airbus Industrie, 1 Rond Point Maurice Bellonte, 31707
Blagnac Cedex, France. This information may be examined at the Federal
Aviation Administration (FAA), Transport Airplane Directorate, Rules
Docket, 1601 Lind Avenue SW., Renton, Washington; or at the Office of
the Federal Register, 800 North Capitol Street NW., suite 700,
Washington, DC.
FOR FURTHER INFORMATION CONTACT: Tim Backman, Aerospace Engineer,
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate,
1601 Lind Avenue SW., Renton, Washington 98055-4056; telephone (206)
227-2797; fax (206) 227-1149.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an airworthiness
directive (AD) that is applicable to certain Airbus Model A300 B2 and
B4 series airplanes was published in the Federal Register on February
28, 1996 (61 FR 7444). That action proposed to require measurements of
the thickness of the inner skin of the longitudinal lap joint from the
inside of the fuselage at certain stringers using the ultrasonic
thickness measurement method. That action also proposed to require high
frequency eddy current (HFEC) inspections to detect cracking in the
subject area, and repair, if necessary.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the two comments received.
Support for the Proposal
Both commenters support the proposed rule.
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule as proposed.
Cost Impact
The FAA estimates that 17 airplanes of U.S. registry will be
affected by this AD, that it will take approximately 32 work hours per
airplane to accomplish the required actions, and that the average labor
rate is $60 per work hour. Based on these figures, the cost impact of
the AD on U.S. operators is estimated to be $32,640, or $1,920 per
airplane.
The cost impact figure discussed above is based on assumptions that
no operator has yet accomplished any of the requirements of this AD
action, and that no operator would accomplish those actions in the
future if this AD were not adopted.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-12-02 Airbus Industrie: Amendment 39-9644. Docket 95-NM-161-AD.
Applicability: Model A300 B2 and B4 series airplanes,
manufacturer serial numbers 003 through 156 inclusive; on which
Airbus Modification 2611 has not been installed; certificated in any
category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (c) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not
[[Page 28498]]
been eliminated, the request should include specific proposed
actions to address it.
Note 2: Model A300-600 series airplanes are not subject to the
requirements of this AD.
Compliance: Required as indicated, unless accomplished
previously.
To prevent stress corrosion cracking in the longitudinal lap
joints of the fuselage, which could result in rapid depressurization
of the airplane, accomplish the following:
Note 3: Any of the inspections and measurements required by this
AD that were performed before the effective date of this AD in
accordance with Airbus All Operator Telex (AOT) 53-05 (original
issue), dated August 16, 1995, are considered acceptable for
compliance with the applicable requirements of this AD.
(a) Within 60 days after the effective date of this AD,
accomplish paragraphs (a)(1) and (a)(2) of this AD in accordance
with Airbus All Operator Telex (AOT) 53-05, Revision 1, dated August
16, 1993.
(1) Measure the thickness of the inner skin of the longitudinal
lap joint from the inside of the fuselage at stringer 57 between
frames 65 and 72 using the ultrasonic thickness measurement method,
in accordance with the AOT. If the thickness is less than or equal
to the limits specified in the AOT, prior to further flight, repair
the longitudinal lap joint in accordance with a method approved by
the Manager, Standardization Branch, ANM-113, FAA, Transport
Airplane Directorate.
(2) Perform a high frequency eddy current (HFEC) inspection to
detect cracking of the longitudinal lap joint at stringer 57 between
frames 65 and 72, in accordance with the AOT. If any cracking is
detected, prior to further flight, repair the longitudinal lap joint
in accordance with a method approved by the Manager, Standardization
Branch, ANM-113.
(b) Within 6 months after the effective date of this AD,
accomplish paragraphs (b)(1) and (b)(2) of this AD in accordance
with Airbus AOT 53-05, Revision 1, dated August 16, 1993.
(1) Measure the thickness of the inner skin of the longitudinal
lap joint from the inside of the fuselage at stringer 52 (left-and
right-hand) between frames 58 and 65 using the ultrasonic thickness
measurement method, in accordance with the AOT. If the thickness is
less than or equal to the limits specified in the AOT, prior to
further flight, repair the longitudinal lap joint in accordance with
a method approved by the Manager, Standardization Branch, ANM-113.
(2) Perform a HFEC inspection to detect cracking of the
longitudinal lap joint at stringer 52 (left- and right-hand) between
frames 58 and 65, in accordance with the AOT. If any cracking is
detected, prior to further flight, repair the longitudinal lap joint
in accordance with a method approved by the Manager, Standardization
Branch, ANM-113.
(c) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Standardization Branch, ANM-113.
Operators shall submit their requests through an appropriate FAA
Principal Maintenance Inspector, who may add comments and then send
it to the Manager, Standardization Branch, ANM-113.
Note 4: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Standardization Branch, ANM-113.
(d) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(e) The measurements and inspections shall be done in accordance
with Airbus All Operator Telex (AOT) 53-05, Revision 1, dated August
16, 1993. This incorporation by reference was approved by the
Director of the Federal Register in accordance with 5 U.S.C. 552(a)
and 1 CFR part 51. Copies may be obtained from Airbus Industrie, 1
Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France. Copies may
be inspected at the FAA, Transport Airplane Directorate, 1601 Lind
Avenue, SW., Renton, Washington; or at the Office of the Federal
Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
(f) This amendment becomes effective on July 10, 1996.
Issued in Renton, Washington, on May 28, 1996.
Bill R. Boxwell,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-13798 Filed 6-4-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-13797 Airworthiness Directives; Jetstream Model 4101 Airplanes
[Federal Register Volume 61, Number 109 (Wednesday, June 5, 1996)]
[Rules and Regulations]
[Pages 28498-28500]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13797]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-NM-133-AD; Amendment 39-9643; AD 96-12-01]
RIN 2120-AA64
Airworthiness Directives; Jetstream Model 4101 Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to certain Jetstream Model 4101 airplanes, that requires
replacement of the flexible cables of the power and condition controls
of the engines with new flexible cables. This amendment also requires
installation of protective tape on the outside case of these flexible
cables, and reidentification of the cables. This amendment is prompted
by reports of stiff operation of the power and condition controls of
the engines due to heat damage to and moisture contamination of the
flexible cable. The actions specified by this AD are intended to
prevent heat damage and moisture contamination to the flexible cable,
which could result in stiff operation of the power and condition
controls and subsequent reduced engine control.
DATES: Effective July 10, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of July 10, 1996.
ADDRESSES: The service information referenced in this AD may be
obtained from Jetstream Aircraft, Inc., P.O. Box 16029, Dulles
International Airport, Washington, DC 20041-6029. This information may
be examined at the Federal Aviation Administration (FAA), Transport
Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton,
Washington; or at the Office of the Federal Register, 800 North Capitol
Street, NW., suite 700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: William Schroeder, Aerospace Engineer,
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate,
1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (206)
227-2148; fax (206) 227-1149.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an airworthiness
directive (AD) that is applicable to certain Jetstream Model 4101
airplanes was published in the Federal Register on December 19, 1995
(60 FR 65258). That action proposed to require replacement of the
flexible cables of power and condition controls of the engines with new
flexible cables. The action also proposed to require installation of
protective tape on the outside case of the new flexible cables of the
power and condition controls of the engines, and reidentification of
the assembly number of the cable.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the comments received.
Request to Provide Additional Terminating Action
One commenter requests that the FAA revise the proposal to require
the accomplishment of the actions described in Jetstream Service
Bulletin J41-76-013 () (Modification JM41485A), as interim action only.
The commenter states that the flexible cables associated with the
proposed action have a life limit of 6,000 hours time-in-service, and
have not demonstrated reliability warranting an escalation of this
limit. Instead, the commenter requests that the proposal be revised to
include a
[[Page 28499]]
requirement to accomplish the actions described in Jetstream Service
Bulletin SB J41-76-014 () (Modification JM41478), as the terminating
action. The new improved flexible cable, which is associated with
Modification JM41478, holds the promise of eventually qualifying for an
escalation of its life limit to 12,000 hours time-in-service.
The FAA does not concur with the commenter's request to revise the
AD. The FAA has determined that accomplishment of the procedures
specified in Jetstream Service Bulletin J41-76-013, as proposed,
adequately addresses the identified unsafe condition by preventing heat
damage and moisture contamination to the flexible cables.
The FAA recognizes that some operators previously may have elected
to accomplish Modification JM41478, which the FAA considers to address
the identified unsafe condition adequately as well. However, the FAA
points out that this AD is applicable only to Model 4101 airplanes on
which Modification JM41478 or JM41485A has not been installed.
Therefore, those airplanes are not subject to the requirements of this
AD.
Request to Require Marking of Part Numbers
This commenter also requests that the FAA revise the proposal to
require marking part numbers on the two types of engine control cables
(Modifications JM414485A and JM41478) after installation of the cables.
The commenter states that routing during installation of the cables
requires removal of all identification bands, making verification in
the absence of good recordkeeping virtually impossible.
The FAA does not consider a revision to be necessary. The FAA
points out that paragraph (a)(2) of the final rule already requires
reidentification of the assembly number of the cable. Since this AD
does not require Modification JM41478, as stated previously, the FAA
finds that including a requirement for such a marking need not be
specified in this final rule.
Request to Revise Cost Impact Information
This same commenter asserts that the cost estimate presented in the
preamble of the proposal was incorrect. The commenter notes that the
FAA estimates that 25 airplanes of U.S. registry would be affected by
this proposed AD; however, the commenter states that it currently
operates 25 airplanes of U.S. registry, and knows that there are
additional U.S. operators.
In addition, the commenter states that the required modification
would necessitate 39 work hours, rather than the 11 work hours
specified in the proposal.
After considering the data presented by the commenter, the FAA
concurs that the number of U.S.-registered airplanes affected by the
AD, and the number of necessary work hours, are higher than
approximated previously. The FAA has revised the cost impact
information, below, accordingly.
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule, with the changes to the cost
impact information described previously. The FAA has determined that
these changes will neither significantly increase the economic burden
on any operator nor increase the scope of the AD.
Cost Impact
The FAA estimates that 44 airplanes of U.S. registry will be
affected by this AD, that it will take approximately 39 work hours per
airplane to accomplish the required actions, and that the average labor
rate is $60 per work hour. Required parts will be supplied by the
manufacturer at no cost to the operators. Based on these figures, the
cost impact of the AD on U.S. operators is estimated to be $102,960, or
$2,340 per airplane.
The cost impact figure discussed above is based on assumptions that
no operator has yet accomplished any of the requirements of this AD
action, and that no operator would accomplish those actions in the
future if this AD were not adopted.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-12-01 Jetstream Aircraft Limited: Amendment 39-9643. Docket 95-
NM-133-AD.
Applicability: Model 4101 airplanes on which Jetstream
Modification JM41478 or JM41485A has not been installed,
certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (b) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously. To prevent heat damage and moisture contamination to the
flexible cable, which could result in stiff operation of the power
and condition controls and subsequent reduced engine control,
accomplish the following:
(a) Within 6 months after the effective date of this AD,
accomplish the requirements of paragraphs (a)(1) and (a)(2) of this
AD, in accordance with Jetstream Service Bulletin J41-76-013, dated
May 5, 1995. Both requirements must be accomplished at the same
time.
(1) Replace the flexible cables of power and condition controls
of the left and right
[[Page 28500]]
engines with new flexible cables, in accordance with paragraphs 2.B.
and 2.C. of the Accomplishment Instructions of the service bulletin;
and
(2) Install protective tape on the outside case of the new
flexible cables of the power and condition controls of the left and
right engines; and reidentify the assembly number of the cable; in
accordance with paragraph 2.D. of the Accomplishment Instructions of
the service bulletin.
(b) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Standardization Branch, ANM-113,
FAA, Transport Airplane Directorate. Operators shall submit their
requests through an appropriate FAA Principal Maintenance Inspector,
who may add comments and then send it to the Manager,
Standardization Branch, ANM-113.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Standardization Branch, ANM-113.
(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(d) The replacement, installation, and reidentification shall be
done in accordance with Jetstream Service Bulletin J41-76-013, dated
May 5, 1995. This incorporation by reference was approved by the
Director of the Federal Register in accordance with 5 U.S.C. 552(a)
and 1 CFR part 51. Copies may be obtained from Jetstream Aircraft,
Inc., P.O. Box 16029, Dulles International Airport, Washington, DC
20041-6029. Copies may be inspected at the FAA, Transport Airplane
Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the
Office of the Federal Register, 800 North Capitol Street, NW., suite
700, Washington, DC.
(e) This amendment becomes effective on July 10, 1996.
Issued in Renton, Washington, on May 28, 1996.
Bill R. Boxwell,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-13797 Filed 6-4-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-12954 Transportation of Hazardous Materials by Rail; Miscellaneous Amendments
[Federal Register Volume 61, Number 109 (Wednesday, June 5, 1996)]
[Rules and Regulations]
[Pages 28666-28682]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12954]
[[Page 28665]]
_______________________________________________________________________
Part III
Department of Transportation
_______________________________________________________________________
Research and Special Programs Administration
_______________________________________________________________________
49 CFR Part 171, et al.
Transportation of Hazardous Materials by Rail; Miscellaneous
Amendments; Final Rule
Federal Register / Vol. 61, No. 109 / Wednesday, June 5, 1996 / Rules
and Regulations
[[Page 28666]]
DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Parts 171, 172, 173, 174, 178, and 179
[Docket No. HM-216; Amdt Nos. 171-144, 172-148, 173-252, 174-83, 178-
115, 179-52]
RIN 2137-AC66
Transportation of Hazardous Materials by Rail; Miscellaneous
Amendments
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule amends the Department's Hazardous Materials
Regulations (HMR) to incorporate a number of changes to rail
requirements based on rulemaking petitions from industry and RSPA
initiatives. This action is necessary to update the regulations and to
respond to petitions for rulemaking. The intended effect of these
regulatory changes is to improve safety and reduce costs to offerors
and transporters of hazardous materials.
DATES: Effective date: The effective date of these amendments is
October 1, 1996.
Compliance date: Voluntary compliance with the regulations, as
amended herein, is authorized June 30, 1996.
Incorporation by reference: The incorporation by reference of
certain publications listed in these amendments has been approved by
the Director of the Federal Register as of October 1, 1996.
FOR FURTHER INFORMATION CONTACT: Beth Romo, telephone (202) 366-8553,
Office of Hazardous Materials Standards, Research and Special Programs
Administration, Washington DC, 20590-0001, or James H. Rader, telephone
(202) 366-0510, Office of Safety Assurance and Compliance, Federal
Railroad Administration, Washington DC, 20590-0001.
SUPPLEMENTARY INFORMATION:
I. Background
On December 19, 1995, RSPA issued a notice of proposed rulemaking
(NPRM) under Docket HM-216 [60 FR 65492]. The NPRM proposed
miscellaneous changes to rail requirements contained in the HMR, based
on petitions for rulemaking submitted in accordance with 49 CFR 106.31
or agency initiative.
RSPA received 22 comments in response to the proposed rule.
Comments were submitted by chemical manufacturing companies, trade
associations, emergency response organizations, and rail carriers.
Commenters were uniformly supportive of RSPA's and FRA's efforts to
respond to petitions for rulemaking and to reduce regulatory burdens by
simplifying or updating existing regulations. Several commenters
suggested other amendments to the HMR as part of this initiative. These
suggestions are incorporated into this final rule where possible, but
many are beyond the scope of the rule and should be proposed in a
future rulemaking action to ensure adequate opportunity for public
notice and comment.
This rule is consistent with the goals of President Clinton's
Regulatory Reinvention Initiative. The President directed Federal
agencies to review all agency regulations and eliminate or revise those
that are outdated or in need of reform. A notice issued April 4, 1995
by RSPA requested comments on regulatory reform (Docket HM-222; 60 FR
17049) and announced a comprehensive review of the HMR to identify
provisions that are candidates for elimination, revision,
clarification, or relaxation. Certain changes in this document reflect
the results of this review.
II. Summary of Regulatory Changes by Section
Listed below is a section-by-section summary of changes and, where
applicable, the assigned petition number.
Part 171
Section 171.7
Various American Society for Testing and Materials (ASTM) standards
are updated to reflect the most current version. Other ASTM standards
that no longer would be referenced in revised Sec. 179.12 are removed.
In the NPRM, RSPA did not propose any changes to ASTM A 285 and
proposed an update to ASTM A 515; however, because these standards are
no longer applicable, they are removed in this final rule.
Part 172
Section 172.101; The Hazardous Materials Table
Several entries in the Hazardous Materials Table are revised as
proposed. For the entry ``Dimethylhydrazine, unsymmetrical'', assigned
Special Provisions B74 and B79, Special Provision B79 is removed.
Special Provision B74 requires the use of a tank car conforming to a
Class 105S, 106, 110, 112J, or 114J. Special Provision B79 requires
each tank car to have a tank head puncture system if the tank was
constructed prior to April 1, 1989. Because Special Provision B74
requires all tank cars to meet the requirements of B79, referencing
Special Provision B79 is unnecessary. For the entry for Calcium
carbide, Special Provision B59 is added for both Packing Group I and II
entries. This special provision will authorize the continued use of
Class AAR 207 tank cars for the transportation of calcium carbide after
October 1, 1996.
Sections 172.101 (The Hazardous Materials Table) and 172.330
In the Hazardous Materials Table, RSPA proposed to revise 29
entries by removing Special Provision B12 assigned to those entries in
Column (7). This special provision requires the marking of tank cars
with the proper shipping name or common name of the material. As part
of the proposal to provide relief from this marking requirement, RSPA
proposed to consolidate marking requirements currently contained in
Sec. 172.102 special provisions and in Parts 173 and 179 into
Sec. 172.330 and limit its applicability to certain materials which
pose very high risks in transportation. RSPA proposed in the NPRM that
the requirement to mark the proper shipping name or common name of a
hazardous material on a tank car be limited to: Division 2.1 and 2.3
materials; Division 2.2 materials in Class DOT 107 tank cars; anhydrous
ammonia; ammonia solutions with more than 50% ammonia; bromine and
bromine solutions; hydrogen cyanide; chloroprene; and refrigerant or
dispersant gases, as defined in Sec. 173.115. A majority of commenters
supported this proposal, but several suggested that other commodities
should be considered for inclusion in the proposed list of commodities
requiring marking. Two emergency response organizations, the
International Association of Fire Fighters (IAFF) and the International
Association of Fire Chiefs (IAFC), strongly opposed elimination of the
marking requirement. The IAFF claimed that fewer cars would have
information providing instant confirmation of the contents, thereby
delaying rescue actions while shipping papers are researched. The IAFC
agreed, stating that the inability to promptly identify contents of a
car involved in an incident or accident would increase the hazard to
fire and emergency service responders. Very little cost or effort is
involved to stencil the product or proper shipping name on the car, the
IAFC added. One chemical manufacturer questioned the safety rationale
of removing this requirement and stated that use of a proper shipping
name is preferable for loaders/unloaders, repair and cleaning
[[Page 28667]]
facility personnel, and emergency responders, rather than depending
only on the four-digit identification number. Based on views expressed
by emergency response organizations and after careful consideration of
all comments on this issue, RSPA and FRA have decided to retain the
requirement for marking tank cars with the proper shipping name for all
commodities currently assigned B12, but to move these requirements to
Sec. 172.330. Accordingly, this rule provides a list of these
commodities in Sec. 172.330(a)(1). RSPA and FRA believe that a future
revision of this list may be warranted because certain high hazard
materials currently are not subject to this marking requirement, while
other hazardous materials posing less risk appear on the list.
Interested readers are invited to submit suggestions as to what proper
shipping names should be removed, retained or added to the list.
Section 172.102
Special Provisions B4 and B10 are revised as proposed to remove a
prohibition on the use of Association of American Railroads (AAR) 206
tank cars. In the Sec. 172.101 Hazardous Materials Table (HMT), each
commodity assigned this special provision must be in a packaging
authorized in Sec. 173.243, which does not allow an AAR 206 tank car.
Special Provision B5 is revised as proposed to authorize use of tank
cars, constructed from other than aluminum plate, for ammonium nitrate
fertilizer. Special Provision B12 is removed, as discussed above.
Changes to Special Provisions B42, B65, B71, B72, B74, and B76 are
adopted as proposed. These provisions are revised to clarify that any
class tank car with a higher test pressure than authorized also may be
used. Special Provisions B42, B65, and B76 also are revised to
authorize the optional marking of the tank to a lower pressure
specification. All but one commenter addressing this issue supported
the proposed change. Commenters agreed that the proposed option allows
flexibility for safety valve settings for certain classes of pressure
cars and allows the originally designed tank pressure to also remain
marked on the car. One commenter believed that confusion would arise if
there is an option to mark the tank with either the tank test pressure
rating or a lower pressure rating, required to coincide with the
pressure relief device start-to-discharge pressure. RSPA and FRA do not
believe that either the current requirement or the new option will
cause confusion. The option adopted in this final rule simply removes
the mandatory link between marked test pressure and the safety valve
start-to-discharge settings.
RSPA is removing a requirement in Special Provision B57 that the
shipping name CHLOROPRENE must be marked on a tank car. This marking
requirement is included in the revision of Sec. 172.330(a)(1). Based on
a comment, RSPA is revising Special Provision B57 to specify a safety
vent with a minimum diameter of 305 mm (12 inches) with a rupture disc
pressure of not more than 45 psi. RSPA also is revising the first
sentence of Special Provision B78 to specify the test pressure and to
clarify which rail cars are authorized.
As pointed out by a commenter, RSPA proposed the addition of a new
class DOT 120A, but overlooked the need to add corresponding special
provisions. Therefore, authorizations for use of Class DOT 120A tank
car tanks are added to Special Provisions B71, B74, B76, and B78.
Section 172.203
Currently, rail carrier shipping paper requirements are contained
in both Parts 172 and 174. In this final rule, RSPA is moving the
shipping paper requirements in Part 174 to Part 172. Commenters
supported the consolidation of shipping paper requirements in Part 172.
Paragraph (e)(2) is revised as proposed to replace references with a
specific requirement to precede the basic shipping description with the
wording ``RESIDUE, LAST CONTAINED.'' Paragraph (g)(1) also is revised
to adopt a requirement to identify a rail car, freight container,
transport vehicle, or portable tank that contains a hazardous material
by reporting mark and number. Several commenters requested that RSPA
clarify in the final rule that annotating a reporting mark and number
on a shipping paper applies only to those shipments which are assigned
reporting marks. RSPA agrees and is limiting this requirement to those
rail cars, transport vehicles, freight containers and portable tanks
displaying a reporting mark.
Section 172.205
This section is revised as proposed. RSPA received unanimous
support for its proposal to revise paragraph (f) for consistency with
Environmental Protection Agency (EPA) hazardous waste manifest
requirements for transportation by rail contained in 40 CFR 263.20(f).
Section 172.330
Paragraph (a)(1) is revised to clarify marking requirements for
tank cars. See preamble discussion under Secs. 172.101 and 172.330.
Section 172.510
Paragraph (a) is revised to require the placement of each placard
on a white square background on each class DOT 113 tank car used to
transport a Division 2.1 (flammable gas) material. This change will
enhance compliance with switching requirements for rail cars by
communicating to railroad switching crews, through a white square
background, that a class DOT 113 tank car transporting a Division 2.1
material may not be cut off while in motion. (See Sec. 174.83(b).)
Commenters generally supported this proposed change; however, one rail
carrier opposed it, claiming that such placards require special
attention and imposing the requirement on class DOT 113 tank cars
containing flammable gas would dilute the meaning of the square white
background and be more confusing than helpful. RSPA does not agree and
believes a white square background will more effectively communicate to
rail crews the presence of flammable gases, such as liquid hydrogen.
Several commenters pointed out an unintended change in wording
which would broaden the requirement for a placard with a square white
background to all Hazard Zone A materials, including those in a class
or division other than Division 2.3 or Division 6.1. RSPA is revising
the proposed wording to limit the requirement for a placard on a square
white background to Hazard Zone A materials in Divisions 2.3 and 6.1.
However, after reviewing these comments, RSPA believes this requirement
should be broadened to apply to all Hazard Zone A materials (with
corresponding changes in Sec. 174.83) and may propose such a change in
a future rulemaking action.
Sections 172.510 and 172.526
The NPRM proposed the removal of provisions for the specifications
for and use of RESIDUE placards. The majority of commenters to this
issue supported RSPA's and FRA's proposal to eliminate these
requirements. These commenters cited standardization among all
transportation modes, enhanced regulatory understanding and compliance,
and harmonization with NAFTA and international regulations. One
chemical manufacturer noted that its emergency response personnel were
not aware of any incident where the RESIDUE placard has made a
difference in the outcome of the incident. This commenter maintained
that eliminating this placard would result in considerable savings to
the company.
[[Page 28668]]
Several other commenters, including the Chemical Manufacturers
Association, believed that the determination of what constitutes
``residue'' is arbitrary and stated that some residue tank cars could
have a significant amount of product remaining in the tank. One rail
carrier indicated that a common deficiency is the failure of an offeror
to completely reverse all placards applied to a tank car. Thus, loaded
tank cars will often have a RESIDUE placard as one of the four placards
displayed, or conversely, residue tank cars will still have the
original loaded placard in one of the holders.
Only four commenters--the IAFC, two chemical manufacturers and a
government safety inspector--opposed removing the requirement for the
use of a RESIDUE placard. The IAFC believed the information is crucial
to fire and emergency responders because it communicates whether a tank
car is full or just has residue left in the tank. The IAFC claimed the
22,000 occasions cited in the NPRM were due to poor compliance and
inadequate enforcement. The commenter further stated that eliminating
the RESIDUE placard may significantly increase the hazard or risk to
fire or emergency response personnel. Not knowing the amount of product
in a car will force responders to treat all tank cars as if they were
full, which may result in unnecessary and potentially expensive
actions.
RSPA and FRA disagree with the opinion expressed by IAFC that the
22,000 occasions cited in the NPRM were due both to poor compliance and
inadequate enforcement since they were discovered as a result of FRA's
enforcement efforts. As noted by one commenter, RSPA and FRA are aware
of many ``residue'' tank cars which have remaining product that may
contain as much as 1,000 gallons or more of hazardous material.
Moreover, FRA has discovered that some shipments of liquefied
compressed gases in pressure tank cars that are unloaded through
equalization of pressure retain as much as one-third of the original
load. In a fire, a partially-filled tank car can rupture as violently
as a full tank car, thereby presenting a similar hazard to emergency
responders. In fact, a partially-filled tank car exposed to fire in
some circumstances may rupture in less time than a full tank car,
because a partially-filled tank car has less thermal mass. Clearly, a
residue placard may lead to a false sense of security. Further, RSPA
and FRA believe that the primary purpose of placards is to convey the
presence of a hazardous material, a ``trigger'' to emergency response
personnel that more needs to be known about the contents of bulk
packages of hazardous materials before entering a potential danger
zone. By obtaining a copy of the shipping papers or freight car
movement documents, emergency response personnel will gain basic
information on the hazards present and the shipper's emergency response
telephone number, resulting in better informed decisions about any
precautions or evacuation measures needed to secure the incident site.
One chemical manufacturer expressed concern that the removal of the
residue placard will mandate the use of permanent pressure-sensitive
placards to general service rail tank cars and, where the commodities
change frequently, increase the possibility of misidentification of the
commodity being transported. Nothing in the proposed rule would require
the use of pressure-sensitive placards. Shippers and carriers may
continue to use ``tag board'' placards placed within placard holders.
Based on consideration of all comments received, RSPA is removing all
provisions applying to the specifications for and use of RESIDUE
placards.
Part 173
Section 173.24b
Commenters uniformly supported this proposal to add a mid-range
temperature for calculating outage and filling limits for certain
thermally protected and jacketed tank cars. This proposal was based on
a petition for rulemaking submitted by the Propane Gas Association of
Canada [P-1251] in cooperation with Transport Canada. Paragraph (a) of
the proposed rule included provisions for anhydrous ammonia currently
contained in Note 2 following the Sec. 173.314(c) table. In this final
rule, RSPA is adopting a mid-range temperature calculation for
anhydrous ammonia by revising Note 2 of the Sec. 173.314(c) table.
Section 173.29
Paragraph (f) is removed, consistent with the removal of
Sec. 172.510(c).
Sections 173.240 through 173.244
RSPA is adding an authorization for the use of Class 120A tank car
tanks in each of these sections.
Section 173.314
Paragraph (b)(5), which contains provisions for marking the proper
shipping name of certain Class 2 materials on tank cars, is removed
because these provisions also appear in Sec. 172.330. Paragraph (b)(6)
is redesignated (b)(5) and amended to revise requirements for heat-
resistant gaskets. Commenters expressed concern as to the difficulty of
obtaining suitable heat-resistant materials because of the scarcity of
materials (other than asbestos) that are capable of withstanding
temperatures of 230 deg.C that are also compatible with the lading.
Besides temperature and compatibility, the selection of a proper gasket
must include consideration of many factors, such as the mating of the
gasket to its seating surfaces, fluid media, operating pressure, flange
design, bolting data, and size. RSPA and FRA agree with those comments
that, because of numerous factors involved, criteria for the selection
of a suitable gasket material is too technically complex for resolution
at this time. Therefore, this final rule does not define a minimum
temperature for heat-resistant gaskets, but identifies criteria which a
shipper must consider in selecting a proper gasket. In addition, in
analyzing comments to this section, RSPA and FRA discovered that when
this provision was moved from Sec. 179.102-3(a)(3) to Sec. 173.314
under changes adopted in Docket HM-181, certain words were
inadvertently removed. RSPA is restoring this wording to refer to
``gaskets for manway cover plates.''
In the paragraph (c) table, several entries are amended to add an
authorization for use of a Class DOT 120A tank car tank.
RSPA also is authorizing Class DOT 112J and 112T specification tank
cars for the transportation of dimethyl ether, as proposed. Currently,
only the use of a DOT 105A300W tank car is authorized. This is based on
an exemption issued to Aeropres Corporation (DOT-E 11000) and a
petition for rulemaking [P-1253].
RSPA also is revising Note 2 in paragraph (c) of the table. This
note is assigned to the entry ``Ammonia, anhydrous or ammonia solutions
>50 percent ammonia'' and the revision will allow shippers to calculate
outage and filling limits for tank cars based on corresponding changes
adopted in Sec. 173.24b.
In addition, RSPA is removing paragraph (i), which currently
provides alternate settings for safety relief valves on tank car tanks
used for certain commodities, because pressure relief device
requirements are being consolidated in Sec. 179.15.
Part 174
Section 174.3
This section prohibits a shipment of a hazardous material not
prepared in accordance with Parts 171, 172, and 173
[[Page 28669]]
from being offered for transportation or transported by rail. The
section is revised as proposed to be consistent with language contained
in Parts 175, 176 and 177 for unacceptable hazardous materials
shipments.
Section 174.8 through 174.10
Inspection requirements currently contained in Secs. 174.8, 174.9
and 174.10 are consolidated into Sec. 174.9 to clarify a railroad's
inspection duties at points of origination, interchange points and
other locations where rail cars must be inspected. Sections 174.8 and
174.10 are removed. Section 174.9 requires a railroad to inspect each
rail car for compliance with the HMR and other conditions that may make
the car unsafe for transportation.
The final rule further clarifies that a railroad employee may
perform inspections at ``ground level.'' One commenter, a chemical
manufacturer, opposed this proposed change because inspections would be
limited to leaks detectable at ground level. Another commenter
representing a chemical manufacturing company recognized the
practicality of ground level inspections, and believed that shippers
and carriers must work together to ensure proper securement and
compliance with hazard communication standards. A commenter supporting
this revision noted that requirements for above ground inspections
raise substantial safety concerns, are extremely burdensome, and
significantly impair efficiency. RSPA and FRA believe that ground level
inspections provide an adequate level of safety and this provision is
adopted with an editorial revision to clarify provisions for train crew
inspection.
Section 174.11
Section 174.11 is removed as proposed because it merely references
Sec. 171.12a for transportation of Canadian shipments or packagings by
rail car within the U.S.
Section 174.18
Section 174.18 concerning the handling of astray packages of
hazardous materials is obsolete; therefore this section is removed as
proposed.
Section 174.24
Shipping paper requirements for rail carriers in Part 174 are moved
to Part 172. Revised Sec. 174.24 cross-references shipping paper
requirements in Part 172. One commenter expressed concern that the
proposed wording of this section would allow origin carriers to accept
hazardous materials without first receiving shipping papers. The
commenter believed that documentation shows the offer and acceptance
affiliation between shipper and carrier and proves that a shipper
offered hazardous material for transportation prior to acceptance by a
carrier. RSPA agrees that the wording in this section should be revised
to clarify that a carrier may not accept or transport a hazardous
material by rail unless the carrier receives a properly prepared
shipping document from the shipper.
Numerous commenters urged RSPA to address electronic transmission
of a shipper certification. Commenters claimed that adopting a
provision in Sec. 172.204 to recognize electronic data interchange
(EDI) or other electronic transmission of shipping paper certifications
could eliminate the need for an existing exemption, DOT-E-7616. RSPA
and FRA agree with commenters that this issue should be addressed, but
believe that adopting new certification provisions for electronic
transmissions is beyond the scope of this final rule.
Section 174.25
RSPA is removing the ``placard notation'' requirement since it is
outdated for emergency response communication. RSPA also is removing
the requirement for a ``placard endorsement'' placed on a waybill near
the reporting mark of each rail car, freight container, transport
vehicle, or portable tank that contains a hazardous material when
transported by rail. Commenters supporting these proposals cited
improved hazard communication requirements and technological
advancements as reasons to eliminate these outdated provisions. The
only commenter to oppose these proposals, IAFF, claimed that a placard
notation ``allows the company officer to instantly make an initial
diagnosis regarding a `go/no go' decision for imminent rescue'' and ``*
* * offers a point of quick confirmation of the basic hazard.'' IAFF
further noted that ``* * * removing the placard endorsement cripples
the ability of the incident commander to make quick and correct
decisions when life safety is at stake.'' RSPA and FRA disagree with
IAFF. Hazard communication requirements in the HMR (e.g., proper
shipping name, hazard class, identification number, packing group and
emergency response information) are the principal tools that emergency
response personnel should use to assess the emergency. Because the
current placard notation is repetitive of other hazard communication
requirements and generally restates the hazard class of the material,
it is considered unnecessary for making a ``go/no go'' decision.
Removing this requirement also makes requirements for railroad
transportation consistent with other modes. Accordingly, this final
rule removes requirements for the placard notation and endorsement.
Other shipping paper requirements in this section, including those
for tank cars containing the residue of a hazardous material, are
removed or moved to Part 172.
Section 174.26
Amendments to this section are adopted as proposed. Paragraph (a)
is removed because, if a carrier complies with paragraph (b), the
carrier also is complying with paragraph (a). Paragraphs (b) and (c)
are redesignated paragraphs (a) and (b), respectively. Newly designated
paragraph (b) is revised to reference shipping paper requirements of
Part 172 and specify use of other forms of car movement documents.
Sections 174.47 and 174.48
As proposed, the provisions in these sections are consolidated into
revised Sec. 174.50 to prescribe requirements for forwarding shipments
in violation of the HMR and damaged or leaking packages.
Section 174.49
This section is removed as proposed because open-flame lanterns are
no longer used.
Section 174.50
This section is revised by consolidating requirements of
Secs. 174.47, 174.48, and 174.50 and by removing all obsolete
provisions. As proposed, packages other than tank cars would have to be
repaired, reconditioned, or overpacked prior to subsequent movement.
Tank cars would have to be repaired or be moved under conditions
approved by FRA's Associate Administrator for Safety.
RSPA and FRA have recently learned that at least one business
entity has interpreted existing Sec. 174.47(b) to permit the ongoing
movement of noncomplying tank cars once their ``in-violation'' status
was reported. Neither FRA nor RSPA agree with this interpretation. Both
agencies believe that the HMR have, even before these amendments,
clearly prohibited such movement. FRA has consistently taken
enforcement action against the movement of tank cars that are in
violation of the HMR. The amendment removes any doubt that the old
language might have created on the part of one shipper, and provides a
method for relief where repairs cannot be made without further
movement. For instance,
[[Page 28670]]
a tank car found en route with missing placards or markings is
typically ``repaired'' by corrective action on the spot. In more
serious situations, it may not be possible to conduct an on-site
repair, such as repair of a tank car with its thermal protection system
torn or abraded so that it no longer meets a specification. A tank car
in this condition may only be moved under the authority of an
exemption.
Commenters generally believed the proposed changes will promote
safety, simplify the process, and enable the shipper or carrier to take
quicker action. Several commenters recommended that the proposed
section be modified to authorize use of a telephone, fax, or electronic
mail for notification and FRA approval, with written confirmation to be
provided within a specified number of days. RSPA and FRA agree with
this recommendation and are revising the section accordingly.
The Iowa Department of Transportation asked RSPA to expand the
proposed provision which would allow a leaking tank car to be switched
to ``a location distant from habitation and highways'' to include
``streams'' and ``pipelines within the railroad rights of way.'' The
Iowa DOT cited a National Transportation Safety Board report on
activities within railroad rights of way that may disturb pipelines.
This commenter expressed concern that corrosives or other chemicals
could pose either an immediate risk or a long-term effect on pipelines
that would not be readily apparent, with corresponding potential
effects on water quality and the environment. RSPA and FRA agree in
principle with the commenter, and this final rule is broadened, not
just to include streams or pipelines within railroad rights of way, but
to authorize limited movement of a leaking tank car to reduce or
eliminate any immediate risk to human health or the environment.
Section 174.55
Proposed changes to this section were intended to clarify and
streamline requirements for loading and securing packages of hazardous
materials. Of the 22 comments submitted in response to the NPRM, only
three commenters suggested changes to the proposed revision of this
section. One commenter noted that lading securement requirements should
apply to both ``transport vehicles'' (as stated in the NPRM) and
``freight containers'' (as provided in the current regulations). RSPA
agrees, and the final rule reflects this change.
The NPRM contained a proposal to streamline requirements by
eliminating the need to seek DOT approval for lading restraint systems
that permit ``limited movement.'' RSPA and FRA believe it is not the
slight movement of hazardous materials packages that creates a safety
hazard, but their unsecured movement.
All three commenters believed the proposed requirement that lading
``be secured'' was too vague; two favored a return to the term
``blocked and braced'' and the other suggested requiring ``lading
restraint systems.'' While RSPA and FRA do not agree that the proposal
was too vague, RSPA is replacing the word ``secured'' in proposed
Sec. 174.55(a) with language requiring that a package containing a
hazardous material must be loaded in the transport vehicle or freight
container so that it cannot fall and must be safeguarded in such a
manner that other freight cannot fall onto or slide into it. This is a
performance standard which acknowledges that all packages in a vehicle
or container may move to a limited degree during transportation without
adversely affecting their structural and containment integrity.
The performance standard adopted in this final rule provides rail
shippers and carriers maximum flexibility in meeting regulatory
requirements and is consistent with requirements for other modes of
transportation. At times, damage-free transportation can be achieved by
loading packages so tightly within a vehicle or freight container that
each package is protected by those around it and the total load does
not exceed the design strength of the walls or doors. For such loads,
no additional equipment or material is necessary. With other load
configurations, material in addition to the packages is necessary to
create a tight load.
In response to concerns expressed by commenters, this final rule
explicitly mandates blocking and bracing (i.e., a lading restraint
system), when the required protection cannot be achieved through use of
other freight.
Section 174.67
The shipping community uses interior heater coils to improve the
ability of a solid or viscous product to flow and thereby reduce tank
car unloading times. The interior coils consist of a series of
longitudinally arranged and manifolded welded pipe so that one to four
inlet and outlet pipe connections allow circulation of a heating
medium, usually steam or hot oil, throughout the entire system. The
current regulations require that, after a tank equipped with interior
heater coils is unloaded, the inlet and outlet pipe connections must be
left open for drainage and to prevent the potential collapse of the
coils from the vacuum otherwise created from condensing vapors. This
requirement applies whether or not the coils were actually used to heat
the commodity from the tank.
Comments on this issue were split between supporters and those who
opposed removal of the requirements. Several commenters thought that if
steam were used, drainage of the condensate would inhibit corrosion.
RSPA and FRA believe it unlikely that keeping the inlet and outlet pipe
caps off will actually inhibit corrosion of the coils because heater
coils become bent and often water remains trapped in pipe valleys.
Further, because interior heater coils may exceed 700 feet in length
there is inadequate air flow within the coils to dry them completely.
In FRA's experience, the single most common failure of interior heater
coils is not corrosion or collapse but failure of coil anchors. When
the anchor fails, the coils move, creating stresses. Fatigue cracks may
occur in these high stress areas and create the potential for a
hazardous material release, RSPA has, within the last two years, issued
29 exemptions allowing the transportation of tank cars containing the
residue of a hazardous material with the heater coil pipe caps on the
heater coil pipes.
After considering the comments received, RSPA and FRA conclude that
coil failures are usually the result of poor maintenance or operational
practices, both of which should be reviewed by the industry. This final
rule makes optional the current requirement that the inlet and outlet
pipe connections must remain open.
Section 174.85
Corresponding changes in Secs. 172.510 and 172.526 remove
provisions for a RESIDUE placard. Two commenters noted that proposed
paragraph (c) referenced ``rail car'' rather than ``tank car'', which
would expand current provisions. RSPA agrees and is revising paragraph
(c) to reference a tank car containing a residue of a hazardous
material.
Part 178
Section 178.337-2
Two ASTM references are updated in paragraphs (b)(2)(i) and (ii).
Part 179
The following sections are revised by updating certain ASTM
specifications and deleting others that are no longer used, based on a
petition [P-1023] from AAR: Secs. 179.100-7, 179.100-10, 179.100-20,
179.102-1, 179.102-2, 179.200-7, 179.200-24, 179.201-5, and 179.300-7.
[[Page 28671]]
Sections 179.12 through 179.12-7
Sections 179.12-1 through 179.12-7 are removed and Sec. 179.12 is
revised by incorporating provisions from Secs. 179.12-1 and 179.12-5.
The design and materials of construction for interior heater coils
require AAR approval. This final rule removes the DOT specification
requirements and allows AAR greater flexibility in approving heater
system designs.
Section 179.15
This section is added to consolidate pressure relief device
requirements currently contained in Secs. 173.314, 179.100-15, 179.200-
18, 179.201-7 and 179.220-19 and adopt provisions to: (1) increase the
start-to-discharge pressure of pressure relief devices for certain low
pressure tanks while allowing the continued use of existing cars; (2)
allow for a reduced orifice in the upstream nozzle of a pressure relief
device to accommodate pressure surges; (3) increase the rupture disc
burst pressure for cars so equipped; (4) standardize the start-to-
discharge pressure setting for all commodities and tank car
specifications; and (5) align the start-to-discharge pressure for tank
cars with a setting prescribed by the ASME code for pressure vessels.
Most commenters endorsed RSPA's proposed addition of this section,
with minor editorial clarifications, stating that this was a worthwhile
change in the regulations that would enhance overall safety and benefit
a number of shippers and carriers. CMA stated that proposed provisions
in this new section would allow shippers to establish pressure relief
device settings that are more directly related to the product
requirements, rather than arbitrarily relating the settings to the tank
test pressure.
The AAR and the Railway Progress Institute (RPI) suggested that
RSPA include the ``mid-range'' temperature proposed in Sec. 173.24b for
the calculation of outage and filling limits into pressure relief
device setting requirements. RSPA proposed a mid- range temperature of
43 deg.C (110 deg.F) for certain thermally protected and jacketed tank
cars. RSPA and FRA agree, and a mid-range temperature requirement is
added in paragraph (b)(1).
Several commenters suggested that RSPA adopt a range for the burst
pressure, as opposed to a set burst pressure (e.g., from 20 to 33
percent of the tank burst pressure for DOT 111A60W tank cars). Other
commenters suggested an extension of the proposed one-year period
because development of rupture discs that are designed to the
dimensions of the rupture disc holder may take longer than one year and
thus would not be commercially available. The commenters claimed that
if this requirement were adopted and made effective within one year,
the current inventory of rupture discs would become worthless.
RSPA and FRA believe the need to increase the burst pressure of a
rupture disc installed in a nonreclosing pressure relief device is
warranted because of the number of premature rupture disc failures in
transportation which have resulted in railroad employee injuries. Of
the 5,406 reported hazardous materials releases by rail from 1990
through 1994, RSPA received reports of 1,716 rupture disc failures (an
average of 343 each year). RSPA also received 418 reports of railroad
employee injuries as a result of a release of hazardous materials (all
sources of release for an average of 84 each year). Because rupture
disc failures account for nearly 32 percent of the total number of
releases by rail during this study period, RSPA and FRA believe that
there will be a considerable decrease in the number of premature
rupture disc failures as a result of increasing the burst pressure of
the rupture disc.
This final rule adopts a rupture disc burst pressure of 33 percent
of the tank burst pressure because such pressures can reduce premature
failures in the transportation system. Rupture discs are required to be
manufactured with a tolerance of +0 to -15 percent of the burst
pressure marked on the rupture disc. (See A5.02 of the AAR Tank Car
Manual.) In addition, in response to concerns expressed by commenters,
RSPA is extending the proposed one-year transition period in paragraph
(f) to October 1, 1998. This extension will minimize cost impacts in
implementing new designs and will facilitate depletion of existing
inventory of rupture discs.
One commenter suggested that RSPA incorporate a requirement for a
``means of inspection of the disc without releasing clamping pressure
on the disc,'' similar to A4.07(d) in the AAR Specifications for Tank
Cars. Many safety vent devices in use today have such features,
including hinged covers and screw plugs, for the inspection of a
rupture disc. While these devices are designed to meet the requirements
of the AAR specifications, RSPA and FRA believe that in order to fully
inspect a rupture disc, the disc must be removed from the safety vent
device. It is important that a careful inspection (both top and bottom
of the disc) be conducted for corrosion and damage because it has been
FRA's experience that a rupture disc may appear normal on the top side,
but be severely damaged or corroded on the bottom side. For these
reasons, RSPA recently amended the regulations under Docket HM-201 to
require a careful inspection of the rupture disc. See
Sec. 173.31(d)(1)(vi), effective July 1, 1996 (60 FR 49048, 49073).
In addition, the following editorial changes are made to provisions
proposed in the NPRM: paragraph (b)(4) is revised by removing the word
``valve''; paragraph (e)(2) is revised by replacing the word ``fail''
with ``burst'' and by adding the wording ``at not greater than'' before
``95''; a new paragraph (e)(3) is added to base the vapor tight
pressure and the start-to-discharge tolerance on the discharge setting
of the reclosing pressure relief device; in paragraph (f), paragraph
``(b)(4)'' is added after paragraph ``(a)''; and paragraph (g) is
revised to require each pressure relief device to communicate with the
vapor space above the lading as near as practicable on the longitudinal
centerline and center of the tank.
Sections 179.100-15, 179.200-18, 179.201-7, and 179.220-19
These sections contain provisions for safety relief devices.
Because requirements for safety relief devices are consolidated in
Sec. 179.15, RSPA is removing these sections from the HMR.
Sections 179.101-1 and 179.201-1
Individual specification requirements for pressure tank cars and
non-pressure tank cars are revised. These revisions correct many
typographical errors and remove several special references that are no
longer applicable. RSPA also is adding a new class ``DOT 120A''
specification tank car and a new ``DOT 111A60W6'' specification tank
car in the table based on two petitions for rulemaking [P-1044 and P-
1119] from AAR. One commenter correctly noted that if the DOT 120A tank
car is adopted, RSPA should assign packaging authorizations in Part 173
and Sec. 172.102. The commenter also requested that this car be
authorized in Sec. 173.314 for ``Division 2.2 not specifically
identified in this table''. RSPA agrees and is adding authorizations
for a DOT120A tank car to appropriate sections. RSPA is removing
certain entries from the table since these provisions are currently
found in the text proceeding the table (see for example Secs. 179.200-
11, 179.200-14, and 179.200- 16). An editorial revision is made to a
reference in the Sec. 179.201-1 table for DOT
[[Page 28672]]
111A100W4, based on a commenter's suggestion.
Section 179.102-4
Paragraph (d), which specifies at least one pressure relief valve
on a tank car tank used to transport vinyl fluoride, inhibited, is
removed, consistent with the consolidation of safety relief device
provisions in Sec. 179.15. In addition, paragraphs (b) and (c) are
redesignated paragraphs (a) and (b), paragraphs (e) through (k) are
redesignated paragraphs (c) through (i), and reserved paragraph (l) is
removed.
Section 179.103-5
Paragraph (b)(2) is revised as proposed to adopt requirements for
the attachment of unloading connections for bottom outlets on pressure
tank cars. This revision reflects existing requirements for bottom
outlets on non-pressure tank cars.
Section 179.200-7
In addition to the revision of the paragraph (b) table discussed
previously, certain ASTM specifications are revised to remove
references to outdated publications. The entry for ASTM B 209-70, Alloy
6061 is removed, as are footnotes 4 and 5 associated with that entry.
Footnote 2 following the paragraph (d) table is revised to reference
Practice A of ASTM A 262-85, which is a definitive, rapid method of
identifying, by simple etching, those specimens free of susceptibility
to intergranular attack.
Section 179.200-14
The first sentence of paragraph (a) and the first sentence of
paragraph (b) are revised to recognize the new outage and filling
limits for tank cars adopted in Docket HM-181.
Section 179.200-16
RSPA is revising the first sentence in paragraph (d) to require an
outage scale visible through the manway opening when using a gauging
device. RSPA is adopting a commenter's suggested alternative wording
because it clarifies this provision.
Section 179.200-24
Based on a commenter's suggestion to indicate the grade of material
for the entry ``Material'', the reference to ``ASTM A 285C'' is revised
to read ``ASTM A 516-GR 70''.
Section 179.201-4
This section is adopted as proposed to refer to Footnote 2 of
Sec. 179.200-7(d) rather than the AAR Specifications to specify
material requirements for fittings, tubes, castings, projections, and
closures.
Sections 179.220-7 and 179.300-7
References to ASTM A 515 and ASTM A 285 are removed from the table
following paragraph (b) in Sec. 179.220-7 and the table following
paragraph (a) in Sec. 179.300-7, because these specifications no longer
are authorized for new construction.
Section 179.221-1
RSPA is revising the class DOT 115A specification table as noted in
the discussion of Secs. 179.101-1 and 179.201-1.
Sections 179.222, 179.222-1, and 179.500-17
These sections are removed because identical provisions are
contained elsewhere in the HMR.
III. Rulemaking Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule is not considered a significant regulatory action
under section 3(f) of Executive Order 12866 and therefore, was not
reviewed by the Office of Management and Budget. The rule is not
considered a significant rule under the Regulatory Policies and
Procedures of the Department of Transportation [44 FR 11034].
The economic impact of this rule is expected to result in only
minimal costs to certain persons subject to the HMR and may result in
modest cost savings to a small number of persons subject to the HMR and
to the agency. Because of the minimal economic impact of this rule,
preparation of a regulatory impact analysis or a regulatory evaluation
is not warranted.
B. Executive Order 12612
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 12612 (``Federalism'').
Federal law expressly preempts State, local, and Indian tribe
requirements applicable to the transportation of hazardous material
that cover certain subjects and are not substantively the same as
Federal requirements. 49 U.S.C. 5125(b)(1). These subjects are:
(1) The designation, description, and classification of hazardous
material;
(2) The packing, repacking, handling, labeling, marking, and
placarding of hazardous material;
(3) The preparation, execution, and use of shipping documents
pertaining to hazardous material, and requirements respecting the
number, content, and placement of such documents;
(4) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous material; or
(5) The design, manufacturing, fabrication, marking, maintenance,
reconditioning, repairing, or testing of a package or container which
is represented, marked, certified, or sold as qualified for use in the
transportation of hazardous material.
This final rule preempts State, local, or Indian tribe requirements
concerning these subjects unless the non-Federal requirements are
``substantively the same'' (see 49 CFR 107.202(d)) as the Federal
requirements.
Federal law (49 U.S.C. 5125(b)(2)) provides that if DOT issues a
regulation concerning any of the covered subjects, after November 16,
1990, DOT must determine and publish in the Federal Register the
effective date of Federal preemption. The effective date may not be
earlier than the 90th day following the date of issuance of the final
rule and not later than two years after the date of issuance. RSPA has
determined that the effective date of Federal preemption for these
requirements will be October 1, 1996. Thus, RSPA lacks discretion in
this area, and preparation of a federalism assessment is not warranted.
C. Regulatory Flexibility Act
This final rule responds to petitions for rulemaking and agency
review. It is intended to provide clarification of the regulations and
relax certain requirements. Therefore, I certify that this final rule
will not have a significant economic impact on a substantial number of
small entities.
D. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, no person is required to
respond to a collection of information unless it displays a valid OMB
control number. Information collection requirements in 49 CFR parts 172
and 174 pertaining to shipping papers are currently approved under OMB
control number 2137-0051. A requirement to annotate a reporting mark
and number on shipping documents for certain rail shipments reflects a
current rail carrier operating requirement and insignificantly
increases the amount of burden imposed by this collection. Some
provisions adopted in this final rule, such as elimination of
requirements for placing placard endorsements and placard notations on
shipping documents, will result in a minor reduction in the amount of
burden imposed by this collection. RSPA believes that these changes in
burden are not sufficient to warrant
[[Page 28673]]
revision of the currently approved information collection.
E. Regulation Identifier Number (RIN)
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN number contained in the heading
of this document can be used to cross-reference this action with the
Unified Agenda.
List of Subjects
49 CFR Part 171
Exports, Hazardous materials transportation, Hazardous waste,
Imports, Incorporation by reference, Reporting and recordkeeping
requirements.
49 CFR Part 172
Hazardous materials transportation, Hazardous waste, Labels,
Markings, Packaging and containers, Reporting and recordkeeping
requirements.
49 CFR Part 173
Hazardous materials transportation, Packaging and containers,
Radioactive materials, Reporting and recordkeeping requirements,
Uranium.
49 CFR Part 174
Hazardous materials transportation, Radioactive materials, Railroad
safety.
49 CFR Part 178
Hazardous materials transportation, Incorporation by reference,
Motor vehicles safety, Packaging and containers, Reporting and
recordkeeping requirements.
49 CFR Part 179
Hazardous materials transportation, Incorporation by reference,
Railroad safety, Reporting and recordkeeping requirements.
In consideration of the foregoing, 49 CFR Chapter I is amended as
follows:
PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS
1. The authority citation for Part 171 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
2. In the Sec. 171.7(a)(3) Table, under the entry American Society
for Testing and Materials, 9 entries are removed and 9 new entries are
added in alphabetical order, to read as follows:
Sec. 171.7 Reference material.
(a) Matter incorporated by reference * * *
(3) Table of material incorporated by reference. * * *
------------------------------------------------------------------------
Source and name of material 49 CFR reference
------------------------------------------------------------------------
* * * *
* * *
American Society for Testing and
Materials
* * * *
* * *
[Remove]
ASTM A 20-81 Standard 178.337; 179.102-17
Specification for General
Requirements for Steel Plates
for Pressure Vessels, Revision C.
* * * *
* * *
ASTM A 240-82 Standard 178.57; 178.358; 179.100; 179.200;
Specification for Heat-Resisting 179.201; 179.220; 179.400.
Chromium and Chromium-Nickel
Stainless Steel Plate, Sheet and
Strip for Fusion-Welded Unfired
Pressure Vessels, Revision A.
* * * *
* * *
ASTM A 262-68 Recommended 179.100; 179.200.
Practices for Detecting
Susceptibility to Intergranular
Attack in Stainless Steels.
* * * *
* * *
ASTM A 302-78 Pressure Vessel 179.100; 179.200; 179.220.
Plates, Alloy Steel, Manganese-
Molybdenum and Manganese-
Molybdenum Nickel.
* * * *
* * *
ASTM A 370-77 Standard Methods 179.102-4 and 179.102-17
and Definition for Mechanical
Testing of Steel Products.
* * * *
* * *
ASTM A 516-79b Standard 178.337; 179.100; 179.102; 179.200
Specification for Pressure 179.220
Vessel Plates, Carbon Steel, for
Moderate and Lower-Temperature
Service.
ASTM A 537-80 Standard 179.100; 179.102.
Specification for Pressure
Vessel Plates, Heat-Treated,
Carbon-Manganese-Silicon Steel.
* * * *
* * *
ASTM B 162-69 Nickel Plate, 179.200.
Sheet, and Strip.
ASTM B 209-69 Aluminum Alloy 179.100; 179.200; 179.220
Sheet and Plate.
* * * *
* * *
[Add]
ASTM A 20/A 20M-93a Standard 178.337-2; 179.102-4; 179.102-17.
Specification for General
Requirements for Steel Plates
for Pressure Vessels.
* * * *
* * *
ASTM A 240/A 240M-94b Standard 178.57; 178.358-5; 179.100-7; 179.100-
Specification for Heat-Resisting 10; 179.102-1; 179.102-4; 179.102-
Chromium and Chromium-Nickel 17; 179.200-7; 179.201-5; 179.220-7;
Stainless Steel Plate, Sheet and 179.400-5.
Strip for Pressure Vessels.
[[Page 28674]]
* * * *
* * *
ASTM A 262-93a Standard Practices 179.100-7; 179.200-7; 179.201-4.
for Detecting Susceptibility to
Intergranular Attack in
Austenitic Stainless Steels.
* * * *
* * *
ASTM A 302/A 302M-93 Standard 179.100-7; 179.200-7; 179.220-7.
Specification for Pressure
Vessel Plates, Alloy Steel,
Manganese-Molybdenum and
Manganese-Molybdenum Nickel.
* * * *
* * *
ASTM A 370-94 Standard Test 179.102-1; 179.102-4; 179.102-17.
Methods and Definitions for
Mechanical Testing of Steel
Products.
* * * *
* * *
ASTM A 516/A 516M-90 Standard 178.337-2; 179.100-7; 179.100-20;
Specification for Pressure 179.102-1; 179.102-2; 179.102-4;
Vessel Plates, Carbon Steel, for 179.102-17; 179.200-7; 179.220-7.
Moderate and Lower- Temperature
Service.
ASTM A 537/A 537M-91 Standard 179.100-7; 179.102-4; 179.102-17.
Specification for Pressure
Vessel Plates, Heat-Treated,
Carbon-Manganese-Silicon Steel.
* * * *
* * *
ASTM B 162-93a Standard 179.200-7.
Specification for Nickel Plate,
Sheet, and Strip.
ASTM B 209-93 Standard 179.100-7; 179.200-7; 179.220-7.
Specification for Aluminum and
Aluminum-Alloy Sheet and Plate.
* * * *
* * *
------------------------------------------------------------------------
* * * * *
Sec. 171.7 [Amended]
3. In addition, Sec. 171.7, in the paragraph (a)(3) table, the
following changes are made:
a. Under American Society for Testing and Materials, the following
entries are removed: ASTM A 53-69a, ASTM A 178-70, ASTM A 192-69, ASTM
A 269-69, ASTM A 285-78, ASTM A 312-70a, ASTM A 515-69, ASTM B 161-70,
ASTM B 210-70, ASTM B 221-76, ASTM B 241-76.
b. Under Association of American Railroads, for the entry ``AAR
Manual of Standards and Recommended Practices, Section I, Specially
Equipped Freight Car and Intermodal Equipment, 1988'' in Column (2), a
reference ``174.55;'' is added as the first reference.
c. Under Association of American Railroads, for the entry ``AAR
Manual of Standards and Recommended Practices, Section C--Part III,
Specifications for Tank Cars, Specification M-1002, September 1992'' in
Column (2), a reference ``179.15;'' is added in numerical order.
PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND
TRAINING REQUIREMENTS
4. The authority citation for Part 172 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
Sec. 172.101 [Amended]
5. In Sec. 172.101, in the Hazardous Materials Table, the following
changes are made:
a. For the following entries, in Column (7), Special Provision
``B12,'' is removed:
Acrolein, inhibited;
Bromine or Bromine solutions;
Bromine chloride;
Dinitrogen tetroxide, liquefied;
Formic acid;
Hydrocyanic acid, aqueous solutions or Hydrogen cyanide, aqueous
solutions with not more than 20 percent hydrogen cyanide;
Hydrocyanic acid, aqueous solutions with less than 5 percent hydrogen
cyanide;
Hydrofluoric acid, solution, with more than 60 percent strength;
[[Page 28675]]
Hydrofluoric acid, solution, with not more than 60 percent strength;
Hydrogen cyanide, stabilized with less than 3 percent water;
Hydrogen fluoride, anhydrous;
Hydrogen peroxide and peroxyacetic acid mixtures, stabilized with
acids, water and not more than 5 percent peroxyacetic acid;
Hydrogen peroxide, aqueous solutions with more than 40 percent but not
more than 60 percent hydrogen peroxide (stabilized as necessary);
Hydrogen peroxide, aqueous solutions with not less than 20 percent but
not more than 40 percent hydrogen peroxide (stabilized as necessary);
Hydrogen peroxide, stabilized or Hydrogen peroxide aqueous solutions,
stabilized with more than 60 percent hydrogen peroxide;
Motor fuel anti-knock mixtures;
Nitric acid other than red fuming, with more than 70 percent nitric
acid;
Nitric acid other than red fuming, with not more than 70 percent nitric
acid;
Nitric oxide;
Nitric oxide and dinitrogen tetroxide mixtures or Nitric oxide and
nitrogen dioxide mixtures;
Perchloryl fluoride;
Phosphorus, amorphous;
Phosphorus, white dry or Phosphorus, white, under water or Phosphorus,
white, in solution or Phosphorus, yellow dry or Phosphorus, yellow,
under water or Phosphorus, yellow, in solution;
Phosphorous white, molten;
Potassium nitrate and sodium nitrite mixtures;
Sulfur trioxide, inhibited; and
Sulfur trioxide, uninhibited.
b. For the entry ``Calcium carbide'', for Packing Groups I and II,
in Column (7), Special Provision ``B59,'' is added immediately
following ``B55,'' each place it appears.
c. For the entries ``Carbon dioxide, solid or Dry ice'' and
``Potassium permanganate'', in Column (7), Special Provision ``B12'' is
removed.
d. For the entry ``Dimethylhydrazine, unsymmetrical'', in Column
(7), Special Provision ``B79,'' is removed.
6. In Sec. 172.102, in paragraph (c)(3), Special Provisions B12 and
B79 are removed and Special Provisions B42, B57, B65, B71, B72, B74,
B76 and the first sentence of B78 are revised to read as follows:
Sec. 172.102 Special provisions.
* * * * *
(c) * * *
(3) * * *
Code/Special Provisions
* * * * *
B42 Tank cars must have a test pressure of 34.47 Bar (500 psig) or
greater and conform to Class 105J. Each tank car must have a safety
relief device having a start-to-discharge pressure of 10.34 Bar (150
psig). The tank car specification may be marked to indicate a test
pressure of 13.79 Bar (200 psig).
* * * * *
B57 Class 115A tank car tanks used to transport chloroprene must be
equipped with a safety vent of a diameter not less than 305 mm (12
inches) with a maximum rupture disc pressure of 45 psi.
* * * * *
B65 Tank cars must have a test pressure of 34.47 Bar (500 psig) or
greater and conform to Class 105J. Each tank car must have a safety
relief device having a start-to-discharge pressure of 15.51 Bar (225
psig). The tank car specification may be marked to indicate a test
pressure of 20.68 Bar (300 psig).
* * * * *
B71 Tank cars must have a test pressure of 20.68 Bar (300 psig) or
greater and conform to Class 105, 112, 114 or 120.
B72 Tank cars must have a test pressure of 34.47 Bar (500 psig) or
greater and conform to Class 105J, 106, or 110.
B74 Tank cars must have a test pressure of 20.68 Bar (300 psig) or
greater and conform to Class 105S, 106, 110, 112J, 114J or 120S.
B76 Tank cars must have a test pressure of 20.68 Bar (300 psig) or
greater and conform to Class 105S, 112J, 114J or 120S. Each tank car
must have a safety relief device having a start-to-discharge
pressure of 10.34 Bar (150 psig). The tank car specification may be
marked to indicate a test pressure of 13.79 Bar (200 psig).
* * * * *
B78 Tank cars must have a test pressure of 4.14 Bar (60 psig) or
greater and conform to Class 103, 104, 105, 109, 111, 112, 114 or
120. * * *
* * * * *
Sec. 172.102 [Amended]
7. In addition, in Sec. 172.102, in paragraph (c)(3), the following
changes are made:
a. For Special Provision B4, the wording ``AAR 206 tank car tanks
and'' is removed.
b. For Special Provision B5, the wording ``DOT 103 ALW, 111A60 ALW
tank car tanks and'' is removed.
c. For Special Provision B10, the wording ``AAR 206 tank car
tanks,'' is removed.
8. In Sec. 172.203, paragraphs (e)(2) and (g) are revised to read
as follows:
Sec. 172.203 Additional description requirements.
* * * * *
(e) * * *
(2) The description on the shipping paper for a tank car containing
the residue of a hazardous material must include the phrase, ``RESIDUE:
LAST CONTAINED * * *'' before the basic description.
* * * * *
(g) Transportation by rail. (1) A shipping paper prepared by a rail
carrier for a rail car, freight container, transport vehicle or
portable tank that contains hazardous materials must include the
reporting mark and number when displayed on the rail car, freight
container, transport vehicle or portable tank.
(2) The shipping paper for each DOT-113 tank car containing a
Division 2.1 material or its residue must contain an appropriate
notation, such as ``DOT 113'', and the statement ``Do not hump or cut
off car while in motion.''
(3) When shipments of elevated temperature materials are
transported under the exception permitted in Sec. 173.247(h)(3) of this
subchapter, the shipping paper must contain an appropriate notation,
such as ``Maximum operating speed 15 mph.''.
* * * * *
9. In Sec. 172.205, paragraph (f) is revised to read as follows:
Sec. 172.205 Hazardous waste manifest.
* * * * *
(f) Transportation by rail. Notwithstanding the requirements of
paragraphs (d) and (e) of this section, the following requirements
apply:
(1) When accepting hazardous waste from a non-rail transporter, the
initial rail transporter must:
(i) Sign and date the manifest acknowledging acceptance of the
hazardous waste;
(ii) Return a signed copy of the manifest to the non-rail
transporter;
(iii) Forward at least three copies of the manifest to:
(A) The next non-rail transporter, if any;
(B) The designated facility, if the shipment is delivered to that
facility by rail; or
(C) The last rail transporter designated to handle the waste in the
United States; and
(iv) Retain one copy of the manifest and rail shipping paper in
accordance with 40 CFR 263.22.
(2) Rail transporters must ensure that a shipping paper containing
all the information required on the manifest (excluding the EPA
identification numbers, generator certification and signatures) and,
for exports, an EPA Acknowledgment of Consent accompanies the hazardous
waste at all times. Intermediate rail transporters are not required to
sign either the manifest or shipping paper.
[[Page 28676]]
(3) When delivering hazardous waste to the designated facility, a
rail transporter must:
(i) Obtain the date of delivery and handwritten signature of the
owner or operator of the designated facility on the manifest or the
shipping paper (if the manifest has not been received by the facility);
and
(ii) Retain a copy of the manifest or signed shipping paper in
accordance with 40 CFR 263.22.
(4) When delivering hazardous waste to a non-rail transporter, a
rail transporter must:
(i) Obtain the date of delivery and the handwritten signature of
the next non-rail transporter on the manifest; and
(ii) Retain a copy of the manifest in accordance with 40 CFR
263.22.
(5) Before accepting hazardous waste from a rail transporter, a
non-rail transporter must sign and date the manifest and provide a copy
to the rail transporter.
* * * * *
10. In Sec. 172.330, paragraph (a)(1) is revised to read as
follows:
Sec. 172.330 Tank cars and multi-unit tank car tanks.
(a) * * *
(1) In a tank car unless the following conditions are met:
(i) The tank car must be marked on each side and each end as
required by Sec. 172.302 with the identification number specified for
the material in the Sec. 172.101 Table; and
(ii) A tank car containing any of the following materials must be
marked on each side with the key words (including words such as
``stabilized'', ``inhibited'', ``compressed'', or ``liquefied'') of the
proper shipping name specified for the material in the Sec. 172.101
Table, or with a common name authorized for the material in this
subchapter (e.g., ``Refrigerant Gas''):
Acrolein, inhibited
Ammonia, anhydrous, liquefied
Ammonia solutions (more than 50% ammonia)
Bromine or Bromine solutions
Bromine chloride
Chloroprene, inhibited
Dispersant gas or Refrigerant gas (as defined in Sec. 173.115 of
this subchapter)
Division 2.1 materials
Division 2.2 materials (in Class DOT 107 tank cars only)
Division 2.3 materials
Formic acid
Hydrocyanic acid, aqueous solutions
Hydrofluoric acid, solution
Hydrogen cyanide, stabilized (less than 3% water)
Hydrogen fluoride, anhydrous
Hydrogen peroxide, aqueous solutions (greater than 20% hydrogen
peroxide)
Hydrogen peroxide, stabilized
Hydrogen peroxide and peroxyacetic acid mixtures
Nitric acid (other than red fuming)
Phosphorus, amorphous
Phosphorus, white dry or Phosphorus, white, under water or
Phosphorus white, in solution, or Phosphorus, yellow dry or
Phosphorus, yellow, under water or Phosphorus, yellow, in solution
Phosphorus white, molten
Potassium nitrate and sodium nitrate mixtures
Potassium permanganate
Sulfur trioxide, inhibited
Sulfur trioxide, uninhibited
* * * * *
11. In Sec. 172.510, paragraph (a) is revised, paragraphs (b) and
(c) are removed, and paragraphs (d) and (e) are redesignated as
paragraphs (b) and (c), respectively, to read as follows:
Sec. 172.510 Special placarding provisions: Rail.
(a) White square background. The following must have the specified
placards placed on a white square background, as described in
Sec. 172.527:
(1) Division 1.1 and 1.2 (explosive) materials which require
EXPLOSIVES 1.1 or EXPLOSIVES 1.2 placards affixed to the rail car;
(2) Materials classed in Division 2.3 Hazard Zone A or 6.1 Packing
Group I Hazard Zone A which require POISON GAS or POISON placards
affixed to the rail car, including tank cars containing only a residue
of the material; and
(3) Class DOT 113 tank cars used to transport a Division 2.1
(flammable gas) material, including tank cars containing only a residue
of the material.
* * * * *
Sec. 172.526 [Removed and Reserved]
12. Section 172.526 is removed and reserved.
PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND
PACKAGINGS
13. The authority citation for Part 173 continues to read as
fol
FR Doc. 96-12954 Transportation of Hazardous Materials by Rail; Miscellaneous Amendments
lows:
Authority: 49 U.S.C. 5102-5127; 49 CFR 1.53.
14. In Sec. 173.24b, paragraph (a)(3) is removed and paragraph
(a)(1) is revised to read as follows:
Sec. 173.24b Additional general requirements for bulk packagings.
(a) Outage and filling limits. (1) Except as otherwise provided in
this subchapter, liquids and liquefied gases must be so loaded that the
outage is at least five percent for materials poisonous by inhalation,
or at least one percent for all other materials, of the total capacity
of a cargo tank, portable tank, tank car (including dome capacity),
multi-unit tank car tank, or any compartment thereof, at the following
reference temperatures--
(i) 46 deg.C (115 deg.F) for a noninsulated tank;
(ii) 43 deg.C (110 deg.F) for a tank car having a thermal
protection system, incorporating a metal jacket that provides an
overall thermal conductance at 15.5 deg.C (60 deg.F) of no more than
10.22 kilojoules per hour per square meter per degree Celsius (0.5 Btu
per hour/per square foot/ per degree F) temperature differential; or
(iii) 41 deg.C (105 deg.F) for an insulated tank.
* * * * *
Sec. 173.29 [Amended]
15. In Sec. 173.29, paragraph (f) is removed and reserved.
Sec. 173.240 [Amended]
16. In Sec. 173.240, in paragraph (a), the wording ``or 115 tank
car tanks;'' is revised to read ``115, or 120 tank car tanks;''.
Sec. 173.241 [Amended]
17. In Sec. 173.241, in paragraph (a), the wording ``or 115 tank
car tanks;'' is revised to read ``115, or 120 tank car tanks;''.
Sec. 173.242 [Amended]
18. In Sec. 173.242, in paragraph (a), the wording ``or 115 tank
car tanks;'' is revised to read ``115, or 120 tank car tanks;''.
Sec. 173.243 [Amended]
19. In Sec. 173.243, in paragraph (a), the wording ``or 115 fusion-
welded tank car tanks;'' is revised to read ``115, or 120 fusion-welded
tank car tanks;''.
Sec. 173.244 [Amended]
20. In Sec. 173.244, in paragraph (a), the wording ``or 114 fusion-
welded tank car tanks;'' is revised to read ``114, or 120 fusion-welded
tank car tanks;''.
21. In Sec. 173.314, as amended at 60 FR 49074, effective July 1,
1996, paragraph (b)(5) is removed, paragraph (b)(6) is redesignated as
paragraph (b)(5) and revised, Note 2 following the paragraph (c) table
is revised, and paragraph (i) is removed and reserved, to read as
follows:
Sec. 173.314 Compressed gases in tank cars and multi-unit tank cars.
* * * * *
(b) * * *
(5) Each tank car used for the transportation of anhydrous ammonia
or any material that meets the criteria of Division 2.1 or 2.3 must
have gaskets for manway cover plates and for mounting
[[Page 28677]]
of fittings designed (for temperature, application, media, pressure,
and size) to create a positive seal so that, under conditions normally
incident to transportation, there will not be an identifiable release
of the material to the environment. The use of sealants to install
gaskets is prohibited.
(c) * * *
Notes:
* * * * *
2. The liquefied gas must be so loaded so that the outage is at
least two percent of the total capacity of the tank at the reference
temperature of 46 deg.C (115 deg.F) for a noninsulated tank; 43
deg.C (110 deg.F) for a tank having a thermal protection system
incorporating a metal jacket that provides an overall thermal
conductance at 15.5 deg.C (60 deg.F) of no more than 10.22
kilojoules per hour per square meter per degree Celsius (0.5 Btu per
hour/per square foot/per degree F) temperature differential; or 41
deg.C (105 deg.F) for an insulated tank.
* * * * *
Sec. 173.314 [Amended]
22. In addition, in Sec. 173.314, as amended at 60 FR 49074,
effective July 1, 1996, the following changes are made:
a. In the paragraph (c) table, in Column 3, the wording ``, 120A''
is added in numerical order for the following entries:
Ammonia, anhydrous, or ammonia solutions > 50 percent ammonia
Ammonia solutions with > 35 percent ammonia, but 50 percent
ammonia by mass
Division 2.1 materials not specifically provided in this table
Division 2.2 materials not specifically identified in this table
Division 2.3 Zone B materials not specifically identified in this table
Division 2.3 Zone C materials not specifically identified in this table
Division 2.3 Zone D materials not specifically identified in this table
Ethylamine
b. In the paragraph (c) table, in Column 3, for the entry
``Dimethyl ether'', the class designations ``, 112, 114, 120'' are
added in appropriate numerical order.
PART 174--CARRIAGE BY RAIL
23. The authority citation for Part 174 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
24. Section 174.3 is revised to read as follows:
Sec. 174.3 Unacceptable hazardous materials shipments.
No person may accept for transportation or transport by rail any
shipment of hazardous material that is not in conformance with the
requirements of this subchapter.
Sec. 174.8 [Removed]
25. Section 174.8 is removed.
26. Section 174.9 is revised to read as follows:
Sec. 174.9 Inspection and acceptance.
At each location where a hazardous material is accepted for
transportation or placed in a train, the carrier shall inspect each
rail car containing the hazardous material, at ground level, for
required markings, labels, placards, securement of closures and
leakage. This inspection may be performed in conjunction with
inspections required under parts 215 and 232 of this title.
Sec. 174.10 [Removed]
27. Section 174.10 is removed.
Sec. 174.11 [Removed]
28. Section 174.11 is removed.
Sec. 174.18 [Removed]
29. Section 174.18 is removed.
30. Section 174.24 is revised to read as follows:
Sec. 174.24 Shipping papers.
A carrier may not accept or transport a hazardous material by rail
unless the carrier receives a shipping paper on which the hazardous
material is properly described in the manner prescribed in part 172 of
this subchapter. An originating carrier must retain a copy of the
shipping paper that bears the shipper's certification as required by
Sec. 172.204 of this subchapter. This section does not apply to a
material that is excepted from shipping paper requirements as specified
in Sec. 172.200 of this subchapter.
Sec. 174.25 [Removed]
31. Section 174.25 is removed.
32. In Sec. 174.26, paragraph (a) is removed, paragraphs (b) and
(c) are redesignated as paragraphs (a) and (b), respectively, and newly
redesignated paragraph (b) is revised to read as follows:
Sec. 174.26 Notice to train crews of placarded cars.
* * * * *
(b) A member of the train crew of a train transporting a hazardous
material must have a copy of a document for the hazardous material
being transported showing the information required by part 172 of this
subchapter.
Secs. 174.47 and 174.48 [Removed]
33. Sections 174.47 and 174.48 are removed.
Sec. 174.49 [Removed]
34. Section 174.49 is removed.
35. Section 174.50 is revised to read as follows:
Sec. 174.50 Nonconforming or leaking packages.
Leaking packages other than tank cars may not be forwarded until
repaired, reconditioned, or overpacked in accordance with Sec. 173.3 of
this subchapter. Except as otherwise provided in this section, a tank
car that no longer conforms to this subchapter may not be forwarded
unless repaired or approved for movement by the Associate Administrator
for Safety, Federal Railroad Administration. Notification and approval
must be furnished in writing, or through telephonic or electronic means
with subsequent written confirmation provided within two weeks. For the
applicable address and telephone number, see part 107, subpart B,
Appendix A, of this chapter. A leaking tank car containing a hazardous
material may be moved without repair or approval only so far as
necessary to reduce or eliminate an immediate threat of harm to human
health or the environment when it is determined its movement would
provide greater safety than allowing the car to remain in place. In the
case of a liquid leak, measures must be taken to prevent the spread of
the liquid.
36. Section 174.55 is revised to read as follows:
Sec. 174.55 General requirements.
(a) Each package containing a hazardous material being transported
by rail in a freight container or transport vehicle must be loaded so
that it cannot fall or slide and must be safeguarded in such a manner
that other freight cannot fall onto or slide into it under conditions
normally incident to transportation. When this protection cannot be
provided by using other freight, it must be provided by blocking and
bracing. For examples of blocking and bracing in freight containers and
transport vehicles, see Bureau of Explosives Pamphlet Nos. 6 and 6C.
(b) Each package containing a hazardous material bearing package
orientation markings prescribed in Sec. 172.312 of this subchapter must
be loaded within a transport vehicle or freight container to remain in
the correct position indicated by those markings during transportation.
(c) The doors of a freight container or transport vehicle may not
be used to secure a load that includes a package containing a hazardous
material unless the doors meet the design strength
[[Page 28678]]
requirements of Specification M-930 (for freight containers) and M-931
(for trailers) in the AAR's Manual of Standards and Recommended
Practices and the load is also within the limits of the design strength
requirements for the doors.
Sec. 174.67 [Amended]
37-38. In Sec. 174.67, in paragraph (k), the wording ``, except
that heater coil inlet and outlet pipes must be left open for
drainage'' is removed.
39. Section 174.85 is amended by revising paragraph (c) to read as
follows:
Sec. 174.85 Position in train of placarded cars, transport vehicles,
freight containers, and bulk packagings.
* * * * *
(c) A tank car containing the residue of a hazardous material must
be separated from a locomotive or occupied caboose by at least one non-
placarded rail car.
* * * * *
PART 178--SPECIFICATIONS FOR PACKAGINGS
40. The authority citation for part 178 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
Sec. 178.337-2 [Amended]
41. In Sec. 178.337-2, the following changes are made:
a. In paragraph (b)(2)(i), the wording ``A-516-72'' is revised to
read ``A 516''.
b. In paragraph (b)(2)(ii) the wording ``A-20-72a'' is revised to
read ``A 20''.
PART 179--SPECIFICATIONS FOR TANK CARS
42. The authority citation for Part 179 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
43. Section 179.12 is revised to read as follows:
Sec. 179.12 Interior heater systems.
(a) Interior heater systems shall be of approved design and
materials. If a tank is divided into compartments, a separate system
shall be provided for each compartment.
(b) Each interior heater system shall be hydrostatically tested at
not less than 13.79 bar (200 psi) and shall hold the pressure for 10
minutes without leakage or evidence of distress.
Secs. 179.12-1 through 179.12-7 [Removed]
44. Sections 179.12-1 through 179.12-7 are removed.
45. Section 179.15 is added to read as follows:
Sec. 179.15 Pressure relief devices.
Except for DOT Class 106, 107, 110, and 113 tank cars, tanks must
have a pressure relief system that conforms to the following
requirements:
(a) Performance standard. Each tank must have a pressure relief
system having sufficient flow capacity to prevent pressure build-up in
the tank to no more than the flow rating pressure of the pressure
relief device in fire conditions as defined in Appendix A of the
Association of American Railroads Specifications for Tank Cars.
(b) Settings for pressure relief valves. (1) Except as provided in
paragraph (b)(2) of this section, a reclosing pressure relief valve
must have a minimum start-to-discharge pressure equal to the sum of the
static head and gas padding pressure and the lading vapor pressure at
the following reference temperatures:
(i) 46 deg.C (115 deg.F) for noninsulated tanks;
(ii) 43 deg.C (110 deg.F) for tanks having a thermal protection
system incorporating a metal jacket that provides an overall thermal
conductance at 15.5 deg.C (60 deg.F) of no more than 10.22 kilojoules
per hour per square meter per degree Celsius (0.5 Btu per hour/per
square foot/per degree F) temperature differential; and
(iii) 41 deg.C (105 deg.F) for insulated tanks.
(2)(i) The start-to-discharge pressure may not be lower than 5.17
Bar (75 psig) or exceed 33 percent of the minimum tank burst pressure.
(ii) Tanks built prior to October 1, 1997 having a minimum tank
burst pressure of 34.47 Bar (500 psig) or less may be equipped with a
reclosing pressure relief valve having a start-to-discharge pressure of
not less than 14.5 percent of the minimum tank burst pressure but no
more than 33 percent of the minimum tank burst pressure.
(3) The vapor tight pressure of a reclosing pressure relief valve
must be at least 80 percent of the start-to-discharge pressure.
(4) The flow rating pressure must be 110 percent of the start-to-
discharge pressure for tanks having a minimum tank burst pressure
greater than 34.47 Bar (500 psig) and from 110 percent to 130 percent
for tanks having a minimum tank burst pressure less than or equal to
34.47 Bar (500 psig).
(5) The tolerance for a reclosing pressure relief valve is
3 psi for valves with a start-to-discharge pressure of 6.89
Bar (100 psig) or less and 3 percent for valves with a
start-to-discharge pressure greater than 6.89 Bar (100 psig).
(c) Flow capacity of pressure relief systems. The total flow
capacity of each reclosing and nonreclosing pressure relief device must
conform to Appendix A of the Association of American Railroads
Specifications for Tank Cars.
(d) Flow capacity tests. The manufacturer of any reclosing or
nonreclosing pressure relief device must design and test the device in
accordance with Appendix A of the Association of American Railroads
Specifications for Tank Cars.
(e) Combination pressure relief systems. A nonreclosing pressure
relief device may be used in series with a nonreclosing pressure relief
valve. The pressure relief valve must be located outboard of the
nonreclosing pressure relief device.
(1) When a breaking pin device is used in combination with a
reclosing pressure relief valve, the breaking pin must be designed to
fail at the start-to-discharge pressure specified in paragraph (b) of
this section, and the reclosing pressure relief valve must be designed
to discharge at not greater than 95 percent of the start-to-discharge
pressure.
(2) When a rupture disc is used in combination with a reclosing
pressure relief valve, the rupture disc must be designed to burst at
the start-to-discharge pressure specified in paragraph (b) of this
section, and the reclosing pressure relief valve must be designed to
discharge at not greater than 95 percent of the start-to-discharge
pressure. A device must be installed to detect any accumulation of
pressure between the rupture disc and the reclosing pressure relief
valve. The detection device must be a needle valve, trycock, or tell-
tale indicator. The detection device must be closed during
transportation.
(3) The vapor tight pressure and the start-to-discharge tolerance
is based on the discharge setting of the reclosing pressure relief
device.
(f) Nonreclosing pressure relief device. In addition to paragraphs
(a), (b)(4), (c), and (d) of this section, a nonreclosing pressure
relief device must conform to the following requirements:
(1) After October 1, 1998, a nonreclosing pressure relief device
must incorporate a rupture disc designed to burst at 33 percent of the
tank burst pressure.
(2) The approach channel and the discharge channel may not reduce
the required minimum flow capacity of the pressure relief device.
(3) The nonreclosing pressure relief device must be designed to
prevent interchange with other fittings installed on the tank car, must
have a structure that encloses and clamps the rupture disc in position
(preventing any distortion or damage to the rupture disc
[[Page 28679]]
when properly applied), and must have a cover, with suitable means of
preventing misplacement, designed to direct any discharge of the lading
downward.
(4) The nonreclosing pressure relief device must be closed with a
rupture disc that is compatible with the lading and manufactured in
accordance with Appendix A of the AAR Specifications for Tank Cars. The
tolerance for a rupture disc is +0 to -15 percent of the burst pressure
marked on the disc.
(g) Location of relief devices. Each pressure relief device must
communicate with the vapor space above the lading as near as
practicable on the longitudinal center line and center of the tank.
(h) Marking of pressure relief devices. Each pressure relief device
and rupture disc must be permanently marked in accordance with the
Appendix A of the Association of American Railroads Specifications for
Tank Cars.
46. In Sec. 179.100-7, the table in paragraph (a) is revised to
read as follows:
Sec. 179.100-7 Materials.
(a) * * *
------------------------------------------------------------------------
Minimum
Minimum elongation in
tensile 2 inches
Specifications strength (percent)
(p.s.i.) welded
welded condition
condition\1\ (longitudinal)
------------------------------------------------------------------------
AAR TC128, Gr. B.......................... 81,000 20
ASTM A 302, Gr. B......................... 80,000 19
ASTM A 516................................ 70,000 20
ASTM A 537, Class 1....................... 70,000 23
------------------------------------------------------------------------
\1\ Maximum stresses to be used in calculations.
* * * * *
Sec. 179.100-7 [Amended]
47. In addition, in Sec. 179.100-7, the following changes are made:
a. In the table in paragraph (b), the last entry ``ASTM B 209-70,
Alloy 6061\4\'' is removed and, in the first column, the wording ``209-
70'' is revised to read ``209'' each place it appears.
b. In the footnotes to the paragraph (b) table, Footnotes 4 and 5
are removed and Footnote 6 is redesignated as Footnote 4.
c. In the table in paragraph (c)(1), the wording ``A240-70'' is
revised to read ``A 240'' each place it appears.
d. In paragraph (c)(2)(i), the wording ``A262-68'' is revised to
read ``A 262'', the word ``Recommended'' is revised to read
``Standard'', and the word ``Austenitic'' is added immediately before
``Stainless Steel''.
Sec. 179.100-10 [Amended]
48. In Sec. 179.100-10, in paragraph (c), the wording ``ASTM A240-
70'' is revised to read ``ASTM A 240''.
Sec. 179.100-15 [Removed]
49. Section 179.100-15 is removed and reserved.
Sec. 179.100-20 [Amended]
50. In Sec. 179.100-20, in the paragraph (a) table, for the entry
``Material'', in the second column, the wording ``ASTM A515-70'' is
revised to read ``ASTM A 516''.
51. Section 179.101-1 is revised to read as follows:
Sec. 179.101-1 Individual specification requirements.
In addition to Sec. 179.100, the individual specification
requirements are as follows:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Minimum
Bursting plate Test Manway
DOT specification Insulation pressure thickness pressure cover Bottom outlet Bottom washout Reference (179.***)
(psi) (inches) (psi) thickness
--------------------------------------------------------------------------------------------------------------------------------------------------------
105A100ALW................... Yes.............. 500 5/8 100 \2\ 2 1/2 No............... No...............
105A200ALW................... Yes.............. 500 5/8 200 \2\ 2 1/2 No............... No...............
105A300ALW................... Yes.............. 750 5/8 300 \2\ 2 5/8 No............... No...............
105A100W..................... Yes.............. 500 \3\ 9/16 100 2 1/4 No............... No...............
105A200W..................... Yes.............. 500 \3\ 9/16 200 2 1/4 No............... No...............
105A300W..................... Yes.............. 750 \1\ 11/16 300 \7\ 2 1/4 No............... No...............
105A400W..................... Yes.............. 1,000 \1\ 11/16 400 \7\ 2 1/4 No............... No...............
105A500W..................... Yes.............. 1,250 \1\ 11/16 500 2 1/4 No............... No............... 102-1, 102-2.
105A600W..................... Yes.............. 1,500 \1\ 11/16 600 2 1/4 No............... No............... 102-4, 102-17.
109A100ALW................... Optional......... 500 5/8 100 \2\ 2 1/2 No............... Optional.........
109A200ALW................... Optional......... 500 5/8 200 \2\ 2 1/2 No............... Optional.........
109A300ALW................... Optional......... 750 5/8 300 \2\ 2 5/8 No............... Optional.........
109A300W..................... Optional......... 500 \1\ 11/16 300 2 1/4 No............... Optional.........
112A200W..................... Optional \4\..... 500 \3\ \5\ 9/ 200 2 1/4 No............... No...............
16
112A340W..................... Optional \4\..... 850 \1\ 11/16 340 2 1/4 No............... No...............
112A400W..................... Optional \4\..... 1,000 \1\ 11/16 400 2 1/4 No............... No...............
112A500W..................... Optional \4\..... 1,250 \1\ 11/16 500 2 1/4 No............... No...............
114A340W..................... Optional \4\..... 850 \1\ 11/16 340 \6\ Optional......... Optional......... 103.
114A400W..................... Optional \4\..... 1,000 \1\ 11/16 400 \6\ Optional......... Optional......... 103.
120A200ALW................... Yes.............. 500 5/8 200 \2\ 2 1/2 Optional......... Optional......... 103.
120A100W..................... Yes.............. 500 \3\ 9/16 100 2 1/4 Optional......... Optional......... 103.
120A200W..................... Yes.............. 500 \3\ 9/16 200 2 1/4 Optional......... Optional......... 103.
120A300W..................... Yes.............. 750 \1\ 11/16 300 2 1/4 Optional......... Optional......... 103.
120A400W..................... Yes.............. 1,000 \1\ 11/16 400 2 1/4 Optional......... Optional......... 103.
120A500W..................... Yes.............. 1,250 \1\ 11/16 500 2 1/4 Optional......... Optional......... 103.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ When steel of 65,000 to 81,000 p.s.i. minimum tensile strength is used, the thickness of plates shall be not less than 5/8 inch, and when steel of
81,000 p.s.i. minimum tensile strength is used, the minimum thickness of plate shall be not less than 9/16 inch.
\2\ When approved material other than aluminum alloys are used, the thickness shall be not less than 2 1/4 inches.
\3\ When steel of 65,000 p.s.i. minimum tensile strength is used, minimum thickness of plates shall be not less than 1/2 inch.
\4\ Tank cars not equipped with a thermal protection or an insulation system used for the transportation of a Class 2 (compressed gas) material must
have at least the upper two-thirds of the exterior of the tank, including manway nozzle and all appurtenances in contact with this area, finished with
a reflective coat of white paint.
\5\ For inside diameter of 87 inches or less, the thickness of plates shall be not less than 1/2 inch.
\6\ See AAR specifications for tank cars, Appendix E, E4.01 and Sec. 179.103-2.
\7\ When the use of nickel is required by the lading, the thickness shall not be less than two inches.
[[Page 28680]]
Sec. 179.102-1 [Amended]
52. In Sec. 179.102-1, in paragraph (a)(1), the following changes
are made:
a. In the first sentence, the wording ``A516-79b'' is revised to
read ``A 516''.
b. At the end of the third sentence, the wording ``A370-77'' is
revised to read ``A 370''.
c. In the last sentence, the wording ``A240-79'' is revised to read
``A 240''.
Sec. 179.102-2 [Amended]
53. In Sec. 179.102-2, in paragraph (a)(1), the wording ``A516-
70a'' is revised to read ``A 516'' and the wording ``TC-128-70'' is
revised to read ``TC-128''.
Sec. 179.102-4 [Amended]
54. In Sec. 179.102-4, the following changes are made:
a. Paragraph (d) is removed.
b. Paragraphs (b) and (c) are redesignated as paragraphs (a) and
(b), respectively.
c. Paragraphs (e) through (k) are redesignated as paragraphs (c)
through (i), respectively.
d. Paragraph (l) is removed.
55. In Sec. 179.103-5, in paragraph (a)(3), the word ``valve'' is
removed, and paragraph (b)(2) is revised to read as follows:
Sec. 179.103-5 Bottom outlets.
* * * * *
(b) * * *
(2) To provide for the attachment of unloading connections, the
discharge end of the bottom outlet nozzle or reducer, the valve body of
the exterior valve, or some fixed attachment thereto, shall be provided
with one of the following arrangements or an approved modification
thereof. (See appendix E. Fig. E17 of the AAR Specifications for Tank
Cars for illustrations of some of the possible arrangements.)
(i) A bolted flange closure arrangement including a minimum 1-inch
NPT pipe plug (see Fig. E17.1) or including an auxiliary valve with a
threaded closure.
(ii) A threaded cap closure arrangement including a minimum 1-inch
NPT pipe plug (see Fig. E17.2) or including an auxiliary valve with a
threaded closure.
(iii) A quick-coupling device using a threaded plug closure of at
least 1-inch NPT or having a threaded cap closure with a minimum 1-inch
NPT pipe plug (see Fig. E17.3 through E17.5). A minimum 1-inch
auxiliary test valve with a threaded closure may be substituted for the
1-inch pipe plug (see Fig E17.6). If the threaded cap closure does not
have a pipe plug or integral auxiliary test valve, a minimum 1-inch NPT
pipe plug shall be installed in the outlet nozzle above the closure
(see Fig. E17.7).
(iv) A two-piece quick-coupling device using a clamped dust cap
must include an in-line auxiliary valve, either integral with the
quick-coupling device or located between the primary bottom outlet
valve and the quick-coupling device. The quick-coupling device closure
dust cap or outlet nozzle shall be fitted with a minimum 1-inch NPT
closure (see Fig. E17.8 and E17.9).
* * * * *
56. Section 179.200-7 is amended by revising the table in paragraph
(b) to read as follows:
Sec. 179.200-7 Materials.
* * * * *
(b) * * *
------------------------------------------------------------------------
Minimum Minimum
tensile elongation in
strength 2 inches
Specifications (p.s.i.) (percent) weld
welded metal
condition (longitudinal)
-------------------------------------------------\1\--------------------
AAR TC 128, Gr. B......................... 81,000 19
ASTM A 516, Gr. 70........................ 70,000 20
------------------------------------------------------------------------
\1\ Maximum stresses to be used in calculations.
* * * * *
Sec. 179.200-7 [Amended]
57. In addition, in Sec. 179.200-7, the following changes are made:
a. In the table in paragraph (c), the last entry ``ASTM B 209-70,
Alloy 6061 \4\'' is removed, and in the first column, for each entry,
the wording ``209-70'' is revised to read ``209''.
b. In the paragraph (c) table, Footnotes 4 and 5 are removed and
Footnote 6 is redesignated as Footnote 4.
c. In the table in paragraph (d), in the first column, for each
entry, the wording ``240-70'' is revised to read ``240''.
d. In Footnote 2 in the paragraph (d) table, the wording ``the
following procedures in ASTM Specification A 262-68 titled,
'Recommended Practices for Detecting Susceptibility to Intergranular
Attack in Stainless Steels,' and must exhibit corrosion rates not
exceeding the following:'' is revised to read ``Practice A of ASTM
Specification A 262 titled, 'Standard Practices for Detecting
Susceptibility to Intergranular Attack in Austenitic Stainless Steels.'
If the specimen does not pass Practice A, Practice B or C must be used
and the corrosion rates may not exceed the following:''.
e. In the table in paragraph (e), in the first column, the wording
``162-692'' is revised to read ``1622''.
f. In the table in paragraph (f), in the first column, the wording
``302-69a'' is revised to read ``302''.
58. In Sec. 179.200-14, the first sentence of paragraph (a) and the
first sentence of paragraph (b) are revised to read as follows:
Sec. 179.200-14 Expansion capacity.
(a) Tanks shall have expansion capacity as prescribed in this
subchapter. * * *
(b) For tank cars having an expansion dome, the expansion capacity
is the total capacity of the tank and dome combined. * * *
* * * * *
59. In Sec. 179.200-16, the first sentence in paragraph (d) is
revised to read as follows:
Sec. 179.200-16 Gauging devices, top loading and unloading devices,
venting and air inlet devices.
* * * * *
(d) When using a visual gauging device on a car with a hinged
manway cover, an outage scale visible through the manway opening shall
be provided. * * *
* * * * *
Sec. 179.200-18 [Removed]
60. Section 179.200-18 is removed.
Sec. 179.200-24 [Amended]
61. In Sec. 179.200-24, in the paragraph (a) table, for the entry
``Material'' , in the second column, the wording ``ASTM A285 C'' is
revised to read ``ASTM A 516-GR 70''.
62. Section 179.201-1 is revised to read as follows:
Sec. 179.201-1 Individual specification requirements.
In addition to Sec. 179.200, the individual specification
requirements are as follows:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Minimum
Bursting plate Test References (179.201 -
DOT Specification \1\ Insulation pressure thickness pressure Bottom outlet Bottom washout ***)
(psi) (inches) (psi)
--------------------------------------------------------------------------------------------------------------------------------------------------------
103A-ALW....................... Optional.......... 240 \1/2\ 60 No............... Optional.
[[Page 28681]]
103AW.......................... Optional.......... 240 179.201-2 60 No............... Optional.
103ALW......................... Optional.......... 240 \1/2\ 60 Optional......... Optional......... 6(a).
103ANW......................... Optional.......... 240 179.201-2 60 No............... Optional......... 6(d).
103BW.......................... Optional.......... 240 179.201-2 60 No............... No............... 6(b), 3.
103CW.......................... Optional.......... 240 179.201-2 60 No............... No............... 6(c), 4,5.
103DW.......................... Optional.......... 240 179.201-2 60 Optional......... Optional......... 6(a), 6(c), 4, 5.
103EW.......................... Optional.......... 240 179.201-2 60 No............... Optional......... 6(c), 4, 5.
103W........................... Optional.......... 240 179.201-2 60 Optional......... Optional......... 6(a).
104W........................... Yes............... 240 179.201-2 60 Optional......... Optional......... 6(a).
111A60ALW1..................... Optional.......... 240 \1/2\ 60 Optional......... Optional......... 6(a).
111A60ALW2..................... Optional.......... 240 \1/2\ 60 No............... Optional.
111A60W1....................... Optional.......... 240 \7/16\ 60 Optional......... Optional......... 6(a).
111A60W2....................... Optional.......... 240 \7/16\ 60 No............... Optional.
111A60W5....................... Optional.......... 240 \7/16\ 60 No............... No............... 3, 6(b).
111A60W6....................... Optional.......... 240 \7/16\ 60 Optional......... Optional......... 4, 5, 6(a), 6(c).
111A60W7....................... Optional.......... 240 \7/16\ 60 No............... No............... 4, 5, 6(a).
111A100ALW1.................... Optional.......... 500 \5/8\ 100 Optional......... Optional......... 6(a).
111A100ALW2.................... Optional.......... 500 \5/8\ 100 No............... Optional.
111A100W1...................... Optional.......... 500 \7/16\ 100 Optional......... Optional......... 6(a).
111A100W2...................... Optional.......... 500 \7/16\ 100 No............... Optional.
111A100W3...................... Yes............... 500 \7/16\ 100 Optional......... Optional......... 6(a).
111A100W4...................... Yes (see 179.201- 500 \7/16\ 100 No............... No............... 6(a), 8, 10.
11).
111A100W5...................... Optional.......... 500 \7/16\ 100 No............... No............... 3.
111A100W6...................... Optional.......... 500 \7/16\ 100 Optional......... Optional......... 4, 5, 6(a) and 6(c).
111A100W7...................... Optional.......... 500 \7/16\ 100 No............... No............... 4, 5, 6(c).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Tanks marked ``ALW'' are constructed from aluminum alloy plate; ``AN'' nickel plate; ``CW,'' ``DW,'' ``EW,'' ``W6,'' and ``W7'' high alloy steel or
manganese-molybdenum steel plate; and those marked ``BW'' or ``W5'' must have an interior lining that conforms to Sec. 179.201-3.
Sec. 179.201-4 [Amended]
63. In Sec. 179.201-4, at the end of the paragraph, the wording
``AAR Specifications for Tank Cars, appendix M, M3.03(b) and M4.05(d)''
is revised to read ``ASTM Specification A 262''.
Sec. 179.201-5 [Amended]
64. In Sec. 179.201-5, in paragraphs (a) and (b), the wording
``ASTM A240-70'' is revised to read ``ASTM Specification A 240'' each
place it appears.
Sec. 179.201-7 [Removed]
65. Section 179.201-7 is removed.
66. In Sec. 179.220-7, the table in paragraph (b) is revised to
read as follows:
Sec. 179.220-7 Materials.
* * * * *
(b) * * *
------------------------------------------------------------------------
Minimum Minimum
tensile elongation in
strength 2 inches
Specifications (p.s.i.) (percent) weld
welded metal
condition (longitudinal)
-------------------------------------------------\1\--------------------
AAR TC 128, Gr. B......................... 81,000 19
ASTM A 516, Gr. 70........................ 70,000 20
------------------------------------------------------------------------
\1\ Maximum stresses to be used in calculations.
* * * * *
Sec. 179.220-7 [Amended]
67. In addition, in Sec. 179.220-7, the following changes are made:
a. In the table in paragraph (c), the last entry ``ASTM B 209-70,
Alloy 6061 4'' is removed, and the wording ``ASTM B 209-70'' is
revised to read ``ASTM B 209'' each place it appears.
b. In the table in paragraph (d), the wording ``ASTM 240-70'' is
revised to read ``ASTM 240'' each place it appears.
c. In the table in paragraph (e), the wording ``ASTM A 302-70a'' is
revised to read ``ASTM A 302''.
Sec. 179.220-19 [Removed]
68. Section 179.220-19 is removed.
69. Section 179.221-1 is revised to read as follows:
Sec. 179.221-1 Individual specification requirements.
In addition to Sec. 179.220, the individual specification
requirements are as follows:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Minimum
Bursting plate Test Reference
DOT specification \1\ Insulation pressure thickness pressure Bottom outlet Bottom washout (179.221-***)
(psi) (inches) (psi)
--------------------------------------------------------------------------------------------------------------------------------------------------------
115A60ALW........................ Yes................. 240 \3/16\ 60 Optional. Optional...........
115A60W1......................... Yes................. 240 \1/8\ 60 Optional............ Optional........... 1
115A60W6......................... Yes................. 240 \1/8\ 60 Optional............ Optional........... 1
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Tanks converted to DOT-111A series from existing forge-welded specification, DOT-105A 300, 490, or 500 tanks, by modification using conversion
details complying with DOT-111A specification requirements, shall be stenciled by substituting the letter ``F'' for the letter ``W'' in the
specification designation.
[[Page 28682]]
Sec. 179.222 [Removed]
70. Section 179.222 is removed.
Sec. 179.222-1 [Removed]
71. Section 179.222-1 is removed.
Sec. 179.300-7 [Amended]
72. In Sec. 179.300-7, the following changes are made:
a. In the table at the end of paragraph (a), the entries for ``ASTM
A 285-69'' and ``ASTM A 515-69'' are removed.
b. Paragraph (b) is removed and reserved.
Sec. 179.500-17 [Amended]
73. In Sec. 179.500-17, paragraph (a)(7) is removed.
Issued in Washington, DC, on May 17, 1996, under authority
delegated in 49 CFR part 1.
Rose A. McMurray,
Acting Deputy Administrator, Research and Special Programs
Administration.
[FR Doc. 96-12954 Filed 6-4-96; 8:45 am]
BILLING CODE 4910-60-P
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