Federal Register Vol. 81, No.26,

Background

The Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture (USDA or the Department) administers regulations at 9 CFR part 53 (referred to below as the regulations) that provide for the payment of indemnity to owners of animals that are required to be destroyed because of foot-and-mouth disease, pleuropneumonia, rinderpest, Newcastle disease, highly pathogenic avian influenza (HPAI), infectious salmon anemia, or any other communicable disease of livestock or poultry that, in the opinion of the Secretary of Agriculture, constitutes an emergency and threatens the U.S. livestock or poultry population. Payment for animals destroyed is based on the fair market value of the animals at the time of their destruction.

Section 53.2 of the regulations authorizes the APHIS Administrator to cooperate with a State in the control and eradication of disease. Paragraph (b) of this section allows for the payment of indemnity to cover the costs for purchase, destruction, and disposition of animals and materials required to be destroyed because of being contaminated by or exposed to such disease.

Section 53.3 provides for the appraisal of such animals and materials. Paragraph (a) of § 53.3 states that the appraisals shall be carried out by an APHIS employee and a representative of the State jointly, or, if the State authorities approve, by an APHIS employee alone. Under § 53.3(b), the appraisal must be based on the fair market value and shall be determined by the meat, egg production, dairy, or breeding value of such animals.

Section 53.10 provides conditions under which payments will not be made on indemnity claims. Such conditions include, but are not limited to, noncompliance by the claimant with all quarantine requirements, as well the violation of laws, regulations, or cooperative agreements pertaining to movement or handling of animals by the animals' owner or employee or agent. Payments will also be disallowed for claims arising out of the destruction of animals or materials if those animals and materials have not been appraised in accordance with part 53 or if the owner has not executed a written agreement to the appraisals.

There are many strains of avian influenza (AI) virus that can cause varying degrees of clinical illness in poultry. AI viruses can infect chickens, turkeys, pheasants, quail, ducks, geese, and guinea fowl, as well as a wide variety of other birds. AI viruses can be classified as highly pathogenic or low pathogenic (LPAI) strains based on the severity of the illness they cause. HPAI is an extremely infectious and fatal form of the disease that, once established, can spread rapidly from flock to flock. Certain strains of AI have the potential to affect humans.

The U.S. poultry industry recently experienced a severe outbreak of HPAI. The outbreak was discovered in December 2014 in backyard flocks in the Pacific Northwest, and in two commercial turkey and chicken flocks in California. As of August 2015, 21 States had had HPAI detections in backyard flocks, commercial premises, captive wild birds, and/or wild birds. Established U.S. animal health policy is to eliminate notifiable AI virus (both HPAI and LPAI strains), when it is found, through depopulation (i.e., destruction and disposal) of affected poultry. APHIS, State, and local animal health officials euthanize poultry, clean and disinfect premises and equipment, and then test for elimination of the virus to ensure that farms can be safely restocked.

During the 2014-2015 outbreak, APHIS has been paying the full indemnity amount to the birds' owners—usually the poultry company—with the understanding that parties that have entered into contracts with the owners to grow or care for the animals would then be paid by the owner in accordance with contractual agreements. During the course of addressing the current 2015 outbreak, we determined that the existing regulations in part 53 do not specify that the indemnity be split between owners and contractors. Since both owners and contractors incur losses when a flock is depopulated, both should be compensated appropriately.

A similar gap in the regulations concerning the payment of indemnity for LPAI became an issue for APHIS during an outbreak of LPAI in Virginia in 2002. In an interim rule published in the Federal Register on November 4, 2002, and effective December 9, 2002 (67 FR 67089-67096, Docket No. 02-048-1), we amended the regulations to allow the Department to pay indemnity to both contract growers and owners for poultry destroyed because of LPAI. That interim rule was followed by a final rule that provided for LPAI indemnity payments to owners and contractors.

Following approval by delegates during the 2004 National Poultry Improvement Plan (NPIP) Conference, APHIS amended the regulations via an interim rule 1 effective and published in the Federal Register on September 26, 2006 (71 FR 56302-56333, Docket No. APHIS-2005-0109), to establish a voluntary control program for the H5/H7 subtypes of LPAI under the auspices of the NPIP. Among other things, that interim rule established a new 9 CFR part 56 to provide for the payment of indemnity for costs associated with the eradication of H5/H7 LPAI.

First established under that interim rule, § 56.8 contains conditions for payments to flock owners and parties with which the owners contracted to grow and care for poultry and eggs. The section provides a formula for the distribution by APHIS of LPAI indemnity payments between owners and contractors.

Due to the absence, noted above, of a provision in part 53 for split indemnity payments prior to this interim rule, there was the possibility of contractors not being compensated for losses incurred as a result of our HPAI control efforts during the 2014-2015 outbreak. APHIS believes it is important to ensure that all participants in the poultry industry with a stake in the continued health of the U.S. poultry stock are compensated for costs associated with eradication of HPAI, as well as LPAI. In this interim rule, therefore, we are incorporating into the HPAI regulations in part 53 conditions from the LPAI regulations in § 56.8 for the splitting of indemnity payments between owners and contractors. Only those conditions that are applicable to HPAI will be incorporated into part 53. These conditions are contained in a new § 53.11, titled “Highly pathogenic avian influenza; conditions for payment.” Some of the text in the new section that has been drawn from § 56.8 has been edited slightly for clarity.

Paragraph (a) of 53.11 provides a formula to enable the Administrator to determine the share of the indemnity payment that should be disbursed to the contractor. This is a two-step process. The dollar value of the contract the owner entered into with the contractor will be divided by the duration of the contract in days as it was signed prior to the HPAI outbreak. The resulting figure will then be multiplied by the time in days between the date the contractor began to provide services relating to the destroyed poultry or eggs under the contract and the date the poultry or eggs were destroyed.

Paragraph (b) states that if a contractor has received any payment under his or her contract from the owner of the poultry or eggs at the time the poultry or eggs are destroyed, the amount of indemnity from APHIS for which the contractor will be eligible will be reduced by the amount of the payment the contractor has already received from the owner. This provision will ensure that contractors will not receive indemnity payments that exceed the fair market value of the poultry or eggs.

Under § 53.11(c), if indemnity is paid to a contractor, the owner of the poultry or eggs will be eligible to receive the difference between the indemnity paid to the contractor and the total amount of indemnity that may be paid for the poultry or eggs. This provision ensures that the owner will receive a fair share of the indemnity.

Finally, § 53.11(d) states that if the Administrator determines that the method described in § 53.11(a) for determining the amount of indemnity to be paid to a contractor, proves to be impractical or inappropriate in a particular case, APHIS may use any other method that the Administrator deems appropriate to determine the amount of indemnity due a contractor. This paragraph provides the Administrator with the flexibility to distribute indemnity payments equitably between owner and contractor in unusual or especially complex cases.

The above-listed conditions will allow contractors, as well as poultry and egg owners, to be compensated for economic losses suffered due to the destruction of poultry and eggs resulting from HPAI outbreaks.

Prior to this interim rule, the regulations in part 53 covered the destruction and indemnification of eggs under the general term “materials.” APHIS has covered eggs as being materials. To provide greater clarity, we are adding references to eggs to § 53.2(b), § 53.3(a), § 53.9, and § 53.10(c) and (d).

We are also adding a new paragraph (e) to § 53.3, pertaining to the appraisal of the value of eggs destroyed due to HPAI. As is the case for the animals themselves, under § 53.3(e), indemnity payments for eggs required to be destroyed due to HPAI will be based on the fair market value of the eggs, as determined by an appraisal. Appraisals will be reported on forms furnished by APHIS. The amount of indemnity paid, together with the amount for net salvage the owner or contractor received, if any, may not exceed the appraised fair market value of the eggs. Salvage refers to any payment the owner or contractor may receive from a third party, such as a breaker facility for the eggs. Such facilities may purchase the eggs and then pasteurize them to kill the HPAI virus, so that the eggs can be used in food products. APHIS will subtract the amount of any such payments made to the owners or contractors from the indemnity amount paid out by APHIS.

In addition, because § 53.4 has not specifically provided for the destruction of eggs pursuant to the eradication of HPAI, we are adding a new paragraph (b) (currently reserved) to that section. The paragraph states that eggs infected with, exposed to, or contaminated by HPAI shall be disposed of pursuant to the regulations in part 53 under the supervision of an APHIS employee who shall prepare and transmit to the Administrator a report identifying all eggs disposed thereof.

In some instances during the 2014-2015 outbreak, poor biosecurity practices may have led to HPAI introduction or spread within and among some commercial poultry facilities. More specifically, as discussed in our July 2015 report on HPAI-infected flocks (https://www.aphis.usda.gov/animal_health/animal_dis_spec/poultry/downloads/Epidemiologic-Analysis-June-15-2015.pdf), the existing level of biosecurity appears to have failed to protect layer and turkey facilities in the upper Midwest from HPAI. In our view, the biosecurity of layer, turkey, and broiler facilities needs to be enhanced to avoid future catastrophic outbreaks of HPAI.

As a step toward achieving the goal of enhancing biosecurity, this interim rule requires both owners of poultry or eggs and contractors to provide to APHIS a statement that at the time of detection of HPAI in their facilities, they had in place and were following a biosecurity plan. Indemnity claims will be denied if the owner or contractor, unless exempted, does not provide such a statement. This requirement will be placed in a new paragraph (g) to be added to § 53.10, the section in part 53 that covers claims not allowed

Paragraph (g)(1) contains a list of several measures that a biosecurity plan should include in order to be effective at preventing the introduction of HPAI to a poultry facility. First, personnel working at such a facility should be given appropriate biosecurity training and should be subject to certain biosecurity requirements, e.g., showering and changing upon, or prior to arriving at, the facility. The biosecurity plan should also include measures to prevent HPAI introduction via vehicles and equipment. A “line of separation” should be maintained, beyond which nothing should cross that could introduce the virus to poultry houses. Measures to control wild birds, rodents, and insects should be implemented, and the facility should have a source of clean water. More detailed information regarding these biosecurity measures for poultry facilities can be found at https://iastate.app.box.com/Biosec-Officer-Info-Manual. Educational and training materials for poultry-industry personnel are available at http://www.poultrybiosecurity.org/.

The inclusion of the measures discussed above in an HPAI biosecurity plan is supported by the findings of our September 2015 report on HPAI-infected flocks (https://www.aphis.usda.gov/animal_health/animal_dis_spec/poultry/downloads/Epidemiologic-Analysis-September2015.pdf). For example, in that report, statistical evidence was found that having visitors follow biosecurity protocols, such as changing clothes before entering a barn, and having premises personnel disinfect barn entry areas were both associated with a lowered risk of introducing HPAI to the premises.

Under paragraph (g)(2), owners and contractors will be exempted from the requirement to submit a biosecurity statement if their facilities fall under one of the following categories: Premises covered under the NPIP regulations in 9 CFR 146.22(b) (commercial table-egg laying premises with fewer than 75,000 birds) or § 146.52(b) (raised for release upland game bird and waterfowl premises that raise fewer than 25,000 birds annually) and premises where fewer than 100,000 broilers or 30,000 turkeys are raised for meat annually. Exempting such facilities will allow APHIS to concentrate on helping large commercial facilities with their biosecurity activities. These larger operations were hardest hit by the 2015 outbreak, and are in the best position to address biosecurity issues. More than 99 percent of broilers are raised on farms with more than 100,000 birds, and 97 percent of turkeys are raised on farms with more than 30,000 birds. In addition, the smaller facilities that we are exempting from the requirement are less likely to have HPAI outbreaks than are the non-exempt ones. On smaller facilities, birds density tends to be less which minimizes overall viral load. Additionally, if a smaller facility was identified with HPAI the disease is less likely to spread outward to other premises because there are fewer birds, vehicles, pieces of equipment, and employees moving onto and off of the smaller, exempted facilities when compared to the larger, non-exempted ones.

To facilitate owners' and contractors' biosecurity planning, APHIS has created and distributed biosecurity training materials, which include specific examples of approaches to developing and implementing biosecurity protocols for the various types of commercial poultry operations. Further, we are increasing outreach to all producers—large, small and backyard—to educate them about biosecurity plans and how they can be implemented at the local level.

APHIS is phasing in implementation and documentation of enhanced biosecurity through a biosecurity self-assessment. Initially, commercial poultry owners and contractors will be asked to voluntarily self-assess, whether their operations have implemented the measures in a general biosecurity checklist developed by APHIS (http://www.uspoultry.org/animal_husbandry/assessment.cfm). Next, each owner and/or contractor should develop a risk-based, site-specific biosecurity plan that includes standard operating procedures and a site-specific checklist. This step will be followed by the development of a plan for Federal, State, or industry-led oversight of the biosecurity plan and a mechanism for verification. We welcome comments from the public regarding the development of procedures for the oversight and verification of the biosecurity plan.

In addition to adding the references to eggs to § 53.2(b), we are making a couple of minor edits to the paragraph for the sake of clarity. We are incorporating footnote 1 into the text and editing one clause of the paragraph that, as written, could be interpreted as referring to the ineligibility of the animals covered by the paragraph, rather than their owners, to receive indemnity payments. The clause has been revised for accuracy, and we have also added a reference to contractors, in keeping with the other changes we are making to part 53.

This rulemaking is necessary on an emergency basis to provide timely and equitable compensation to owners and contractors for flocks destroyed due to the disease, which may reoccur in 2016. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this rule effective less than 30 days after publication in the Federal Register.

We will consider comments we receive during the comment period for this interim rule (see DATES above). After the comment period closes, we will publish another document in the Federal Register. The document will include a discussion of any comments we receive and any amendments we are making to the rule.

This interim rule has been determined to be significant for the purposes of Executive Order 12866 and, therefore, has been reviewed by the Office of Management and Budget.

We have prepared an economic analysis for this interim rule. The economic analysis provides a cost-benefit analysis, as required by Executive Orders 12866 and 13563, which direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The economic analysis also provides an initial regulatory flexibility analysis that examines the potential economic effects of this rule on small entities, as required by the Regulatory Flexibility Act. The economic analysis is summarized below. The full analysis may be viewed on the Regulations.gov Web site (see ADDRESSES above for instructions for accessing Regulations.gov) or obtained from the person listed under FOR FURTHER INFORMATION CONTACT.

APHIS is amending the regulations to include conditions for the splitting of HPAI indemnity payments when multiple parties are involved in order to ensure that all parties who suffer losses resulting from the destruction of poultry or eggs due to HPAI are compensated and compensation is distributed to parties who suffer losses based on the terms of the contract. The vast majority of contracts are expected to reflect the relative level of inputs or investments of the parties who suffer losses. This interim rule also clarifies that APHIS will pay indemnity for eggs destroyed due to HPAI and requires owners and contractors, unless exempted because their facilities are small, to provide a statement that at the time of detection of HPAI in their facilities, they had in place and were following a written biosecurity plan to address the potential spread of HPAI.

The entities affected by this interim rule will be U.S. facilities primarily engaged in breeding, hatching, and raising poultry for meat or egg production, and facilities primarily engaged in slaughtering poultry. There were about 25,000 farms categorized as breeding, hatching, or raising poultry for meat production, about 28,000 farms categorized as egg producers, and 517 poultry processors in the 2012 Agricultural Census. In particular, this rule will affect poultry owners and contractors who produce poultry under production contracts. It is estimated that 97 percent of broilers were raised on production contract operations in 2011.2 Of the farms producing broilers and other meat-type chickens, about 15,350 accounted for more than 99 percent of the total number of broilers sold in 2012 according to the Agricultural Census.

The United States is the world's largest poultry producer and the second-largest egg producer. The combined value of production from broilers, eggs, turkeys, and the value of sales from chickens in 2014 was $48.3 billion, up 9 percent from $44.4 billion in 2013. Of the combined total, 68 percent was from broilers, 21 percent from eggs, 11 percent from turkeys, and less than 1 percent from chickens.3 Broiler production, valued at over 50 billion pounds per year, is concentrated in a group of States stretching from Delaware, south along the Atlantic coast to Georgia, then westward through Alabama, Mississippi, and Arkansas. The U.S. turkey industry produces over one-quarter of a billion birds annually. Production of turkeys is somewhat more scattered geographically than broiler production, with Minnesota, North Carolina, Missouri, Arkansas and Virginia the top five turkey-producing States. U.S. laying hen operations produce over 90 billion eggs annually. The top five egg-producing States are Iowa, Ohio, Pennsylvania, Indiana, and Texas.

In 2014, the United States exported nearly 4 million metric tons (MT) of poultry meat valued at about $5 billion. The vast majority of exports consisted of chicken meat. Export demand for U.S. broiler products has fluctuated over the last several years because of changing economic conditions and currency exchange rates. Since the first HPAI findings in December 2014, a number of trading partners have imposed complete or partial bans on shipments of U.S. poultry and products.

Broilers account for nearly all U.S. chicken consumption. Broiler production and processing occurs within highly integrated production systems. Owners of the processing facilities own, as well, the birds that are processed and contract with growers (contractors) to raise those birds before processing. The top 20 owners together accounted for 94 percent of all broilers produced in the United States in 2012, and the top 3 accounted for 49 percent.

Expanded broiler production has been made possible to a large extent by the vertically integrated production system and through the use of production contracts. Almost all commercial operations raising broilers are contract growers.4

Under the system of production contracts, the contractor normally supplies the grow-out house with all the necessary heating, cooling, feeding, and watering systems. The contractor also supplies the labor needed in growing the birds. The owner normally supplies the chicks, feed, veterinary medicines and transportation. Contractors have exclusive contracts with an owner and receive payment for the services that they provide, with premiums and discounts tied to the efficiency with which feed is converted to live-weight broilers, the minimization of mortality, or the number of eggs produced. Specific contract terms and the period covered can vary.

Embedded in the value of a bird at any point in time is the value of inputs by both parties. Contractors' costs are more or less fixed and are heavily committed early in the production cycle. Investments in poultry housing cannot be shifted readily to other farming activities.

Currently, indemnity payments go directly to the owner of the birds who, depending on the terms of the contractual arrangement, might or might not compensate the contractor. It is important to formalize provisions to share indemnity payments between poultry owners and contractors, both of whom have productive assets imbedded in the value of the bird. When USDA pays to compensate owners and contractors for losses, that compensation should be distributed to parties who suffer losses based on the terms of the contract.

APHIS' determination of the total amount of indemnity will remain the same under the interim rule as at present, based on the appraised value of the bird or eggs, the number of birds depopulated or eggs destroyed, and the age of the birds when depopulated. However, to determine the appropriate payment split between owner and contractor, APHIS may have to examine contract specifics on a case-by-case basis. This interim rule will not change the total amount of compensation paid in a given situation, but will ensure timely distribution of that compensation between the owner and contractor. This interim rule will benefit contractors who otherwise may suffer uncompensated economic losses from participating in an eradication program.

To date, the generic term “materials” within the existing regulations in part 53 has been used to provide for indemnification for eggs required to be destroyed pursuant to HPAI eradication efforts. This rule will specify appropriate references to eggs, and a description of the appraisal of the value of eggs destroyed due to HPAI to the regulations. The rule will therefore simply clarify existing practice for the indemnification of destroyed eggs and will not change the total amount of any compensation paid in a given future situation.

The vast majority of contractors have some level of biosecurity in place on their operations. This rule will require large owners and contractors to provide a statement that a written biosecurity plan was in place and was followed if HPAI is detected at their facilities. There are approximately 18,900 poultry operations that will be subject to this requirement. Many operations will need to review their existing biosecurity plans, and some will need to newly develop plans. We estimate that the development of a biosecurity plan could cost between about $525 and $700, while the review of an existing plan could cost about $70. If 5 percent of producers need to newly develop biosecurity plans and 95 percent need to review existing biosecurity plans, the total one-time cost for all producers could be between $1.7 million and $1.9 million.

Most producers should be readily able to affirm that they were following a biosecurity plan in the case of an HPAI incident. We estimate that an owner or contractor will need at most about 0.25 to 0.50 hours to comply with this affirmation requirement, at a cost of $8.73 to $17.45 per occurrence. The total cost of this affirmation requirement will depend on the number of producers affected by a given HPAI outbreak who submit paperwork to receive indemnity. If a given outbreak were to affect 100 flocks, the total cost of this affirmation requirement would be from about $900 to $1,800 and if a given outbreak were to affect 500 flocks, the total cost would be from about $4,400 to $8,800 when rounded up to the nearest hundred.5

It should be noted that these total cost estimates are limited to the cost of developing or reviewing biosecurity plans and providing a statement attesting that a biosecurity plan was in place and followed. Because this rule does not require the implementation of specific biosecurity measures, the costs associated with implementing new biosecurity measures are not included in these totals. We expect that most producers already have or will voluntarily adopt new biosecurity measures prior to the interim rule becoming effective.

APHIS is distributing biosecurity training materials that include specific examples of approaches to developing and implementing biosecurity protocols for various types of commercial poultry operations. APHIS is phasing in enhanced biosecurity initially through voluntary self-assessments. Results of self-assessments in the fall of 2015 show that a significant majority of poultry producers have in place or are in the process of implementing a variety of recommended biosecurity practices. Development, following public input, of Federal, State or industry-led oversight and verification will follow.

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 2 CFR chapter IV.)

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are in conflict with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

In accordance with section 3507(j) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the information collection and recordkeeping requirements included in this interim rule have been submitted for emergency approval to the Office of Management and Budget (OMB). When OMB notifies us of its decision, we will publish a document in the Federal Register providing notice of the assigned OMB control number.

Please send written comments on the information collection and recordkeeping requirements included in this interim rule to the following addresses: (1) Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503; and (2) Docket No. APHIS-2015-0061, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road, Unit 118, Riverdale, MD 20737-1238. Please state that your comments refer to Docket No. APHIS-2015-0061 and send your comments within 60 days of publication of this rule.

This interim rule establishes regulations to provide for the equitable distribution of indemnity payment to owners and contractors by the Department for the depopulation of poultry and destruction of eggs known to be infected with HPAI and to require that, in order to receive indemnity payments, owners and contractors, unless specifically exempted, must submit a statement indicating that they had in place and were following a biosecurity plan at the time of HPAI detection in their facilities. In addition to submitting the biosecurity statement, owners and contractors must sign a payment, appraisal and agreement form and must certify as to whether any other parties hold mortgages on the flock. This interim rule also clarifies that eggs are a commodity eligible for indemnity.

We are soliciting comments from the public (as well as affected agencies) concerning our information collection and recordkeeping requirements. These comments will help us:

(1) Evaluate whether the information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;

(2) Evaluate the accuracy of our estimate of the burden of the information collection, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses).

Estimate of burden: Public reporting burden for this collection of information is estimated to average 1.626 hours per response.

Respondents: States; Poultry and egg owners and contractors.

Estimated annual number of respondents: 35,925.

Estimated annual number of responses per respondent: 1.9336.

Estimated annual number of responses: 69,456.

Estimated total annual burden on respondents: 112,950 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.)

Copies of this information collection can be obtained from Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2727.

The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this interim rule, please contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2727.

Accordingly, we are amending 9 CFR part 53 as follows:

Comments Invited

This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments prior to it becoming effective. However, we invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that resulted from adopting this AD. The most helpful comments reference a specific portion of the AD, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit them only one time. We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this rulemaking during the comment period. We will consider all the comments we receive and may conduct additional rulemaking based on those comments.

On June 13, 2014, we issued AD 2014-13-01, Amendment 39-17875 (79 FR 36635, June 30, 2014), to correct an unsafe condition for Airbus Helicopters Model MBB-BK 117 C-2 helicopters with certain part-numbered damper units installed. AD 2014-13-01 required either repairing the damper unit, replacing the damper unit with a repaired damper unit, or deactivating the rescue hoist system.

AD 2014-13-01 was prompted by AD No. 2014-0057, dated March 6, 2014, and corrected March 7, 2014, issued by EASA, which is the Technical Agent for the Member States of the European Union. EASA advised that a damper unit detached from the cable when the hoist damper was lifted by hand with no load attached. According to EASA, the retaining ring inside the damper unit was not located in the proper position because of a maintenance error or as a result of interference with the bonding strap unit during normal use. To address this unsafe condition, EASA AD No. 2014-0057 required modifying the bonding strap unit installation with an improved retaining ring and post-modification repetitive inspection.

Since we issued AD 2014-13-01, a damper unit with the improved retaining ring detached from its strap. Additionally, this damper unit was approved for installation on Airbus Helicopters Model MBB-BK 117 D-2 helicopters. EASA issued Emergency AD No. 2015-0019-E, dated February 5, 2015, which superseded EASA AD No. 2014-0057, to add Model MBB-BK117 D-2 helicopters to the applicability. Airbus subsequently introduced a new single-piece retainer part number (P/N) B851M2060201 to strengthen the interconnection of the damper unit and attached cable.

EASA has revised Emergency AD No. 2015-0019-E by issuing EASA AD No. 2015-0019R1, dated February 13, 2015, for Model MBB-BK117 C-2 and MBB-BK117 D-2 helicopters with a Goodrich external mounted hoist. EASA AD No. 2015-0019R1 introduces installation of single-piece retainer P/N B851M2060201 as an option for compliance and allows installation of damper units provided if equipped with the new single-piece retainer.

These helicopters have been approved by the aviation authority of Germany and are approved for operation in the United States. Pursuant to our bilateral agreement with Germany, EASA, its technical representative, has notified us of the unsafe condition described in the EASA AD. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs.

We reviewed Airbus Helicopters Emergency Alert Service Bulletin (ASB) No. ASB MBB-BK117 C-2-85A-041, Revision 4, dated February 12, 2015, for Model MBB-BK 117 C-2 helicopters and Emergency ASB No. ASB MBB-BK117 D-2-85A-002, Revision 1, dated February 12, 2015, for Model MBB-BK 117 D-2 helicopters. These Emergency ASBs specify replacing the split retainers with a single-piece retainer and re-identifying the damper housing.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This AD requires, before the next hoist operation, either replacing the damper unit with a unit that has been repaired in accordance with the service information, deactivating the rescue hoist, or replacing each split retainer with a single-piece retainer and marking the damper housing in accordance with the service information.

We estimate that this AD affects 137 helicopters of U.S. Registry. We estimate that operators may incur the following costs in order to comply with this AD. Labor costs are estimated at $85 per work-hour. We estimate it takes 1 work-hour to replace a damper unit and $8,715 for the required parts for a total cost of $8,800 per helicopter. We estimate it takes 0.5 work-hour to deactivate a rescue hoist for a total cost of $43 per helicopter. We estimate it takes 2 work-hours to replace the split retainer with a single-piece retainer and $171 for the required parts for a total cost of $341 per helicopter.

Providing an opportunity for public comments prior to adopting these AD requirements would delay implementing the safety actions needed to correct this known unsafe condition. Therefore, we find that the risk to the flying public justifies waiving notice and comment prior to the adoption of this rule because the required corrective actions must be completed before the next hoist operation.

Since an unsafe condition exists that requires the immediate adoption of this AD, we determined that notice and opportunity for public comment before issuing this AD are impracticable and contrary to the public interest and that good cause exists for making this amendment effective in less than 30 days.

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

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

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

For the reasons discussed, I certify that this AD:

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);

3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and

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

We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to the specified products. The NPRM was published in the Federal Register on November 5, 2015 (80 FR 68475). The NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (80 FR 68475, November 5, 2015).

We reviewed the available data and determined that air safety and the public interest require adopting this AD as proposed.

Turbomeca S.A. has issued Mandatory Service Bulletin (MSB) No. 292 72 2860, Version A, dated July 15, 2015. The MSB describes procedures for checking TCB resistance values. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this final rule.

We estimate that this AD affects 300 engines installed on helicopters of U.S. registry. We estimate that it would take about 1 hour to perform an inspection. We also estimate that 20% of these engines would fail the inspection and require TCB removal, which would take about 1 hour. The average labor rate is $85 per hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $30,600.

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

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

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

For the reasons discussed above, I certify this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

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

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to the specified products. The NPRM was published in the Federal Register on November 4, 2015 (80 FR 68284). The NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

To preclude failure of an engine life-limited part, the MCAI specifies, and this AD would require, recalculating the cyclic life for certain parts and removing from service those parts that have exceeded their cyclic life limit within specified compliance times. This AD would establish a new default Flight Profile G for RR RB211-535E4-37 engine life-limited parts. If, however, operators meet the requirements of Appendix 6 of RR Alert Non-Modification Service Bulletin (NMSB) No. RB.211-72-AH972, Revision 3, dated August 28, 2015, they may operate to Flight Profile A or B. You may obtain further information by examining the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-3778.

We reviewed RR Alert NMSB No. RB.211-72-AH972, Revision 3, dated August 28, 2015. The Alert NMSB describes a new flight profile, provides procedures for the consumed cyclic life corrections for prior operation of affected parts, and provides the removal from service recommendations for parts that have exceeded their cyclic life limit. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this AD.

We gave the public the opportunity to participate in developing this AD. We considered the comments received.

The Boeing Company, FedEx, United Airlines, and American Airlines expressed support for the NPRM.

United Parcel Service (UPS) requested that the NPRM recognize digital flight data taken from either the digital flight data recorder (DFDR) or the digital flight data acquisition unit (DFDAU) as valid data for RR RB211 flight profile monitoring purposes. The data captured by the DFDAU is recorded on the DFDR, but DFDAUs are regularly downloaded for UPS' flight operations quality assurance program. The DFDAU data is easier to access than pulling a DFDR for data download purposes.

We agree. We added a new paragraph to paragraph (e)(1) of this AD as follows: “(e)(1)(iv) You may use data from either a digital flight data acquisition unit or a digital flight data recorder for flight profile monitoring.”.

We reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously. We determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.

We estimate that this AD affects 107 engines installed on airplanes of U.S. registry. Pro-rated cost of the lost cyclic life as a result of the corrections would be about $25,417,324. We estimate it will take 1 hour to recalculate the consumed cyclic life and revise the engine records which include 5 minutes (0.083 hours) for record entries. The average labor rate is $85 per hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $25,426,419.

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

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

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

For the reasons discussed above, I certify this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

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

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

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

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

This rule was published as an interim rule on May 15, 2015 (80 FR 27856), with a 60-day period for public comments. No public comments were received.

As explained in the interim final rule, 22 CFR 51.3(b) provides that an “official passport” may be issued to: An official or employee of the U.S. government traveling abroad to carry out official duties; spouses and family members of such persons; and, when authorized by the Department of State, U.S. government contractors traveling abroad to carry out official duties on behalf of the U.S. government.

Increasingly, the federal government utilizes officials or employees of state, local, tribal, and territorial governments in support of federal activities, both domestically and overseas, such as the Federal Bureau of Investigation's Joint Terrorism Task Force. When required to travel internationally in support of such federal activities, these individuals are not currently eligible for official passports. Issuance of an official passport to such individuals signifies to foreign governments that they are carrying out official duties in support of the U.S. government. The activities undertaken by these officials are often of pressing national security, law enforcement, or humanitarian importance and occur with little advance notice. It is in the U.S. government's interest to provide these individuals the travel documents necessary to allow them to travel in a timely manner.

Under 22 U.S.C. 211a et seq., the Secretary of State has the authority to make rules for the granting and issuance of passports. The Department is amending section 51.3(b) of 22 CFR to authorize issuing official passports to an official or employee of a state, local, tribal, or territorial government traveling abroad to carry out official duties in support of the U.S. government.

The Regulatory Findings included in the interim final rule are incorporated herein.

Accordingly, the interim rule amending 22 CFR part 51 which was published at 80 FR 27857 on May 15, 2015, is adopted as a final rule without change.

The Oregon Department of Transportation (ODOT) requested to reduce the vertical clearance of the Old Youngs Bay Bridge, mile 2.4, across Youngs Bay foot of Fifth Street at Astoria, OR, and to open half of the draw span when at least a three-hour notice is given to the bridge operator by vessels wishing to pass. The requested period of deviation is from 7 a.m. on February 15, 2016 to 11 p.m. on June 15, 2016. The deviation is necessary to accommodate extensive maintenance and restoration efforts on this bridge. The Old Youngs Bay Bridge provides a vertical clearance approximately 19 feet above mean high water when in the closed-to-navigation position. The double bascule span of the bridge will have a containment system installed which will reduce the vertical clearance by 5 feet from 19 feet above mean high water to 14 feet above mean high water. The normal operating schedule can be found in 33 CFR 117.899(b). The deviation allows the double bascule span of the Old Youngs Bay Bridge to operate single leaf when at least three-hours of notice are given by mariners requiring an opening during the deviation period. Waterway usage on Youngs Bay is primarily small recreational boaters and fishing vessels.

Vessels able to pass through the bridge in the closed positions may do so at any time. The bridge will be able to open for emergencies if a three-hour notice is given to the bridge operator, and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

Throughout this document, “we,” “us” and “our” refer to the EPA.

Table 1 lists the rules addressed by this proposal with the dates that they were adopted or revised by the SBCAPCD and submitted by the California Air Resources Board (CARB).

On November 18, 2008, the EPA determined that the submittal for SBCAPCD Rule 201 met the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review. On May 21, 1998, the submittals of Rules 203 and 204 were found to meet the completeness criteria. On April 28, 1992, the submittal for Rule 206 was found to meet the completeness criteria.

Table 2 lists the dates of the SIP approved versions of Rules 201, 203 and 206. There is no previous version of Rule 204 approved in the SIP, although the SBCAPCD adopted and revised an earlier version of this rule on April 17, 1997, and CARB submitted it to us on March 10, 1998. We approved an earlier version of Rule 201 into the SIP on May 5, 1982. The SBCAPCD adopted revisions to the SIP-approved version on April 17, 1997 and CARB submitted it to us on March 10, 1998. While we can act on only the most recently submitted version, we have reviewed materials provided with previous submittals.

Throughout this document, “we,” “us” and “our” refer to the EPA.

On August 24, 2015 at 80 FR 51153, the EPA proposed to approve the following rule into the California SIP.

We proposed to approve this rule because we determined that it complied with the relevant Clean Air Act (“CAA” or “Act”) requirements. Our proposed action contains more information on the rule and our evaluation.

The EPA's proposed action provided a 30-day public comment period. During this period, which ended on September 23, 2015, we received one comment from a member of the public. We are summarizing that comment and providing our response below.

Comment: The commenter supports the rule and the District's goal of encouraging transportation alternatives to driving to work alone. But the commenter states that, although the supporting documents provide satisfactory information about how commuter programs can reduce air pollution, “when reviewing the available information in the docket folder, [the commenter] noticed a lack of solutions to the problem of this particular facet of pollution in the primary document.” The commenter asks whether this means that “solutions have yet to be identified or fully planned.”

Response: Section 5 of Rule 9410 suggests trip reduction strategies that covered employers may choose to implement, including transit programs and ride-sharing opportunities, among others. Employers must identify which of these specific trip reduction strategies they will adopt, and report the results of their efforts annually to the SJVUAPCD. In today's action, EPA is not approving specific trip reduction plans for individual employers, but is approving the general requirements in Rule 9410 that direct employers to develop trip reduction plans.

No comments were submitted that change our assessment of the rule as described in our proposed action. Therefore, as authorized in section 110(k)(3) of the Act, the EPA is fully approving this rule into the California SIP.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the SJVUAPCD rule described in the amendments to 40 CFR part 52 set forth below. The EPA had made, and will continue to make, these documents available electronically through www.regulations.gov and in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the proposed rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

Part 52, Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

Throughout this document, “we,” “us,” and “our” refer to the EPA.

Table 1 lists the rules addressed by this action with the dates that they were adopted by the local air agency and submitted by the California Air Resources Board (CARB).

On August 13, 2015, the EPA determined that the submittal for YSAQMD Rules 2.22 and 2.34 met the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review.

We approved an earlier version of Rule 2.22 into the SIP on January 23, 2003 (68 FR 3190), and an earlier version of Rule 2.34 into the SIP on September 3, 1998 (63 FR 46892).

VOCs help produce ground-level ozone, smog and PM, which harm human health and the environment. Section 110(a) of the CAA requires States to submit regulations that control VOC emissions. The revisions to Rule 2.22 exempt certain categories of facilities that have other vapor recovery control measures in place, require aboveground storage tanks to install additional approved vapor recovery systems, require Phase II enhanced vapor recovery systems at all dispensing facilities, and require operators to conduct appropriate inspection and maintenance procedures.

NOX helps produce ground-level ozone, smog and PM, which harm human health and the environment. Section 110(a) of the CAA requires States to submit regulations that control NOX emissions. The revisions to Rule 2.34 define new operation requirements during start-up and shut-down of units and during short-term exceedances under specific circumstances, and require facilities to install continuous emissions monitoring systems.

The EPA's technical support documents (TSDs) have more information about these rules.

SIP rules must be enforceable (see CAA section 110(a)(2)), must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (see CAA section 110(l)), and must not modify certain SIP control requirements in nonattainment areas without ensuring equivalent or greater emissions reductions (see CAA section 193).

Generally, SIP rules must require Reasonably Available Control Technology (RACT) for each category of sources covered by a Control Techniques Guidelines (CTG) document as well as each major source of VOCs and NOX in ozone nonattainment areas classified as moderate or above (see CAA sections 182(b)(2)). YSAQMD regulates an ozone nonattainment area classified as Severe for the 2008 8-hour National Ambient Air Quality Standard (40 CFR 81.305). Therefore, Rules 2.22 and 2.34 must implement RACT.

Guidance and policy documents that we use to evaluate enforceability, revision/relaxation and rule stringency requirements for the applicable criteria pollutants include the following:

We believe these rules are consistent with the relevant policy and guidance regarding enforceability, RACT, Reasonably Available Control Measures, and SIP relaxations. The TSDs have more information on our evaluation.

The TSDs describe additional rule revisions that we recommend for the next time the local agency modifies the rules but are not currently the basis for rule disapproval.

As authorized in section 110(k)(3) of the Act, the EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register, we are simultaneously proposing approval of the same submitted rules. If we receive adverse comments by March 10, 2016, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on April 11, 2016. This will incorporate these rules into the federally enforceable SIP. These rules will supersede the existing SIP-approved rules.

Please note that if the EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, the EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the YSAQMD rules described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents available electronically through www.regulations.gov and in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 11, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the Proposed Rules section of this Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that the EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

I. General Information A. Why is EPA using a direct final rule?

EPA is publishing this rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. This rule is intended to make minor changes like the removal of references to U.S. Customs forms that will no longer be available when the electronic International Trade Data System is implemented. However, in the “Proposed Rules” section of today's Federal Register, we are publishing a separate document that will serve as the proposed rule to make these edits if adverse comments are received on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document.

If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. We would address all public comments in any subsequent final rule based on the proposed rule.

This rule may affect the following categories: Industrial Gas Manufacturing entities (NAICS code 325120), including fluorinated hydrocarbon gas manufacturers, importers, and exporters; Other Chemical and Allied Products Merchant Wholesalers (NAICS code 424690), including chemical gases and compressed gases merchant importers and exporters; and refrigerant reclaimers or other such entities that might import virgin, recovered, or reclaimed refrigerant gas.

This list is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be regulated by this action. To determine whether your facility, company, business, or organization could be regulated by this action, you should carefully examine the regulations promulgated at 40 CFR part 82, subpart A. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding section.

In 2006, U.S. Customs and Border Protection (CBP) began automating processes for the import and export of goods to improve the control of what enters and leaves the U.S., as well as to improve efficiency. Launched under the Security and Accountability for Every Port Act of 2006 (SAFE Port Act, Pub. L. 109-347) and the 2007 Import Safety Executive Order 13439, the multi-agency program called the International Trade Data System (the ITDS) assists 48 Federal agencies with import/export responsibilities in their efforts to integrate import and export cargo processing with CBP's Automated Commercial Environment (ACE) for imports, and the Automated Export System (AES) for exports.

On February 19, 2014, the White House issued E.O. 13659 titled “Streamlining the Export/Import Process for America's Businesses.” Under E.O. 13659, participating agencies must have all requirements in place and in effect to utilize the ITDS, which includes the ACE and the AES systems for receiving documentation required for the release of imported cargo and the clearance of cargo for export, no later than December 31, 2016.

Under the ITDS, agencies with existing paper-based import and export clearance procedures at the port of exit or entry are working with CBP to enable electronic filing and processing of the import or export shipments based on one set of submitted data that can then be checked against all relevant U.S. agency requirements.

The Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol, or Protocol) is the international agreement to reduce and eventually eliminate the global production and consumption 1 of ozone-depleting substances (ODS). This goal is accomplished through adherence by each Party to the Protocol to phaseout schedules for specific controlled substances. The Montreal Protocol is implemented in the United States through Title VI of the Clean Air Act. EPA issues allowances for the production and consumption of ODS under sections 604 and 605 of the Clean Air Act. An allowance represents the privilege granted to a company to produce or import one kilogram of the specific substance in a given year. EPA establishes the number of allowances issued to companies through rulemaking. EPA maintains a balance of unexpended allowances through the ODS Tracking System based on production, import, and export data reported to the Agency quarterly.

At the present time, allowances are required for the import of class II controlled substances, all of which are hydrofluorocarbons (HCFCs), and for the import of methyl bromide for critical uses. Allowances are not required, however, for the import of used controlled substances. Used controlled substances are defined as “substances that have been recovered from their intended use systems (may include controlled substances that have been, or may be subsequently, recycled or reclaimed)” (40 CFR 82.3). Imports of used controlled substances are regulated under § 82.13(g)(2) (for imports of used Class I controlled substances) and § 82.24(c)(3) (for imports of used Class II controlled substances). Persons seeking to import used controlled substances are required to submit a petition to the Agency. The petition to import a used controlled substance must contain detailed information such as the previous use of the substance, including the identity of all previous source facilities from which the material was recovered. After review, EPA issues either a “non-objection notice” allowing the import to proceed or an “objection notice” prohibiting the import.

For purposes of the ITDS, there are three pathways for the import of ozone depleting substances: Imports that require allowances; Imports that require a “non-objection” notice issued by EPA; and imports that do not require any documentation to be reviewed by CBP officers. The distinctions between these three categories relate to the type of documentation reviewed by CBP upon entry of the shipment. In all instances the recordkeeping and quarterly and/or annual reporting requirements under 40 CFR part 82, subpart A continue to apply.

Importers are not required to present documentation of allowances to CBP upon import. Some companies choose to include allowance balance statements provided by EPA with documentation accompanying the import. This is not a requirement of EPA's regulations but is done by the importer to facilitate the entry of the shipment. Under the ITDS, providing a paper copy of an allowance statement will be unnecessary as information being provided for the CBP entry and TSCA certification parts of the filing allow EPA to verify whether the importer has an allowance for the import.

EPA is not changing the reporting and recordkeeping requirements in 40 CFR part 82, subpart A to integrate these ODS imports into the ITDS. Importers are not required to provide a statement of allowances to CBP and this would not change under the ITDS.

For imports of used controlled substances, current regulations require that the petition and non-objection notice “accompany the shipment through U.S. Customs.” EPA is removing the requirement that the petition accompany the shipment through U.S. Customs. EPA does not believe that the detailed information in a petition to import used ODS is necessary for CBP to make a determination about whether the import should enter the U.S. EPA's decision to allow an import of used ODS is stated in the non-objection notice. Therefore, EPA would still require that the non-objection notice accompany the shipment through Customs.

One component of the ITDS is the Document Image System (DIS) which allows the importer or their broker to file and an agency to view the image of a document, as it appears on paper, without paper needing to physically be provided. Under the ITDS, the non-objection notice would be filed to the DIS. Because this document would be available to CBP, EPA finds that filing a non-objection notice to the DIS meets the requirements in § 82.13(g)(3)(v) and § 82.24(c)(4)(v) that the non-objection notice “accompany the shipment.” Therefore, the only change EPA is making to the recordkeeping and reporting requirements in 40 CFR part 82, subpart A to implement the ITDS is to remove the requirement that the petition accompany the shipment.

A third category of ODS imports do not require verification by CBP. These include ODS that fall under the following exemptions: Imports for purposes of transformation or destruction; imports for laboratory and analytical uses; heels or transshipments; and methyl bromide imported under the quarantine and preshipment exemption. EPA is not making any changes to the reporting and recordkeeping requirements in 40 CFR part 82, subpart A to integrate these ODS imports into the ITDS.

EPA is making minor changes to the stratospheric protection regulations at 40 CFR part 82, subpart A, to remove references to U.S. Customs Service forms that will no longer exist when the ITDS is implemented.

The definition of importer at 40 CFR 82.3 and 82.104 includes the importer of record “listed on U.S. Customs Service forms” for the import. The definition of importer would still include the importer of record but because CBP will no longer be maintaining forms, EPA is removing the clause referencing the Customs Service forms. This change does not affect the scope of who would be considered an importer for the purposes of 40 CFR part 82.

The recordkeeping and reporting requirements at 40 CFR 82.13(g)(1) and 82.24(c)(2) state that an importer of Class I and Class II controlled substances, respectively, must maintain the U.S. Customs entry form. Under the ITDS, the entry form will no longer exist. EPA uses the Customs entry form to verify that a shipment of ODS has been properly imported into the United States. EPA believes that some type of verifying information is necessary and to the benefit of the importer if the origin of the controlled substance is ever in question. In order for the Agency to identify an individual shipment within the ITDS, EPA is replacing the requirement to keep a record of the Customs form with the requirement to keep a record of the entry number. This will still be generated by the ITDS and will help EPA to identify the specific shipment within the ITDS.

Similarly, the recordkeeping and reporting requirements at 40 CFR 82.13(g)(3)(viii) and 82.24(c)(4)(viii) state that an importer of used Class I and Class II controlled substances, respectively, must maintain the U.S. Customs entry documents for the import. For the reasons discussed above, EPA is removing the recordkeeping requirements for the U.S. Customs entry documents but is substituting the requirement to maintain the entry number for the shipment of used ODS.

In addition, reporting requirements for exporters of class II substances under § 82.24(d)(2) (related to export production allowances) or § 82.24(d)(3) (related to Article 5 allowances) reference the Shipper's Export Declaration Form and U.S. Customs Form 7525 as locations for the Employer Identification Number (EIN) of the shipper or their agent. EPA is removing references to these two forms but is maintaining the requirement that the EIN be provided.

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

This action does not impose any new information collection burden under the PRA because the requirements to maintain entry numbers and EINs are a subset of the previous requirements to maintain forms containing this information. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control number 2060-0170 and 2060-0438.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. This action makes minor changes to recordkeeping and reporting requirements to remove references to U.S. Customs forms and other small edits.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector. This action merely makes minor changes to recordkeeping and reporting requirements to remove references to U.S. Customs forms and other small edits.

This action does not have federalism implications. It 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.

This action does not have tribal implications as specified in Executive Order 13175. This rule does not significantly or uniquely affect the communities of Indian tribal governments, nor does it impose any enforceable duties on communities of Indian tribal governments. This action makes minor changes to recordkeeping and reporting requirements to remove references to U.S. Customs forms and other small edits. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

This action is not a “significant energy action” because it is not likely to have a significant adverse effect on the supply, distribution or use of energy. This action makes minor changes to recordkeeping and reporting requirements to remove references to U.S. Customs forms and other small edits.

This rulemaking does not involve technical standards.

EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income, or indigenous populations because it does not affect the level of protection provided to human health or the environment. This action makes minor changes to recordkeeping and reporting requirements to remove references to U.S. Customs forms and other small edits.

This action is subject to the CRA, and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

For the reasons stated in the preamble, 40 CFR part 82 is amended as follows:

Table of Contents I. Introduction II. NPL Deletion Criteria III. Partial Deletion Procedures IV. Basis for Partial Site Deletion V. Partial Deletion Action I. Introduction

EPA Region 8 is publishing this direct final Notice of Partial Deletion for all of Operable Unit 1 (OU1), Yak Tunnel/Water Treatment Plant; and Operable Unit 3 (OU3), Denver & Rio Grande Western Railroad Company (D&RGW) Slag Piles/Railroad Easement/Railroad Yard, from the NPL. The NPL constitutes Appendix B of the NCP, 40 CFR part 300, which EPA promulgated pursuant to Section 105 of CERCLA of 1980, as amended. EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). This partial deletion of the Site is proposed in accordance with 40 CFR 300.425(e) and is consistent with the Notice of Policy Change: Partial Deletion of Sites Listed on the NPL. 60 FR 55466 (November 1, 1995). As described in 300.425(e)(3) of the NCP, a portion of a site deleted from the NPL remains eligible for Fund-financed remedial action if future conditions warrant such actions.

Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses OU1, Yak Tunnel/Water Treatment Plant; and OU3, D&RGW Slag Piles/Railroad Easement/Railroad Yard, and demonstrates how they meet the deletion criteria. Section V discusses EPA's action to partially delete the Site parcels from the NPL unless adverse comments are received during the public comment period.

This partial deletion pertains to all of OU1 and OU3. Operable Unit 2 (OU2), Malta Gulch Tailing Impoundments and Lower Malta Gulch Fluvial Tailing; Operable Unit 4 (OU4) Upper California Gulch; Operable Unit 5 (OU5), ASARCO Smelters/Slag/Mill Sites; Operable Unit 7 (OU7), Apache Tailing Impoundment; Operable Unit 8 (OU8), Lower California Gulch; Operable Unit 9 (OU9), Residential Populated Areas; and Operable Unit 10 (OU10), Oregon Gulch, were deleted from the NPL in previous partial deletion actions. Operable Unit 6 (OU6), Starr Ditch/Stray Horse Gulch/Lower Evans Gulch/Penrose Mine Waste Pile; Operable Unit 11 (OU11), Arkansas River Floodplain; and Operable Unit 12 (OU12), Site-wide Surface and Groundwater Quality, are not being considered for deletion as part of this action and will remain on the NPL.

The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the State, whether any of the following criteria have been met:

i. Responsible parties or other persons have implemented all appropriate response actions required;

ii. all appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or

iii. the remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.

Pursuant to CERCLA section 121(c) and the NCP, EPA conducts five-year reviews to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at a site above levels that allow for unlimited use and unrestricted exposure. EPA conducts such five-year reviews even if a site is deleted from the NPL. EPA may initiate further action to ensure continued protectiveness at a deleted site if new information becomes available that indicates it is appropriate. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.

The following procedures apply to the deletion of OU1 and OU3:

(1) EPA has consulted with the State prior to developing this direct final Notice of Partial Deletion and the Notice of Intent for Partial Deletion co-published in the “Proposed Rules” section of the Federal Register.

(2) EPA has provided the State 30 working days for review of this notice and the parallel Notice of Intent for Partial Deletion prior to their publication today, and the State, through the CDPHE, has concurred on the partial deletion of OU1 and OU3 of the Site from the NPL.

(3) Concurrently with the publication of this direct final Notice of Partial Deletion, a notice of the availability of the parallel Notice of Intent for Partial Deletion is being published in a major local newspaper, the Leadville Herald Democrat. The newspaper notice announces the 30-day public comment period concerning the Notice of Intent for Partial Deletion of OU1 and OU3 of the Site from the NPL.

(4) The EPA placed copies of documents supporting the partial deletion in the deletion docket and made these items available for public inspection and copying at the Site information repositories identified above.

(5) If adverse comments are received within the 30-day public comment period on this partial deletion action, EPA will publish a timely notice of withdrawal of this direct final Notice of Partial Deletion before its effective date and will prepare a response to comments and continue with the deletion process on the basis of the Notice of Intent for Partial Deletion and the comments already received.

Deletion of a portion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a portion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for further response actions, should future conditions warrant such actions.

The following information provides EPA's rationale for deleting OU1 and OU3 of the Site from the NPL.

The California Gulch Superfund Site, EPA ID No. COD980717938, CERCLIS Site ID 0801478, is located in Lake County, Colorado approximately 100 miles southwest of Denver. The Site was proposed for inclusion on the NPL on December 30, 1982, (47 FR 58476), and listed on September 8, 1983, (48 FR 40658). The Site is in a highly mineralized area of the Colorado Rocky Mountains covering approximately 18 square miles of a watershed that drains along California Gulch to the Arkansas River. The Site includes the City of Leadville, various parts of the Leadville Historic Mining District, Stringtown, and a section of the Arkansas River from the confluence of California Gulch to the confluence of Two-Bit Gulch. Mining, mineral processing, and smelting activities have occurred at the Site for more than 130 years. Mining in the district began in 1860, when placer gold was discovered in California Gulch. As the placer deposits were exhausted, underground mine workings became the principal method for removing gold, silver, lead and zinc ore. As these mines were developed, waste rock was excavated along with the ore and placed near the mine entrances. Ore was crushed and separated into metallic concentrates at mills, with mill tailing generally released into surrounding streams and after about 1930 slurried into tailing impoundments. Many of the mining operations ceased operations around 1900, although several smelters continued operations into the 1920s (Western Zinc) and the 1960s (AV Smelter) and the last active mine, the Black Cloud, shut down in 1999.

All of the mines within the Site boundaries are presently inactive, and all of the mills and smelters have been demolished. Mining remains that contributed to environmental contamination are (1) mill tailing (the fine-grained residue remaining after milling has removed the metal concentrates form the ore) in impoundments and fluvial deposits; (2) mine waste rock piles (mine development rock and low grade ore removed to gain access to an ore body, and often deposited near adits and shaft openings); (3) mine water drainage tunnels; (4) draining adits; and (5) various smelter wastes including slag piles, flue dust and fallout from stack emissions.

The Site was placed on the NPL due to concerns regarding the impact of acidic and metals laden mine drainage on surface waters leading to California Gulch and the impact of heavy metals loading into the Arkansas River. A Site-wide Phase I Remedial Investigation (Phase I RI), which primarily addressed surface water and groundwater contamination, was issued in January 1987. As a result of the Phase I RI, EPA identified the first operable unit, the Yak Tunnel, to address the largest single source of metallic loading. A number of additional Site-wide studies followed the Phase I RI.

EPA agreed, pursuant to a May 2, 1994 Consent Decree (1994 CD), to divide the Site into 12 operable units (OUs). The OUs are as follows: OU1, Yak Tunnel/Water Treatment Plant; OU2, Malta Gulch Tailing Impoundments and Lower Malta Gulch Fluvial Tailing; OU3, D&RGW Slag Piles/Railroad Easement/Railroad Yard; OU4, Upper California Gulch; OU5, ASARCO Smelter Sites/Slag/Mill Sites; OU6, Starr Ditch/Stray Horse Gulch/Lower Evans Gulch/Penrose Mine Waste Pile; OU7, Apache Tailing Impoundments; OU8, Lower California Gulch; OU9, Residential Populated Areas; OU10, Oregon Gulch; OU11, Arkansas River Valley Floodplain; and OU12, Site-wide Surface and Groundwater. With the exception of OU12, the OUs pertain to distinct geographical areas corresponding to areas of responsibility for the identified responsible parties and/or to distinct sources of contamination. To date, OU2, OU4, OU5, OU7, OU8, OU9, and OU10 have been partially deleted from the NPL.

The background and history, the Remedial Investigations and Feasibility Studies (RI/FS), Removal and Response Actions, Selected Remedies, Cleanup Standards, and Operation and Maintenance activities for OU1 and OU3 are discussed below.

Operable Unit 1 (OU1) consists of the Yak Tunnel and Water Treatment Plant. The Yak Tunnel and Yak Tunnel Water Treatment Plant are located to the southeast of the City of Leadville. A map of OU1 can be found in the docket at www.regulations.gov under Docket ID no. EPA-HQ-SFUND-1983-0002. The Yak Tunnel was constructed to dewater mines and to facilitate mineral exploration and development. The tunnel was driven in 1895, as an extension of the Silver Cord Tunnel, to drain the Iron Hill mines. The Yak Tunnel was extended several times, with the last extension occurring in 1923. The Yak Tunnel extends underground approximately 31/2 to 4 miles into Iron Hill and Breece Hill. The tunnel has several major laterals and drifts that extend from the tunnel into various mine workings, such as the Horseshoe, the Rubie, the North Mike, the South Mike, the Ibex No. 4, the Little Winnie, the Resurrection No. 1, the Fortune, the Resurrection No. 2, and the Dolly B. The EPA estimated that 60,000 feet of tunnels and major laterals and 55 to 74 million cubic feet of void space are associated with the tunnel mining activities. At the time of the ROD in March 1988, studies indicated that a combined total of 210 tons per year of cadmium, lead, copper, manganese, iron, and zinc were discharged from the Yak Tunnel into California Gulch, which drains into the Arkansas River. Surface water contamination is the major impact of the Yak Tunnel discharge. Shallow alluvial ground water and stream sediment may have been impacted by historic releases from the Yak Tunnel.

The State, the EPA and certain Potentially Responsible Parties (PRPs) conducted various studies and investigations to evaluate the nature and extent of contamination generally at the Site. Remedial Investigations (RIs) began in 1986 within the Site, including mine waste rock piles, tailing disposal areas, surface water and aquatics, groundwater, smelter sites, residential/populated area soils, slag piles, and terrestrial studies. The Yak Tunnel/California Gulch Remedial Investigation (1986 RI) evaluated the human health and environmental impacts due to historic mining activities.

In May 1987, the Phase I Remedial Investigation (1987 Phase I RI) confirmed that the Yak Tunnel is a significant source of metals contamination. Results of this study indicated that 75 to 80 percent of the cadmium, manganese, and zinc detected at the confluence of California Gulch with the Arkansas River originates from the Yak Tunnel. Historical information along with data collected during the 1987 Phase I RI indicated that the Yak Tunnel discharge had a significant detrimental impact on the aquatic environment at the site. In addition, the Yak Tunnel discharge presented a potential public health risk based on exposure to affected surface and groundwater at the California Gulch Site.

The EPA released the Yak Tunnel Feasibility Study (FS) in June 1987 and a proposed plan for the Yak Tunnel in August 1987.

The EPA issued the Record of Decision (ROD) for OU1 (1988 OU1 ROD) on March 29, 1988. The remedy chosen in the 1988 OU1 ROD was modified in an Amended ROD (AROD) signed on March 23, 1989 (1989 OU1 AROD) and, further, modified in an ESD signed on October 22, 1991 (1991 OU1 ESD) and an ESD signed on July 29, 2013 (2013 OU1 ESD).

The selected remedy in the 1988 OU1 ROD was narrowly focused on the discharges from the Yak Tunnel as a major source of contamination to California Gulch and the Arkansas River. Broader issues of water quality generally in California Gulch and the Arkansas River were addressed as part of remedial actions taken at other operable units. Thus, the 1988 OU1 ROD identified a single remedial action objective (RAO) of decreasing the release and threatened release of hazardous substances, pollutants and contaminants from the Yak Tunnel into California Gulch.

The original remedy selected in the 1988 OU1 ROD consisted of the following remedial components: (1) Construction of surge ponds to capture drainage from the tunnel and to minimize the impact of surges on California Gulch and the Arkansas River; (2) Installation of an interim water treatment system to treat water from the Yak Tunnel before discharge in California Gulch; (3) Sealing of shafts, drill holes and fractured rock and diversion of surface water from tunnel recharge areas to reduce the amount of water entering the Yak Tunnel system; (4) Grouting of fractured rock, caved-in areas and drill holes to prevent seepage of contaminated water to the land surface; (5) Installation of a pumping system to control water levels behind the portal plug. The pumped water would be routed to the interim treatment system; (6) Construction of a minimum of three concrete plugs in the Yak Tunnel to seal off the major flow route for groundwater movement; (7) Establishment of a surface and groundwater monitoring system to detect leakage, seeps or migration of contaminated groundwater, which may result from installation of the tunnel plugs; (8) Development and implementation, as necessary, of a contingency plan to address any adverse effects on surface or groundwater from tunnel plugging; and (9) Operations and maintenance of the remedy.

The 1989 OU1 AROD made the following changes in the remedy: (1) Installation of a permanent water treatment system to treat contaminated groundwater from the Yak Tunnel before discharge in California Gulch, as opposed to the interim treatment facility originally proposed; (2) Construction of a surge pond or ponds to capture drainage from the tunnel and to minimize surges on California Gulch. The original remedy called for multiple surge ponds and did not consider the use of a single pond; (3) Reduction of seepage and recharge was made optional. Grouting of fractured rock, cave-ins and drill holes was removed as part of the remedy; and (4) The portal plug was modified to be a flow-through plug as opposed to a solid plug.

The 1991 OU1 ESD made the following changes in the remedy: (1) Construction of a single surge pond as a permanent part of the remedy; (2) Construction of a flow-control bulkhead within the tunnel to prevent surges. Two of three originally planned plugs were removed from the remedy; (3) Identification of groundwater flow direction and potential gradient reversal as additional element of the monitoring plan. The monitoring system was proposed to include a minimum of seven groundwater monitoring wells as opposed to a minimum of 23 wells proposed in the 1989 AROD; (4) Placement of six or more weirs, or other flow measuring devices, at key locations in the Yak Tunnel. The weir locations were selected during an initial inspection of the tunnel; (5) Periodic inspection of the Yak Tunnel. Qualified mining crews will enter the tunnel annually to inspect and maintain weirs and other structures in the tunnel. Crews will also enter the tunnel to determine the cause of unexpected increases or decreased in flow within the Yak Tunnel; and (5) Development and implementation, as necessary, of a contingency plan to address any adverse effects on surface or groundwater resulting from tunnel blockage. The implementation would be based upon decrease in flow from Yak Tunnel, rise in water levels in monitoring wells located near mine workings, indication of gradient reversal, or degradation of water quality.

Because the selected remedy in the 1988 OU1 ROD left wastes in place but did not include institutional controls (ICs), a second ESD was signed on July 29, 2013 to include ICs. The objectives of ICs for OU1 are as follows: (1) Reduce or control human exposure to contaminants of concern; and (2) Maintain the integrity of and prevent disturbances to engineered features or structures established as part of the current remedy or future remedies. The properties that comprise most of OU1 are owned by Resurrection/Newmont.

The OU1 remedy was the first source control remedy at the Site that addressed the Yak Tunnel discharge as the largest single source of contamination to surface water and groundwater but did not contain numeric cleanup standards for those media. Numeric cleanup standards for site-wide surface water and groundwater contamination were established in the OU12 Record of Decision.

The EPA issued a Unilateral Administrative Order (UAO) to ASARCO Incorporated, Newmont Mining Corporation, Res-ASARCO Joint Venture and Resurrection Mining Company on March 29, 1989 ordering these parties to perform the remedial design and remedial action for the Yak Tunnel. Two amendments were made to the UAO on April 30, 1993 and June 16, 1993. The UAO was replaced and terminated in a 2008 Consent Decree settlement (2008 CD) by and among the United States, State of Colorado, Newmont USA Limited and Resurrection Mining Company. Under the 2008 CD, Newmont USA Limited and Resurrection Mining Company assumed responsibility for the OU1 remedy. Construction of a surge pond and permanent water treatment plant began in September 1988 and was completed in June 1991. The construction efforts included four main elements: (1) A surface water conveyance system, (2) the surge pond itself, (3) a barge transfer system and (4) installation of gravity filters. The water treatment facility to treat waters emanating from the Yak Tunnel was constructed over a two-year period and the Yak Tunnel Water Treatment Plant has been in operation since construction was completed in February 1992. The Yak Tunnel Bulkhead was constructed in 1994 to control surges of water coming from the Yak Tunnel, particularly during spring melt. The bulkhead is located approximately 1,680 feet into the tunnel from the portal. Additional efforts were made in 1995 and 1996 to reduce metals loading into the Arkansas River from ephemeral tributaries. As part of a Consent Decree settlement with Resurrection/Newmont, Resurrection/Newmont placed environmental covenants on its properties in OU1 on July 31, 2012 and October 1, 2012 that meets the IC objectives above. All remedial components described in the 1988 OU1 ROD and subsequent 1989 OU1 AROD, 1991 OU1 ESD, and the 2013 OU1 ESD have been implemented.

The potentially responsible parties' (PRPs) operations and maintenance (O&M) responsibilities were first defined under the UAO and then updated in the 2008 CD. In accordance with the terms of the 2008 CD, the Routine Monitoring Plan (RMP), Contingency Plan (CP) and the OU1 Work Plan (Work Plan) govern the long-term implementation of the selected remedy for the OU1. The OU1 Work Plan, CP and the RMP are appendices to the 2008 CD.

Routine O&M includes repairing grouted areas of structures due to corrosion, settlement or other factors; occasional repair or replacement of monitor well pumps and surface water monitoring equipment; repair of access roads; routine repair or replacement of pumps, motors, mixers, piping and tankage; and inspections. The treatment plant operates under requirements established in the OU1 Work Plan, and submits monthly and annual reports to EPA. Resurrection/Newmont summarizes monitoring data and data evaluation required by the OU1 Routine Monitoring Plan in the Annual Monitoring Reports, Yak Tunnel System for the Yak Tunnel Operable Unit, Leadville, CO. Current reports and associated data are available by contacting EPA Region 8.

In regards to ICs, environmental covenants for Resurrection/Newmont's properties within OU1 were recorded with the Lake County Clerk and Recorder on July 31, 2012 and October 10, 2012. The environmental covenants provide the following Use Restrictions: (1) No Residential Use, Day Care Centers or Schools, Parks or Open Space that are designed or intended to provide play or recreation areas for children, (2) Restrictions on using untreated groundwater from wells, and (3) Restrictions on uses or activities that would disturb/interfere or have the potential to disturb/interfere with the protectiveness of the remedy and remedial components. All of OU1 is zoned Industrial Mining by Lake County, which serves to limit future changes of land use without County approval and Lake County has established a protocol to notify the EPA and the CDPHE of any proposed changes.

D&RGW Slag Piles/Railroad Easement/Railroad Yard (OU3) included three slag piles (Arkansas Valley (AV), La Plata, and Harrison Street), approximately 12 acres at Harrison Avenue and Monroe Street which contained the Harrison Street slag pile, an easement that runs diagonally through the City of Leadville, and a portion of the rail yard known as Poverty Flats. The Denver & Rio Grande Western Railroad Company (D&RGW) owned theses slag piles, property, easement and rail yard when OU3 was designated in 1994. A map of OU3 can be found in the docket at www.regulations.gov under Docket ID no. EPA-HQ-SFUND-1983-0002.

In 1961, D&RGW purchased the AV Slag Pile from ASARCO Incorporated for use as railroad ballast. D&RGW purchased the La Plata Slag Pile from the Leadville Sanitation District in 1970. Additionally, D&RGW purchased the Harrison Street Slag Pile and Harrison Avenue property from NL Industries in 1983.

The AV Slag Pile covers approximately 40 acres just west of Stringtown. The pile generally consists of slag produced by the AV smelter that operated from 1882 to 1960. Based on aerial photography, the pile volume in the late 1950s was approximately 1.2 million cubic yards, whereas in 1998 approximately 422,000 cubic yards of slag remained, of which, approximately 190,000 cubic yards is stockpiled fine slag.

The La Plata Slag Pile, located west of the City limits of Leadville on Elm Street, has a volume estimated at 105,000 cubic yards. Bimetallic Smelting Company leased the La Plata Smelter Works in OU3 from 1892 to 1900 for pyritic smelting of low-grade ores.

The Harrison Reduction Works was located near the northeast corner of Harrison Avenue and Elm Street, in a residential area. The Harrison Street Slag Pile ranged from 20 to 50 feet in height and covered an area of approximately 3 acres. The Harrison Street Slag Pile was removed to original grade and relocated to the AV Slag Pile in March 1998.

Once a hotbed of transportation activities mostly related to mining, the Poverty Flats rail yard, located between 12th Street, Highway 24, 17th Street and County Road 8, is now vacant. The portion of the Poverty Flats rail yard formerly owned by D&RGW is located near the north end of the City of Leadville, encompasses an area of roughly 43 acres, and is crossed by abandoned rail lines and access roads. Slag, which was used in the rail yard as ballast and as a road base to provide support for heavy vehicle traffic, was also deposited around the loading dock due to spillage during transportation activities.

The rail easement includes the portion of railroad track that runs diagonally through Leadville and consists of approximately 25 feet on either side of the track centerline. Slag was used as a road base to provide support for heavy vehicle traffic. Slag was also deposited as spillage from passing rail cars.

D&RGW identified a small volume of fine slag in the Poverty Flats rail yard. D&RGW prepared a plan, which addressed removal of the fine slag from this area to the AV Smelter Slag Pile. As a result of the Union Pacific Railroad Company (UPRR) purchase of the Southern Pacific Transportation Company (surviving corporation from an earlier merger of D&RGW and Southern Pacific Railroad), UPRR took ownership of all D&RGW property at the Site in 1996 and assumed D&RGW's responsibilities under the 1993 D&RGW CD.

During the summer and fall of 1997, UPRR removed 1,264 cubic yards of slag, including fine slag, from the rail yard and placed it onto the AV Slag Pile. As a result, soils were exposed containing elevated concentrations of lead. Soils samples, taken before and after removal of the slag, showed levels of lead in soil that exceed the Site-wide residential action level of 3500 mg/kg lead, thus lead in the soils on this property may create the potential for unacceptable human health risks should the property be developed for residential use. This vacant property is zoned Business by Lake County. However, institutional controls are in place to protect human health in the event of future residential development.

As part of their ballast operations, UPRR relocated approximately 104,000 cubic yards of slag to the AV Slag Pile in March 1998, which brought the Harrison Street Slag Pile to grade. Soils samples taken after removal of the slag showed levels of lead in soils, both under where the slag pile was located and otherwise on the Harrison Avenue property, that exceed the residential action level for lead in soils of 3500 mg/kg. Thus, the lead in the soils on the Harrison Avenue property may create the potential for unacceptable human health risks should the property be developed for residential use. To date, the land remains vacant. Sections along the highway are zoned Commercial, and the remaining sections are zoned Transitional Commercial by the City of Leadville. However, institutional controls are in place to protect human health in the event of future residential development.

In July 1998, UPRR submitted a Work Plan for the Consolidation of Fine Slag at the Railroad Easement Near McWethy Drive to 12th Street, Leadville, Colorado. The work plan provided for the easement to be converted into a segment of the Mineral Belt Trail. Consistent with the plan, fine slag from the rail easement was used as base material on the Mineral Belt Trail. More specifically, the fine slag was consolidated and covered with a compacted gravel sub-base of six inches and then two one-inch layers of asphalt to encapsulate it. This resource utilization was consistent with the contingency under the 1998 OU3 ROD. The completion of the consolidation work was approved in September 1998. The conversion of the railroad easement to the Mineral Belt Trail was completed with the installation of a sub-base, culverts, asphalt, signs, centerline striping, and re-vegetation. In accordance with a 1998 Memorandum of Understanding between EPA, UPRR, and Lake County, Lake County completed these projects, and UPRR provided funding for the sub-base, culverts, and asphalt in 2000. Ownership of the easement has been transferred to Lake County via quitclaim deed.

The State, the EPA and certain Potentially Responsible Parties (PRPs) have conducted various studies and investigations to evaluate the nature and extent of contamination generally at the Site, and specifically within OU3. Remedial Investigations (RIs) began in 1986 within the Site, including mine waste rock piles, tailing disposal areas, surface water and aquatics, groundwater, smelter sites, residential/populated area soils, slag piles, and terrestrial studies.

Concurrent with the various investigations and studies, risk assessments were conducted at the California Gulch Superfund Site. Some included the Preliminary Baseline Risk Assessment (Preliminary BRA), and the Final Baseline Human Health Risk Assessments (Final BRA): Part A, Part B, and Part C. For human health risk issues at OU3, the Preliminary BRA and the Final BRA Part C, Evaluation of Worker Scenario and Evaluation of Recreational Scenarios, were most pertinent. The Preliminary BRA indicated that lead and arsenic are responsible for the majority of human health risks at the Site. Therefore, arsenic and lead were used as indicator contaminants for risk in the Final BRA.

EPA and D&RGW entered into an Administrative Order on Consent (1991 D&RGW AOC) on December 3, 1991. The 1991 D&RGW AOC required D&RGW to perform remedial investigations of major lead slag piles and one zinc slag pile within the Site. In 1992, D&RGW completed a remedial investigation (1992 OU3 Slag RI) of the major lead slag piles and the zinc slag pile within the Site. Slag was found to have elevated levels of zinc, lead, arsenic and cadmium along with a low acid-generating potential, and a neutral to basic pH. Fine slag, which is less than 3/8 of an inch, was found to have elevated lead levels. The fine fraction of slag was the only part of the slag that may present an unacceptable risk because fine slag poses an inhalation hazard.

EPA and D&RGW entered into a Consent Decree on September 15, 1993 (1993 D&RGW CD) for the completion of investigation, feasibility studies, and remediation activities to be performed for OU3. The 1993 D&RGW CD stated EPA's concerns regarding the fine fraction of the stockpiled slag at the AV Smelter site and the potential for particulate release during ballast operations as a potential human health exposure pathway. The 1993 D&RGW CD required D&RGW to perform a feasibility study for stockpiled fine slag and to submit an operations plan before initiating any ballast operations.

In 1993, the EPA conducted a Screening Feasibility Study (1993 SFS) to initiate the overall CERCLA FS process at the California Gulch Site. The purpose of the SFS was to develop general response actions and identify an appropriate range of alternatives applicable to the various contaminant sources to be considered during feasibility studies for the California Gulch Site. The 1993 SFS for Remedial Alternatives examined several remediation alternatives for slag located at the Site based on specific criteria, such as relative cost, implementability, and effectiveness. The three remedial alternatives for slag retained for further evaluation were: No action, institutional controls, and resource utilization. The La Plata and Harrison Street Slag piles did not contain fine slag. Therefore, no further action was necessary. Because the AV Smelter pile contained fine slag, more investigation was required.

In July of 1995, D&RGW submitted a ballast operations plan to EPA. Following EPA's approval of the plan, ballast operations commenced in August 1995 but ceased soon thereafter for lack of a profitable market for the slag. Ballast operations involve the sorting of larger slag so that the size fraction of greater than 3/8 inch and less than 21/2 inches is produced for road ballast. The undersized fraction (i.e., less than 3/8 inch), or sorted fine slag, that is produced by the sorting process is stockpiled along with the previously sorted fine slag at the Arkansas Valley pile.

D&RGW's 1996 Final Stockpiled Fine Slag Feasibility Study (1996 OU3 FS) focused on the AV Smelter Slag Pile's existing fine slag subpile and fine slag potentially generated from future ballast production. Based upon the 1993 SFS and 1993 D&RGW CD, the remedial action objective for the stockpiled fine slag was to: prevent leaching of metals of concern in concentrations that would have an adverse impact on soils, surface or ground water near the slag piles. The 1996 OU3 FS provided a detailed analysis of the three retained remediation alternatives (no action, institutional controls, and resource utilization) from the 1993 SFS as applied to the stockpiled fine slag. The result of the 1996 OU3 FS for the stockpiled fine slag was a Proposed Plan with a No Action Alternative for the stockpiled fine slag subpile of the AV Smelter Slag Pile. In September 1996, the Proposed Plan was issued with a preferred alternative of “No Action,” with a contingency for future utilization of the slag.

The EPA issued the Stockpiled Fine Slag—Arkansas Valley Smelter Slag Pile ROD for OU3 on May 6, 1998 (1998 OU3 ROD). Based on consideration of CERCLA requirements, detailed analyses of alternatives, and public comments, the EPA determined that a No Action alternative was the appropriate remedy. The No Action alternative leaves the stockpiled fine slag in its existing condition with no control or cleanup planned. The No Action alternative includes a provision, denoted as a contingency, for future utilization of the slag, if it is encapsulated prior to its use or reuse. The 1998 OU3 ROD also provides a provision to use the slag in the future if regional market demand exists for the material as a component in construction materials.

The 1998 OU3 ROD did not require maintenance of the fine slag piles. Any future use of the slag would require encapsulation prior to reuse. Encapsulation can include the use of fine slag in concrete or asphalt aggregate, as a road base, or as backfill (so long as the slag is chemically bound or physically separated from an exposure by a barrier consisting of a different material).

Sampling in the Poverty Flats rail yard property and the Harrison Avenue property shows levels of lead in soils above levels that would allow for unlimited use and unrestricted exposure, i.e., above the residential action level established for OU9, Residential Populated Areas of the Site. In addition, the Mineral Belt Trail, which was constructed on the former railroad easement, acts as a cap for fine slag and residual slag remains in other parts of OU3. Thus, the August 6, 2014 ESD (2014 OU3 ESD) addresses the need for ICs, and documents the decision to require ICs for OU3. In addition, the use of the term “contingency” for fine slag utilization in the 1998 OU3 ROD is clarified in the 2014 OU3 ESD. Fine slag can be used for future commercial purposes by following the requirements set out in the 1998 OU3 ROD.

As the final determination in the 1998 OU3 ROD was No Action ROD, no cleanup standards were identified for fine slag in the record of decision. The OU12 remedy addresses site-wide surface water and groundwater contamination.

No response actions were taken pursuant to the No Action ROD. The ICs established by the City and County ordinances were response actions that were incorporated into the OU3 remedy by the ESD. Lake County, on March 3, 2009, and the City of Leadville, on May 7, 2013, implemented ICs in the form of local ordinances, amending the Land Development Codes and adopting regulations that protect both engineered and non-engineered remedies at OU3. A best management practice handout is provided to all applicants applying for a building permit within OU3. In addition, any disruptions of engineered or non-engineered remedies, and/or excavation of more than 10 cubic yards of soil off-site within OU3 require written approval from the CDPHE.

Because the 1998 OU3 ROD was a No Action ROD, no maintenance was required.

The remedies at the entire Site, including OU1 and OU3 require ongoing five-year reviews in accordance with CERCLA Section 121(c) and Section 300.430(f)(4)(ii) of the NCP. The next five-year review for the California Gulch Site is planned for 2017.

In the 2012 five-year review dated September 27, 2012 for the Site, the OU1 remedy was determined to be protective in the short-term. There were concerns regarding continued long-term protectiveness because the requirement of ICs was not documented in a decision document even though ICs had already been implemented by the PRP and Lake County. Environmental covenants for Resurrection/Newmont's properties within OU1 were recorded with the Lake County Clerk and Recorder on July 31, 2012 and October 10, 2012. An ESD dated July 29, 2013 (2013 OU1 ESD) resolved this concern.

In the 2012 five-year review for the Site, the OU3 remedies were determined to be protective in the short-term. The five-year review, recommended a review to determine whether additional response actions were needed at OU3 to insure long-term protectiveness. The review determined that ICs were needed to insure long-term protectiveness. The 2013 OU3 ESD addresses the need for ICs because some soils and residual slag remained above the residential action level, and documents the decision to require ICs. Ordinances adopted by the City and County met the IC objectives set out in the ESD

Pursuant to CERCLA section 121(c) and the NCP, EPA will conduct the next five-year review by September 27, 2017 to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at the Site above levels that allow for unlimited use and unrestricted exposure.

Public participation activities have been satisfied as required in CERCLA Section 113(k), 42 U.S.C. 9613(k) and CERCLA Section 117, 42 U.S.C. 9617. During the development and implementation of the remedies for these operable units, comment periods were offered for proposed plans, five-year reviews, and other public meetings. The documents that the EPA relied on for the partial deletion of OU1 and OU3 from the California Gulch Superfund Site are in the docket and are available to the public in the information repositories. A notice of availability of the Notice of Intent for Partial Deletion has been published in the Leadville Herald Democrat to satisfy public participation procedures required by 40 CFR 300.425 (e) (4).

The State, the Lake County Commissioners, the City of Leadville are supportive of the partial deletion of OU1 and OU3. The State signed a letter of concurrence on October 7, 2015.

EPA has consulted with the State, Lake County Commissioners, and the City of Leadville on the proposed partial deletion of OU1 and OU3 of the California Gulch Site from the NPL prior to developing this Notice of Partial Deletion. Through the five-year reviews, EPA has also determined that the response actions taken are protective of public health or the environment and, therefore, taking of additional remedial measures is not appropriate.

The implemented remedies achieve the degree of cleanup or protection specified in: for OU1, the 1988 OU1 ROD, 1989 OU1 AROD, the 1991 OU1 ESD and 2013 OU1 ESD; and for OU3, the 1998 OU3 ROD and the 2014 OU3 ESD.

All selected removal and remedial action objectives and associated cleanup goals for OU1 and OU3 are consistent with agency policy and guidance. This partial deletion meets the completion requirements as specified in OSWER Directive 9320.2-22, Close Out Procedures for National Priority List Sites. All response activities at OU1 and OU3 of the Site are complete and the two operable units pose no unacceptable risk to human health or the environment. Therefore, EPA and CDPHE have determined that no further response is necessary at OU1 and OU3 of the Site.

The EPA, with concurrence of the State through the CDPHE has determined that all appropriate response actions under CERCLA, other than operation, maintenance, monitoring and five-year reviews, have been completed. Therefore, EPA is deleting all of OU1, Yak Tunnel/Water Treatment Plant; and OU3, D&RGW Slag Easement/Railroad Yard, of the Site.

Because EPA considers this action to be non-controversial and routine, EPA is taking it without prior publication. This action will be effective April 11, 2016 unless EPA receives adverse comments by March 10, 2016. If adverse comments are received within the 30-day public comment period, EPA will publish a timely withdrawal of this direct final notice of partial deletion before the effective date of the partial deletion and it will not take effect. EPA will prepare a response to comments and continue with the deletion process on the basis of the notice of intent to partially delete and the comments already received. There will be no additional opportunity to comment.

Table of Contents for Supplementary Information I. Executive Summary II. NPRM Background A. Executive Orders 13563 and 13610 B. RSAC End Facing Glazing Recommendation III. Discussion of Specific Comments and Conclusions A. AAR's Comments B. ATRRM's Comments IV. General Overview of the Final Rule A. Removal of the Requirement To Stencil Certified Glazing Compliance on Inside Walls of Locomotive Cabs, Passenger Cars, and Cabooses B. Clarification of the Term “Antiquated Equipment” C. Exclusion of Older Locomotives Used in Incidental Freight Service D. Clarification of the Terms “Private Car” and “Passenger Car” E. Modification of the Application of the Safety Glazing Standards to Passenger Cars and Cabooses in a Railroad's Fleet That Are Used Only for Private Business Purposes F. Emergency Windows for Occupied Passenger Cars That Are More Than 50 Years Old But Built After 1945 and Operated in an Intercity Passenger or Commuter Train G. Locomotives, Passenger Cars, and Cabooses That Are More Than 50 Years Old But Built After 1945 and Equipped With Compliant Glazing H. Clarification of the Term “End Facing Glazing Location” I. Removal of Compliance Phase-In Dates That Have Passed and Are No Longer Applicable V. Section-by-Section Analysis VI. Regulatory Impact and Notices A. Executive Orders 12866 and 13563 and DOT Regulatory Policies and Procedures B. Regulatory Flexibility Act and Executive Order 13272 C. Paperwork Reduction Act D. Federalism Implications E. Environmental Impact F. Executive Order 12898 (Environmental Justice) G. Executive Order 13175 (Tribal Consultation) H. Unfunded Mandates Reform Act of 1995 I. Privacy Act I. Executive Summary

Beginning on January 18, 2011, the President issued a set of Executive Orders which require Federal agencies to review existing regulations and reduce the regulatory burden on industry, when appropriate. (See Executive Orders 13563 and 13610, discussed in more detail in section II of this preamble). During FRA's review of its Safety Glazing Standards in 49 CFR part 223 1 (part 223), FRA identified potential changes to requirements for stenciling and “antiquated equipment” as opportunities to reduce paperwork and other economic burdens on the rail industry without adversely impacting safety. On September 26, 2014, FRA issued its proposed changes to these requirements in a notice of proposed rulemaking (NPRM). See 79 FR 57856. After considering the comments received on the NPRM, FRA modifies these requirements in this final rule.

Specifically, this final rule eliminates as unnecessary the requirement to stencil inside walls of locomotive cabs, passenger cars, and cabooses to indicate that the equipment contains window glazing certified in compliance with the Safety Glazing Standards. Further, this final rule uses a rolling, 50-year calculation to determine whether equipment is “antiquated” based on its build date—rather than a fixed date of 1945 or earlier—thereby eliminating the cost of fitting equipment more than 50 years old and used only for certain purposes with compliant glazing. To maintain safety in connection with the change to the application of the term “antiquated equipment,” FRA is clarifying requirements for emergency windows in occupied passenger cars operated in intercity passenger or commuter trains, and clarifying requirements for locomotives, passengers, and cabooses currently equipped with compliant glazing.

Separately, this final rule makes changes based on a Railroad Safety Advisory Committee (RSAC) recommendation. In 2013, FRA's RSAC recommended that FRA clarify the application of the glazing requirements in part 223 to address requirements for the next generation of high-speed trainsets. FRA agrees that aspects of the RSAC recommendation are appropriate to adopt generally for all equipment, and is therefore doing so in this final rule. Specifically, FRA believes that amending application of the phrase “end facing glazing location” in part 223 reduces the economic burden on the rail industry without adversely impacting safety.

In addition, FRA is clarifying the application of requirements for private cars, and eliminating compliance phase-in dates that are no longer necessary. Also, in response to comments on the NPRM, this final rule modifies application of the safety glazing requirements to passenger cars and cabooses in a railroad's fleet used only for private transportation purposes and to older locomotives used in incidental freight service.

FRA believes this final rule is consistent with current industry practices and reduces the regulatory burden on the rail industry.

The estimated quantified benefits or cost savings of this rule total $1,088,489. The present value (PV), discounted at 7 percent, of the estimated quantified benefits is approximately $819,479. FRA concludes that the industry incurs only a minimal cost of approximately $6,000 to take advantage of the flexibilities in this rule. Therefore, FRA estimates the net benefit (cost savings) of this rule is approximately $813,479 (PV, 7 percent).

Under its general statutory rulemaking authority, FRA promulgates and enforces rules as part of a comprehensive regulatory program to address all areas of railroad safety. See 49 U.S.C. 20103 and 49 CFR 1.89. In the area of safety glazing, FRA has issued regulations generally found at part 223. FRA continually reviews its regulations and revises them as needed to: (1) Ensure the regulatory burden on the rail industry is not excessive; (2) clarify the application of existing requirements and remove requirements that are no longer necessary; and (3) keep pace with emerging technology, changing operational realities, and safety concerns. FRA's review of part 223 identified several compliance phase-in dates in the regulation that have passed and are no longer necessary. To improve the plain language and make the regulation more clear and concise, FRA proposed to remove the dates that have passed. Further, FRA specifically proposed amending the safety glazing requirements based on FRA's detailed analyses of the requirements and a recommendation from FRA's RSAC, discussed below.

On January 18, 2011, the President issued Executive Order 13563 (Improving Regulation and Regulatory Review). Executive Order 13563 requires agencies to periodically conduct retrospective analyses of their existing rules to identify requirements that may be outmoded, ineffective, insufficient, or excessively burdensome. The Executive Order further requires that agencies modify, streamline, expand, or repeal any problematic regulatory provisions identified during their review. During FRA's retrospective analysis of part 223, the agency identified requirements for antiquated equipment in particular as being potentially burdensome to the regulated community. Specifically, the term “antiquated equipment” was not explicitly defined in the rule text, and FRA's interpretive guidance had the potential of imposing a progressively larger burden on a small segment of the industry over time. Accordingly, this final rule clarifies the application of these requirements and reduces their potential economic burden on the rail industry.

Further, on May 10, 2012, the President issued Executive Order 13610 (Identifying and Reducing Regulatory Burdens). Executive Order 13610 requires agencies to take continuing steps to reassess regulatory requirements, and where appropriate, to streamline, improve, or eliminate those requirements. Executive Order 13610 emphasizes that agencies should prioritize “initiatives that will produce significant quantifiable monetary savings or significant quantifiable reductions in paperwork burdens.” In response to these instructions, DOT carried out a Paperwork Reduction Act initiative that focused on identifying and eliminating paperwork burdens on the rail industry as appropriate. FRA conducted a comprehensive review of its regulations based on the guidance provided in Executive Order 13610 and determined that eliminating the stenciling requirement in § 223.17 was an opportunity to reduce the paperwork burden on the rail industry without adversely impacting safety. (FRA's Executive Order 13563 review also identified § 223.17 as a candidate for elimination.) This final rule eliminates this stenciling requirement.

In addition to the changes FRA proposed in response to these Executive Orders, FRA's proposal was also based on an RSAC recommendation addressing the application of the regulations for the next generation of high-speed trainsets. RSAC is a forum for collaborative rulemaking and program development that FRA established in March 1996. RSAC includes representation from all of the agency's major stakeholder groups, including railroads, labor organizations, suppliers and manufacturers, and other interested parties.2 When appropriate, FRA assigns a task to RSAC, and after consideration and debate, RSAC may accept or reject the task. If accepted, RSAC establishes a working group that possesses the appropriate expertise and representation of interests to develop recommendations to FRA for action on the task. These recommendations are developed by consensus. A working group may establish one or more task forces and task groups to develop facts and options on a particular aspect of a given task. When a working group comes to unanimous consensus on recommendations for action, the package is presented to the full Committee for a vote. If RSAC is unable to reach consensus on a recommendation for action, the task is withdrawn and FRA determines the best course of action. If the proposal is accepted by a simple majority of RSAC, the proposal is formally recommended to the Administrator of FRA. FRA then determines what action to take on the recommendation.

In March 2013, after RSAC's Passenger Safety Working Group 3 accepted a task related to high-speed rail safety, the Working Group's Engineering Task Force 4 established the Tier III Cab Glazing Task Group (Task Group) to focus on issues concerning safety glazing. The Task Group discussed glazing during four meetings held between March and May 2013. During the Task Group's last meeting, the Group reached consensus on a recommendation to apply FRA's Safety Glazing Standards to trainsets operating at speeds up to 220 miles per hour, including requirements applicable to end facing glazing locations that focus on the exposed exterior of the trainsets. On June 14, 2013, the full Committee adopted the Task Group's recommendation and presented it to FRA for consideration. Based on FRA's experience enforcing glazing requirements, FRA believes that the RSAC Task Group's approach to identifying end facing glazing locations is appropriate to adopt generally for all equipment, not only high-speed trainsets, and is therefore doing so in this final rule. FRA believes it is helpful to clarify for equipment operating at conventional speeds what exterior locations are end facing glazing locations, to reduce the economic burden on the rail industry without adversely impacting safety.

The NPRM solicited written comments from the public under the Administrative Procedure Act (APA) (5 U.S.C. 553). FRA also invited comment on a number of specific issues related to the proposed rule to develop the final rule. Consideration of public comment is valuable, as it allows FRA to access additional viewpoints from interested parties and include them in the final rule when appropriate. By the close of the comment period on November 25, 2014, FRA received two sets of comments. AAR and ATRRM each submitted comments.

AAR requested two changes in the final rule: (1) Confirm and clarify the glazing requirements do not apply to business cars; and (2) remove the noise emissions testing decal requirement in part 210. In response to AAR's first comment, this final rule excludes certain cars in a railroad's fleet that are used only for private transportation purposes from the glazing requirements. After reviewing favorable safety data, FRA believes the glazing requirements should not apply to these cars used only for private transportation. A fuller discussion of this issue is provided in section IV.E. of this final rule.

AAR's request to remove the noise decal required in part 210 is outside the scope of this rulemaking. Therefore FRA cannot properly adopt it in this final rule. Under the APA, a final rule must be based on the subjects and issues identified in the NPRM. See 5 U.S.C. 553. The purpose for this requirement is to provide sufficient notice and opportunity for meaningful public participation in the rulemaking. The subjects and issues raised in the NPRM alert interested parties that rule changes are being considered so they can take full advantage of the opportunity to comment on them. The NPRM did not raise any issues related to existing noise emissions testing requirements. Because FRA did not provide sufficient notice for this issue, FRA cannot make any changes in the final rule based on this comment. Nevertheless, FRA continues to consider the merits of AAR's comment and will evaluate how to best address this issue in the future.

ATRRM expressed support for FRA's proposal and requested two modifications in the final rule: (1) Exclude historic or antiquated locomotives that are used primarily in excursion, educational, recreational, or private passenger service and also used in other limited types of service from the glazing requirements; and (2) confirm and clarify that § 223.3(c)(1) would not require an “open window” passenger car with windows that open wide enough to permit egress to also be equipped with a tool or implement to use to break or remove a window during an emergency.

In response to ATRRM's first comment, this final rule excludes from the glazing requirements a small number of primarily excursion locomotives that are used in incidental freight service when no other power is available. Based on its thorough review of the issue, FRA believes it can provide this relief without having an adverse impact on rail safety. A fuller discussion of this issue is provided in section IV.C. of this final rule.

In response to ATRRM's second comment, FRA confirms that § 223.3(c)(1) does not require a passenger car with windows that open wide enough to permit egress to be equipped with a tool or implement to use to break or remove a window during an emergency. FRA believes the plain language of § 223.3(c)(1) is clear, and read in conjunction with §§ 223.9(c) and 223.15(c), communicates that no tool or implement is required in such a case. Therefore, FRA believes that no change is necessary and is adopting § 223.3(c)(1) as proposed. Nevertheless, FRA takes this opportunity to clarify the language and intent of this paragraph to avoid any confusion. The purpose for requiring an emergency window exit is to help ensure passengers are not sealed inside the car during an emergency when they need to exit rapidly. If the window is open or can be opened wide enough to permit egress, passengers should be able to exit the car through that window as rapidly as they would if the window were removed by a tool or other implement. Specifically, if a window frame does not contain glass, as in an “open air car,” there is no need for a tool or implement to clear the space inside the window frame where the glass would otherwise be. Therefore, no tool or implement is required.

FRA carefully considered both sets of comments on the NPRM while developing this final rule. To further clarify written comments, FRA discussed the comments with the RSAC Tourist and Historic Railroads and Private Passenger Car Working Group 5 during a meeting on December 3, 2014. The discussion, although limited in scope, helped FRA understand the written comments. FRA added a copy of the meeting minutes to the docket for this proceeding. The final rule text differs from the NPRM text in part because of issues AAR and ATRRM raised in their comments. For changes to the rule text, FRA addresses each of the relevant comments in the corresponding regulatory paragraphs of the section-by-section analysis provided below.

As noted above, FRA's review of its regulations under Executive Order 13563 and Executive Order 13610 identified as a candidate for elimination § 223.17, which provided that locomotive cabs, passenger cars, and cabooses be stenciled inside on an interior wall with the type of glazing present in the equipment. In particular, Executive Order 13610 requires agencies to take continuing steps to reassess regulatory requirements and, where appropriate, to streamline, improve, or eliminate those requirements. Executive Order 13610 emphasizes that agencies should prioritize “initiatives that will produce significant quantifiable monetary savings or significant quantifiable reductions in paperwork burdens.” In 2012, FRA conducted a comprehensive review of its regulations based on the guidance in Executive Order 13610 and determined removal of the certified glazing stenciling requirement inside of locomotive cabs, passenger cars, and cabooses is an opportunity to reduce the paperwork burden on the rail industry without adversely impacting safety. The certified glazing stencil was originally intended as an easily identifiable method for railroads to demonstrate compliance with the safety glazing requirements contained in part 223 when large numbers of affected equipment were not equipped with part 223 glazing. However, the need for this requirement has diminished since compliance was phased in for equipment existing at the time part 223 was promulgated. (See the discussion below on removing compliance phase-in dates from part 223.) Moreover, in practice, FRA has found the stencil is not always accurate, and that each window needs to be examined to determine whether proper glazing has been applied. An easy and reliable way to determine the compliance of each window individually is to read the permanent marking on each window panel required by part 223, appendix A. Each window that is equipped with certified glazing must be permanently marked by the manufacturer to indicate the type of glazing applied, which remains unchanged for each glazing panel's service life. Appendix A requires glazing to be tested and then marked according to the tests passed as either “FRA Type I” or “FRA Type II” glazing, depending on its location. By considering the location of the window and examining the marking, FRA inspectors can apply the requirements and determine whether the glazing use is compliant.

FRA believes the markings on the windows are more reliable than the stenciling located inside the equipment in which they are installed, and that the markings provide sufficient information to determine compliance. Therefore, FRA concludes that the § 223.17 stenciling requirement is no longer necessary, and this rule eliminates the requirement for a certified glazing stencil located inside locomotive cabs, passenger cars, and cabooses.

Part 223 uses the term “antiquated equipment” to identify equipment excluded from the application of part 223, if the equipment is operated in only specified types of service (excursion, educational, recreational or private transportation). However, part 223 did not define the term “antiquated equipment” and the context in which the term was used in the regulation did not clearly indicate its meaning. During implementation of part 223, FRA identified the need to clarify the term “antiquated equipment” to ensure its consistent application. FRA developed guidance interpreting the term in 1989, and FRA's Associate Administrator for Safety provided it to the agency's regional safety management. Subsequently, FRA made the interpretation part of a 1990 FRA technical bulletin. For purposes of this final rule, FRA references the 1990 FRA technical bulletin (1990 Technical Bulletin) and has included it in the public docket for this rulemaking.

The 1990 Technical Bulletin stated “antiquated equipment,” as used in part 223, meant equipment built in 1945 or earlier. However, FRA did not explain why it distinguished between equipment built in 1945 or earlier from equipment built after 1945. FRA believes it chose 1945 as the cut-off date because it was the end of World War II, the date was approaching approximately 50 years before the date the guidance was issued, and the approaching 50-year difference in time was consistent with FRA's treatment of other older equipment. Based on FRA's experience, after 50 years certain equipment becomes antiquated and justifies distinct treatment due to significant changes in technology, including design standards and the materials used for construction. For example, FRA uses this distinction in the Freight Car Safety Standards in 49 CFR part 215. Part 215 restricts the operation of freight cars that are more than 50 years old, measured by the date of original construction, unless the operating railroad successfully petitions FRA for continued use. This requirement reflects FRA's general belief that after 50 years, freight equipment is typically outdated and often not in the best condition given its years of service. Accordingly, for purposes of safety, FRA believes that after 50 years of age, it should not treat freight equipment the same as newer equipment when used in certain types of service. As an industry practice, cars more than 50 years old are generally used only in limited freight service. However, passenger cars more than 50 years old have been successfully used for commuter service, which, to be clear, is not the type of service identified in part 223 as service for an educational, excursion, recreational, or private transportation purpose.

FRA has applied the term “antiquated equipment” in the enforcement of part 223 consistent with FRA's 1990 Technical Bulletin without significant opposition until industry's response to FRA's implementation of section 415 of the Rail Safety Improvement Act of 2008 (section 415), Public Law 110-432, Division A. Section 415 required the Secretary of Transportation 6 to conduct a study of tourist and historical railroads for compliance with Federal rail safety laws. While conducting the section 415 study, FRA utilized the year 1945 as a reference point in applying the glazing requirements. Because the 1990 Technical Bulletin did not clearly specify that the term “antiquated equipment” could be subject to a rolling 50-year calculation, an equitable reading of that technical bulletin could conclude FRA intended for the year 1945 to be a fixed date for determining whether equipment is antiquated. In other words, a person could reasonably understand that all equipment built in 1945 or earlier is antiquated, while all built after 1945 is not.

Following the section 415 study, FRA initiated several enforcement actions against owners of equipment in service that was more than 50 years old, but built after 1945. Many in the rail industry expressed surprise at these enforcement actions and, as a result, filed approximately 175 petitions for waiver from the relevant requirements contained in part 223 with FRA for equipment built after 1945. In addition to requesting relief from part 223, many petitioners argued that based on their understanding of the term “antiquated equipment” as used in part 223 and FRA's enforcement history (i.e., they had not previously received notice of non-compliance from FRA), they believed their equipment was antiquated and therefore not subject to part 223. Many of the petitioners were represented by AAPRCO, which submitted a letter to FRA in 2009, on behalf of its members expressing concern over FRA's interpretation of the term “antiquated equipment.” FRA responded to AAPRCO, explaining that use of the fixed date of 1945 to determine whether equipment was antiquated was consistent with the guidance in FRA's 1990 Technical Bulletin.

Subsequently, Executive Order 13563 was issued requiring agencies to conduct a retrospective analysis of their existing rules. As noted above, that analysis was intended to identify requirements that may be outmoded, ineffective, insufficient, or excessively burdensome, and lead agencies to modify, streamline, expand, or repeal such rules based on that analysis. During FRA's retrospective analysis of the Safety Glazing Standards, FRA identified the application of its existing interpretation of “antiquated equipment” as potentially creating an unnecessary burden on the industry. The cost of retrofitting all non-compliant equipment built more than 50 years before the current date but after 1945 with compliant glazing would result in a considerable expense to the rail industry, would likely be too costly for some small businesses to continue operating, and would provide a nominal safety benefit. Based on this information, FRA is modifying the term “antiquated equipment” to reduce the burden on the rail industry. FRA believes the use of a rolling 50-year period to determine whether equipment is antiquated significantly reduces the burden on the rail industry by eliminating the cost of fitting equipment that is more than 50 years old and used only for certain purposes with compliant glazing. In other words, FRA believes that the term “antiquated equipment,” for purposes of part 223, should mean equipment that is more than 50 years old, not equipment that was more than 50 years old as of a certain, fixed date.

This clarification also better aligns FRA's Safety Glazing Standards with other Federal rail safety requirements that address older equipment. For example, because of its age and technology, a caboose built more than 50 years ago receives special treatment as older equipment under § 215.203 of the Freight Car Safety Standards, but that same caboose was essentially treated by the Safety Glazing Standards the same as newer equipment. This rule helps classify equipment more consistently because of its age and ATRRM believes this will eliminate the need for most waivers of the glazing requirements, and waiver renewals, and remove a substantial burden on the industry.

In addition to clarifying the term “antiquated equipment,” in its comments, ATTRM also states FRA should clarify that the service historic or antiquated equipment operates in may exclude that equipment from the glazing requirements. Specifically, rather than exclude historic or antiquated locomotives used only for excursion, educational, recreational, or private transportation purposes, ATTRM requested that FRA exclude historic or antiquated locomotives that are used primarily in excursion, educational, recreational, or private passenger service and also in other limited types of service. For example, ATTRM stated that a steam locomotive normally used exclusively in mainline excursion service will sometimes be “broken in” in freight service after major mechanical work, to allow problems to be identified and corrected before the locomotive is used for a passenger train. According to ATTRM, a general system tourist railroad might also occasionally use a passenger locomotive on a non-excursion freight train if the railroad's normal freight power is temporarily out of service or unavailable. ATTRM made clear it is not seeking exclusion for locomotives used regularly in freight service but rather for “occasional and irregular” use.

FRA understands that all locomotives (except for a handful of newly built steam locomotives, less than ten total) currently used in excursion service would be considered antiquated based on the revised definition because they are more than 50 years old. However, many locomotives more than 50 years old used in excursion service are also used in other limited types of service but would not be excluded under the proposed rule. As a result, to comply with the proposed rule, affected railroads would need to either equip these locomotives with compliant certified glazing at a significant cost, or forgo using the locomotives for certain types of service and risk losing revenue.

FRA believes the Safety Glazing Standards should not apply to these small number of excursion locomotives that are used for limited non-excursion service when no other power is available. This is a current industry practice for approximately 120 locomotives. FRA's review of its enforcement data confirms that FRA has used its enforcement discretion consistently to permit limited use of such excursion locomotives in non-excursion service without compliant certified glazing. It also reveals that no accidents or incidents have been reported to FRA for the lack of compliant certified glazing materials in these locomotives. Based on a thorough review of this issue, FRA believes the rule can allow this current industry practice without having an adverse impact on rail safety. Therefore, this final rule provides the relief needed to permit these excursion locomotives to operate in incidental freight service, which includes the two specific scenarios ATRRM's comments identified for “antiquated” locomotives otherwise used only for excursion, educational, recreational, or private transportation purposes.

In this final rule, FRA makes clear that incidental freight service would include when an excursion locomotive that is more than 50 years old has finished hauling an excursion train for the day, a couple of freight cars need to be switched on the railroad's property, and no other locomotive is ready to switch the cars. Current industry practice is for the excursion locomotive to switch the freight cars. The alternative would be to start a freight locomotive not in use, conduct the required safety inspection to run it in service, and then use it to switch the freight cars. FRA believes this alternative is too burdensome for industry compared to the low safety risk incurred by using such an excursion locomotive to switch the freight cars—typically short moves conducted at fairly low speeds. This final rule allows the flexibility to use these small number of excursion locomotives as additional power in freight service under such limited circumstances. However, FRA emphasizes that these circumstances are limited. If a freight locomotive is in use and available for service on the property, the exception would not apply. Moreover, FRA expects railroads to have a sufficient number of locomotives available to satisfy their operational needs under ordinary circumstances.

FRA also makes clear that another example of incidental freight service would be breaking-in a steam locomotive more than 50 years old in freight service after major repairs are completed as described by ATRRM. This conditioning service is an opportunity to stress the steam locomotive to ensure the repairs are effective. Excursion operations provide few opportunities for conditioning such locomotives in higher tonnage trains. Moreover, these operations typically have fairly regimented schedules due to seasonal considerations and customer demands. Using these excursion locomotives in freight service for conditioning in this limited manner is also advantageous because freight service is more frequently available. Consequently, FRA is excluding this conditioning service for these older locomotives from the glazing requirements in this final rule. However, FRA intends for the period to be limited to only the time necessary to condition the locomotive for excursion service.

Previous amendments to part 223, which revised the definition of “passenger car” to clarify contemporaneous revisions to the regulation, may have caused some unintentional confusion regarding application of the glazing requirements to “private cars.” In 1998 and 1999, FRA issued comprehensive regulations for intercity passenger and commuter train safety, amending part 223 among other things to add requirements for emergency windows in intercity passenger and commuter trains, which part 223 has long required for passenger cars with certified glazing to facilitate occupant egress. See 63 FR 24630 (May 4, 1998, final rule on Passenger Train Emergency Preparedness) and 64 FR 25540 (May 12, 1999, final rule on Passenger Equipment Safety Standards), as amended at 73 FR 6370 (February 1, 2008, final rule on Passenger Train Emergency Systems). The amendments to part 223 included revising the definition of the term “passenger car” by specifically excluding from the definition a “private car.” 63 FR 24675. FRA intended for this revision of the term “passenger car” to clarify that requirements being established for passenger cars in intercity passenger and commuter train service only, such as new requirements in former § 223.9(d) for marking emergency windows, did not apply to private cars. See 63 FR 24675. It was not intended to change the existing application of the rest of part 223 to private cars. Yet, the substantive requirements contained in §§ 223.9 and 223.15 specify they apply to “passenger cars,” which by a literal reading of the definition of “passenger car” in § 223.5 would have seemingly excluded private cars.

However, as evidenced by the “Application” section of part 223 (particularly § 223.3(b)(3)), FRA's intent was to continue to apply the glazing requirements of part 223 to private cars as previously specified, as no general exclusion was suggested or made. See 63 FR 24675. FRA believes that the rail industry has the same understanding. The application of the glazing requirements to private cars is clear, as provided in § 223.3. Section 223.3(a) states that the requirements in part 223 apply to any railroad rolling equipment operated on standard gauge track that is a part of the general railroad system of transportation. Section 223.3(b) excludes equipment used for private transportation purposes, but only if it is historical or antiquated. Nonetheless, to alleviate any confusion, FRA is amending the definition of “passenger car,” in § 223.5 by removing the last sentence of the existing definition that indicates “[t]his term does not include a private car.”

As discussed above, AAR's comments request FRA to confirm the glazing requirements in part 223 do not apply to railroad private business cars. Part 223 has not specifically used the term “railroad private business cars,” and AAR's comment does not provide a definition for the term. Based on FRA's experience and discussions with AAR during the Working Group meeting on December 3, 2014, FRA understands that a railroad private business car is a specially modified passenger car or caboose a railroad uses to conduct business and entertain colleagues and guests during transport. Further, FRA understands all but a small handful of railroad private business cars are more than 50 years old. Therefore, based on their age and use, almost all these cars will be excluded from the glazing requirements because of this final rule's clarification of the term “antiquated equipment” discussed in section IV.B, above. Nonetheless, FRA understands AAR's comment to also request that the remaining small handful of cars be excluded from the glazing requirements.

FRA agrees that the remaining railroad private business cars should be excluded from the glazing requirements due to the limited safety risk. Only a small number of invited guests and employees ride these cars and FRA has no record of any accidents or incidents (including injuries) due to the lack of certified glazing materials in these cars. FRA has exercised its discretion to allow railroad private business cars that are not antiquated to operate without certified glazing. Its use of discretion has not had an adverse impact on safety.

Based on a thorough review of this issue, FRA agrees with AAR's comment and in this final rule is excluding from the glazing requirements the remaining small handful of private business cars currently held by railroads that are not equipped with certified glazing. However, railroad private business cars that are currently equipped with certified glazing are required to continue to be equipped with certified glazing to maintain the current level of safety. In addition, all new railroad private business cars must be equipped with certified glazing. Furthermore, if a railroad's private car is used in public service, the exclusion does not apply and the car must be equipped with certified glazing. FRA continues to believe the cost of equipping a new car with certified glazing is worth the safety benefit, including new railroad private business cars.

This rule clarifies application of the emergency window requirements in part 223 to passenger cars more than 50 years old, but built after 1945, by incorporating provisions in waivers FRA's Railroad Safety Board grated (see, e.g., FRA-2010-0080), without changing the existing regulatory framework for the emergency window requirements. Both parts 223 and 238 of this chapter contain requirements for emergency windows that apply to various types of passenger vehicles (see, e.g., §§ 223.8, 223.9, 223.15, and 238.113). For the purposes of emergency window and other requirements, part 238 distinguishes between categories of passenger vehicles—namely, “passenger cars” and “passenger equipment.” Under § 238.5, the definition of “passenger car” is a subset of “passenger equipment” and must comply with the emergency window exit requirements in § 238.113. By contrast, the part 238 emergency window exit requirements in § 238.113 do not apply to all passenger equipment as defined by § 238.5. Instead, passenger equipment not subject to § 238.113, including a private car, must be equipped with emergency windows as provided in § 223.9(c) or § 223.15(c), as appropriate. In this rule, the application of the emergency window requirements to passenger equipment and passenger cars in part 238 is unchanged. However, a change to part 223 is needed to incorporate existing waivers of the requirements of part 223 that require emergency windows, in light of the change concerning “antiquated equipment,” discussed above.

Specifically, in connection with the change to the application of the term “antiquated equipment,” FRA is revising the language in § 223.3(b) to expressly state the exclusion provided in § 223.3(b)(3) for “antiquated equipment,” for purposes of emergency windows, does not apply to occupied passenger cars built after 1945 when they operate in intercity passenger or commuter train service covered by part 238 (part 238 train). See 49 CFR 238.3. An occupied private car operated in a train covered by the requirements of part 238 is not required to be equipped with emergency windows under part 238; these cars must be equipped with emergency windows under § 223.9(c) or § 223.15(c) of part 223, if they are not “historical or antiquated equipment” and are not used for solely an excursion, educational, recreational, or private purpose as applicable under § 223.3(b)(3). See, e.g., 73 FR 6378. However, FRA's Railroad Safety Board has granted a series of waivers that permit such cars that are neither “historical or antiquated” to operate in a part 238 train without certified glazing. As a condition to the waivers, such cars must be equipped with at least four emergency windows consistent with § 223.9(c) or § 223.15(c). The waivers make clear that the minimum of four emergency windows (two on each side) must be clearly marked. As specified in § 223.5, an “emergency window” means a segment of a side facing glazing panel designed to permit rapid and easy removal from inside the car during an emergency. The waivers further make clear that any tool required to remove or break the window must be provided and clearly marked, with legible and understandable instructions for its use. This final rule revises part 223 to be consistent with the conditions of the waivers FRA has granted and the proposed change to application of the term “antiquated equipment.”

FRA notes that passenger cars that are not covered by the requirements of part 238 but are occupied for an excursion, educational, recreational, or private purpose, and operate in a passenger train covered by the requirements of part 238, are subject to the same conditions as the train to which they are coupled. Such cars are exposed to high speeds over long distances the same as the other cars in the passenger train. In addition, the end frame doors of such cars may not line up with the end frame doors on some passenger cars subject to the requirements of part 238 to which they are coupled (e.g., an Amtrak Superliner). Consequently, during an accident or incident, emergency windows may be required as a primary means of egress, due to a lack of end-of-car egress. Yet, passenger cars occupied for an excursion, educational, recreational, or private use not equipped with part 223 compliant glazing and emergency windows might only be equipped with safety glass that cannot easily shatter or otherwise be easily removed without the use of a tool or other instrument, and therefore may not permit effective egress for occupants during an emergency. Such occupied cars, built after 1945, and more than 50 years old, that operate in a part 238 train, must have emergency windows to maintain the level of safety currently provided.

Consequently, in clarifying the application of part 223 to “antiquated equipment” by using a rolling 50-year date, rather than a fixed date, FRA believes it must continue requiring passenger cars built after 1945 and more than 50 years old to comply with the emergency window requirements in § 223.9(c) or § 223.15(c) if they are occupied and operate in an intercity or commuter passenger train subject to part 238. FRA does not believe it is appropriate to remove the current requirement that such cars be equipped with these emergency windows, especially as the number of such cars considered “antiquated” will increase due to this rulemaking. However, consistent with the conditions of the waivers FRA has granted, a tool or other instrument may be used to remove or break the window if the tool or other instrument is clearly marked, and legible and understandable instructions are provided for its use. Nonetheless, as discussed in section III.B in response to ATRRM's comment, this final rule does not require a passenger car with windows that open wide enough to permit egress to also be equipped with a tool or implement to use to break or remove a window during an emergency.

In connection with the changes to application of the term “antiquated equipment,” all locomotives, passenger cars, and cabooses more than 50 years old, but built after 1945 and equipped with glazing that complies with the glazing test standards in appendix A to part 223, must continue to comply with those standards. Broadening the definition of the term “antiquated equipment” in this rule does not diminish the level of safety currently required. Accordingly, FRA does not intend for windows currently complying with the impact test standards in appendix A to part 223 to be replaced with windows that are not. Moreover, given that such equipment would already have the necessary framing arrangements in place to support part 223-compliant glazing, FRA expects the window panels to be replaced with like window glazing. Of course, if equipment built after 1945 that is more than 50 years old is not already fitted with compliant window glazing, then such window panels (along with their supporting, framing arrangements) do not have to be installed.

Consistent with the RSAC Task Group's recommendation and to ensure consistent application of the relevant requirements, this rule revises the definition of “end facing glazing location” to clarify that the location means an “exterior” location. It also expressly identifies locations not considered to be “end facing glazing location[s]”—namely, the coupled ends of multiple-unit (MU) locomotives or other equipment that is semi-permanently connected to each other in a train consist; and end doors at locations other than the cab end of a cab car of MU locomotive.

The former definition of “end facing glazing location” in § 223.5 does not specify that “end facing” means only a location at the exterior of a piece of equipment. As a result, the final rule clarifies that FRA does not consider windows facing an open end of a car, but located in the interior of the car, to be end facing. Thus, they do not require Type I glazing. For example, a vestibule door set back from the end frame and corner structure of a passenger car that contains a window does not require Type I glazing for the window. In this example, even if the vestibule window is exposed to the outside of the car, Type I glazing is not required. Type I glazing is not needed because the angle of incidence of a projectile to that window is significantly reduced by the presence of the structures at the end of the car located ahead of the plane of the glazing material, compared to a window aligned with the end frame of the car. Therefore, the likelihood of projectile contact is minimized.

Further, the former definition of “end facing glazing location” contains no qualification on the forward or rear end or the direction of travel of the equipment. In other words, all forward and all rearward facing windows could be considered end facing. This application of the term may have resulted in some confusion about FRA's enforcement of relevant glazing requirements, which FRA intends to clarify in this final rule. Accordingly, this rule revises the definition to clarify the term “end facing glazing location” does not apply to the coupled ends of MU locomotives or other equipment that is semi-permanently connected to each other in a train consist, nor does it apply to end doors at locations other than the cab end of a cab car or MU locomotive. The most notable example of an end door at a location other than the cab end of a cab car or MU locomotive is an end frame door on an Amfleet passenger car. The rule makes clear that windows in such doors do not require Type I glazing.

At the same time, this rule also revises the existing definition of “side facing glazing location” to clarify those locations are excluded from the definition of “end facing glazing location” and require Type II glazing. The former Safety Glazing Standards require that all side facing glazing locations be equipped with Type II glazing. See appendix A to part 223. Because the coupled ends of MU locomotives or other equipment that is semi-permanently connected to each other in a train consist, and end doors at locations other than the cab end of a cab car or MU locomotive are specifically excluded from the definition of “end facing glazing location,” those locations do not require Type I glazing. By specifically including them in the definition for “side facing glazing location,” the rule makes clear those locations require Type II glazing at a minimum. Thus, for example, locomotives, cabooses, and passenger cars built or rebuilt after June 30, 1980, must be equipped with certified glazing in all windows under § 223.9. The term “certified glazing” refers to Type I and Type II glazing, as specified in appendix A to part 223. Accordingly, for such equipment locations where certified glazing is required, either Type I or Type II glazing must be present.

This final rule also clarifies that any location which, due to curvature of the glazing material, can meet the criteria for either an end facing location or a side facing location shall be considered an end facing location. This is a clarification that FRA identified when preparing the final rule, noting that FRA had inadvertently omitted this longstanding rule text from the proposed rule. The revised language clarifies the continued application of the regulation to equipment that contains curved glazing material that extends beyond its side or end.

This final rule removes outdated, compliance phase-in dates and related language to make the regulation clearer. When the Safety Glazing Standards were published on December 31, 1979, the regulation included compliance dates to phase-in requirements for equipment in existence at the time, in addition to requirements for new equipment. See 44 FR 77328, 77353-77354. As amended by final rule on December 27, 1983, the regulation included those compliance dates. See 48 FR 56955-56955. For example in § 223.15, “Requirements for existing passenger cars,” the regulation provided that certain passenger cars have until June 30, 1984, to comply with the requirements for certified glazing and emergency windows. Because the compliance phase-in period has long passed, FRA can remove the phase-in dates from part 223 without changing the substantive effect of the requirements.

This section-by-section analysis of this final rule explains the rationale for each section of the rule, together with the above discussion. The regulatory changes are organized by section number.

As discussed in section IV.B of this final rule, FRA is revising paragraph (b)(3) to clarify the meaning of the term “antiquated equipment.” Paragraph (b)(3)(i) clarifies the meaning of “antiquated equipment” by replacing the term “antiquated” with the phrase “more than 50 years old.” This change clarifies that the exclusion from the application of the rule for “antiquated equipment” in this section applies to equipment more than 50 years old measured from the time of original construction. This is a rolling, 50-year calculation, and no longer the fixed date of 1945 or earlier. As such, some of the equipment that was subject to the full requirements of part 223 before this final rule takes effect (because it is not yet more than 50 years old) is excluded from certain requirements when the equipment becomes more than 50 years old. To qualify for the exclusion under paragraph (b)(3)(i), when the equipment becomes more than 50 years old, the rule continues to require that the equipment be used only for excursion, educational, recreational, or private transportation purposes.

As discussed in section IV.C of this final rule, FRA is also revising paragraph (b)(3) to provide some flexibility in application of the glazing requirements to older locomotives used primarily in excursion service. Paragraph (b)(3)(i) also excludes from the glazing requirements locomotives that are historical or more than 50 years old and are used in incidental freight service. Incidental freight service includes operating a steam locomotive for conditioning purposes following major mechanical work and limited use of a passenger locomotive in freight service only when no other locomotive is available. Please note that paragraph (c), discussed below, qualifies the exclusion available under this paragraph (b)(3); both paragraphs must be read together.

As discussed in section IV.E of this final rule, FRA is also revising paragraph (b)(3) to allow existing “business cars” to continue to operate without certified glazing. Paragraph (b)(3)(ii) is added to exclude existing cabooses and passenger cars in a railroad's fleet on April 11, 2016 that are used only for private transportation purposes and are not currently equipped with certified glazing. This change effectively makes the exclusion in paragraph (b)(3)(i) for cabooses and passenger cars that are historic or more than 50 years old and used only for the railroad's private transportation purposes available to all of the railroad's existing cabooses and passenger cars used only for private transportation purposes.

In addition, as FRA proposed in the NPRM, FRA is revising paragraph (b)(4) to correct the reference to § 223.5. Paragraph (b)(4) formerly contained an exclusion for “[l]ocomotives that are used exclusively in designated service as defined in § 223.5(m).” The reference to § 223.5(m) is outdated, as paragraph lettering was removed from § 223.5, Definitions, when that section was reorganized and revised by the May 4, 1998 Passenger Train Emergency Preparedness final rule. See 63 FR 24630, 24642. Removing the reference to paragraph (m) of § 223.5 for internal consistency has no substantive effect on the application of the rule, as the definition of “designated service” in § 223.5 remains unchanged. Accordingly, this final rule removes the reference to paragraph (m) of § 223.5 so that paragraph (b)(4) instead refers to § 223.5 generally.

FRA is adding paragraph (c) to clarify the requirements applicable to equipment subject to the exclusion in paragraph (b)(3) of this section for “antiquated equipment,” to maintain safety in connection with the change to the application of this term for equipment built after 1945 but more than 50 years old. As discussed in sections IV.F and IV.H of this final rule, FRA is clarifying requirements for emergency windows in occupied passenger cars operated in intercity passenger or commuter trains, as well as clarifying requirements for locomotives, passenger cars, and cabooses currently equipped with compliant glazing. Paragraph (c) applies, as specified, to each locomotive, passenger car, and caboose built after 1945 more than 50 years old and used only for excursion, educational, recreational, or private transportation purposes. Specifically, paragraph (c)(1) requires each such passenger car to comply with the emergency window requirements contained in § 223.9(c) or § 223.15(c), as appropriate, when it is occupied and operates in an intercity passenger or commuter train subject to part 238 of this chapter. A tool or other instrument may be used to remove or break an emergency window if the tool or other instrument is clearly marked and legible and understandable instructions are provided for its use. Paragraph (c)(2) requires each such locomotive, passenger car, and caboose that is equipped with glazing that complies with the glazing requirements contained in appendix A to this part as of February 9, 2016, to remain in compliance with those requirements. Accordingly, the final rule will not diminish the level of safety the regulation currently provides.

FRA is revising three terms in this section: “end facing glazing location,” “passenger car,” and “side facing glazing location.” FRA is also defining “incidental freight service.”

Specifically, FRA is revising the definition of “end facing glazing location” by making clear the location means an “exterior” location and that dome and observation cars are included in the category of cars subject to the application of this definition, and by expressly identifying locations not considered “end facing glazing location[s].” The definition clearly excludes the coupled ends of MU locomotives or other equipment that is semi-permanently connected to each other in a train consist, and end doors at locations other than the cab end of a cab car of MU locomotive. Instead of considering such locations to be end facing glazing locations requiring Type I glazing, these locations are considered side facing glazing locations requiring only Type II glazing, as noted below. Please see section IV.H of this final rule for a fuller discussion of the change to the definition of “end facing glazing location.”

FRA is adopting the changes to this definition as proposed in the NPRM but also makes clear the definition continues to provide that any location which, due to curvature of the glazing material, can meet the criteria for either an end facing location or a side facing location is considered an end facing location. This provision applies unless the location is otherwise excluded from this definition. FRA also notes that in the final rule this provision uses the more general term “end facing” location rather than “front facing” location consistent with the use of “end facing” glazing location in this final rule.

In addition, this rule revises the definition of “side facing glazing location.” The definition now includes the coupled ends of MU locomotives or other equipment that is semi-permanently connected to each other in a train consist, and end doors at locations other than the cab end of a cab car or MU locomotive. Instead of considering such locations to be end facing glazing locations requiring Type I glazing, these locations are considered side facing glazing locations requiring only Type II glazing due to the generally lower risk of an exterior projectile impacting the window surface.

In addition, this rule revises the definition of “passenger car” by removing the statement that “[t]his term does not include a private car.” The revision clarifies that a private car can be considered a passenger car. Please see section IV.D of this final rule for a full discussion of this change.

Finally, FRA is adding the term “incidental freight service” to mean the occasional and irregular use of a locomotive in freight service that is more than 50 years old and used primarily for excursion, educational, recreational, or private transportation purposes. Please see the discussion in section III.B and IV.C of this final rule, above.

As discussed in section IV.I of this final rule, the amendments to this section remove the compliance phase-in dates and related language from the glazing requirements for existing locomotives. As noted above, part 223 phased in requirements for glazing standards by generally allowing the rail industry until June 30, 1984, to fit their existing locomotives with compliant glazing. The rule included an exception for locomotives that had their windows damaged by vandalism. Windows damaged due to vandalism were required to be replaced with compliant glazing sooner than the 1984 compliance phase-in date.

Paragraph (c) removes the compliance phase-in date, June 30, 1984. This date is no longer needed now that it has long passed. Paragraph (d) removes the language that required windows damaged by vandalism to be replaced with compliant glazing sooner than the 1984 compliance phase-in date. This requirement is no longer needed because the compliance phase-in period has long passed and all existing locomotives, other than yard locomotives excluded by this section or locomotives that satisfy the limited exclusions provided in § 223.3, are required to be equipped with compliant glazing.

No comments were received on this section and FRA accordingly adopts the changes to this section as proposed but further clarifies that existing yard locomotives continue to be excluded from the section's requirements. FRA's proposal may have inadvertently created an ambiguity whether this section's longstanding exception for existing yard locomotives continues to apply.

As discussed in section IV.I of this final rule, the amendments to this section remove the compliance phase-in dates and related language from the glazing requirements related to existing cabooses. As noted above, part 223 phased in requirements for glazing standards by generally allowing the rail industry until June 30, 1984, to fit their existing cabooses with compliant glazing. The rule included an exception for cabooses that had their windows damaged by vandalism. Windows damaged by vandalism were required to be replaced with compliant glazing sooner than the 1984 compliance phase-in date.

Paragraph (c) removes the compliance phase-in date, June 30, 1984. This date is no longer needed now that it has long passed. Paragraph (d) removes the language that required windows damaged by vandalism to be replaced with compliant glazing sooner than the 1984 compliance phase-in date. This requirement is no longer needed because the compliance phase-in period has long passed and all cabooses, other than yard cabooses excluded by this section or those that satisfy the limited exclusions provided in § 223.3, are required to be equipped with compliant glazing.

FRA expressly invited comment on the NPRM on whether it needed to retain this section in the final rule and specifically whether its requirements could be consolidated with those for new cabooses in § 223.9(b) in a revised or new section. No comments were received on this issue and this final rule makes no change to § 223.9(b). No comments were received on § 223.13 and FRA accordingly adopts the changes to § 223.13 as proposed but clarifies that existing yard cabooses continue to be excluded from § 223.13's requirements. FRA's proposal may have inadvertently created an ambiguity whether § 223.13's longstanding exception for existing yard cabooses continues to apply.

As discussed in section IV.I of this final rule, the amendments to this section remove the compliance phase-in dates and related language from the glazing requirements for existing passenger cars. As noted above, before these changes the rule generally allowed the rail industry until June 30, 1984, to fit their existing passenger cars with compliant glazing. Windows damaged by vandalism were required to be replaced with compliant glazing sooner than the 1984 compliance phase-in date.

Paragraph (c) removes the compliance phase-in date, June 30, 1984. This date is no longer needed now that it has long passed. Paragraph (d) removes the language that required windows damaged by vandalism to be replaced with compliant glazing sooner than the 1984 compliance phase-in date. This requirement is no longer needed because the compliance phase-in period has long passed and all passenger cars, other than those that satisfy the limited exclusions provided in § 223.3, are required to be equipped with compliant glazing.

FRA expressly invited comment on the NPRM on whether it needed to retain this section needed in the final rule and specifically whether its requirements could be consolidated with those for new passenger cars in § 223.9(c) in a revised or new section. No comments were received on this issue and this final rule makes no change to § 223.9(c). No comments were received on § 223.15 and FRA accordingly adopts the changes to § 223.15 as proposed.

Section § 223.17 required stenciling on the interior wall of each locomotive cab, passenger car, and caboose to identify that the equipment is fully equipped with glazing material that complies with part 223. This requirement is no longer necessary, and the final rule removes this entire section. As a result, this type of stenciling is no longer required. For a full discussion of this change, please see section IV.A of this final rule.

Appendix B to part 223 contains a schedule of civil penalties for FRA to use to enforce this part. FRA is revising the schedule of civil penalties in this final rule to reflect revisions made to part 223. Because such penalty schedules are statements of agency policy, notice and comment are not required before they are issued. See 5 U.S.C. 553(b)(3)(A). Nevertheless, FRA invited comments on the penalty schedule in the NPRM. However, FRA did not receive any comments. Accordingly, FRA is revising the penalty schedule to reflect the removal of § 223.17, Identification of Equipped Locomotives, Passenger Cars and Cabooses, from this part.

This final rule has been evaluated consistent with Executive Order 12866 (Regulatory Planning and Review), Executive Order 13563 (Improving Regulation and Regulatory Review), and DOT policies and procedures. FRA has prepared and placed in the docket a regulatory analysis addressing the economic impact of this final rule. FRA believes this final rule is consistent with current industry practices and reduces the regulatory burden on the rail industry.

The analysis includes a quantitative evaluation of the benefits of this final rule. For entities choosing to take advantage of the new flexibilities and cost savings provided in this final rule, FRA estimates there may be a minimal cost burden associated with this rule. Specifically, railroads or car owners or operators may need to purchase small hammers or other tools for occupants to use to break windows for emergency egress in passenger cars now considered “antiquated equipment,” because they were built after 1945 and are more than 50 years old, when these passenger cars are operated in intercity passenger or commuter trains. Additionally, railroads will probably modify existing specifications for new equipment orders to remove the requirement to stencil interior walls of the equipment as containing window glazing in full compliance with part 223. The present value of total voluntary costs affected entities may incur is estimated to be approximately $6,000 over a 10-year period.

Overall, the benefits of this rule greatly outweigh any costs that may be incurred. The revisions specified in this final rule eliminate the cost of stenciling, reduce the cost of certain new passenger cars, and reduce the number of waivers requested by the railroad industry. Over a 10-year period, this analysis finds that $1,088,489 in cost savings will accrue due to the changes. The present value of this amount is $819,479 (discounted at 7 percent). Therefore, accounting for the $6,000 in voluntarily-incurred costs to take advantage of the flexibilities provided in this final rule, the net savings of this rule is approximately $813,479.

FRA is eliminating the requirement to stencil the inside walls of locomotives, passenger cars, and cabooses as fully equipped with compliant glazing. This requirement was necessary during the implementation phase-in period of part 223 (in the 1980s), when large numbers of affected equipment were not equipped with glazing required by part 223. The stencil was a clear and easy way to determine whether compliant glazing was installed. Because the phase-in period for fitting equipment with certified glazing under part 223 has long passed, the required certification markings on the window panels have become more useful and reliable for FRA to determine compliance with part 223. The total annual cost for all affected entities to comply with the stenciling requirement is from $74,170 (Year 1) to $80,820 (Year 10) (non-discounted). This variability is due to the increase in real wages discussed in section 6 of the accompanying analysis in the docket for this rulemaking. Consequently, over a 10-year period, the analysis finds that a total of $773,841 in cost savings will accrue through the elimination of this requirement. The present value of this amount is $578,494 (discounted at 7 percent).

This rule revises definitions to help provide clarity to the rail industry and also greater consistency with other FRA regulations. Antiquated equipment will now be defined as equipment that is more than 50 years old. This significantly reduces the number of waiver petitions submitted to exclude from the glazing requirements equipment that is more than 50 years old but built after 1945 and operated in a train for an excursion, educational, recreational, or private transportation purpose. Based on past practice, FRA estimates it would have received approximately 140 initial waiver requests over the next five years (28 per year) if this rule were not issued. FRA is estimating the potential waivers that will no longer be needed over a five-year period because renewal waivers would have been needed every five years to avoid installing certified glazing. Therefore, no additional waiver applications would be expected after the fifth year. In years when the initial waiver petitions would have been submitted if this rule were not issued, the total annual cost for all affected entities would have been from $16,507 (Year 1) to $16,921 (Year 10) (non-discounted). This variability is due to the increase in real wages as discussed in section 6 of the accompanying analysis in the docket for this rulemaking. Accordingly, a total of $83,563 in cost savings will accrue over 10 years due to the reduction of initial waiver requests. The present value of this amount is $73,260 (discounted at 7 percent).

FRA has approved approximately 310 waivers of glazing requirements for equipment more than 50 years old but manufactured after 1945 and operated in a train for an excursion, educational, recreational, or private transportation purpose. If the final rule was not issued, renewal waivers would be required to be submitted every five years to continue operations. Under this final rule, these waivers are no longer necessary, saving the labor cost of preparing and submitting each waiver renewal request. The total annual cost for all affected entities to submit renewal waiver petitions would have increased from $18,275 (Year 1) to $28,066 (Year 10) (non-discounted) if this rule were not issued. This variability is due to the rise in real wages discussed in section 6 of the accompanying analysis this rulemaking's docket. Over a 10-year period, a total of $231,084 in cost savings will therefore accrue due to the reduction of renewal waivers. The present value of this amount is $167,725 (discounted at 7 percent).

FRA notes it is revising the definition of the term “end facing glazing location” to clarify the location means an “exterior” location and expressly identify locations not considered “end facing glazing location[s]”—namely, the coupled ends of MU locomotives or other equipment that is semi-permanently connected to each other in a train consist; and end doors at locations other than the cab end of a cab car of MU locomotive. However, FRA did not evaluate any cost savings as a result of this clarification, because FRA has generally enforced the regulation consistent with this clarification.

FRA expressly requested comments on all aspects of the regulatory evaluation and its conclusions. No comments were received in response to FRA's request.

The Regulatory Flexibility Act of 1980 (RFA), Public Law 96-354, as amended, and codified as amended at 5 U.S.C. 601-612, and Executive Order 13272 (Proper Consideration of Small Entities in Agency Rulemaking), 67 FR 53461, Aug. 16, 2002, require agency review of proposed and final rules to assess their impact on “small entities” for purposes of the RFA. An agency must prepare a regulatory flexibility analysis unless it determines and certifies that a rule is not expected to have a significant economic impact on a substantial number of small entities. Pursuant to the RFA, 5 U.S.C. 605(b), the Administrator of FRA certifies that this final rule will not have a significant economic impact on a substantial number of small entities. This rule will affect small entities. However, the effect on these entities will be purely beneficial other than for a nominal cost savings offset, as it will reduce their costs and labor burden particularly by narrowing the class of equipment subject to the full requirements of the Safety Glazing Standards regulation.

The term “small entity” is defined in 5 U.S.C. 601 (section 601). Section 601(6) defines “small entity” as having the same meaning as “the terms `small business', `small organization' and `small governmental jurisdiction' defined in paragraphs (3), (4), and (5) of this section.” In turn, section 601(3) defines a “small business” as generally having the same meaning as “small business concern” under section 3 of the Small Business Act. This includes any small business concern that is independently owned and operated, and is not dominant in its field of operation. Next, section 601(4) defines “small organization” as generally meaning any not-for-profit enterprise that is independently owned and operated, and not dominant in its field of operations. Additionally, section 601(5) defines “small governmental jurisdiction” in general to include governments of cities, counties, towns, townships, villages, school districts, or special districts with populations less than 50,000.

The U.S. Small Business Administration (SBA) stipulates “size standards” for small entities. A for-profit railroad business firm may be considered a small entity if it has less than 1,500 employees for “Line-Haul Operating” railroads, and 500 employees for “Short-Line Operating” railroads. See “Size Eligibility Provisions and Standards,” 13 CFR part 121, subpart A.

Under exceptions provided in section 601, Federal agencies may adopt their own size standards for small entities in consultation with SBA, and in conjunction with public comment. Under the authority provided to it by SBA, FRA has published a “Final Policy Statement Concerning Small Entities Subject to the Railroad Safety Laws,” which formally establishes small entities as including, among others, the following: (1) The railroads classified by the Surface Transportation Board as Class III; and (2) commuter railroads “that serve populations of 50,000 or less.” 7 See 68 FR 24891, May 9, 2003, codified at appendix C to 49 CFR part 209. Currently, the revenue requirements are $20 million or less in annual operating revenue, adjusted annually for inflation. The $20 million limit (adjusted annually for inflation) is based on the Surface Transportation Board's threshold of a Class III railroad, which is adjusted by applying the railroad revenue deflator adjustment.8 For further information on the calculation of the specific dollar limit, please see 49 CFR part 1201. FRA is using this definition of “small entity” for this final rule.

FRA estimates that there are 726 railroads that operate on standard gage track that is part of the general railroad system of transportation and are, therefore, subject to part 223, see 49 CFR 223.3. Of these railroads, 44 are Class I freight railroads, Class II freight railroads, commuter railroads serving populations of 50,000 or more, or intercity passenger railroads (i.e., Amtrak, a Class I railroad, and the Alaska Railroad, a Class II railroad). The remaining 681 railroads are therefore assumed to be small railroads for the purpose of this assessment. However, this final rule will not impact most of these railroads because locomotives acquired by small railroads are typically older Class I locomotives already equipped with compliant glazing and stenciling. Similarly, any passenger cars acquired by small railroads from intercity passenger or commuter railroads will already be equipped with compliant glazing and stenciling.

Small railroads and private car owners will likely be affected by the clarification that certain equipment more than 50 years old is considered antiquated and thereby excluded from part 223's requirements when operated in specified service. As a result of this change, the economic burden of preparing and submitting waiver petitions will be reduced for railroads and private car owners for equipment that is more than 50 years old but built after 1945 and operated in a train for an excursion, educational, recreational, or private transportation purpose. As noted above, FRA estimates that it would receive approximately 140 initial requests for waiver of the glazing requirements over the next five years (28 per year) if this change were not made, and the approximately 310 approved waivers of glazing requirements would also have to be renewed every five years if this change were not made. When including the avoided cost of renewing the additional 140 initial waiver requests by making this change—a total of approximately 900 9 avoided waiver petitions—the total cost savings is $240,985 over 10 years, discounted at 7 percent. Of course, the individually allocated savings to each affected railroad or private car owner will be a comparatively smaller portion of the total cost savings.

Further, for entities choosing to take advantage of the regulatory relief permitted by this change to the definition of “antiquated equipment,” FRA estimates that there may be a minimal cost burden associated with operation of such passenger cars in intercity passenger or commuter service, because they will continue to be required to have emergency windows. Some affected entities may choose to install small hammers or other small tools or implements to allow for emergency egress from passenger car windows when operated in an intercity passenger or commuter train. Hammers may be used to break these windows in case of an emergency. The population of private cars that operate in Amtrak trains is approximately 125 cars. FRA estimates that 80 percent of these cars will not have hammers or other tools already on board to facilitate emergency egress through windows. Therefore, for 100 of those private cars, car owners will have to purchase four hammers or other tools per car. That total cost will be approximately $5,000. Additionally, a minimal cost to copy and laminate instructions to use the hammers or other tools will also be incurred. FRA estimates this total cost to be $1,000 (approximately $10 per car). All these costs will be incurred during the first year. Therefore, the present value of all total costs is approximately $6,000. This $6,000 cost will easily be offset by the total cost savings of $240,985 from changing the definition of “antiquated equipment,” which is shared among all small entities. Consequently, FRA concludes this final rule will not have a significant economic impact on a substantial number of small entities.

FRA certifies that this final rule is not expected to have a significant economic impact on a substantial number of small entities under the RFA or Executive Order 13272. Although a substantial number of small entities will be affected by this rule, none of these entities will be significantly impacted. In order to determine the significance of the economic impact for the final rule's RFA requirements, FRA expressly invited comments on the NPRM from all interested parties concerning the potential economic impact on small entities resulting from the rule. FRA did not receive comments on this issue.

FRA is submitting the information collection requirements in this final rule for review and approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The sections that contain the new information and current information collection requirements and the estimated time to fulfill each requirement are as follows:

All estimates include the time for reviewing instructions; searching existing data sources; gathering or maintaining the needed data; and reviewing the information. For information or a copy of the paperwork package submitted to OMB, contact Mr. Robert Brogan, Information Clearance Officer, Office of Railroad Safety, FRA, at 202-493-6292, or Ms. Kimberly Toone, FRA Records Management Officer, Office of Information Technology, FRA, at 202-493-6132, or via email at the following addresses: [email protected]; [email protected].

Organizations and individuals desiring to submit comments on the collection of information requirements should send them directly to the Office of Management and Budget, Office of Information and Regulatory Affairs, Washington, DC 20503, Attention: FRA Desk Officer. Comments may also be sent via email to the Office of Management and Budget at the following address: [email protected].

OMB is required to make a decision concerning the collection of information requirements contained in this final rule between 30 and 60 days after publication of this document in the Federal Register. Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication.

FRA cannot impose a penalty on persons for violating information collection requirements which do not display a current OMB control number, if required. FRA intends to obtain current OMB control numbers for new information collection requirements resulting from this rulemaking action prior to the effective date of this final rule. The OMB control number, when assigned, will be announced by separate notice in the Federal Register.

Executive Order 13132, “Federalism” (64 FR 43255, Aug. 10, 1999), requires FRA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, an agency may not issue a regulation with federalism implications that imposes substantial direct compliance costs and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or the agency consults with State and local government officials early in the process of developing the regulation. Where a regulation has federalism implications and preempts State law, the agency seeks to consult with State and local officials in the process of developing the regulation.

FRA has analyzed this rule under the principles and criteria in Executive Order 13132. This rule will not have a substantial effect on the States or their political subdivisions, and it will not affect the relationships between the Federal government and the States or their political subdivisions, or the distribution of power and responsibilities among the various levels of government. In addition, FRA determined this regulatory action will not impose substantial direct compliance costs on States or their political subdivisions. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply. Nevertheless, State and local officials were involved in developing recommendations that are addressed in this rule through the RSAC, which has as permanent members two organizations directly representing State and local interests, AASHTO and ASRSM.

However, this rule could have preemptive effect by operation of law under certain provisions of the Federal railroad safety statutes, specifically the former Federal Railroad Safety Act of 1970, repealed and re-codified at 49 U.S.C 20106, and the former Locomotive Boiler Inspection Act (LIA) at 45 U.S.C. 22-34, repealed and re-codified at 49 U.S.C. 20701-20703. Section 20106 provides that States may not adopt or continue in effect any law, regulation, or order related to railroad safety or security that covers the subject matter of a regulation prescribed or order issued by the Secretary of Transportation (with respect to railroad safety matters) or the Secretary of Homeland Security (with respect to railroad security matters), except when the State law, regulation, or order qualifies under the “essentially local safety or security hazard” exception to section 20106. Moreover, the Supreme Court has interpreted the former LIA to preempt the field of locomotive safety. See Napier v. Atlantic Coast Line R.R., 272 U.S. 605 (1926) and Kurns v. Railroad Friction Products Corp., 132 S. Ct. 1261 (2012).

FRA has evaluated this final rule under the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), other environmental statutes, related regulatory requirements, and its “Procedures for Considering Environmental Impacts” (FRA's Procedures) (64 FR 28545, May 26, 1999). FRA has determined this final rule is categorically excluded from detailed environmental review under section 4(c)(20) of FRA's Procedures, “Promulgation of railroad safety rules and policy statements that do not result in significantly increased emissions of air or water pollutants or noise or increased traffic congestion in any mode of transportation.” See 64 FR 28547, May 26, 1999. Categorical exclusions (CEs) are actions identified in an agency's NEPA implementing procedures that do not normally have a significant impact on the environment and therefore do not require either an environmental assessment (EA) or environmental impact statement (EIS). See 40 CFR 1508.4.

In analyzing the applicability of a CE, the agency must also consider whether extraordinary circumstances are present that would warrant a more detailed environmental review through the preparation of an EA or EIS. Id. Under section 4(c) and (e) of FRA's Procedures, FRA has further concluded that no extraordinary circumstances exist with respect to this regulation that might trigger the need for a more detailed environmental review. The purpose of this rulemaking is to revise and clarify existing regulations related to the use of glazing materials in the windows of locomotives, passenger cars, and cabooses. FRA does not anticipate any environmental impacts from these requirements and finds that there are no extraordinary circumstances present in connection with this final rule.

Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, and DOT Order 5610.2(a) (91 FR 27534, May 10, 2012) require DOT agencies to achieve environmental justice as part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects, including interrelated social and economic effects, of their programs, policies, and activities on minority populations and low-income populations. The DOT Order instructs DOT agencies to address compliance with Executive Order 12898 and requirements within the DOT Order in rulemaking activities, as appropriate. FRA has evaluated this final rule under Executive Order 12898 and the DOT Order and determined it will not cause disproportionately high and adverse human health and environmental effects on minority populations or low-income populations.

FRA has evaluated this final rule under the principles and criteria contained in Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, dated November 6, 2000. This final rule will not have a substantial direct effect on one or more Indian tribes, will not impose substantial direct compliance costs on Indian tribal governments, and will not preempt tribal laws. Therefore, the funding and consultation requirements of Executive Order 13175 do not apply, and a tribal summary impact statement is not required.

Under Section 201 of the Unfunded Mandates Reform Act of 1995 (Public Law 104-4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act (2 U.S.C. 1532) further requires that “before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement” detailing the effect on State, local, and tribal governments and the private sector. When adjusted for inflation using the Consumer Price Index for All Urban Consumers as published by the Bureau of Labor Statistics, the equivalent value of $100,000,000 in year 2014 dollars is $155,000,000.10 The final rule will not result in the expenditure, in the aggregate, of $100,000,000 or more in any one year, and thus preparation of such a statement is not required.

FRA wishes to inform all interested parties that anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). See http://www.regulations.gov/#!privacyNotice for the privacy notice of regulations.gov or interested parties may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000, 65 FR 19477.

For the reasons discussed in the preamble, FRA amends part 223 of chapter II, subtitle B of title 49, Code of Federal Regulations, as follows: